Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 1 of 47

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, individually and on behalf of a class of all others similarly situated;
Plaintiffs,
-against-
THE CITY OF NEW YORK; NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY, in his individual and official capacity; MAYOR MICHAEL BLOOMBERG, in his individual and official capacity; NEW YORK CITY POLICE OFFICER RODRIGUEZ, in his individual capacity; NEW YORK CITY POLICE OFFICER GOODMAN, in his individual capacity; NEW YORK CITY POLICE OFFICER JANE DOE, in her individual capacity; NEW YORK CITY POLICE OFFICER ERIC HERNANDEZ, Shield #15957, in his individual capacity; NEW YORK CITY POLICE OFFICER CORMAC JOYCE, Shield #31274, in his individual capacity; NEW YORK CITY POLICE SERGEANT JAMES KELLY, Shield #92145, in his individual capacity; NEW YORK CITY POLICE OFFICER LUIS PICHARDO, Shield # 00794, in his individual capacity; NEW YORK CITY POLICE OFFICER ANGELICA SALMERON, Shield# 7116, in her individual capacity; NEW YORK CITY POLICE OFFICER MICHAEL COUSIN HAYES, Shield # 3487, in his individual capacity; NEW YORK CITY POLICE OFFICER CHRISTOPHER MORAN, in his individual capacity; and NEW YORK CITY POLICE OFFICERS JOHN DOES #1 through #11, in their individual capacities;
Defendants.
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08 Civ. 01034 (SAS)
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND INDIVIDUAL DAMAGES
DEMAND FOR JURY TRIAL

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PRELIMINARY STATEMENT 1. This is a civil rights action in which named Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht, on behalf of themselves and a class of similarly situated individuals, seek relief for Defendants' violation oftheir rights, privileges, and immunities secured by the Civil Rights Act of 1871, 42 U.S.C. §1983, 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), et seq. ("Title VI"), and the Constitution and laws of the State of New York. 2. The Defendants in this action, the CityofNew York ("City''), New York City Police Commissioner Raymond Kelly ("Commissioner Kelly"), the Mayor of the City of New York, Michael Bloomberg ("Bloomberg"), New York City Police Officers Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Cousin Hayes, Moran, and John Does #1 through #11 have implemented and are continuing to enforce, encourage and sanction a policy, practice and/or custom of unconstitutional stops and frisks ofCity residents, including Plaintiffs, by the New York Police Department ("NYPD") which are being done without the reasonable articulable suspicion required under the Fourth Amendment. 3. In addition, this pattern and practice of unconstitutional stops and frisks by NYPD officers, often have used, and continue to use, race and/or national origin, not reasonable suspicion, as the determinative factors in deciding to stop and frisk individuals in violation of the Equal Protection Clause of the Fourteenth Amendment. The victims ofsuch racial and/or national origin profiling are principally Black and Latino males. 4. The NYPD's widespread constitutional abuses have flourished as a result of, and are directly and proximately caused by, policies, practices and/or customs devised, implemented and
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enforced by the City, Commissioner Kelly and Bloomberg. The City, Commissioner Kelly and Bloomberg have acted with deliberate indifference to the constitutional rights of those who would come into contact with NYPD officers by: (a) failing to properly screen, train, and supervise NYPD officers, (b) inadequately monitoring NYPD officers and their stop and frisk practices, (c) failing to sufficiently discipline NYPD officers who engage in constitutional abuses, and (d) encouraging, sanctioning and failing to rectify the NYPD's unconstitutional practices.
5. In 1999, the Center for Constitutional Rights filed a class action lawsuit, Daniels, et al. v. The City ofNew York, et al., Case No. 99 Civ. 1696 (SAS), in the United States District Court for the Southern District of New York, to challenge the NYPD's unconstitutional policy, practice and/or custom of conducting rampant stops and frisks ofindividuals in violation of the Fourth and Fourteenth Amendments. A Stipulation ofSettlement was reached in 2003 in which the NYPD was required to implement a written policy prohibiting police stop and frisks which impermissibly used race and/or national origin, not reasonable suspicion, as the determinative factors in initiating police action. However, Defendants' unlawful policy, practice and/or custom continues despite the written policy prohibiting unconstitutional stops and/or frisks.
6. As a direct and proximate result of Defendants' policies, practices and/or customs, hundreds of thousands of City residents, in particular Black and Latino individuals, have been subjected to unconstitutional stops and frisks by NYPD officers. Indeed, many Black and Latino persons repeatedly have been victims ofsuspicionless stops and frisks by the NYPD. Moreover, the NYPD's constitutional abuses have been attended by unlawful searches and seizures and, at times, excessive force, ofwhich the fatal shooting ofSean Bell byNYPD officers is but one tragic example.
7. The named Plaintiffs seek to represent a certified class for the purpose of obtaining
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injunctive and declaratory relief only. The named Plaintiffs seek a class-wide judgment declaring that the policies, practices and/or customs described herein violate the Fourth and Fourteenth Amendments and a class-wide injunction enjoining Defendants from continuing such policies, practices and/or customs. In addition, the named Plaintiffs seek compensatory and punitive damages for themselves. All Plaintiffs seek an award of attorneys' fees and costs and such other relief as this Court deems equitable and just.
JURISDICTION 8. Jurisdiction is conferred upon this Court under 28 U.S.C. §§ 1331 and 1343(3) and (4), as this action seeks redress for the violation of Plaintiffs' constitutional and civil rights. 9. Plaintiffs' claims for declaratory and injunctive reliefare authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57 of the Federal Rules of Civil Procedure. 10. Plaintiffs further invoke this Court's supplemental jurisdiction, pursuant to 28 U.S.C. § 1367(a), over any and all state constitutional and state law claims that are so related to the claims within the original jurisdiction of this Court that they form part of the same case or controversy.
VENUE 11. Venue is proper in the United States District Court for the Southern District ofNew York pursuant to 28 U.S.C. §§ 1391 (b) and (c).
JURY DEMAND 12. Plaintiffs demand trial by jury in this action on each and every one of their claims.
PARTIES Plaintiffs 13. Plaintiff DAVID FLOYD ("Floyd") is a 28-year-old African-American man who
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resides in the City ofNew York, Borough ofthe Bronx. Floyd resides in and/or visits neighborhoods where NYPD officers are and/or have been deployed and conduct stop and frisks.
14. Plaintiff LALIT CLARKSON ("Clarkson") is a 26 year-old African-American man who resides in Harlem in the City of New York. Clarkson resides in and/or visits neighborhoods where NYPD officers are and/or have been deployed and conduct stop and frisks.
15. PlaintiffDEON DENNIS ("Dennis") is a 37 year-old African-American man who resides in Harlem in the City of New York. Dennis resides in and/or visits neighborhoods where NYPD officers are and/or have been deployed and conduct stop and frisks.
16. PlaintiffDAVID OURLICHT ("Ourlicht") is a 20 year-old African-American man who resides in Jamaica, Queens, in the City of New York. Ourlicht resides in and/or visits neighborhoods where NYPD officers are and/or have been deployed and conduct stop and frisks.
Defendants 17. Defendant CITY OF NEW YORK ("City") is a municipal entity created and authorized under the laws of the State ofNew York. It is authorized under the laws of the State of New York to maintain a police department, the NYPD, which acts as its agent in the area of law enforcement and for which it is ultimately responsible. The City assumes the risks incidental to the maintenance of a police force and the employment of police officers. The NYPD's operations include the operations as described herein. On information and belief, the law enforcement activities of the NYPD are funded, in part, with funds from the federal goverrnnent. 18. Defendant New York City Police Commissioner RAYMOND KELLY is and was, at all times relevant herein, the Police Commissioner for the City, and is and was responsible for, and the chiefarchitect of, the policies, practices and/or customs ofthe NYPD, a municipal agency ofthe
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City. He is and was, at all times relevant herein, responsible for the hiring, screening, training, retention, supervision, discipline, counseling and control of the police officers under his command who are or were employed by the NYPD, including the Defendants named herein. He is sued individually and in his official capacity.
19. Defendant MICHAEL BLOOMBERG is and was, at all times relevant herein, the Mayor ofthe City ofNew York and the chiefpolicy making official for the City and its departments, including the NYPD. He is sued in both his individual and official capacities.
20. Defendant RODRIGUEZ is, and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Rodriguez is sued in his individual capacity.
21. Defendant GOODMAN is, and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Goodman is sued in his individual capacity.
22. Defendant JANE DOE is, and/or was, at all times relevant herein, an officer, employee and agent ofthe NYPD, a municipal agency ofthe City. Jane Doe is sued in herindividual capacity.
23. Defendant ERIC HERNANDEZ is, and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Hernandez is sued in his individual capacity.
24. Defendant CORMAC JOYCE is, and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Joyce is sued in his individual capacity.
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25. Defendant JAMES KELLY, is, and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Kelly is sued in his individual capacity.
26. Defendant LUIS PICHARDO is and/or was, at all times relevant herein, an officer, employee and agent ofthe NYPD, a municipal agency ofthe City. Pichardo is sued in his individual capacity.
27. Defendant ANGELICA SALMERON is and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency ofthe City. Salmeron is sued in his individual capacity.
28. Defendant MICHAEL COUSIN HAYES is and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Hayes is sued in his individual capacity.
29. Defendant CHRISTOPHER MORAN is and/or was, at all times relevant herein, an officer, employee and agent of the NYPD, a municipal agency of the City. Moran is sued in his individual capacity.
30. Defendants JOHN DOES #1 through #11, are, and/or were, at all times relevant herein, officers, employees and agents ofthe NYPD, a municipal agency ofthe City. John Does #1 through #11 are sued in their individual capacities.
31. Defendants NEW YORK CITY POLICE OFFICERS RODRIGUEZ, GOODMAN, JANE DOE, HERNANDEZ, JOYCE, KELLY, PICHARDO, SALMERON, HAYES, MORAN, and JOHN DOES #1 through #11 are, and/or were, at all times relevant herein, officers, employees, and agents ofthe NYPD, a municipal agency of the City. Defendants Rodriguez, Goodman, Jane Doe,
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Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #1 through #11 are sued in their individual capacities.
32. At all times relevant herein, Defendants Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, John Does #1 through #11, Commissioner Kelly and Bloomberg have acted under color of state law in the course and scope of their duties and functions as agents, employees, and officers ofthe City and/or the NYPD in engaging in the conduct described herein. At all times relevant herein, Defendants have acted for and on behalfof the City and/or the NYPD with the power and authority vested in them as officers, agents and employees of the City and/or the NYPD and incidental to the lawful pursuit of their duties as officers, employees and agents of the City and/or the NYPD.
33. At all times relevant herein, Defendants Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, John Does #1 through #11, Commissioner Kelly and Bloomberg have violated clearly established constitutional standards under the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of which a reasonable person would have known.
CLASS ACTION ALLEGATIONS 34. Pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure, the named Plaintiffs seek to represent a certified Plaintiff class consisting of all persons who have been or will be subjected byNYPD officers to Defendants' policy, practice and/or custom of stopping or stopping and frisking persons in the absence of a reasonable, articulable suspicion that criminal activity is taking place, in violation of the Fourth Amendment, including persons stopped or stopped and frisked based on race and/or national origin, in violation of the Equal
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Protection Clause of the Fourteenth Amendment. 35. The members of the class are so numerous as to render joinder impracticable.
Based on information made publicly available by the NYPD, hundreds of thousands of people are stopped or stopped and frisked each year by the NYPD without reasonable, articulable suspicion of criminal conduct.
36. In addition, joinder is impracticable because, upon information and belief, many members of the class are not aware of the fact that their constitutional rights have been violated and that they have the right to seek redress in court. Many members of the class are without the means to retain an attorney to represent them in a civil rights lawsuit. Moreover, many class members who have been victimized by the NYPD's unconstitutional practices do not bring individual claims for fear of retaliation and reprisals by NYPD officers. There is no appropriate avenue for the protection of the class members' constitutional rights other than a class action.
37. The class members share a number of questions of law and fact in common, including, but not limited to:
(a) whether the NYPD engages in a policy, practice and/or custom of stopping and frisking members of the class in the absence of reasonable, articulable suspicion of criminal conduct required by the Fourth Amendment;
(b) whether the NYPD engages in profiling on the basis ofrace and/or national origin in targeting class members for such stops and frisks in violation of the Equal Protection Clause ofthe Fourteenth Amendment;
(c) whether the NYPD, incidental to such stops and :fiisks, conducts searches and seizures and uses excessive force in violation ofthe Fourth Amendment;
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(d) whether the City, Commissioner Kelly and Bloomberg have failed to adequately and properly screen, train, supervise, monitor and discipline NYPD officers, and whether those failures have caused the constitutional violations inflicted by NYPD officers against class members; and
(e) whether the City, Commissioner Kelly and Bloomberg have encouraged, sanctioned and failed to rectifY unconstitutional stops and frisks by members of the NYPD, and whether such acts and omissions have caused constitutional violations by NYPD officers against class members.
38. The named Plaintiffs' claims are typical of those of the class. Like the other members of the class, the named Plaintiffs have been and likely will be again victims of the NYPD's policy, practice and/or custom of suspicionless stops and frisks in that they have been and likely will continue to be, stopped or stopped and frisked with the reasonable articulable suspicion of criminal conduct required under the Fourth Amendment and on the basis of their race and/or national origin.
39. The legal theories under which the named Plaintiffs seek declaratory and injunctive relief are the same or similar to those on which all members of the class will rely, and the harms suffered by the named Plaintiffs are typical of the harms suffered by the class members.
40. The named Plaintiffs have a strong personal interest in the outcome of this action, have no conflicts ofinterest with members ofthe Plaintiff class, and will fairly and adequately protect the interests of the class. The named Plaintiffs are all African-American men and reside in and/or visit neighborhoods where NYPD officers have been deployed and conduct stop and
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frisks. As long as the NYPD engages in its policy, practice and/or custom of suspicionless stops and frisks, the named Plaintiffs are, and will remain, at high risk of being illegally stopped and frisked again by the NYPD. Indeed, two of the named Plaintiffs have been victimized by NYPD officers repeatedly. The named Plaintiffs are seeking compensatory and punitive damages only on an individual basis.
41. The named Plaintiffs are represented by the Center for Constitutional Rights and Jonathan Moore of the law firm Beldock, Levine & Hoffinan, LLP. All are experienced civil rights counsel who have litigated a wide range of class action lawsuits. Counsel for the Plaintiffs have the resources, expertise and experience to prosecute this action. Counsel for the Plaintiffs know of no conflicts among members of the class or between the attorneys and members of the class.
42. The Plaintiffclass should be certified pursuant to Ru1e 23(b)(2) of the Federal Rules of Civil Procedure because the Defendants have acted on grounds generally applicable to the class, thereby making class-wide declaratory and injunctive relief appropriate.
STATEMENT OF FACTS The Experiences of the Named Plaintiffs David Floyd 43. On April20, 2007, Plaintiff David Floyd, a freelance film and video editor, was walking in the middle of the day on the sidewaik on Beach Avenue in his Bronx neighborhood, several homes away from where he Jives. He witnessed several NYPD officers engaged in a stop of an African-American male on the block where he was walking. 44. Floyd crossed the street and was approached by two male NYPD Officers,
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Rodriguez and Goodman, and one female officer, Jane Doe. The officers were riding in a van near Plaintiff as he walked on the sidewalk. These appeared to be the same officers who Floyd had just seen stopping another African-American male in the same area.
45. Without any basis to formulate a reasonable, articulable suspicion that Floyd had engaged in or was about to engage in criminal conduct, the officers told Floyd to stop and the officers exited the van. Defendants Rodriguez and Goodman surrounded Floyd and questioned him about where he was going, what he was doing, asked for identification and whether he had any weapons. Floyd responded to these questions and told the officers that he was simply walking home, did not have any weapons and provided the officers with his driver's license. Floyd asked the officers why he was being stopped, but they refused to answer or provide any reason for the stop.
46. With no reasonable belief that Floyd was armed or dangerous and without probable cause, Defendant Goodman proceeded to search under Floyd's shirt and put his hands into Plaintiffs pants pockets. Floyd asked what probable cause the officers had for searching and frisking him, but the officers ignored his question. Floyd informed Defendants Goodman and Rodriguez that he did not consent to the search.
47. When the officers did not find a gun, drugs or any other illegal item on Floyd, one of the officers asked why Floyd's driver's license was from out of state and told him that he could be arrested because it was illegal to not have a New York State identification. Floyd informed the officers that he did not drive in New York State. The officers returned Floyd's identification and got back into their van to leave.
48. Floyd asked the officers for their names and badge numbers. Defendant
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Rodriguez identified himself and jokingly asked the other officers for their names and badge numbers. Defendant Jane Doe stood near the police van during this encounter. The officers left without explaining why they had stopped and searched Floyd.
49. Floyd did not witness any of the officers that stopped and frisked him filling out any paperwork. These officers subjected Floyd to a suspicionless stop, frisk and unlawful search based on his race and/or national origin.
50. PlaintiffFloyd was unlawfully stopped, questioned and frisked, again, by NYPD officers in February 2008. Just after leaving his home in his neighborhood in the Bronx, Floyd ran into an acquaintance who rents a basement apartment from Floyd's godmother. Floyd lives in a small house directly in back of a home, on the same property, which is owned by his godmother. The tenant informed Floyd that he was locked out of his apartment and asked if Floyd could get the spare set of keys from his godmother's upstairs apartment to let him in. Not knowing which key was the correct one for the apartment, Floyd obtained all of the spare keys he could find in his godmother's apartment and returned to assist the tenant.
51. As Floyd and the tenant were standing outside the apartment door attempting to find the correct key, they were approached from behind by Defendants Hernandez, Joyce and Kelly. Without any basis to formulate a reasonable, articulable suspicion that Floyd had engaged in or was about to engage in criminal conduct, the officers asked what Floyd and the tenant were doing. Without giving Floyd or the tenant time to offer an explanation, the officers told them to get up against the wall with their hands spread.
52. Floyd explained to the officers that he lived in the rear house and that he was attempting to help a tenant who lived in a basement apartment owned by his godmother who had
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locked himself out of his apartment. Floyd explained that they were not sure which spare key would open the apartment door and that they were trying the keys that he had obtained from his godmother's apartment upstairs.
53. The officers asked Floyd and the tenant for identification and subjected Plaintiff Floyd to a search by putting their hands inside his pockets. Floyd produced his driver's license and the officers questioned why the address did not match where he said he lived. The tenant did not have any identification because it was inside his apartment which he was locked out of. Floyd offered to open the apartment for the tenant so that he could retrieve his identification. After inspecting the tenant's identification, the officers left the scene.
54. Floyd did not witness any of the officers that stopped and frisked him filling out any paperwork. These officers subjected Floyd to a suspicionless stop, frisk and unlawful search based on his race and/or national origin. Lalit Clarkson
55. On a weekday in January 2006, at approximately 1:00 p.m., Plaintiff Lalit Clarkson was on his lunch break from his job as a teaching assistant at Grand Concourse Academy Charter School in the Bronx. He walked to a Subway restaurant on !67th Street and Walton Avenue about two blocks from Grand Concourse Academy. At the time, Clarkson was in his work clothes, a dress shirt, tie and slacks.
56. After buying his lunch at the Subway restaurant, Clarkson walked back up Walton Avenue to !69th Street where he entered a bodega on the comer of !69th and Walton Avenue, directly across the street from the Grand Concourse Academy. Upon entering the bodega, Clarkson noticed Defendant Officers John Doe #1 and John Doe #2, both dressed in plain
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clothes, standing in the aisles. Clarkson purchased some food items and then exited the bodega. 57. Without any basis to formulate a reasonable, articulable suspicion that Clarkson
had engaged in or was about to engage in criminal conduct, Defendant Officers John Doe #1 and John Doe #2 immediately followed Clarkson out ofthe store and called out to him. Clarkson was walking on the sidewalk in front of the window of the bodega and stopped and turned around to see what they wanted.
58. When Clarkson turned, John Doe #1 and John Doe #2 crossed in front of his path and flashed their police badges. The officers, who were both at least half a foot taller than Clarkson, positioned themselves less than two feet away from him and stood between Clarkson and the street. The officers' positions placed Clarkson with his back against the bodega window.
59. The officers stated that they wanted to ask Clarkson some questions and, without waiting for Clarkson to consent or object, asked him where he was coming from. Clarkson told Defendants John Doe #1 and John Doe #2 that he was on his lunch break from his job at Grand Concourse Academy across the street and physically pointed to the school.
60. In response, Defendant John Doe #2 told Clarkson that he had allegedly observed him coming from the direction of a building on Walton Avenue which, the officer claimed, was a known center for drug activity. Clarkson then explained that he had bought lunch at the Subway restaurant on !67th Street and Walton Avenue and, thus, had to pass by the building the officer was referring to as he walked back to work on 169th Street.
61. Defendant John Doe #2 asked Clarkson if he had any contraband on him and whether the officers would find any contraband if they searched him. Clarkson responded that he did not have any contraband and that he did not consent to a search. John Doe #2 asked the same
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question a second time and Clarkson, again, responded that he did not have any contraband and did not consent to a search.
62. At this point, John Doe #2 took several steps toward Clarkson and, raising his voice, asked the same question a third time. Clarkson gave the same answer he previously had. By this time, several people in nearby stores had come out onto the sidewalk to witness the police officers' interrogation and detention of Clarkson. After Clarkson's third refusal to consent to a search, the officers left the scene.
63. At no point did Clarkson observe either John Doe #1 or John Doe #2 fill out any paperwork. These officers subjected Clarkson to a suspicionless stop and detention based on his race and/or national origin. DeonDennis
64. On January 12, 2008, PlaintiffDeon Dennis was standing on the sidewalk outside an apartment building located at 2034 7th Avenue (between 122nd and 121 st Streets) at approximately 11 p.m. while he waited for his fiance to return from running an errand to a local store to get supplies for her birthday party.
65. Without any basis to formulate a reasonable articulable suspicion that Dennis had engaged in or was about to engage in criminal conduct, Defendants Pichardo and Salmeron drove up in a police van and approached Plaintiff Dennis as he stood outside the apartment building. Defendants asked why Plaintiff was there, whether he had been drinking and whether a cup that was a few feet away from Dennis belonged to him.
66. Dennis responded to the questions and informed Defendants that the cup was not his and that he had a drink earlier while attending his fiance's birthday party in an apartment
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inside the building. Defendants Pichardo and Salmeron did not make any movement towards the cup or examine its contents, if any.
67. Defendants Pichardo and Salmeron positioned themselves to either side of Dennis and asked for Dennis' identification. Dennis complied with this request and provided one of the officers with his driver's license. With no reasonable belief that Dennis was armed or dangerous and without probable cause, Defendants searched Plaintiff Dennis by putting their hands into his pockets and asked if he had any weapons. Defendants' search of Plaintiff Dennis did not reveal anything other than his wallet.
68. The officer to whom Dennis had given his identification went to the police van and returned several minutes later to inform Dennis that he allegedly had an outstanding warrant for taking the subway without paying. The officer knowingly made this false statement. The officers handcuffed Dennis and transported him to the 28th Precinct.
69. After being taken to the precinct, Dennis was held at the front desk area while one of the officers who had arrested him left the area to, upon information and belief, run a check for any outstanding warrants. Upon the officer's return, the officer informed Dennis that he did not have any outstanding warrants.
70. Defendant Hayes then came out of a room in the rear of the reception area where Dennis was being held and approached Plaintiff Dennis and the other officers. Hayes informed Plaintiff Dennis that he had a warrant from 1994 for an alleged disorderly conduct charge in New York City. Defendant Hayes knowingly made this false statement. Dennis informed Defendant Hayes, and the other officers present, including Pichardo and Salmeron, that he was living in South Carolina during 1994. One of the officers who had arrested Dennis at the scene told him
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that there was nothing that she could do concerning Defendant Hayes' statement that there was an alleged warrant.
71. Dennis was fingerprinted and given a voucher for his property which stated that Defendant Hayes was his arresting officer even though Hayes had not been present at the scene when Dennis was initially stopped, questioned, searched and arrested.
72. During the time that Dennis was at the precinct, his fiance attempted to see him, inquired about why he had been arrested and asked to retrieve his wallet. The officers present would not provide her with any information concerning Plaintiff Dennis' whereabouts, why he had been arrested or give her his property.
73. Dennis was held for approximately 6 hours at the precinct and then transported to central booking. At central booking, Dennis was placed in another cell for approximately 4 hours. At one point, Dennis was taken upstairs to a room where an officer ran a check for warrants. At that point, Dennis was informed that he did not have any outstanding warrants and that he was free to leave.
74. Dennis was in jail for approximately 10-11 hours. When Dennis returned to his fiance's apartment later in the day after being released from jail, the cup, which Defendants had asked him about, was still in the same place.
75. Defendants Pichardo and Salmeron subjected Dennis to a suspicionless stop, frisk and unlawful search based on his race and/or national origin. In addition, over the past year, Plaintiff Dennis has been stopped repeatedly, on multiple occasions, by other uniformed and plainclothes NYPD officers who have demanded to search his person and automobile without the reasonable, articulable supicion that he had engaged in, or was about to engage in, any criminal
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conduct. Following each of these stops and searches, Dennis was never given a citation and was permitted to leave following the detention. David Ourlicht
76. On January 30, 2008, at approximately 2:00p.m., Plaintiff David Onrlicht was retuming from class at St. John's University in Queens, New York with his girlfri~nd. Ourlicht was planning to walk his girlfriend to her job before returning to his apartment nearby.
77. Without any basis to formulate a reasonable articulable suspicion that Ourlicht had engaged in or was about to engage in criminal conduct, Defendant Moran stopped Onrlicht and his girlfriend as they were crossing 164th Street at 86th Avenue in Queens. Moran was driving with two other police officers in a golf cart with identification #6226. Moran demanded to know why Ourlicht and his girlfriend were in that neighborhood.
78. Ourlicht asked Defendant Moran why he was being stopped. Moran demanded identification from Ourlicht and told Ourlicht to simply answer the questions. Ourlicht asked again why he was being stopped. Moran told Ourlicht that he thought Ourlicht had a gun and that he was "acting suspicious."
79. Onrlicht informed Defendant Moran that he was a student at St. John's University and that he rented an apartment around the comer, at 165-15 Chapin Court. Moran patted Onr1icht down.
80. Ourlicht provided Moran with his St. John's University identification card and his passport. Ourlicht then wrote down Moran's badge number and vehicle number. Moran
responded by telling Ourlicht that he was going to get the "full treatment."
81. Defendant Moran forced Ourlicht to stand against a wall with his hands up.
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Moran searched Ourlicht's pockets, finding nothing. Moran then made Ourlicht sit down on the sidewalk, at which time Defendants John Does #3 and #4 arrived at the scene.
82. Defendant Moran returned to his golf cart and ran a computer search, while John Does # 3 arid # 4 watched Ourlicht. After approximately five minutes, Moran returned and demanded to know Ourlicht's address. Ourlicht told Moran that his family lived at 5th Avenue and 14th Street in Manhattan. Moran asked the same question three more times; each time Ourlicht gave the same answer. Finally, Moran told Ourlicht that he was lying because it is impossible to live on two different streets. Ourlicht explained that his family lived on 5th Avenue, between 13th and 14th Streets. Moran then gave Ourlicht a summons for disorderly conduct.
83. The disorderly conduct charges against Ourlicht were thereafter dismissed by the Queens County Criminal Court..
84. Aside from the aforementioned summons, at no point did Ourlicht observe Defendant Moran or John Does# 3 and #4 fill out any paperwork. Moran and John Does #3 and #4 subjected Ourlicht to a suspicionless stop, frisk, illegal search, and detention based on his race and/or national origin.
85. On February 21,2008, between 6:00 and 7:00p.m., Ourlicht was returning home from class at St. John's University with a 19 year-old Caucasian classmate and walking on the sidewalk towards the F Train subway stop at !69th Street in Queens. Without any basis to formulate a reasonable articulable suspicion that Ourlicht or his classmate had engaged in or were about to engage in criminal conduct, four police officers driving a black van stopped Ourlicht. The officers were wearing baseball hats, hooded sweatshirts· and jeans.
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86. Defendant John Doe #5, who was sitting in the passenger seat of the van, demanded identification after telling Ourlicht, "We're looking for guns." Ourlicht provided two forms of identification.
87. Defendant John Doe #5 then subjected Ourlicht to a search, inspecting Ourlicht's pockets and socks, but did not find any weapons, contraband or any other illegal substances or materials. At the same time, Defendant John Doe #6, the driver of the police van, searched Onrlicht's classmate. John Doe #6 then am10unced, "Look what we found!" and pulled a bag containing marijuana out of Ourlicht's classmate's pocket. Jolm Doe #6 then returned the marijuana to the classmate's pocket.
88. Defendant Jolm Does #7 and #8 told Onrlicht that if they found anything on him, they would arrest him. Defendant John Does #5, #6, #7, and #8 then searched Onrlicht again. They asked Ourlicht where he was going, where he was coming from, and what he was doing in the neighborhood. Finally, after approximately fifteen minutes, the officers left Onrlicht and his classmate alone.
89. At no point did Onrlicht observe John Does #5, #6, #7, or #8 fill out any paperwork. John Does #5, #6, #7, and #8 subjected Ourlicht to a suspicionless stop, frisk, illegal search, and detention based on his race and/or national origin.
90. On June 9, 2008, at approximately 8:00am, Ourlicht was standing outside of one of the apartment buildings in the Johnson public housing complex at !16th Street and Park Avenue in Harlem, New York. Ourlicht was at the Johnson complex to help an AfricanAmerican friend of his move belongings out of the friend's grandmother's apartment. Three other African-American men, unrelated to Ourlicht or his friend, were setting on a bench nearby.
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91. Without any basis to formulate a reasonable articulable suspicion that Our!icht or any of the other four men had engaged in or were about to engage in criminal conduct, Defendant John Doe #9 walked quickly towards Ourlicht and the others, pointed a gun at Ourlicht, and demanded that Ourlicht and the others get on the grwnd, which they immediately did.
92. John Doe #9 informed Ourlicht that, "We heard someone has a gun." 93. At this point, Defendant John Does #10 and #11, who had been sitting in a police wagon with identification number PSA59466 which was parked in front of the Johnson Complex, got out of the wagon and approached Ourlicht and the other four men, all of whom were lying face-down on the ground and unarmed, with their guns drawn. 94. John Does #9, #10, and #11 searched Ourlicht and the other four men while they were on the ground, but did not find any weapons or other contraband. Ourlicht was forced to stay on the ground for 10 minutes. 95. John Does #9, #1 0, and #11 then told Ourlicht and the others to stand up and provide identification. The officers wrote down the names of Ourlicht and the others and then entered one of the apartment buildings in the Johnson complex. 96. At no point did Ourlicht observe John Does #9, #l 0, or #11 fill out any paperwork. John Does #9, #10, and #11 subjected Ourlicht to a suspicionless stop, frisk, illegal search, and detention based on his race and/or national origin. 97. Defendants Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Moran, Pichardo, Salmeron, Hayes, and John Does #1 through #11 have implemented, enforced, encouraged and sanctioned a policy, practice and/or custom of suspicionless stops and frisks in violation of the Fourth Amendment and the Equal Protection Clause of the Fourteenth
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Amendment. This unconstitutional conduct is a direct and proximate result of policies, practices and/or customs of the City, Commissioner Kelly and Bloomberg and their confederates whose identities are presently unknown to Plaintiffs.
98. Defendants each knew, or should have known, that as a direct and proximate result ofthe policies, practices and/or customs described herein, the constitutional rights of tens of thousands of individuals, particularly Black and Latino individuals, would be violated. Despite this knowledge, and with deliberate indifference to and reckless disregard for the constitutional rights of such individuals, defendants have implemented, enforced, encouraged, sanctioned and failed to rectify such policies, practices and/or customs.
NYPD's History of a Policy, Practice and!or Custom of Suspicionless Stops and Frisks 99. The NYPD has a history of conducting suspicionless stops and frisks which traces
back to the formation of the "Street Crime Unit" ("SCU") in the 1970's. The SCU was an elite, commando-like squad ofpolice officers whose self-proclaimed mission was to interdict violent street crime in the City and, in particular, to remove illegal firearms from the streets. The SCU was little noticed until Rudolph Giuliani ("Giuliani") took office as Mayor of the City of New York in 1994. Giuliani had campaigned on a promise of more aggressive law enforcement, and once he assumed office, the SCU became a centerpiece of Giuliani's anti-crime strategy, and its officers primary enforcers ofhis highly aggressive policies.
100. The SCU, which consisted predominantly of White men, was deployed in socalled "high crime" areas, largely populated by minorities. Race and/or national origin - not the reasonable, articulable suspicion ofcriminal activity required under the Fourth Amendmentwere often the determinative factors in the SCU's decision to stop and frisk.
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101. The SCU's policy, practice and/or custom of suspicionless stops and frisks led to a
massive deprivation of constitutional rights. In 1997, the SCU reported over 18,000 stops and
frisks, but made less than 5,000 arrests. The next year, the SCU reported a 50% increase in stops and frisks, but even fewer arrests than in 1997. The SCU's own figures revealed that over a twoyear period more than 35,000 law-abiding people were stopped and frisked.
102. The unconstitutional practices of the SCU led not only to unlawful stops, searches and seizures, but also to violence. One of the most commonly known incidents occurred in February 1999 when the SCU's tactics turned deadly when fonr SCU officers killed West African immigrant Amadon Diallo in the Bronx in a hail of 41 bullets as he stood in the vestibule of his apartment building.
103. In 1999, the Office of the Attorney General ("OAG") conducted an investigation and released a study of the NYPD's stop and frisk practices for the period of January 1, 1998 through March 31, 1999, which concluded that there was evidence of racial disparities and disparate impact on the basis of race. Analyzing the stop and frisk data for the time period from January 1998 through March 1999, the OAG found that although Blacks comprised 25.6% of the City's population and Hispanics 23.7%, these two groups made up 83.6% of all stops by the NYPD. By contrast, Whites were 43.4% of the City's population, but accounted for only 12.9% of all stops. In precincts where Black and Hispanic persons each represented less than 10% of the total population, individuals identified as belonging to these racial group accounted for more than half(53.4%) of the stops in these precincts. The rate at which stops led to arrests also differed by race: only 1 out of 9.5 stops of Blacks, 1 out of 8.8 stops of Hispanics, and 1 out of every 7.9 stops of Whites resulted in an arrest. These stop to arrest rates demonstrated that the
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stops of Whites were more likely to lead to arrests, whereas those for Blacks were more indiscriminate because fewer of the persons stopped in these broader sweeps were actually arrested. The OAG also found that when examining the crime rate statistics from the New York Division of Criminal Justice Services ("DCJS") during this time period, Blacks were stopped 23% more often than Whites; Hispanics were stopped 39% more often than Whites. Controlling for precincts actually increased these discrepancies. The OAG also estimated that SCU officers completed a UF-250 form (i.e., the form on which all NYPD officers are required to record information about stop and frisk practices) was completed for only 10%-20% of the stops and frisks they conducted.
104. In 1999, the Center for Constitutional Rights filed a class action lawsuit, Daniels, eta!. v. The City ofNew York, eta!., ("Daniels") to challenge the NYPD's unconstitutional policy, practice and/or custom of conducting rampant stops and frisks of individuals without the reasonable articulable suspicion required under the Fourth Amendment and which impermissibly used race and/or national origin-- not reasonable suspicion-- as the determinative factors in deciding to stop and frisk individuals.
105. In 2003, a settlement was reached in Daniels which resulted in a Stipulation that required, inter alia, the NYPD to adopt a written policy prohibiting unlawful racial profiling. The Stipulation also required the NYPD to produce quarterly data concerning the NYPD stop and frisk activity which is contained in its UF-250 forms.
106. During the pendency of Daniels, the NYPD claimed it had disbanded the SCU, however, the unlawful practices perfected by the NYPD through the SCU have continued,
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through other methods, as part of the NYPD's anti-crime strategy. 107. Defendants have applied a facially neutral policy, the written anti-racial profiling
policy, to Plaintiffs, and similarly situated individuals, in an intentionally racially discriminatory manner.
108. An analysis ofthe UF-250 data provided by the NYPD, as required under the Daniels Stipulation, for the last quarter of2003, all quarters for 2004, 2005, 2006 and the first quarter of2007 revealed non-compliance with the written policy which prohibits racial or ethnic/national origin profiling which violates the United States and New York State Constitutions that was implemented pursuant to the Stipulation. The UF-250 data for 2003-06 indicates persistent racial disparities in police activities in conducting stop and frisks.
109. The UF-250 data shows that in 2006, the NYPD stopped, questioned and/or frisked 506,491 people, a remarkable 520% increase from a total of97,296 in 2002. In 2006, nearly 90% of those stopped and frisked were Black or Latino, even though these groups make up approximately 52% of the City's population. Only 10% ofthose stops led to summonses or arrests, thus, indicating a Jack ofreasonable suspicion. These racial disparities have only increased consistently over time. The increase in the percentage of stops targeting Blacks has been steady and substantial, with 48% of the stops in 2003; 50% in 2004; 51% in 2005; and 53% in 2006.
11 0. The 2006 UF-250 data also shows evidence of racial disparities in the frisks conducted by the NYPD ofBlack and White suspects. In 2004, 45% of Black suspects who were stopped were subjected to being frisked, as compared to 29% ofWhites. In 2005,47% of all
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Black suspects who were stopped were frisked, as compared to 27% of Whites. In 2006,46% of all Blacks who were stopped were frisked, as compared with 29% of Whites. Moreover, the outcome of these frisks varied substantially by race. In 2006, 13% of Whites who were frisked were arrested, as compared with 7% of Blacks. The significantly lower percentage of frisks which lead to an arrest for Blacks indicates that these actions are more indiscriminate and demonstrates pretext through a lack ofreasonable suspicion because the stops ofWhites are actually more likely to lead to arrests.
111. The UF-250 data for 2006 also shows racial disparities in that Blacks were more likely to have physical force applied during the stop, but less likely to be arrested if subjected to physical force. The racial differences in the use of physical force are significant - 15% of Whites stopped in 2006 experienced any physical force as compared with 21% of Blacks. This difference does not correspond to the likelihood of arrest for those on whom force is used. Among all Whites who were subjected to physical force in 2006,12% were arrested; among Blacks, 14% were arrested.
112. According to the data, in 2006, the most common reason provided for stopping Blacks was on suspicion of a weapons crime. However, the percentage of weapons related stops that actually lead to recovery of a weapon is remarkably small - only 2%- showing that the most frequent reason for stopping Blacks has one of the lowest yield of uncovering what the stop is intended to find, thus, establishing a practice of intentional racially based policing. The low yield of weapons for stops of Blacks is also significant because of the racial disparities in the yield for weapons stops of Whites. When stopped, 45% of Blacks and Latinos were frisked as compared to 29% of White suspects even though White suspects were 70% more likely than Black suspects
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to have a weapon. While officers are nearly twice as likely to find contraband when frisking or searching White suspects than Black suspects, 45% of Black suspects and only 29% of White suspects were subjected to an intrusive frisk. A finding that searches of minorities are less productive than searches of Whites is statistically significant and indicates that police have a lower threshold of probable cause when searching minorities and shows differential treatment of minorities that produces a disparate impact.
113. UF-250 data also shows that Blacks are also more likely to be stopped for subjective reasons which allow for officers to conduct stops based on racial bias and lack the reasonable suspicion required by the Fourth Amendment. While some reasons are justified under the Fourth Amendment, certain reasons for a stop are constitutionally ambiguous and impermissible under the Fourth Amendment. For example, in 2006, the most common reason, 38%, for stopping Blacks was for "furtive movements," as compared to 31% for Whites. 10% of Blacks are stopped for a "suspicious bulge" as compared to 3% of Whites. The differential treatment of suspects based on race is obvious and legally impermissible.
114. On information and belief, NYPD officers are also under pressure to conduct increased stops and frisks. On information and belief, the stop and frisk reports are tracked and evaluated at the NYPD's weekly CompStat meetings where commanders are questioned about their precinct's crime statistics. CompStat focus gives NYPD officers a strong incentive to generate UF-250s because an officer's UF-250 numbers suggest productivity.
115. Public accounts provide further evidence of unlawful stops and frisks which lack the reasonable suspicion required by the Fourth Amendment and reveal intent to discriminate on the basis of race. For example, on October 10, 2006, the Daily News reported that NYPD
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officers informed the news source that they were given a roll call order by Captain Michael Vanchieri to stop, question and frisk all black males at the Seventh Avenue Park Slope subway station in Brooklyn after he described a series of robberies on the F subway line in Brooklyn that was concentrated near that station. This directive prompted calls by One Hundred Blacks in Law Enforcement and the National Latino Officers Association for an investigation of police commands that were indicative ofracial profiling.
116. A report by the New York City Civilian Complaint Review Board ("CCRB") also shows that incidents of unlawful stops and frisks have risen dramatically since 1999. The CCRB reported that in 1999, 1,240 individuals made complaints of being subjected to stops and frisks which were an abuse of police authority. In 2006, the complaints for improper stops and frisks totaled 5,089; the overall total for complaints made for that year was 7,669. According to the CCRB, the substantiation rate for allegations of unlawful stops and frisks was at least more than twice the rate for any other allegation made from 2002 through 2006.
NYPD's Suspicionless Stop and Frisk Practice is a Direct and Proximate Result of Defendants' Policies, Practices and/or Customs
117. The Fourth Amendment prohibits police officers from conducting stops and frisks without a reasonable, articulable suspicion of criminal conduct; frisking persons without a reasonable belief that they are armed or presently dangerous; searching and seizing persons without probable cause; or using excessive force in the course of policing activities. Additionally, the Equal Protection Clause of the Fourteenth Amendment bars police officers from targeting individuals for stops and frisks on the basis of race or national origin.
118. The pervasive unconstitutional practices of the NYPD are a direct and proximate
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result of policies, practices and/or customs devised, implemented, enforced and sanctioned by the City, Commissioner Kelly and Bloomberg and their confederates whose identities are presently unknown, with the knowledge that such policies, practices and/or customs would lead to violations of the Fourth and Fourteenth Amendments. Those policies, practices and/or customs include: (a) failing to properly screen, train and supervise NYPD officers, (b) failing to adequately monitor and discipline NYPD officers, and (c) encouraging, sanctioning and failing to rectify the NYPD's custom and practice of suspicionless stops and frisks.
Failure to Properly Screen, Train and Supervise NYPD Officers 119. Although fully aware that the work of the NYPD demands extensive training, superior judgment and close supervision, the City, Commissioner Kelly and Bloomberg failed to properly screen, train and supervise NYPD officers, knowing that such failures would result in Fourth and Fourteenth Amendment violations. 120. Pursuant to the Stipulation of Settlement in Daniels, Defendants City, Commissioner Kelly and Bloomberg were required to implement numerous training requirements concerning the written policy prohibiting racial profiling that required as part of the settlement. On information and belief, Defendants have failed to properly train and supervise NYPD officers, including supervisors, concerning the legal and factual bases for conducting stops and/or frisks that comply with the Fourth and Fourteenth Amendments in an effective manner. 121. The inadequate screening, training and supervision of the NYPD is a direct and proximate cause of the NYPD's rampant unconstitutional stops and frisks. As a direct and proximate result of the Defendants' failure to screen, train and supervise NYPD officers, tens of
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thousands of people have been subjected to unlawful stops and frisks, many times simply because of their race and/or national origin. By failing to properly screen, train and supervise
NYPD officers, the City, Commissioner Kelly and Bloomberg have acted recklessly and with deliberate indifference to the constitutional rights ofthose who would come into contact with the
NYPD. Failure to Monitor and Discipline NYPD Officers
122. The NYPD's widespread abuses are also a direct and proximate result of the
failure of the City, Commissioner Kelly and Bloomberg to properly and adequately monitor, discipline and take necessary corrective action against NYPD officers who engage in, encourage
or conceal unconstitutional practices. Among other things, these Defendants knowingly, deliberately and recklessly have failed:
(a) to take appropriate disciplinary action and corrective measures against NYPD officers who have engaged in suspicionless stops and frisks;
(b) to adequately monitor NYPD officers who have incurred a substantial number of civilian complaints, even in instances where the number of complaints should have triggered monitoring under established departmental guidelines;
(c) to devise and implement appropriate oversight, disciplinary and remedial measures in the face of extensive evidence that no charges are brought against the overwhelming majority of persons stopped and frisked by NYPD officers;
(d) to conduct adequate auditing to determine if the stop and frisks conducted by NYPD officers comply with the NYPD's written policy prohibiting stop and frisks that are not based upon reasonable suspicion and use race and/or national origin as the determinative factor in initiating police action;
(e) to take sufficient, if any, steps to curb NYPD officers' non-compliance with departmental directives requiring that UF-250 forms be completed for
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each stop and frisk; (f) to take sufficient corrective and remedial action against NYPD officers
who provide fabricated, false, or impermissible justifications for stops and frisks; and (g) to take sufficient corrective, disciplinary and remedial action to combat the so-called "blue wall of silence," wherein NYPD officers regularly conceal or fail to report police misconduct, inter alia, in sworn testimony, official reports, statements to the Civilian Complaint Review Board ("CCRB") and the Internal Affairs Bureau, and in public statements.
123. The City, Cormnissioner Kelly and Bloomberg failed to properly and adequately monitor, discipline and take necessary corrective action against NYPD officers, knowing that such omissions would lead to Fourth and Fourteenth Amendment violations. By such acts and omissions, the City, Kelly and Bloomberg have acted recklessly and with deliberate indifference to the constitutional rights of those who would come into contact with the NYPD.
Encouraging, Sanctioning and Failing to Rectify the NYPD's Suspicionless Stops and Frisks
124. With the knowledge that such acts and omissions would create a likelihood of Fourth and Fourteenth Amendment violations, the City, Commissioner Kelly and Bloomberg also have encouraged, sanctioned and failed to rectify the NYPD's abusive and unconstitutional practices.
125. For example, Defendants, on information and belief, have enacted and enforced unwritten "productivity standards" or de facto quotas of a certain number of stops and frisks and specific types of arrests per month for each NYPD officer. On information and belief, NYPD officers who fail to meet the productivity standards face adverse employment consequences. In their efforts to satisfy the productivity standards, NYPD officers have engaged in widespread
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suspicionless stops and frisks of individuals. 126. As a direct and proximate result ofthe above policies, practices and/or customs,
tens of thousands of people have been, and will continue to be, subjected to unconstitutional stops, frisks, searches and seizures by NYPD officers, sometimes in violent encounters, simply because such individuals happen to be the wrong color, in the wrong place, at the wrong time. Through such acts and omissions, the City, Commissioner Kelly and Bloomberg have acted recklessly and with deliberate indifference to the constitutional rights of individuals who would come into contact with the NYPD.
Recent Measures Are Inadequate and Insufficient to Eradicate, Curb or Deter the Suspicionless Stop and Frisk Policy
127. Pursuant to the Stipulation in Daniels, Defendant City and the NYPD were required to implement a written policy which prohibits racial or ethnic/national origin profiling in violation of the United States and New York State Constitutions. As explained herein, Defendants have violated that written policy.
128. Pursuant to the Stipulation in Daniels, Defendant City and the NYPD were also required, inter alia, to: (a) supervise, monitor and train officers and supervisors regarding the policy prohibiting unlawful racial profiling; (b) to conduct supervision and monitoring of the policy through audits by the NYPD Quality Assurance Division that determine whether, and to what extent, the audited stop, question and frisk activity is based upon reasonable suspicion; (c) to require that NYPD officers and supervisors document stop, question and frisk activity in UF250 forms, memo books, logs and monthly activity reports; to compile a database of all UF-250 reports; and (d) to conduct public information and outreach through community forums, high
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school workshops and distribution ofmaterials informing the public about their rights concerning stop, question and frisk encounters and making complaints about concerns arising from a stop, question and/or frisk encounter with the police. On information and belief, Defendants did not perform all of these requirements.
129. None of these measures, moreover, sufficiently or adequately addressed, much less irrevocably eradicated, curbed or deterred the NYPD's pervasive policy, practice and/or custom of unconstitutional stops and frisks. Thus, despite these initiatives, Plaintiffs, and hundreds of thousands of other individuals, continue to face the imminent likelihood of becoming victims of the NYPD's constitutional abuses in violation of the Fourth and Fourteenth Amendments to the U.S. and New York State Constitutions.
FIRST CLAIM (Claims of Named Plaintiffs and Class Members Pursuant to 42 U.S.C. § 1983
Against All Defendants for Violations of the Fourth Amendment) 130. Plaintiffs repeat and re-allege paragraphs 1 through 129 above as if fully set forth herein. 131. Defendants City, Commissioner Kelly, Bloomberg, Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #1 through #11 have implemented, enforced, encouraged and sanctioned a policy, practice and/or custom of stopping and frisking the members of the Plaintiff class without the reasonable articulable suspicion of criminality required by the Fourth Amendment. These constitutional abuses often are coupled with unconstitutional searches and seizures and, at times, excessive force. 132. The NYPD's constitutional abuses and violations were, and are, directly and proximately caused by policies, practices and/or customs devised, implemented, enforced,
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encouraged and sanctioned by the City, Commissioner Kelly and Bloomberg, including: (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 stop and frisk practices.
133. Each of the Defendants has acted with deliberate indifference to the Fourth Amendment rights of the named Plaintiffs and other members of the class. As a direct and proximate result of the acts and omissions of each ofthe Defendants, the Fourth Amendment rights of the named Plaintiffs and other class members have been violated. By acting under color of state law to deprive the named Plaintiffs and other class members of their rights under the Fourth Amendment, the Defendants are in violation of 42 U.S.C. § 1983, which prohibits the deprivation under color of state law of rights secured under the United States Constitution.
134. The NYPD targets Black and Latino individuals for illegal stops and frisks in areas where Plaintiffs reside and/or visit. Thus, a real and immediate threat exists that the Fourth Amendment rights of the named Plaintiffs and other class members will be violated by NYPD officers in the future. Moreover, because Defendants' policies, practices and/or customs subject the named Plaintiffs and other class members to stops and frisks without any reasonable, articulable suspicion ofcriminality, and often on the basis ofrace 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 the NYPD.
135. The named Plaintiffs and other members of the class have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants
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are enjoined from continuing the NYPD's policy, practice and/or custom of unconstitutional stops and frisks, and the policies, practices and/or customs that have directly and proximately caused such constitutional abuses.
SECOND CLAIM (Claims of Named Plaintiffs and Class Members Pursuant to 42 U.S.C. § 1983
Against All Defendants for Violation of Equal Protection Clause) 136. Plaintiffs repeat and re-allege paragraphs 1 through 135 as if fully set forth herein. 137. The City, Commissioner Kelly, Bloomberg, Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #1 through #11 have implemented and enforced a policy, practice and/or custom of stopping and frisking the named Plaintiffs and members ofthe Plaintiff class without the reasonable articulable suspicion of criminality required by the Fourth Amendment and based solely on their race and/or national origin. These suspicionless stops and frisks have and are being conducted predominantly on Black and Latino individuals on the basis of racial and/or national origin profiling. As a result, the NYPD's policy, practice and/or custom of suspicionless stops and frisks violate the Equal Protection Clause of the Fourteenth Amendment. The NYPD's constitutional abuses were and are directly and proximately caused by policies, practices and/or customs devised, implemented, enforced, encouraged, and sanctioned by the City, Commissioner Kelly and Bloomberg, including: (a) the failure to adequately and properly screen, train, and supervise NYPD officers; (b) the failure to adequately and properly monitor and discipline the NYPD and its officers; and (c) the encouragement and sanctioning of and failure to rectifY the NYPD's use of racial and/or national origin profiling in making stops and frisks. 138. Each of the Defendants has acted with deliberate indifference to the Fourteenth
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Amendment rights of the named Plaintiffs and class members. As a direct and proximate result of the aforesaid acts and omissions ofthe Defendants and each of them, the Fourteenth Amendment rights of the named Plaintiffs and class members have been violated. By their acts and omissions, Defendants have acted under color of state law to deprive the named Plaintiffs and class members of their Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.
139. Due to the NYPD targeting Black and Latino persons in areas where the named Plaintiffs and other class members reside and!or visit, a real and immediate threat exists that the Fourteenth Amendment rights of the named Plaintiffs and other class members will be violated by NYPD officers in the future. Moreover, because Defendants' policies, practices and!or customs subject the named Plaintiffs and other class members to repeated stops and frisks without any reasonable, articulable suspicion of criminality, and often on the basis of race and!or national origin, the named Plaintiffs and other class members cannot alter their behavior to avoid future violations oftheir constitutional and civil rights at the hands of the NYPD.
140. The named Plaintiffs and other class members have no adequate remedy at law and will suffer serious and irreparable harm to their constitutional rights unless Defendants are enjoined from continuing the NYPD's policy, practice and/or custom of unconstitutional race and!or national origin-based stops and frisks, and the policies, practices and/or customs that have directly and proximately caused such constitutional abuses.
THIRD CLAIM (Claims of Named Plaintiffs and Class Members Under Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000(d), et seq. Against the City) 141. Plaintiffs repeat and re-allege paragraphs 1 through 140 as if fully set forth herein. 142. The law enforcement activities described in this complaint have been funded, in
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part, with federal funds. 143. Discrimination based on race in the law enforcement activities and conduct
described herein is prohibited under 42 U.S.C. § 2000(d), et seq. The acts and conduct complained of herein by the Defendants were motivated by racial animus, and were intended to discriminate on the basis of race and/or had a disparate impact on minorities, particularly Blacks and Latinos.
144. As a direct and proximate result of the above mentioned acts, the named Plaintiffs and members of the class have suffered injuries and damages and have been deprived of their rights under the civil rights laws. Without appropriate injunctive relief, these violations will continue to occur.
FOURTH CLAIM (Individual Claims of Floyd Pursuant to 42 U.S.C. § 1983 Against Rodriguez,
Goodman, Jane Doe, Hernandez, Joyce and Kelly (Shield #34759)) 145. Plaintiffs repeat and re-allege paragraphs 1 through 144 as if fully set forth herein. 146. The conduct of Defendants Rodriguez, Goodman, and Jane Doe in stopping, frisking and searching Plaintiff Floyd on April 20, 2007, and the conduct of Defendants Hernandez, Joyce and Kelly, in stopping, frisking and searching Floyd in February 2008, were performed under color oflaw and without any reasonable suspicion of criminality or other constitutionally required grounds. Moreover, each of these stops and frisks were performed on the basis of racial and/or national origin profiling. 147. As a direct and proximate result of such acts, Defeodants Rodriguez, Goodman, Jane Doe, Hernandez, Joyce and Kelly deprived Plaintiff Floyd of his Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.
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148. As a direct and proximate result of those constitutional abuses, Plaintiff Floyd has suffered, and will continue to suffer, physical, mental and emotional pain and suffering, mental anguish, embarrassment and humiliation.
149. The acts of Rodriguez, Goodman, Jane Doe, Hernandez, Joyce and Kelly were intentional, wanton, malicious, reckless and oppressive, thus, entitling Plaintiff Floyd to an award of punitive damages.
FIFTH CLAIM (Individual Claims of Clarkson Pursuant to 42 U.S.C. § 1983
Against John Doe # 1 and John Doe #2) 150. Plaintiffs repeat and re-allege paragraphs 1 through 149 as if fully set forth herein. 151. The conduct of Defendants John Doe #1 and John Doe #2 in stopping and detaining Plaintiff Clarkson in January 2006, were performed under color of law and without any reasonable suspicion of criminality or other constitutionally required grounds. Moreover, this stop and frisk was performed on the basis of racial and/or national origin profiling. 152. As a direct and proximate result of such acts, Defendants John Doe #1 and John Doe #2 deprived Plaintiff Clarkson of his Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983. 153. As a direct and proximate result of those constitutional abuses, Plaintiff Clarkson has suffered and will continue to suffer physical, mental and emotional pain and suffering, mental anguish, embarrassment and humiliation. 154. The acts of Defendants John Doe #1 and John Doe #2 were intentional, wanton, malicious, reckless and oppressive, thus entitling Plaintiff Clarkson to an award of punitive damages.
39

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 40 of 47
SIXTH CLAIM (Individual Claims of Dennis Pursuant to 42 U.S.C. § 1983
Against Pichardo, Salmeron and Hayes) 155. Plaintiffs repeat and re-allege paragraphs 1 through 154 as if fully set forth herein. 156. The conduct of Defendants Pichardo, Salmeron and Hayes in stopping, frisking, arresting and imprisoning Dennis on January 12, 2008, were performed under color oflaw and without any reasonable suspicion of criminality or other constitutionally required grounds. Moreover, this stop, frisk, arrest and imprisoning was performed on the basis of racial and/or national origin profiling. 157. As a direct and proximate result of such acts, Defendants Pichardo, Salmeron and Hayes deprived Plaintiff Dennis of his Fourth and Fourteenth Amendment rights in violation of
42 u.s.c. § 1983.
158. As a direct and proximate result of those constitutional abuses, Plaintiff Dennis has suffered and will continue to suffer physical, mental and emotional pain and suffering, mental anguish, embarrassment and humiliation.
159. The acts of Defendants Pichardo, Salmeron and Hayes were intentional, wanton, malicious, reckless and oppressive, thus entitling Plaintiff Dennis to an award of punitive damages.
SEVENTH CLAIM (Individual Claims of Ourlicht Pursuant to 42 U.S.C. § 1983
Against Moran and John Does #3 through #11) 160. Plaintiffs repeat and re-allege paragraphs 1 through 159 as if fully set forth herein. 161. The conduct of Defendants Moran and John Does #3 and #4 in stopping, frisking and searching Ourlicht on January 30, 2008, the conduct of Defendants John Does #5 through #8
40

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 41 of 47
in stopping, frisking and searching Ourlicht on February 21, 2008, and the conduct of Defendants John Does #9 through #11 in stopping, frisking and searching Ourlicht on June 9, 2008 were performed under color oflaw and without any reasonable suspicion of criminality or other constitutionally required grounds. Moreover, each of these stops and frisks were performed on the basis of racial and/or national origin profiling.
162. As a direct and proximate result of such acts, Defendants Moran and John Does #3 through #11 deprived Plaintiff Ourlicht of his Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.
163. As a direct and proximate result of those constitutional abuses, PlaintiffOurlicht has suffered and will continue to suffer physical, mental and emotional pain and suffering, mental anguish, embarrassment and humiliation.
164. The acts of Defendants Moran and John Does #3 through #11 were intentional, wanton, malicious, reckless and oppressive, thus entitling Plaintiff Ourlicht to an award of punitive damages.
EIGHTH CLAIM {Individual Named Plaintiffs' Claims Against the City, Commissioner Kelly and Bloomberg
Pursuant to 42 U.S.C. § 1983) 165. Plaintiffs repeat and re-allege paragraphs 1 through 164 as if fully set forth herein. 166. Defendants City, Commissioner Kelly and Bloomberg have directly and proximately caused the NYPD's policy, practice and/or custom of suspicionless stops and frisks · in violation of the Fourth and Fourteenth Amendments, with deliberate indifference to the constitutional rights of Plaintiffs Floyd, Clarkson, Dennis, and Ourlicht by devising, implementing, enforcing, adopting, sanctioning and ratifying a policy, practice and/or custom of:
41

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 42 of 47
(a) failing to properly screen, train, and supervise NYPD officers; (b) failing to adequately monitor and discipline the NYPD and its officers; and (c) encouraging, sanctioning and failing to rectify the NYPD's constitutional abuses.
167. As a direct and proximate result of the aforesaid acts and omissions, Defendants City, Commissioner Kelly and Bloomberg, have each deprived Plaintiffs Floyd, Clarkson, Dennis, and Ourlicht of their Fourth and Fourteenth Amendment rights in violation of 42 U.S.C. § 1983.
168. The acts and omissions of Defendants Commissioner Kelly and Bloomberg explained herein were intentional, wanton, malicious, reckless and oppressive, thus, entitling Plaintiffs to an award of punitive damages. In engaging in such conduct, Commissioner Kelly and Bloomberg acted beyond the scope of their jurisdiction, without authority under law, and in abuse of their powers.
NINTH CLAIM (Violation of Rights Under New York Law) 169. Plaintiffs repeat and re-allege paragraphs 1 through 168 as if fully set forth herein. 170. By the actions described above, each and every Defendant, jointly and severally, has committed the following wrongful acts against the named Plaintiffs and other class members, which are tortious under the Constitution and laws of the State ofNew York: a) assault and battery; b) trespass; c) violation of the right to privacy; d) negligence; and
42

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 43 of 47
e) violation of rights otherwise guaranteed under the Constitution and the laws of the State of New York.
171. In addition, by the actions described above, Defendants Pichardo, Salmeron and Hayes, jointly and severally, have committed the following wrongful acts against Plaintiff Dennis, which are tortious under the Constitution and laws of the State of New York:
a) false arrest; and b) false imprisonment. 172. In addition, Defendants City, Commissioner Kelly and Bloomberg were negligent in their hiring, screening, training, supervision and retention ofDefendants Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #1 through #11. 173. The foregoing acts and conduct of Defendants were a direct and proximate cause of injury and damage to the named Plaintiffs and other class members and violated the statutory and common law rights as guaranteed to them by the Constitution and laws of the State of New York.
TENTH CLAIM (Respondeat Superior Claim Against the City Under New York Common Law) 174. Plaintiffs repeat and re-allege paragraphs 1 through 173 as if fully set forth herein. 175. The conduct of Defendants Officers Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #1 through #11 occurred while they were on duty, in and during the course and scope of their duties and functions as New York City police officers, and while they were acting as agents and employees of Defendant City. As a
43

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result, Defendant City is liable to Plaintiffs under the doctrine of respondeat superior.

WHEREFORE, the named Plaintiffs and other members of the class they seek to

represent pray that the Court will:

a) Issue an order certifYing this action as a class action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure in the manner described above herein, with the named Plaintiffs as class representatives;

b) Issue a class-wide judgment declaring that the NYPD's policy, practice and/or custom of suspicionless stops and frisks challenged herein is unconstitutional in that it violates the Fourth and Fourteenth Amendments to the United States Constitution, Title VI, and the Constitution and laws of the State of New York, and that its implementation, enforcement and sanctioning by NYPD officers is a direct and proximate result ofthe following policies, practices and/or customs of the City, Commissioner Kelly and Bloomberg:

i)

failing to adequately screen, train and supervise officers;

ii)

failing to adequately monitor the NYPD and its officers and

discipline those NYPD officers who violate the

constitutional rights ofresidents ofthe communities they

patrol; and

iii)

encouraging, sanctioning, and failing to rectify the NYPD's

unconstitutional stops and frisks.

c) Issue an order for the following injunctive relief:

i)

enjoining the NYPD from continuing its policy, practice

and/or custom of suspicionless stops and frisks;

ii)

enjoining the NYPD from continuing its policy, practice

and/or custom of conducting stops and frisks based on

racial and/or national origin profiling;

iii)

enjoining the use of formal or informal productivity

standards or other de facto quotas for arrests and/or stops

and frisks by NYPD officers;

iv)

requiring the City, Commissioner Kelly and Bloomberg to

44

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 45 of 47

institute and implement improved policies and programs with respect to training, discipline, and promotion designed to eliminate the NYPD's policy, practice and/or custom of suspicionless stops and frisks;

v)

requiring the City, Commissioner Kelly and Bloomberg to

deploy NYPD officers with appropriate and adequate

supervision;

vi)

requiring the City, Commissioner Kelly and Bloomberg to

institute and implement appropriate measures to ensure

compliance with departmental directives that NYPD

officers complete UF-250's on each and every stop and frisk

they conduct;

vii)

requiring the City, Commissioner Kelly and Bloomberg to

institute and implement appropriate measures to mandate

that UF-250's or other documentation be prepared and

maintained in an up to date computerized database for each

stop conducted by an officer, regardless of whether the stop

is followed by the use of force, a frisk, a search, or an

arrest; and

viii)

requiring the City, Commissioner Kelly and Bloomberg to

monitor stop and frisk practices of the NYPD, including

periodically and regularly reviewing UF-250 forms and

audits conducted of the NYPD's stop and frisk practices to

determine whether reported stops and frisks have

comported with constitutional requirements.

d) Award named Plaintiffs Floyd, Clarkson, Dennis, and Ourlicht compensatory damages in amounts that are fair, just and reasonable, to be determined at trial;

e) Award named Plaintiffs Floyd, Clarkson, Dennis, and Ourlicht damages against Defendants Commissioner Kelly, Bloomberg, Rodriguez, Goodman, Jane Doe, Hernandez, Joyce, Kelly, Pichardo, Salmeron, Hayes, Moran, and John Does #I through #11 to the extent that their liability is based upon reprehensible actions and/or inaction undertaken in their individual capacities, in an amount which is fair, just and reasonably designed to punish and deter said reprehensible conduct, to be determined at trial;

f) Award all Plaintiffs, including the members of the class, reasonable attorneys' fees pursuant to 42 U.S. C.§ 1988;

45

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 46 of 47
g) Award all Plaintiffs, including the members of the class, costs of suit pursuant to 42 U.S.C. §§ 1920 and 1988; and
h) Award such other and further relief as this Court may deem appropriate and equitable, including injunctive and declaratory relief as may be required in the interests ofjustice.
DATED: October 20,2008 CENTER FOR CONSTITUTIONAL RIGHTS 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6439 (t); (212) 614-6499 (f) dchamey@ccrjustice.org Jonathan Moore (JM-6902) BELDOCK LEVINE & HOFFMAN, LLP 99 Park Avenue, Suite 1600 New York, NY 10016 (212) 490-0900 (t); (212) 557-0565 (f) jmoore@BLHNY.com ATTORNEYS FOR PLAINTIFFS
46

Case 1:08-cv-01034-SAS -HBP Document 50 Filed 10/20/08 Page 47 of 47 CERTIFICATE OF SERVICE
I hereby certifY that on this 20th day of October 2008, a true and correct copy of the foregoing document was furnished via U.S. Mail and electronic mail upon the following:
Linda Donahue David Hazan Jennifer Rossan Assistant Corporation Counsel Corporation Counsel of the City of New York 100 Church Street, Room 3-158 New York, NY 10007
47

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DAVID FLOYD and LALIT CLARKSON;
Plaintiffs,
-against-
THE CITY OF NEW YORK; NEW YORK CITY POLICE COMMISSIONER RAYMOND KELLY, in his individual and official capacity; MAYOR MICHAEL BLOOMBERG, in his individual and official capacity; NEW YORK CITY POLICE OFFICER RODRIGUEZ, in his individual capacity; NEW YORK CITY POLICE OFFICER GOODMAN, in his individual capacity; NEW YORK CITY POLICE OFFICER JANE DOE, in he individual capacity; and NEW YORK CITY POLICE OFFICERS, JOHN DOES ##1 and 2, in their individual capacities;
Defendants.

76 Liv- Ojo 31

ORDER GRANTING PLAINTIFFS' EXPEDITED MOTION TO RETAIN DATA UNDER PROTECTIVE ORDER IN DANIELS, et al.. v. THE CITY OF NEW YORK, et al.
AND REQUEST FOR CONFERENCE
WHEREAS, having come before the Court on Plaintiffs' Motion for an expedited order to
permit Plaintiffs' Counsel to retain the UF-250 Form1 stop and frisk data produced by the Defendants
in Daniels, et al. v. The City ofNew York, et al., Case No. 99 Civ. 1695, pursuant to the Stipulation
of Settlement So Ordered by the Court on January 9, 2004, and the related Protective Order So
1 The UF-250 is the form on which all New York City Police Department officers are required to record information about stop and frisks. The UF-250 data for the last quarter of2003, all quarters for 2004, 2005, 2006 and the first quarter of2007 were produced to Plaintiffs counsel under the terms of the Stipulation of Settlement in Daniels.

Ordered by the Court on January 31, 2000, and incorporated into the Complaint filed in the above

captioned matter and on Plaintiffs' request for a conference, and having considered the motion and

the record in this action, and being otherwise fully advised,

NOW, THEREFORE, IT IS HEREBY ORDERED:

That the motion is GRANTED. Plaintiffs shall retain the UF-250 data, all information

derived therefrom and all other materials in their possession and control which refer to such

information, until, at least, such time as the Court has held a conference and rendered a ruling on a

complete record concerning Plaintiffs' request that the UF-250 data produced under the Stipulation

of Settlement in Daniels, should be retained by Plaintiffs' counsel and should not be subject to a

-Gr fj protective order in this case.

C~tlfriTI/JU Is .rtf'¥!~

Rb~ 6>

Dated: New York, New York
January 3_/-, 2008

d-tJ ?I iS t' df 3.3 tJ f' fV'.

DLIN 0'--'Jl.ll-",... DISTRICT JUDGE

2

 
 'UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- }(

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

OPINION AND ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

-against-

THE CITY OF NEW YORK, et al.,

Defendants.

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

I. INTRODUCTION

In this civil-rights action, plaintiffs allege, among other things, that

the New York City Police Department ("NYPD") requires rank and file officers-

under threat of adverse employment consequences leveled by their superiors - to

stop, question, and frisk specific numbers of individuals. Plaintiffs further contend

that such mandatory quotas lead to unconstitutional racial profiling by officers,

which is the gravamen of plaintiffs' complaint. The City ofNew York, Mayor

Michael Bloomberg, Police Commissioner Raymond Kelly, and the other

defendants adamantly deny the existence of compulsory quotas and racially-

1

motivated policing. Defendants do not, however, disavow productivity goals
aimed at ensuring police officers do the job for which they are employed and
compensated. Defendants further state that any productivity goals are
accompanied by a requirement that officers possess the legal predicate -
reasonable suspicion of criminal activity - before pursuing a stop, question, and
frisk.
By plaintiffs' own admission, they have encountered difficulty
proving their quota theory, notwithstanding broad discovery. 1 However, in the
Spring of 2010, plaintiffs learned that Officer Adhyl Polanco of the 41st Precinct
in the Bronx, Officer Adrian Schoolcraft of the 81 st Precinct in Brooklyn, and
officers from Transit District 23 in Queens separately alleged that ''quotas"2 were
imposed in their respective commands.3 The NYPD's Internal Affairs Bureau
See Plaintiffs' Letter to the Court (June 8, 2010) at 3. 2 For ease of reference, I refer to the officers' allegations in terms of "quotas." My doing so reflects no present judgment about either the officers' allegations or the evidence bearing on those allegations that is, in particular, whether the evidence supports a finding of hard quotas, productivity goals, or something else altogether. And as I explained at the June 14, 2010 conference in this matter, for plaintiffs to prove their quota theory, they must establish not only the existence of quotas, but also that such conditions generate or otherwise lead to impermissible stop, question, and frisks. 3 Officer Polanco's and Officer Schoolcraft's allegations surfaced publicly through various media outlets. See, e.g., Graham Rayman, "The NYPD Tapes: Inside Bedstuy's 81st Precinct," The Village Voice (May 4, 2010). It is
2

("IAB"), which investigates claims of serious misconduct and corruption of members of the NYPD, is currently investigating these allegations.
Plaintiffs now seek an order from this Court compelling defendants to disclose documents from the lAB's investigations into the quota allegations. Defendants argue against disclosure on the grounds that the lAB files are confidential, contain irrelevant information, and are protected by the law enforcement privilege. Defendants provided the lAB files to the Court for in
camera inspection, along with a declaration from Deputy Inspector David Grossi
about the sensitive nature of the materials. For the reasons provided below, defendants are ordered to disclose
only those documents in the lAB files addressing the issue of quotas. From that limited set of documents, defendants may redact irrelevant information and may apply to the Court for redaction of truly sensitive information. All disclosures shall be subject to an attorneys' eyes only protective order. II. THE LAW ENFORCEMENT PRIVILEGE
The purpose of the law enforcement privilege is '"to prevent disclosure of law enforcement techniques and procedures, to preserve the confidentiality of sources, to protect witness and law enforcement personnel, to
unclear how plaintiffs discovered the allegations relating to Transit District 23. 3

safeguard the privacy of individuals involved in an investigation, and otherwise to
prevent interference with an investigation. "'4 These are important goals of very
real consequence.5 Nevertheless, the law enforcement privilege is not an
instrument by which law enforcement agencies may shield themselves from public
scrutiny. Therefore, courts must vigilantly review an assertion of the privilege and
must often conduct an in camera inspection of the materials in question.6
The Second Circuit's recent decision in In re The City ofNew York
enunciated with precision the legal standard for assessing when an invocation of
4 In re The City ofNew York, No. 10-0237,- F.3d - , 2010 WL 2294134, at *12 (2d Cir. June 9, 2010) (quoting In re Dep 't ofInvestigation ofthe City ofNew York, 856 F.2d 481, 484 (2d Cir. 1988)).
5 See id. ("Th[e] goals [of the law enforcement privilege] are of such importance that the privilege, though it developed at common law from executive privilege, has been largely incorporated into both New York state and federal statutory law. It is hard to imagine, therefore, many questions of law that carry greater significance than the question of when the goals of the law enforcement privilege must give way to a party's need for discovery." (quotation marks, citations, footnotes, and alterations omitted)).
6 See id. at *19 ("[T]he district court may, in the exercise of its informed discretion and on the basis of the circumstances presented, require that the party possessing the documents appear ex parte in chambers to submit the documents for in camera review by the judge ... .");Borchers v. Commercial Union Assurance Co., 874 F. Supp. 78, 79-81 (S.D.N.Y. 1995) ("Although the decision of whether to engage in in camera review rests in the sound discretion of the district court, in camera review is particularly encouraged in cases invoking governmental claims of privilege. (citations omitted)). See also United States v. Zolin, 491 U.S. 554, 569 (1989) (approving in camera inspection of documents over which there is a claim of privilege).
4

the law enforcement privilege must yield to a party's need for discovery. The
ultimate burden of showing that the law enforcement privilege blocks disclosure
falls on the party asserting the privilege.7 Placing the burden on the party raising
the privilege "ensure[s] that the privilege is presented in a deliberate, considered,
and reasonably specific manner."8 To meet its burden, "[t]he party asserting the
law enforcement privilege must show that the documents contain information that
the law enforcement privilege is intended to protect."9
Specifically, th[is] party ... must show that the documents in question contain (1) information pertaining to law enforcement techniques and procedures, (2) information that would undermine the confidentiality of sources, (3) information that would endanger witness and law
7 See In re The City ofNew York, 2010 WL 2294134, at *14 (citing In reSealed Case, 856 F.2d 268,271-72 (D.C. Cir. 1988)); id. at *15 n.21 ("We are mindful that the ultimate burden of demonstrating the law enforcement privilege is on the party asserting the privilege ... but we nevertheless expect the opposing party to establish its 'compelling need' for the information. This is so because the party seeking disclosure of information is uniquely situated to explain to a court why it wants and needs that information." (citations omitted)).
While certainly a party seeking disclosure "is uniquely situated" to articulate its need for discovery, in many circumstances the party seeking disclosure will know little, if anything, about the content of materials withheld pursuant to an assertion of privilege. In this regard, a party seeking disclosure may be distinctly disadvantaged in making arguments about something it has not seen and perhaps knows nothing about- a reality that underscores the significance of a court's in camera review.
8 In reSealed Case, 856 F.2d at 271 (citing Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1341-42 (D.C. Cir. 1984)).
9 In re The City ofNew York, 2010 WL 2294134, at *14. 5

enforcement personnel, (4) information that would undermine the privacy of individuals involved in an investigation, or (5) information that would seriously impair the ability of a law enforcement agency to conduct future investigations.10
"[I]t should be clear that the focus of the law enforcement privilege is to protect
information related to investigations."11 '"An investigation ... need not be
ongoing for the law enforcement privilege to apply as the ability of a law
enforcement agency to conduct future investigations may be seriously impaired if
certain information' is revealed to the public."12 On the other hand, that an
investigation is open does not guarantee protection from disclosure; 13 otherwise, a
party could simply keep an investigation open during the pendency of a lawsuit in
order to avoid disclosure.
Because the law enforcement privilege is a qualified privilege (i.e.,
not absolute), the inquiry does not end with a successful showing that the privilege
10 !d. at *18 (quotation marks and citations omitted).
11 Morrissey v. City ofNew York, 171 F.R.D. 85, 90 (S.D.N.Y. 1997). 12 In re The City ofNew York, 2010 WL 2294134, at *18 (quoting National Congress for Puerto Rican Rights ex rel. Perez v. City ofNew York, 194 F.R.D. 88, 95 (S.D.N.Y. 2000)) (quotation marks omitted). 13 See Kitevski v. City ofNew York, No. 04 Civ. 7402, 2006 WL 680527, at *3 (S.D.N.Y. Mar. 16, 2006) (explaining that the ongoing status of an investigation is insufficient, in and of itself, to sustain the law enforcement privilege).
6

applies to the materials in question. 14 While a "'strong presumption"' exists
against lifting the privilege,15 the party seeking disclosure may rebut the
presumption by establishing:
(1) that the suit is non-frivolous and brought in good faith, (2) that the information sought is not available through other discovery or from other sources, and (3) that the party has a compelling need for the privileged information[.]16
If the presumption against disclosure is successfully rebutted, "the
district court must then weigh the public interest in nondisclosure against the need
of the litigant for access to the privileged information before ultimately deciding
whether disclosure is required."17 By its very nature, this "sensible balancing
14 See In re The City ofNew York, 2010 WL 2294134, at *15 (citing In reSealed Case, 856 F.2d at 272).
15 ld. (quoting Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1125 (7th Cir. 1997). I note that In re The City ofNew York describes the presumption against lifting the law enforcement privilege as both "pretty strong" and "strong." Compare id. at *15 ("Once a court has determined that the law enforcement privilege applies, we agree with the Seventh Circuit that 'there ought to be a pretty strong presumption against lifting the privilege."' (quoting Dellwood Farms, 128 F.3d at 1125) (emphasis added)) with id. at *18 ("There is a 'strong presumption against lifting the privilege."' (quoting Dellwood Farms, 128 F.3d at 1125) (emphasis added)). Presumably some distinction exists between a "pretty strong" presumption and a "strong" presumption; however, the Second Circuit did not explain why it eliminated the adjective "pretty" from all but one of its repeated quotations of Dellwood Farms.
16 !d. at *18 (quotation marks and citations omitted). 17 !d.
7

test"18 is multi-factored, non-mechanical, and circumstance-specific.
In balancing the interests favoring and disfavoring disclosure, the
sensitivity of the information in question is a significant factor the greater the
sensitivity, the greater the protection, and vice versa. Further, the court "must
consider the effect of a protective order restricting disclosure to the plaintiff and
the plaintiffs attorney, or to the plaintiffs attorney alone. Such an order can
mitigate many if not all of the oft-alleged injuries to the police and to law
enforcement."19 Other protective measures are also available, such as redaction,
limitations on where and when items may be viewed, and constraints on the
manner in which information may be utilized post-disclosure.20
Another important factor is whether a lawsuit involves a matter of
public concern such as civil rights a factor that will usually support disclosure? 1
18 !d. at *15. 19 King v. Conde, 121 F.R.D. 180, 190 (E.D.N.Y. 1988) 20 See In re The City ofNew York, 2010 WL 2294134, at *19 ("In an effort to minimize the effects of disclosure ... the district court may order that the documents be 'revealed only in a specified way."' (quoting Fed. R. Civ. P. 26(c)(I)(G)). 21 Though In re The City ofNew York concerned civil rights claims, the Second Circuit did not mention, let alone address, the longstanding line of cases holding that "[l]awsuits brought under 42 U.S.C. § 1983 require special attention to full disclosure ... [and that t]he great weight of the policy in favor of discovery in civil rights actions supplements the normal presumption in favor of broad discovery." King, 121 F.R.D. at 195. I do not interpret the Second Circuit's
8

The public has a profoundly important interest "in giving force to the federal civil
rights law,"22 and in reasonable transparency from law enforcement agencies. As
the court in Wood v. Breier eloquently explained:
Each citizen acts as a private attorney general who takes on the mantel of the sovereign, guarding for all of us the individual liberties enunciated in the Constitution. Section 1983 represents a balancing feature in our governmental structure whereby individual citizens are encouraged to police those who are charged with policing us all. Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden.23
silence as implicitly overruling this reasoning, which is both well-founded and just. Furthermore, because the Second Circuit held on the facts of In re The City ofNew York that the plaintiffs did not have a compelling need for the privileged information, the court did not have occasion to fully consider all of the factors bearing on the ultimate question of disclosure. See In re The City ofNew York,
2010 WL 2294134, at *17. Further, given the flexible quality of the balancing test
adopted by the Second Circuit for evaluating law enforcement privilege claims, concepts and concerns not addressed in In re The City ofNew York may be evaluated.
22 King, 121 F.R.D. at 195. Accord Kitevski, 2006 WL 680527, at *3 ("Since the government has a vital interest in upholding civil rights, impediments to fact-finding in a§ 1983 case are not favored."); Perez, 194 F.R.D. at 96 ("[T]he strong public interest in uncovering the civil rights violations alleged in this Complaint would be substantially harmed if access to the relevant portions of the disciplinary records is denied."); King, 121 F.R.D. at 195 ("In a federal civil rights action, a claim that the evidence is privileged 'must be so meritorious as to overcome the fundamental importance of a law meant to insure each citizen from unconstitutional state action .... "' (quoting Wood v. Breier, 54 F.R.D. 7, 13 (E.D. Wise. 1972)); Skibo v. City ofNew York, 109 F.R.D. 58, 64 (E.D.N.Y. 1985).
23 Wood, 54 F.R.D. at 10-11 (quotation marks and footnotes omitted). 9

In In re The City ofNew York, the Second Circuit took the
"extraordinary"24 step of issuing a writ of mandamus to vacate a district court order compelling the NYPD to disclose "Field Reports" of undercover officers who had infiltrated organizations planning to protest the 2004 Republican National Convention ("RNC"). The Circuit held that the City of New York- the party asserting the privilege - met its burden of establishing that the law enforcement privilege applied to the Field Reports: (1) the documents "even in their redacted form, contain detailed information about the undercover operations of the NYPD"; (2) disclosing such information would hinder future NYPD undercover investigations; and (3) "even the redacted documents contain some information that could disclose the identity of an NYPD undercover officer."25
The risk of public disclosure of the Field Reports was so potentially perilous, the Circuit ruled that disclosure was not permitted even under various safeguards imposed by the district court26 -namely that portions of the documents were to be redacted; that the production was limited to a single set of documents to be stored at the New York Civil Liberties Union; and that the documents were for
24 In re The City ofNew York, 2010 WL 2294134, at *14. 25 !d. at *15 (emphasis added). 26 See id. at *7-*8.
10

attorneys' eyes only.27 Nor did the Circuit accept that filing the documents under seal with the district court would provide sufficient security from leaks.Z8
Turning to plaintiffs' rebuttal of the presumption against lifting the privilege, the Circuit explained that the only dispute between the parties was whether plaintiffs - suing the City for constitutional deprivations stemming from their arrests during demonstrations of the RNC- had a compelling need for the Field Reports. To assess this issue, the Circuit "review[ed] the general contours of the parties' putative arguments at trial" and observed that "[a]t issue ... is the seriousness of the threat facing the RNC and the City in the summer of 2004."29 Based upon its in camera review of the Field Reports, the Circuit held that because the documents did not undermine but rather reinforced information previously disclosed to plaintiffs, plaintiffs failed to establish any need for the Field Reports, let alone a compelling need.30 "In any event," the Circuit concluded, any need of plaintiffs for the information "certainly [did] not outweigh the public's substantial interest in nondisclosure as a means to preserve the integrity of the NYPD's
27 See id. at *4; MacNamara v. City ofNew York, Nos. 04 Civ. 9216, 04 Civ. 7921, 04 Civ. 7922, 2009 WL 4789421, at *5 (S.D.N.Y. Dec. 14, 2009).
28 See In re The City ofNew York, 2010 WL 2294134, at *8-*10. 29 !d. at *16. 30 See id. at *16-*17.
11

undercover operations."31
III. APPLICATION
Based upon my careful in camera inspection of the nearly 2,100 pages at issue here, I make the following findings and conclusions. As an initial matter, the vast majority of documents in the lAB files are irrelevant to plaintiffs' claims
- these irrelevant documents concern, for example, past inquiries entirely disconnected from the question of quotas and plaintiffs' broader claims.
For those documents that do concern quotas or are otherwise relevant, I find that defendants have met their burden that the law enforcement privilege is
applicable to these items. At the general level, because lAB investigations are
confidential, including within the NYPD, public disclosure of either the existence of an ongoing investigation or the specific investigative steps taken or planned
could possibly taint the inquiry or chill the accessibility and candor of complainants and witnesses.32 Here, of course, the officers' quota allegations have
31 !d. at *17 (emphasis added).
32 But see Wong v. City ofNew York, 123 F.R.D. 481,483-74 (S.D.N.Y. 1989); King, 121 F.R.D. at 192-93; Kelly v. City ofSan Jose, 114 F.R.D. 653, 665 (N.D. Cal. 1987); Mercy v. County ofSuffolk, 93 F.R.D. 520 (E.D.N.Y. 1982). For instance, the court in Kelly explained:
In short, officers will feel pressure to be honest and logical when they know that their statements and their work product will be subject to demanding analysis by people
12

been publicly disclosed thus, in a sense, the cat is already out of the bag. On the
other hand, potential targets of and witnesses to the lAB investigations may not
know either that lAB is pursuing these matters or that they are implicated by the
allegations. Additionally, the officers mentioned in the IAB documents have a
limited privacy interest in the confidentiality of the files, particularly in unresolved accusations of misconduct or corruption.33
Next, plaintiffs have successfully rebutted the strong presumption
against lifting the privilege. The information contained in the lAB files is not
available through other discovery or from other sources,34 and plaintiffs have a
with knowledge of the events under investigation and considerable incentive to make sure that the truth comes out (i.e., a civil rights plaintiff and her lawyer). Thus there is a real possibility that officers working in closed systems will feel less pressure to be honest than officers who know that they may be forced to defend what they say and report.
114 F.R.D. at 665.
33 See, e.g., Dangler v. New York City OTB Corp., No. 95 Civ. 8495, 2000 WL 1510090, at *4 (S.D.N.Y. Oct. 11, 2000) (observing that "there is a clear need to safeguard the privacy of the statements made by ... employees about other employees" in the course of a Department of Investigation probe that ultimately found no wrongdoing).
34 Defendants are uniquely situated as the party asserting the privilege to demonstrate that plaintiffs already have (or have access to) the information contained in the lAB records. Defendants have made no such showing.
13

compelling need for the information.35 As noted earlier, plaintiffs have been
unable to prove their quota theory through other discovery. Nonetheless,
plaintiffs' theory gained some possible traction, or at least unexplored avenues for
discovery, when various police officers separately alleged the existence of quotas. Plaintiffs emphasize that they have obtained from Officers Polanco and Schoolcraft recordings each made of roll calls where numerous officers (of a variety of ranks) can be heard discussing target numbers or quotas for certain law enforcement activity.36 These recordings, at a minimum, bear on the question of whether quotas
exist, even if they do not ultimately demonstrate plaintiffs' argument that mandatory quotas lead to unconstitutional stop, question, and frisks. 37 That plaintiffs are in possession of these recordings and are poised to depose the officers
35 Defendants do not argue, nor could they, that plaintiffs' suit is frivolous or brought in bad faith.
36 Defendants contend that Officers Polanco and Schoolcraft are "apparently disgruntled employees" and thereby intimate that their quota allegations may be fabricated. See Defendants' Letter to the Court (June 1, 201 0) at 3. While the disciplinary history of Officers Polanco and Schoolcraft may bear on their character for veracity, this is largely beside the point given that a number of officers took part in the recorded conversations.
37 See supra note 2 (explaining that plaintiffs not only need to prove the existence of quotas, but also that quotas lead to unconstitutional stop, question, and frisks).
14

heard on the recordings does not eliminate their need for the lAB materials.38 For example, plaintiffs have little, if any, information about the allegations from Transit District 23. Furthermore, to the extent that the IAB materials corroborate or contradict the officers' quota allegations, they are probative with respect to NYPD officials' deposition testimony denying the existence of quotas.
Because plaintiffs have overcome the presumption against lifting the law enforcement privilege, I must weigh the interests in favor of and against disclosure. The balance easily tips to plaintiffs. To begin, the IAB documents are a far cry from the highly-sensitive Field Reports that drove the Second Circuit's decision in In re The City ofNew York. Unlike the Field Reports, the quota information contained in the IAB files does not involve secret operations or undercover officers. Nor do the lAB investigations implicate such vital concerns as terrorism, mass unrest or riots, spiraling violence or chaos, or anything of the like.39 Disclosure of the IAB files will not cause an emergency or endanger any of the officers mentioned therein. The low sensitivity of the IAB materials weighs in favor of lifting the privilege.
38 See Perez, 194 F.R.D. at 96 ("Generally, in civil rights cases against police departments, it is unlikely that plaintiffs will be able to obtain information of comparable quality from any other source.").
39 Cf In re The CityofNew York, 2010 WL 2294134, at *2 (recounting the major security concerns for New York City related to hosting the RNC).
15

Nor does disclosure of these lAB documents risk divulging any secret law enforcement techniques or procedures. The select materials ordered disclosed do not contain a roadmap or manual to lAB investigations generally or these investigations specifically. To the extent that the lAB materials show investigative steps taken by or available to the lAB, an attorneys' eyes only protective order alleviates any concern about about revealing this information to those who might abuse it (e.g., subjects and witnesses who are presently unaware that they are named in an lAB inquiry). Therefore, disclosure of the lAB materials to plaintiffs' counsel is highly unlikely to either impair the integrity of the lAB investigations or weaken any future law enforcement program.40 By contrast, the court in In re The City ofNew York was clearly concerned that if the Field Reports were leaked publicly, future undercover operations might be negatively affected. There is no comparable concern in this case.
Another factor weighing in favor of disclosure is that this suit involves questions of broad public concern and civil rights -racial profiling by the NYPD and unconstitutional searches and seizures. Moreover, as various courts have recognized, "the possibility of disclosure to civil rights plaintiffs is probably
40 See King, 121 F.R.D. at 192. 16

not of great import"41 to police officer witnesses in lAB investigations, who "do not have section 1983 cases in mind"42 at the time the investigations are conducted. If anything, "[a]n officer's incentives to hide a friend's misconduct, or to be scrupulously forthcoming lest he be disciplined for having concealed information, are probably much more closely tied to the internal investigative machinery than to the fear of civil rights litigation."43 This is especially true in this case because none of the lAB investigations relate to incidents involving the named plaintiffs.
As to the officers' privacy interest in the confidentiality of the lAB files, I first note that none of these officers are undercover, obviating any concern about blowing a cover and jeopardizing the safety of an officer. Furthermore, because the lAB investigations concern on-the-job conduct of police officers rather than matters in their personal lives, the privacy interests at issue here, though not inconsequential, are '"limited in view of the role played by the police officer as public servant who must be accountable to public review. "'44 "Moreover, 'these privacy interests must be balanced against the great weight afforded to federal law

41

!d.

42 Morrissey, 171 F.R.D. at 92. Accord Wong, 123 F.R.D. at 483-84.

43 King, 121 F.R.D. at 192.

44 Perez, 194 F.R.D. at 96 (quoting King, 121 F.R.D. at 191). 17

in civil rights cases against police departments."'45 In short, the officers' limited interest in the confidentiality of the lAB files must yield to the interests served by disclosure. Nonetheless, in order to minimize impact on the officers, I have carefully restricted the documents to be disclosed, omitting a great deal of personnel and personal information.
Defendants' reliance on Borchers v. Commercial Union Assurance Co. is misplaced. In Borchers, the court denied a request for discovery of witness statements and other information related to an open Fire Department ofNew York ("FDNY") criminal arson investigation based on the law enforcement privilege.46 The court concluded that disclosure of the identities of witnesses and the substance of witness interviews to plaintiffs could jeopardize the ongoing investigation by discouraging witness candor and cooperation in the investigation and in future investigations.47 Borchers, however, is distinguishable.48 First, Borchers did not

45 ld. (quoting Soto v. City ofConcord, 162 F.R.D. 603, 616 (N.D. Cal. 1995)). Accord Kitevski, 2006 WL 680527, at *3 (ordering production of records from an ongoing lAB investigation to a plaintiff in a section 1983 action, and holding that the "'need to uncover possible evidence of misconduct on the part of the City overcomes defendant [police officer's] need for confidentiality"' (quoting Skibo, 109 F.R.D. at 64).

46

See 874 F. Supp. at 80.

47 See id.

48 Cf Kitevski, 2006 WL 680527, at *4 (distinguishing Borchers). 18

involve civil rights claims, but rather was an action to recover the proceeds of an insurance policy.49 Second, unlike here, the party seeking the documents was the
subject ofthe FDNY investigation.5° This difference is significant because a
witness would be unlikely to make a statement to investigators implicating someone else if he knew his statements would be disclosed to the person he implicated.
Because an attorneys' eyes only protective order will mitigate defendants' concerns about disclosure of the lAB files, this factor also weighs in favor of disclosure. Defendants argue that "an attorney's eyes only disclosure is ill-suited to protect the law enforcement interests and would be meaningless to plaintiffs anyhow, since it would prohibit counsel from disclosing any information, including through their deposition questions."51 Defendants also object to plaintiffs' offer to keep the depositions of lAB investigators and witnesses confidential as insufficient to safeguard defendants' interests.52 Defendants argue that disclosure even to plaintiffs' counsel could cause potential witnesses or the subjects of the investigations to tailor their testimony or modify their behavior to
49 See 874 F. Supp. at 79. 50 See id. 51 Defendants' Letter to the Court (June 10, 201 0) at 3. 52 See id.
19

escape detection of misconduct. However, if plaintiffs' counsel cmmot disclose the documents to anyone and the depositions of IAB investigators and witnesses are kept confidential, there is little chance that potential witnesses or the subjects of the investigations will learn any of this information.
In sum, restricting disclosure to only a small portion of the lAB files, redacting irrelevant and truly sensitive information, and imposing an attorneys' eyes only protective order is a sensible balance between plaintiffs' compelling need for the information and the low sensitivity of the materials generally. I reiterate that the complaining officers' quota allegations are public, meaning the officers mentioned in the lAB files may already know they are being investigated. Indeed, my review of the files indicates that many if not all of the officers named appear to have already been contacted by lAB, further diminishing any possibility that disclosure to plaintiffs' counsel will negatively impact the investigations at issue here. Nor will any information disclosed here affect any future lAB investigations. Finally, to further limit the scope of disclosure - and to reduce defendants' burden associated with generating redacted documents duplicative information need not be produced. IV. CONCLUSION
Plaintiffs' motion to compel is granted. Defendants are ordered to disclose the following documents:
20

I. For lAB Log Number 08-10828: Bates Numbers 91-92, 100-19, 131-
33,203-06,240-42,262,269-76,284-86,289-90,319-24,339-40,
430, 432-33, 453-56, 464-69, 473-76, 482-86, 490-99, and 500-02.
2. For lAB Log Number 09-41517: Bates Numbers 220-28, 244, 266-
67,269,322,437,514-17,532,560-63,937-38,949-50, and 953.
3. For lAB Log Number 09-63301: Bates Numbers 75-77, 84, 95, 105-
08, 112, 119-21, 132, 135-36, 149-51, 156-58, 553-55, 600, 604-06,
608, and 612.53
Because the lAB investigations are open and ongoing, defendants are
ordered to continue making disclosures consistent with this Opinion and Order.54
For all documents ordered disclosed or to which the continuing
53 Various of the documents ordered produced are notes of lAB investigators of their interviews of police officers. The files also contain audio recordings of many if not all of these interviews. Many of these interviews concerned a number of topics other than quotas - irrelevant information that will be redacted from the documents disclosed to plaintiffs. Defendants are not presently ordered to produce the audio recordings. Should plaintiffs show a compelling need for these audio tapes in the future, defendants will be required to produce those portions of the recordings relating to quotas.
54
I recognize that to avoid any further disclosures, lAB could simply delay or even suspend its investigation of the quota allegations during the pendency of discovery in this matter. The Court does not believe that lAB, which plays such an important role in oversight of police misconduct, would do such a thing to avoid a discovery obligation specifically ordered by a federal court. What is more, if lAB were to suspend its investigation, this may have some bearing on the City's Monell liability at issue in this suit.
21

obligation of disclosure attaches, defendants may redact information irrelevant to the issue of quotas, and may also apply to the Court for redaction of information that, upon careful reflection, is truly sensitive.
All disclosures shall be subject to an attorneys' eyes only protective order negotiated by the parties or imposed by the Court.
SO ORDERED:

Dated:

New York, New York June 24, 2010

22

-Appearances-
For Plaintiffs:
Darius Charney, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Taylor M. Hoffman, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1206
Jonathan C. Moore, Esq. Rachel Kleinman, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 490-0900
For Defendants:
David M. Hazan Linda Donahue Jennifer Rossan Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084
23

 
 Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 1 of 86

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

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

OPINION AND ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

- against-

THE CITY OF NEW YORK, et al.,

Defendants.

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

I. INTRODUCTION

Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David

Ourlicht bring this putative class action against the City of New York, Police

Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and

unnamed New York City Police Officers ("Defendants"), alleging that defendants

have implemented and sanctioned a policy, practice, and/or custom of

unconstitutional stops and frisks by the New York Police Department ("NYPD")

on the basis of race and/or national origin, in violation of Section 1983 of title

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

1

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 2 of 86

United States Constitution, Title VI of the Civil Rights Act of 1964,1 and the Constitution and laws of the State of New York.2 Plaintiffs seek equitable relief in the form of (1) a declaration that defendants’ policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction enjoining defendants from continuing such policies, practices, and/or customs.3 Additionally, the named plaintiffs seek compensatory and punitive damages for themselves.4 Defendants now move for summary judgment on certain of the claims of plaintiffs Floyd and Ourlicht, as well as on the claims of all plaintiffs against the City of New York, Mayor Michael Bloomberg, and Commissioner Raymond Kelly.5
This case presents an issue of great public concern. Writ large, that issue is the disproportionate number of African-Americans and Latinos who become entangled in our criminal justice system, as compared to Caucasians. The

1 42 U.S.C. § 2000(d), et seq.

2 See Second Amended Complaint (“Compl.”) ¶¶ 2, 3.

3

See id. ¶ 7.

4

See id.

5 See Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment (“Def. Mem.”) at 1. Defendants have not moved on the remaining five incidents in which plaintiffs allege unlawful stops and frisks, but have reserved their right to do so at a later time.

2

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 3 of 86
specific claims raised in this case are narrower – that there is a widespread pattern and practice of suspicionless and race-based stops and frisks by the NYPD. Nonetheless, these claims are raised in the larger context of the historically racialized nature of criminal justice in this country, and the extensively documented racial disparities in the rates of stops, arrests, convictions, sentences, and executions that continue through the present day.
Relatedly, racial profiling – that is, stopping an individual on the basis of his race rather than on the basis of reasonable suspicion – has become a topic of significant debate over the past fifteen years. While it is generally accepted that racial profiling is wrong and prohibited by the United States Constitution, how to end the practice is a more difficult and delicate question.
Since the mid-1990s, New York City has experienced a precipitous decline in crime rates.6 The reasons for this decline are not clear. Some claim that it results from innovative policing policies influenced by the “broken windows” theory of crime control, beginning under Mayor Rudolph Giuliani and Police
6 See 1999 Office of the Attorney General Report (“AG Report”), Ex. 117 to Declaration of Darius Charney, Plaintiffs’ Counsel (“Charney Decl.”), at 46; Defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶¶ 96-98 (noting that in 1995, murder rates decreased 33.9 percent from the previous year, from 1,181 to 1,582; that in 2009, there were 471 murders, the lowest level since 1964; and that since 2003, crime has dropped approximately 76 percent).
3

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 4 of 86

Commissioner William Bratton, and continuing under current Mayor Michael Bloomberg and Police Commissioner Raymond Kelly.7 Others argue that the drop in crime must be due to economic or other factors, as crime rates declined in cities nationwide during the same period, irrespective of variations in policing policies.8
In either case, it is clear that the policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching “almost 600,000 a year.”9 There is “a disturbingly large racial disparity in who is victimized by these practices,”10 although the precise extent of the disparity and its causes are matters of dispute. While the City credits its “pre-emptive” policing, and accompanying high stop rates, for the decline in crime,11 plaintiffs argue that African-American and Latino men have been the targets and borne the brunt of these policies, as hundreds of thousands of law-abiding citizens have been stopped, questioned, and

7 See AG Report, at 46-56.

8

See id. at 46 n.5.

9 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Opp. Mem.”) at 1.

10

Id.

11 See Def. 56.1 ¶¶ 92-190; Supplemental Report of Jeffrey Fagan, Ph.D (“Supp. Fagan Report”), in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, at 1 n.3.

4

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 5 of 86
frisked based, in large part, on their race.12 This is not the first time the City of New York has been accused of
racial profiling. In particular, a previous lawsuit before this Court, Daniels v. City of New York,13 was resolved through a settlement agreement requiring the City to adopt several remedial measures intended to reduce racial disparities in stops and frisks. Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy; revised the UF250 form, otherwise known as a “Stop, Question and Frisk Report Worksheet,”14 so that stops would be more accurately documented; and instituted regular audits of the UF250 forms, among other measures.15
Thus, clearly this is not a case where the City has failed to take any action to address the documented disparities. Yet plaintiffs contend that the City’s actions have been woefully inadequate – in fact, so inadequate that the City has constructively acquiesced in a widespread pattern of unconstitutional stops and frisks, and exhibited deliberate indifference to the need for sufficient training, supervision, monitoring, and discipline to avert such constitutional violations,
12 See Compl. ¶ 6. 13 99 Civ. 1695 (SAS). 14 See Def. 56.1 ¶ 7; Plaintiffs’ Reply Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 7. 15 See Def. 56.1 ¶¶ 6, 16, 22-23.
5

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 6 of 86
thereby warranting the imposition of municipal liability.16 Notably, this is not a question of municipal liability for an unusual yet foreseeable violation – an accident waiting to happen – but rather for a situation that thousands of NYPD patrol officers confront on a daily basis: deciding whether they are justified in stopping a resident based on factors giving rise to reasonable suspicion.
As the Supreme Court recognized in Terry v. Ohio, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”17 Being stopped and frisked is a sufficiently unwelcome intrusion that the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases in which the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City’s crime rate. It is deeply troubling if thousands of New Yorkers are being stopped each year without reasonable suspicion, and even more troubling if African-American and Latino New Yorkers are being singled out for such treatment. It is against this backdrop that I consider defendants’ instant motion for summary judgment. For the reasons set forth
16 Opp. Mem. at 10. 17 329 U.S. 1, 24-25 (1968).
6

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 7 of 86
below, defendants’ motion is granted in part and denied in part. II. BACKGROUND
Each of the named plaintiffs alleges that he was stopped, questioned, and frisked by the NYPD without reasonable suspicion on one or more occasions. In the instant motion, defendants challenge plaintiffs’ claims with respect to two of those specific incidents – Floyd’s February 2008 stop and Ourlicht’s June 2008 stop.18 In Floyd’s case, the particular NYPD officers have been identified, while in Ourlicht’s case, the officers have not been identified and defendants contest whether Ourlicht was in fact stopped by NYPD officers.19
In addition to their claims based on particular incidents, plaintiffs, individually and on behalf of a putative class, allege that the NYPD has engaged in an unconstitutional pattern and practice of using race and/or national origin rather than reasonable suspicion as the determinative factor in deciding whether to stop and frisk individuals, in violation of the Fourth Amendment.20 Plaintiffs further allege that this pattern and practice, which principally victimizes African-American and Latino males, violates the Equal Protection Clause of the Fourteenth
18 See Def. Mem. at 1 n.2. 19 See id. 20 See Compl. ¶ 3.
7

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 8 of 86
Amendment.21 Plaintiffs contend that these constitutional violations are “the result of,
and are directly and proximately caused by, policies, practices and/or customs devised, implemented and enforced by the City, Commissioner Kelly and [Mayor] Bloomberg.”22 Specifically, they allege that the City, Commissioner Kelly and Mayor Bloomberg have acted with deliberate indifference by
(a) failing to properly screen, train, and supervise NYPD officers, (b) inadequately monitoring NYPD officers and their stop and frisk practices, (c) failing to sufficiently discipline NYPD officers who engage in constitutional abuses, and (d) encouraging, sanctioning, and failing to rectify the NYPD’s unconstitutional practices.23 A. The February 2008 Incident Alleged by Floyd Floyd, an African-American man, testified that on February 27, 2008, he was walking on the path adjacent to the house in which he lived at 1359 Beach Avenue in the Bronx, New York.24 He encountered the basement tenant, also an African-American man, who indicated that he was locked out of his apartment and

21 See id. The parties use the terms Black/African-American, Hispanic/Latino, and White/Caucasian interchangeably, and I have followed suit.

22 Id. ¶ 4.

23

Id.

24 See Def. 56.1 ¶ 438; Pl. 56.1 ¶ 438; Compl. ¶ 13.

8

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 9 of 86
asked for help.25 Floyd, whose godmother owned the building, went upstairs to retrieve the key.26 Unsure of the correct key for the basement lock, he retrieved seven to ten keys, some on chains and some loose, which he took back outside with him.27 Floyd and the tenant went to the basement apartment door and started trying the various keys.28 After trying five or six keys, they found the correct one.29
However, before they could open the door, three NYPD officers approached them – Officer Joyce, Officer Hernandez, and Sergeant Kelly.30 The officers asked the two men what they were doing, told them to stop, and proceeded to frisk them.31 The officer who frisked Floyd reached into both of his front pockets, which contained a phone, his keys, and some change.32 The officers then turned the two men around and asked again what they were doing.33 The officers
25 See Def. 56.1 ¶ 438; Pl. 56.1 ¶ 438. 26 See id.; Compl. ¶ 50. 27 See Def. 56.1 ¶ 439; Pl. 56.1 ¶ 439. 28 See Def. 56.1 ¶ 440; Pl. 56.1 ¶ 440. 29 See Def. 56.1 ¶ 442; Pl. 56.1 ¶ 442. 30 See Def. 56.1 ¶¶ 442, 456, 457, 463; Pl. 56.1 ¶¶ 442, 456, 457, 463. 31 See Def. 56.1 ¶ 445; Pl. 56.1 ¶ 445. 32 See Def. 56.1 ¶¶ 446-447; Pl. 56.1 ¶¶ 446-447. 33 See Def. 56.1 ¶ 448; Pl. 56.1 ¶ 448.
9

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 10 of 86
asked the men to produce identification and asked why the basement tenant did not have any.34 The officers asked whether the two men lived there.35 Floyd gave the officers his Louisiana driver’s license and when the officers noted that the address on the license did not match the address of the building, he retrieved a bill from his bag, which reflected the building address.36
Officer Joyce testified that he stopped Floyd because he believed Floyd was in the middle of committing a burglary; he saw Floyd jostling a doorknob and nervously looking back; and he believed there had been a burglary pattern for that time of day in the neighborhood.37 Joyce recorded Floyd’s stop and frisk on a UF250 form, indicating that the suspected crime was burglary.38 He also noted in the box for “Physical Force Used” that he had put his hands on Floyd while Floyd was up against a wall.39 Regarding the circumstances that led to
34 See id. 35 See id. 36 See Def. 56.1 ¶ 449; Pl. 56.1 ¶ 449. 37 See Def. 56.1 ¶ 457 (citing 8/25/09 Deposition of NYPD Officer Cormac Joyce (“Joyce Tr.”) at 126:10-128:19); Pl. 56.1 ¶ 457. 38 See Def. 56.1 ¶ 458; Pl. 56.1 ¶ 458. 39 See Def. 56.1 ¶ 460; Pl. 56.1 ¶ 460; UF250 Form completed by Officer Joyce on 2/27/08 (“Joyce UF250”), Ex. 170 to Charney Decl.
10

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 11 of 86

arrest, Joyce checked the box corresponding to “Furtive Movements.”40 In the area of the form entitled “Additional Circumstances/Factors,” with instructions to “Check All That Apply,” Joyce checked the box corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” as well as the boxes corresponding to “Evasive, False, Or Inconsistent Responses To Officer’s Questions,” and to “Ongoing Investigations, e.g., Robbery Pattern,” but did not check the box corresponding to “Area Has High Incidence Of Reported Offense Of Type Under Investigation.”41 In response to the question “Was Person Searched?,” Joyce checked “No.”42
Officer Hernandez testified that he suspected Floyd of committing a burglary because he saw two men focused on the front door very close to each other with their hands playing with the lock; because he saw one of the two men look toward the street and then focus back on the door, as if looking to see if anyone was looking at them; and because he knew there had been burglaries in the 43rd Precinct.43 He also testified that Floyd was holding a key ring that looked like

40 Joyce UF250.

41

Id.

42

Id.

43 See Def. 56.1 ¶ 461 (citing 8/5/09 Deposition of NYPD Officer Eric Hernandez (“Hernandez Tr.”) at 140:21-141:9; 153:8-154:2; 169:2-19); Pl. 56.1 ¶

11

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 12 of 86
it had been made with a wire hanger with more than fifty keys on it.44 He did not see a bulge in the clothing of either man that might indicate possession of a weapon.45
Sergeant Kelly testified that he suspected that the two men were committing a burglary because he saw them fumbling with a lock and jostling a door, and because he knew there was a burglary pattern in the neighborhood.46 He suspected that the bag at the men’s feet might have contained burglary tools.47 He testified that as he was approaching the two men, he noticed that one of them “was holding a very large key chain with . . . numerous keys on it, raising [his] suspicion that maybe they were using several keys to try to get into that house.”48 He reasoned that if they were in the process of committing a home invasion, they might have a weapon.49 Kelly filled out a UF250, but did not make an entry in his
461. 44 See Hernandez Tr., Ex. 57 to Charney Decl., at 145:21-25. 45 See Def. 56.1 ¶ 462; Pl. 56.1 ¶ 462. 46 See Def. 56.1 ¶ 463 (citing 8/7/09 Deposition of NYPD Sergeant
James Kelly (“Kelly Tr.”), Ex. 67 to Charney Decl., at 32:25-33:25, 37:7-15, 38:24-39:18); Pl. 56.1 ¶ 463.
47 See Def. 56.1 ¶ 464; Pl. 56.1 ¶ 464. 48 Kelly Tr. at 44:3-10. 49 See Def. 56.1 ¶ 465; Pl. 56.1 ¶ 465.
12

Case 1:08-cv-01034-SAS-HBP Document 153 Filed 08/31/11 Page 13 of 86
memo book regarding the stop and frisk of Floyd.50
All three officers testified to the effect that they were unaware of any
quotas or expectations that they complete a certain number of stops or UF250s per
tour or per month.51 However, various other NYPD officers testified that they have
been instructed to complete a certain number of stops or arrests, or to issue a
certain number of summonses, per tour or per month; and certain supervisors have
testified they have so instructed their subordinates.52 Plaintiffs have also submitted
audio recordings on which various precinct commanders issued orders to produce
50 See Def. 56.1 ¶ 467; Pl. 56.1 ¶ 467. 51 See Def. 56.1 ¶¶ 469-474; Pl. 56.1 ¶¶ 469-474. 52 See Plaintiffs’ 56.1 Additional Facts (“PAF”) ¶¶ 55-63 (citing, inter alia, Deposition of NYPD Inspector Dwayne Montgomery (“Montgomery Tr”), Ex. 6 to Charney Decl., at 200:23-203:20, 209:15-210:12; Deposition of NYPD Officer Luis Pichardo (“Pichardo Tr.”), Ex. 68 to Charney Decl., at 218:9-219:12; Deposition of NYPD Officer Adhyl Polanco (“Polanco Tr.”), Ex. 76 to Charney Decl., 22:2-24:17, 25:11-17, 26:2-9, 28:14-29:10, 32:6-33:3, 48:10-50:10; Affirmation of Officer Polanco (“Polanco Aff.”), Ex. A to Declaration of Taylor Hoffman (“Hoffman Decl.”), Plaintiffs’ Counsel, ¶¶ 4-5, 7; Deposition of Sergeant Mervin Bennett (Confidential), Ex. 99 to Charney Decl., at 73:16-76:10; Deposition of Officer Angel Herran (Confidential), Ex. 100 to Charney Decl., at 26:13-29:2, 54:22-55:2; Deposition of Deputy Inspector Donald McHugh, at 52:856:21, 73:2-78:8, 88:3-95:5). See also id. ¶¶ 79-82 (asserting that NYPD Chief of Department Joseph Esposito told Deputy Inspector Charles Ortiz that “his officers did not have enough enforcement activity, particularly criminal court summonses and stops-and-frisks, in a particular zone within the precinct in the preceding month,” and that Ortiz has “told individual officers on more than ten occasions that their monthly enforcement activity . . . was too low” and told squad supervisors the same).
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certain numbers of arrests, stops and frisks, and summonses during roll call.53 In addition, plaintiffs state that in May 2004, the Patrolmen’s Benevolent Association filed a labor grievance on behalf of six officers and one sergeant who were transferred out of the 75th precinct for allegedly failing to meet a ten summonsper-month quota.54 In January 2006, a labor arbitrator found that the 75th precinct had imposed summons quotas on its officers in violation of New York State labor laws.55
NYPD Officer Adhyl Polanco testified that when he was a patrol officer in the 41st Precinct, he witnessed his fellow officers illegally stop, search, handcuff, and charge minority residents with crimes;56 he witnessed fellow officers stop civilians without reasonable suspicion and issue summonses without probable cause;57 and on several occasions, he and his fellow officers were ordered by supervisors to fill out and sign UF250 forms for stops and frisks that they did not

53 See id. ¶¶ 64-69 (citing CD Bates-numbered NYC_2_19010, Ex. 1 to Polanco Aff.); id. ¶¶ 87-92 (citing CD Bates-numbered PL000093, Ex. 1 to Affirmation of NYPD Officer Adrian Schoolcraft (“Schoolcraft Aff.”), Ex. B to Hoffman Decl.).

54 See id. ¶ 83.

55 See id. ¶ 84.

56 See id. ¶ 73 (citing Polanco Tr. at 18:5-22).

57
149:9).

See id. ¶ 74 (citing Polanco Tr. at 52:14-53:8; 143:12-146:13; 148:7-

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conduct or observe and to issue criminal court summonses for incidents they did not observe.58 Polanco further testified that while at the 41st Precinct, he issued at least ten summonses when he knew he did not have probable cause to do so.59
B. The June 2008 Incident Alleged by Ourlicht David Ourlicht, who is of African-American and Italian ancestry, testified that around 10 a.m. on the morning of either June 6 or June 9, 2008,60 he was sitting on a bench with an African-American male friend, outside the Johnson public housing complex in Harlem, New York.61 There were three other AfricanAmerican men sitting in the same area.62 After sitting on the bench for about ten minutes, Ourlicht noticed two male uniformed police officers walking through the housing complex.63 When the
58 See id. ¶ 75 (citing Polanco Tr. at 87:23-88:5, 122:23-126:12, 134:9136:6, 137:23-143:11; Deposition of NYPD Officer Victor Marrero (“Marrero Tr.”), Ex. 101 to Charney Decl., at 64:2-23).
59 See id. ¶ 78 (citing Polanco Tr. at 168:5-11). 60 The parties have been unable to determine definitively if the incident occurred on June 6 or June 9, 2008. See Def. 56.1 ¶ 477; Pl. 56.1 ¶ 477. 61 See Def. 56.1 ¶¶ 475, 478, 480; Pl. 56.1 ¶¶ 475, 478, 480; 5/14/09 Deposition of Plaintiff David Ourlicht (“Ourlicht Tr.”), Ex. 81 to Charney Decl., at 96:11-21. 62 See Def. 56.1 ¶ 479; Pl. 56.1 ¶ 479. 63 See Def. 56.1 ¶ 481; Pl. 56.1 ¶ 481.
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two officers reached the corner, they turned, drew their weapons and screamed “‘Get on the floor, get on the floor!’ and ‘There’s a gun around here. Everybody get on the floor!’”64 At the same time, a blue and white police van marked 9466 arrived and three or four officers exited the van.65 All of the police officers were running and had their guns out.66 The officers told Ourlicht that they had received reports that there was a gun in the vicinity.67 The officers patted Ourlicht down, lifted him by the belt, “check[ed] underneath [him], and check[ed his] pockets.”68 The other individuals sitting outside were also told to lie on the ground, were lifted by their belts, and were searched.69 After the men had been lying on the ground for about ten minutes, the officers told them they could get up.70 The officers asked all

64 Def. 56.1 ¶ 483 (quoting Ourlicht Tr. at 163:13-22); Pl. 56.1 ¶ 483.

65 See Def. 56.1 ¶ 484; Pl. 56.1 ¶ 484.

66 See Def. 56.1 ¶ 485; Ourlicht Tr. at 164:3-23; but see Pl. 56.1 ¶ 485 (denying that Ourlicht testified clearly which officers had their guns out).

67 See Def. 56.1 ¶ 487; Pl. 56.1 ¶ 487.

68
488.

See Def. 56.1 ¶ 488 (quoting Ourlicht Tr. at 167:17-20); Pl. 56.1 ¶

69 See Def. 56.1 ¶ 489; Ourlicht Tr. at 165:23-25; but see Pl. 56.1 ¶ 489 (denying that Ourlicht testified that everyone present during the incident was treated in the same manner).

70 See Def. 56.1 ¶ 490; but see Pl. 56.1 ¶ 490 (denying that Ourlicht testified that everyone was treated in the same manner).

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of the men for their names and identification.71 At least two officers entered the nearby building.72 No evidence has been produced in this action to support the notion that the police received a report of a gun in Ourlicht’s vicinity on June 6 or June 9, 2008, or that a gun was ever recovered from the area.73
Ourlicht testified that all of the police officers at the scene were White men in dark blue uniforms with NYPD patches.74 On August 24, 2009, Ourlicht participated in a photo array procedure with his counsel and defendants’ counsel in an attempt to identify the officers who were involved with the June 2008 stop.75 Ourlicht viewed a total of four hundred and two photographs and indicated eleven officers who he thought might have been present at the time of the incident.76 Of those eleven officers, only one was assigned to PSA 5 at the time of the incident.77 That officer – Sergeant Gordon Pekusic – did not record in his memo book that he
71 See Def. 56.1 ¶¶ 492-493; Pl. 56.1 ¶¶ 492-493. 72 See Def. 56.1 ¶¶ 494-495; Pl. 56.1 ¶¶ 494-495. 73 See PAF ¶¶ 308-310. 74 See Def. 56.1 ¶ 486; Pl. 56.1 ¶ 486. 75 See Def. 56.1 ¶ 496; Pl. 56.1 ¶ 496; PAF ¶ 319. 76 See Def. 56.1 ¶ 504; Pl. 56.1 ¶ 504. 77 See Def. 56.1 ¶ 505; Pl. 56.1 ¶ 505. It appears that PSA 5 is the NYPD command that has jurisdiction over the location where this incident occurred.
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was at the site of the alleged incident on June 6, 2008, and on June 9, 2008, he was the desk sergeant.78 However, plaintiffs contend that “[n]othing in his memo book or any other documents produced in the course of this litigation precludes a desk officer from also participating in law enforcement activity.”79 The other ten officers were either not employed by the NYPD at the time of the incident or were not assigned to PSA 5 at the time.80 During a January 12, 2010 photo array procedure with his counsel, Ourlicht identified officers who may have been involved in the stop as including Officer Campos, Officer Kennedy, Officer Mifsud, and Sergeant Pekusic.81
Van 9466, in which Ourlicht claimed some of the officers arrived at the scene, is assigned to PSA 5.82 The memo books and records of the officers who were assigned to Van 9466 on June 6, 2008 – Officers Negron, Delgado, and Goris – show that they were in the van on truancy patrol and picked up several truants
78 See Def. 56.1 ¶¶ 506-507; Pl. 56.1 ¶ 507. 79 Pl. 56.1 ¶ 506. 80 See id. 81 See PAF ¶ 319. Defendants were apparently not present for this latter photo array procedure. See Def. 56.1 ¶ 508. 82 See Def. 56.1 ¶¶ 510-511; Pl. 56.1 ¶¶ 510-511; PAF ¶¶ 312, 323.
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between 9 a.m. and 10:35 a.m.83 The memo books and records of the officers who were assigned to Van 9466 on June 9, 2008 – Officers Crawford and Socorro – show that around the time of the stop, the van was at Bellevue Hospital and then at the 7th Precinct and Manhattan Central Booking in lower Manhattan.84 In a photo array procedure conducted on August 24, 2009, Ourlicht did not recognize any of the officers assigned to Van 9466 on either date.85 Plaintiffs note that “[n]either the Van Assignment Sheet for June 6, 2008, nor the roll call for June 6, 2008, specify which officer was assigned to the van or exclude any officers not assigned to truancy from using the vehicle.”86
C. NYPD’s Racial Profiling Policy As part of the Stipulation of Settlement entered into on September 24, 2003 in Daniels v. City of New York, the NYPD developed and implemented a Racial Profiling Policy.87 That policy “prohibits the use of race, color, ethnicity or national origin as a determinative factor in taking law enforcement action,” though those markers may be used to identify a suspect in the same way that pedigree
83 See Def. 56.1 ¶ 511; Pl. 56.1 ¶ 511. 84 See Def. 56.1 ¶ 510; Pl. 56.1 ¶ 510. 85 See Def. 56.1 ¶ 512; Pl. 56.1 ¶ 512. 86 See PAF ¶ 318. 87 See Def. 56.1 ¶¶ 16-17; Pl. 56.1 ¶¶ 16-17.
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information (height, weight, and age, etc.) is used.88 The Racial Profiling Policy
further requires that commanding officers establish self-inspections within their
command to monitor compliance with the policy; that the NYPD Quality
Assurance Division (“QAD”) audit compliance with the self-inspection directive; and that CompStat review include consideration of “performance in this area.”89
D. Training, Monitoring, Supervision, and Discipline
The parties have made voluminous submissions to the Court in
support of and in opposition to summary judgment. Defendants cite numerous examples of NYPD policies regarding training,90 monitoring,91 supervision,92 and discipline,93 to rebut plaintiffs’ allegations of municipal liability for widespread
88 Def. 56.1 ¶¶ 18-19 (citing Racial Profiling Policy, Ex. B to Declaration of Heidi Grossman, Defendants’ Counsel (“Grossman Decl.”), in support of Defendants’ Motion for Summary Judgment); Pl. 56.1 ¶¶ 18-19.
89 Racial Profiling Policy. Accord Def. 56.1 ¶¶ 20-21; Pl. 56.1 ¶¶ 20-21. CompStat is an abbreviation for “COMPuter STATistics or COMParative STATistics,” an NYPD process that uses “Geographic Information Systems [to] map crime and identify high-crime and problematic areas.” Def. 56.1 ¶¶ 92-93.
90 See Def. 56.1 ¶¶ 191-246; Pl. 56.1 ¶¶ 191-246; PAF ¶¶ 166-198. 91 See Def. 56.1 ¶¶ 2-59; Pl. ¶¶ 2-59; PAF ¶¶ 1-54. 92 See Def. 56.1 ¶¶ 247-301; Pl. 56.1 ¶¶ 247-301; PAF ¶¶ 159-165. Cf. PAF ¶¶ 55-100 (presenting facts to support plaintiffs’ allegations that top-down pressure to increase enforcement activity and stop/summons/arrest quotas lead to widespread unconstitutional stops). 93 See Def. 56.1 ¶¶ 304-437; Pl. 56.1 ¶¶ 304-437; PAF ¶¶ 200-279.
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constitutional violations. Plaintiffs’ response in each case is that such measures may indeed reflect NYPD policy, but that NYPD practices fall far short of those goals.94 For every officer whose testimony defendants cite in support of the existence of such policies, plaintiffs respond with testimony from another officer who testified that he has never heard of, seen, or been instructed with regard to those policies. While defendants have submitted extensive written and audiovisual training materials as evidence that NYPD training is sufficient, plaintiffs have submitted written and audio evidence that there is significant pressure on commands and officers to produce stops, summonses, and arrests, whether or not they are constitutionally justified, in contravention of those training materials. Defendants describe numerous forms and layers of disciplinary procedure, while plaintiffs present evidence that little discipline is actually meted out.
In short, there are 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 frisks95 conducted in
94 See, e.g., Opp. Mem. at 20 (“Defendants rely primarily on their formal written policies, and do not in any meaningful way dispute Plaintiffs’ evidence regarding the practices of NYPD supervisors and officers with respect to training, supervision, monitoring and discipline.”).
95 The parties use the terms “stop and frisk,” “stop, question, and frisk” and “SQF” interchangeably, and I have followed suit.
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violation of the Fourth Amendment. I describe below the evidence submitted regarding the sufficiency of the NYPD’s training and monitoring, to illustrate the kinds of conflicting evidence that have been presented to the Court in the parties’ submissions. Similarly conflicting evidence was submitted regarding the adequacy of supervision and discipline within the NYPD, which I will not detail here for expediency’s sake.
1. Training New NYPD recruits spend six months in training at the Police Academy.96 Defendants assert that the Academy training addresses stop, question and frisks; reasonable suspicion; probable cause; racial profiling; policing impartially; and policing professionally.97 They cite numerous training materials in support, primarily from the Police Student’s Guide.98 However, plaintiffs contend that “[t]he documents cited by defendants may reflect the policy of the NYPD but they do not contain evidence about the NYPD’s practice or custom with respect to training.”99 Plaintiffs assert further that “[r]ecruits are not trained using the
96 See Def. 56.1 ¶ 195. 97 See id. 98 See id. 99 Pl. 56.1 ¶ 195.
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documents cited by [d]efendants,” referring to the testimony of three officers who did not recall seeing those documents while at the Academy.100
Defendants also cite the testimony of officers in support of their assertion that Police Academy cadets receive training on SQF procedures, documentation requirements for SQFs, and “the legal bases for stops, including the standards for the common law right of inquiry, reasonable suspicion and probable cause.”101 Plaintiffs accept that those officers testified as quoted, but cite numerous examples of testimony by other NYPD officers that they did not receive that training at the Academy, or did not remember if they received the training at the Academy.102 Defendants state that “[o]fficers testified about their understanding of the law of reasonable suspicion,” citing the testimony of thirty-five police
100 Id. (citing Joyce Tr. at 166:18-167:13; Hernandez Tr. at 214:7-23; Deposition of Sergeant Patrick Hegney (“Hegney Tr.”), Ex. 9 to Charney Decl., at 103:11-103:15).
101 See Def. 56.1 ¶¶ 238-239 (citing the testimony of Joyce, Moran, Pichardo, Albano, Eddy, Tzimorotas, Noboa, Gonzalez, Navaretta, Trunzo, Blakely, Pillai-Abdul, and Herran).
102 See Pl. 56.1 ¶¶ 238-239 (citing the testimony of Salmeron, Eddy, and Hegney); see also PAF ¶¶ 166-167, 174 (citing the testimony of Salmeron, Eddy, Moran, Cousin-Hayes, Hegney, Kelly, Rodriguez, Navaretta, Polanco, Velasquez, Hernandez, Joyce, Gonzalez, Pillai-Abdul, and Pichardo).
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officers.103 Plaintiffs deny that the quoted testimony supports defendants’
assertion, and contend that “many of the same officers that Defendants cite cannot
explain reasonable suspicion or the factors or evidence that may lead an officer to have reasonable suspicion.”104
Similarly, defendants assert that officers are instructed while in the Academy that racial profiling is prohibited, citing the testimony of three officers.105
However, plaintiffs counter with citations to the testimony of nine officers, who
testified to a lack of familiarity with the NYPD’s Racial Profiling Policy or lack of memory of racial profiling training.106 Defendants also assert that NYPD recruits “are instructed to document their activity in an activity log.”107 However, plaintiffs
contend that “[w]hile there may be a written policy instructing officers to
document their activity in an activity log, as a matter of practice, officers are not so
103 See Def. 56.1 ¶ 237 (citing the testimony of Salmeron, Moran, Pichardo, Ruggiero, Cousin-Hayes, Hegney, Giannelli, Joyce, Riley, Eddy, Barrelli, Ortiz, Guimaraes, Cirabisi, Peters, McCarthy, Dale, Esposito, Conaghan, Tzimorotas, Dang, Noboa, Rodriguez, Gonzalez, Telford, Farrell, Hu, Trunzo, Blakely, Velazquez, Salmeron, Navaretta, Pillai-Abdul, and Agron).
104 Pl. 56.1 ¶ 237 (citing the testimony of Salmeron, Moran, Pichardo, Ruggiero, Cousin-Hayes, Hegney, Giannelli, Joyce, Riley, Eddy, Barrelli, Ortiz, Peters, McCarthy, Navaretta, Pilai-Abdul, and Agron).
105 See Def. 56.1 ¶ 202 (citing the testimony of Joyce, Moran, and Eddy). 106 See Pl. 56.1 ¶ 202; see also PAF ¶ 175. 107 Def. 56.1 ¶ 206.
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instructed,” citing the testimony of five officers who testified to a lack of memory as to whether it is required to record stops in their activity logs.108
Defendants assert that officers continue to receive training – including on stop-and-frisk procedures – throughout their careers.109 Plaintiffs contend that
“[a]s a matter of practice, NYPD officers do not receive post-Academy training on SQF procedures,” citing the testimony of numerous officers.110 Defendants assert
that officers assigned to Operation Impact receive Impact Training from training sergeants, including on SQF procedures.111 Plaintiffs maintain, citing the
testimony of numerous officers, that “as a matter of practice, officers do not receive such training” and “training sergeants do not cover SQF procedures.”112
108 Pl. 56.1 ¶ 206 (citing the testimony of Joyce, Gonzalez, Salmeron, Moran, and Palmieri).
109 See Def. 56.1 ¶¶ 207-210 (citing the testimony of Lieutenant Daniel Albano; NYPD Stop, Quest & Frisk Training Videos (NYC_2_00004238); and Chief of Patrol Field Training Unit Program Guide 2009, July 2009 ed.).
110 Pl. 56.1 ¶ 209 (citing Hegney Tr. at 121:23-122:11). Accord PAF ¶ 167 (citing the testimony of Hegney, Kelly, Rodriguez, Moran, Navaretta, CousinHayes, Polanco, Velazquez, Hernandez, Joyce, Gonzalez, Pillai-Abdul, and Pichardo).
111 See Def. 56.1 ¶¶ 212, 217, 219 (citing the testimony of Lieutenant Albano).
112 Pl. 56.1 ¶¶ 217, 219 (citing the testimony of Moran, Joyce, Kelly, Hernandez, and Eddy). Accord PAF ¶ 170 (citing the testimony of Hegney, Agron, Navaretta, Conaghan, Eddy, Pichardo, Moran, Gonzalez, and Polanco).
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Defendants likewise contend that officers assigned to specialized units, such as the plainclothes unit, receive training in SQF procedures and the law of reasonable suspicion.113 Plaintiffs dispute that representation, citing the testimony of numerous officers who do not recall receiving SQF or UF250 training during plainclothes training.114 Defendants assert that newly promoted sergeants and lieutenants receive tailored “[p]romotional training,” which covers “the law of reasonable suspicion, SQF, management skills and proper documentation.”115 Plaintiffs cite the testimony of various officers to support their assertion that officers who have gone through such training have not, in fact, received training on the law of reasonable suspicion, SQF, or proper documentation.116
2. Monitoring The QAD audits mandated by the NYPD’s Racial Profiling Policy are
113 See Def. 56.1 ¶¶ 223, 225 (citing the testimony of Lieutenant Albano, various Lesson Plans and Lesson Cover Sheets).
114 See Pl. 56.1 ¶ 225 (citing the testimony of Conaghan, Telford, Salmeron, and Hernandez).
115 Def. 56.1 ¶¶ 228-229 (citing the testimony of Lieutenant Albano and two Sergeants Leadership Course Lesson Plan Cover Sheets, http://www.nyc.gov/htmlinypd/html/training_nypd/Leadership%20Development% 20Section.shtml).
116 See Pl. 56.1 ¶ 229 (citing the testimony of Hegney, Kelly, Agron, and Rodriguez).
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annual, random, and Department-wide.117 Defendants assert that these audits “evaluate compliance with the Racial Profiling Policy by auditing the Department’s Stop, Question and Frisk Practices.”118 However, plaintiffs contend that the audit protocol does not, in practice, test “whether stop, question and frisk activity is based on reasonable suspicion as reflected in the UF250 forms.”119 Plaintiffs cite testimony of NYPD Inspector Peter Cassidy, who was QAD’s commanding officer when the audit protocols were developed, and of NYPD Inspector Mary Cronin, QAD’s current commanding officer, in which both convey that the audit aims merely to ensure that officers are filling out UF250 forms appropriately.120
Similarly, defendants assert that Worksheet Nos. 802 and 802A were developed to guide evaluation of the “quality of the UF250 forms and compliance with the Racial Profiling Policy and Patrol Guide Procedure 212-11” in the
117 See Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26. 118 Def. 56.1 ¶ 26. 119 Pl. 56.1 ¶ 26. Accord id. ¶ 29. 120 See Pl. 56.1 ¶ 26 (quoting 10/25/05 Deposition of NYPD Inspector Peter Cassidy (“Cassidy Tr.”), Ex. 10 to Charney Decl., at 103:20-105:24; 3/22/10 Deposition of NYPD Inspector Mary Cronin (“Cronin Tr.”), Ex. 4 to Charney Decl., at 238:23-239:5).
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commands’ self-inspections.121 However, plaintiffs contend that the two worksheets do not “evaluate whether a stop-and-frisk recorded in a UF250 form was based on reasonable suspicion,” and do not “evaluate compliance with the Racial Profiling Policy.”122 Instead, they assert that the two worksheets “seek[] only to determine whether the form was completely filled out.”123
Defendants also assert that Worksheet 802 guides QAD to “inspect[] 5 UF250 forms and examine[] the reporting officer’s [a]ctivity [l]og . . . to see if corresponding entries detailing the circumstances of the stop were made relating to the stop, question and frisk report prepared.”124 However, plaintiffs note that “contrary to formal written NYPD policy, QAD has as a matter of practice not required [that] [a]ctivity [l]og entr[ies] provide any more detail about the circumstances of a stop than is provided on the UF250 form documenting that same stop.”125
Defendants further assert that the monthly command self-inspections

121 122 123 124
book.”
125

Def. 56.1 ¶ 31. Accord id. ¶¶ 33, 35-40. Pl. 56.1 ¶ 31. Id. ¶¶ 32, 38. Def. 56.1 ¶ 33. The term “activity log” is synonymous with “memo
Pl. 56.1 ¶ 33. Accord PAF ¶ 12. 28

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using Worksheet 802 require that the precinct’s Integrity Control Officer (“ICO”)
examine the last twenty-five UF250 forms completed to assess whether all
applicable captions have been filled out, “with added emphasis placed on a supervisor’s review and those captions documenting the crime suspected[.]”126
Plaintiffs counter that “Inspector Cronin testified that whether the circumstances
checked off on the UF250 form correspond to the suspected crime listed on the
UF250 form is merely ‘one of the things that is looked at’ in the 802 selfinspection.”127
ICOs or their designees are likewise required to examine their
commands’ last five arrests each month for specified offenses and note on Worksheet 802A any failures to complete a UF250 form when required.128
Defendants assert that the 802A self-inspection “helps test an officer’s ability to
126 Def. 56.1 ¶ 36. 127 Pl. 56.1 ¶ 36 (quoting Cronin Tr. at 49:17-49:21). The UF250 form includes lines for the name and signature of a supervisor to indicate that he has reviewed the form. See, e.g., Joyce UF250. Plaintiffs argue that the testimony of Inspector Cronin, which defendants have cited, does not support defendants’ assertions. See id. However, they ignore that defendants have also cited the Audit Protocol at Bates No. NYC 037891 at ¶ 2c, which does indicate that the selfinspection will include a determination “[t]hat all applicable captions have been completed, with added emphasis placed on supervisor’s review and captions documenting a Level III type of encounter (‘Specify Felony/Misdemeanor Suspected’ and ‘What Were Circumstances Which Lead to Stop’).” 128 See Def. 56.1 ¶ 39; Pl. 56.1 ¶ 39.
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identify reasonable suspicion to initiate a stop.”129 However, plaintiffs observe that for a police-initiated stop and frisk, the ICO is required to review only the UF250 form, which provides insufficient information to evaluate whether the stop and frisk was based on reasonable suspicion.130 Defendants maintain that “[b]ecause the information indicated by the checkmarks on the UF250 represents substantive justification for a stop, the audit confirms that a UF250 with the required checkmarks indicates a valid stop, absent indicia to the contrary on the remainder of the form.”131
QAD also audits whether commands are conducting selfinspections.132 A total of one hundred and thirty-six commands/units are audited.133 Plaintiffs highlight that from 2006 through 2009, forty-three commands/units received overall unsatisfactory ratings: twelve commands in 2006,
129 Def. 56.1 ¶ 40. 130 See Pl. 56.1 ¶ 40. 131 Defendants’ Reply Memorandum of Law in Further Support of Their Motion for Summary Judgment (“Reply Mem.”) at 11 n.23. 132 See Def. 56.1 ¶ 41 (citing Cronin Tr. 36:9-25, 37:19-38:12 (“[W]e’re checking up to see if the command is doing self-inspection in regards to that 802A”)). But see Pl. 56.1 ¶ 41 (denying that the cited testimony supports defendants’ assertion). 133 See Def. 56.1 ¶ 45; Pl. 56.1 ¶ 45.
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twelve in 2007, seven in 2008, and eight in 2009.134 Furthermore, the “vast majority” of commands/units received unsatisfactory ratings for activity log entry.135 A score of below 3.0 on any individual item of the audit is considered unsatisfactory, and the City-wide average rating for all commands/units for activity log entry was 1.7 in 2003, 1.9 in 2004, 1.5 in 2005, 1.4 in 2006, 1.5 in 2007, 2.5 in 2008 and 1.6 in 2009.136
Defendants assert that QAD directed those commands with noted deficiencies in the preparation of activity logs to take corrective action.137 Plaintiffs counter that QAD did not direct those commands with deficient activity log entries to take any corrective action, if those commands earned satisfactory ratings in all other audit categories.138 Defendants assert that in 2008, 2009, and 2010, memos were sent through the NYPD chain of command regarding noted deficiencies; commands “were expected to and did implement corrective measures.”139 Plaintiffs contend that the memos cited by defendants indicated
134 See Pl. 56.1 ¶ 46. 135 Id. 136 See id. 137 See Def. 56.1 ¶ 50. 138 See Pl. 56.1 ¶¶ 50-51. 139 Def. 56.1 ¶¶ 52-53.
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specific deficiencies but did not direct that any corrective action be taken.140 Plaintiffs note further that Deputy Inspector Steven Cirabisi, commander of the 107th Precinct – which received an unsatisfactory rating for activity log entries but an overall satisfactory rating on the 2008 QAD stop and frisk audit – did not receive any recommendations or directives about addressing specific deficiencies.141
In March 2008, QAD instituted a new self-inspection protocol, Worksheet 803, geared toward improving compliance with the required completion of activity log entries.142 The worksheet instructs the command to review three UF250 forms prepared by three different officers, and to determine whether their activity logs include “a log entry . . . detailing the circumstances of the stop.”143 QAD monitors whether commands are conducting these self-inspections through their Maintenance of Records Audit.144
140 See Pl. 56.1 ¶ 53. 141 See id. (citing 10/30/09 Deposition of Deputy Inspector Steven Cirabisi (“Cirabisi Tr.”), Ex. 5 to Charney Decl., at 115:25-118:16). 142 See Def. 56.1 ¶ 55. 143 Worksheet 803, Bates No. NYC_2_00011826. Plaintiffs note that although this worksheet was sent to the Internal Affairs Bureau (“IAB”), IAB never approved the form. See Def. 56.1 ¶ 55; PAF ¶ 37. 144 See Def. 56.1 ¶ 57.
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Defendants assert that “[a]n [a]ctivity [l]og/memobook which
contains the fact of a stop or certain details, but which does not note the details of
the circumstances of a stop, question and frisk may receive an unsatisfactory
rating.”145 Plaintiffs counter, however, that “as a matter of NYPD practice, stop-
and-frisk activity log entries need not contain any more detail about the
circumstances of a stop than what is contained in the corresponding UF250 form in
order to receive a satisfactory rating on the Worksheet 803 self-inspection.”146
E. RAND Report and Fagan Report147
145 Id. ¶ 58. 146 Pl. 56.1 ¶ 58. Accord PAF ¶ 12 (citing Cronin Tr. at 74:2-76:16); id. ¶ 40 (citing Cronin Tr. at 185:4-14) (stating that the standards for assessing the adequacy of stop-and-frisk activity log entries are the same for Worksheets 802 and 803). 147 Defendants have urged the Court not to rely upon two reports submitted by plaintiffs – the Report of Professor Jeffrey Fagan and the AG Report, (which also relied on Professor Fagan’s analysis) – to find a disputed issue of fact without first resolving defendants’ intended Daubert challenge to the scientific reliability of Fagan’s methods. See Defendants’ Reply Memorandum of Law in Further Support of Their Motion for Summary Judgment (“Reply Mem.”) at 5 n.9 (citing Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)). However, in their brief, defendants have relied, in part, on the RAND Report, which would be subject to the same testing. The reports all rely on multivariate regression analysis, and none are so obviously flawed as to require exclusion at this point in time. Therefore, without deeming any of the reports to have met the Daubert standard, I accept all three for the limited purpose of underscoring that there are disputed issues of fact in this case. If defendants choose to make a Daubert motion at a later date, and if I then conclude that the Fagan Report should be rejected as insufficiently reliable, summary judgment may be revisited.
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In addition to disputing the adequacy of the NYPD’s monitoring, training, supervision, and discipline, the parties also dispute the extent of the racial disparities in NYPD stop and frisk numbers. Defendants rely upon the results of a 2007 study commissioned by the New York Police Foundation and conducted by the RAND Center on Quality Policing, published as Analysis of Racial Disparities in the New York Police Department’s Stop, Question and Frisk Policies (“RAND Report”).148 Plaintiffs, in turn, have submitted an expert report written by Professor Jeffrey Fagan.149
As even the RAND Report acknowledges, the raw statistics suggest enormous racial disparities in the NYPD’s stop and frisk practices. Of recorded pedestrian stops in 2006, eighty-nine percent involved people of color – fifty-three percent involved Black individuals, twenty-nine percent Hispanic, eleven percent
However, my strong suspicion is that the Fagan Report would survive a Daubert challenge, thus I have no problem considering it as evidence in deciding this motion at this time.
148 See Excerpt of RAND Report Summary, Ex. I to Grossman Decl. The RAND Report has also been submitted in its entirety by plaintiffs, as Ex. 36 to Charney Decl., and is also available at http://www.rand.org/pubs/technical_reports/2007_TR534.pdf.
149 See Report of Jeffrey Fagan, Ph.D (“Fagan Report”), in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment.
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White, and three percent Asian, with race unknown in four percent of stops.150 Post-arrest outcomes differed as well, as the 2006 statistics reveal that “[f]orty-five percent of [B]lack and Hispanic suspects were frisked, compared with 29 percent of [W]hite suspects; yet, when frisked, [W]hite suspects were 70 percent likelier than [B]lack suspects to have had a weapon on them.”151
Despite those raw numbers, defendants have submitted the RAND Report, in part, for its conclusion that “the [racial] disparities are much smaller than the raw statistics would suggest. This does not absolve the NYPD of the need to monitor the issue, but it also implies that a large-scale restructuring of NYPD SQF policies and procedures is unwarranted.”152 Defendants argue that these findings underscore the lack of racially-motivated stops.153
The RAND Report utilizes external and internal benchmarking to analyze the NYPD stop and frisk data. RAND notes that “[e]valuating racial disparities in pedestrian stops using external benchmarks is highly sensitive to the choice of benchmark.”154 RAND considers but rejects the arrest benchmark
150 See RAND Report at xi. 151 Id. 152 Def. 56.1 ¶ 69 (quoting RAND Report at xiv-xv). 153 See Def. Mem. at 21 n.25. 154 RAND Report at xii.
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because “arrests may not accurately reflect the types of suspicious activity that officers might observe, arrests can occur far from where the crime occurred, and, since police make both the arrests and the stops, the arrest benchmark is not independent of any biases that officers might have.”155 RAND also considers but rejects the residential census benchmark, noting that “[c]ensus benchmarks do not account for differential rates of crime participation by race or for differential exposure to the police.”156 RAND favors the crime suspect benchmark, which it calls “more promising” than the other two, while acknowledging that “this benchmark also has serious pitfalls.”157
Using the crime suspect benchmark, RAND found that Black pedestrians were stopped at a rate twenty to thirty percent lower than their representation in crime suspect descriptions, while Hispanic pedestrians were stopped at a five to ten percent higher rate than their representation in crimesuspect descriptions.158 At the other end of the spectrum, using the residential census benchmark revealed that “Black pedestrians were stopped at a rate that is 50
155 Id. 156 Id. 157 Id. at xi. 158 Id. at xii.
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percent greater than their representation in the residential status. The stop rate for Hispanic pedestrians equaled their residential-census representation.”159 Finally, when using the arrest benchmark, “Black pedestrians were stopped at nearly the same rate as their representation among arrestees would suggest. Hispanic suspects appear to be stopped at a rate slightly higher (6 percent) than their representation among arrestees.”160
The RAND Report also used an internal benchmark methodology “to compare the racial distribution of pedestrians whom individual police officers have stopped with that of pedestrians whom other officers in the same role have stopped at the same times and places.”161 RAND notes that one drawback, among others, is that “if officers in the entire precinct are equally biased, the method will not flag any officers as being problematic.”162
The Fagan Report critiques the RAND Report and offers alternative statistical analyses of NYPD-supplied figures of SQF activity for 2004 through 2009. Fagan concludes that “the NYPD has engaged in patterns of
159 Id. 160 Id. 161 Id. at 21. 162 Id.
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unconstitutional stops of City residents that are more likely to affect Black and Latino citizens.”163 Fagan concludes further that
NYPD stop activity is concentrated in precincts with high concentrations of Black and Hispanic residents. The results show consistently, across the most policy-relevant and frequent crime categories, that racial composition predicts stop patterns after controlling for the influences of crime, social conditions, and the allocation of police resources.164 Additionally, Fagan notes that “NYPD stops are significantly more frequent for Black and Hispanic citizens than for White citizens, after adjusting stop rates for the precinct crime rates, the racial composition, and other social and economic factors predictive of police activity.”165 He adds that “Blacks and Latinos are more likely to be stopped than Whites even in areas where there are low crime rates and where residential populations are racially heterogeneous or predominately White.”166 Fagan concludes that “6.71% of all discretionary stops lack legal justification,” and “[a]n additional . . . 24.37% of all discretionary (non-radio run)
163 Fagan Report at 3. 164 Id. at 3-4. 165 Id. at 4. 166 Id.
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stops lack sufficiently detailed documentation to assess their legality.”167 Additionally, he states that “[o]fficers rely heavily on two constitutionally problematic stop justifications for nearly half of all stops: furtive movements and proximity to a high crime area.”168 Fagan notes that “[h]igh crime area is cited in more than half the stops as an ‘additional circumstance’ of the stop, regardless of the precinct crime rate.”169 He adds, startlingly, that “[a]rrests take place in less than six percent of all stops, a ‘hit rate’ that is lower than the rates of arrests and seizures in random checkpoints” that have been discussed in similar lawsuits elsewhere.170 Also, post-arrest outcomes differ, with Black and Hispanic suspects more likely to be arrested rather than issued summonses, and more likely to be subject to use of force, than Whites.171
Fagan critiques multiple aspects of the RAND Report. First, he notes that “RAND relies on the external benchmark of suspect race (as reported by victims) in violent felony crimes to assess racial bias,” however, violent crimes are not a useful benchmark since “violent felonies comprise fewer than ten percent of
167 Id. 168 Id. 169 Id. (emphasis added). 170 Id. 171 See id.
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all crime reported in 2005-6, and also are a small fraction of the total number of stops.”172 Additionally, “[a]lmost half of violent crime complaints do not report a suspect race, casting serious doubts on whether statistics based on complaints where suspect race is reported can be generalized to the half of complaints where the suspect race is unknown.”173
Fagan also notes that RAND’s internal benchmark model “relies on a selective and non-representative sample of officers who made 50 or more stops in 2006, a fraction both of the total number of stops made and of the officers who made them.”174 He challenges the reliability of extrapolating from such a small, unrepresentative sample to draw conclusions about the entire universe of stops.175 As for RAND’s acknowledgment that precincts with large numbers of biased stops will lead to no officers being flagged as “outliers,” he notes that RAND “assumes low rates of bias and does not allow this assumption to be tested.”176 Finally, Fagan concludes that RAND’s approach to analyzing post-stop outcomes is flawed, in that it neglects aspects of the stop such as the suspected crime and the
172 Id. at 5. 173 Id. 174 Id. 175 See id. 176 Id.
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indicia of reasonable suspicion, and concludes that RAND “strongly understates the racial disparities in post-stop outcomes such as frisks and use of force.”177 III. LEGAL STANDARD
A. Summary Judgment Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”178 “‘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.’”179
“The moving party bears the burden of establishing the absence of any genuine issue of material fact.”180 “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 nonmovant’s
177 Id. 178 Fed. R. Civ. P. 56(a). 179 Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)). 180 Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
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claim.”181 In turn, to defeat a motion for summary judgment, the non-moving party
must raise a genuine issue of material fact. To do so, the non-moving party “‘must
do more than simply show that there is some metaphysical doubt as to the material facts,’”182 and “‘may not rely on conclusory allegations or unsubstantiated speculation.’”183
In deciding a motion for summary judgment, a court must “‘construe
the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’”184 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.’”185
“‘The role of the court is not to resolve disputed issues of fact but to assess
181 Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009).
182 Brown v. Eli Lilly & Co., – F.3d – , 10 Civ. 512, 2011 WL 3625105, at *10 (2d Cir. Aug. 18, 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
183 Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)).
184 Brod v. Omya, Inc., – F.3d –, No. 09 Civ. 4551, 2011 WL 2750916, at *7 (2d Cir. July 18, 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
185 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).
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whether there are any factual issues to be tried.’”186
B. Stops and Frisks
“‘[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 probable cause.’”187 This form of investigative detention has become known as a Terry stop.188 “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.”189 “‘The officer [making a Terry stop] . . . must be able to
articulate something more than an inchoate and unparticularized suspicion or hunch.’”190 “Reasonable suspicion is an objective standard; hence, the subjective
186 Brod, 2011 WL 2750916, at *7 (quoting Wilson v. Northwestern Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)).
187 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).
188 See Terry v. Ohio, 392 U.S. 1 (1968). 189 Illinois v. Wardlow, 528 U.S. 119, 123 (2000) (quoting Sokolow, 490 U.S. at 7). Accord Alabama v. White, 496 U.S. 325, 329-30 (1990) (quoting Immigration and Naturalization Servs. v. Delgado, 466 U.S. 210, 217 (1984)). 190 White, 496 U.S. at 329 (quoting Sokolow, 490 U.S. at 7).
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intentions or motives of the officer making the stop are irrelevant.”191 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.”192 “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”193 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”194 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.”195 “[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.”196

191 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).

192 Terry, 392 U.S. at 22.

193
(1979)).

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

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

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

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

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C. Section 1983
Section one of the Civil Rights Act of 1871 – known as section 1983 –
states, in relevant part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.197
Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.”198 “The purpose
of § 1983 is to deter state actors from using the badge of their authority to deprive
individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.”199
Any form of liability under section 1983 requires the defendant’s
197 42 U.S.C. § 1983. 198 Morris-Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 159 (2d Cir. 2005) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). Accord Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“‘[O]ne cannot go into court and claim a ‘violation of § 1983’ – for § 1983 by itself does not protect anyone against anything.’” (quoting Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979))). 199 Wyatt v. Cole, 504 U.S. 158, 161 (1992).
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direct involvement in causing the alleged damages. “Because vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must p[rove] that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.”200
D. Municipal Liability For a person deprived of a constitutional right to have recourse against
a municipality under section 1983, he or she must show harm that results from an identified municipal “policy,” “custom,” or “practice.”201 In other words, a municipality may not be found liable simply because one of its employees or agents is guilty of some wrongdoing.202 Moreover, a policy, custom, or practice cannot arise from a single instance of unconstitutional conduct by an employee of the municipality.203
200 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (internal citations omitted).
201 Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Accord Board of County Comm’rs v. Brown, 520 U.S. 397, 402 (1997); Pembaur v. City of Cincinnati, 475 U.S. 469, 479-81 (1986).
202 See Brown, 520 U.S. at 405. 203 See Tuttle, 471 U.S. at 831 (Brennan, J., concurring in part and concurring in the judgment) (stating that “[t]o infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell.” ).
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Because vicarious liability is inconsistent with section 1983’s
causation requirement,204 “the ‘official policy’ requirement was intended to
distinguish acts of the municipality from acts of municipal employees, and thereby
make clear that municipal liability is limited to actions for which the municipality
is actually responsible.”205 The Supreme Court has emphasized that:
[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.206
In the absence of an established written policy of the municipality, a plaintiff must
prove that the discriminatory practices of municipal officials are so “permanent
and well settled as to constitute a ‘custom or usage’ with the force of law,”207 or
204 See City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988). 205 Pembaur, 475 U.S. at 479. Accord Nicholson v. Scoppetta, 344 F.3d 154, 165 (2d Cir. 2003) (explaining that plaintiff must show that municipality is actually responsible for her injury). 206 Brown, 520 U.S. at 404 (quoting Monell, 436 U.S. at 694). Accord City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007). 207 Sorlucco v. New York City Police Dept., 971 F.2d 864, 871 (2d Cir. 1992)). Accord Green v. City of N.Y., 465 F.3d 65, 80 (2d Cir. 2006) (quoting
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that a practice or custom of subordinate employees was “so manifest as to imply the constructive acquiescence of senior policy-making officials.”208
“A policy, custom, or practice may also be inferred where ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’”209 The Second Circuit has set forth “three requirements that must be met before a municipality’s failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens.”210 First, “the plaintiff must . . . allege that ‘a policy-maker knows to a moral certainty that her employees will confront a given situation.’”211 Second, the situation must “either present[] the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.”212 Third, mishandling of the situation must
Patterson v. County of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004)). 208 Sorlucco, 971 F.2d at 871. Accord Green, 465 F.3d at 80. 209 Patterson, 375 F.3d at 226 (quoting Kern v. City of Rochester, 93 F.3d
38, 44 (2d Cir. 1996)). 210 Walker v. City of N.Y., 974 F.2d 293, 297-98 (2d Cir. 1992). Accord
Reynolds, 506 F.3d at 192; Green, 465 F.3d at 80. 211 Green, 465 F.3d at 80-81 (quoting Walker, 974 F.2d at 297) (internal
quotation marks omitted). 212 Id. 48

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“frequently cause the deprivation of a citizen’s constitutional rights.”213
A duty to train arises so that subordinates entrusted with the discretionary exercise of municipal power can distinguish between lawful and unlawful choices. Because the exercise of such discretion can arise in myriad circumstances, the “nuance” of a particular training need may only become apparent to municipal policy makers after a pattern of violations arises in substantially similar circumstances.214
There is “a heavy burden of proof” to show that the municipality’s
“response was so patently inadequate to the task as to amount to deliberate
indifference . . . Such inadequacy must reflect a deliberate choice among various alternatives, rather than negligence or bureaucratic inaction.”215
E. Qualified Immunity
Government officials performing discretionary functions are generally
granted qualified immunity and are immune from suit provided that “‘their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’”216 “When a defendant invokes qualified
213 Id. 214 Cash v. County of Erie, No. 09 Civ. 4371, 2011 WL 3625093, at * 9 (2d Cir. Aug. 18, 2011) (quoting Connick v. Thompson, 131 S.Ct. 1350, 1363 (2011)). 215 Reynolds, 506 F.3d at 192-93. 216 Taravella v. Town of Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007)).
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immunity to support a motion for summary judgment, courts engage in a two-part
inquiry: whether the facts shown ‘make out a violation of a constitutional right,’
and ‘whether the right at issue was clearly established at the time of defendant’s alleged misconduct.’”217 “‘The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’”218 “The
objective reasonableness test is met . . . if the question of whether the officers
would be violating rights is one on which ‘officers of reasonable competence could disagree.’”219 “If . . . no officer of reasonable competence would conclude that the conduct in question is lawful, there is no immunity.”220 “[T]he ‘objectively reasonable’ inquiry is part of the ‘clearly established’ inquiry.”221 “[S]ummary
217 Id. (quoting Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Under Pearson, courts need not proceed through the two-step inquiry in a particular order, as was required under Saucier v. Katz, 533 U.S. 194 (2001), however, “the traditional sequence is ‘often appropriate.’” Id. at n.2 (quoting Pearson, 555 U.S. at 236).
218 Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 433 (2d Cir. 2009) (quoting Saucier, 533 U.S. at 202).
219 Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). 220 Id. (citation omitted). 221 Id. at n.11 (quoting Saucier, 533 U.S. at 202) (emphasis added). But see Taravella, 599 F.3d at 134-35 (considering objective reasonableness as a “third question”) and id. at 136-41 (Straub, J., dissenting) (recognizing that Second Circuit precedent has inconsistently “described qualified immunity analysis both as
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judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness.”222 IV. DISCUSSION
A. The February 2008 Incident Alleged by Floyd 1. Fourth Amendment Claim Summary judgment is granted to defendants as to Floyd’s Fourth
Amendment claim based on the February 2008 incident. The officers testified that their reasons for suspecting Floyd of possible criminality were that there was a recent midday burglary pattern in the neighborhood of the stop, and that Floyd and his neighbor made “furtive movements”223 – to wit, that they were “jostling,” “fumbling with,” or “playing with” the doorknob or lock of the front door to the basement apartment and Floyd was “nervously looking back toward the street,” or “looking back toward the street and then focused back on the door, as if he was looking to see if anyone was looking at them.”224 Two of the officers also
a two-step and as a three-part process,” despite the Supreme Court’s clear articulation in Saucier and Pearson of a two-step analysis).
222 Husain v. Springer, 494 F.3d 108, 133 (2d Cir. 2007) (quoting Thomas v. Roach, 165 F. 3d 137, 143 (2d Cir. 1999)).
223 Joyce UF250. 224 Def. 56.1 ¶¶ 457, 461, 463. See also Pl. 56.1 ¶¶ 457, 461, 463.
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mentioned noticing that one of the men held a large key ring, which further supported their suspicion that a burglary was in progress.225
The existence of a midday burglary pattern is undisputed. All three officers testified that they were aware of such a pattern. Plaintiffs have not submitted evidence to contradict the assertion that there was a burglary pattern and that the officers were aware of the pattern.
Furthermore, while Officer Joyce did not check the box for “Area Has High Incidence Of Reported Offense Of Type Under Investigation” as a reason for the stop on the UF250 form that he completed, he did check the boxes corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” and “Ongoing Investigations, e.g., Robbery Pattern.”226 All three of these boxes reasonably could correspond to the officers’ belief that there was a midday burglary pattern. Despite the UF250 form’s instruction to “Check All That Apply,” the fact that Officer Joyce checked two out of the three boxes that could apply to the same factor – investigation of a burglary pattern at that time of day – does not create a material disputed fact. However, a burglary pattern,
225 See Hernandez Tr. at 145:21-25; Kelly Tr. at 44:3-10. 226 See Joyce UF250.
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without more, is an insufficient basis for reasonable suspicion.227 Thus, I now consider the other purported support for reasonable suspicion – the allegedly “furtive movements.”228
First, whether Floyd and his neighbor were “nervously looking back” toward the street is a disputed fact, as Floyd testified that he had his back to the officers and did not notice them until “at least two of the officers had already come inside the gate of the building and were on my sort of right side periphery.”229 Construing the facts in the light most favorable to plaintiffs, whether Floyd was looking back, whether he was doing so nervously, and whether he appeared to be looking to see if he was being watched in a manner that should have allowed him to see the officers approach, are material disputed facts.
Second, it is undisputed that Floyd and his neighbor were attempting to open the door. Floyd describes trying several different keys in the lock, while the officers describe the men as “jostling,” “fumbling with,” or “playing with” the lock. Floyd’s description of his activity does not contradict the officers’
227 See Wardlow, 528 U.S. at 124 (“An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”).
228 Joyce UF250. 229 4/30/09 Deposition of David Floyd, Ex. 21 to Charney Decl., at 184:5-8. Accord Def. 56.1 ¶ 444; Pl. 56.1 ¶ 444.
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description of his physical movements. Jostling a lock is an activity consistent with the criminal activity of attempting to break into a house, and consistent with the innocent activity of trying to open a door that you are authorized to open when you are unsure which is the correct key. Of course, that “conduct justifying [a] stop [is] ambiguous and susceptible of an innocent explanation” does not render a stop unconstitutional.230 As the Supreme Court has stated, “Terry recognized that [] officers could detain the individuals to resolve the ambiguity.”231 It is undisputed, then, that Floyd was manipulating the lock, which, while actually innocent, could have reasonably been viewed by police officers as involving possible criminality.
Finally, two of the officers testified that either Floyd or his neighbor appeared to be holding a large key ring, with as many as fifty keys. The officers explained that this gave them further reason to suspect that they were witnessing a burglary in progress. However, Floyd has testified that there were only seven to ten keys. Thus, while it is undisputed that either Floyd or his neighbor were holding some number of keys, and undisputed that the officers observed the men attempting to open the door with keys as they approached, whether the men had ten
230 Wardlow, 528 U.S. at 125. 231 Id.
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keys or fifty keys is a disputed fact, the resolution of which requires a credibility determination.
Without resolving any of the disputed facts, I find that the officers were justified in their reasonable suspicion. Plaintiffs assert that “[t]he only undisputed material facts are that three officers observed, for no more than one minute, two Black men trying to unlock the front door of a house in the middle of the afternoon using keys.”232 To that description, I must add the undisputed fact that the officers were aware of a midday burglary pattern in the neighborhood. Those factors in combination – even without the disputed facts of whether the men were nervously looking back and whether they had ten keys or fifty – create enough reasonable suspicion to justify the officers briefly detaining the men for an investigatory stop. In addition, because the officers suspected that Floyd and his neighbor were committing the violent crime of burglary, they were justified in frisking the two men to ensure the officers’ own safety.
On the other hand, Floyd alleges that the officers searched his pockets after they frisked him. There is no allegation that the officers felt anything during the frisk that resembled a weapon or contraband that would have given rise to
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probable cause to perform a search.233 Joyce indicated in the UF250 that no search was performed. There is a material disputed fact as to whether a search was performed, and if it was, whether it was an unconstitutional search. Thus, I grant summary judgment to defendants on Floyd’s Fourth Amendment claim, except as regards the allegedly unconstitutional search. While the instant suit is primarily concerned with stops and frisks, Floyd may nonetheless continue to pursue his section 1983 claim predicated on the Fourth Amendment violation of searching his pockets without probable cause.
Defendants are not entitled to qualified immunity on this claim. There are material facts in dispute that would have an impact on an assessment of the reasonableness of the officers’ actions.
[A] defendant is entitled to summary judgment on qualified immunity grounds when ‘no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant[ ] to believe that he was acting in a fashion that did not clearly violate an established federally protected right.234 In this case, a reasonable jury could find that it was objectively unreasonable for the officers to search Floyd, based on clear Fourth Amendment jurisprudence
233 See Minnesota v. Dickerson, 508 U.S. 366, 378 (1993). 234 Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999).
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requiring that searches be based on probable cause. 2. Equal Protection Claim Summary judgment is likewise granted to defendants on Floyd’s
Equal Protection claim based on the February 2008 incident. Because I have found that the officers had reasonable suspicion to stop Floyd, I do not find that the officers impermissibly used race as the determinative factor in deciding to stop him.235
B. The June 2008 Incident Alleged by Ourlicht 1. Fourth Amendment Claim Summary judgment is denied to defendants as to Ourlicht’s Fourth
Amendment claim based on the June 2008 incident. Defendants appear to argue that no individualized suspicion was necessary because “it was clear that the individuals who were involved in the alleged incident had an emergency concerning a report of a gun in Ourlicht’s vicinity and that they were securing the area and the nearby building to ensure that no one had a gun or would get hurt.”236 However, there is no evidence that the police officers were, in fact, responding to a
235 I do not dismiss Floyd’s Monell claims at this time because he alleges a separate unconstitutional stop and frisk which was not challenged by defendants in this motion.
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report of a gun. Even if they were, such a general report does not support reasonable suspicion to stop and frisk any individual in the area.237 The Fourth Amendment requires that officers must have reasonable individualized articulable suspicion that an individual is armed and dangerous before frisking him.238
Defendants contest whether the individuals who stopped Ourlicht were actually from the NYPD. This is a disputed issue of fact to be resolved by a fact-finder. Defendants claim that summary judgment must be granted because Ourlicht “cannot establish by a preponderance of the evidence” that the individuals were NYPD officers. Specifically, they note that an NYPD van numbered 9466 is assigned to PSA 5, the command in which the incident took place, but that NYPD documents show that the van was not at the alleged location at the alleged time on the alleged dates; the activity logs of the four officers assigned to the van reveal that none of them were there; the assigned officers were not all males, while Ourlicht alleges the presence of only male officers; and Ourlicht affirmatively
237 See Ybarra v. Illinois, 444 U.S. 85, 94 (1979) (“The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.”); United States v. Jaramillo, 25 F.3d 1146, 1152 (2d Cir. 1994) (“a [Terry-type] patdown is not permissible with respect to a person in a public place where the officers have no specific and articulable facts on which to base a suspicion of that person in particular”).
238 See Jaramillo, 25 F.3d at 1550-52. 58

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stated that he did not recognize any of the officers assigned to the van at the photo array procedure that was conducted on August 24, 2009.239 Defendants argue further that Ourlicht only indicated eleven officers who he thought might have been involved in the incident, but that only one of those officers was assigned to PSA 5 at the time of the alleged incident and on duty; that individual was not at the location of the incident on June 6, 2008; and that individual was the desk sergeant in the station house on June 9, 2008.240
While defendants argue from these factors that Ourlicht is “incapable of meeting his burden of proof by a preponderance of the evidence that members of the NYPD were involved in the incident,”241 in fact, defendants’ arguments merely underscore that there is a triable issue of fact as to whether Ourlicht was stopped by NYPD officers. The fact is that Ourlicht gave a van number that is assigned to the command in which the incident took place.242 Two officers who were assigned to the van indicated in their memo books that they were near the location of the
239 See Def. Mem. at 7. 240 See id. at 8 (citing Def. 56.1 ¶¶ 504-507). 241 Id. at 9. 242 See PAF ¶ 312 (citing Def. 56.1 ¶¶ 510-511).
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stop around the time of the stop.243 Ourlicht identified other NYPD officers whose whereabouts at the time of the stops is somewhat ambiguous in this record.244 In sum, as plaintiffs underscore, “[a] reasonable jury could conclude from Ourlicht’s identification of NYPD uniforms and van that the NYPD conducted his stop, whether or not he identified an officer.”245 Ultimately, resolution of this issue will turn on a credibility determination, which is beyond the purview of a court deciding a summary judgment motion.
Defendants are not entitled to qualified immunity on Ourlicht’s Fourth Amendment claim. There are material facts in dispute that would affect an assessment of the reasonableness of the officers’ actions. A reasonable jury could find that it was objectively unreasonable for the officers to act as they did, given the clear contours of the law governing stops and frisks in New York under Terry and DeBour, and the clear legal dictate that the police must have individualized reasonable suspicion before stopping and frisking a person. Additionally, it is undisputed that the officers searched Ourlicht without probable cause. Therefore, summary judgment is denied to defendants as to Ourlicht’s Fourth Amendment
243 See Opp. Mem. at 8 (citing Ourlicht Tr., at 155:21-156:7; PAF ¶¶ 321, 323-325; Map, Ex. 177 to Charney Decl.; Pl. 56.1 ¶ 506).
244 See id. (citing PAF ¶¶ 319, 321, 324, 325). 245 Id. at 9.
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claim. 2. Equal Protection Claim Summary judgment is likewise denied to defendants on Ourlicht’s
Equal Protection claim. Because a reasonable jury could find that Ourlicht’s stop was unconstitutional, and that the stop occurred in the context of citywide racial disparities in stop-and-frisk patterns unexplainable by chance, crime patterns, or officer deployment patterns, there is a triable issue of fact as to whether Ourlicht’s stop was racially motivated.
C. Plaintiffs’ Monell Claims Against the City 1. Fourth Amendment Claims a. Widespread Custom or Practice of Suspicionless Stops The City does not have a written policy requiring or permitting stops
and frisks of persons without reasonable suspicion, nor do plaintiffs allege that it does. The question is whether municipal officials have a widespread custom or practice of unconstitutional stops and frisks that is “so permanent and well settled as to constitute a ‘custom or usage’ with the force of law,”246 or whether a custom or practice of subordinate employees is “so manifest as to imply the constructive
246 Praprotnik, 485 U.S. at 127 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970)).
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acquiescence of senior policy-making officials.”247 Plaintiffs focus their argument primarily on the latter standard. Construing the facts in the light most favorable to plaintiffs, I conclude that there are disputed issues of fact as to whether or not the City has acquiesced in a widespread custom or practice of unconstitutional stops and frisks.
The parties first dispute whether, in fact, there is a widespread practice of unconstitutional stops and frisks. For the purposes of deciding this motion, I accept the Fagan Report’s conclusion that 24.37 percent of recorded stops and frisks during the period 2004 through 2009 “lack sufficiently detailed documentation to assess their legality,” while 6 percent of stops “lack legal justification.”248 Defendants argue that the Fagan Report does not raise an issue of material fact regarding a widespread custom because “Fagan actually concludes that close to 70 percent of the stops for 2004-2009 are facially constitutional.”249 However, I find that the questionable constitutionality of 30 percent of stops is sufficient to allege that the custom is widespread. Defendants also attack the 6 percent figure by arguing that Fagan’s conclusion is based only on the fact that
247 Green, 465 F.3d at 80 (quoting Sorlucco, 971 F.2d at 871). 248 Fagan Report at 4. 249 Reply Mem. at 5.
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those UF250s “do not have any circumstances which led to the stop checked off,
even though they may have had other circumstances which led to the stop marked
elsewhere on the form,” which they argue is merely “a matter of incomplete paperwork.”250
However, it is more than incomplete paperwork. First, defendants
oversimplify Fagan’s analysis. In fact, Fagan closely examined the data from the
UF250s, classifying each into one of five different categories – including two
categories of “justified” stops, one category of “unjustified” stops, and two categories of “indeterminate” stops.251 Second, as Fagan states, “[t]he fact that the
legal sufficiency of 31 percent of all stops cannot be shown suggests that the
250 Reply Mem. at 5. 251 Fagan explains, “1. Stops are justified if the circumstances provided are considered sufficient as the sole rationale for the stop and need no additional information or qualification (i.e., Casing, Drug Transactions, or Violent Crime)[.] 2. Stops are justified if the circumstances listed are conditionally justified (e.g., carrying a suspicious object, fitting a suspect description, acting as a lookout, wearing clothing indicative of a violent crime, furtive movements, or a suspicious bulge in one’s clothing), and an ‘additional circumstance’ is also indicated. 3. Stops are unjustified if no primary stop circumstances are provided. For example, stops are unjustified if the only listed circumstances is that the suspect was present in a high crime area. Stops that list ‘Other Stop Factors’ only are unjustified. 4. Stops are of indeterminate legality if the circumstance or circumstances listed are (all) conditionally justified, and no additional circumstances are provided. 5. Stops are of indeterminate legality if the only circumstances listed are ‘other circumstances’ or if no additional circumstances are indicated.” Fagan Report at 50 (emphasis in original).
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current regime for regulating the constitutional sufficiency of the huge volume of
stops is ineffective and insensitive to the actual conduct of stops.”252 I agree.
Defendants cannot argue that the NYPD has sufficient monitoring in place because
officers are required to complete UF250s and because QAD audits the
completeness of such forms – which I address further below – but then downplay
the fact that over 30 percent of all discretionary stops are not documented
sufficiently to conclude whether or not they were constitutionally justified.253
It is possible that there are certain flaws in Fagan’s analysis.254
252 Id. at 55. 253 The City, through the Dennis Report, also apparently suggests that the 24.37% of stops of indeterminate constitutionality should either be discarded or redistributed. However, as Fagan makes clear in his Supplemental Report, such a move would be inappropriate because of the “very serious selection bias that such a move would introduce.” Supp. Fagan Report at 37. Among other reasons, Fagan notes that stops are more likely to be indeterminate if they occurred in precincts with higher Black populations; stops of Black suspects are 5% more likely to be classified as indeterminate than stops of Whites; stops for violent crimes and for drug crimes are less likely to be indeterminate; stops for weapons, trespass, and other crimes are more likely to be indeterminate than for property crimes; and stops of younger suspects are more likely to be indeterminate. See id. 254 For example, Fagan notes that 55.4 percent of stops were based in whole or in part on “high crime area” and 42.3 percent on “furtive movements,” neither of which standing alone is sufficient for reasonable suspicion, but which in combination could support reasonable suspicion, as in the case of Floyd’s February 2008 stop. Fagan does not specify what percentage of stops were based in whole on “high crime area” or on “furtive movements,” and what percentage were based on those factors in addition to other factors. See Reply Mem. at 6 n.11. Fagan also criticizes the “hit rate” – that is, “the percentage of stops that result in arrests of the
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Nonetheless, in general, Fagan – who is or has been affiliated with Columbia Law
School, Columbia University, Yale Law School, and New York University Law
School, among others – has presented careful, considered analysis of the NYPD-
supplied data, using multivariate regressions.255 He has provided sound statistical
support for plaintiffs’ allegations, certainly sufficiently reliable to put defendants’
contentions in enough dispute to defeat this motion for summary judgment.256
persons stopped” – of 2004-2009 stops as being lower than the hit rate of a random vehicle checkpoint. While this presents some cause for concern, it is not clear whether there is some “correct” hit rate that is significantly different. Stops and arrests are made pursuant to different legal standards, such that when a stop made pursuant to reasonable suspicion does not ultimately result in an arrest made pursuant to probable cause, it cannot be said on that basis alone that the arresting officers lacked reasonable suspicion to make the stop. See Fagan Report at 4; Opp. Mem. at 11; Reply Mem. at 6 n.11
255 The Supreme Court has accepted multivariate regressions as a reliable statistical methodology to prove racial discrimination in civil rights cases. See, e.g., Bazemore v. Friday, 478 U.S. 385, 398-404 (1986); Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 306-13; International Bhd. of Teamsters v. United States, 431 U.S. 324, 337-340 (1977).
256 In his Supplemental Report, Fagan makes several additional interesting and troubling observations that call into question the reliability of the data on the UF250s. First, he notes that “[o]ver time, officers identify progressively more circumstances to justify their stops,” which he attributes to “decreasing sensitivity or attention to matching the realities of stops to the categories available to check them off.” Supp. Fagan Report at 39. Second, he observes that “officers seem to be increasingly less likely to indicate a valid crime whose suspicion generates the stop” – by not indicating any crime or indicating merely that it was a felony or misdemeanor, or a string of text that does not correspond to a penal law violation. Id. Third, he states that “[t]he use of several of the more subjective Stop Circumstances or Additional Circumstances has grown
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Thus, I find that plaintiffs have demonstrated that there is a disputed issue of fact as to whether the NYPD has engaged in a widespread practice of suspicionless stops and frisks. I find further that there is a disputed issue of fact as to whether this practice was “so manifest as to imply the constructive acquiescence of senior policy-making officials,”257 giving rise to potential municipal liability.
b. Widespread Custom or Practice of Imposing Quotas on Officer Activity
In addition to alleging a widespread practice or custom of suspicionless stops, plaintiffs separately allege that NYPD supervisors have a widespread practice of imposing illegal stop and frisk, summons, and arrest quotas on officers, and that high-level policymakers have been aware of the quotas and have sometimes even encouraged their use “by pressuring borough and precinct commanders to increase enforcement activity numbers.”258 Defendants argue that plaintiffs have failed to show that there are stop and frisk quotas; that they have
over time,” which Fagan argues indicates the possibility that a “narrative or script of suspicion” has developed. Id. at 41 (emphasis omitted). Fagan also highlights that, by the City’s own admission, a large proportion of SQF activity is conducted in Operation Impact zones by officers who are, by and large, rookies recently out of the Academy with limited experience on the streets, and with limited opportunity to be paired with more experienced officers. See id. at 48.
257 Green, 465 F.3d at 80 (quoting Sorlucco, 971 F.2d at 871). 258 Opp. Mem. at 13.
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failed to establish that any such quotas have caused the alleged constitutional injuries; and that plaintiffs’ evidence of “pressure” begins after the most recent incident alleged in the Complaint.259
First, plaintiffs have submitted some evidence of specific numerical expectations for stops and frisks, as well as general pressure to increase the amount of stop and frisk activity.260 Second, defendants treat stop and frisk activity as if it is conceptually distinct from summons and arrest activity, when in fact it is not. A stop and frisk is often a predicate to an arrest or the issuance of a summons, and pressure to increase enforcement activity more generally could be expected to have an impact on any of these three actions. Accordingly, I find evidence of pressure or quotas to increase summons and arrest activity to be relevant to plaintiffs’ claims.
Defendants have presented the testimony of numerous officers who deny ever hearing about quotas, and of supervisors who deny ever imposing
259 See Reply Mem. at 17-18. 260 See PAF ¶¶ 55, 57, 62, 79 (citing, inter alia, the testimony of Inspector Montgomery that he expected every officer in his precinct to average at least 2.3 UF250s per month, and that a failure to do so could count as a failure on performance examinations; and the testimony of Officer Polanco that his supervisor repeatedly told officers that “they were each required to record 5 stopand-frisks per month and that if they failed to meet this requirement, they could be re-assigned to a different command or receive low quarterly performance evaluations”).
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quotas. However, plaintiffs have presented the testimony of other officers who have been instructed to meet certain quotas and have been punished to one degree or another for not meeting those quotas. Even more significantly, plaintiffs have submitted audio recordings of roll call meetings during which such instructions regarding stops and frisks, as well as summons and arrest activity, have been given. In addition, it is noteworthy that in 2006, a labor arbitrator found that such quotas had been imposed in one precinct. As plaintiffs suggest, the outcome of that labor arbitration proceeding put the NYPD leadership on notice as to the existence of quotas, at least in one precinct, and at least since 2006.261
Proof that such quotas and/or pressure have caused the pattern of suspicionless stops will necessarily consist largely of circumstantial evidence. Plaintiffs have presented the smoking gun of the roll call recordings, which, considered together with the statistical evidence, is sufficient circumstantial evidence for this claim to survive summary judgment. Even if plaintiffs’ evidence of quotas or pressure post-dates the last stop alleged in the Complaint, plaintiffs allege an ongoing pattern that includes, but is not limited to, the specifically alleged incidents. Thus, I find defendants’ argument in this respect to be unavailing. In sum, I find that there is a triable issue of fact as to whether NYPD
261 See Opp. Mem. at 12 (citing PAF ¶ 84). 68

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supervisors have a custom or practice of imposing quotas on officer activity, and whether such quotas can be said to be the “moving force” behind widespread suspicionless stops.262 Therefore, I deny defendants’ motion for summary judgment on plaintiffs’ Fourth Amendment claims against the City.
2. Equal Protection Claims The precise nature of plaintiffs’ Equal Protection argument is difficult to discern. Plaintiffs argue that their Equal Protection claim is predicated on an express racial classification – that race is the “determinative factor” in the decision to effect a stop263 – while elsewhere they use the language of discriminatory purpose and disparate impact.264 I am not persuaded by plaintiffs’ argument that the City employs an express racial classification. In fact, plaintiffs do not assert that the City has an express policy that people of color are to be stopped at a greater rate, and they explicitly deny taking the position that “the City has a policy or custom of stopping and frisking Hispanics and Blacks ‘based exclusively on their race[.]’”265 Yet plaintiffs cite no cases to suggest that a court may find an
262 Monell, 436 U.S. at 694. 263 See Opp. Mem. at 6, 13. 264 See id. at 14-19. 265 Id. at 13 (quoting Def. Mem. at 19) (emphasis in original).
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express racial classification absent some evidence of an articulated policy of treating individuals of different races differently, or evidence that individuals have been stopped exclusively based on their race.266 Indeed, plaintiffs’ brief focuses primarily on their claims of discriminatory purpose and disparate impact.
a. Widespread Pattern and Practice of Race-Based Stops
There are disputed issues of fact regarding whether the City has a widespread pattern and practice of effecting stops and frisks in which the “determinative factor” is race rather than reasonable suspicion. Defendants have indicated their intention to challenge the scientific reliability of the Fagan Report and therefore dispute that report’s findings of disparities in the rates at which African-American and Latino individuals are stopped vis-a-vis Whites.267 However, unless I were to strike the entire report on Daubert grounds, which I am not inclined to do at this stage, defendants’ position simply underscores the existence of a factual dispute, which a jury will have to decide.
Fagan not only has provided his own statistical analyses of the
266 See, e.g., Brown v. City of Oneonta, 221 F.3d 329 (2d Cir. 2000) (finding that plaintiffs “were not questioned solely on the basis of their race[,]” and accordingly “have not identified any law or policy that contains an express racial classification”).
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NYPD-supplied data on stops and frisks over a five-year period, but also has
provided careful critiques of the RAND Report, both its methodologies and its
presentation. Fagan alleges that the RAND Report both underreports racial
disparities in stops and post-stop outcomes, and downplays its results when they do
reveal racial disparity.268 He has also ably responded to the City’s critiques of his
own report, providing justification for the methodological choices he made and the
critiques he made of the RAND Report.269
Defendants argue that
[t]o the extent plaintiffs claim deprivation of their equal protection rights based on the NYPD’s deployment of officers to predominantly African-American and/or Latino neighborhoods, it is clear that defendants have a legitimate law enforcement purpose for deployments and that
268 See, e.g., Fagan Report at 101 (“The RAND study’s discussion repeatedly de-emphasizes the effect of its own finding. For example, Table 5.2 shows that overall blacks and whites have statistically significant differences for every outcome variable considered. Instead of highlighting this important fact along with the other results it discusses, the chapter focuses on white-nonwhite comparisons, which produce more muted differences (note that nonwhites include Hispanics, Asians, and others) than the stark black-white results.”); id. (“[I]n many places, the study understates the magnitude of racial differences by conflating percentages and percentage points. For example, the Report observes, while referring to Table 5.2, that ‘stopped nonwhites have a frisk rate that is about 3 to 4 percent higher than for white pedestrians.’ It should have stated that the nonwhitewhite frisk rate difference is 3 to 4 percentage points, which at the reported magnitudes represents a 10 to 12 [percent] higher rate of being frisked for nonwhites, or roughly three times as great as the study claimed.”).
269 See generally Supp. Fagan Report.
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plaintiffs cannot prove any discriminatory motive by the City in making such deployments.270
However, plaintiffs insist that they “are not challenging the deployment of NYPD
resources to minority neighborhoods, but rather NYPD officers’ stop-and-frisk
activities once they get there.”271 Plaintiffs allege that the
NYPD has purposefully engaged in a widespread pattern and practice of concentrating its stop and frisk activity on Black and Hispanic neighborhoods based on their racial composition rather than legitimate non-racial factors, with the result that Blacks and Hispanics are unconstitutionally burdened by illegal stops on the basis of their race.272
Plaintiffs’ argument is clarified by reference to the Fagan Report,
which concludes, “[t]he results show consistently, across the most policy-relevant
and frequent crime categories, that racial composition predicts stop patterns over
and above any predictions made by crime or other factors.”273 In other words,
270 Reply Mem. at 21-22. 271 Opp. Mem. at 14. 272 Id. (emphasis added). 273 Fagan Report at 39 (emphasis added). Fagan continues, “In effect, overall stop patterns in the precincts are predicted more by the Percent Black and Percent Hispanic (compared to Percent White) than by observed crime. These results are robust to a set of alternate controls and alternate set of conditions and contexts. The durability of the results across both crime types in the baseline models and across variations in [] suggests that in fact, the racial composition of an area plays an important role in conduct of stops that exceeds the role of crime, social conditions, or the allocation of police resources.” Id. (emphasis added).
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while certainly the NYPD can, does, and should deploy greater numbers of officers to high crime areas, after controlling for crime rate and similar factors, the statistics still show that African-Americans and Latinos are stopped at higher rates than Whites.274 This statistical evidence gives rise to a disputed material fact as to whether the NYPD’s stop and frisk policies have had a disparate impact in the form of a widespread pattern of race-based stops.
b. Discriminatory Purpose Plaintiffs rely primarily on the statistical evidence of racial disparity in the Fagan Report not only as evidence of disparate impact but also as evidence of discriminatory purpose. Plaintiffs argue that “[w]here, as here, statistical evidence shows an especially stark racial disparity, such evidence may be sufficient by itself to establish a prima facie case of intentional race discrimination.”275 In addition to the statistical evidence, plaintiffs point to other evidence of discriminatory purpose. They argue that the NYPD’s awareness of the long-standing racial disparities – particularly as a result of the 1999 AG Report and
274 Putting aside the officer deployment issue, Fagan also concludes that “Blacks and Latinos are more likely to be stopped than Whites even in areas where there are low crime rates and where residential populations are racially heterogeneous or predominantly White.” Fagan Report at 4.
275 Opp. Mem. at 16 (citing Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 266 (1977); Castaneda v. Partida, 430 U.S. 482, 495 n.13 (1977); Santiago v. Miles, 774 F. Supp. 775, 798 (W.D.N.Y. 1991)).
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the 2007 RAND study – and failure to take sufficient corrective action is probative of discriminatory purpose.276 Plaintiffs also assert that defendants’ failure to fully comply with the terms of the Daniels settlement is evidence of their discriminatory purpose.277 In addition, they argue that the City’s failure to fully implement its own Racial Profiling Policy – which was developed as part of the Daniels settlement – is evidence of its discriminatory purpose. Plaintiffs also assert that the City has “refused” to adopt two of the RAND Report’s recommendations, further evidencing its discriminatory purpose.278
In addition to contesting the statistical evidence of disparate impact, defendants argue that “plaintiffs cannot . . . establish, as they must, any discriminatory purpose by a City decisionmaker against either [African-Americans and/or Latinos] or that the City’s deployment policy was the proximate cause of their alleged injuries.”279 Defendants maintain that only when the statistical evidence points to disparities as extreme as those in Yick Wo v. Hopkins280– in
276 See Opp Mem. at 17 (citing PAF ¶¶ 112, 118-120, 128-130). 277 See id. (citing Daniels Settlement at ¶¶ C.5 and D.1.b; Pl. 56.1 ¶¶ 26, 29, 31, 38; PAF ¶¶ 29-30). 278 Id. at 17-18. 279 See Def. Mem. at 22. 280 118 U.S. 356 (1886).
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which all Chinese individuals were denied permits and all but one non-Chinese individual was given a permit – or Gomillion v. Lightfoot281 – in which a city
redistricted to exclude 395 to 396 of the 400 black voters while not excluding a single white voter – can statistical evidence be proof of discriminatory intent.282
In addition, defendants aver that they have fully implemented the terms of the Daniels settlement;283 that they have fully implemented their Racial Profiling Policy;284 and that they have adopted many of the suggestions in the
RAND Report, even though “[p]laintiffs cite no legal authority for the proposition
that NYPD had a legal obligation to follow any or all of RAND’s
recommendations (none of which were premised on any need to cure unconstitutional conduct)[.]”285 As in other areas in dispute, plaintiffs’ contention
281 364 U.S. 339 (1960). 282 See Def. Mem. at 24. 283 See Reply Mem. at 9 (citing Def. 56.1 ¶¶ 2-28). 284 See id. at 9, 10 (citing Def. 56.1 ¶¶ 195-231, 237, 240-245, 300-303; Reply Declaration of Heidi Grossman (“Reply Decl.”), Defendants’ Counsel, ¶¶ 26-27; Testimony of Agron, Dang, Eddy, Hegney, Marino, Mulligan, Ortiz, and Palmieri, Ex. X to Reply Decl.). 285 Id. at 9. Defendants also state that they were unable to identify or discipline the fifteen officers that RAND indicated overstopped African-Americans and Latinos, but that they purchased the Rand-recommended internal benchmarking software, which they ran against 2007 data and which revealed only understoppers of minorities. See id. (citing RAND Report at 26 n.1, 45 CFR §§ 46.101-46.124).
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is that to the extent that defendants have instituted changes, they have failed to implement the changes effectively and comprehensively.286
For an Equal Protection claim, discriminatory purpose may be proven through statistics alone. The statistical evidence in the instant case, while strong enough to show a disparate impact, is likely not strong enough to show discriminatory purpose standing alone. However, plaintiffs have presented other proof in addition to the statistical evidence – namely, the inadequacy of the City’s efforts to take remedial steps to reduce the racial disparity of stops, as detailed above and further below.
Viewing the evidence in the light most favorable to plaintiffs, and in view of the repeated notice of disparate impact and competing contentions over how complete the City’s efforts to implement change have been, I cannot say that the City’s purported corrective actions have been sufficient to negate the inference that intentional discrimination was the City’s “standard operating procedure.”287 I therefore deny defendants’ summary judgment motion on plaintiffs’ Equal Protection claims against the City.
286 See Opp. Mem. at 18 (contesting effectiveness of command selfinspections and audits mandated by the Racial Profiling Policy).
287 United States v. City of N.Y., 683 F. Supp. 2d 225, 266-67 (E.D.N.Y. 2010).
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3. Fourth and Fourteenth Amendment Failure to Train, Supervise, Monitor, and Discipline
Plaintiffs have alleged that defendants demonstrated deliberate indifference to the likelihood that NYPD officers would commit constitutional violations, through their failure to train, supervise, monitor, and discipline adequately. Such failures, plaintiffs argue, have caused the patterns of widespread Fourth Amendment violations and widespread Fourteenth Amendment violations.
Defendants maintain that the City has a comprehensive practice of oversight of the constitutionality of stops throughout the chain of command.288 Defendants argue that even if there was a widespread practice of suspicionless stops, plaintiffs cannot establish that the City has been deliberately indifferent to the constitutional deprivations, because it “has in place a training, monitoring, supervision and discipline system to address any departures from its stated policy regarding stops, questions and frisks.”289 However, plaintiffs argue that while the City may have such systems and policies in place, the reality of what occurs is far different. Citing the testimony of numerous officers, plaintiffs maintain that there is a stark difference between the City’s policies and its practices regarding oversight of the constitutionality of stops.
288 See Def. Mem. at 12. 289 Id.
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Defendants contend that there is no evidence to suggest that the City has been deliberately indifferent, as opposed to merely negligent, with respect to training, supervising or disciplining the defendant officers.290 They argue that “a lack of specific recollection of training by certain officers” is not equivalent to “an actual lack of training.”291 While evidence that a particular officer’s training has been inadequate will not suffice to defeat a motion for summary judgment, plaintiffs have submitted enough evidence to put this material fact in dispute.
For example, even though racial profiling material is included in the written curriculum, it is disputed whether or not officers receive adequate instruction on the topic. Plaintiffs have submitted the testimony of numerous officers who do not recall receiving any such training. Many officers’ explanations of the Department’s Racial Profiling Policy – to the extent that they were aware that such a policy existed – was “we don’t do it.”292 “It”– meaning racial profiling – was explained by one officer, in words echoed by others, as “judging people by race, color . . . clothing.”293 Notably, certain senior NYPD officials – including
290 Id. at 16. 291 Reply Mem. at 10. 292 Testimony of Officer Dang, Ex. X to Reply Decl., 13:8-10. 293 Testimony of Officer Edy, Ex. X to Reply Decl., 195:7-10.
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Inspector Dwayne Montgomery, former 28th Precinct Commander, and Deputy
Commissioner Julie L. Schwartz, head of the Department Advocate’s Office
(“DAO”) – were unaware of the existence of the NYPD’s Racial Profiling Policy.294 Additionally, plaintiffs have submitted evidence that racial profiling has
never been discussed at CompStat meetings, despite the fact that such discussions are mandated by the Department’s Racial Profiling Policy.295
Plaintiffs also argue that officers have not been sufficiently trained on
the law of reasonable suspicion and SQF procedures. However, based on the
transcript excerpts, it would be more accurate to say that certain of the deposed
officers lack a robust understanding of the law of reasonable suspicion. That is,
officers can parrot the somewhat circular definition of reasonable suspicion as
“reasonable suspicion that a crime has been, is being, or is about to be
294 See Montgomery Tr. at 124:9-125:24, 130:3-16 (testifying, as commander of the 28th Precinct from 2005 through 2009, that he did not recall ever having been provided with a copy of the NYPD’s Racial Profiling Policy, but that he has “common sense;” that he did not recall a copy of the policy being kept at the 28th Precinct; that he had “never seen” the policy and “was unaware of this written policy”); Testimony of Deputy Commissioner Julie L. Schwartz (“Schwartz Tr.”), Ex. 132 to Charney Decl, at 214:22-216:13 (testifying “I don’t know that there is a . . . NYPD . . . racial profiling policy” and that she has never seen a racial profiling policy in the NYPD).
295 See PAF ¶ 53 (citing Deposition of Assistant Chief Raymond Diaz, Ex. 45 to Charney Decl., at 112:8-14; Deposition of Inspector Steven Mauriello, Ex. 44 to Charney Decl., at 50:6-9; Ortiz Tr. at 199:10-13).
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committed,”296 but seem unable to articulate what would lead them to find that reasonable suspicion existed in a given circumstance. Of course, that may be a result of the way the question was phrased by plaintiffs’ counsel. It is not entirely clear whether the officers were asked in each instance to elaborate, once they gave the basic definition of reasonable suspicion.
Nonetheless, I cannot ignore the testimony of Deputy Commissioner Schwartz, in which she stated that she does not believe the law of search and seizure is clear under DeBour, the seminal 1976 New York case establishing four levels of police intrusion, because of “[t]he fact that there is a plethora of appellate division cases that modify and/or further explain the case.”297 If a high-ranking NYPD official in charge of discipline does not know about the existence of the Department’s Racial Profiling Policy and does not believe that NYPD officers have a clear constitutional mandate regarding stops and frisks, it is difficult to imagine how the Department’s disciplinary practices would be adequate
296 See n.297 infra. 297 Schwartz Tr. at 212:18-213:19. This assertion is all the more bizarre as stops and frisks are not only guided by case law in New York but have been incorporated in statutory law. A warrantless stop is justified “when [an officer] reasonably suspects that [a] person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor . . . .” N.Y. Crim. Proc. Law § 140.50(1) (2007). Frisks are justified when an officer “reasonably suspects that he is in danger of physical injury . . . .” Id. § 140.50(3).
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to enforce the Racial Profiling Policy or to ensure that its officers are conducting
constitutional stops.
This is all the more so because racial profiling is not as simple as not
judging a person on their appearance or as having “common sense.” As Fagan
notes:
A number of visual processing studies conducted in the wake of the 1999 Amadou Diallo shooting, using both undergraduates and police officers as subjects, indicate that seeing black faces influences the interpretation of crimerelevant objects. This appears to be a pervasive psychological phenomenon that operates at an implicit level, making it a difficult but not impossible problem to eradicate.298
298 Fagan Report at 100 (citing Jennifer L. Eberhardt, Valerie J. Purdie, Phillip Atiba Goff and Paul G. Davies, “Seeing Black: Race, Crime, and Visual Processing,” 87 Journal of Personality and Social Psychology 876 (2004); Joshua Correll, Bernd Wittenbrink, Bernadette Park and Charles M. Judd, Melody S. Sadler, and Tracie Keesee, “Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” 92 Journal of Personality and Social Psychology 1006 (2007)). Fagan makes a similar point with regard to post-stop outcomes, writing, “[D]emeanor does matter in police-citizen encounters. It is one thing to be stopped and to have a mutually respectful exchange with an officer, it is quite another to be frisked, searched, thrown against the pavement or arrested . . . . [T]he decision to frisk, search, use force, or to arrest a suspect is highly contingent on actual interactions between officer and pedestrian. Subtleties in these interactions are largely lost in the data, rendering conclusions based on these data incomplete and highly speculative. ‘For example, a racial group might be disproportionately searched if members of that group were disproportionately antagonistic or disrespectful toward police.’ Yet it may be that members of that racial group are disproportionately antagonistic or disrespectful because the police treat them initially with greater suspicion and disregard. An officer’s prior experiences with members of that racial group, however, may warrant greater suspicion from his
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In the face of such complex social and psychological dynamics, I cannot say that
the measures defendants have purportedly taken to train and supervise their
officers on racial profiling and the law of reasonable suspicion are sufficiently
complete as to warrant an award of summary judgment.
As another example of the City’s deliberate indifference, plaintiffs
point out that NYPD supervisors conduct only a cursory review of UF250s and that
the City’s audit procedures are equally cursory, thus failing to ensure the constitutionality of stops.299 Defendants argue that the UF250 forms were designed
to capture precisely the information relevant to a stop’s constitutionality. Thus,
“[s]ince the checked boxes represent a substantive justification for a stop, the audit
confirms that a UF250 with the required checkmarks indicates a valid stop, absent indicia to the contrary on the remainder of the form.”300
perspective, and so on. The speculative cycle cannot be resolved with these data. Behaviors and exchanges within stop encounters are largely unobserved in the data.” Id. at 97-98 (citing Robin Shepard Engel et al., “Further Exploration of The Demeanor Hypothesis: The Interaction Effect of Suspects’ Characteristics and Demeanor on Police Behavior,” 17 Justice Quarterly 235 (2000); Roger G. Dunham and Geoffrey P. Alpert, “Officer and Suspect Demeanor: A Qualitative Analysis of Change,” 12 Police Quarterly 6 (2009); and quoting Ian Ayres and Jonathan Borowsky, A study of Racially Disparate Outcomes in the Los Angeles Police Department, at 5 (Oct. 2008), available at http://www.aclusc.org/documents/view/47).
299 See Opp. Mem. at 21-23. 300 Def. Mem. at 13 n.14.
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However, plaintiffs present convincing arguments and evidence that there are several shortcomings in the City’s approach. First, plaintiffs contest defendants’ characterization of the UF250 forms as sufficient to establish the constitutionality of the stop, when considered in isolation (without, for example, comparison to the officer’s memo book, or conversation with the officer).301 Second, they present evidence that even when the QAD audits reveal inadequacies, the Department does not follow up with sufficient disciplinary or remedial measures.302 Third, Fagan’s study indicates that, regardless of what the audit reveals, the fact is that a significant number of UF250 forms are not adequately completed.303 This is certainly enough evidence to demonstrate a triable issue of fact as to whether the City’s efforts in this regard can overcome a finding of deliberate indifference.
I have discussed the evidence regarding the Racial Profiling Policy and UF250 forms and audits as examples of the training, supervision, monitoring and disciplinary procedures that defendants argue demonstrate the City’s diligence, and the substantial deficiencies in these efforts that plaintiffs argue demonstrate the
301 See Opp. Mem. at 21. 302 See id. at 22-23. 303 See Fagan Report at 4.
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City’s deliberate indifference. 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. I therefore deny defendants’ summary judgment motion on plaintiffs’ failure to train, supervise, monitor, and discipline claims against the City.
D. Plaintiffs’ Title VI Claims Against the City The standard of proof for Title VI is the same as for a racial discrimination claim under the Equal Protection Clause of the Fourteenth Amendment.304 Accordingly, I deny defendants’ summary judgment motion on plaintiffs’ Title VI claims against the City for the same reasons stated above with respect to plaintiffs’ Equal Protection claims. E. Plaintiffs’ Claims Against Bloomberg and Kelly
304 See United States v. Fordice, 505 U.S. 717, 732 n.7 (1992) (“the reach of Title VI’s protection extends no further than the Fourteenth Amendment”); Lora v. Board of Educ. of the City of N.Y., 623 F.2d 248, 250 (2d Cir. 1980) (“The standard of discrimination in Title VI is the same standard the Supreme Court establishes for discrimination under the Fifth and Fourteenth Amendments.”).
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Plaintiffs have not opposed defendants' motion for summary judgment on their claims against Mayor Bloomberg and NYPD Commissioner Kelly. Accordingly, I grant summary judgment to defendants on those claims. V. CONCLUSION
For the reasons stated above, defendants' motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 134]. A conference is scheduled for September 23,2011 at 4 p.m.

Dated:

New York, New York August 31, 2011

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- Appearances -

For Plaintiffs:

Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464

Jonathan C. Moore, Esq. Rachel Kleinman, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 490-0900

Taylor M. Hoffman, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1206

For Defendants:
Heidi Grossman David M. Hazan Linda Donahue Judson Vickers Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084

86

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
---------------------------------x
DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

IUSDCSDNY DOCUMENT
It1ELBCfRONICAUY FILED
~~~D~~O.C.ItJ: !f!.3011_"! ~.
OPINION AND ORDER

Plain tiffs,

08 Civ. 1034 (SAS)

- against ­

THE CITY OF NEW YORK, et al.,

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

I. INTRODUCTION

Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David

Ourlicht bring this putative class action against the City of New York and named

and unnamed New York City Police Officers, alleging that defendants have

implemented and sanctioned a policy, practice, and/or custom of unconstitutional

stops and frisks by the New York Police Department ("NYPD") on the basis of

race and/or national origin, in violation of Section 1983 of title forty-two of the

United States Code, the Fourth and Fourteenth Amendments to the United States

Constitution, Title VI of the Civil Rights Act of 1964,1 and the Constitution and laws of the State of New York.2
As I have previously explained, this case involves an issue of great public concern – namely, the disproportionate number of African-Americans and Latinos, as compared with Caucasians, who become entangled in our criminal justice system.3 The specific allegation brought by the plaintiffs in this case is that the NYPD is engaged in a widespread pattern and practice of suspicionless and race-based stops and frisks.
The policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, on pace to reach 720,000 per year.4 There is “a disturbingly large racial disparity in who is victimized by these practices,”5 although the precise extent of the disparity and its causes are matters of dispute. While the City credits its “pre-
1 42 U.S.C. § 2000(d), et seq. 2 See Second Amended Complaint (“Compl.”) ¶¶ 2, 3. 3 See Floyd v. City of New York, — F. Supp. 2d —, No. 08 Civ. 1034, 2011 WL 3856515, at *1 (S.D.N.Y. Aug. 31, 2011). 4 See Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification at 1. 5 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment at 1.
2

emptive” policing, and accompanying high stop rates, for the decline in crime,6 plaintiffs argue that African-American and Latino men have been the targets and borne the brunt of these policies, as hundreds of thousands of law-abiding citizens have been stopped, questioned, and frisked based, in large part, on their race.7
One of the plaintiffs’ specific allegations is that on February 28, 2007, three police officers unlawfully stopped and frisked David Floyd and then searched his pockets. On February 24, 2011, defendants brought a motion for partial summary judgment, arguing that the undisputed evidence showed that at the time of his stop, the police officers had reasonable suspicion to believe that Floyd was engaged in a burglary and were thus justified in stopping and frisking him. On August 31, 2011, I granted defendants’ motion on the plaintiffs’ claims arising out of that stop and frisk.8 My ruling was based on the presence of two facts that were, at the time, undisputed: first, that when the police stopped Floyd he was standing in front of an apartment door, trying numerous different keys on the lock, and attempting to gain entry into the apartment; and second, that “there had been a

6 See Defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶¶ 92-190; Supplemental Report of Jeffrey Fagan, Ph.D, in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, at 1 n.3.

7

See Compl. ¶ 6.

8 See Floyd, 2011 WL 3856515, at *17.

3

burglary pattern for that time of day in the neighborhood.”9 On September 28, 2011, plaintiffs filed a motion for reconsideration.10
After I issued my Opinion and Order, plaintiffs analyzed the NYPD’s crime data and, according to their analysis, found that “far from a ‘burglary pattern,’ there was only one reported burglary in the vicinity of Mr. Floyd’s home in the two months preceding his February 27, 2008 stop-and-frisk.”11 According to plaintiffs, this evidence showing an absence of a burglary pattern raises a disputed issue of fact as to whether the officers who stopped Floyd has the legally-requisite reasonable suspicion to do so. Because there is now a disputed issue of fact, they argue, summary judgment is inappropriate.
Defendants object to this motion.12 They argue that the plaintiffs have not made the showing necessary for relief under Rule 60(b): the plaintiffs previously failed to exercise due diligence to obtain the evidence regarding an absence of a burglary pattern and thus should be precluded from presenting it now;

9

Id. at *4, *17.

10 See Memorandum of Law in Support of Plaintiffs’ Motion for Relief Under Rule 60(b) of the Court’s August 31, 2011 Opinion and Order (“Pl. Mem.”).

11 Id. at 1.

12 See Defendants’ Memorandum of Law in Support of Their Opposition to Plaintiffs’ Motion for Relief Under Rule 60(b) of the Court’s August 31, 2011 Opinion and Order (“Def. Mem.”).

4

the evidence would not change the result of the earlier ruling; and no extraordinary circumstances exist to warrant relief.
For the reasons explained below, plaintiffs’ motion to reinstate David Floyd’s claims arising out of his February 27, 2008 stop and frisk is granted. II. BACKGROUND
Although I provided a detailed summary of Floyd’s stop and frisk in my previous decision, I repeat much of that summary here for the sake of completeness. I summarize the relevant portions of my August 31, 2011 Opinion and Order, describe the evidence regarding the crime data newly presented by the plaintiffs (and the defendants), and then describe the evidence submitted by the parties regarding the plaintiffs’ prior access to that crime data.
A. The February 2008 Incident Alleged by Floyd Floyd, an African-American man, testified that on February 27, 2008,
he was walking on the path adjacent to the house in which he lived at 1359 Beach Avenue in the Bronx, New York.13 He encountered the basement tenant, also an African-American man, who indicated that he was locked out of his apartment and asked for help.14 Floyd, whose godmother owned the building, went upstairs to
13 See Def. 56.1 ¶ 438; Plaintiffs’ Reply Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 438; Compl. ¶ 13.
14 See Def. 56.1 ¶ 438; Pl. 56.1 ¶ 438. 5

retrieve the key.15 Unsure of the correct key for the basement lock, he retrieved seven to ten keys, some on chains and some loose, which he took back outside with him.16 Floyd and the tenant went to the basement apartment door and started trying the various keys.17 After trying five or six keys, they found the correct one.18
However, before they could open the door, three NYPD officers approached them – Officer Cormac Joyce, Officer Eric Hernandez, and Sergeant James Kelly.19 The officers asked the two men what they were doing, told them to stop, and proceeded to frisk them.20 The officer who frisked Floyd reached into both of his front pockets, which contained a phone, his keys, and some change.21 The officers then turned the two men around and asked again what they were doing.22 The officers asked the men to produce identification and asked why the
15 See id.; Compl. ¶ 50. 16 See Def. 56.1 ¶ 439; Pl. 56.1 ¶ 439. 17 See Def. 56.1 ¶ 440; Pl. 56.1 ¶ 440. 18 See Def. 56.1 ¶ 442; Pl. 56.1 ¶ 442. 19 See Def. 56.1 ¶¶ 442, 456, 457, 463; Pl. 56.1 ¶¶ 442, 456, 457, 463. 20 See Def. 56.1 ¶ 445; Pl. 56.1 ¶ 445. 21 See Def. 56.1 ¶¶ 446-447; Pl. 56.1 ¶¶ 446-447. 22 See Def. 56.1 ¶ 448; Pl. 56.1 ¶ 448.
6

basement tenant did not have any.23 The officers asked whether the two men lived there.24 Floyd gave the officers his Louisiana driver’s license and when the officers noted that the address on the license did not match the address of the building, he retrieved a bill from his bag, which reflected the building address.25
Officer Joyce testified that he stopped Floyd because he believed Floyd was in the middle of committing a burglary; he saw Floyd jostling a doorknob and nervously looking back; and he believed there had been a burglary pattern for that time of day in the neighborhood.26 Joyce recorded Floyd’s stop and frisk on a UF250 form, indicating that the suspected crime was burglary.27 He also noted in the box for “Physical Force Used” that he had put his hands on Floyd while Floyd was up against a wall.28 Regarding the circumstances that led to the
23 See id. 24 See id. 25 See Def. 56.1 ¶ 449; Pl. 56.1 ¶ 449. 26 See Def. 56.1 ¶ 457 (citing 8/25/09 Deposition of NYPD Officer Cormac Joyce at 126:10-128:19); Pl. 56.1 ¶ 457. 27 See Def. 56.1 ¶ 458; Pl. 56.1 ¶ 458. 28 See Def. 56.1 ¶ 460; Pl. 56.1 ¶ 460; UF250 Form completed by Officer Joyce on 2/27/08 (“Joyce UF250”), Ex. 170 to Declaration of Darius Charney, plaintiffs’ counsel, in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Charney Decl.”).
7

arrest, Joyce checked the box corresponding to “Furtive Movements.”29 In the area of the form entitled “Additional Circumstances/Factors,” with instructions to “Check All That Apply,” Joyce checked the box corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” as well as the boxes corresponding to “Evasive, False, Or Inconsistent Responses To Officer’s Questions,” and to “Ongoing Investigations, e.g., Robbery Pattern,” but did not check the box corresponding to “Area Has High Incidence Of Reported Offense Of Type Under Investigation.”30 In response to the question “Was Person Searched?,” Joyce checked “No.”31
Officer Hernandez testified that he suspected Floyd of committing a burglary because he saw two men focused on the front door very close to each other with their hands playing with the lock; because he saw one of the two men look toward the street and then focus back on the door, as if looking to see if anyone was looking at them; and because he knew there had been burglaries in the 43rd Precinct.32 He also testified that Floyd was holding a key ring that looked like

29 Joyce UF250.

30

Id.

31

Id.

32 See Def. 56.1 ¶ 461 (citing 8/5/09 Deposition of NYPD Officer Eric Hernandez (“Hernandez Tr.”) at 140:21-141:9; 153:8-154:2; 169:2-19); Pl. 56.1 ¶

8

it had been made with a wire hanger with more than fifty keys on it.33 He did not see a bulge in the clothing of either man that might indicate possession of a weapon.34
Sergeant Kelly testified that he suspected that the two men were committing a burglary because he saw them fumbling with a lock and jostling a door, and because he knew there was a burglary pattern in the neighborhood.35 He suspected that the bag at the men’s feet might have contained burglary tools.36 He testified that as he was approaching the two men, he noticed that one of them “was holding a very large key chain with . . . numerous keys on it, raising [his] suspicion that maybe they were using several keys to try to get into that house.”37 He reasoned that if they were in the process of committing a home invasion, they might have a weapon.38 Kelly filled out a UF250, but did not make an entry in his
461. 33 See Hernandez Tr., Ex. 57 to Charney Decl., at 145:21-25. 34 See Def. 56.1 ¶ 462; Pl. 56.1 ¶ 462. 35 See Def. 56.1 ¶ 463 (citing 8/7/09 Deposition of NYPD Sergeant
James Kelly (“Kelly Tr.”), Ex. 67 to Charney Decl., at 32:25-33:25, 37:7-15, 38:24-39:18); Pl. 56.1 ¶ 463.
36 See Def. 56.1 ¶ 464; Pl. 56.1 ¶ 464. 37 Kelly Tr. at 44:3-10. 38 See Def. 56.1 ¶ 465; Pl. 56.1 ¶ 465.
9

memo book regarding the stop and frisk of Floyd.39
B. This Court’s August 31, 2011 Summary Judgment Order
In my previous Order, I held that the officers’ stop of David Floyd
was lawful because the undisputed facts showed that they had had reasonable
suspicion, supported by articulable facts, that he was engaging in criminal
activity.40 In particular, I held the following:
1. “The existence of a midday burglary pattern is undisputed. All three officers testified that they were aware of such a pattern. Plaintiffs have not submitted evidence to contradict the assertion.”41
2. “[W]hether Floyd and his neighbor were ‘nervously looking back’ toward the street is a disputed fact, as Floyd testified that he had his back to the officers...”42
3. “[I]t is undisputed that Floyd and his neighbor were attempting to open the door. Floyd describes trying several different keys in the lock, while the officers describe the men as “jostling,” “fumbling with,” or “playing with” the lock. Floyd’s description of his activity does not contradict the officers’ description of his physical movements.”43
4. “[W]hether the men had ten keys or fifty keys is a disputed fact, the resolution of which requires a credibility

39 See Def. 56.1 ¶ 467; Pl. 56.1 ¶ 467.

40 See Floyd, 2011 WL 3856515, at *17.

41 Id. at *15.

42 Id. at *16.

43

Id.

10

determination.”44 I found that in combination, the two undisputed facts regarding the
burglary pattern and Floyd’s effort to open the door using multiple keys “create enough reasonable suspicion to justify the officers briefly detaining the men for an investigatory stop.”45 I explained that neither fact, standing alone, would be sufficient for the stop.46 The Supreme Court has clearly held that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”47 And, as I explained, “jostling a lock is an activity consistent with the criminal activity of attempting to break into a house, and consistent with the innocent activity of trying to open a door that you are authorized to open when you are unsure which is the correct key.”48 Standing alone, such a furtive movement would not preclude a reasonable juror from finding that the police had lacked reasonable suspicion to stop Floyd. In combination with the burglary pattern, however, it would.

44

Id.

45 Id. at *17

46 See id. at n.254.

47 Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

48 Floyd, 2011 WL 3856515, at *16.

11

C. Evidence Newly-Submitted By the Plaintiffs On September 28, 2011, twenty-eight days after I issued the summary
judgment Opinion and Order, plaintiffs filed their motion for reconsideration. The motion is based on the findings of Jeffrey Fagan, professor of law at Columbia University, whom plaintiffs have retained as an expert this case. According to his affidavit, Fagan analyzed the NYPD’s criminal complaint report data in order to determine the total number of burglaries that were reported in the vicinity of Floyd’s home in January and February of 2008.49 Floyd’s home, at 1359 Beach Avenue, was located in Census Tract No. 66, according to the 2000 Census. Because Beach Avenue itself was the boundary between Census Tracts 66 and 214, homes across the street from Floyd’s were in Census Tract 214. Fagan therefore analyzed crime totals for both of the two tracts, which together comprise 36 square blocks and, in 2008, were home to approximately 4,861 people.50 According to Fagan, between January 1, 2008 and February 28, 2008, there was one burglary reported in Census Tract 66 and were no burglaries reported in Census Tract 214.51
Defendants do not dispute Fagan’s findings. Instead, they produce
49 See Affidavit of Jeffrey Fagan ¶¶ 5-10. 50 See id. ¶¶ 11-12. 51 See id. ¶ 14.
12

evidence showing that there were more reports of burglaries and related crimes over a larger geographic area and a longer time period. In essence, they challenge plaintiffs’ conclusion that the data shows no pattern of burglaries. Defendants show that in January and February of 2008, there were 66 complaints of burglaries in the 43rd Precinct (which includes all of Census Tracts 66 and 214 and was home to approximately 167,633 people as of the 2000 Census), 62 of which occurred within one mile of Floyd’s home and 28 of which occurred within one half mile of his home.52 In addition, in the six months between July 1, 2007 and December 31, 2007, there were 233 complaints of burglaries and 19 complaints of stolen property within the 43rd Precinct.53 Finally, defendants show that for the entire borough of the Bronx in January and February of 2008, there were 560 complaints of burglary, 116 complaints of possession of stolen property, and 6 complaints of possession of burglar tools.54
D. Plaintiffs’ Access to the Crime Data Plaintiffs acknowledge that at the time their summary judgment
opposition papers were due, they were in possession of the NYPD’s data on
52 See Declaration of Tracy S. Mullet, supervisor of the Geospatial Information and Analysis Group in the New York Police Department, ¶¶ 3-6.
53 See id. ¶¶ 9-10. 54 See id. ¶¶ 13-16.
13

reported crime in the 43rd Precinct.55 Defendants state that plaintiffs have been in possession of the data since “no later than August 2009”56 (although they do not specify a precise date) and plaintiffs do not contradict that statement.
Defendants also submit evidence showing that plaintiffs have known, since at least May 11, 2009 or, at the very latest, since November 16, 2010, that defendants would be relying in part upon a burglary pattern in order to justify the Floyd stop and frisk.57 In their May 11, 2009 letter to the Court, copied to plaintiffs’ counsel, defense counsel wrote that “at some point one of the officers explained to Floyd that they stopped him because there had been robberies in the neighborhood . . . .”58 On November 16, 2010, defendants first served their summary judgment motion (withdrawn and later re-filed), which included the argument that the stop was justified because there had been a mid-day burglary pattern.59 And, as defendants point out, plaintiffs’ counsel only performed the data
55 See Pl. Mem. at 3. 56 Def. Mem. at 10. 57 See id. at 8. 58 May 11, 2009 Letter, Ex. C to Declaration of Heidi Grossman, defendants’ counsel, in support of Defendants’ Opposition to Plaintiffs’ Motion for Relief Under Rule 60(b) of the Court’s August 31, 2011 Opinion and Order at 5. 59 Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment at 3.
14

analysis of the alleged crime pattern after I issued the August 31, 2011 Opinion and Order.60
III. LEGAL STANDARD
A. Motion for Reconsideration
Plaintiffs have brought this motion under Federal Rule of Civil Procedure 60(b)61 and defendants have treated it as such.62 However, Rule 60(b) permits relief “from a final judgment, order, or proceeding” (emphasis added).63
My August 31, 2011 Opinion and Order granted in part and denied in part defendants’ motion for summary judgement.64 Because that decision did not fully
adjudicate the parties’ claims, it was not appealable and thus not final for the purposes of Rule 60(b).65 Therefore, plaintiffs’ motion for reconsideration cannot
60 See Def. Mem. at 9; Pl. Mem. at 4. 61 See Pl. Mem. at 1. 62 See Def. Mem. at 6. 63 Fed. R. Civ. P. 60(b). Accord Transaero, Inc. v. La Fuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) (“By its own terms, Rule 60(b) applies only to judgments that are final.”). 64 See Floyd, 2011 WL 3856515, at *2. 65 See 12 James Wm. Moore et al., Moore’s Federal Practice, § 60.23 (2011) (“[t]he standard test for whether a judgment is ‘final’ for Rule 60(b) purposes is usually stated to be whether the judgment is sufficiently ‘final’ to be appealed.”); United States v. 228 Acres of Land & Dwelling, 916 F.2d 808, 811 (2d Cir. 1990) (“[a]n order that denies summary judgment or grants partial summary
15

be properly brought under either Rule 60(b) or Rule 59. The instant motion is thus considered as brought pursuant to Local Rule 6.3.66
Local Rule 6.3 requires litigants to bring motions for reconsideration within fourteen days of the initial determination, unless otherwise provided by the Court. I extended that deadline to twenty-eight days,67 so the motion is timely. “The standard for granting such a motion is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked – matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.”68 “Reconsideration of a previous order by the court is an ‘extraordinary remedy to be employed sparingly
judgment cannot by itself be the basis for an appeal, since it is nonfinal.”). 66 See Williams v. County of Nassau, 779 F. Supp. 2d 276, 280 n.2
(E.D.N.Y. 2011) (explaining that neither Rule 60(b) nor Rule 59 applies to a motion for reconsideration of an order denying in part and granting in part a motion for summary judgment); Kittay v. Korff (In re Palermo), No. 08 Civ. 7421, 2011 WL 446209, at *4 (S.D.N.Y. Feb. 4, 2011) (“[b]ecause a denial of a motion to dismiss is an interlocutory order from which no appeal lies . . . a motion pursuant to 59(e) to modify this order is procedurally improper . . . [and] the only ground available for [defendant] to move for reconsideration is under Local Civil Rule 6.3.”).
67 See 9/23/11 Transcript of Proceedings at 45 [Docket No. 157]. 68 Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
16

in the interests of finality and conservation of scarce judicial resources.’”69 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.”70
“The major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”71 Defendants correctly note that,
generally, reconsideration on the basis of new evidence is only appropriate when
that evidence is truly newly discovered and could not have been found by due diligence.72 However, courts may reconsider their previous decisions in light of new information when manifest injustice would result from a refusal to do so.73
69 RST (2005) Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362, 365 (S.D.N.Y. 2009) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)).
70 Families for Freedom v. United States Customs & Border Prot., No. 10 Civ. 2705, 2011 WL 4599592, at *2 (S.D.N.Y. Sept. 30, 2011)
71 Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quotation omitted).
72 See Def. Mem. at 7 (citing United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983)).
73 See Mikol v. Barnhart, 554 F. Supp. 2d 498, 503 (S.D.N.Y. 2008) (reconsideration granted, in light of newly submitted evidence, in order to prevent a manifest injustice); Tamayo v. City of New York, No. 02 Civ. 8030, 2004 WL 725836, at *3 (S.D.N.Y. Mar. 31, 2004) (reconsideration granted in light of newly
17

The fundamental principle underlying Rule 60(b) is the need to
“strike[] a balance between serving the ends of justice and preserving the finality of judgments.”74 That balancing act changes when the judgment at issue is not
final and the motion is brought under Local Rule 6.3. As a result, in this Circuit,
“[t]he law of the case doctrine is admittedly discretionary and does not limit a court’s power to reconsider its own decisions prior to final judgment.”75
Ultimately, “[a] district court retains absolute authority to reconsider or otherwise affect its interlocutory orders any time prior to appeal.”76
B. Summary Judgment
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”77 “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
submitted evidence that had long been in movant’s possession). 74 Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). 75 Virgin Atl., 956 F.2d at 1255. 76 Williams, 779 F. Supp. 2d at 280. See Fed. R. Civ. P. 54(b) (“[A]ny
order or decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.”).
77 Fed. R. Civ. P. 56(a). 18

if it might affect the outcome of the suit under the governing law.”78 “The moving party bears the burden of establishing the absence of any
genuine issue of material fact.”79 To raise an genuine issue of material fact, and thus defeat the summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts,” and “may not rely on conclusory allegations or unsubstantiated speculation.”80
In deciding a motion for summary judgment, a court must “construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.”81 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.”82 “The role of the court is not to resolve disputed issues of fact but to assess whether

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

79
2010).

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

80 Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotations omitted).

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

82 Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (quotation and emphasis omitted).

19

there are any factual issues to be tried.”83
C. Stops and Frisks
“‘[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 probable cause.’”84 This form of investigative detention has become known as a Terry stop.85 “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.”86 “‘The officer [making a Terry stop] . . . must be able to
articulate something more than an inchoate and unparticularized suspicion or hunch.’”87 “Reasonable suspicion is an objective standard; hence, the subjective
83 Brod, 653 F.3d at 164 (quotation omitted). 84 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). 85 See Terry v. Ohio, 392 U.S. 1 (1968). 86 Wardlow, 528 U.S. at 123 (quoting Sokolow, 490 U.S. at 7). Accord Alabama v. White, 496 U.S. 325, 329-30 (1990); Immigration and Naturalization Servs. v. Delgado, 466 U.S. 210, 217 (1984). 87 White, 496 U.S. at 329 (quoting Sokolow, 490 U.S. at 7).
20

intentions or motives of the officer making the stop are irrelevant.”88 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.”89 “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”90 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”91 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.”92 “[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.”93

88 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).

89 Terry, 392 U.S. at 22.

90
(1979)).

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

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

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

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

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IV. DISCUSSION A. The Existence of a Burglary Pattern The evidence newly produced by plaintiffs is deeply concerning to
this Court and it goes to the heart of this litigation. According to an expert report previously submitted as part of this litigation, NYPD officers check off “high crime area” as a justifying circumstance in more than fifty-five percent of all stops.94 In addition, they check off “Time Of Day, Day Of Week, Season Corresponding To Reports of Criminal Activity” in 34.1 percent of all stops and “Ongoing Investigations, e.g., Robbery Pattern” in 12.2 percent of all stops.95 Shockingly, according to the report, the use of the “high crime area” justification does not vary based on the area’s crime rate – it is checked off by police officers in approximately fifty-five percent of all stops, regardless of whether those stops actually take place in a high crime area, a low crime area, or an area with an
94 See Report of Jeffrey Fagan, Ph.D (“Fagan Report”) in support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment at 51. The box’s full description on the NYPD’s UF250 form is “Area Has High Incidence Of Reported Offense Of Type Under Investigation.” These specific statistics exclude stops made pursuant to “radio runs,” where officers are directed to a specific location based on a civilian’s or officer’s report of crime. See Fagan Report at 35, 51.
95 See id. at 51. 22

average rate of crime.96 Equally disturbing, the report finds that in cases where officers checked off “high crime area” on their post-stop report, they were approximately eighteen percent less likely to have made an arrest than in cases where they did not check that box.97 That is to say, although the Supreme Court has held that “the fact that the stop occurred in a ‘high crime area’ [is] among the relevant contextual considerations” in determining whether the stop was constitutionally permissible,98 the reliance on that factor by NYPD police officers appears to in fact reduce the likelihood that crime was indeed afoot. One hypothesis raised by plaintiffs’ expert to explain this strange result is that:
[i]f the initial basis for suspicion leading to the stop was thin, then adding [high crime area] . . . provides a post hoc justification to a stop that was most likely erroneous with respect to whether crime was afoot, and might have been based on a threshold of suspicion that otherwise would have been legally insufficient to justify the stop.99 It is of course not my role to make the factual determination of whether Fagan’s data is correct, let alone whether his hypothesis properly explains that data. It is appropriate, however, for me to observe that plaintiffs have made the NYPD’s use
96 See id. at 53. 97 See id. at 52. 98 Wardlow, 528 U.S. at 124 (quoting Adams, 407 U.S. at 144, 147-48). 99 Fagan Report at 53-55.
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and alleged misuse of the justifications “high crime area,” “time of day,” and “ongoing investigation, e.g., robbery pattern” a central part of their suit. And they have now brought forward strong evidence suggesting that, at least in the case of the NYPD’s stop of Floyd on February 27, 2008, the use of those justifications may not have been supported by the objective pattern of crime in the neighborhood.
Officers Joyce and Hernandez and Sergeant Kelly all testified that they stopped Floyd in part because there was a pattern of burglaries in the neighborhood.100 The existence of such a burglary pattern was one of the two undisputed facts that I found were necessary in order for defendants to justify Floyd’s stop and frisk on summary judgment.101 Plaintiffs have now raised severe doubts about the existence of that pattern by producing evidence that over the two months prior to Floyd’s stop, there was only one burglary reported for the two census tracts surrounding Floyd’s home.
Defendants argue that plaintiffs’ new evidence is not convincing and should not change the outcome of my previous summary judgment Order. First, they argue that the area selected by plaintiffs and Fagan for analysis is too small. They do not indicate what precise area would be more appropriate, but they do
100 See Def. 56.1 ¶¶ 457, 461, 463. 101 See Floyd, 2011 WL 3856515, at *17 n.254.
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provide statistics showing that in the two months prior to Floyd’s stop, there were 28 burglaries within one half mile of Floyd’s home, 62 burglaries within a mile of his home, 66 burglaries within the 43rd Precinct, and 560 burglaries throughout the Bronx.102 Defendants point out that the plaintiffs never asked defendants Hernandez, Joyce, or Kelly about the boundaries of the burglary pattern on which they relied when making the stop, and that plaintiffs have “not cited to any depositions or other documents to support their use of these subjective boundaries.”103 Furthermore, defendants argue that plaintiffs “have unilaterally and arbitrarily determined that a two-month period is appropriate to draw the conclusion that no pattern existed,” and point out that if the examination is extended back to December 1, 2007, there were even more burglaries.104
Plaintiffs reply that the parties’ disagreement shows that there is a disputed issue of material fact and that summary judgment is therefore
102 See Def. Mem. at 13-14. I must note, however, that defining the entire Bronx as the scene of a pattern of burglary would undermine the Fourth Amendment rights of that borough’s 1.3 million residents and their visitors and eviscerate the logic behind the Supreme Court’s decision in Wardlow.
103 Id. at 12. 104 Id.
25

inappropriate.105 Plaintiffs argue that their position is reasonable and the dispute is
therefore “genuine” under the summary judgment standard:
plaintiffs’ use of the nine-by-four block area surrounding Mr. Floyd’s home and the two-month time period preceding his stop as the geographic and temporal units of their statistical analysis is not ‘arbitrary’ but instead comports with the statements of highranking NYPD officials, defendants’ own testifying expert, and defendant Sergeant James Kelly himself about how the NYPD reviews and analyzes crime trends.106
Plaintiffs cite evidence showing NYPD discussions about drug offense
patterns at a single intersection in the 25th Precinct and shooting statistics in an eight square block area in the 28th Precinct.107 More persuasively, plaintiffs point out that
the defendants’ own expert, Dennis Smith, has submitted a report explaining that
precinct-level crime analysis is out of date and that, since 2003, the NYPD has
focused on “hot spot policing” that analyzes crime patterns in smaller areas within
precincts. According to Smith, “[s]mall areas of violent crime within selected
precincts have been the locus of crime fighting efforts during the entire period” from
105 See Plaintiffs’ Reply Memorandum of Law in Further Support of Their Motion for Relief Under Rule 60(B) from the Court’s August 31, 2011 Opinion and Order at 3.
106 Id. at 3-4. 107 See PBMN 10-10-08, Ex. 48 to Declaration of Darius Charney In Opposition to Summary Judgment at NYC_2_00007023, NYC_2_00007026.
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2004 to 2009.108 According to Smith, under the NYPD’s current approach, “a team of officers is assigned to a hot spot, an Impact Zone, in precisely those blocks where a violent crime pattern has been found.”109
In essence, plaintiffs have marshaled two central pieces of evidence in their effort to show that the existence of a burglary pattern in the vicinity of Floyd’s home is a disputed issue of fact: first, there was only one reported burglary in the thirty-six square blocks surrounding his house in the two months before his stop; and second, according to the defendants’ own expert, the NYPD analyzes crime patterns in a block-by-block, hot-spot method.110
According to the officers who stopped Floyd, there was at the time a pattern of burglary in the area. According to the NYPD’s data, and a method of analysis that appears to comply with the method that the defendants’ own expert says is used by the NYPD, there was only one reported burglary in the two months
108 Report of Dennis C. Smith at 5. 109 Id. at 11. “Another critical flaw in the model used in the statistical analyses in the Fagan Report is the assumption, repeatedly stated, that police crime pattern analysis and resource deployment are based at the precinct level rather than small areas within precincts.” Id. at 17. 110 Even if there were no evidence to suggest that the NYPD measures crime patterns in this way, there would still be a dispute of fact about whether the officers could reasonably consider Floyd’s home to be in a “high crime area,” for the purposes of the Fourth Amendment, given what the data shows.
27

preceding his stop. In order to survive a motion for summary judgment, Floyd must
show that – construing the facts in the light most favorable to him and resolving all
ambiguities and drawing all reasonable inferences in his favor – there exists a genuine
dispute of fact. He easily passes that hurdle.
B. Reasonable Suspicion in the Absence of a Burglary Pattern
Defendants argue, however, that even if there is a genuine dispute of fact
as to the burglary pattern, the officers nonetheless had reasonable suspicion to stop Floyd.111 But I squarely rejected that argument in my earlier ruling:
Plaintiffs assert that “[t]he only undisputed material facts are that three officers observed, for no more than one minute, two Black men trying to unlock the front door of a house in the middle of the afternoon using keys.” To that description, I must add the undisputed fact that the officers were aware of a midday burglary pattern in the neighborhood. Those factors in combination—even without the disputed facts of whether the men were nervously looking back and whether they had ten keys or fifty—create enough reasonable suspicion to justify the officers briefly detaining the men for an investigatory stop.112
It was only in combination with the burglary pattern that I found that the police
officers, as a matter of law, had reasonable suspicion to stop Floyd. Defendants
cannot establish that, as a matter of law, Floyd’s furtive movements and possession
111 See Def. Mem. at 14-17. 112 Floyd, 2011 WL 3856515, at *17 (quoting Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment at 4).
28

of a number of keys113 were themselves sufficient to create reasonable suspicion. The existence of the burglary pattern is a material fact because it could affect the outcome of Floyd’s claim.
C. The Newly Submitted Evidence The raw data on which Professor Fagan has relied was indeed in
plaintiffs’ possession – for many months – before I granted partial summary judgment to the defendants. And, given plaintiffs’ ample resources and expertise, they should have been able to run the data on the existence of a burglary pattern before I issued my Opinion. That said, the evidence was not an obvious red flag staring plaintiffs in the face, but was rather a small part of a large data set, which required skilled work to uncover. Plaintiffs’ failure to submit this evidence to the Court was obviously not a tactical decision for which they must now pay the price. Instead, it was simply a serious oversight.
Reinstating Floyd’s claims based on his stop and frisk would not reopen a closed case or disturb a well-established decision. It would not prejudice the defendants or punish their reliance. Nor would doing so subject any new defendants
113 Defendants argue that “Floyd’s use of a large set of keys to gain entry” was also an undisputed fact. See Def. Mem. at 15. But Floyd testified that he had only seven to ten keys, a fact that, if true, would not lend any reasonable support to an officer’s suspicion that crime is afoot. Thus, I have already found that the number of keys in Floyd’s possession raises a material issue of fact. See Floyd, 2011 WL 3856515, at *16.
29

to litigation (since my previous Opinion denied summary judgment on the police officers’ search of Floyd’s pockets114) or reduce in any way compliance with the Supreme Court’s wisdom that “there must be an end to litigation someday”115 (since these claims are but two of the many that plaintiffs bring in this putative class action).
But reinstating Floyd’s claims would prevent a manifest injustice.116 I do not take lightly my decision to grant plaintiffs’ motion for reconsideration. The great majority of requests for reconsideration based on the submission of new evidence that could have been produced at the time of the original motion are rightly denied. Granting such a motion is an exceptional remedy, but this is an exceptional situation. It would be a miscarriage of justice to grant summary judgment against Floyd on the basis of a local pattern of burglaries when the newly submitted evidence puts the existence of such a pattern very much in doubt; that injustice would be particularly acute given the serious concerns that the Fagan report raises about the widespread and potentially improper reliance on such crime patterns by the NYPD. Important factual questions of credibility are raised by the circumstances of Floyd’s
114 See Floyd, 2011 WL 3856515, at *17. 115 Ackermann v. United States, 340 U.S. 193, 198 (1950). 116 “When a party timely presents a previously undisclosed fact so central to the litigation that it shows the initial judgment to have been manifestly unjust,” reconsideration, even of a final judgment, is appropriate. Good Luck Nursing Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980).
30

stop - questions that go to the heart of the plaintiffs' claims - and these questions should be answered by a jury. V. CONCLUSION
For the reasons stated above, plaintiffs' motion to reinstate Floyd's claims arising out of his February 27, 2008 stop and frisk is granted.

Dated:

New York, New York November 23, 2011

31 


- Appearances -

For Plaintiffs: Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Philip Irwin, Esq. Eric Hellerman, Esq. Gretchen Hoff-Varner, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1190
For Defendants: Heidi Grossman Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084

Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 277-5850

32

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x
DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

uSDcSDNY
DOCUMENT ELECrl\ONICAILYFILED DOC II: . . . _ - - - - ­ DATE FILED: If .... I b - t ~
OPINION AND ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

- against-

THE CITY OF NEW YORK, et ai.,

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

I. INTRODUCTION

Police officers are permitted to briefly stop any individual, but only

upon reasonable suspicion that he is committing a crime. I The source of that

limitation is the Fourth Amendment to the United States Constitution, which

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 Supreme Court has explained that this "inestimable right of

personal security belongs as much to the citizen on the streets of our cities as to the

See Terry v. Ohio, 392 U.S. 1,30 (1968).

homeowner closeted in his study to dispose of his secret affairs.”2 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.”3 Safeguarding this right is quintessentially the role of the judicial branch.
No less central to the courts’ role is ensuring that the administration of law comports with the Fourteenth Amendment, which “undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights.”4
On over 2.8 million occasions between 2004 and 2009, New York City police officers stopped residents and visitors, restraining their freedom, even
2 Terry, 392 U.S. at 9. 3 Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891). 4 Yick Wo v. Hopkins, 118 U.S. 356, 367 (1886) (citation and quotation omitted). “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Id. at 373-74.
2

if only briefly.5 Over fifty percent of those stops were of Black people and thirty percent were of Hispanics, while only ten percent were of Whites. The question presented by this lawsuit is whether the New York City Police Department (“NYPD”) has complied with the laws and Constitutions of the United States and the State of New York. Specifically, the four named plaintiffs allege, on behalf of themselves and a putative class, that defendants have engaged in a policy and/or practice of unlawfully stopping and frisking people in violation of their Fourth Amendment right to be free from unlawful searches and seizures and their Fourteenth Amendment right to freedom from discrimination on the basis of race.
To support their claims, plaintiffs have enlisted the support of Jeffrey Fagan, a professor of criminology at Columbia Law School, who has submitted an extensive report analyzing the NYPD’s practices.6 The City of New York (“City”) and the other defendants object to the introduction of Fagan’s opinions, arguing that he lacks the qualifications to make the assessments that he makes, that his methodologies are fatally flawed, and that many of his opinions constitute
5 As the Supreme Court has explained, being stopped and frisked “must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 292 U.S. at 25.
6 See Report of Jeffrey Fagan (“Report”) and Supplemental Report of Jeffrey Fagan (“Supp. Rep.”) [Docket No. 132].
3

inadmissible conclusions of law.7 NYPD officers are required to fill out a detailed worksheet describing
the events before and during every stop that they perform. All of these records are compiled in a database – a database that now contains a wealth of information about millions of interactions between police officers and civilians. The information is both incredibly rich and inevitably incomplete: rich because the dozens of boxes on the worksheet are designed to solicit the very information – who, when, where, why and how – that courts (and the NYPD itself) use to evaluate whether a stop was lawful; incomplete because a fill-in-the-blank document can never fully capture the nuances of a human interaction, because these worksheets capture only the quick responses of police officers rather than of the civilians who have been stopped, and because police officers do not always fill them out perfectly.
How should a jury evaluate the NYPD’s stop-and-frisk policy? What should attorneys and witnesses be permitted to tell the jury about the 2.8 million interactions between officers and the people they have stopped? And what should the Court tell those jurors? Both parties agree that the database contains valuable
7 See Memorandum of Law in Support of Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan (“Def. Mem.”).
4

and relevant information. But they disagree vehemently over how to accurately summarize the information and how to fairly describe it to the jury. Defendants’ motion to exclude the opinions of Professor Fagan therefore presents this Court with important questions regarding expert testimony and trial management.
With one important exception, Fagan’s report is methodologically sound and, under the Federal Rules of Evidence, admissible. I will permit Fagan’s generalizations where they are reasonable interpretations of the data and I will prohibit them where I find that they are inaccurate or have little probative value. For the reasons below, defendants’ motion is granted in part and denied in part. II. THE FAGAN REPORT
A. Professor Fagan’s Qualifications Fagan is the Isidor and Seville Sulzbacher Professor of Law at
Columbia Law School; director of the school’s Center for Crime, Community, and Law; a Senior Research Scholar at Yale Law School; and a Fellow of the American Society of Criminology.8 He has published dozens of refereed journal articles and chapters on an array of topics in criminology including issues related to juveniles,
8 See Declaration of Jeffrey Fagan in Support of Plaintiffs’ Opposition to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan (“Fagan Decl.”) ¶ 1.
5

deterrence, capital punishment, race, and New York City.9 He has been studying
and writing about the policies at issue in this case for over a decade.10 Perhaps
most prominently, in 1999 Fagan conducted a study for the Civil Rights Bureau of
the New York State Office of the Attorney General, statistically analyzing the
NYPD’s data on approximately 175,000 stops and frisks and “focusing specifically
on racial disparities in stop rates and the extent to which stops complied with the
Fourth Amendment.”11 The results of his analysis were published that year in The
9 See Curriculum Vitae (“CV”), Appendix A to Fagan Decl., at 3-10. Fagan has served as an expert witness in over a dozen cases, has received numerous awards and honors, and has written technical reports for the United States Department of Justice, the Centers for Disease Control, and the National Institutes of Health, among other organizations. He serves on the editorial boards of at least six criminology journals and has taught extensively in the fields of criminology, law, and qualitative and quantitative research methods. See id. at 1623.
10 See Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race and the New Disorder in New York City Street Policing, 7 J. Empirical Legal Stud. 591 (2010); Jeffrey Fagan et al., Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City in Race, Ethnicity, and Policing: New and Essential Readings (Stephen Rice & Michael White eds., 2009); Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the NYPD’s Stop-and-Frisk Policy in the Context of Claims of Racial Bias, 102 J. Am. Statistical Ass’n 813 (2007); Jeffrey Fagan & Garth Davies, Policing Guns: Order Maintenance and Crime Control in New York in Guns, Crime, and Punishment in America (Bernard Harcourt ed., 2003); Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry, Race and Disorder in New York City, 28 Fordham Urb. L.J. 457 (2000).
11 Fagan Decl. ¶ 6.
6

New York Police Department’s “Stop and Frisk” Practices: A Report to the People of the State of New York from the Office of the Attorney General.12
As defendants point out, however, Fagan is not a lawyer and has never taken courses at a law school.13 His graduate degrees are in industrial and civil engineering, with a focus on policy science and criminal justice.14 Furthermore,
Fagan “has never worked in a law enforcement field, has never completed a [stop
and frisk] form, never conducted a Stop, Question & Frisk (“SQF”) and never
observed more than a few SQFs or gone for a ride along with a NYPD officer to even observe a SQF.”15
B. Fagan’s Data Sources
After conducting a stop, NYPD officers are required to fill out a
“Stop, Question and Frisk Report Worksheet,” which is a two-sided form commonly known as a UF-250.16 Approximately 2.8 million of these worksheets
12 See Ex. 117 to Declaration of Darius Charney, plaintiffs’ counsel, in Opposition to Defendants’ Motion for Summary Judgment.
13 See Def. Mem. at 2 n.5. 14 See CV at 1. 15 Def. Mem. at 2 n.5. 16 See Ex. B to Fagan Decl. Because the form is central to this case and this motion, it is reproduced at the end of this opinion as Appendix 1. I use the terms UF-250, worksheet, and form interchangeably. The NYPD’s use of a revised UF-250 form was agreed to as part of the settlement in Daniels v. City of
7

were filled out between 2004 and 2009 and the NYPD entered the information from each of the worksheets into a database and produced it to plaintiffs and Fagan as electronic files.17 Each UF-250 includes information about the suspect’s demographic characteristics (age, gender, race/ethnicity); the date, time, duration, location, and outcome of the stop (e.g., frisk, search, type of weapon seized if any, type of other contraband found if any, summons issued, arrest); the suspected crime for which the person was stopped; and whether and what kind of physical force was used. Because the suspected crimes were recorded “using individualized and often idiosyncratic notation,” Fagan coded the notations into a set of 131 specific criminal charges and then distributed each “suspected crime” into one of twenty aggregate crime categories (e.g., violent crime, minor violent crime, fraud, drugs).18
On each UF-250, there are twenty boxes that can be checked by police officers regarding the factors – or as Fagan calls them, the “indicia of suspicion” – that motivated the stop. There are ten indicia on Side 1 of the worksheet (“circumstances of stop” or “stop circumstances”) and ten more on Side 2

New York, 99 Civ. 1695, a class action similar to this one that was litigated by some of the same attorneys.

17 See Report at 6.

18

Id.

8

(“additional factors”). The worksheet also contains nine checkboxes regarding the indicia of suspicion that motivated any frisk that took place and four checkboxes regarding the indicia of suspicion that motivated any search.
Fagan’s report relied on detailed demographic information, organized by police precinct and census tract, which he compiled from a variety of resources including the United States Census, the federal government’s American Community Survey, and a commercial database called ESRI. Fagan used police precincts as his principal unit of analysis because “precincts are the units where police patrol resources are aggregated, allocated, supervised and monitored” and because “precinct crime rates are the metrics for managing and evaluating police performance.”19 The demographic data he collected includes information on race, ethnicity, age, income, unemployment, housing vacancy, residential mobility, and physical disorder.20 The City provided him with data on crime complaints from 2004-2009. This data specifies the location of a complaint and type of alleged crime; Fagan categorized the alleged crimes using the same categories that he used to analyze the UF-250s, which “provided a foundation for benchmarking the types and rates of suspected crimes in the stops with the observed rates of reported
19 Id. at 7. 20 See id. at 7-9.
9

specific crimes in each police precinct.”21 The City also provided Fagan with “patrol strength data” regarding the allocation of police resources to particular neighborhoods. Finally, Fagan included in his analysis information about the location of public housing (where there is often a large police presence) and population density (which impacts the likelihood of police-civilian interactions).22
C. Fagan’s Analysis Regarding Plaintiffs’ 14th Amendment Equal Protection Claims and Defendants’ Criticism of That Analysis In order to test plaintiffs’ 14th Amendment claim that defendants’
stop-and-frisk practices treat Blacks and Hispanics differently than they treat Whites, Fagan designed and ran regressions that sought to determine the impact of a person’s race on outcomes such as being stopped, being frisked, being subjected to force during an arrest, etc.23 Fagan’s regressions compared the influence of race on these outcomes with the influence of non-race factors such as residency in a poor or high crime neighborhood. These analyses control for the fact that in New York City, as a general matter, Blacks and Hispanics live in higher crime
21 Id. at 9. 22 See id. at 10-11. 23 See id. at 12.
10

neighborhoods than do Whites.24 Fagan created a benchmark against which “to determine if police are
selectively, on the basis of race or another prohibited factor, singling out persons for stops, questioning, frisk or search.”25 Police officers may lawfully stop an individual only when they have reasonable suspicion to believe that the person has committed, is committing, or is about to commit a crime. The rates at which different groups of people engage in behavior that raises such reasonable suspicion is therefore relevant to the determination of whether the police are treating people equally. According to Fagan, “a valid benchmark requires estimates of the supply of individuals of each racial or ethnic group who are engaged in the targeted behaviors and who are available to the police as potential targets for the exercise of their stop authority.”26 Fagan used two variables in constructing a benchmark that would fulfill these requirements: the local rate of crime and the racial distribution
24 Fagan makes a helpful comparison to the employment context: in order to properly test for disparate treatment on the basis of race, an analysis should compare the hiring rates of the racial groups in question while controlling for plausible non-race factors such as education and experience. Because these factors may be correlated with race, a proper regression will differentiate between (lawful) differences in treatment based on relevant work experience and education and (unlawful) differences in treatment based on race.
25 Id. at 15. 26 Id. at 16.
11

of the local population.27 This benchmark was designed, in part, “to test the extent
to which the racial composition of a precinct, neighborhood, or census tract –
separate and apart from its crime rate – predicts the stop-and-frisk rate in that
precinct, neighborhood, or census tract.”28
Based on his statistical analyses, Fagan reached the following
conclusions regarding disparate treatment:
The racial composition of a precinct, neighborhood, and census tract is a statistically significant, strong and robust predictor of NYPD stop-and-frisk patterns even after controlling for the simultaneous influences of crime, social conditions, and allocation of police resources.
NYPD stops-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.
Blacks and Latinos are significantly more likely to be stopped by NYPD officers than are Whites even in areas where there are low crime rates and where residential populations are racially heterogenous or predominately White.
Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.29
27 See id. at 18. 28 Fagan Decl. ¶ 23. 29 Id. ¶ 4(a)-(d).
12

Notably, Fagan did not include in his benchmark the rates of criminal
activity by race. This decision constitutes the parties’ central disagreement
regarding Fagan’s analysis of disparate treatment. Defendants believe that crime
rates by race, as reflected in the complaints of crime victims and in the NYPD’s
arrest data, is the best benchmark: “In an analysis concerned with whom the police
are stopping, a reliable benchmark must take into account who is committing the
crime.”30 Defendants argue that “Blacks and Hispanics comprise a majority of
violent crime suspects in all precincts except one in the City, and in most precincts
are the overwhelming majority of suspects.”31 Defendants point out that Fagan has
used arrest data in at least two previous studies, even though arrest data was less
complete at the time of those studies than it is today.32
30 Def. Mem. at 12. 31 Declaration of Robert Smith (“Smith Decl.”), defendants’ testifying expert, ¶ 13. “As an illustration of the omitted variable bias manifest in Fagan’s model, I note that NYPD stops are not proportionally correlated with the gender of local populations. 93% of all stops in 2009 were of males while only 7% were of females, who constitute 52.5% of the population . . . If an analyst were to conduct a regression analysis using Fagan’s model design but including gender (rather than race) as an independent (“explanatory”) variable, stop rates of men would appear disproportionately large. Without taking into account data on the radically different contributions by men and women to commission of crime, an analyst would be left to conclude erroneously that police are targeting people for stops because they are male.” Id. ¶ 17. 32 See Reply Declaration of Robert Smith (“Smith Reply Decl.”) ¶ 23 (pointing out that Fagan used arrest data to assess racial discrimination in his
13

Fagan explains that he chose not to use data from arrests and suspect identifications here because that data is incomplete; imputing the characteristics of the known data to the missing data, Fagan believes, would raise serious risks of selection bias.33 Because suspect race is only known in fifty to sixty percent of cases, extrapolation of that known racial distribution to the remaining forty or fifty percent of cases may not be appropriate, Fagan argues, particularly if the suspect crimes that animate a large share of stops (such as drug possession) do not correlate well to crime reports that identify the race of a suspect (such as assault). In the years since his earlier reports were written, Fagan explains, “the weight of opinion among researchers who were doing this kind of work” is that his current benchmark is an improvement on his earlier benchmarks.34
D. Fagan’s Analysis Regarding Plaintiffs’ Fourth Amendment Reasonable Suspicion Claim and Defendants’ Criticism of That Analysis In order to assess plaintiffs’ claim that defendants have engaged in a
practice of stopping and frisking New Yorkers without reasonable suspicion and in violation of the Fourth Amendment, Fagan analyzed the combinations of boxes
article in the Journal of the American Statistical Association and in the Attorney General’s report).
33 See 3/8/12 Hearing Transcript (“Tr.”) at 72-73. 34 Id. at 90:8-9.
14

that officers checked on the UF-250s. He did this in two ways. First, he assumed that the forms had been filled out accurately and completely and sought to determine whether reasonable suspicion existed in any given stop based on the boxes that were checked off on the worksheet. Second, by searching for patterns in the worksheet data from across the City and over the 2004-2009 period, Fagan sought to determine whether the data on the forms is accurate and whether the NYPD’s use of the forms is an effective way to ensure that officers are complying with the law.35
1. Analysis and Findings Regarding UF-250s, Assuming Their Veracity and Completeness
Because there are ten “stop circumstances” on Side 1 of the form and ten “additional factors” on Side 2, and because officers are not limited in the number of boxes they can check (although they are required to check at least one Side 1 stop circumstance), there are an enormous number of potential combinations of boxes that can be checked. Fagan created the following system for determining whether or not a stop was lawful: First, he categorized the stop factors on Side 1 as either “justified” or “conditionally justified.” Second, he defined a stop itself as “justified,” “unjustified,” or “indeterminate” based on which boxes had been checked. He did this by analyzing case law, as described in Appendix D of his
35 See id. 74-77. 15

report. The following is a summary of Fagan’s algorithm and categorization scheme:
Category 1: Stops are justified if one or more of the following three “justified” stop circumstances on Side 1 are checked off: (1) “Actions Indicative Of ‘Casing’ Victims Or Location”; (2) “Actions Indicative Of Engaging In Drug Transaction”; (3) “Actions Indicative Of Engaging In Violent Crimes.”
Category 2: Stops are justified if at least one of the following six “conditionally justified” stop circumstances on Side 1 are checked off and at least one of the additional circumstances on Side 2 are checked off. The conditionally justified stop circumstances are (1) “Carrying Objects In Plain View Used In Commission Of Crime e.g., Slim Jim/Pry Bar, etc.”; (2) “Suspicions Bulge/Object (Describe)”; (3) “Actions Indicative Of Acting As A Lookout”; (4) “Fits Description”; (5) “Furtive Movements”; (6) “Wearing Clothes/Disguises Commonly Used In Commission Of Crime.”
Category 3: Stops are unjustified if no stop circumstances on Side 1 are checked off, even if one or more additional circumstances on Side 2 are checked off.
Category 4: Stops are unjustified if only one conditionally justified stop circumstance on Side 1 is checked off and no additional circumstances on
16

Side 2 are checked off.
Category 5: Stops are justified if two or more conditionally justified
stop circumstances on Side 1 are checked off.
Category 6: Stops are indeterminate if “Other Reasonable
Suspicion Of Criminal Activity (Specify)” is the only stop circumstance checked
off on Side 1, regardless of whether one or more additional circumstances on Side
2 are checked off and regardless of what is written in the blank space under the
“Other” box.
Based on this classification system, Fagan concluded the following
about the stops conducted by the NYPD:
More than 170,000 stops, or 6.41% of all stops (6.71% of nonradio run stops, and 5.26% of radio runs), recorded by NYPD officers between 2004 and 2009 were Unjustified.
For more than 400,000 stops, or approximately 15%, the corresponding UF250 forms do not provide sufficient detail to determine the stops’ legality.36
36 Fagan Decl. ¶ 4(e)-(f). Fagan’s report contained a few statements that incorrectly described his algorithm but did not affect his results. See Def. Mem. at 6; Fagan Decl. ¶¶ 15-16. Fagan’s report also contained what he and plaintiffs acknowledge was one substantive error: he coded Category 5 stops – in which two or more conditionally justified circumstances had been checked – as Indeterminate when they should have been coded as Justified. This improperly increased the percentage of stops that were of “Indeterminate” legality from 15.4% to 24.4% and decreased the number of justified stops from 78.2% to 68.9%. See Def. Mem. at 56; Fagan Decl. ¶ 17.
17

Defendants level many criticisms at Fagan’s classification system,37 including the following: First, the legality of a given stop cannot be determined based solely on the information on the UF-250, since the worksheet is simply a summary of the events and cannot substitute for a proper evaluation of the totality of the circumstances. Second, Fagan’s descriptions of stops as justified, unjustified, or indeterminate constitute inadmissible legal conclusions. Third, Fagan did not incorporate into his analysis the handwritten notes on the worksheets that are made when the box marked “Other” is checked (Category 6), even when those notes provided an explanation of why reasonable suspicion existed. Fourth, Fagan classified Category 3 stops as unjustified even when multiple Side 2 circumstances were checked and Category 6 stops as indeterminate even when the “Other” box was coupled with multiple Side 2 circumstances; these decisions are not supported by the caselaw, which permits some stops that fall into those categories. Fifth, Fagan classified Category 4 stops as unjustified even though courts have permitted stops on the basis of only one “Conditionally Justified” factor. Sixth, Fagan failed to incorporate the location of a stop in determining whether it took place in a high crime area, relying instead on whether the Side 2 high crime area box had been checked, and he failed to incorporate descriptive
37 See Def. Mem. at 2-7. 18

information about the person stopped (such as height, weight, etc.) that might explain why an individual fit the description of a perpetrator of a crime.
2. Analysis of the Accuracy and Effectiveness of the UF-250s and the Stop-and-Frisk Policy
Fagan also sought to determine the extent to which the information on the UF-250s was accurate and complete. This analysis was largely independent of the justified/unjustified classification model described above. The most important elements of Fagan’s analysis involved the trends in the usage of various stop factors and the rates at which stops yielded arrests, summonses, and seizures of weapons and contraband (what he calls the “hit rate”).
For example, Fagan found that police officers check the Side 2 box “Area Has High Incidence of Reported Offense Of Type Under Investigation” in approximately fifty-five percent of all stops, regardless of whether the stop takes place in a precinct or census tract with average, high, or low crime.38 Relatedly, the Side 1 box “Furtive Movements” is checked in over forty-two percent of stops; in 2009 it was checked off in nearly sixty percent of stops.39 However, the arrest
38 See Report at 52-55; Fagan Decl. ¶ 19. The parties have generally referred to this factor as “High Crime Area” and I do the same, although everyone agrees that the abbreviation is not a perfect reflection of the description on the worksheet.
39 See Supp. Rep. at 41. 19

rates in stops where the high crime area or furtive movement boxes are checked off is actually below average.40
Fagan has found that over the study period, “the percentage of stops
whose suspected crime is uninterpretable has grown dramatically from 1.12% in 2004 to 35.9% in 2009.”41 Fagan calculates that “5.37 percent of all stops result in
an arrest,” that [s]ummonses are issued at a slightly higher rate: 6.26 percent
overall,” and that “[s]eizures of weapons or contraband are extremely rare. Overall,
guns are seized in less than one percent of all stops: 0.15 percent . . . . Contraband,
which may include weapons but also includes drugs or stolen property, is seized in 1.75 percent of all stops.”42
Defendants respond to these findings and conclusions with a number
of different criticisms. For example, they argue that the reliance on hit rates
“ignores deterrence as an outcome of a stop, which is perhaps the most successful
40 See Report at 52. 41 Supp. Report at 39. This “uninterpretable” category covers the worksheets for which the box “Specify Which Felony/P.L. Misdemeanor Suspected” is empty, filled in with “fel,” “felony,” “misd,” “misdemeanor,” or contains a text string that does not describe a crime or violation. See id. 42 Report at 63. To determine whether these “hit rates” are low, Fagan compares them to those at roadway check points where cars are stopped at random intervals and concludes that “the NYPD stop and frisk tactics produce rates of seizures of guns or other contraband that are no greater than would be produced simply by chance.” Id. at 65.
20

outcome” and “conflates the legal standards required for stops [i.e., reasonable suspicion] and arrests [i.e., probable cause].”43 Furthermore, “Fagan has no basis and is unqualified to render an opinion as to what might be the appropriate frequency for officers to conduct stops based in part on observed ‘furtive movements’ or on presence in a ‘high crime area’ or under which circumstances it would be proper for an officer to check off these boxes.”44 Finally, Fagan’s “groundless, highly speculative exposition insinuates that NYPD officers routinely do not adhere to the requisite legal standard of [reasonable suspicion],”45 supplants the role of the jury by reaching ultimate legal conclusions, and is “tantamount to an impermissible credibility assessment.”46 III. LEGAL STANDARDS
A. Expert Evidence in General The proponent of expert evidence bears the initial burden of
establishing admissibility by a “preponderance of proof.”47 Rule 702 of the
43 Def. Mem. at 9. 44 Id. at 8. 45 Id. at 7. 46 Id. at 10. 47 Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (discussing Rule 104(a) of the Federal Rules of Evidence). Accord Daubert v. Merrell Dow Pharm. 509 U.S. 579, 592 (1993).
21

Federal Rules of Evidence states the following requirements for the admission of
expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Under Rule 702 and Daubert, the district court must determine
whether the proposed expert testimony “both rests on a reliable foundation and is
relevant to the task at hand.”48 The district court must act as “‘a gatekeeper to
exclude invalid and unreliable expert testimony.’”49 However, “the Federal Rules
of Evidence favor the admissibility of expert testimony, and [the court’s] role as
gatekeeper is not intended to serve as a replacement for the adversary system.”50 In
serving its gatekeeping function, the court’s focus must be on the principles and
methodologies underlying the expert’s conclusions, rather than on the conclusions
48 509 U.S. at 597. Accord Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999).
49 Bickerstaff v. Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999) (quoting Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir. 1999)).
50 Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 562 (S.D.N.Y. 2007) (citation and quotation marks omitted).
22

themselves.51 In assessing an expert’s methodology, courts may consider (1) “whether [the method or theory] can be (and has been) tested,” (2) “whether [it] has been subjected to peer review and publication,” (3) “the known or potential rate of error [associated with the technique] and the existence and maintenance of standards controlling the technique’s operation,” and (4) whether the method has achieved “general acceptance” with the relevant community.52
The courts’ gatekeeping function under Daubert applies not only to “scientific” evidence, but also to proffers of “technical, or other specialized knowledge” under Rule 702.53 The objective of this function is to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”54 However, recognizing that “there are many different kinds of experts, and many different kinds of expertise,” the Supreme Court has emphasized that the reliability inquiry “is a flexible one.”55 Accordingly, the factors “identified in Daubert may or may
51 See Daubert, 509 U.S. at 595. 52 Id. at 592-95. 53 See Kumho Tire, 526 U.S. at 141. 54 Id. at 152. 55 Id. at 150.
23

not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”56 Ultimately, the inquiry “depends upon the particular circumstances of the particular case at issue.”57 In sum, the trial court has “the same kind of latitude in deciding how to test an expert’s reliability . . . as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.”58
In addition, Rule 403 of the Federal Rules of Evidence states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses.”59 Generally, “the rejection of expert testimony is the exception rather than the rule.”60 “The admission of expert

56 57 58 59 60
702.

Id. (quotations omitted). Id. Id. at 152. Id. (quotation marks omitted). Advisory Committee Notes to the 2000 Amendment to Fed. R. Evid.
24

testimony is committed to the broad discretion of the District Court and will not be disturbed on review unless found to be ‘manifestly erroneous.’”61
B. Expert Evidence Regarding Mixed Questions of Fact and Law As a general matter, experts may not testify as to conclusions of law.62
Doing so would usurp the role of the court in determining the applicable legal standards.63 Although Federal Rule of Evidence 704 says that “[a]n opinion is not objectionable just because it embraces an ultimate issue,”64 the Second Circuit has
held that Rule 704 “was not intended to allow experts to offer opinions embodying legal conclusions.”65 However, the Circuit has also explained that “experts may
61 United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008). 62 See United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991). 63 See United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir. 1999). 64 “The reasoning behind Rule 704(a) is that if a witness (especially an expert) provides a solid foundation and explanation on an issue for which the fact-finder needs assistance, the factfinder might be left hanging if the witness cannot cap off the testimony with a conclusion about the ultimate issue to which the expert is testifying. Testimony is a narrative, and jurors can be upset and confused if a witness leaves them with testimony that is less than a full narrative – it is like the joke without the punchline, the mystery without the last page.” 3 Stephen Saltzburg et al., Federal Rules of Evidence Manual § 704.02[1] at 704-3 (10th ed. 2011). 65 United States v. Scop, 846 F.2d 135, 139 (2d Cir. 1988), rev’d in part on other grounds, 856 F.2d 5 (2d Cir. 1988).
25

testify on questions of fact as well as mixed questions of fact and law.”66 In United States v. Scop, the impermissible testimony “deliberately tracked the language of the relevant regulations and statutes [and] was not couched in even conclusory factual statements” whereas in Fiataruolo v. United States, the permissible legal conclusions were accompanied by detailed factual background and explanation that gave the jury “helpful information beyond a simple statement on how its verdict should read.”67 This was true even though the expert shared his legal conclusions regarding the ultimate issue that was presented to the jury. The trial court admonished the jury that the expert’s opinions were “not binding” and that warning, in combination with the factual support that the expert provided, made his testimony admissible.68
C. Reasonable Suspicion to Conduct A Stop “‘[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 probable cause.’”69
66 Fiataruolo v. United States, 8 F.3d 930, 941 (2d Cir. 1993). 67 Id. at 942. 68 See id. 69 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
26

This form of investigative detention has become known as a Terry stop.70 “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.”71 “‘The officer [making a Terry stop] . . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’”72 “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”73
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.”74 “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized
justifications required for different levels of police intrusion were established in People v. DeBour, 40 N.Y.2d 210 (1976).
70 See Terry, 392 U.S. 1. 71 Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 72 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7). 73 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000). 74 Terry, 392 U.S. at 22.
27

suspicion that the person is committing a crime.”75 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”76 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.”77 “[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.”78 IV. DISCUSSION
A. Fagan’s Disparate Treatment Analysis Is Admissible Defendants make one central critique of Fagan’s disparate treatment
model: that it uses the wrong benchmark to measure bias. Fagan’s benchmark relies on local demographic characteristics and local rates of crime. According to defendants and their expert,

75
(1979)).

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

76

Id.

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

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

28

the most logical and reliable method to assess the question of whether police are stopping individuals based on race or on [reasonable articulable suspicion] is to use a benchmark of rates of criminal participation by race. . . . Fagan’s choice of local crime rate as a benchmark to measure possible evidence of bias in NYPD stop-and-frisk activity is a fundamental methodological flaw which robs his analysis of any probative value.79
The Supreme Court has explained that “[n]ormally, failure to include
variables will affect the [regression] analysis’ probativeness, not its admissibility”
but that “[t]here may, of course, be some regressions so incomplete as to be
inadmissible as irrelevant.”80 The question, then, is whether Fagan’s analysis is so
incomplete as to be irrelevant or so misleading as to be unhelpful to the jury. It is
neither.
Fagan explains that he has used the current benchmark in four
published studies, including two that were peer reviewed, and in the study for the
Attorney General’s office.81 One major reason for his use of this benchmark is that
79 Def. Mem. at 11. 80 Bazemore v. Friday, 478 U.S. 385, 400 & n.10 (1986). See Bickerstaff, 196 F.3d at 449 (affirming the exclusion of a regression analysis not because it included “less than all the relevant variables” but because “it omitted the major variables”). 81 See Fagan Decl. ¶ 21 (citing articles in the Journal of Empirical Legal Studies, the Journal of the American Statistical Association, the Fordham Urban Law Journal, and in the book Race, Ethnicity, and Policing: New and Essential Readings). As the Supreme Court explained in Daubert, “publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive,
29

he believes there are no better alternatives: suspect race data, which defendants

argue is the appropriate benchmark, is only known for sixty-two percent of crimes

from 2009 and 2010 (and for fewer crimes before 2009), and the extrapolation of

that data to the thirty-eight percent of unknown suspects “would result in sample selection bias.”82 Although he has used suspect data in previous studies, “the

weight of opinion among researchers who were doing this kind of work” is that his

current benchmark is an improvement on his earlier benchmarks. Furthermore, he

used this benchmark “to test the extent to which the racial composition of a

precinct, neighborhood, or census tract – separate and apart from its crime rate – predicts the stop-and-frisk rate in that precinct, neighborhood, or census tract.”83

Defendants’ proposed benchmark would not permit Fagan to conduct such an

analysis.

Defendants point to Wards Cove Packing Co. v. Atonio84 to support

their argument that because Fagan’s analysis ignores data on who is committing

consideration in assessing the scientific validity of a particular technique or methodology.” 509 U.S. at 594.
82 Fagan Decl. ¶ 27. In 2010, when Fagan produced his report, suspect data was known for an even smaller number of crimes. Updated data was provided to him by defendants in late 2011, nearly a year later. See id. ¶ 25.
83 Id. ¶ 23.
84 490 U.S. 642 (1989).
30

crimes, it “fails to capture the information necessary to support a valid causal inference of racial discrimination.”85 Indeed, the Supreme Court did hold in Wards Cove that the “proper comparison is between the racial composition of the at-issue jobs and the racial composition of the qualified . . . population in the relevant labor market.”86 But Wards Cove did not hold that the statistical evidence at issue should not have been admitted; it held only that a prima facie case of discrimination could not be based “solely on respondents’ statistics”87 showing that Whites were generally hired for high-skilled jobs and non-Whites were hired for low-skilled jobs. The question here is not whether Fagan’s analysis, standing alone, would suffice to establish a claim of disparate treatment; it is simply whether Fagan’s analysis will be helpful to the jury in assessing such a claim.88

85 Def. Mem. at 12.

86 490 U.S. at 650.

87

Id.

88 In addition to these statistics, plaintiffs plan to introduce evidence purporting to show that defendants have failed to comply with the terms of the Daniels settlement; failed to adopt the recommendations made by the RAND Corporation in a study that the City solicited; failed to implement several provisions of the NYPD’s own written Policy Against Racial Profiling; and failed to supervise, train, monitor, and discipline police officers so as to prevent the use of race as a determinative factor in the decision to stop a suspect. See Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment (“Pl. SJ Mem.”) at 13-25.

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Furthermore, Fagan has designed his benchmark in order to capture
the underlying rate at which New Yorkers of different races and ethnicities engage
in behavior that raises reasonable suspicion that crime is afoot – the population
equivalent to what in Wards Cove was called “the racial composition of the
qualified population.” He has simply done so using a method that defendants find inadequate.89
Fagan’s conclusions do not misrepresent his methodology. He does
not claim that Blacks and Hispanics are stopped more frequently than Whites, even
controlling for rates of criminal participation by race. Instead, he concludes that
(1) the racial composition of a local area is a significant, strong, and robust
predictor of stop-and-frisk patterns even after controlling for crime, social
conditions, and police resources; (2) Blacks and Latinos are more likely to be
stopped by NYPD officers, even in low-crime and racially heterogeneous
neighborhoods and when controlling for neighborhood crime rates and police
89 The majority in Wards Cove recognized that when the data of interest – i.e., the racial makeup of the pool of qualified job applicants or, in this case, the racial makeup of the population of New Yorkers engaged in activity that gives rise to reasonable suspicion – is difficult to ascertain, other statistics (including in some instances the racial distribution of the local population) may be “equally probative.” See 490 U.S. at 651 & n.6. It is also worth noting that the Wards Cove disparate impact framework was “flatly repudiated” by Congress when it passed the Civil Rights Act of 1991. Gross v. FBL Fin. Servs., 557 U.S. 167, ___, 129 S. Ct. 2343, 2356 (2009) (Stevens, J., dissenting).
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patrol strength; and (3) Blacks and Hispanics are treated more harshly during stopand-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.90 These are the conclusions of an expert criminologist, based on his methodologically sound analyses. At trial, defendants will be permitted to present evidence and argument that the rates of criminal participation explain Fagan’s findings and that the NYPD is not discriminating on the basis of race or ethnicity. When they cross-examine Fagan, defendants will surely challenge his opinions vigorously. But they may not prevent plaintiffs from presenting those opinions in the first place.
B. Fagan’s Reasonable Suspicion Analysis Is Largely Admissible 1. As a General Matter, Paperwork Is Admissible and Probative Defendants begin their critique of Fagan’s Fourth Amendment
analysis by arguing that the UF-250 database cannot be used to establish the existence of a policy or practice of suspicionless stops:
[A]n analysis of check-boxes on a UF250 form cannot be used to establish that a particular stop was not justified. That determination depends on an analysis of the totality of the circumstances of the stop, a fact-intensive inquiry that amounts to far more than whether a box is checked or not. What cannot be done based on a single form cannot be done in the aggregate,
90 See Fagan Decl. ¶ 4(a)-(d). 33

either.91 Defendants are correct that as a general matter, courts do not rely solely on police paperwork to determine whether a stop was lawful. Paperwork offers only a limited summary of the events preceding a stop and only from the perspective of the police officer. Faced with suppression motions or section 1983 claims, judges and juries listen to live testimony from officers, suspects, and witnesses with first-hand knowledge of the stop. But courts also review the paperwork. Sometimes paperwork corroborates the officer’s testimony; sometimes it undercuts that testimony. Even the absence of paperwork can be probative and admissible.92 In short, while courts rarely, if ever, rely solely on paperwork, courts almost always consider it. Plaintiffs allege a practice of unconstitutional policing that spans half a decade and 2.8 million stops. Taking live testimony on each of these stops is impossible; taking live testimony on some small sample of the stops would present more problems than it would solve, because there would be no way to confidently generalize from the sample to the entire population. Neither party disagrees with this reality. But in the face of this challenge, the parties offer radically different
91 Defendants’ 3/14/12 Letter at 3. 92 See Lloyd v. City of New York, 11 Civ. 756, 2/8/12 Transcript at 19:19 [Docket No. 36].
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solutions: plaintiffs seek to use the database to make general statements about the number of “justified” and “unjustified” stops; defendants seek to exclude the database entirely from the analysis of how often stops are constitutional or unconstitutional.
Defendants are correct that it would be improper to declare certain stops “unjustified” and others “justified” on the basis of paperwork alone without offering any qualifications: a perfectly lawful stop cannot be made unlawful because the arresting officer has done a poor job filling out the post-arrest paperwork; nor can an egregiously unlawful stop be cured by fabrication of the paperwork. Indeed, Fagan has presented evidence – entirely independent of his classification system – that would permit a reasonable juror to conclude that a large number of the UF-250s include incorrect information.
But it would be an injustice to prevent the jury from hearing about the extremely rich and informative material contained in the 2.8 million forms and the 56 million boxes on Sides 1 and 2 of the UF-250s. Thousands of New York City police officers have spent an enormous amount of time documenting, in significant detail, the circumstances that led to the stops at issue in this lawsuit; the NYPD has invested tremendous time, money, and energy in compiling, reviewing, and analyzing that data. Although by no means perfect, this information can surely
35

help the jury to evaluate the parties’ claims and defenses.93 The data will not be
presented in a vacuum – it will be accompanied by the testimony of numerous witnesses and the presentation of much other documentary evidence.94 Plaintiffs
will not be asking the jury to find a pattern of suspicionless stops on the basis of
the UF-250 database alone; just as during the adjudication of a single stop, they
will present “the paperwork” alongside much other evidence. The purpose of the
Federal Rules of Evidence is to help courts “administer every proceeding fairly . . . to the end of ascertaining the truth and securing a just determination.”95 I have no
doubt that those purposes are best served by permitting plaintiffs to present this
evidence to the jury. The remaining question, therefore, is how to ensure that the
presentation is accurate. The short answer is that I will permit generalizations
where they are reasonable interpretations of the data and I will prohibit them where
they are inaccurate and thus have little or no probative value. During trial, Fagan
93 It is worth noting that the defendants are challenging the accuracy and the utility of a form that they helped create and that their officers fill out.
94 Perhaps most significantly, plaintiffs intend to show that there exists a widespread custom or practice of imposing quotas on officer activity such as stops and frisks and the issuance of summons, and to argue that these quotas are a driving force behind the rates of unlawful stops and frisks. See Pl. SJ Mem. at 1213. Plaintiffs intend to produce audio recordings and testimony from commanders and supervisors from multiple precincts and boroughs to support these claims. See id.
95 Federal Rule of Evidence 102. 36

(and defendants’ witnesses) will be required to acknowledge the limitations and shortcomings of the data.
2. Fagan’s Classification System Is Largely Admissible But Must Be Modified Before Being Presented to the Jury
Defendants raise numerous concerns with Fagan’s classification system. I address each of them in turn. My conclusions require plaintiffs to make some limited modifications to the way that Fagan’s opinions are presented to the jury.
a. Expert Legal Opinions Defendants believe that the use of Fagan’s classification system constitutes an inadmissible legal conclusion.96 They cite to Bilzerian for the proposition that expert testimony “must be carefully circumscribed to assure that the expert does not usurp the role of the trial judge in instructing the jury as to the applicable law or the role of the jury in applying that law to the facts before it.”97 Fagan will not be permitted to do either of those things. First, the Court, and not he, will instruct the jury on the law of reasonable suspicion. Fagan will be permitted to describe his analysis of the 2.8 million UF-250s in light of the legal criteria articulated in this Opinion and Order
96 See Def. Mem. at 2-3. 97 926 F.2d at 1294 (quotation and citation omitted).
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and in any other pre-trial instructions that I give to the parties.98 Any statements he makes regarding reasonable suspicion will have to “‘be phrased in terms of adequately explored legal criteria.’”99 As described below in Part IV.B.2.d, he has misinterpreted the relevant caselaw in one important respect and his findings will need to be revised. In addition, his use of the phrase “Indeterminate” with respect to an entire category of stops will not be permitted. His statistical analysis, as revised, is nonetheless admissible.
Second, Fagan’s testimony will not usurp the role of the jury: the ultimate question at issue in this suit is whether defendants have a policy and/or practice of conducting suspicionless stops. Although Fagan’s testimony will be helpful to the jury in resolving that question – as it must be to be admissible – Fagan does not seek and will not be allowed to express an opinion on that question.
Defendants cite to Cameron v. City of New York, in which the Second
98 See Pereira v. Cogan, 281 B.R. 194, 199 (S.D.N.Y. 2002) (permitting expert to discuss the “principles and rules” guiding corporate governance because they were taken directly from previous opinions in the case).
99 In re MTBE Litig., 2008 WL 1971538, at *13 (S.D.N.Y. May 7, 2008) (quoting Fed. R. Evid. 704 Advisory Committee Note (giving the example that “the question ‘Did T have capacity to make a will?’ would be excluded, while the question ‘Did T have sufficient mental capacity to know the nature and extent of his property and to know the natural objects of his bounty and to formulate a rational scheme of distribution?’ would be allowed.”)).
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Circuit explained that in a malicious prosecution suit against police officers, it was clear error to allow prosecutors “to testify to the officers’ credibility and to the existence of probable cause” and that such testimony “violated bedrock principles of evidence law that prohibit witnesses . . . from testifying in the form of legal conclusions.”100 In Cameron, the prosecutors testified that the arresting police officers were credible. They also testified that they believed, based on the totality of the circumstances, that probable cause had in fact existed to arrest Cameron. The Second Circuit held that such testimony was highly prejudicial.101 Cameron thus would preclude Fagan from expressing his opinion about whether defendants’ stop-and-frisks of David Floyd or Lalit Clarkson were lawful and from opining about the credibility of another witness. But plaintiffs do not seek to solicit such testimony. Instead, they seek to solicit testimony that will help a jury of lay people understand the significance of 2.8 million stops and the 56 million boxes describing the indicia of suspicion that led to those stops.
b. Use of the Terms “Justified” and “Unjustified” For the reasons discussed in Part IV.B.1 above, Fagan’s use of the
100 598 F.3d 50, 54, 65 (2d Cir. 2010). 101 See id. at 54. Similarly, in Rizzo v. Edison Inc., 419 F. Supp. 2d 338 (W.D.N.Y. 2005), the court held that an expert could not testify as to whether the police, in a specific case, had probable cause to make an arrest.
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terms “justified” and “unjustified” may improperly suggest that the (il)legality of a stop can be conclusively determined on the basis of paperwork alone. But this danger can be prevented by a limiting instruction to the jury at trial clarifying that the database is necessarily an incomplete reflection of the totality of the circumstances leading to each stop. Fagan will be permitted to explain that if the forms are assumed to be accurate and complete, a certain percentage contain information sufficient to suggest that the stop was lawful and a certain percentage do not contain sufficient information to make such a generalization. The parties will be permitted to introduce evidence and make arguments about when and whether those assumptions regarding accuracy and completeness are appropriate. The parties will inevitably use shorthand to describe these categories – perhaps using phrases such as “apparently justified based on reasonable suspicion” and “apparently unjustified based on the lack of reasonable suspicion” – and it will be the responsibility of the Court and the skilled litigators involved in this case to ensure that the jury is not being presented with misinformation. But the complexity involved in describing the relationship between the worksheets and the stops that they summarize is not a reason to exclude all generalizations about the information that the worksheets contain.
c. Classification of “Other” Stops
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Professor Fagan classified as “Indeterminate” the UF-250s on which “Other Reasonable Suspicion Of Criminal Activity (Specify)” was the only stop circumstance checked off on Side 1, regardless of whether one or more additional circumstances on Side 2 were checked and regardless of what was written in the blank space underneath the “Other” option. More than 400,000 stops, or approximately fifteen percent of all stops, fall into this category.102 According to defendants, in approximately 99.8 percent of the UF-250s on which police officers checked off the “Other” box on Side 1, they also wrote something in the narrative field.103 Fagan chose not to use that narrative information, however, because “what was specified was not something that was usable to us in making a systematic analysis.”104 Fagan explained that many of the narratives were either gibberish (such as the letter X or NA) or uninterpretable abbreviations;105 others listed a crime such as “trespass” or an activity such as “hanging out in the hallway” but, according to Fagan, “that didn’t help us ascertain what the basis of suspicion was
102 See Fagan Decl. ¶ 4(f). 103 3/14/12 Letter at 1. 104 Tr. at 62:11-13. 105 Defendants state that at least some of these abbreviations were defined in the “ReadMe” file that accompanied their production of the database. See 3/14/12 Letter at 2 n.2.
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for that stop.”106 He explains that trying to classify the narratives “would invite a host of potential biases and errors, and would render any conclusions statistically meaningless.”107
At the Court’s request, Fagan submitted a random sample of 1,000 handwritten entries corresponding to the “Other” stop circumstance that he had evaluated.108 The first page of the Narrative List, which contains forty-one entries, is attached to this opinion as Appendix 2. Standing alone, perhaps a dozen of those forty-one narratives suggest that there was reasonable suspicion to make a stop – these include narratives such as “inside bak [sic] w/no pass code (set off alarm),” “appeared to be smoking marij,” “no headlights,” and “person stopped by store manager for suspicion of petit larceny.” Many of the other narratives, however, do not explain why the officer had reasonable suspicion to believe that a crime had occurred, was occurring, or was about to occur. These include narratives such as “hanging out in lobby,” “TAP building,” “waistband,” “crim tress,” “cell phone,” “deft observed in NYCHA building,” “proximty [sic] to crime location.” Although some of these narratives might help establish reasonable suspicion when combined
106 Tr. at 61:15-62:8. 107 Fagan Decl. ¶ 13. 108 See Fagan Supplemental Declaration, Ex. A (“Narrative List”).
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with other factors, standing alone they do not. Particularly noteworthy is the narrative “keyless entry,” which appears
four times in the first forty-one narratives and which defendants say appears, in one form or another, approximately 52,500 times throughout the database.109 According to the City, approximately 50,000 of these narratives were completed by a “housing officer,” which I presume means that they are related to patrols in or around New York City Housing Authority buildings.110 Defendants argue that “Fagan did not account for the significance of this [“keyless entry”] narrative on its own, in conjunction with the place of the stop or in combination with any [additional circumstances] on Side 2, all of which may be sufficient to qualify the stop as Justified.”111 To support this claim, they point to United States v. Pitre, in which Judge Michael Mukasey held that reasonable suspicion existed based on “defendant’s entry into the lobby by catching what otherwise would have been a locked door, and his nervous and confused response when asked whether he lived
109 3/14/12 Letter at 2 n.3. This suggests that “keyless entry” constitutes approximately twelve percent of all “Other” stops and nearly two percent of all stops.
110 This specific aspect of the NYPD’s stop-and-frisk program is the basis of at least one putative class action suit. See Davis v. City of New York, 10 Civ. 699. See also Ligon v. City of New York, 12 Civ. 2274 (addressing stops and frisks in private buildings that are part of Operation Clean Halls.)
111 3/14/12 Letter at 2 n.3. 43

in the building and where he was going.”112 Defendants are mistaken that the narrative keyless entry “on its own” may be sufficient to qualify the stop as justified. As Judge Mukasey explained very clearly, standing on its own a keyless entry is not suspicious behavior:
Pitre claims his keyless entry just behind the unidentified woman was not suspicious behavior because he could easily have been a resident of the building walking just behind another resident, and did not want to let the door close and then stand out in the cold – this was mid-December – fumbling for his keys. True enough, but there was more to the encounter before Pitre was stopped within the meaning of Terry.113 It was only after Pitre was unable to clearly answer the police officers’ question “where are you going?” and he repeatedly touched the pocket of his jacket and his right side as if feeling for contraband, that the police had reasonable suspicion to stop him. This all occurred in the lobby of a building that the police officers knew was the site of frequent drug and firearms activity. By no means did a keyless entry alone, or even keyless entry plus high crime area, raise reasonable suspicion. Also noteworthy is the narrative “Loitering,” which appears ten times in the first eighty-five narratives. Some of these narratives describe the loitering as
112 No. 05 Cr. 78, 2006 WL 1582086, at *4 (S.D.N.Y. June 6, 2006). 113 Id. (emphasis added).
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happening “in lobby,” “in halls,” or “in hallway,” but others contain only that
single word. Although parts of New York State’s prohibition on loitering remain
good law,114 and some of the narratives might plausibly refer to those genuine
violations, the NYPD’s misuse of this statute has a long and ugly history: “[t]he
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.”115 Although “loitering” may at times be an officer’s shorthand way
of describing criminal trespass, its use is often more probative of an unlawful stop
114 See, e.g., Church of the Am. Knights of the Klu Klux Klan v. Kerik, 356 F.3d 197 (2d Cir. 2004) (upholding loitering statute’s ban on public congregations of masked people, except in connection with “a masquerade party or like entertainment,” against a First Amendment challenge); N.Y. Penal L. § 240.35(2) (loitering for the purpose of gambling).
115 Casale v. Kelly, 710 F. Supp. 2d 347, 347 (S.D.N.Y. 2010). Close cousins to the statutes prohibiting loitering were those that outlawed vagrancy. Until the law was struck down in 1967, New York State made it a crime, punishable by six months in jail, to be “a person who, not having visible means to maintain himself, lives without employment.” See Fenster v. Leary, 20 N.Y.2d 309, 311 (1967). See also Michelle Alexander, The New Jim Crow (2010) at 2832 (describing the adoption of criminal vagrancy laws by the Southern states after the Civil War, and then again after Reconstruction, as a mechanism for creating a new pool of cheap and free Black laborers – this time labeled “convicts” and leased out to landowners – to replace the freed slaves).
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than a lawful one. Furthermore, merely naming a penal code violation does not constitute reasonable suspicion.
In short, the narratives accompanying the “Other” stop circumstance are extremely difficult to summarize and Professor Fagan is correct that they cannot be uniformly placed into either his “justified” or “unjustified” categories. However, at least to the extent that other groups of checked boxes are probative of a stop’s (il)legality, it is misleading to say, as he does, that for all 400,000 of these “Other” stops, “the corresponding UF250 forms do not provide sufficient detail to determine the stops’ legality”116 and that these stops are therefore “Indeterminate.” That is to say, many of these forms do provide as much or more detail than the ones that Fagan classifies as “justified.” If the jury assumes that it was filled out accurately, a form that contains the narrative “smoking cigarette strong smell of marijuana”117 would be strong evidence of reasonable suspicion. In contrast, if the jury assumes that it was filled out completely, a UF-250 containing no circumstances beyond the “Other” narrative “licking rolling paper” would be strong evidence that no reasonable suspicion existed.118
116 Fagan Decl. ¶ 4(f). 117 Narrative List at 2. 118 Id. at 8. I do not know if other boxes were checked off on this particular UF-250 and use it only as a hypothetical.
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The UF-250s containing only “Other” on Side 1 are thus not properly described as “Indeterminate.” It is most accurate to say that one cannot fairly generalize about them. In many individual instances, when reviewing a particular UF-250, one can make certain determinations – or at least make determinations with the same or more confidence than one could as to other UF-250s. But one cannot make such determinations in a systematic or general way.
This distinction matters because plaintiffs seek to use the fifteen percent of forms that Fagan calls “Indeterminate” as evidence for their claim that the City is liable for a failure to monitor and supervise. Plaintiffs claim that “[t]he NYPD’s reliance on information provided by officers on UF-250 forms to assess whether stops are based on reasonable articulable suspicion is an ineffective way to regulate the constitutionality of officer stop-and-frisk practices.”119
Fagan may not opine that all 400,000 of the UF-250s on which the only box checked on Side 1 is “Other” are “Indeterminate.” Instead, he may testify that his classification system does not permit him to draw general conclusions about this group of UF-250s. Similarly, defendants cannot make wholesale generalizations about these forms. However, the parties will be permitted to introduce a number of “Other” UF-250s and make arguments to the jury about
119 Fagan Decl. ¶ 4(g). See First Amended Complaint ¶¶ 97-107. 47

what conclusions it should or should not draw from those forms; determining the form and scope of that evidence and argument will be a matter of trial management.
d. Forms Containing Multiple Side 2 Circumstances Defendants’ fourth criticism of Fagan’s reasonable suspicion analysis addresses his classification of some of the UF-250 forms in which two or more Side 2 circumstances are checked off. Fagan labeled Category 3 stops (those with no Side 1 circumstances checked off) as unjustified even when two or more Side 2 circumstances were checked off. He also labeled Category 6 stops (those with only “Other” checked off on Side 1) as indeterminate even when two or more Side 2 circumstances were checked off. Defendants argue that this was improper because “caselaw holds that any number and combination of these ‘additional circumstances’ could support a finding of [reasonable suspicion].”120 Defendants point to a number of cases in which they argue that only Side 2 circumstances existed but that courts nonetheless found reasonable suspicion for a stop.121 Most of the cases, however, do not support defendants’
120 Def. Mem. at 5. 121 See Defendants’ Case Summaries, Ex. A to Declaration of Heidi Grossman (“Grossman Decl.”), defendants’ counsel, in Support of Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 10-14.
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argument because they presented circumstances that are captured by the boxes on Side 1.122 Two of defendants’ cases do, however, lend some support to their
argument. In United States v. McCargo, the Second Circuit found that reasonable
suspicion existed when officers responded to a 911 call for an attempted burglary
at 1:00 am and observed the defendant walking alone in a high crime area 200 feet from the crime scene.123 Defendants point out that all of the circumstances that
clearly fit this fact pattern are on Side 2 – “Report From Victim/Witness,”
“Proximity to Crime Location,” “High Crime Area,” and “Time of Day . . .
Corresponding to Reports of Criminal Activity.” Plaintiffs argue that the Side 1
circumstance “Furtive Movement” is also applicable, since the court found that the
defendant had been staring so intently at one police car that was at the scene of the crime that he did not notice a second police car pulling up along side him.124
Because a Side 1 box is applicable, they argue, McCargo does not undercut
122 See, e.g., United States v. Simmons, 560 F.3d 98 (2d Cir. 2009) (defendant matched a witness’s description of the suspect); United States v. Muhammad, 463 F.3d 115 (2d Cir. 2006) (same); People v. Sierra, 83 N.Y.2d 928 (1994) (police saw defendant engaged in actions indicative of a drug transaction).
123 464 F.3d 192 (2d Cir. 2006). 124 See Corrections to Summaries of Cases Listed in Grossman Declaration (“Pl. Case Summaries”), Ex. D to Declaration of Darius Charney (“Charney Decl.”), plaintiffs’ counsel, in Support of Plaintiffs’ Motion in Opposition to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 7.
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Fagan’s classification of Category 3 worksheets as “unjustified.” This is a rare
instance in which plaintiffs – whose expert strongly criticizes the NYPD’s use of
“furtive movement” to justify stops and (perhaps fairly) derides the term as so ambiguous as to be “almost meaningless”125 – are seeking to describe what might
arguably be considered an innocent action as furtive and suspicious. Like Judge
Richard Posner, I am skeptical that staring intently can constitute suspicious behavior,126 but I recognize that the Second Circuit considered McCargo’s staring
in its reasonable suspicion analysis. Although the Circuit never used the term
“furtive,” McCargo’s stare could only be classified on the UF-250 under either the
“Furtive Movement” box or under one of the two “Other” boxes. This case
therefore arguably supports defendants’ criticism of Fagan’s Category 3.
The second case cited by defendants that arguably supports their claim
that two or more Side 2 factors can indicate reasonable suspicion even in the
125 See Report at 52. 126 “Gilding the lily, the officer testified that he was additionally suspicious because when he drove by Broomfield in his squad car before turning around and accosting him he noticed that Broomfield was ‘star[ing] straight ahead.’ Had Broomfield instead glanced around him, the officer would doubtless have testified that Broomfield seemed nervous or, the preferred term because of its vagueness, ‘furtive.’ 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.” United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.).
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absence of a Side 1 factor is Sutton v. Duguid, in which Judge Joseph Bianco of the Eastern District of New York found that reasonable suspicion existed to stop Sutton “based on: (1) the observed narcotics activity in a high crime area; (2) plaintiff’s proximity to the individual identified as involved in the sale of narcotics; and (3) plaintiff’s effort to walk away from the commotion as soon as it broke out.”127 As defendants point out, “High Crime Area,” “Proximity to Crime Location,” and “Changing Direction at Sight of Officer/Flight” are all Side 2 circumstances. Plaintiffs again argue that Sutton’s sudden movement away from the commotion could be characterized as a Furtive Movement on Side 1. Again, I am skeptical of the argument, although it is plausible.
Illinois v. Wardlow, however, is more problematic for Fagan’s Category 3 than any of the cases cited by defendants. There, the Supreme Court held that a defendant’s “presence in an area of heavy narcotics trafficking” and “unprovoked flight upon noticing the police” were together sufficient to raise reasonable suspicion and justify a stop.128 These two factors align most closely with the Side 2 circumstances “High Crime Area” and “Changing Direction at Sight of Officer/Flight.” The Supreme Court did not base its decision on any other
127 No. 05 Civ. 1215, 2007 WL 1456222, at *7 (E.D.N.Y. May 16, 2007). 128 See Wardlow, 528 U.S. at 124.
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indicia of suspicion, although it did note that headlong flight is the “consummate
act” of nervous, evasive behavior. Again, a police officer might in this instance
check the Side 1 “Furtive Movement” box, although the far more appropriate
boxes would be the ones on Side 2.
In combination, McCargo, Sutton, and Wardlow suggest that stops
may be lawful even if they are based only on factors described on Side 2 of the
UF-250s. It is also clear, however, that some combinations of Side 2 factors would
be insufficient to establish reasonable suspicion. The two most frequent Side 2
factors were “High Crime Area” and “Time of Day, Day Of Week, Season
Corresponding To Reports Of Criminal Activity,” which were checked off on 55.4% and 34.1% of all worksheets.129 Reasonable articulable suspicion does not
exist merely on the basis of those two factors: many people live in high crime areas
and many crimes occur at night; simply being in a high crime area at night is not suspicious behavior.130 It is very difficult to generalize, therefore, about UF-250s
129 See Fagan Report at 51. 130 See United States v. McCrae, No. 07 Cr. 772, 2008 WL 115383 (E.D.N.Y. Jan. 11, 2008) (Gleeson, J.) (suppressing a gun seized during a stop that took place at around 3:00 a.m. in a high crime area because there were no additional factors giving rise to reasonable suspicion); United States v. Doughty, No. 08 Cr. 375, 2008 WL 4308123 (S.D.N.Y. Sept. 19, 2008) (Patterson, J.) (suppressing a gun seized during a stop that took place after 10:00 p.m. three blocks from a high crime building, even though the defendant engaged in a readjustment of his waistband that suggested the presence of a weapon to the
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that contain two or more Side 2 factors but no Side 1 factors. The importance of this complexity is mitigated in part because, as
plaintiffs point out, police officers have marked very few UF-250s with no Side 1 factors and two or more Side 2 factors. Of the 2.8 million worksheets, only 7,295 – or approximately 0.26% – fit this description.131 “Thus Fagan’s inclusion of these stops in this category, even if erroneous, had no meaningful impact on the overall results of his analysis, and therefore would not warrant exclusion.”132 At trial, these few stops will be included in the category of stops for which generalization is impossible.
The larger problem, however, relates to stops in Category 6 in which only the “Other” circumstance was checked on Side 1 and two or more circumstances were checked on Side 2. There are 161,130 of these stops, which make up 5.7% of all stops. Fagan marked them as “Indeterminate.” As I discussed above, the narratives on the first page of Fagan’s random sample exemplify the
police). For two of the many pieces of scholarship criticizing the “high crime area” doctrines, see Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 Fla. L. Rev. 391, 405 (2003) and David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 677-78 (1994). And for a trenchant critique of the state of Fourth Amendment jurisprudence in the War on Drugs, see Alexander at 61-73.
131 See Pl. Mem. at 7-8 and Defendants’ 3/14/12 Letter. 132 Pl. Mem. at 7.
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reason why categorization of these stops is difficult. One narrative reads “dismatling [sic] 95 Honda DLJ6727.”133 Without more, this information would not raise reasonable suspicion – mechanics and car owners regularly dismantle cars. However, if the car’s alarm was going off and the individual was unable to give a clear answer to the officers’ questions, then the two additional circumstances – best categorized by the Side 2 boxes “Sights and Sounds of Criminal Activity, e.g., Bloodstains, Ringing Alarms” and “Evasive, False or Inconsistent Response To Officer’s Questions” – in combination with the “Other” narrative likely would give rise to reasonable suspicion.134 Or, to take another example, “Evasive, False or Inconsistent Response To Officer’s Questions” and “Changing Direction At Sight Of Officer/Flight” might sufficiently contextualize one of the many “keyless entry” notations to suggest that reasonable suspicion existed in that case as well.135
Some of the “Other” narratives, however, probably would not suggest reasonable suspicion even when combined with two Side 2 factors. I doubt that the narrative “loitering” indicates reasonable suspicion, even when combined with
133 Narrative List at 1. 134 “Sights and Sounds” was checked off in 1.8% of all stops and “Evasive Response” was checked off in 16% of stops. See Report at 51. 135 “Changing Direction” was checked off in 24.7% of stops. See id.
54

“High Crime Area” and “Time of Day,” the two most common Side 2 factors. The same could be said for the many “keyless entry” narratives – as Judge Mukasey noted in Pitre, the fact that the defendant entered a building lobby in a high crime area without a key on a cold December night was not in itself suspicious behavior.136
In short, it is very difficult to generalize about the worksheets that contain only an “Other” factor on Side 1, even if two or more “additional circumstances” are checked off on Side 2. Defendants will surely be able to present to the jury many individual forms in this category that do appear to indicate that reasonable suspicion existed; plaintiffs will likely be able to present many that suggest that no reasonable suspicion existed. I find that admitting expert testimony that makes generalizations about the level of reasonable suspicion indicated by the forms in this group would mislead the jury. The parties’ experts will be permitted to testify about verifiable aspects of these forms (e.g., how often certain Side 2 boxes are checked or how often the phrase “keyless entry” or “loitering” appears) and counsel will be able to make arguments about what inferences and conclusions the jury should draw from this data.
e. Forms Containing Only One “Conditionally Justified” Factor
136 2006 WL 1582086, at *4. 55

Defendants point to a number of cases in which, they argue, courts have found stops lawful even though only one Side 1 “conditionally justified” indicia of suspicion was present. Over 137,000 worksheets were filled out with only one of these factors and they constitute the large majority of the stops in Fagan’s “unjustified” category. Defendants’ reading of the caselaw, however, is incorrect.
Plaintiffs have properly identified the components of the various courts’ decisions that were excluded from defendants’ case summaries and that, if reflected on the arresting officer’s UF-250, would have placed the stops in Fagan’s “justified” category.137 Even People v. Fernandez, which plaintiffs appear willing to concede arguendo because it would impact the classification of very few worksheets, does not support defendants’ argument.138 In Fernandez, the New York Court of Appeals held that a police officer could lawfully stop a person for carrying what the officer had reason to believe was a “gravity knife” based on the “identifiable characteristics of the knife.”139 The possession of such knives is per se illegal because of the ease with which they can be used for violence.
137 See Pl. Case Summaries at 1-3, responding to the cases in Defendants’ Case Summaries at 1-5.
138 16 N.Y.3d 596 (2011). See Pl. Mem. at 8. 139 16 N.Y.3d at 599.
56

Defendants argue that Fernandez therefore justifies stops solely on the basis of the Side 1 box “Carrying Objects In Plain View Used in Commission of Crime, e.g., Slim Jim/Pry Bar, etc.,” which Fagan deemed “Conditionally Justified,” not “Justified.” But unlike gravity knives, it is not per se illegal to possess slim jims or pry bars. Possession of those items is not in itself suspicious behavior that justifies a stop because there are many lawful uses of those items. An officer who observes what he believes to be an illegal weapon should also check the boxes “Suspicious Bulge/Object,” “Actions Indicative Of Engaging In Violent Crimes,” and/or “Other Reasonable Suspicion.” Fernandez does not support the argument that a person can be stopped based solely on the fact that he is carrying a pry bar or a slim jim.
f. Location and Time of Stops Defendants’ final criticism of Fagan’s classification system is that it fails to incorporate the location of the stop and other writings on the form (beyond those in the line under the circumstance “Other”). Officers are required to note on the worksheet the address or intersection where the stop takes place and defendants argue that this information may support a finding of reasonable suspicion if the location is in a high crime area; this is the case, they argue, even if the officer did not check off “High Crime Area” on the worksheet.140 During certain years, the
140 See Def. Mem. at 4. 57

entirety of the 73rd and 75th Precincts were classified as high crime “impact zones.”
Defendants argue that “High Crime Area” should be imputed to all stops from
those precincts during those years, converting approximately 33,000 stops from
“unjustified” to “justified.”141 That number would grow significantly if stops in
other impact zones were treated similarly.
Professor Fagan provides a reasonable explanation of why he chose
not to impute that category onto worksheets on the basis of location:
[W]e assumed and based our decision on the fact that officers were trained to check all [boxes] that applied. And we assumed that if, in fact, the stop took place in a high crime area, they would have checked the box accordingly. So we really didn’t want to second guess the decision of the officer.
Second, we didn’t want to impose our decision or criteria about what’s a high crime area versus a low crime area. I think as you can see from some of our charts, crime distributes very widely across the city from very low crime rates in some places to high crime rates in other places. We didn’t know what the cut-off was. We couldn’t say how officers are trained to think about high crime area. Was it very high in the last month or week? What constitutes high? Three [] robberies [? T]en total felony crimes? Does it include felonies plus misdemeanors?142
Fagan’s explanation is certainly reasonable. Rather than try to
141 See Reply Memorandum of Law in Further Support of Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan (“Reply Mem.”) at 3.
142 Tr. at 82:18-83:7. 58

develop his own complex formula for determining what is or is not a high crime area for the purpose of reasonable suspicion, he deferred to the police officers’ simple binary decision to check or not to check the “High Crime Area” box. When evaluating reasonable suspicion in an individual suppression hearing or Section 1983 case, such blind deference is inappropriate and officers should be required to support their claims with evidence.143 But when trying to generalize about 2.8 million stops, Fagan’s choice was reasonable. Defendants correctly note some of the drawbacks of that methodological decision but, at best, their arguments impact the weight of Fagan’s opinion, not its admissibility. The same is true of his decision not to use the time of a stop as a substitute for the Side 2 circumstance “Time of Day, Day of Week, Season Corresponding To Reports Of Criminal Activity” and his decision not substitute any notation about a suspect’s height/weight/tattoos in place of the Side 1 circumstance “Fits Description.”144 If police officers chose not to check those boxes, it was reasonable of Fagan not to second guess that choice.
143 “The citing of an area as ‘high-crime’ requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity. District courts must carefully examine the testimony of police officers in cases such as this, and make a fair and forthright evaluation of the evidence they offer, regardless of the consequences.” United States v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000).
144 See Defendants’ 3/14/12 Letter at 2. 59

3. Fagan’s Opinions Regarding the Results of the Stop-andFrisk Policy Are Admissible
Finally, defendants argue that Fagan makes speculative and conjectural opinions about the process by which officers complete the UF-250 and about the outcomes of the stops. Specifically, defendants object to Fagan’s hypotheses regarding the frequent use of “high crime area” and “furtive movements” on the UF-250s and his use of a “hit rate” in assessing the effectiveness and legality of the NYPD’s stop-and-frisk policy. Neither argument has merit.
Fagan notes that officers check the “High Crime Area” box in approximately fifty-five percent of all stops, regardless of whether the stop takes place in a precinct or census tract with average, high, or low crime.145 Defendants believe that this analysis is “misleading” because there are high crime pockets even in low crime precincts and “it is not unreasonable for officers to check this box when a stop occurs” in such an area.146 Fagan rebuts defendants’ argument by noting that his analysis is true at the census tract level as well, and plaintiffs
145 Report at 52-55; Fagan Decl. ¶ 19. The fact that Fagan assumed the veracity of forms (including the officers’ use of “high crime area”) for one part of his analysis does not preclude him from then testing and critiquing that assumption in another part of his analysis. When lawyers do this, they frequently use the term arguendo.
146 Def. Mem. at 8-9. 60

correctly note that this is simply a disagreement over the expert’s conclusions, not
his methodology.147 The same is true for Fagan’s observation that when the “High
Crime Area” and “Furtive Movement” boxes are checked off, police officers are
less likely to make an arrest than when those boxes are not checked off.148 Fagan
hypothesizes that this result may occur because officers are marking these two
“broad and subjective” boxes after conducting stops for which they actually did not
have objective reasons to be suspicious. Or, as retired NYPD officer Peter
Mancuso said at a 2010 New York City Bar Association forum, “[f]urtive
movements . . . tells me that the cops are out there winging it a bit . . . they’re
really not looking for individuals.”149 Defendants object to this hypothesis because
147 Pl. Mem. at 11. 148 See Report at 52. Fagan believes that “[t]he broad and indiscriminate use of furtive movement or high crime area – the two most commonly cited factors – and the loss of crime detection efficiency in cases where either are checked off – raises doubts about whether stops based on these factors are valid markers of [reasonable suspicion]. Recall that the stop factors are entered onto the UF-250 form after the stop is completed. If the initial basis for suspicion leading to the stop was thin, then adding on either of these subjective and ill-defined factors, both of which are constitutionally problematic, provides a post hoc justification to a stop that was most likely erroneous with respect to whether crime was afoot, and might have been based on a threshold of suspicion that otherwise would have been legally insufficient to justify the stop.” Id. at 53-55. 149 Id. at 53 (quoting John Jay College of Criminal Justice, The New York Police Department’s Stop and Frisk Policies (transcript) at 40-41 (Mar. 9, 2010)).
61

“[e]xpert testimony offering ‘interpretations of conduct or views as to the motivation of parties’ has been excluded on the grounds that it invades the province of the jury and addresses matters that jurors are capable of understanding on their own” and that it constitutes “an impermissible credibility assessment” of the police officers who fill out the forms.150 But the testimony excluded in Rezulin was (a) the opinion of an “expert” on what he believed constituted ethical medical behavior151 and (b) speculation about the motivations of individual defendants on the basis of what those defendants had said and written.152 This is entirely different from Fagan’s proposed testimony, in which he offers hypotheses regarding the causes of trends that he has observed by performing statistical analyses of complicated data sets. Unlike in Rezulin, the expert’s testimony will not address “‘lay matters which a jury is capable of understanding and deciding without the expert’s help.’”153 Fagan is indisputably a criminology expert who is qualified to
150 Def. Mem. at 9-10 (quoting In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 541 (S.D.N.Y. 2004)).
151 See Rezulin, 309 F. Supp. 2d at 543. 152 See id. at 545-46. 153 Id. at 546 (quoting Andrews v. Metro North Commuter R. Co., 882 F.2d 705, 708 (2d Cir. 1989)). Fagan’s observation that over the study period, “the percentage of stops whose suspected crime is uninterpretable has grown dramatically from 1.12% in 2004 to 35.9% in 2009” is similarly unproblematic. Supp. Report at 39.
62

offer opinions about trends that he observes in the interactions between the police and civilians; he is not passing judgment about the credibility of any one witness but is instead offering theories about what kinds of behavior might lead to certain results that are evident in the data. Defendants may dispute these conclusions but they may not prevent their admission.
Defendants also object to Fagan’s reliance on “hit rates.” He calculates that “5.37 percent of all stops result in an arrest,” that [s]ummonses are issued at a slightly higher rate: 6.26 percent overall,” and that “[s]eizures of weapons or contraband are extremely rare. Overall, guns are seized in less than one percent of all stops: 0.15 percent . . . Contraband, which may include weapons but also includes drugs or stolen property, is seized in 1.75 percent of all stops.”154
Defendants argue that Fagan “conflates the legal standards required for stops [i.e., reasonable suspicion] and arrests [i.e., probable cause].”155 While of course it is true that “‘reasonable suspicion’ is a less demanding standard than
154 Report at 63. To determine whether these “hit rates” are low, Fagan compares them to those at roadway check points where cars are stopped at random intervals and concludes that “the NYPD stop and frisk tactics produce rates of seizures of guns or other contraband that are no greater than would be produced simply by chance.” Id. at 65.
155 Def. Mem. at 9. 63

probable cause,”156 the requisite level of confidence that officers must have in either event relates to the same question: whether or not crime is afoot. If the underlying data is reliable, arrest or “hit rates” are probative – although perhaps not dispositive – of whether or not officers are making stops and arrests on the basis of reasonable suspicion and/or probable cause. This analysis is properly facilitated by comparing the hit rates based on “reasonable suspicion” to hit rates based on random stops.157
The City argues that the use of hit rates “ignores deterrence as an outcome of a stop, which is perhaps the most successful outcome,” and posits as its example of such deterrence a scenario in which an officer “stops a person for casing an individual or property, before such person has an opportunity to commit an offense” and thereby prevents the commission of a crime.158 However, in such a scenario, where the suspect has already taken significant steps towards the
156 Wardlow, 528 U.S. at 123. 157 See United States v. McCrae, No. 07 Cr. 772, 2008 WL 115383 (E.D.N.Y. Jan. 11, 2008) (“I am mindful that reasonable suspicion cannot be captured solely by resort to probabilities . . . [but] I find it quite significant that [the police officer’s] methodology for generating ‘suspicion’ demonstrated at best a success rate of approximately 3.33%, well below the success rate of the suspicionless roadblocks in Edmond). See also City of Indianapolis v. Edmond, 531 U.S. 32 (2000); Edmond v. Goldsmith, 183 F.3d 659, 666 (7th Cir. 1999). 158 Def. Mem. at 9 & n.16.
64

commission of a crime, there would in fact be probable cause to arrest that suspect
for an “attempt” crime. It is notable that the City acknowledges that “deterrence”
is a goal of its stop-and-frisk policy. Deterrence is of course a crucial aspect of law
enforcement (and criminal justice policy in general) and it may lawfully be pursued
in many different ways – more cops walking their beats, better detective work, etc. But it may not be accomplished through the use of unlawful stops.159 A Terry stop
may only be used when the police have reasonable suspicion that a crime has taken,
is taking, or is about to take place.
Plaintiffs have submitted a sworn affidavit from New York State
Senator Eric Adams, who retired as a police captain after more than twenty years
of service in the NYPD. Senator Adams says that in July 2010 he met with
Defendant Police Commissioner Raymond Kelly to discuss proposed legislation
regarding stop and frisk practices and that during the meeting
Commissioner Kelly stated that the NYPD targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less
159 See Brown v. Texas, 443 U.S. 47, 52 (1979) (“The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it.”).
65

likely to carry weapons.160 Commissioner Kelly denies Senator Adams’ claim: At that meeting I did not, nor would I ever, state or suggest that the New York City Police Department targets young black and Latino men for stop and frisk activity. That has not been nor is it now the policy or practice of the NYPD. Furthermore, I said nothing at the meeting to indicate or imply that such activity is based on anything but reasonable suspicion. At the meeting, I did discuss my view that stops serve as a deterrent to criminal activity, which includes the criminal possession of a weapon.161 Although by no means dispositive of the question, Fagan’s finding that guns are seized in approximately 0.15% of all stops is at least relevant to an assessment of Commissioner Kelly’s claim that the NYPD’s policy is a deterrent to the illegal possession of weapons. Fagan’s findings related to seizure of other contraband and to the arrest and summons rates are also admissible, even if defendants object strenuously to the conclusions that plaintiffs will ask the jury to draw from those statistical observations.
160 Affidavit of Eric Adams, Ex. 10 to Declaration of Darius Charney in Support of Plaintiffs’ Motion for Class Certification, ¶ 5.
161 Declaration of Raymond W. Kelly, Ex. A to Declaration of Heidi Grossman in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification, ¶¶ 3-4.
66

V. CONCLUSION For the reasons explained above, defendants' motion is granted in part
and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 178].
SO ORDERED:

Dated:

Apri116,2012 New York, New York

67 


J =Justified
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APPENDIX 2: PAGE 1 OF “OTHER” NARRATIVE LIST
MISSING FRONT PLATE HANGING OUT IN LOBBY PROS PRONE LOCATION TAP BUILDING BURG PATTERN INVESTIGATION INSIDE BAK W/NO PASS CODE (SET OFF ALARM) APPEARED TO BE SMOKING MARIJ NO HEADLIGHTS LOITERING IN LOBBY WAISTBAND XNE KEYLESS ENTRY LOITERING ON 2FL HALLWAY DISMATLING 95 HONDA DLJ6727 CRIM TRESS KEYLESS ENTRY WAS NOT OWNER DID NOT KNOW OWNER. OPEN DOOR 10-11 PLATES DID NOT MATCH VEHICLE XNE KEYLESS ENTRY CELL PHONE UNREGISTERED VEHICLE LEANING ON LOBBY HALL PERSON STOPPED BY STORE MANAGER FOR SUSPICION OF PETIT LARCENY 10-39 LEAVING BUILDING 10-11 REAR ENTRY REPORT FROM WITNESS NO FRONT PLATE ON VEHICLE/TRUNK LOCK BROKEN FORD PROBE PINK ECK 87D2 VENDING ON STREET CRIM TRES BANGING OUT OUTSIDE ON BALCONY OF NYCHA BUILDING DEFT OBSERVED IN NYCHA BUILDING THROWING TRASH, YELLING TRESPASS LOITERING KEYLESS ENTRY LOITERING IN HALLS PROXIMTY TO CRIME LOCATION
70

- Appearances -
For Plaintiffs:
Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 277-5850
Philip Irwin, Esq. Eric Hellerman, Esq. Gretchen Hoff-Varner, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1190
For Defendants:
Heidi Grossman Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084
71

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------x
DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
- against ­
i
i
THE CITY OF NEW YORK; COMMISSIONER RAYMOND KELLY, individually a~d in his official capacity; MAYOR MICHAEL BLOOMBERG, individually and in his official capacity;
i
NEW YORK fITY POLICE OFFICER RODRIGUEZ, in his official capacity; NEW YORK fITY POLICE OFFICER GOODMAN, in his official capacity; NEW YORK CITY POLICE OFFICER SALMERON, Shield #7116, in her individual capacity; NEW YORK CITY POLICE OFFICER PICHARDO, Shield #00794, in his individual capacity; NEW YORK CITY POLICE SERGEANT KELLY, Shield #92145, in his individual capacity; NEW YORK CITY POLICE OFFICER JOYCE, Shield #31274, in his individual capacity; NEW YORK CITY POLICE OFFICER HERNANDEZ, Shield #15957, in his ~ndividual capacity; NEW YORK CITY 1i'OLICE OFFICER MORAN, in hi~ individual capacity; and NEW YORK CITY POLICE OFFICERS JOHN AND JfNE DOES,
i i
Defendants.

.DUOSDCCUSMDENNYT
ELECIRO~ICAlll'" 'FII..EJ)
.DOC If;; _._ _ _ _ __ DATE FILED: 5*/ Ib/1~
OPINION AND ORDER 08 Civ. 1034 (SAS)

-------------------------------x 


1 


SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
Police officers are permitted to briefly stop any individual, but only upon reasonable suspicion that he is committing a crime.1 The source of that limitation is the Fourth Amendment to the United States Constitution, which 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 Supreme Court has explained that this “inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”2
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.”3 Safeguarding this right is quintessentially the role of the judicial branch.

1 See Terry v. Ohio, 392 U.S. 1, 30 (1968).

2

Id. at 9.

3 Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891).

2

No less central to the courts’ role is ensuring that the administration of
law comports with the Fourteenth Amendment, which “undoubtedly intended not
only that there should be no arbitrary deprivation of life or liberty, or arbitrary
spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights.”4
On over 2.8 million occasions between 2004 and 2009, New York
City police officers stopped residents and visitors, restraining their freedom, even if only briefly.5 Over fifty percent of those stops were of Black people and thirty percent were of Latinos, while only ten percent were of Whites.6 The question
presented by this lawsuit is whether the New York City Police Department
(“NYPD”) has complied with the laws and Constitutions of the United States and
the State of New York. Specifically, the four named plaintiffs allege, on behalf of
themselves and a putative class, that defendants have engaged in a policy and/or
4 Yick Wo v. Hopkins, 118 U.S. 356, 367 (1886) (citation and quotation omitted). “Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.” Id. at 373-74.
5 As the Supreme Court has explained, being stopped and frisked “must surely be an annoying, frightening, and perhaps humiliating experience.” Terry, 292 U.S. at 25.
6 The parties use the terms Hispanic/Latino interchangeably. 3

practice of unlawfully stopping and frisking people in violation of their Fourth Amendment right to be free from unlawful searches and seizures and their Fourteenth Amendment right to freedom from discrimination on the basis of race.
Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht are Black men who seek to represent a class of similarly situated people in this lawsuit against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and unnamed police officers. On behalf of the putative class, plaintiffs seek equitable relief in the form of (1) a declaration that defendants’ policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction mandating significant changes in those policies, practices, and/or customs.
This case presents an issue of great public concern: the disproportionate number of Blacks and Latinos, as compared to Whites, who become entangled in the criminal justice system. The specific claims raised in this case are narrower but they are raised in the context of the extensively documented racial disparities in the rates of stops, arrests, convictions, and sentences that continue through the present day. Five nonprofit organizations have filed an amicus brief with this Court arguing that the NYPD’s stop and frisk practices are
4

harmful, degrading, and demoralizing for too many young people in New York7
and twenty-seven of the fifty-one members of the New York City Council have
filed a second amicus brief arguing that the practices are a citywide problem that
“reinforce[] negative racial stereotypes” and have created “a growing distrust of the NYPD on the part of Black and Latino residents.”8
The NYPD’s stop and frisk program was first presented to this Court over thirteen years ago, in a class action entitled Daniels v. City of New York.9
That case was resolved in 2003 through a settlement that required the City to adopt
several remedial measures intended to reduce racial disparities in stops and frisks.
Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy;
revised the form that police fill out when they conduct a stop so that the encounters
would be more accurately documented; and instituted regular audits of the forms,
among other measures.
7 “The fact that being stopped is simply a part of life for a young person of color in New York City can only have profound psychological and economic impacts on already disadvantaged communities.” Amicus curiae Brief of the Bronx Defenders, Brotherhood/Sister Sol, the Justice Committee, Picture the Homeless, and Streetwise and Safe in Support of Plaintiffs’ Motion for Class Certification at 8-9.
8 Brief of Amicus Curiae the Black, Latino, and Asian Caucus of the Council of the City of New York in Further Support of Plaintiffs’ Motion for Class Certification at 3.
9 99 Civ. 1695 (SAS). 5

In 2008, after the Daniels settlement expired, plaintiffs brought this
action, alleging that defendants had failed to reform their policies and practices. In
2011, after examining the parties’ voluminous submissions, I denied defendants’
motion for summary judgment.10 In April of this year, upon another voluminous
record, I granted in part and denied in part defendants’ motion to exclude the
testimony of Jeffrey Fagan, plaintiffs’ statistics and criminology expert.11
Plaintiffs now move for certification of the following class:
All persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.12
Because plaintiffs satisfy the legal standard for class certification,
their motion is granted.
10 See Floyd v. City of New York (“Floyd I”), 813 F. Supp. 2d 417 (S.D.N.Y. 2011), partial reconsideration granted, 813 F. Supp. 2d 457 (S.D.N.Y. 2011).
11 See Floyd v. City of New York, No. 08 Civ. 1034, 2012 WL 1344514 (S.D.N.Y. Apr. 14, 2012) (“Floyd II”).
12 See Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (“Pl. Mem.”) at 1.
6

II. LEGAL STANDARD
A. Rule 23(a)
Rule 23 of the Federal Rules of Civil Procedure 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.13 “[C]ertification is proper
only if the trial court is satisfied, after rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.”14 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.”15
Even before the Supreme Court clearly articulated this standard in its
13 See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008) (“Teamsters”). In full, Rule 23(a) reads: “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.”
14 Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart”), 131 S. Ct. 2541, 2551 (2011) (quotation omitted).
15 Id. “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

2011 Wal-Mart decision, the Second Circuit had “required district courts ‘to assess
all of the relevant evidence admitted at the class certification stage’” and to apply
“the preponderance of the evidence standard” when resolving factual disputes relevant to each of the Rule 23 requirements.16 Wal-Mart has adopted that standard
and it remains the case that at the class certification stage, “a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement.”17 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.”18
“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.”19 Sufficient numerosity can be presumed at a level of forty members or more,20 and
16 Teamsters, 546 F.3d at 202 (quoting Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.) (“IPO”), 471 F.3d 24, 42 (2d Cir. 2006)).
17 Shahriar v. Smith & Wollensky Restaurant Group, Inc., 659 F.3d 234, 251 (2d Cir. 2011) (quotation omitted).
18 IPO, 471 F.3d at 41. 19 Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir. 2007). 20 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
8

courts do not require “evidence of exact class size or identity of class members to satisfy the numerosity requirement.”21
Commonality requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury,’” and the claims “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.”22
In this context, “the commonality and typicality requirements of Rule 23(a) tend to merge.”23 “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.’”24 Rather than focusing on the precise nature of plaintiffs’ injuries, the typicality requirement may be satisfied where “injuries derive from a unitary course of conduct by a single

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

22 Wal-Mart, 131 S. Ct. at 2551 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 157 (1982)).

23

Id.

24 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

system.”25 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”26 or the named plaintiff’s claim is subject to “specific factual defenses” atypical of the class.27
The question of adequacy “entails inquiry as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.”28
Some courts have added an “implied requirement of ascertainability”29 to the express requirements of Rule 23(a) and 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.”30 However, because notice is not obligatory and because the relief sought is injunctive rather than compensatory, “it is not clear that the implied requirement of

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

26
2006).

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

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

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

29 IPO, 471 F.3d at 30.

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

10

definiteness should apply to Rule 23(b)(2) class actions at all.”31 As stated in the Advisory Committee Note to Rule 23(b)(2), it was designed to cover “actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”32
B. Rule 23(b)(2) 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).”33 Plaintiffs seek certification under Rule 23(b)(2), which applies where “the party opposing the class has 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.”
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

31
(2011).
32
33
2008).

William B. Rubenstein et al, Newberg on Class Actions § 3:7 at 1-172 Fed. R. Civ. P. 23 1966 Advisory Committee Note (emphasis added). McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.
11

“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.”34 III. FACTS
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.35
A. The NYPD’s Stop and Frisk Program It is indisputable that the NYPD has an enormous stop and frisk
program. There were 2.8 million documented stops between 2004 and 2009. Those stops were made pursuant to a policy that is designed, implemented, and monitored by the NYPD’s administration. In support of their motion for summary judgment, defendants cited numerous examples of NYPD policies and practices
34 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”)).
35 See IPO, 471 F.3d at 41. 12

regarding training,36 monitoring,37 supervision,38 and discipline in order to rebut
plaintiffs’ allegations of municipal liability for widespread constitutional violations
during stops and frisks.39 That evidence shows that the stop and frisk program is
centralized and hierarchical.
Decisions about the policy are made at the highest levels of the
department.40 At the regular CompStat41 meetings involving the NYPD’s top
36 See Defendants’ Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Def. 56.1”) ¶¶ 191-246; Plaintiffs’ Reply Statement of Undisputed Facts Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶¶ 191-246; Plaintiffs’ 56.1 Additional Facts (“PAF”) ¶¶ 166-198.
37 See Def. 56.1 ¶¶ 2-59; Pl. 56.1 ¶¶ 2-59; PAF ¶¶ 1-54.
38 See Def. 56.1 ¶¶ 247-301; Pl. 56.1 ¶¶ 247-301; PAF ¶¶ 159-165. Cf. PAF ¶¶ 55-100 (presenting facts to support plaintiffs’ allegations that top-down pressure to increase enforcement activity and stop/summons/arrest quotas lead to widespread unconstitutional stops).
39 See Floyd I, 813 F. Supp. 2d at 429. The debate at the summary judgment stage centered on whether the NYPD’s official policies aimed at ensuring the constitutionality of stops were properly implemented in practice.
40 See 4/29/09 Letter from Police Commissioner Raymond W. Kelly to Christine C. Quinn, Speaker, New York City Council, App’x G to Report of Jeffrey Fagan (“Fagan Report”) [Docket No. 132]; 11/23/09 Deposition of Joseph Esposito (“Esposito Dep”), Ex. 11 to Declaration of Darius Charney (“Charney Decl.”), plaintiffs’ counsel, at 364:10-365:6 (explaining that Commissioner Kelly “has the last word” on the stop and frisk policy).
Plaintiffs have submitted a sworn affidavit from New York State Senator Eric Adams, who retired as a police captain after more than twenty years of service in the NYPD. Senator Adams says that in July 2010 he met with Commissioner Kelly to discuss proposed legislation regarding stop and frisk practices and that during the meeting “Commissioner Kelly stated that the NYPD
13

officials, “[s]top, question and frisk activity is commonly discussed”42 in detail and
“[t]he process allows top executives to monitor precincts and operational units,
evaluate the skills and effectiveness of managers and properly allocate
resources.”43 The Chief of Patrol’s office discusses stop and frisk activity with the
individual borough commanders and precinct commanders.44
targets its stop-and-frisk activity at young black and Latino men because it wants to instill the belief in members of these two populations that they could be stopped and frisked every time they leave their homes so that they are less likely to carry weapons.” Affidavit of Eric Adams, Ex. 10 to Charney Decl., ¶ 5. Commissioner Kelly denies Senator Adams’ claim: “At that meeting I did not, nor would I ever, state or suggest that the New York City Police Department targets young black and Latino men for stop and frisk activity. That has not been nor is it now the policy or practice of the NYPD. Furthermore, I said nothing at the meeting to indicate or imply that such activity is based on anything but reasonable suspicion. At the meeting, I did discuss my view that stops serve as a deterrent to criminal activity, which includes the criminal possession of a weapon.” Declaration of Raymond W. Kelly, Ex. A to Declaration of Heidi Grossman (“Grossman Decl.”), Assistant Corporation Counsel, in Support of Defendants’ Opposition to Plaintiffs’ Motion for Class Certification, ¶¶ 3-4.
41 “One of the key features of NYPD oversight is the CompStat process. . . . COMPSTAT, which is short for COMPuter STATistics or COMParative STATistics, is the name given to the NYPD’s accountability process and has since been replicated in many other departments. CompStat is a multilayered dynamic approach to crime reduction, quality of life improvement, department oversight and personnel and resource management and employs Geographic Information Systems, which map crime and identify high-crime and problematic areas.” Def. 56.1 ¶¶ 92-93.
42 Id. ¶ 143.
43 Id. ¶ 114.
44 See id. ¶ 135. See generally id. ¶¶ 92-152.
14

The UF-250 form was designed by the NYPD and must be filled out by officers after every stop. The form is sometimes reviewed at CompStat meetings45 and “the Chief of Patrol’s office reviews UF-250s [from high crime ‘Impact Zones’] in order to determine whether the precinct as a whole is properly deploying its resources.”46 The NYPD requires that “[a] supervisor must sign off on every stop, question and frisk UF-250 report.”47
According to defendants, the NYPD “provides multiple levels of training for officers,”48 including numerous courses that cover stop and frisk procedure,49 a 4.5-hour role-playing workshop on stop and frisk,50 numerous memos and special videos about the law of reasonable suspicion, and ongoing training after graduating from the police academy.51
“The NYPD functions through a chain of command.”52 Officers are
45 See id. ¶ 134. 46 Id. ¶ 172. 47 Id. ¶ 271. 48 Id. ¶ 191. 49 See id. ¶ 195. 50 See id. ¶ 203. 51 See id. ¶¶ 207-222. 52 Id. ¶ 247.
15

monitored by their supervisors; supervisors are monitored through inspection teams, integrity control officers, and precinct commanding officers; and the Internal Affairs Bureau monitors police personnel throughout the department and is notified of all complaints alleging excessive force, abuse of authority, discourtesy, or offensive language.53
In short, the overwhelming and indisputable evidence shows that the NYPD has a department-wide stop and frisk program; the program has been designed and revised at the highest levels of the department; the implementation of the program is conducted according to uniform and centralized rules; and monitoring of compliance with the program is hierarchical. Defendants acknowledge much of this reality: “To be sure, NYPD’s department-wide policies generate from a centralized source and NYPD employs a hierarchical supervisory structure to effect and reinforce its department-wide policies.”54
B. The Centralized Use of Performance Standards and Quotas Hotly contested, however, is whether the NYPD has set quotas
governing the number of stops and summonses that NYPD officers must make on a
53 See id. ¶¶ 281-292, 307-308. “Search and seizure allegations relating to stop and frisk fall under the abuse of authority jurisdiction.” Id. ¶ 317.
54 Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Motion for Class Certification (“Def. Mem.”) at 8.
16

monthly basis. New York’s Labor Law makes it unlawful for the NYPD to
penalize a police officer, expressly or impliedly, for the officer’s failure to meet a summons, arrest, or stop quota.55 Defendants argue that
[w]hile the NYPD requires performance goals, they are specifically expected to be set by a command’s managers and to be met within appropriate legal standards, including stop activity. These performance goals are not necessarily numerical in character and are instead goals to be set and achieved in relation to current crime conditions in an officer’s command. Plaintiffs have made no showing that numerical goals for enforcement activity exist and/or are uniform throughout the NYPD.56
Whether the “performance goals” are accurately characterized as
“quotas” under the New York Labor Law is surely important to the NYPD and to
police officers and their union. But at the class certification stage of this lawsuit,
the applicability of that legal definition is much less important than the substantive
question of whether or not the unlawful stops of putative class members result
from a common source: the department’s policy of establishing performance
standards and demanding increased levels of stops and frisks. The preponderance
of the evidence shows that the answer to that question is yes.
To begin with, the scope of the NYPD’s stop and frisk program is a
55 See N.Y. Lab. L. § 215-a. A “quota” is defined as “a specific number of” tickets, summons, or stops. Id.
56 Def. Mem. at 14-15. 17

result of institutional decisions and directives. Over the fourteen months beginning
in January 1998, “NYPD officers documented 174,919 street ‘stops’ on UF-250 forms.”57 That is equivalent to just under 12,500 stops per month or 150,000 stops
per year. In 2004, officers documented over 313,000 stops, and since then the number has increased every year except 2007, rising to over 684,000 in 2011.58
Given the hierarchical nature of the NYPD, any reasonable observer would
conclude simply by looking at the trend that this dramatic increase in the number
of stops represents the intentional implementation of a departmental objective. But
I need not rely on the overwhelming circumstantial evidence showing that the
increase in stops is due to central directives because there is ample direct evidence
as well. A small sample of this evidence includes the following:
• In a recent Operations Order, Commissioner Kelly directed all
commands that “Department managers can and must set performance goals,”
57 The New York Police Department’s “Stop and Frisk” Practices: A Report to the People of the State of New York from the Office of the Attorney General, Ex. 117 to Declaration of Darius Charney in Support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment (“Charney SJ Decl.”) at 91.
58 See Fagan Report at 19; Sean Gardiner, Stop-and-Frisks Hit Record in 2011, Wall St. J., Feb. 14, 2012, at A21. In the first three months of 2012, the NYPD stopped eleven percent more people than it did in the first three months of 2011. See Al Baker, New York Police Release Data Showing Rise in Number of Stops on Streets, N.Y. Times, May 13, 2012 at A19.
18

relating to “the issuance of summonses, the stopping and questioning of suspicious individuals, and the arrests of criminals.”59 As part of a weekly review of each police officer, “the squad/unit sergeant will compare the member’s current monthly activity as it pertains to the member’s daily assignment” and at the end of every month, officers will complete a report “indicating the total activity for the month.”60 The Order states that during performance evaluations, “a high degree of review and consideration will be given to member’s daily efforts” and that “[u]niformed members . . . who do not demonstrate activities . . . or who fail to engage in proactive activities . . . will be evaluated accordingly and their assignments re-assessed.”61
• In response to questions about the major increase in stops in recent years, Deputy Commissioner Paul Browne has made clear that the Department continues to embrace stops as a central part of its crime-fighting strategy: “stops save lives,” and “[t]hat is a remarkable achievement—5,628 lives saved—attributable to proactive policing strategies that included stops.”62
59 10/17/11 Police Officer Performance Objectives Operations Order, Ex. 12 to Charney Decl., at 1.
60 Id. at 3. 61 Id. at 5. 62 Gardiner, Stop-and-Frisks Hit Record in 2011.
19

• At a CompStat meeting on July 17, 2008, NYPD Chief of Department Joseph Esposito (who is the highest ranking uniformed member of the force) told the executive officer of the 28th Precinct: “Your enf[orcement] numbers are way down . . . As an [executive officer] you have to look at that . . . If you look at raw number of 250s you are down 50 percent.”63 At a CompStat meeting three months later, Esposito and Inspector Dwayne Montgomery, who was the commander of the 28th Precinct from 2005 to 2009, discussed the number of stops that an average officer should perform.64 At his deposition, Montgomery testified that during those years he expected his officers to conduct a “minimum” of 2.3 UF-250 stops per month and that he used that quota “as a way of just gauging whether or not they were doing their job.”65 He had discussed that precise figure with Chief Esposito.
• From 2006 until 2009, Adhyl Polanco worked as a patrol officer in the 41st Precinct. At his deposition, he testified that his commanding officers announced specific quotas for arrests and summons (quotas that rose dramatically between early 2008 and 2009) and for UF-250s, assigned supervisors to patrol with
63 NYC_2_7010-7017, Ex. 47 to Charney SJ Decl. Plaintiff Deon Dennis was stopped by officers from the 28th Precinct.
64 See NYC_2_00007026, Ex. 48 to Charney SJ Decl.; PAF ¶ 56. 65 10/14/09 Deposition of Dwayne Montgomery (“Montgomery Dep.”), Ex. 6 to Charney SJ Decl., at 202:4, 14-15; 209:4-9.
20

under-performing officers so as to ensure that quotas were met, threatened to
reduce overtime for officers who failed to perform well, and reassigned to less desirable posts officers who failed to meet quotas.66
• In September and October of 2009, Polanco made audio recordings of
the roll calls in the 41st Precinct, which he provided to the Internal Affairs Bureau
and plaintiffs provided to the Court. In those roll call meetings, supervisors
established specific quotas for summonses and arrests; a union delegate told
officers that the union and the NYPD management agreed on a quota of one arrest
and twenty summons per month; and a supervisor told officers that the Bronx
Borough Commander was yelled at by the Chief of Patrol and others at NYPD
headquarters for low summons activity and that officers in the 41st Precinct were expected to increase their summons numbers.67
• In 2008 and 2009, police officer Adrian Schoolcraft recorded roll calls
66 See Deposition of Adhyl Polanco (“Polanco Dep.”), Ex. 76 to Charney SJ Decl., at 22-36.
67 See PAF ¶¶ 64-69 and the evidence cited therein. At his deposition, Polanco testified that he believed the NYPD “absolutely” has a problem with racial profiling: “I work in a minority community and what we do to people in the South Bronx you would never do to people in midtown Manhattan. . . . Illegally searching, illegally stopping, illegally handcuffing, put phoney charges on them, put it through the system.” Polanco Dep. 18:7-22. Polanco testified that while he worked at the NYPD, he personally witnessed officers stop and question civilians without having reasonable suspicion “every day.” Id. at 52:14-18.
21

in the 81st Precinct; on the tapes, supervisors can be heard repeatedly telling
officers to conduct unlawful stops and arrests and explaining that the instructions
for higher performance numbers are coming down the chain of command.68
In response to this evidence, defendants point to the testimony of
numerous police officers who say that they have not been subject to or aware of
quotas to make “a certain number” of stops or arrests or issue “a certain number”
of summonses. Other officers say that they were not even aware of productivity
standards or asked to increase their number of stops, arrests, and summonses. And
68 See CD Bates-numbered PL000093, Ex. 1 to Affirmation of NYPD Officer Adrian Schoolcraft (“Schoolcraft Aff.”), Ex. B to Declaration of Taylor Hoffman, plaintiffs’ counsel, in Support of Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for Summary Judgment. The following is a small sampling of the statements made by supervisors that can be heard on the tapes. Lieutenant Delafuente, July 15, 2008: “I want a couple of 250s out of there please, alright?” Deputy Inspector Mauriello, October 31, 2008 (Halloween night): “And they got any bandanas around their necks, Freddy Krueger masks, I want them stopped, cuffed, alright, brought in here, run for warrants. They’re juveniles, we’re gonna leave ‘em in here ‘till their parents come and pick ‘em up.” Sergeant Stukes, November 23, 2008: “If they’re on a corner, make ‘em move. They don’t wanna move, lock ‘em up. You can always articulate [a charge] later.” Sergeant Stukes, December 8, 2008: “You’re gonna be 120 Chauncey [St.]. You’re gonna be [in a?], uh, vehicle out there. Shake everybody up. Anybody moving, anybody coming out of that building – [UF] 250”; “You’re gonna be Howard and Chauncey 1900, post one. Same thing. Two, three [inaudible]. Everybody walking around. Stop em. 250-em”; “Anybody walking around, shake ‘em up, stop ‘em, 250-em, doesn’t matter what it takes.” Lieutenant Delafuente, January 13, 2009: “Chief [of Transportation Michael] Scagnelli, three star chief, at traffic stat today. . . he says to two commanders ‘How many. . . superstars and how many losers? . . . Then he goes down and asks how many summonses per squad?’”
22

many were never subject to or aware of discipline or rewards relating to quotas or productivity standards.69 I have no reason, at this juncture, not to credit these officers’ testimony as truthful. I accept (for now) defendants’ representation that some officers were not subjected to “quotas” and even that some officers were not aware of productivity standards, although there is no dispute that the use of performance standards is departmental policy.70 Nevertheless, the overwhelming evidence – including the precipitous rise in the number of stops, the policy statements from Commissioner Kelly’s office, the many comments of Deputy Commissioner Browne and Chief of Department Esposito, the recordings of roll calls from precincts in the Bronx and Brooklyn, and the testimony of numerous police officers – shows that the dramatic increase in stops since 2004 is a direct consequence of a centralized and city-wide program.
C. Statistical Evidence of Unlawful Stops NYPD officers are required to fill out a detailed worksheet, called a UF-250, describing the events before and during every stop that they perform. 2.8 million of these forms were filled out between 2004 and 2009 and all of them were
69 See Reply Declaration of Heidi Grossman in Support of Defendants’ Motion for Summary Judgment ¶ 21 [Docket No. 142].
70 See 10/17/11 Police Officer Performance Objectives Operations Order, Ex. 12 to Charney Decl.
23

compiled in a database – a database that now contains a wealth of information about millions of interactions between police officers and civilians.
Both parties have retained experts to perform extensive statistical analysis of this data. Plaintiffs rely heavily on their expert – Jeffrey Fagan, a Columbia University professor – in order to show that the NYPD has stopped many civilians without reasonable suspicion and unlawfully targets Blacks and Latinos for stops, summonses, arrests, and excessive force.71 In Wal-Mart, the Supreme Court strongly suggested that Daubert v. Merrell Dow Pharmaceuticals, Inc. (which governs the admissibility of expert testimony) applies at the certification stage of a class action proceeding.72 As a result, and in response to defendants’ motion to strike plaintiffs’ expert, I engaged in a detailed review of Fagan’s qualifications and methodology.73 Because portions of his analysis were deeply intertwined with the law of reasonable suspicion, I conducted a de novo review of those portions and ordered adjustments to his findings in the two

71 See Fagan Report and Supplemental Report of Jeffrey Fagan (“Supp. Rep.”) [Docket No. 132].

72
(1993)).

See Wal-Mart, 131 S. Ct. at 2541 (citing Daubert, 509 U.S. 579

73 See Floyd II, 2012 WL 1344514.

24

instances where his report misstated the law.74 After a rigorous review, I found
him qualified and his methodologies reliable, and found much of his report
probative and helpful. It is therefore appropriate for me to consider Fagan’s
conclusions at the class certification stage. In particular, I find that the following
factual determinations provide strong evidence regarding the existence of a Fourth
Amendment class, and a Fourteenth Amendment subclass, which satisfy the
requirements of Rule 23:
1. Fourth Amendment Class
• In at least six percent of all documented stops, police officers’ stated
reasons for conducting the stop were facially insufficient to establish reasonable
suspicion. That is to say, according to their own explanations for their actions,
NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009.75
74 See id. at *14-*19. 75 I say “at least” because a significant number of the 400,000 stops that include only an “Other” indicator of suspicion on Side 1 of their UF-250 are also facially insufficient; these do not include any of the 170,000. See Floyd II, 2012 WL 1344514, at *14-*16. However, neither party has yet convincingly explained to the Court how to properly estimate how many of those 400,000 are facially insufficient.
As I discussed at length in my Daubert evaluation of Fagan’s report, I recognize that the legality of an individual stop cannot be determined on the basis of the corresponding UF-250 alone: a lawful stop is not made unlawful simply because the police officer fails to fill out the paperwork properly and an unlawful
25

• In over 62,000 of those cases, police officers gave no reason other than “furtive movement” to justify the stop. These facially unlawful stops occurred in every precinct in the City – from a low of fourteen such stops in Central Park’s 22nd Precinct and forty-one such stops in Staten Island’s 123rd Precinct to a high of over 3,500 in the western Bronx’s 46th Precinct and East New York’s 73rd and 75th Precincts.76
• In over four thousand stops, police officers gave no reason other than “high crime area” to justify the stop. These facially unlawful stops also occurred in every precinct in the City.77
• In the 81st Precinct, where Adrian Schoolcraft’s recordings document supervisors repeatedly telling officers to conduct unlawful stops, the percentage of stops that were facially unlawful was below the City-wide average.78 At least according to this metric, stop and frisk conduct in dozens of New York City
stop is not made lawful because the police officer fills out the paperwork dishonestly or inaccurately. See Floyd II, 2012 WL 1344514, at *11-*12. Nevertheless, it is powerful and probative evidence that police officers themselves have justified 170,000 stops on the basis of legally insufficient criteria.
76 See Table 2 to Declaration of Jeffrey Fagan in Support of Plaintiffs’ Motion for Class Certification (“Fagan Decl.”); Floyd II, 2012 WL 1344514, at *17.
77 See Table 2 to Fagan Decl; Floyd II, 2012 WL 1344514, at *18 n.130. 78 See Table 1 to Fagan Decl.
26

precincts was similar to stop and frisk conduct in the 81st Precinct. • The percentage of documented stops for which police officers failed
to list an interpretable “suspected crime” has grown dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009.79 Overall, in more than half a million documented stops – 18.4 percent of the total – officers listed no coherent suspected crime.80
• “High crime area” is listed as a justification for a stop in approximately fifty-five percent of all recorded stops, regardless of whether the stop takes place in a precinct or census tract with average, high, or low crime.81
• 5.37 percent of all stops result in an arrest; 6.26 percent of stops result in a summons.82 In the remaining eighty-eight percent of cases, although they were required by law to have objective reasonable suspicion that crime was afoot when they made the stop, police officers ultimately concluded that there was no probable cause to believe that crime was afoot. That is to say, according to their own records and judgment, officers’ “suspicion” was wrong nearly nine times out of
79 See Floyd II, 2012 WL 1344514, at *7 n.41. 80 See Fagan Report at 23. 81 See id. at 52–55. 82 See id. at 63.
27

ten.83
• Guns were seized in 0.15 percent of all stops. This is despite the fact that “suspicious bulge” was cited as a reason for 10.4 percent of all stops.84 Thus,
for every sixty-nine stops that police officers justified specifically on the basis of a suspicious bulge, they found one gun.85
2. Fourteenth Amendment Subclass
• “The racial composition of a precinct, neighborhood, and census tract
is a statistically significant, strong and robust predictor of NYPD stop-and-frisk
patterns even after controlling for the simultaneous influences of crime, social conditions, and allocation of police resources.”86
• Based on Fagan’s analysis of the UF-250s, “the search for weapons is
83 In addition, approximately seventeen percent of summonses from 2004 and 2009 were thrown out by the New York courts as being facially (i.e., legally) insufficient and more than fifty percent of all summons were dismissed before trial. See Stinson v. City of New York, No. 10 Civ. 4228, 2012 WL 1450553 (S.D.N.Y. Apr. 23, 2012).
84 See Fagan Report at 51, 63. 85 I recognize that officers may occasionally have some other reason to cite “suspicious bulge,” but guns are surely the most obvious. In addition, I presume that guns are sometimes recovered in instances when “suspicious bulge” is not checked on the UF-250 form. 86 Declaration of Jeffrey Fagan in Support of Plaintiffs’ Opposition to Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan (“Fagan Daubert Decl.”) ¶ 4(a).
28

(a) unrelated to crime, (b) takes place primarily where weapons offenses are less
frequent than other crimes, and (c) is targeted at places where the Black and
Hispanic populations are highest . . . . [T]he search for drug offenders is (a)
negatively related to rates of crime or drug offenses specifically, and is (b)
concentrated in neighborhoods with high proportions of Black and Hispanic residents.”87
• “NYPD stops-and-frisks are significantly more frequent for Black and
Hispanic residents than they are for White residents, even after adjusting for local
crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.”88
• “Black and Hispanic individuals are treated more harshly during
stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.”89
87 Fagan Report at 34. 88 Fagan Daubert Decl. ¶4(b). This particular aspect of Fagan’s report has been criticized vehemently by defendants, who argue that it fails to account for who is engaging in crime and, relatedly, who is engaging in suspicious behavior that justifies a stop. See Floyd II, 2012 WL 1344514, at *4, *10-*11. There are good arguments on both sides of this debate. I do not know if this evidence, standing alone, would be sufficient to certify a Fourteenth Amendment subclass. However, in combination with Fagan’s other findings and plaintiffs’ qualitative proof, the preponderance of the evidence clearly supports certification. 89 Fagan Daubert Decl. ¶4(d).
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• Police officers are more likely to list no suspected crime category (or an incoherent one) when stopping Blacks and Latinos than when stopping Whites.90
• Police officers are more likely to list the stop justification “furtive movement,” which is a highly nebulous and not particularly probative of crime, when stopping Blacks and Latinos than when stopping Whites.91 IV. DISCUSSION
A. Plaintiffs Have Standing to Seek Injunctive Relief Article III of the Constitution requires that a federal court entertain a
lawsuit only if the plaintiff has standing to pursue the relief that she seeks. Concrete injury is a prerequisite to standing and a “plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.”92
The Supreme Court emphasized this requirement in City of Los
90 This occurred in 19.68 percent of stops of Blacks, 18.27 percent of stops of Latinos, and 16.66 percent of stops of Whites. See Report at 23.
91 Officers list “furtive movement” in 45.5 percent of stops of Blacks, 42.2 percent of stops of Latinos, and 37.4 percent of stops of Whites. See Fagan Report App’x Table D1. See also Floyd II, 2012 WL 1344514, at *17.
92 Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)).
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Angeles v. Lyons, when it held that Lyons, who had been subjected to a dangerous chokehold by a Los Angeles police officer, did not have standing to pursue an injunction against the police department’s practice of using chokeholds because his past injury “does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”93
Defendants argue that plaintiffs Clarkson, Dennis, and Floyd lack standing to seek injunctive relief.94 Clarkson and Dennis allege that they were each stopped improperly only once between 2004 and 2009 and Dennis and Floyd no longer live in New York (although Dennis regularly visits his friends and family here and intends to move back in the future and Floyd intends to move back to the City after he finishes medical school).95 Accordingly, defendants argue, “[plaintiffs’] assertion that they will again be stopped and deprived of their constitutional rights is wholly speculative.”96
93 Lyons, 461 U.S. at 105. 94 See Def. Mem. at 20-21. 95 See Declarations of Lalit Clarkson, Deon Dennis, David Floyd, and David Ourlicht (“Plaintiffs’ Declarations”), Exs. 2-5 to Charney Decl. 96 Def. Mem. at 20-21.
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The simplest way to address defendants’ concern is by noting that
David Ourlicht, the fourth plaintiff, indisputably does have standing and that “the
presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”97 First, unlike Lyons, who alleged only one
past instance of unconstitutional police behavior, Ourlicht was stopped by NYPD officers three times in 2008 and once again in 2010, after this lawsuit was filed.98
“The possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.”99 Second, unlike the plaintiffs in Lyons and Shaine v. Ellison,100 Ourlicht’s risk of future injury does not depend on his being arrested for
unlawful conduct and so he cannot avoid that injury by following the law. The risk
of injury is not based on a string of unlikely contingencies: according to his sworn
affidavit, Ourlicht was stopped and frisked while going about his daily life –
97 Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006).
98 See Affidavit of David Ourlicht, Ex. 5 to Charney Decl., ¶¶ 6-18. 99 Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985). Accord Aguilar v. Immigration & Customs Enforcement Div. of the United States Dep’t of Homeland Sec., 811 F. Supp. 2d 803, 828 (S.D.N.Y. 2011) (finding standing in a case where one set of plaintiffs had allegedly been subject to two unlawful searches and other plaintiffs feared repeat injury because the searches were part of defendants’ “condoned, widespread, and ongoing” practice). 100 356 F.3d 211 (2d Cir. 2004).
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walking down the sidewalk, sitting on a bench, getting into a car.101
Finally, as I explained in the Daniels litigation, the frequency of
alleged injuries inflicted by the practices at issue here creates a likelihood of future injury sufficient to address any standing concerns.102 In Lyons, the police
department’s challenged policies were responsible for ten deaths; here, the police
department has conducted over 2.8 million stops over six years and its paperwork
indicates that, at the very least, 60,000 of the stops were unconstitutional (because
they were based on nothing more than a person’s “furtive movement”). Every day,
the NYPD conducted 1200 stops; every day, the NYPD conducted nearly thirty
facially unlawful stops based on nothing more than “subjective, promiscuous appeals to an ineffable intuition.”103 In the face of these widespread practices,
Ourlicht’s risk of future injury is “‘real and immediate,’ not ‘conjectural’ or
101 See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041-42 (9th Cir. 1999) (en banc) (stating that the Supreme Court in Spencer v. Kemna, 523 U.S. 1, 15 (1998) “characterized the denial of Article III standing in Lyons as having been based on the plaintiff’s ability to avoid engaging in illegal conduct”)).
102 See National Congress 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).
103 United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.) (criticizing the use of the vague term “furtive” and opining that “[w]hether 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.”).
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‘hypothetical,’”104 and he satisfies Article III’s standing requirements. Because Ourlicht has standing, I need not consider the standing of the other plaintiffs.105 I nevertheless note that Dennis and Floyd have each been stopped by the NYPD more than once (although two of Dennis’ three stops occurred many years ago). Even Clarkson’s single stop, in light of the tens of thousands of facially unlawful stops, would likely confer standing.106
B. Plaintiffs Satisfy the Four Prerequisites of Rule 23(a) 1. Ascertainability Defendants argue that the “description of the class must be
‘sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.’”107 Defendants believe that plaintiffs’ proposed class definition – all persons who have been or in the future will be unlawfully stopped in violation of the Fourth Amendment, including all
104 Lyons, 461 U.S. at 102. 105 See Forum for Academic and Institutional Rights, Inc., 547 U.S. at 53 n.2. 106 “[T]here is no per se rule requiring more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury.” Roe v. City of New York, 151 F. Supp. 2d 495, 503 (S.D.N.Y. 2001). 107 Def. Mem. at 16 (quoting 7A Wright, Miller & Kane, Federal Practice and Procedure § 1760).
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persons stopped on the basis of being Black or Latino in violation of the Fourteenth Amendment – is impremissibly indefinite because “an individualized inquiry must be made into the facts and circumstances surrounding [each] stop” and the “analysis is highly specific and unique in every case.”108
The NYPD repeats this argument despite its unsurprising lack of success for over three decades. In 1979, Judge Charles Haight of this Court was presented with a motion for class certification in the landmark Handschu litigation that sought to curtail unconstitutional behavior by the NYPD, including the surveillance of left wing political groups. Plaintiffs sought to certify a class of “[a]ll individuals . . . who are physically present in the City of New York . . . who engage in or have engaged in lawful political, religious, educational or social activities and who, as a result of these activities, have been, are now or hereafter may be subjected to or threatened by” surveillance or violence by the NYPD.109 The defendants’ “strenuously pressed arguments against certification” focused on the indefinite nature of the class definition. Judge Haight rejected those arguments: “Where, as here, the 23(b)(2) class action seeks equitable relief as opposed to money damages, obviating the need for notice to class members,
108 Id. 109 Handschu v. Special Servs. Div., No. 71 Civ. 2203, 1979 U.S. Dist. Lexis 12148, at *3 (S.D.N.Y. May 25, 1979).
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precise delineation of the class has been held unnecessary.”110 Rule 23 does not demand ascertainability. The requirement is a
judicial creation meant to ensure that class definitions are workable when members of the class will be entitled to damages or require notice for another reason.111 In contrast, as Judge Haight noted, the drafters of the Rule specifically envisioned the use of (b)(2) classes “in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”112 The most prominent treatise on class actions notes that because of the absence of individual damages, “it is not clear that the implied requirement of definiteness should apply to Rule 23(b)(2) class actions at all.”113
Defendants repeated their ascertainability argument twenty years after
110 Id. at *10. 111 See IPO, 471 F.3d at 30. Defendants cite to Forman v. Data Transfer, 164 F.R.D. 400, 403 (E.D. Pa. 1995) for support, but that decision concerned a proposed (b)(3) class that sought individual damages. The need for ascertainability in (b)(1) or (b)(3) cases – or in (b)(2) cases that, pre-Wal-Mart, sought individual damages – has no bearing on the need for such ascertainability in (b)(2) cases seeking only injunctive relief for the class. 112 Fed. R. Civ. P. 23 1966 Advisory Committee Note (emphasis added). 113 William B. Rubenstein et al., Newberg on Class Actions § 3:7 at 1-172 (2011).
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Handschu, in the Daniels case, which sought certification of a nearly identical
class to the one sought here. As I explained then, “[b]ecause ‘general class
descriptions based on the harm allegedly suffered by plaintiffs are acceptable in
class actions seeking only declaratory and injunctive relief under Rule 23(b)(2),’
plaintiffs’ proposed class is sufficiently definite to warrant certification.”114
Both the Second Circuit and numerous district courts in the circuit
have approved of class definitions without precise ascertainability under Rule
23(b)(2).115 Other circuits agree with this approach. The Tenth Circuit has made
114 Daniels, 198 F.R.D. at 415 (quoting Wanstrath v. Time Warner Entm’t Co., No. 93 Civ. 8538, 1997 WL 122815 (S.D.N.Y. Mar. 17, 1997)). Defendants argue that Daniels was more narrow in scope because it addressed only the stop and frisk practices of one unit of the NYPD. See Def. Mem. at 17-18. But the smaller number of people stopped by the Street Crimes Unit (18,000 in 1997) has no impact on the ascertainability question. The court cannot (and need not) determine which of the class members’ stops were lawful, whether the number in question is 18,000 or 2.8 million.
115 See Marisol v. Giuliani, 126 F.3d 372 (2d Cir. 1997) (certifying a class of children who “are or will be at risk of neglect or abuse and whose status is or should be known to” a City agency). See also, e.g., Biediger v. Quinnipiac Univ., No. 09 Civ. 621, 2010 WL 2017773, at *7 (D. Conn. May 20, 2010) (certifying a class of all present and future female students who “want to end Quinnipiac University’s sex discrimination” even though ascertaining who will be a future student and what these students will want is of course impossible); Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL 4104460, at *18 (E.D.N.Y. Aug. 26, 2008) (certifying a class of “all individuals who (1) suffer from mental illness . . .” and explaining that “because only declaratory and injunctive relief is sought, individual assessments of disability need not be made”); Finch v. New York State Office of Children & Family Servs., 252 F.R.D. 192, 203 (S.D.N.Y. 2008) (“Rule 23(b)(2) classes need not be precisely defined”).
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clear that “while the lack of identifiability is a factor that may defeat Rule 23(b)(3) class certification, such is not the case with respect to class certification under Rule 23(b)(2).”116 Similarly, the First Circuit has said that ascertainability is unnecessary when “the conduct complained of is the benchmark for determining whether a subdivision (b)(2) class exists.”117
It would be illogical to require precise ascertainability in a suit that seeks no class damages. The general demarcations of the proposed class are clear – those people unlawfully stopped or who may be stopped by the NYPD – and that definition makes the class sufficiently ascertainable for the purpose of Rule 23(b)(2).
2. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, “numerosity is presumed at a
116 Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004). 117 Yaffe v. Powers, 454 F.2d 1362, 1366 (1st Cir. 1972) (“notice to the members of a (b)(2) class is not required and the actual membership of the class need not therefore be precisely delimited”). Accord Baby Neal v. Casey, 43 F.3d 48, 54 (3d Cir. 1995) (certifying the entirely unascertainable class of “all children in Philadelphia who have been abused or neglected and are known or should be known to the Philadelphia Department of Human Services”).
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level of 40 members.”118 Defendants argue here that “in the absence of ascertainability plaintiffs cannot establish numerosity,”119 but they cite no law for that proposition.120 Again, the language of the Rule’s drafters is helpful: (b)(2) is meant for classes “whose members are incapable of specific enumeration.”121 The preponderance of the evidence indicates that the proposed class and subclass easily exceed forty members. Indeed, the size of the class is likely to be well over one hundred thousand.
3. 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 suffered the same injury.’”122 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
118 Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
119 Def. Mem. at 18. 120 See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement.”). 121 Fed. R. Civ. P. 23 1966 Advisory Committee Note. 122 Wal-Mart, 131 S. Ct. at 2551 (quoting Falcon, 457 U.S. at 157).
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Title VII by discriminating against women.”123 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:
[P]ay and promotion decisions at Wal-Mart are generally committed to the local managers’ broad discretion . . . [who may make employment decisions] with only limited corporate oversight124 . . . . Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard125 . . . . 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.126
Judge Richard Posner recently applied the Wal-Mart decision to the
claims of Black Merrill Lynch brokers alleging racial discrimination. This was his
summary of the Wal-Mart holding:
Wal-Mart holds that if employment discrimination is practiced by the employing company’s local managers, exercising discretion granted them by top management . . . rather than implementing a uniform policy established by top management to govern the local managers, a class action by more than a million current and
123 Id. at 2547. 124 Id. 125 Id. at 2553. 126 Id. at 2555.
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former employees is unmanageable.127
Merrill Lynch had a policy of permitting brokers in the same office to form work
teams of their choosing and a policy of giving the accounts of departed brokers to
existing brokers on the basis of various performance formula. Plaintiffs alleged
that the “fraternity” nature of the teaming policy and the rich-get-richer nature of
the accounts policy had a disparate impact on Black brokers. Reversing the lower
court and granting certification, Judge Posner explained that the two policies
are practices of Merrill Lynch, rather than practices that local managers can choose or not at their whim. Therefore challenging those policies in a class action is not forbidden by the Wal-Mart decision; rather that decision helps (as the district judge sensed) to show on which side of the line that separates a company-wide practice from an exercise of discretion by local managers this case falls.128
The court determined that “the plaintiffs’ claim of disparate impact is most
efficiently determined on a class-wide basis rather than in 700 individual lawsuits”129 because, unlike in Wal-Mart, there were two company-wide policies at
issue and a class action would be the best mechanism for determining the impact
that those policies had on the earnings of Merrill Lynch’s brokers. Thus, Judge
127 McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 488 (7th Cir. 2012).
128 Id. at 490. 129 Id.
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Posner’s opinion stands for the proposition that even after Wal-Mart, Rule 23(b)(2) suits remain appropriate mechanisms for obtaining injunctive relief in cases where a centralized policy is alleged to impact a large class of plaintiffs, even when the magnitude (and existence) of the impact may vary by class member.
This has long been the Second Circuit’s standard.130 In Marisol A., the Court of Appeals affirmed the certification of a class of all children challenging many different aspects of the child welfare system that implicated different statutory, constitutional, and regulatory schemes. Finding that the district court’s characterization of the claims “stretches the notions of commonality and typicality,” the court nevertheless affirmed because defendants’ actions were alleged to “derive from a unitary course of conduct by a single system.”131 More recently, the Second Circuit has reiterated the rule that “where plaintiffs were ‘allegedly aggrieved by a single policy of the defendants,’ and there is ‘strong commonality of the violation and the harm,’ this ‘is precisely the type of situation for which the class action device is suited.’”132
130 See Pl. Mem. at 12. 131 Marisol A., 126 F.3d at 377. 132 Brown v. Kelly, 609 F.3d 467, 468 (2d Cir. 2010) (quoting In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 146 (2d Cir. 2001)). Accord Damassia v. Duane Reade, Inc., 250 F.R.D. 152, 156 (S.D.N.Y. 2008) (“Commonality does not mean that all issues must be identical as to each member,
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As documented above, there can be no dispute that the NYPD has a single stop and frisk program. Defendants concede that the “NYPD’s departmentwide policies generate from a centralized source and NYPD employs a hierarchical supervisory structure to effect and reinforce its department-wide policies.”133 The stop and frisk program is far more centralized and hierarchical than even the employment policies in Merrill Lynch. 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 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. Since Wal-Mart, at least three district courts have granted class certification in cases alleging Fourth and Fourteenth Amendment violations due to a police department’s policy and/or practice of making unlawful stops and arrests; all of these courts have rejected the
but it does require that plaintiffs identify some unifying thread among the members’ claims that warrant[s] class treatment.”) (quotation omitted); Daniels, 198 F.R.D. at 417; D.S. v. New York City Dep’t of Educ., 255 F.R.D. 59, 71 (E.D.N.Y. 2008).
133 Def. Mem. at 8. 43

notion that the individual circumstances of a stop defeat commonality.134
Defendants argue that “individual officers’ decisions to make stops are akin to the
Wal-Mart ‘policy’ of allowing discretion to supervisors over employment matters,”
134 Three weeks ago Judge Robert Sweet of this court certified a class of 620,000 people who were issued summonses by the NYPD between 2004 and 2009 and who had those summonses dismissed for being facially insufficient. See Stinson, 2012 WL 1450553. In Stinson, like in this case and unlike in Wal-Mart, plaintiffs allege “a specific policy promulgated by defendants” (namely that NYPD officers issue summonses without probable cause in order to meet their quotas). See also Morrow v. City of Tenaha, No. 08 Civ. 288, 2011 WL 3847985, at *19294 (E.D. Tex. Aug. 29, 2011) (certifying class of Latinos who were stopped for alleged traffic violations and finding commonality in light of statistical evidence showing significant increases in the number of minorities stopped after the adoption of a new police policy); Ortega-Melendres v. Arpaio, No. 07 Civ. 2513, 2011 WL 6740711, at *19 (D. Ariz. Dec. 23, 2011) (certifying class of Latino motorists alleging racial profiling and finding that differences in subjective motivations of officers do not defeat commonality or typicality when there is evidence of a departmental policy of violating constitutional rights). Four weeks ago, Judge Katherine Forrest denied plaintiffs’ motion to certify a class of all Latinos in the New York area who have been or will be subject to a home raid operation by Immigration and Customs Enforcement. See Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., No. 07 Civ. 8224, 2012 WL 1344417 (S.D.N.Y. Apr. 16, 2012). Judge Forrest placed significant emphasis on the fact that defendants’ raids on the named plaintiffs’ homes took place in 2007 and that there was “no evidence in the record” to suggest that defendants’ practices in 2012 shared commonality with the practices in 2007. Id. at *9. She therefore deemed injunctive relief inappropriate. Here, in contrast, there is ample evidence to show that stop and frisk practices have not changed since the 2004 to 2009 period, except that the numbers of stops have continued to rise. It is also worth noting that Judge Forrest did not emphasize that the lack of commonality in Wal-Mart was based on the company’s de-centralized approach to employment decisions. As the courts in Stinson, Morrow, and Ortega-Melendres explained, Wal-Mart’s structure is worlds away from centralized and hierarchical policing practices.
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and so the NYPD has “essentially a policy against having a uniform practice.”135
This is belied by the 437 paragraphs of facts that defendants submitted, in support
of their motion for summary judgment, showing just how centralized and
hierarchical the NYPD’s policies and practices are.136 Moreover, defendants
confuse the exercise of judgment in implementing a centralized policy with the
exercise of discretion in formulating a local store policy or practice.137
Plaintiffs allege that their Fourth and Fourteenth Amendment rights
are violated as a result of the NYPD’s policies and practices. As they argue, these
claims raise “central and core questions of fact and law that, when answered, will
135 Def. Mem. at 8 n.9. 136 Some of this material was submitted in order to show that the NYPD was not liable for failure to train, supervise, monitor, and discipline because it in fact has a robust system of training, supervision, monitoring and discipline. I denied summary judgment on this claim because there exist material disputes of fact about the “constitutional sufficiency” of this system, not about its existence. Floyd I, 813 F. Supp. 2d at 429. 137 I also note that plaintiffs’ level of proof here is particularly strong: if plaintiffs in Wal-Mart had produced sixty thousand human resource forms, including forms from every Wal-Mart store in the country, in which supervisors gave facially unlawful reasons for denying women employees raises or promotions, the Supreme Court’s commonality determination may well have been different. As the Wal-Mart Court explained, plaintiffs could establish commonality even in the absence of a centralized employment system by showing “‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’” Wal-Mart, 131 S. Ct. at 2553 (quoting Falcon, 457 U.S. at 159).
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resolve all class members’ Monell claims against the City.”138 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.”139
4. Typicality and Adequacy
Defendants make overlapping objections on the basis of typicality and
adequacy, and so I address these two Rule 23(a) prerequisites in tandem.140
“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
138 Pl. Mem. at 12. Plaintiffs list four such questions: (1) Whether New York City has a Policy and/or Practice of conducting stops and frisks without reasonable suspicion? (2) Whether the City has a Policy and/or Practice of stopping and frisking Black and Latino persons on the basis of race rather than reasonable suspicion? (3) Whether the NYPD’s department-wide auditing and command self-inspection protocols and procedures demonstrate a deliberate indifference to the need to monitor officers adequately to prevent a widespread pattern of suspicionless and race-based stops? (4) Whether the NYPD’s Policy and/or Practice of imposing productivity standards and/or quotas on the stop-andfrisk, summons, and other enforcement activity of officers is a moving force behind widespread suspicionless stops by NYPD officers?
139 131 S. Ct. at 2551. 140 Adequacy requires both that the plaintiffs themselves be adequate representatives of the class and that the plaintiffs’ counsel be qualified, experienced, and able to conduct the litigation. Defendants do not challenge the second prong and there is no doubt that plaintiffs are in excellent hands. See Charney Decl. ¶¶ 3-12. Defendants’ challenge to plaintiffs’ Article III standing, discussed above, was also framed as a problem of adequacy.
46

the defendant’s liability.’”141 Rather than focusing on the precise nature of plaintiffs’ injuries, the typicality requirement may be satisfied where “injuries derive from a unitary course of conduct by a single system.”142
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.”143 Similarly, “[a]dequacy 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.”144 As defendants acknowledge, in order to defeat a motion for certification, any such conflicts must be “fundamental.”145
Here, the four named plaintiffs’ stops arise from the same course of conduct – i.e., the NYPD’s centralized program of stops and frisks – and their legal arguments are precisely the typical ones that are made by others who bring or
141 Central States, 504 F.3d at 245 (quoting Robinson, 267 F.3d at 155). 142 Marisol A., 126 F.3d at 377. 143 In re NASDAQ Market-Makers Antitrust Litig., 169 F.R.D. 493, 510 (S.D.N.Y. 1996). 144 Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). 145 In re Flag Telecom Holdings, Ltd. Secs. Litig., 574 F.3d 29, 35 (2d Cir. 2009).
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could bring claims for Fourth and Fourteenth Amendment violations by defendants. The named plaintiffs are vigorously pursuing their claims146 and defendants have failed to identify any ways in which plaintiffs’ interests are antagonistic to those of other class members.147
Defendants’ argument is twofold: First, “the Court would be required to assess any unique defenses of the defendants before determining liability, which could include a fact-intensive qualified immunity defense” and “the claims of putative class members who cannot identify an NYPD officer involved in the stop will be subject to unique defenses” that threaten to engulf the litigation.148 Second, because none of the named representatives are Latino, “they cannot represent the alleged Latino class members who make race-based claims.”149 Neither argument is persuasive.
First, courts and juries must always consider defendants’ individual
146 See Plaintiffs’ Declarations. 147 “An order requiring defendants to comply with federal and state law in order to remedy the systemic failures that are the source of plaintiffs’ claims constitutes relief that would serve the entire putative class.” Marisol A. v. Giuliani, 929 F. Supp. 662, 692 (S.D.N.Y. 1996). 148 Def. Mem. at 14; see id. at 21-23. 149 Id. at 19.
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defenses before determining liability. That is no bar at the certification stage.150
“In practice, courts in this Circuit . . . [refuse] certification only when confronted
with a sufficiently clear showing” that a defense unique to the representative
plaintiff’s claims will in fact defeat those claims.151
It is true that the parties have not been able to identify the police
officers involved in five of the plaintiffs’ eight alleged stops.152 At trial, defendants
will argue that plaintiffs cannot establish liability for those stops; the jury may or
may not agree. But defendants already moved for summary judgment on the
claims of two of the four plaintiffs, including those of David Ourlicht, who was
unable to identify the police officers who stopped him. Summary judgment was
150 The court “should not assess any aspect of the merits unrelated to a Rule 23 requirement” and 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. “‘The unique defense rule, however, is not rigidly applied in this Circuit, and is intended to protect plaintiff class – not to shield defendants from a potentially meritorious suit.’” Duling v. Gristede’s Operating Corp., 267 F.R.D. 86, 97 (S.D.N.Y. 2010) (quoting In re NYSE Specialists Sec. Litig., 260 F.R.D. 55, 71 (S.D.N.Y. 2009)). Accord Sirota v. Solitron Devise, Inc., 673 F.2d 566, 571 (2d Cir. 1982) (“If [] defendants were arguing that a district court must determine whether the named plaintiffs have a meritorious claim before they can be certified as class representatives, they would plainly be wrong.”).
151 In re Omnicom Group, Inc. Sec. Litig., No. 02 Civ. 4483, 2007 WL 1280640, at *4 (S.D.N.Y. Apr. 30, 2007) (explaining that the court “need not deny certification merely because of the presence of a colorable unique defense”).
152 See Plaintiffs’ Declarations. 49

denied because I found that if a juror were to credit Ourlicht’s testimony, she could
find that he was stopped in the absence of objective reasonable suspicion that
crime was afoot.153 That is to say, defendants failed to show that the John Doe
defense will defeat plaintiffs’ claims.
This issue does not create a “fundamental” conflict between named
plaintiffs and unnamed class members: Indeed, it may be that officers often fail to
complete the required UF-250 when they conduct a quick stop and frisk.154 In
addition, three of the named plaintiffs allege stops involving identified police
officers and at least two of those stops came from precincts in which commanding
officers have acknowledged the use of performance standards or quotas.155 The
153 See Floyd I, 813 F. Supp. 2d 417. 154 At a recent conference regarding a related action, one Assistant Corporation Counsel informed me that “the UF-250s, they’re not always, you know, made or written . . . . I suspect for many of the incidents in the complaint, there would not be UF-250s,” although a second Assistant Corporation Counsel said that “that’s not the case. When there’s a stop based on a penal law violation or misdemeanor, there will be a UF-250.” 4/17/12 Transcript at 10:7-25 [Docket No. 15], Ligon v. City of New York, No. 12 Civ. 2274. 155 Defendant Officer Luis Pichardo, who stopped plaintiff Deon Dennis in the 28th Precinct in January 2008, testified that his supervisors imposed a five summons-per-tour quota on the officers working his tour when he stopped Dennis. Dwayne Montgomery, who was commander of the 28th Precinct at the time, testified that he imposed monthly stop and frisk and summons requirements on all officers and disciplined officers who failed to meet those quotas. See Pichardo Dep., Ex. 68 to Charney SJ Decl., at 218-219 and PAF ¶ 58. Plaintiff David Floyd was stopped by officers from the 43rd precinct. Chief Esposito told the
50

issues involved in these stops go to the core of plaintiffs’ claims. The doctrine of unique defenses is intended to protect absent members
of the plaintiff class by ensuring the presence of a typical plaintiff. The doctrine is not meant to protect defendants by permitting them to defeat certification because the facts raised by the claims of the representative plaintiffs are not identical to the facts raised by the claims of all putative class members. Because the named plaintiffs’ claims arise from the same policy or practice and the same general set of facts as do the claims of the putative class members, the typicality prong is satisfied.156
Defendants’ contention regarding qualified immunity is similarly unavailing: the NYPD routinely argues that its officers are protected by qualified immunity. That defense is common to innumerable Terry stops and frisks; it cannot defeat typicality at the class certification stage.
Second, defendants’ claim that the named plaintiffs cannot represent Latinos is likewise unconvincing. The cases that defendants cite denied certification because the named plaintiffs fell outside the subclass that they sought
commander of the 43rd, Charles Ortiz, that his officers did not have enough stops and summonses and Ortiz frequently conveyed that message to his subordinates. See PAF ¶¶ 80-82.
156 See Central States, 504 F.3d at 245; Daniels, 198 F.R.D. at 419. 51

to represent.157 Plaintiffs seek certification of a Fourteenth Amendment subclass of Blacks and Latinos stopped because of their race; plaintiffs clearly fall inside that definition.158
Plaintiffs’ complaints are typical of those of the class and they will fairly and adequately protect the interests of the class. All four prerequisites of Rule 23(a) are met.
B. Class Certification Is Proper Under 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.
157 See Norman v. Connecticut State Bd. of Parole, 458 F.2d 497, 499 (2d Cir. 1972); Kenavan v. Empire Blue Cross & Blue Shield, No. 91 Civ. 2393, 1996 WL 14446 (S.D.N.Y. Jan. 16, 1996).
158 See, e.g., Leonard v. Southtec, LLC, No. 04 Civ. 72, 2005 WL 2177013 (M.D. Tenn. Sept. 8, 2005) (certifying Black named plaintiffs to represent Blacks and Latinos).
52

Predominance and superiority are self-evident.159
Defendants argue that certification under (b)(2) is inappropriate because they have
not “acted or refused to act on grounds generally applicable to the class” and
because plaintiffs “fail to identify an official policy, or its equivalent, and seek a
broad-based structural injunction.”160 Again, these arguments do not withstand the
overwhelming evidence that there in fact exists a centralized stop and frisk
program that has led to thousands of unlawful stops. The vast majority of New
Yorkers who are unlawfully stopped will never bring suit to vindicate their
rights.161 It is precisely for cases such as this that Rule 23(b)(2) was designed.162
159 131 S. Ct. at 2558. See also 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).
160 Def. Mem. at 23-24. 161 See James Forman, Jr. Criminal Law: Community Policing and Youth As Assets, 95 J. Crim. L. & Criminology 1, at n.47 (2004) (citing the scholarship of Professors Charles Ogletree, Angela Davis, Pamela Karlan and others who document that the vast majority of people who are unconstitutionally stopped and not charged with any crime will never bring civil actions in court). 162 Under the doctrine established in Galvan, 490 F.2d 1255, district courts may decline to certify a class if doing so would not further the implementation of the judgment. See Davis v. Smith, 607 F.2d 535 (2d Cir. 1978). As plaintiffs note, the doctrine is only applicable when a defendant affirmatively states that it will apply any remedy across the board. Here, defendants have offered to apply any remedy to “all persons similarly situated to the named plaintiffs” but simultaneously argue that the alleged class members are not similarly situated to the named plaintiffs. “It is plainly inconsistent for Defendants
53

Defendants close their argument regarding the applicability of Rule 23
with this disturbing statement:
[E]ven if [plaintiffs] prove a widespread practice of suspicionless stops and Monell causation, it is not at all clear that an injunction would be a useful remedy. Certainly, no injunction could guarantee that suspicionless stops would never occur or would only occur in a certain percentage of encounters . . . . Here, plaintiffs essentially seek an injunction guaranteeing that the Fourth Amendment will not be violated when NYPD investigates crime. If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect . . . . An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored . . .
Three points must be made in response. First, suspicionless stops
should never occur. Defendants’ cavalier attitude towards the prospect of a
“widespread practice of suspicionless stops” displays a deeply troubling apathy
towards New Yorkers’ most fundamental constitutional rights.
Second, it is not readily apparent that if an injunction preventing such
widespread practices could be fashioned, it would already have been passed by
lawmakers. The twenty-seven members of the Black, Latino and Asian Caucus of
to argue that any relief granted in connection with this action will be applied to benefit every member of the class, while at the same time they contest the existence of commonality and typicality.” Bishop v. New York City Dep’t of Hous. Pres. and Dev., 141 F.R.D. 229, 241 (S.D.N.Y. 1992). In addition, because potentially complex City-wide injunctive relief would be more appropriate as a remedy in the context of a class action, there are collateral consequences to denying certification and the Galvan doctrine is inapplicable.
54

the Council of the City of New York who submitted an amicus brief in support of plaintiffs “disagree[] strongly with this assertion.”163 It is rather audacious of the
NYPD to argue that if it were possible to protect “the right of the people to be
secure in their persons” from unlawful searches and seizures by the NYPD, then the
legislature would already have done so and judicial intervention would therefore be
futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that “more searching judicial enquiry” is appropriate.164
Third, if the NYPD is engaging in a widespread practice of unlawful
stops, then an injunction seeking to curb that practice is not a “judicial intrusion
into a social institution” but a vindication of the Constitution and an exercise of the
courts’ most important function: protecting individual rights in the face of the
government’s malfeasance.
163 Brief of Amicus Curiae The Black, Latino and Asian Caucus of the Council of the City of New York in Further Support of Plaintiffs’ Motion for Class Certification at 8.
164 United States v. Carolene Prods. Co., 304 U.S. 144, 153 n.4 (1938). “If we were to accept the State’s argument, we would be enshrining the rather perverse notion that traditional rights are not to be protected in precisely those instances when protection is essential, i.e., when a dominant group has succeeded in temporarily frustrating exercise of those rights. We prefer a view more compatible with the theory of this nation’s founding: rights do not cease to exist because a government fails to secure them. See The Declaration of Independence (1776).” Mescalero Apache Tribe v. New Mexico, 630 F.2d 724, 730 (10th Cir. 1980), vacated, 450 U.S. 1036 (1981), aff’d, 462 U.S. 324 (1983).
55

V. CONCLUSION B¢cause plaintiffs have satisfied the requirements of Rule 23, their
motion for c1as~ certification is granted. The clerk is directed to close this motion [Docket No. 165]. A status conference is scheduled for May 29, 2012 at 4:30 p.m.

Dated:

May 16,2012 New York, New York

56 


- Appearances -
For Plaintiffs:
Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 277-5850
Eric Hellerman, Esq. Philip Irwin, Esq. Gretchen Hoff-Varner, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1190
For Defendants:
Heidi Grossman Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084
57

 
 Case 1:08-cv-01034-SAS-HBP Document 209 Filed 06/04/12 Page 1 of 3

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

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

- against-

THE CITY OF NEW YORK, et ai.,

Defendants.

----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiffs' request to extend the briefing schedule for their proposed

Daubert motion challenging the methodology and/or qualifications of defendants'

expert is denied. At the May 27 conference, plaintiffs stated that they would seek

to expedite the remaining discovery and proceed to trial at the earliest possible

time. This case is now four years old. A two month extension of the anticipated

Daubert motion will cause further delay. A Daubert motion is not required and

counsel should give careful thought to the need for such a motion. While counsel

may disagree with the substance of an expert's testimony, that is not the standard

for disqualification. Such motions are often made reflexively and with little

chance of success. Nonetheless, should plaintiffs determine that a Daubert motion

Case 1:08-cv-01034-SAS-HBP Document 209 Filed 06/04/12 Page 2 of 3
is absolutely necessary, they must make it on the schedule ordered during the May 
 27 conference.
SO ORDERED:

Dated:

New York, New York
June 4,2012

Case 1:08-cv-01034-SAS-HBP Document 209 Filed 06/04/12 Page 3 of 3
- Appearances ­
For Plaintiffs: Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 277-5850
Eric Hellerman, Esq. Gretchen Hoff-Varner, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1190
For Defendants: Heidi Grossman Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084

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

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

t.._ . '
OPINION AND ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

- against-

THE CITY OF NEW YORK, et ai.,

Defendants.

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

To support their claims in this class action lawsuit, plaintiffs intend to

rely on the testimony of Jeffrey Fagan, a criminologist with expertise in statistical

analysis. l To rebut Fagan's testimony, defendants seek to offer the opinions of

Dennis Smith, a political scientist with an expertise in police organizations.

Plaintiffs now move to preclude parts of Smith's opinions. Their motion is granted

Fagan submitted an expert report and supplemental report (collectively, "Fagan Report") [Docket No. 132]. In an April 16,2012 Opinion and Order, _ F. Supp. 2d _,2012 WL 1344514 (S.D.N.Y. Apr. 16,2012) ("Fagan Daubert"), I assessed defendants' objections to Fagan's qualifications and methodology under Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993), and the Federal Rules of Evidence. His expertise in statistical analysis was documented in Fagan Daubert, 2012 WL 1344514, at *2.
1 


in part and denied in part. I. BACKGROUND
Details of this litigation have been extensively covered in my decisions on defendants’ motion for summary judgment,2 defendants’ Daubert motion challenging Fagan’s report,3 and plaintiffs’ motion for class certification.4 Familiarity with these opinions is assumed. I include only new background here.
Dennis Smith is an associate professor of public policy at the Robert F. Wagner School of Public Service at New York University.5 He is an expert on police organizations and police behavior and has been studying the New York City Police Department (“NYPD”) since the 1970s.6 His scholarship (some of which has been published in books and peer-reviewed journals and much of which has not) has focused on “performance management” and on evaluating the efficacy of
2 See 8/31/11 Opinion and Order (“SJ Opinion”), 813 F. Supp. 2d 417 (S.D.N.Y. 2011).
3 See Fagan Daubert, 2012 WL 1344514. 4 See 5/16/12 Opinion and Order (“Class Cert. Opinion”), __ F.R.D. __, 2012 WL 1868637 (S.D.N.Y. May 16, 2012). 5 See Report of Dennis C. Smith, Ph.D. (“Smith Report”), Ex. B to Declaration of Darius Charney (“Charney Decl.”) in support of plaintiffs’ Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith, at 1. 6 See Declaration of Dennis C. Smith (“Smith Decl.”) ¶ 2.
2

public services, with a particular emphasis on police performance.7 He is not a
statistician and his only formal study of statistics took place over thirty-five years ago in graduate school, when he received his Ph.D. in political science.8 However,
according to Smith, his policy research has involved extensive collaboration with
experts from other fields, including statistical experts. “Statistical analyses . . . have consistently been critical components of [his] studies and publications.”9
Smith explains that he has “extensive experience critiquing the theories and
assumptions underlying statistical models” and that he is “able to understand and develop hypotheses regarding specific multiple regression models.”10
Since 2006, Smith has collaborated with Robert Purtell on much of his
work regarding the NYPD. Purtell is an assistant professor of finance and the
director of the Masters in Public Administration Program at the University at Albany, Nelson A. Rockefeller College of Public Affairs & Policy.11 According to
7 See Smith Curriculum Vitae (“Smith CV”), Appendix A to Smith Report, at 4-8.
8 See Deposition of Dennis C. Smith, Ph.D. (“Smith Dep.”), Ex. C to Charney Decl., at 300:17-301:25; Smith CV at 1.
9 Smith Decl. ¶ 5. 10 Id. ¶ 9. 11 See Declaration of Robert M. Purtell in Opposition to Plaintiffs’ Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith (“Purtell Decl.”) ¶ 1.
3

Smith, “[i]n all of my prior collaborative work with Purtell [on policing in New
York City], the models tested by his statistical analysis were developed primarily
by me based on my knowledge of policing – an area in which Purtell himself lacks
expertise and relies upon my guidance.”12 Purtell uses his expertise in statistics
and modeling to construct and implement regressions that will test Smith’s
theories.13 Although Purtell was initially identified as a testifying expert by
defendants, he did not produce an expert report.
Plaintiffs’ motion seeks to preclude Smith from testifying as follows:
1. Smith may not critique Fagan’s multivariate regression analyses and [Fagan’s] critique of the RAND study [that was commissioned by defendants];
2. Smith may not offer his correlation coefficient calculations and “alternative” regression analysis;
3. Smith may not opine on the meaning of low stop-and-frisk weapons recovery hit rates;
4. Smith may not opine on crime reduction in New York City, or otherwise testify about the results of the studies attached as Appendices D and E to his Expert report; and
5. Smith may not opine that NYPD officers do not conduct stops-and-frisks on the basis of race.14
II. LEGAL STANDARD
12 Smith Decl. ¶ 12. 13 See id. ¶ 18. 14 Memorandum of Law in Support of Plaintiffs’ Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith (“Pl. Mem.”) at 24.
4

The proponent of expert evidence bears the initial burden of establishing admissibility by a “preponderance of proof.”15 Rule 702 of the
Federal Rules of Evidence states the following requirements for the admission of
expert testimony:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Under Rule 702 and Daubert, the district court must determine
whether the proposed expert testimony “both rests on a reliable foundation and is relevant to the task at hand.”16 The district court must act as “‘a gatekeeper to exclude invalid and unreliable expert testimony.’”17 However, “the Federal Rules
of Evidence favor the admissibility of expert testimony, and [the court’s] role as
15 Bourjaily v. United States, 483 U.S. 171, 175-76 (1987) (discussing Rule 104(a) of the Federal Rules of Evidence). Accord Daubert, 509 U.S. at 592.
16 509 U.S. at 597. Accord Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49 (1999).
17 Bickerstaff v. Vassar Coll., 196 F.3d 435, 449 (2d Cir. 1999) (quoting Hollander v. American Cyanamid Co., 172 F.3d 192, 202 (2d Cir. 1999)).
5

gatekeeper is not intended to serve as a replacement for the adversary system.”18 In serving its gatekeeping function, the court’s focus must be on the principles and methodologies underlying the expert’s conclusions, rather than on the conclusions themselves.19 In assessing an expert’s methodology, courts may consider (1) “whether [the method or theory] can be (and has been) tested,” (2) “whether [it] has been subjected to peer review and publication,” (3) “the known or potential rate of error [associated with the technique] and the existence and maintenance of standards controlling the technique’s operation,” and (4) whether the method has achieved “general acceptance” with the relevant community.20
The courts’ gatekeeping function applies not only to “scientific” evidence, but also to proffers of “technical, or other specialized knowledge” under Rule 702.21 The objective of this function is to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the
18 Louis Vuitton Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 562 (S.D.N.Y. 2007) (citation and quotation marks omitted).
19 See Daubert, 509 U.S. at 595. 20 Id. at 592-95. 21 See Kumho Tire, 526 U.S. at 141.
6

practice of an expert in the relevant field.”22 However, recognizing that “there are many different kinds of experts, and many different kinds of expertise,” the Supreme Court has emphasized that the reliability inquiry “is a flexible one.”23 Accordingly, the factors “identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.”24 Ultimately, the inquiry “depends upon the particular circumstances of the particular case at issue.”25 In sum, the trial court has “the same kind of latitude in deciding how to test an expert’s reliability . . . as it enjoys when it decides whether or not that expert’s relevant testimony is reliable.”26
In addition, Rule 403 of the Federal Rules of Evidence states that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” “Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in

22 Id. at 152.

23 Id. at 150.

24 Id. (quotations omitted).

25

Id.

26 Id. at 152.

7

weighing possible prejudice against probative force under Rule 403 . . . exercises more control over experts than over lay witnesses.”27 Generally, “the rejection of expert testimony is the exception rather than the rule.”28 “The admission of expert testimony is committed to the broad discretion of the District Court and will not be disturbed on review unless found to be ‘manifestly erroneous.’”29 III. DISCUSSION
Plaintiffs seek to exclude five aspects of Smith’s report. I assess each one in the following discussion.
A. Smith’s Critique of Fagan’s Multivariate Regression Analyses Fagan conducted various regression analyses in order to evaluate
plaintiffs’ allegation that defendants are conducting stops and frisks on the basis of race, in violation of the Fourteenth Amendment.30 Among many other findings, Fagan’s regression analyses show that “NYPD stops-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local

27 28
702.
29 30

Id. (quotation marks omitted). Advisory Committee Note to the 2000 Amendment to Fed. R. Evid.
United States v. Wexler, 522 F.3d 194, 204 (2d Cir. 2008). See Fagan Daubert, 2012 WL 1344514, at *3-4, *10-11.
8

population, police patrol strength, and other social and economic factors predictive of police enforcement activity.”31 Notably, however, Fagan’s regression analyses

do not account for the racial distribution of the perpetrators of crime in New York

City.

In his report, Smith argues that this is a major flaw in Fagan’s analysis.32

Smith believes that by comparing the racial distribution of stops to the racial

distribution of the population, instead of to the racial distribution of criminal suspects, Fagan is using the wrong “benchmark.”33 As an analogy, Smith notes that the NYPD

stops women, children, and senior citizens at rates far below their share of the population.34 These groups of people are stopped at low rates, he argues, because they

commit a disproportionately small number of crimes. Like the disparity in stops on

the basis of gender and age, Smith argues, the disparity in stops on the basis of race

and ethnicity is driven by the disparity in the commission of crime, not by

unconstitutional discrimination. This dispute over “benchmarking” constitutes the

31 Id. at *4. 32 See Smith Report at 42, et seq. 33 See id. at 6. 34 See id.
9

parties’ central disagreement regarding Fagan’s analysis of discrimination.35 Plaintiffs argue that Smith is not qualified to make this benchmarking
critique because he “has never conducted a statistical study to assess the racial bias of stop-and-frisk or any other law enforcement program, practice, strategy or tactic, or claims of racial discrimination in any other governmental or private institution” and that, prior to his work on this case, Smith had done very little research into the question of racially-biased police stops.36
Plaintiffs’ point is better suited for cross-examination and closing argument than a Daubert motion. As an expert in police practices, Smith has the necessary expertise to evaluate Fagan’s hypotheses and the assumptions that Fagan used to build his model and he has the expertise to make his central “benchmark” criticism. Fagan explains that he chose not to use the crime suspect data in his benchmark because the data is incomplete; “race” is only known for approximately sixty percent of crimes and extrapolating that information to the remaining forty
35 As defendants put it, “[i]n an analysis concerned with whom the police are stopping, a reliable benchmark must take into account who is committing the crime.” Fagan Daubert, 2012 WL 1344514, at *4 (quoting Memorandum of Law in Support of Defendants’ Motion to Exclude Plaintiffs’ Proposed Expert Reports, Opinions and Testimony of Jeffrey Fagan at 12).
36 Pl. Mem. at 8. 10

percent of crimes might not be appropriate.37 Whether such an extrapolation would
be sound is as much a question of social science as technical statistics and the answer
turns largely on the investigator’s assumptions about the characteristics of the relevant
populations and about the accuracy of alternative metrics (such as the regression
analysis used by Fagan). Smith is therefore qualified to critique Fagan’s decision on
this issue.38
B. Smith’s Alternative Regression Analysis and Correlation Coefficient Calculations
In order to highlight what he believed was the central flaw with Fagan’s
benchmark decision, Smith devised (and Purtell constructed) an alternative regression
analysis based on arrest and crime complaint reports.39 Plaintiffs correctly point out
37 See Fagan Daubert, 2012 WL 1344514, at *4, *10. Notably, Fagan did perform such extrapolations in previous studies.
38 This was also the central issue in Fagan’s critique of the RAND study and Smith is likewise qualified to opine on that question. The other criticisms of Fagan’s regressions described in paragraph fifteen of Smith’s declaration (regarding temporal assumptions, smoothing of crime spikes, and the lack of detail in Fagan’s presentation) are relatively minor and may be more likely to confuse the jury than to clarify the issues; if necessary, the admissibility of these criticisms will be determined at trial.
Smith is not qualified to make technical critiques regarding the types of regression functions (negative binomial, multilevel logistic, etc.) that Fagan chose to use. As with the alternative regression analysis discussed below, however, Purtell will be permitted to address these topics.
39 See Smith Decl. ¶¶ 17-25. 11

that because he is not an expert in statistics, Smith is unable to “establish that both the choice of variables and the actual running of the model were methodologically sound.”40 Without these verifications, Smith’s testimony is inadmissible.
However, given the importance of presenting otherwise admissible information to the jury in this case and given the lack of prejudice to plaintiffs, the appropriate solution is to permit Purtell to testify about the technical aspects of the alternative regression analysis and the correlation coefficient calculations. If he agrees with it, Purtell may therefore “adopt” Smith’s expert report, be deposed by plaintiffs, and testify at trial regarding technical aspects of Smith’s report. This late alteration to the expert schedule is appropriate because discovery and motion practice has taken many years, one additional deposition will not delay the trial date, and in a case of such significance involving complicated social science data it is important that the jury be permitted to fully consider both parties’ admissible arguments about what the data shows.
Plaintiffs argue that Purtell, like Smith, is not qualified to offer critiques of Fagan’s regressions because he has never conducted racial disparity studies or researched appropriate benchmarking techniques. But this argument goes to weight,
40 Plaintiffs’ Reply Memorandum of Law in Further Support of Their Motion to Exclude Certain Opinions of Defendants’ Proposed Expert, Dennis Smith (“Pl. Rep. Mem.”) at 6.
12

not admissibility; even if Purtell has not previously conducted regression analyses on
these particular topics, he has conducted many regressions on other topics and he is
qualified to point out what he perceives as errors in Fagan’s methodology and explain
the technical aspects of Smith’s alternative regression model.
After Purtell establishes the methodological soundness of the alternative
regression analysis, Smith may testify regarding the qualitative theories and
assumptions that went into its construction and to the conclusions that he believes it
supports. Although the regression was disclosed belatedly, fairness requires its admission.41
C. Smith’s Crime Reduction Studies and Opinions
Smith devotes a significant portion of his report to discussing the central
role that he believes the NYPD’s stop and frisk program (and the related Operation Impact) has had in “the historic crime decline achieved by New York City.”42 One of
Smith’s central critiques is that “[t]he Fagan analysis does not explicitly confront the
41 The alternative regression was disclosed on December 19, 2011, as part of defendants’ Daubert attack on Fagan’s testimony, which was more than a year after the deadline for submission of expert rebuttal reports. I permitted plaintiffs and Fagan to submit a new and tardy analysis when seeking partial reconsideration at the summary judgment stage, see 813 F. Supp. 2d at 462, and permitted Fagan to make corrections to his findings in February 2012 after Purtell and Smith pointed out major errors in his calculations, see Fagan Daubert, 2012 WL 1344514, at n. 36.
42 Smith Report at 41. 13

historic shift at NYPD away from a primary mission of responding to crime to a mission of preventing crime through proactive and crime targeted police vigilance.”43 Included as appendices to Smith’s report are two studies that he and Purtell wrote about reduced crime rates resulting from Operation Impact and the NYPD’s stop and frisk program.
Plaintiffs argue that “Smith’s crime reduction opinions” should be excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?”44 Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of these programs “are indeed relevant, as they represent alternative, race-neutral explanations for the racial patterns in [stops and frisks] which Fagan failed to consider in his analysis of the data” and that “[e]xcluding Smiths opinions would be highly prejudicial by forcing the jury to accept Fagan’s word unchallenged . . . when such strong evidence of methodological problems exists.”45
Defendants are conflating two different aspects of Smith’s report: his
43 Id. at 4. 44 Pl. Mem. at 18. 45 Def. Mem. at 18-19.
14

benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and increase safety, particularly in minority neighborhoods. As I explained above, Smith’s benchmarking critique challenges Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher rates; it is a descriptive claim about the nature of racial disparities that is probative of the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore admissible.
However, Smith’s opinions about the deterrence and crime reduction impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime provides further evidence for his alternative hypothesis that [stops and frisks] are driven by where the crime occurs rather than by racial discrimination.”46 But there are only two ways in which the effectiveness of the stop and frisk program can be probative of its legality. First, defendants could argue that they have adopted a program that discriminates on the basis of race but nevertheless survives strict scrutiny because it is narrowly tailored to achieve a compelling governmental objective.47 But defendants
46 Id. at 19. Plaintiffs point out that Fagan’s regressions show that racial disparities persist even when he controls for “where the crime occurs,” but this is a reasonable ground for disagreement given the benchmarking dispute.
47 See Johnson v. California, 543 U.S. 499, 505 (2005). 15

explicitly disclaim any such defense.48 The only other way in which “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime” could be probative of the activity’s legality is by bolstering the defense that NYPD policymakers and officers have the intent only of reducing crime and are not deciding whom to stop on the basis of race.49 But Smith is not qualified to provide this testimony. Both in their court filings and in public comments, defendants regularly state that the intent behind the program is to reduce crime, not to discriminate. Defendants and their representatives may testify about why the City has adopted and pursued the stop and frisk program; on the basis of that testimony and the testimony of plaintiffs’ witnesses, the jury will determine whether defendants are discriminating on the basis of race, either when making individual stops or as a matter of policy or custom. Defendants clearly believe that the program has been effective in reducing crime. Whether or not Smith agrees with defendants’ assessment is irrelevant. Moreover, admitting Smith’s testimony – and permitting the parties to delve into the question of whether the stop and frisk program actually reduces crime – would risk
48 “The strict scrutiny inquiry is unnecessary in the present case because the City will establish, based on the evidence provided by Smith and others, that there is no discriminatory purpose on the part of the NYPD.” Def. Mem. at 24.
49 Both parties agree that in order to prevail on their Fourteenth Amendment claims in this case plaintiffs are required to prove racially discriminatory intent or purpose. See Pl. Mem. at 21.
16

turning the trial into a policy debate over the wisdom of the program rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.
D. Smith’s Hypotheses on Hit Rates According to Fagan, the NYPD’s data shows that approximately five
percent of stops result in an arrest, six percent of stops result in a summons, guns are seized in 0.15 percent of stops, and contraband of any kind is seized in 1.75 percent of stops.50 I found these statistics powerful evidence of a widespread pattern of unlawful stops: In “eighty-eight percent of cases [where no arrest was made or summons given], although they were required by law to have objective reasonable suspicion that crime was afoot when they made the stop, police officers ultimately concluded that there was no probable cause to believe that crime was afoot. That is to say, according to their own records and judgment, officers’ “suspicion” was wrong nearly nine times out of ten.”51
In rebuttal, defendants seek to admit Smith’s opinion that “the test of success in a proactive, prevention-focused program is not the same as in an assessment of a reactive program” and that if “the goal of NYPD is to pursue
50 See Fagan Daubert, 2012 WL 1344514, at *7. According to numbers obtained by the New York Post, the gun recovery hit rate in the second quarter of this year was 0.14 percent, almost identical to the rate over previous years. See David Seifman, NYPD Less ‘Frisk’y, N.Y. Post, Aug. 3, 2012.
51 See Class Cert. Opinion, 2012 WL 1868637, at *8. 17

practices that convince would be gun carriers to leave their guns at home, why would the fact that over time fewer guns are found in suspicion-based stops be a sign of failure?”52 Defendants argue that Smith should be permitted to opine that the low rate of gun recoveries “may be explained in part by the deterrent effect of increased [stops and frisks],” because he is simply offering a “plausible alternative explanation” that will “challenge the reliability of Fagan’s conclusion” about the significance of this statistical pattern.53
Defendants are wrong. Fagan is proposing hypotheses about the objective circumstances that immediately precede stops on the basis of those stops’ outcomes: if police officers only arrest or give summonses to twelve percent of the people they stop, then perhaps their initial “suspicion” that crime was afoot was in fact not reasonable; if guns are rarely recovered, then perhaps the “suspicious bulges” that police identify are not really suspicious. Smith, on the other hand, offers a hypothesis about the class members’ fears and motives: perhaps New York City residents are not carrying guns, he says, because they know that they will be stopped and frisked. Smith cites no evidence for this hypothesis. This theory about the reasons that so few stopped people are carrying weapons is too speculative to be admitted at trial,
52 Smith Report at 39. 53 Def. Mem. at 18.
18

particularly through the testimony of an expert.
I also note that Smith’s hypothesis is not even couched as a rebuttal of
Fagan’s hypothesis that the low hit rates suggest a lack of reasonable suspicion;
instead, Smith appears simply to attempt to justify stops on the basis of their deterrent impact, regardless of their legality.54 Thus, the opinion is also irrelevant, and it is
surely not based on any scientific methodology.
E. Smith’s Opinion that NYPD Stops-and-Frisks Are Not Racially Motivated
Plaintiffs seek to exclude Smith’s opinion that “there is no compelling
evidence that NYPD officers are making stops based on race or ethnicity, but instead
are pursuing a strategy and using tactics that prevent crime and benefit the City as a whole, and communities of color in particular.”55 As stated above, Smith will be
permitted to testify that, because of the benchmarking dispute and other more minor
critiques, he does not believe Fagan’s report presents compelling evidence that NYPD
54 Smith compares street stops with airport security and asks, “[i]f the security checks at airports find an infinitesimal number of weapons or bombs would any reasonable person assess this as a failure of this deterrence practice?” Smith Report at 39. This flawed analogy highlights the analytical shortcoming of Smith’s persistent focus on deterrence rather than on the law of reasonable suspicion. People go through airport security as a condition of their voluntary choice to board an airplane; the class members have been stopped and frisked involuntarily while sitting on their stoops or walking down the street, which implicates an entirely different legal analysis.
55 Pl. Mem. at 21 (quoting Smith Report at 8). 19

officers are making stops based on race or ethnicity. But, as plaintiffs argue, “Smith did not conduct a study through which
he determined that crime deterrence, rather than race, was a statistically significant and robust predictor of stop and frisks, nor did he conduct a statistical analysis that identified crime deterrence as the motivating factor in NYPD stops and frisks.”56 Smith will not be permitted to testify regarding his opinion that the NYPD’s policies “prevent crime and benefit the City as a whole, and communities of color in particular.” As explained above, although his crime reduction opinions may be relevant as a policy matter, they will not help the jury answer the constitutional questions posed by this lawsuit. Neither expert will be permitted to speculate about the intent of NYPD policymakers or the efficacy of those policies, although defendants and their representatives may testify as to their intent. IV. CONCLUSION
Plaintiffs’ motion is granted in part and denied in part. The Clerk of the Court is directed to close the motion [Docket No. 215]. A status conference is scheduled for August 27 at 3:30 p.m. Defendants are directed to make Robert Purtell available for deposition as soon as practicable.
56 Pl. Rep. Mem. at 9. 20

SO ORDERED: 


Dated:

August 17,2012 New York, New York

21 


- Appearances -
For Plaintiffs:
Darius Charney, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464
Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, New York 10016 (212) 277-5850
Eric Hellerman, Esq. Philip Irwin, Esq. Gretchen Hoff-Varner, Esq. Daniel A. George, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1000
For Defendants:
Heidi Grossman Stephanie M. Breslow Judson Vickers Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0792
22

 
 Case 1:08-cv-01034-SAS-HBP Document 229 Filed 08/29/12 Page 1 of 2

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

DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

ORDER

Plaintiffs,

08 Civ. 1034 (SAS)

- against-

THE CITY OF NEW YORK, et al.,

Defendants.

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

Defendants are instructed to deliver for in camera review, by no later

than August 31, 2012, the entire set of documents for which they are asserting the

Dated:

New York, New York August 28,2012

1 


Case 1:08-cv-01034-SAS-HBP Document 229 Filed 08/29/12 Page 2 of 2
- Appearances ­ For Plaintiffs:
Darius Charney, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464 Eric Hellennan, Esq. Kasey Martini, Esq. Covington & Burling LLP 620 Eighth Avenue New York, New York 10018 (212) 841-1155
For Defendants:
Heidi Grossman Brenda Cooke Susanna Publicker Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0792
2 


 
 Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 1 of 8

FLOYD, et at.,
-against­
THE CITY OF NEW YORK, et al.,

Plaintiffs, Defendants.

STIPULATION AND ORDER
08 Civ. 01034 (SAS)

x WHEREAS, pursuant to Order dated November 1,2010, and after the passage of 2010 NY Laws 176, this Court received from defendants and maintained under seal for safekeeping a searchable version of the NYPD UF250 database from January 31, 2005 through
July 16,2010, which contained the names and addresses of the individuals who were stopped to
the extent that such information existed in the database; WHEREAS, on May 16, 2012, this Court granted plaintiffs' motion to certify a
class; WHEREAS, at a conference on May 29,2012, the Court indicated that plaintiffs
were entitled to contact a limited number of individuals whose personal identifying information appears in the sealed UF250 database to pursue their alleged claims under Monell v. Department o[Sociai Servs., 436 U.S. 658 (1978);
WHEREAS, pursuant to Order dated, November 1, 2010, and by letter received from plaintiffs on August 17,2012, plaintiffs made appropriate application to obtain the names, addresses and phone numbers of 21,774 people as recorded in the sealed 2009 NYPD UF2S0 database for the purposes of contacting them regarding participation in the class action;

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 2 of 8

WHEREAS~ at a conference held on August 27, 2012, the Court granted

plaintiffs' request for the data and set certain deadlines regarding the disclosure and handling of

the data; and

WHEREAS, the parties seek to preserve the confidentiality of statutorily

confidential data and that the action ordered herein is not construed or intended to be in any way

a derogation of any binding state statutes;

IT IS HEREBY STIPULATED~ AGREED TO AND SO ORDERED:

1. Unsealing of Database. The Court will order the Clerk of the Court to release the

NYPD UF250 database to defendants' counsel for the purposes described herein, including

identifying names, addresses and telephone numbers in the 2009 UF250 database limited to the

UF250 forms identified in Exhibit A, annexed hereto.

2.

AC~1~tDatab~~l(j1'y_NYPD/ldentific'\tion of Sealed Data. Defendants' counsel

may make the database available to non-patrol NYPD technology personnel solely for the

purpose of making best efforts to identify the individuals on Exhibit A where the UF250

indicates: (1) the person's date of birth on or after January 1, 1993; (2) that the suspect was

arrested; or (3) that a summons issued ("sealed data"). Upon completion of the identification of

the sealed data, the NYPD will return the database and the identified information to defense

counsel and will not retain the database or the identified information in any form. Defense

counsel will maintain the database until the procedures herein are complete for the sale purpose

offacilitating the terms of this StipUlation and Order. Upon completion of the procedures herein,

defense counsel will return the database to the Court for continued sealing and maintenance.

Defense counsel will maintain the identified information regarding the sealed data for attorneys'

eyes only purposes and will not attempt to contact or conduct discovery using the personal

-2 ­

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 3 of 8
identifying information from the database related to any of the individuals represented in Exhibit A except as provided in paragraph 6.
3. Magistrate Judge <:::gntact of Individuals with Sealed Data. By September 14, 2012, defense counsel will forward to Magistrate Judge Pitman the names and addresses of the individuals represented in Exhibit A who are identified as having sealed data. Using this information, Magistrate Judge Pitman will contact these individuals by way of postage paid letters supplied and paid for by plaintiffs in the form agreed to between the parties and attached hereto as Exhibit B. Only in the event that these individuals waive their statutory right to privacy and indicate a willingness to be contacted by plaintiffs' counsel in a returned postage paid postcard to Magistrate Judge Pitman, made within thirty (30) days of the initial mailing, may their contact information be made avaiJable to plaintiffs' counsel. Magistrate Judge Pitman will provide the names and contact information of individuals who returned postcards within the thirty (30)-day response period to the parties' counsel as soon as practical and no later than one (1) week after the thirty (30)-day response period has expired. Defense counsel shall maintain the information for attorneys' eyes only purposes and shall not attempt to contact or conduct discovery using the personal identifying information from the database related to any of the individuals represented in Exhibit A except as provided in paragraph 6.
4. Contact of Other Individuals in the UF 250 Database. By September 14,2012, the same date that they provide Magistrate Judge Pitman with the information described in Paragraph 3, defense counsel shall provide plaintiffs' counsel with the names, addresses and phone numbers of those individuals represented on Exhibit A who do not have sealed data. Initially, plaintiffs' counsel may only contact such individuals in writing in the form agreed to between the parties and attached hereto as Exhibit C. Any and all initial ¥lritten mailings to
-3­

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 4 of 8

these individuals must be made no later than the date of the Magistrate Judge's mailing described

in paragraph 3. Only if these individuals express an interest in the litigation in a returned

postcard within thirty (30) days of the initial mailing may plaintiffs' counsel follow-up in a more

detailed telephone calL Plaintiffs' counsel will produce to defendants' counsel copies of all

returned postcards on a rolling basis as they are received by plaintiffs and no later than within

one (1) week after the thirty (30) day response period has expired. Defense counsel shall

maintain the postcards for attorneys' eyes only purposes and shall not attempt to contact or

conduct discovery using the personal identifying information from the database related to the

individuals who return the postcards except as provided in paragraph 6.

5.

List QfEL<!intiffs'Pot~ntiatIrial Witnesses. By November 9, 2012, plaintiffs

will make Fed. R. eiv. P. 26 (a)(1) (A) disclosures regarding these individuals and other

potential plaintiff class members who have contacted plaintiffs' counsel since class certification

and were not previously disclosed by plaintiffs during fact discovery.

6. Plaintiffs' Rule 26 Disclosure. Upon plaintiffs' Rule 26(a)(l)(A) disclosures

referred to in paragraph 5, defendants will no longer be bound by the attorneys' eyes only

limitations specified in paragraphs 2 through 4 as to those individuals listed in plaintifls' Rule

26(a)(1 )(A) disclosures referred to in paragraph 5, except that neither defense counsel,

Defendants or any employee ofNYPD may contact those individuals directly. Further, within a

reasonable time after plaintiffs' Rule 26(a)(1 )(A) disclosures referred to in paragraph 5,

defendants may seek a reasonable time to conduct discovery and plaintiffs will not unreasonably

withhold their consent to defendants' request and under no circumstances will plaintiffs object to

any time request that seeks the same or less amount of time used by plaintiffs to make their Rule

26(a)(I)(A) disclosures.

- 4-

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 5 of 8

Dated: New York, New York August 29,2012
:rt::L:I~ -. _m
Darius Charney, Es . CENTER FOR CONSTITUTIONAL RIGHTS Counsel for PlaintiffS 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6475

---'.,---
Cecilia A. Silver. Esq. Assistant Corporation Counsel
Counsel for Defendants 100 Church Street New York, NY 10007 (212) 788·8684

SOORD D

Q \

-

--=--. ~

"

Sf) IV'

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 6 of 8
Exhibit B:
Dear
This letter is to advise you that you are either a potential witness or member of a federal class action lawsuit entitled Floyd v. the City ofNew York, which seeks injunctive and declaratory relief against the City of New York for alleged constitutional violations. The constitutional violations alleged are unlawful stops and frisks by the officers of the NYPD, done without reasonable suspicion and on the basis of racial profiling. This class action does not seek money on behalf of the class members.
Your name was obtained from records supplied by the NYPD pursuant to court order. Please be advised that, by operation of Criminal Procedure Law § 140.50(4), the NYPD no longer maintains a computer database of stop, question and frisks that contains your name and contact information.
The attorneys for the plaintiff class in this lawsuit would like to talk to you to discuss the case, to determine whether you might be a witness or a member of the class of plaintiffs, and how you might participate in the case, if you wish to do so. If you are a juvenile, or were a juvenile at the time of the allegedly unconstitutional stop, please be advised that no personal information, even contact information, will be sent to plaintiffs' counsel unless you consent to the unsealing of your records. If you were arrested or received a summons subsequent to the allegedly unconstitutional stop, please be advised that no personal information, even contact information, will be sent to plaintiffs' counsel unless you consent to the unsealing of your records which have been sealed by operation of Criminal Procedure Law § 160.50.
If you are interested in speaking with the attorneys for the plaintiff class in this lawsuit, please fill out the enclosed form indicating your willingness to have a lawyer for the plaintiff class contact you by telephone. You are under no legal obligation to return the enclosed form, to cooperate with plaintiffs' counsel or to speak with them.
If the Court does not receive a completed form within 30 days of this mailing or otherwise hear from you, the Court will assume you do not wish to speak to plaintiffs' counsel, and they will not contact you.
Sincerely,

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 7 of 8
Exhibit C:
This letter is to advise you that you are either a potential witness or member of a federal class action lawsuit entitled Floyd v. the City ofNew York, which seeks injunctive and declaratory relief against the City of New York for alleged constitutional violations. The constitutional violations alleged are unlawful stops and frisks by the officers of the NYPD, done without reasonable suspicion and on the basis of racial profiling. This class action does not seek money on behalf of the class members.
We obtained your name from records supplied by the NYPD pursuant to court order. Please be advised that, by operation of Criminal Procedure Law § 140.50(4), the NYPD no longer maintains a computerized database of stop, question and frisks that contains your name and contact information.
As attorneys for the class of plaintiffs, we would like to talk to you to discuss the case, to determine whether you might be a witness or a member of the class of plaintiffs, and how you might participate in the case, if you wish to do so. We are prohibited from disclosing anything you tell us unless you agree to such disclosure. We will not publicize your identity unless you agree to such pUblication. You are under no legal obligation to cooperate with us, or even talk to us.
If you are interested in speaking with us, please fill out and mail the enclosed form indicating your willingness to have a lawyer for the plaintiff class contact you by telephone. Ifwe do not receive a completed form within 30 days of this mailing or otherwise hear from you, we will assume you do not wish to speak to us.
Sincerely,
- -..----.~---.----

Case 1:08-cv-01034-SAS-HBP Document 230 Filed 08/30/12 Page 8 of 8 Letterfor Arrested and Summonsed Adults and Juveniles

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, on behalf of themselves and all others similarly situated,

"
\ USDCSDNY DOClJ1VlENT
ELECfF.ONIC/\LLY FILED ~ \
-:'h=J DDOATCE#F: 1LED~ q - 7 -\\
MEMORANDUM 
 OPINION AND ORDER 


Plaintiffs,

08 Civ. 1034 (SAS) 


- against-

THE CITY OF NEW YORK, et al.,

Defendants.

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

Plaintiffs seek production of all documents related to the creation and

implementation of the NYPD's Operations Order No. 52, dated October 17,2011,

and two other related orders. The subject of Order 52, which was distributed to all

commands ''by direction of the Police Commissioner" is "Police Officer

Performance Objectives."i Among other things, it mandates that officers engage in

proactive enforcement activities including ''the issuance of summonses, the

stopping and questioning of suspicious individuals, and the arrests of criminals,"

and that "Department managers can and must set performance goals" related to

Operations Order 52 at 1,5. 1 


those activities.2
A committee of high-ranking NYPD officials was tasked with making
recommendations to the Commissioner regarding the promulgation of the Orders.
Pursuant to the deliberative process privilege, defendants seek to shield from
disclosure the documents produced by members of that committee. Defendants
have submitted the approximately 1300 pages of documents at issue to the Court
for in camera review, and I have examined a significant portion of them. A large
majority of the pages are from draft versions of the Orders that were circulated
among committee members. A small percentage of pages are cover memos that
summarize changes and express opinions on the Orders. And a very small
percentage constitute Power Point slides discussing the Orders.
The deliberative process privilege protects from disclosure "documents reflecting advisory opinions, recommendations and deliberations comprising part ofa process by which governmental decisions and policies are formulated." 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. ,,3
In order for a document to be covered by the deliberative process

2

[d. at 1.

3 Davis v. City ofNew York, No. 10 Civ. 699, 2011 WL 1742748, at *2 (S.D.N.Y. May 5,2011) (quoting National Council ofLa Raza v. Department of Justice, 411 F.3d 350,356 (2d Or. 2005) and Tigue v. United States Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002)).

2 


privilege, it must be both predecisional and deliberative.4 As I have previously
explained:
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 to the privileged information. Factors favoring disclosure include: (1) the relevance ofthe 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 ofthe requesting party's case ... and (4) the importance ofdisclosure 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 ofinttrnal candor.5
In this case, defendants' interest outweighs plaintiffs'. Having
examined the documents, I conclude that they are not relevant to plaintiffs' case
and there is no particular public interest in their disclosure. The documents
primarily address mundane and technical questions regarding how and when
officers should report to their supervisors (i.e., the very topics detailed in
paragraphs four through twenty-two of Order 52).
Plaintiffs pose the following questions as examples of the importance
4 See National Council o/La Raza, 411 F.3d at 356. 5 Davis v. City o/New York, 2011 WL 1742748, at *2-3 (quoting MacNamara v. City o/New York, 249 F.R.D. 70, 79 (S.D.N.Y.2008) and King v. Conde, 121 F.RD. 180, 191-93 (E.D.N.Y. 1988)) (quotation marks omitted).
3 


of these documents to proving their allegations of deliberative indifference on the part of defendants:
For example, what ifthe day after this Court's summary judgment decision someone involved in promulgating Operations Order No. 52 warned that perhaps they should reconsider to prevent the risk of constitutional violations, and what if a high ranking NYPD official responded that the order would issue despite that risk? Who decided to emphasize "can and must"?6 First, in my review of the documents I have seen no references to this lawsuit or to the constitutional rights of civilians or even any discussion of stops and frisks (beyond the references to them that appear in the Order). The vast majority of the edits and comments relate merely to reporting procedures that are irrelevant to this lawsuit. And defendants were clearly aware of this lawsuit at the time Order 52 was issued. Second, it does not matter who initially recommended emphasizing the words "can and must" because, ultimately, the Police Commissioner ordered that they be emphasized and distributed the order to all commands. The City is clearly responsible for that decision, regardless of who initially suggested it. When asserting the deliberative process privilege, "the burden of persuasion rests on the party seeking to prevent disclosure" and "that burden is a heavy one, in view of 'the great weight of the policy in favor of discovery in civil
6 8/24112 Letter from Darius Charney to the Court at 2. 4 


rights actions and the normal presumption in favor of broad discovery.",7 In this instance, however, because plaintiffs have failed to demonstrate that the documents at issue are relevant and because the final Orders promulgated by the NYFD are as helpful to plaintiffs as the draft Orders and cover memoranda, defendants' strong interest in encouraging deliberative candor carries their burden of persuasion. Accordingly, plaintiffs' request for these documents is DENIED.
SO ORDERED:

III

Dated:

September 7, 2012 New York, New York

7 Davis, 2011 WL 1742748, at *3 (citing King, 121 F.RD. at 191, and MacNamara, 249 F.RD. at 80).
5 


- Appearances ­ For Plaintiffs: Darius Charney, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, New York 10012 (212) 614-6464 For Defendants: Susanna Publicker Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-8084
6 


 
 CaCsaese1:0182--c2v2-016034D-SoAcuSm-HeBntP: 32DocuPmageen:t 1235 10F/i1le0d/21001/210/12742P0a3g2e 1 o1f 1

MANDATE United States Court of Appeals FOR THE SECOND CIRCUIT

S.D.N.Y.–N.Y.C. 08-cv-1034
Scheindlin, J.

At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 10th day of October, two thousand twelve.

Present:

John M. Walker, Jr., Christopher F. Droney,
Circuit Judges.*

City of New York, et al.,

Petitioners,

v.

David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, individually and on behalf of all others similarly situated,

Respondents.

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: O__ct_o_b_e_r _1_0_, _2_0_1_2_
12-2206

Petitioners, through counsel, move, pursuant to Federal Rule of Civil Procedure 23(f), for leave to appeal the district court’s order granting Res pondents’ motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is DENIED because an immediate appeal is unwarranted. See Sumitomo Copper Litig. v. Credit Lyonnais Rouse, Ltd,.262 F.3d 134, 139-40 (2d Cir. 2001).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

_________________________________ * Debra Ann Livingston, originally a member of the panel, has recused herself. The two remaining members of the panel, who are in agreement, have determined the motion. See 28 U.S.C. § 46(d); 2d Cir. Internal Operating Procedure E; United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998).
SAO-JM
MANDATE ISSUED ON 10/10/2012

 
 Case 1:08-cv-01034-SAS-HBP Document 365 Filed 06/12/13 Page 1 of 21

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------x
DAVID FLOYD, et al.,
Plaintiffs
v.
THE CITY OF NEW YORK, et al.,
Defendants. -------------------------------------------------------x

08 Civ. 1034 (SAS)
STATEMENT OF INTEREST OF THE UNITED STATES

STATEMENT OF INTEREST OF THE UNITED STATES
This litigation presents two questions of critical public importance: whether the stopand-frisk practices of the New York City Police Department (“NYPD”) violate the Fourth or Fourteenth Amendments to the United States Constitution and, if so, what remedial measures are needed to bring NYPD’s conduct into constitutional compliance. The United States takes no position on the fact-dependent first question of whether NYPD’s stop-and-frisk practices violate constitutional standards such that Plaintiffs should prevail on the merits of their claims. The United States files this Statement of Interest only in order to assist the Court on the issue of remedy, and only should it find that NYPD’s stop-and-frisk practices are unlawful. Given that the Court has consolidated the liability and remedy phases of this litigation and has requested simultaneous post-trial briefing on both issues, the United States files this Statement of Interest on the subject of remedy at this time even though liability remains undetermined.1 The United

1

In light of the fact that this Statement of Interest is limited to a narrow remedies issue, the United States

would have preferred to file this brief if, and only if, the Court finds that Plaintiffs have met their burden to establish

liability. However, because the Court has denied Plaintiffs’ requests to bifurcate the liability and remedy phases of

these proceedings, see Jan. 4, 2013 Tr. at 76-77, 84-85, and has requested post-trial briefing from the parties on all

issues by June 12, 2013, see May 20, 2013 Tr. at 8101, the United States makes this filing at this time. On the issue

of remedies, the United States has reviewed the parties' March and April 2013 filings, among other trial documents.

Case 1:08-cv-01034-SAS-HBP Document 365 Filed 06/12/13 Page 2 of 21
States requests that the Court provide the parties an opportunity to respond to the limited issues raised by this Statement of Interest on an appropriate schedule as determined by the Court.
It is the position of the United States that, should the Court find that NYPD’s stop-andfrisk practices are unlawful, the Court has wide discretion to enter injunctive relief aimed at bringing any practices it finds to be unlawful into compliance with the Constitution and other laws. The injunctive relief may include the appointment of an independent monitor for the limited purpose of assisting the Court and the parties to ensure that any remedy related to any adverse findings regarding stop-and-frisk practices is implemented.
The United States has authority to file this Statement of Interest pursuant to 28 U.S.C. § 517, which permits the Attorney General to attend to the interests of the United States in any case pending in federal court. The United States has a broad interest in ensuring that identified unconstitutional police conduct is adequately remedied given that it is responsible for enforcing several federal civil rights statutes that prohibit law enforcement agencies from depriving persons of their rights under the Constitution and other laws. The United States enforces the police misconduct provision of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141, which authorizes the Attorney General to file lawsuits seeking court orders to reform police departments engaging in a pattern or practice of violating citizens’ federal rights. The United States also enforces the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which prohibit discrimination on the basis of race, color, sex, or national origin by police departments receiving federal funds. Pursuant to these statutes, the United States has worked to remedy violations of the Constitution and other federal laws and to achieve
After conferring with counsel of record for NYPD and the City of New York on June 12, the Department of Justice understands that NYPD and the City maintain the position consistent with their earlier filing.
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sustainable reform in numerous law enforcement agencies around the country. See, e.g., United States v. Puerto Rico, 12-cv-2039 (D.P.R. filed Dec. 21, 2012); United States v. Town of East Haven, 12-cv-1652 (D. Conn. filed Nov. 20, 2012); United States v. City of Seattle, 12-cv-1282 (W.D. Wash. filed July 27, 2012); United States v. City of New Orleans, 12-cv-1924 (E.D. La. filed July 24, 2012); United States v. Territory of the Virgin Islands, 08-cv-158 (D.V.I. filed Dec. 23, 2008); United States v. City of Detroit, 03-72258 (E.D. Mich. filed June 12, 2003); United States v. City of Los Angeles, 00-cv-11769 (C.D. Cal. filed Nov. 3, 2000); United States v. City of Pittsburgh, 97-cv-354 (W.D. Pa. filed Feb. 26, 1997).
The United States’ strong interest in ensuring constitutional policing would be directly and substantially implicated should the Court find that NYPD stops and searches individuals in a manner that violates the Fourth or Fourteenth Amendments. The Fourth Amendment’s protection against unreasonable searches and seizures and the Fourteenth Amendment’s guarantee of equal protection of the laws are bedrock constitutional rights that safeguard individuals from unlawful police conduct. Virtually every police investigation conducted by the Civil Rights Division of the Department of Justice touches on these issues in some way, and the form of the remedies available are critical to this nationwide work. In light of the United States’ clear interest in ensuring that any constitutional deficiencies the Court may find are adequately remedied, the United States files this Statement of Interest on the availability and appropriate scope of injunctive relief.
BACKGROUND Plaintiffs filed a complaint against the City of New York in January 2008, challenging NYPD’s stop-and-frisk program under the Fourth and Fourteenth Amendments.2 See Complaint

2

This is not the first case to challenge the constitutionality of NYPD’s stop-and frisk conduct. In 1999, a

putative class of plaintiffs filed a complaint against the City of New York, similarly alleging that NYPD’s practices

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[ECF No. 1]; Second Amended Complaint [ECF No. 50]. The Court granted Plaintiffs’ Motion for Class Certification in May 2012. See May 16, 2012 Order [ECF No. 206]. A bench trial on both liability and remedy began on March 18, 2013, and concluded on May 20, 2013.
With regard to remedy, Plaintiffs seek declaratory and injunctive relief, and have proposed specific remedies that they believe are necessary should the Court find that there exist constitutional deficiencies within NYPD’s stop-and-frisk practices. See Memorandum of Law in Support of Plaintiffs’ Requested Injunctive Relief (“Pls.’ Mem.”) [ECF No. 268]. The relief Plaintiffs seek includes both short- and long-term remedial measures. Specifically, Plaintiffs request the immediate implementation of several changes to NYPD policies and practices that govern the documentation, supervision, and evaluation of officer stop-and-frisk activity, as well as the creation of a joint remedial process—which includes input from NYPD officers and other members of the New York City community—to identify additional measures that may be necessary for the Court to order. Id. At the core of the relief Plaintiffs seek is the appointment of an independent monitor to facilitate and assess NYPD’s implementation of any corrective measures the Court might order. Id. at 20-27.
The City of New York (“City”) opposes Plaintiffs’ request for injunctive relief on two main grounds. First, the City broadly challenges the scope of this Court’s authority to issue injunctive relief, even if this litigation reveals that NYPD engages in a pattern or practice of
regarding stops and searches violated the Fourth and Fourteenth Amendments. See Daniels v. City of New York, 99cv-1695 (S.D.N.Y. filed March 18, 1999). That litigation resulted in a 2003 settlement agreement that required the City to adopt a variety of remedial measures, including the creation of an NYPD policy on racial profiling, the revision of NYPD’s reporting practices regarding stops and searches, and regular audits of stop and search reports. See Stipulation of Settlement, 99-cv-1695 [ECF No. 152]. The City gained release from that Agreement in 2007.
The United States also recognizes the significant reduction in certain crime under Mayor Bloomberg’s tenure. In 2012, for example, the murder rate in New York City fell 18.5% below the previous year, and the rate of shooting incidents fell 8.5%. See Michael Howard Saul, Homicides Down for 2012, Wall Street Journal, Dec. 25, 2012. In all, during Mayor Bloomberg’s tenure the murder rate has fallen by roughly 35%. See Historical Citywide Crime Data Archive, New York Police Department, http://www.nyc.gov/html/nypd/html/analysis _and_planning/historical_nyc_crime_data.shtml.
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violating the Constitution. See Defendants’ Memorandum of Law in Opposition to Plaintiffs’ Requested Injunctive Relief (“Defs.’ Mem.”) [ECF No. 274] at 5-7. Second, the City argues that both the short- and long-term relief Plaintiffs seek is unnecessary given the policies, procedures, and oversight that NYPD already has in place to safeguard against unlawful stops and searches. Id. at 7-18. In particular, the City opposes the appointment of an independent monitor on the basis that NYPD receives ample oversight from its Internal Affairs Bureau, the Chief of Department Investigations, and the Civilian Complaint Review Board, as well as state and federal prosecutors and the New York City Council. Id. at 13-15.
DISCUSSION It is the view of the United States that it would be lawful and appropriate for the Court to enter injunctive relief if this litigation reveals constitutional deficiencies in NYPD’s stop-andfrisk conduct. Where there exists a pattern or practice of police misconduct, a court has broad discretion to enter injunctive relief aimed at remedying that misconduct. While it is unquestionably within this Court’s sole discretion to determine the specific scope of injunctive relief, the 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, if any pattern or practice is found to exist, it is effectively and sustainably remedied. In addition, an independent monitor would provide the Court with necessary information to assess whether any remedial measures this Court enters are actually resulting in constitutional policing on the ground. Moreover, the appointment of an independent monitor would be essential to ensuring that the New York City community has confidence in the reform process.
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I. If the Court Finds that NYPD’s Stop-and-Frisk Practices Violate the Constitution, the Court has Broad Authority to Enter Injunctive Relief If Plaintiffs prevail on the merits of their claims, this Court has broad authority to order
injunctive relief that is adequate to remedy any identified constitutional violations within NYPD’s stop-and-frisk program. In order to secure permanent injunctive relief, Plaintiffs must not only prevail on the merits of their claims. They also must demonstrate: (1) that they have suffered irreparable injury; (2) that remedies available at law are inadequate to compensate for that injury; (3) that the balance of hardships between Plaintiffs and Defendants weighs in favor of granting a remedy in equity; and (4) that the public interest would not be disserved by the issuance of a permanent injunction. ebay Inc. v. MercExchange, LLC, 547 U.S. 388, 391 (2006). Given that the question of whether Plaintiffs have satisfied this standard is intertwined with the fact-dependent question of whether Plaintiffs should prevail on the merits, the United States does not opine on whether Plaintiffs have satisfied this four-prong test.
However, if the Plaintiffs have met their burden, it is well established that “the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971); see also Ass’n of Surrogates v. New York, 966 F.2d 75, 79 (2d Cir. 1992) (“[F]ederal courts have broad discretion in fashioning equitable remedies for . . . constitutional violations.”); Springs Mills, Inc. v. Ultracashmere House, Ltd., 724 F.2d 352, 355 (2d Cir. 1983) (“A district court has a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct.”); Thomas v. County of Los Angeles, 978 F.2d 504, 509 (9th Cir. 1992) (noting that courts have power to issue “broad injunctive relief” where there exist specific findings of a “persistent pattern of [police] misconduct”). While broad, a court’s equitable discretion is not without limits, and a court must tailor injunctive relief to the specific constitutional violations
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that the relief is meant to correct. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011); Todaro v. Ward, 565 F.2d 48, 54 n.7 (2d Cir. 1977). Nonetheless, district courts have wide latitude to fashion comprehensive relief that addresses “each element contributing to the violation” at issue. Hutto v. Finney, 437 U.S. 678, 687 & n.9 (1978); see also Milliken v. Bradley, 433 U.S. 267, 282 (1977) (“[W]here . . . a constitutional violation has been found, the remedy does not ‘exceed’ the violation if the remedy is tailored to cure the ‘condition that offends the Constitution.’”).
When crafting injunctive relief that requires state officials to alter the manner in which they execute their core functions, a court also must be mindful of federalism concerns and should avoid “remedies that intrude unnecessarily on a state’s governance of its own affairs.” Ass’n of Surrogates, 966 F.2d at 79. Citing this case law, the City asserts that the Court’s authority to issue injunctive relief in this case is limited, and that the Court is “not well-suited to inject itself into the internal operations of NYPD.”3 See Defs.’ Mem. at 5. However, 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. See, e.g., Brown v. Plata, 131 S. Ct. 1910 (2011) (upholding injunctive relief affecting State’s administration of prisons); Brown v. Bd. of Educ., 349 U.S. 294 (1955) (upholding injunctive relief affecting State’s administration of schools).

3

The City cites a number of cases for the proposition that federal courts should decline to enter injunctive

relief that requires operational changes to a State’s institutions. See Defs.’ Mem. at 5-6. These cases are inapposite,

as they involve circumstances in which plaintiffs either lacked standing to pursue their claims, or failed to

demonstrate that the standard governing the availability of equitable relief had been met. See, e.g., Miller v.

Silberman, 951 F. Supp. 485, 491 (S.D.N.Y 1997) (plaintiffs lacked standing due to lack of “sufficiently real and

immediate threat of future injury”); PBA of N.Y. v. City of New York, 97-cv-7895, 98-cv-8202, 2000 U.S. Dist. Lexis

15179, at *9-13 (S.D.N.Y. Oct. 13, 2000) (plaintiff failed to establish need for equitable relief given that likelihood

of unlawful conduct repeating was slim). As stated supra, the United States takes no position on whether Plaintiffs

have made the requisite showing that equitable relief is available given that the issue is intertwined with the fact-

dependent issue of liability. However, if Plaintiffs make that requisite showing, the Court has broad discretion in

fashioning the scope of relief. See Swann, 401 U.S. at 15 (“Once invoked, the scope of a district court's equitable

powers . . . is broad . . . .”).

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Indeed, while courts “must be sensitive to the State’s interest[s],” courts “nevertheless must not
shrink from their obligation to ‘enforce the constitutional rights of all persons . . . .’” Plata, 131

S. Ct. at 1928 (quoting Cruz v. Beto, 405 U.S. 319, 321 (1972)); see also Swann, 402 U.S. at 15 (recognizing State’s interests in sovereign administration of its functions, but finding that if “authorities fail in their affirmative obligations . . . judicial authority may be invoked”); Todaro, 565 F.2d at 53 (“‘[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))).4
Despite the long line of precedent endorsing injunctive relief to cure constitutional deficiencies in the way that states operate their basic systems, the City maintains that the Court’s discretion to fashion injunctive relief is narrow here given that the misconduct Plaintiffs allege occurs within the law enforcement context. See Defs.’ Mem. at 6 n.2. However, adequately remedying ongoing constitutional violations is no less urgent or appropriate in the policing context—and given their deep involvement in the criminal justice system, courts are perhaps better equipped to fashion injunctive relief in this context than in cases involving other public institutions. Indeed, courts have consistently held that, where a law enforcement agency suffers from a “persistent pattern of police misconduct, injunctive relief is appropriate.” Allee v. Medrano, 416 U.S. 802, 815 (1974); see also Hague v. Comm. for Indus. Org. 307 U.S. 496, 517-18 (1939) (upholding injunction restricting police conduct); Build of Buffalo, Inc. v. Sedita,

4

Courts have sometimes held that, when issuing injunctive relief that affects a state’s administration of its

executive functions, state officials should be given an opportunity to propose their own remedial measures for

correcting the identified constitutional violations. See, e.g., Schwartz v. Dolan, 86 F.3d 315, 319 (2d Cir. 1996)

(vacating injunctive relief largely because district court failed to allow state agency an opportunity to devise an

adequate plan to remedy unlawful conduct). Setting aside the question of whether such an opportunity is required,

here the City was explicitly given the opportunity to offer its views on an appropriate remedy should Plaintiffs

prevail on the merits of their claims but declined to set forth any such proposal and rejected Plaintiffs’ proposal for a

joint-remedial process that would contemplate an extensive role for the City in formulating the parameters of

injunctive relief. Rather, the City has consistently maintained that, even if Plaintiffs prevail at the liability stage,

NYPD’s current policies and practices are adequate. See Defs.’ Mem. at 7-18.

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441 F.2d 284, 289 (2d Cir. 1971) (acknowledging that “deliberate, purposeful activity resulting

in widespread police abuses” can constitute “an appropriate occasion for injunctive relief”);

Spring Garden United Neighbors, Inc. v. City of Philadelphia, 614 F. Supp. 1350, 1352-55 (E.D.

Pa. 1985) (granting preliminary injunction restraining police from certain stop, search, and arrest conduct).5

Pursuant to 42 U.S.C. §§ 14141, 3789d, and 2000d, the United States has itself sought

and secured the implementation of remedial measures to reform police misconduct in dozens of

law enforcement agencies nationwide. See, e.g., United States v. Puerto Rico, supra; United

States v. Town of East Haven, supra; United States v. City of Seattle, supra; United States v. City

of New Orleans, supra; United States v. Territory of the Virgin Islands, supra; United States v.

City of Detroit, supra; United States v. City of Los Angeles, supra; United States v. City of

Pittsburgh, supra. Several of the remedies that the United States has obtained directly address

systemic deficiencies in the way officers conduct stops and searches. See, e.g., Settlement

Agreement, City of Seattle [ECF No. 3-1] at 39-41; Consent Decree, City of New Orleans [ECF

No. 159-1] at 38-46; Consent Judgment, City of Detroit [ECF No. 22] at 14-17; Consent Decree,

City of Los Angeles [ECF No. 4] at 26-28, 39-44; Consent Decree, City of Pittsburgh [ECF No.

3] at 4-5. These agreements can be found at http://www.justice.gov/crt/about/spl/findsettle.php.

While these measures stem from consent decrees rather than contested litigation, courts

nonetheless sanction and oversee the implementation of those measures pursuant to their

equitable powers, and the Court has equal authority to do so here. Additionally, the Civil Rights

5

That courts have so often found injunctive relief necessary to bring police conduct into compliance with the

Constitution belies the City’s assertion that, unlike other official misconduct, police misconduct can be adequately

remedied through individual suits for damages alone. See also Daryl Levinson, Making Government Pay: Markets,

Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 354-57 (2000) (arguing that imposing

financial costs on municipalities is an ineffectual method for incentivizing government actors to reduce

misconduct); Marshall Miller, Note, Police Brutality, 17 Yale L. & Pol. Rev. 149, 155-57 (1998) (noting evidence

that civil suits for damages often fail to correct unconstitutional police practices given that departments frequently

decline to monitor the amount of damage awards issued or modify practices as a result of those damage awards).

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Division cannot be expected to remedy every pattern or practice of unconstitutional conduct in law enforcement across the nation. It is thus important to ensure that private litigants who have been victims of police abuse are able to vindicate their rights effectively pursuant to contested litigation.
If there is any identified constitutional violation within NYPD’s stop-and-frisk practices, the Court’s broad power to fashion injunctive relief is not at odds with robust efforts to protect the public. To the contrary, where there exists a systemic pattern of police misconduct, the entry of injunctive relief to correct that conduct inures to the benefit of safe and effective policing, not to its detriment. The City has argued that implementing Plaintiffs’ requested relief will negatively impact NYPD’s capacity to combat crime. In the experience of the United States, however, reform through a court-ordered process improves public confidence, makes officers’ jobs safer, and increases the ability of the department to fight crime. See, e.g., Christopher Stone et al., Policing Los Angeles Under a Consent Decree: The Dynamics of Change at the LAPD 610 (Harvard Kennedy School Program in Criminal Justice Police and Management), May 2009, (showing crime rates falling more in Los Angeles than in surrounding regions for the duration of the injunctive relief ordered in United States v. City of Los Angeles, supra). In addition, 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. Officers can only police safely and effectively if they maintain the trust and cooperation of the communities within which they work, but the public’s trust and willingness to cooperate with the police are damaged when officers routinely fail to respect the rule of law. See Stephen Schulhofer et al., American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative, 101 J. Crim. L. & Criminology 335, 346-74 (2011); Tom Tyler & Jeffrey Fagan,
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Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 Ohio St. J. Crim. L. 231, 233-67 (2008); Jason Sunshine & Tom Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Soc’y Rev. 513, 534-36 (2003); see also Institute on Race and Justice, Northeastern University, COPS Evaluation Brief No. 1: Promoting Cooperative Strategies to Reduce Racial Profiling 2021 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services), 2008 (“Being viewed as fair and just is critical to successful policing in a democracy. When the police are perceived as unfair in their enforcement, it will undermine their effectiveness.”). As systematic violations of civil rights erode public trust, policing becomes more difficult, less safe, and less effective. Therefore, if the Court finds any constitutional deficiencies exist in NYPD’s stop-andfrisk practices, the implementation of injunctive relief would promote, rather than hinder, NYPD’s mission of safely and effectively fighting crime. II. If the Court Finds that NYPD’s Stop-and-Frisk Practices Violate the Constitution,
the Appointment of an Independent Monitor Is An Appropriate Form of Relief Should the Court find liability, it is within the Court’s authority to order injunctive relief that includes an independent monitor. The United States takes no position on whether, pursuant to the Court’s wide latitude to fashion appropriate relief, the Court should enter other elements of the injunctive relief Plaintiffs seek. However, if the Court orders injunctive relief, it is the view of the United States, based on decades of police reform efforts across the country, that the appointment of a monitor to guide implementation of that injunctive relief may provide substantial assistance to the Court and the parties and can reduce unnecessary delays and litigation over disputes regarding compliance. A. An Independent Court-Appointed Monitor Helps Ensure that Court-
Ordered Relief is Credibly Implemented and Sustained.
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An independent monitor can be essential to ensuring that complex institutional reform is achieved. The implementation of an injunction to address structural deficiencies in a law enforcement agency where those deficiencies contribute to a pattern of constitutional violations is a complex and difficult task. A monitor provides the independence and expertise necessary to conduct the objective, credible analysis upon which a court can rely to determine whether its order is being implemented, and that gives the parties and the community confidence in the reform process. Should non-compliance be identified, early and objective detection by the monitor, as well as the identification of barriers to compliance, allows the parties to undertake corrective action, which saves the parties, the Court, and, importantly, the City precious time and resources.
The authority of the Court to appoint a monitor is well established. See Ex Parte Peterson, 253 U.S. 300, 312-13 (1920) (acknowledging inherent power of courts to “appoint persons unconnected with the court to aid judges in the performance of specific judicial duties,” and noting that courts have long exercised this power “when sitting in equity by appointing, either with or without the consent of the parties, special masters, auditors, examiners, and commissioners”); see also United States v. City of New York, Nos. 11-cv-5113, 12-cv-491, 2013 WL 1955782, at *19 (2d Cir. May 14, 2013) (holding that the “District Court was entirely warranted in ordering significant affirmative relief . . . including appointing a Monitor to oversee the FDNY’s longawaited progress toward ending discrimination”); Benjamin v. Fraser, 343 F.3d 35, 46 (2d Cir. 2003) (noting “long-recognized principle that Article III courts may appoint agents to engage in a variety of activities essential to the performance of judicial responsibilities”), overruled on other grounds by Caiozzo v. Koreman, 581 F.3d 63 (2d Cir. 2008); Juan F. v. Weicker, 37 F.3d 874, 876, 880 (2d Cir. 1994) (upholding injunctive order that
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included appointment of monitor with authority to, inter alia, oversee implementation and

compliance with consent decree, obtain information from defendants, and issue compliance reports).6

Our experience bears out the value of a monitor. In 1997, the United States entered into a

consent decree with the City of Pittsburgh to address findings that Pittsburgh police engaged in

patterns or practices of excessive force and violations of the Fourth Amendment in connection

with searches and seizures, among other claims. The consent decree entered as an injunction of

the federal court included the appointment of an independent monitor. The City came into

compliance with the decree in 1999, and the injunction was lifted in 2002. See United States v.

City of Pittsburgh, supra.

The Office of Community Oriented Policing Services (“COPS”) of the Department of

Justice studied the implementation of the Pittsburgh decree and published its findings in an effort

to guide other police departments undertaking a reform initiative or facing the implementation of

an injunction. COPS found five essential elements for effective reform, one of which was the

“critical role of the court-appointed monitor.” The COPS report found:

The selection of the monitor by city and Department of Justice officials was a critical choice and, by all indications, the successful candidate facilitated the reform process. The monitor played an early, vital role after the signing of the decree by helping officials to develop [a] plan of action. He produced a compliance manual that gave city officials an exact idea of what milestones he

6

In addition to a court’s inherent equitable authority to appoint an independent monitor, a court also has the

discretion to appoint a special master pursuant to the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 53; see

also N.Y.S. Ass’n for Retarded Children v. Carey, 706 F.2d 956, 962-63 (2d Cir. 1983) (holding district court did not

abuse discretion in appointing special master to oversee remedial measures at state-operated health facility). The

roles of an independent monitor and a special master are closely related, and courts often use the terms

interchangeably. See, e.g., Juan F., 37 F.3d at 880 (finding “monitor” to be “a special master, albeit by another

name”). However, in contrast to court-appointed monitors who generally are limited to serving exclusively a

monitoring function, special masters can serve as “quasi-judicial officers” with the authority “to convene and to

regulate hearings, to rule on the admissibility of evidence,” and to issue findings that are entitled to deference.

Benjamin, 343 F.3d at 45; see also Collins v. Foreman, 729 F.2d 108, 118 (2d Cir. 1984) (analogizing special

masters to magistrate judges). In any case, it is beyond question that—whether pursuant to a court’s equitable

powers or Fed. R. Civ. P. 53—a court has broad authority to appoint an individual to assist, oversee, and report on

the implementation of injunctive relief.

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expected them to achieve at each stage to meet his standard of compliance. His early meetings with community leaders helped reassure them that real reform was afoot. He developed a relationship with city officials that was more collaborative than adversarial, making it easier for them to accept some of the more difficult terms of the decree. Robert C. Davis et al., Federal Intervention in Local Policing: Pittsburgh’s Experience with a Consent Decree 36 (U.S. Dep’t of Justice, Office of Community Oriented Policing Services), 2005. That same research found that two key factors enabled the City to quickly and effectively comply with the terms of the decree: the leadership of a talented police chief and guidance from the federal monitor. See Robert C. Davis et al., Can Federal Intervention Bring Lasting Improvement in Local Policing: Pittsburgh Consent Decree 3 (Vera Institute of Justice), 2005. The experience in Pittsburgh is consistent with the experience of the Civil Rights Division in other large systemic reform cases, including police matters. Just last month, a federal court closed a case involving a consent decree regarding the police department of the City of Los Angeles that was entered in 2000.7 See Joel Rubin, Judge Formally Ends LAPD Consent Decree, L.A. Times, May 16, 2013, at AA1; see also Jim Newton, Op-Ed., Newton: After 12 Years, a Better LAPD, L.A. Times, May 27, 2013, at A15. The injunction required widespread reforms, including increased accountability of search and arrest practices in a department of more than 12,000 employees. Throughout the litigation, the monitor played a critical role, issuing 30 reports to the Court, helping to establish internal mechanisms of accountability, including helping to strengthen the independence of the Office of Inspector General, and ending the case with a 150-page report finding substantial compliance and recommending that the injunction be lifted. See Andrew Blankstein, Independent Monitor Says LAPD Consent Decree

7

Most provisions of the consent decree regarding the Los Angeles Police Department were terminated in

2009, with a few remaining under court supervision pursuant to a Transition Agreement which expired on its terms

in 2012. See United States v. City of Los Angeles, 00-cv-11769 (C.D. Cal. filed Nov. 3, 2000).

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Should be Lifted, L.A. Times, June 12, 2009, at A13; see also Office of the Independent Monitor, LAPD, Final Report (June 11, 2009), available at http://www.keypoint.us.com/Content/Public Reports/LAPD_FINAL-REPORT_06-11-2009.pdf. The monitor’s reports provided transparency and critical assessments of the department’s progress. While there were many factors that contributed to the success of the reform efforts in Los Angeles, the independent monitor was a central figure. See Stone et al., supra at 2.
Monitors continue to provide courts with invaluable service in other Civil Rights Division police reform injunctive cases in cities large and small across the Nation, including: Seattle, Washington; Detroit, Michigan; East Haven, Connecticut; and the Territory of the Virgin Islands. United States v. Town of East Haven, supra; United States v. Seattle, supra; United States v. Territory of the Virgin Islands, supra; United Stares v. City of Detroit, supra. In each of these cases, in our experience, the independent monitor improves efficiency in implementation, decreases collateral litigation, and provides great assistance to the court.
The routine use of monitors is not confined to cases filed in court. Monitors provided critical assistance to the parties in an out-of-court settlement with the Metropolitan Police Department in Washington, D.C., that focused on use of force, and in another, broader non-court agreement with the City of Cincinnati, Ohio. See Mem. of Agreement Between United States and District of Columbia (2001); Mem. of Agreement Between United States and City of Cincinnati, Ohio (2002). The United States recently agreed to out-of-court settlements with the City of Missoula, Montana, and the University of Montana concerning reforms solely to their police practices related to handling allegations of sexual assault and rape. See Mem. of Agreement Between United States and City of Missoula, Montana (2013); Mem. of Agreement Between United States and University of Montana (2013). Both agreements will be
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independently monitored. Similarly, the United States entered into a comprehensive out-of-court settlement with the Juvenile Court in Shelby County, Tennessee. See Mem. of Agreement Regarding the Juvenile Court of Memphis and Shelby Counties, Tennessee (2012). The agreement requires reforms to address equal protection and due process violations. Again, the agreement will be subject to independent monitoring. These agreements can be found at http://www.justice.gov/crt/about/spl/findsettle.php.
If the Court finds here that a pattern or practice of civil rights violations has occurred, it faces substantially similar considerations as judges handling other police reform matters: measuring compliance; early detection of any non-compliance; and entry of relief to correct any barriers to implementation of the order. 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. An independent monitor, by contrast, gives the Court access to necessary information to ensure that its injunction, and the underlying goal of constitutional policing, is being met. Equally important is the monitor’s ability to diagnose and explain barriers to implementation of any remedial measures the Court may order. In this case, for example, should the Court order a remedy, a monitor can assess whether the policies adopted to prevent unconstitutional stops and frisks are adhered to in actual practice, and whether any required training is being delivered in a manner that is likely to be effective. This may be particularly important here to the extent that the City asserts that the policies and practices already in place ensure that officers act in accordance with the law. See Defs.’ Mem. at 7-18. A finding of liability would suggest that the asserted policies and practices were not effective at doing so, thus necessitating the diagnostic insight that a monitor would bring.
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In the briefing between the parties, there is a dispute about whether existing accountability systems adequately protect the community from routine civil rights violations. See Pls.’ Mem. at 16-20; Defs.’ Mem. at 7-13. This dispute highlights why independence in monitoring is critical. That independence allows a monitor to effectively provide credible assessments of whether the review and accountability systems within a police department are effectively promoting constitutional policing. To the extent that any injunctive relief includes more stringent requirements than are already in place for supervision and review of stop-andfrisk practices, a monitor can measure more credibly than the parties whether these supervisory and internal oversight mechanisms are implemented consistently and effectively. Without robust systems of internal accountability, any changes to policies, training, and practices required by an injunction are not likely to take hold.
The appointment of an independent monitor also can serve to provide the public confidence in the reform process. With allegiance only to the Court and its order for relief, alongside a duty to report its findings accurately and objectively, the monitor’s assessments not only provide the Court with the information it needs to determine whether injunctive relief has been effectively implemented, but assure the public that the police department will move forward in implementing the Court’s order—and will not escape notice if it does not. Moreover, the police department’s progress towards implementing the Court’s order will be more readily accepted by a broader swath of the public, including officers, if that progress is affirmed by an independent monitor who has the responsibility of confirming each claim of compliance asserted by the department.
B. An Independent Court-Appointed Monitor Serves a Distinct Function from Other External and Internal “Oversight” Entities.
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Defendants identify existing internal (e.g., Internal Affairs Bureau and Chief of Department Investigations) and external (e.g. federal prosecutors, Civil Complaint Review Board, and “the public electorate,”) “oversight” entities, and suggest that a court-appointed monitor to guide implementation of any injunctive relief ordered here would be superfluous. Defs.’ Mem. at 13. In fact, it is neither unusual nor inapt for a monitor to be appointed to oversee implementation of a court order even where other types of oversight already exist.
A court-appointed monitor serves a distinct function from these other types of oversight. New York’s Civilian Complaint Review Board is the entity whose function most closely aligns with that of an independent court-appointed monitor, but this comparison is also inapposite in important ways. The court-appointed monitor would have the responsibility of carrying out intensive and focused review of whether and how the requirements of an injunction related to NYPD’s stop-and-frisk functions are implemented, and not, more generally, how NYPD conducts its other functions. Its role would be focused and relatively short term. By contrast, the Civilian Complaint Review Board is meant to provide ongoing oversight that is not focused on stop-and-frisk practices.
Given the distinct roles between civilian oversight and a court-appointed monitor, it is not unusual for a police department to be subject to both. In Pittsburgh, the Citizen Police Review Board has been in existence since 1997, the same year the police consent decree there was signed and a consent decree monitor was put in place. See City of Pittsburgh, Pa., Home Rule Charter §§ 228-30 (1997); Consent Decree, City of Pittsburgh, supra. In the City of Los Angeles, a Board of Police Commissioners is made up of five civilian members and was in existence before, during, and after the Los Angeles Police Department’s consent decree monitoring term. See City of Los Angeles, Ca., Charter and Administrative Code § 501 (1999). In addition, the Inspector
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General and the Office of Independent Monitor worked closely throughout the implementation of the consent decree in Los Angeles. See id. § 573 (defining responsibilities of Inspector General); Consent Decree, City of Los Angeles, supra, at 65-71 (addressing roles of Inspector General). The Monitor described the Inspector General in its final report “as a full partner throughout the period of the Consent Decree.” Office of the Independent Monitor, LAPD, Final Report, supra at 5. The County of Los Angeles has an Office of Independent Review that was in place even while an MOA between the Department of Justice and the County had been monitored by others. See Office of Independent Review—Mission, http://laoir.com/mission.html (last visited June 4, 2013). Cincinnati’s Citizen Complaint Authority was created by the Collaborative Agreement that was part of the resolution of the United States’ investigation of the Cincinnati Police Department and has remained in existence after that consent decree monitor ended its tenure. See Mem. of Agreement, City of Cincinnati, supra at 19. Oakland’s Citizens’ Police Review Board has been in existence before and throughout the term of a federal consent decree regarding the Oakland Police Department that has been monitored by a separate monitoring team. See Citizens’ Police Review Board, http://www2.oaklandnet.com/government/o/ cityadministration/ (last visited June 4, 2013). Similar bodies exist in Seattle and Detroit where independent monitors have been appointed by courts. See City of Seattle, Wa., Municipal Code § 3.28.800 (establishing Office of Professional Accountability, which receives and investigates complaints of police misconduct), as well as Settlement Agreement, City of Seattle, supra at 6-8 (establishing Community Police Commission to provide recommendations regarding implementation of Decree); City of Detroit, Mi., City Charter §§ 7-802, 7-803 (establishing Board of Police Commissioners, which receives and investigates complaints of police misconduct). These and other systems of focused, court-appointed monitoring alongside more
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institutionalized civilian oversight underscore the separate, complementary roles of these parallel forms of oversight.
Moreover, many of the “oversight” entities cited by the City, such as federal prosecutors, the State Attorney General, and District Attorneys, when focused on officer misconduct at all, are focused primarily on prosecuting individual instances of criminal misconduct by officers. These entities have neither the institutional focus nor the resources to review whether police officers are routinely complying with the Constitution in conducting stops and searches. The burden of showing that officer misconduct constitutes a crime is very high, thus making criminal prosecution a poor tool for structural changes in a department. Nor can they be expected to ensure that the terms of a specific court order are implemented or that an injunction effectively results in constitutional policing.
Finally, 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. The public does not have the time, resources, or access necessary to properly monitor a police department. Cf. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938) (casting doubt upon capacity of political process to protect “discrete and insular minorities” and suggesting need for “more searching judicial inquiry” in cases implicating rights of such individuals).
CONCLUSION Should the Court find a pattern or practice of constitutional violations, it has broad powers to issue injunctive relief. That power includes the authority to appoint an independent monitor who would assist the Court’s efforts to ensure that any remedies ordered are effective, efficiently implemented, and achieve the intended result.
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Respectfully submitted,

THOMAS E. PEREZ Assistant Attorney General Civil Rights Division

ROY L. AUSTIN, JR. Deputy Assistant Attorney General United States Department of Justice Civil Rights Division

/s/ Jonathan M. Smith

.

JONATHAN M. SMITH (DC 396578)

Chief

Civil Rights Division

Special Litigation Section

CHRISTY E. LOPEZ Deputy Chief Civil Rights Division Special Litigation Section

JUDE VOLEK Trial Attorney Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Telephone: (202) 353-1077 Facsimile: (202) 514-0212

Attorneys for the United States of America

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 Case 1:08-cv-01034-SAS-HBP Document 251 Filed 01/22/13 Page 1 of 20

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- )(
JAENEAN LIGON, et al., Plain tiffs,
- against­ CITY OF NEW YORK, et al.,
Defendan ts.
-------------------------------------------------------- )(

OPINION & ORDER 12 Civ. 2274 (SAS)

DAVID FLOYD, et al., Plain tiffs,
- againstCITY OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------- )(

08 Civ. 1034 (SAS)

SHIRA A. SCHEINDLIN, U.S.D.J.: I. INTRODUCTION
In a January 14,2013 letter, defendants request an immediate stay pending appeal of the Court's January 8, 2013 Opinion and Order ("Opinion") in
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Ligon v. City of New York.1 The Opinion granted the Ligon plaintiffs’ application for a preliminary injunction, but postponed consideration of the appropriate remedies — with the sole exception of ordering defendants to conform their conduct to the constitutional standards articulated by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit.2 Defendants have filed a notice of appeal in Ligon. Defendants also seek a postponement of the Floyd trial, currently scheduled to begin in March.3
After considering defendants’ letters, the January 16, 2013 response letters of plaintiffs in Ligon and Floyd, and the January 17, 2013 reply letter of defendants, I am granting defendants’ request for a stay of the immediate relief ordered in the Opinion. The stay will take effect immediately, will extend through the consolidated remedies hearing in Ligon and Floyd ordered in the Opinion,4 and will end when this Court issues a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon. I am denying defendants’ request for a

1 See Ligon v. City of New York, — F. Supp. 2d —, 2013 WL 71800 (S.D.N.Y. Jan. 8, 2013).

2

See id. at *41–42.

3 See Floyd v. City of New York, No. 08 Civ. 1034. Ligon was assigned to this Court as related to the earlier filed Floyd case. Both challenge certain stop and frisk practices engaged in by the New York City Police Department.

4 See Ligon, 2013 WL 71800, at *42.

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postponement of the Floyd trial. II. DISCUSSION
A. Defendants’ Request for Stay Pending Appeal “The four factors to be considered in issuing a stay pending appeal are
well known: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’”5 “[T]he degree to which a factor must be present varies with the strength of the other factors, meaning that ‘more of one [factor] excuses less of the other.’”6
First, to the extent that defendants intend to raise on appeal the issues presented in their letters, I am not persuaded that defendants are likely to succeed on the merits of their appeal. In particular, I find it noteworthy that defendants choose to characterize the holdings of the Opinion not by quoting from the Opinion’s holdings, but rather by quoting selectively from a relatively peripheral discussion of an NYPD training manual. Defendants suggest that this Court
5 In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987), and citing Cooper v. Town of E. Hampton, 83 F.3d 31, 36 (2d Cir. 1996)) (footnote omitted).
6 Id. (quoting Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006)) (certain quotation marks omitted).
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“ruled” that “approaching a person, engaging in ‘pointed, invasive and accusatory’
questioning ‘intended to elicit an incriminating response’ and ‘asking for permission’ to search a person constitutes a Terry stop of that person.”7 This Court
made no such ruling. While the paragraph quoted by defendants casts a critical eye
on the likely effects of the permissive language in the training manual, the Opinion
does not hold that the behaviors described in the training manual would by
definition constitute a Terry stop. To the contrary, the cited paragraph contains
numerous qualifications intended to prevent the very misunderstanding reflected in defendants’ January 14 letter.8
Similarly, defendants state in their reply letter that “the Court opined
that pointed questioning designed to elicit an incriminating response must not take
place until after an officer has developed reasonable suspicion, because people
7 1/14/13 Letter from Heidi Grossman et al., Counsel for Defendants, to the Court (“1/14 Grossman Ltr.”) at 1.
8 For example, the paragraph states that the Fourth Amendment “does not proscribe all contact between the police and citizens.” Ligon, 2013 WL 71800, at *37 (emphasis added). The paragraph notes that “it is difficult to imagine many circumstances in which a reasonable person being aggressively interrogated by the police” would feel free to leave, not that there are no circumstances in which a reasonable person being asked accusatory questions would feel free to leave. Id. (emphasis added). The paragraph also notes that it is fanciful to say that a reasonable person would “as a rule” feel free to leave in the midst of a field interrogation, not that no reasonable person could feel free to go. Id. (emphasis added).
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ordinarily feel obliged to answer such questions.”9 Such a holding appears
nowhere in the Opinion, and in particular does not appear in the simple summary
of Supreme Court precedent with which the Opinion specifically ordered defendants to comply.10 Rather, the summary states: “Encounters involving
nothing more than commands or accusatory questioning can and routinely do rise
to the level of Terry stops, provided that the commands and questioning would
lead a reasonable person to conclude he was not free to terminate the encounter.”11 The latter clause makes clear, along with numerous other statements in the Opinion,12 that the Opinion does not define a Terry stop as any police
encounter involving accusatory questioning.
9 1/17/13 Letter from Grossman et al. to the Court (“1/17 Grossman Ltr.”) at 2.
10 See Ligon, 2013 WL 71800, at *41–42. 11 Id. at *41 (applying the “terminate the encounter” standard from Florida v. Bostick, 501 U.S. 429, 436 (1991)) (emphasis added). To conclude that a practice can and routinely does rise to the level of a Terry stop provided that a specific standard is met, is obviously not the same thing as concluding that the practice by definition “constitutes a Terry stop,” 1/14 Grossman Ltr. at 1, and thus must always be preceded by reasonable suspicion. 12 See especially the introductory summary of Fourth Amendment law at Ligon, 2103 WL 71800, at *4–5. More generally, the Opinion invokes the “terminate the encounter” standard for defining Terry stops on more than ten occasions. By contrast, the Opinion never analyzes whether an encounter rose to the level of a Terry stop simply by asking whether the encounter involved accusatory questioning.
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In addition, defendants now argue, after the conclusion of the hearing
and without citation to any evidence, that some or all of plaintiffs’ stops were
based on consent, and therefore that this Court has improperly redefined
consensual encounters as Terry stops.13 The parties’ post-hearing briefing only
raised the issue of consent once — and solely in the context of New York state
law14 — and never argued that any of plaintiffs’ stops were based on consent. As a
result, I did not address the issue of consent in the Opinion. Because defendants’
letters suggest that they intend to challenge the Opinion based on the notion that
13 See 1/14 Grossman Ltr. at 2. I note that even when the Supreme Court has found consent for a search, it has held that the “terminate the encounter” standard defines a Terry stop. See, e.g., United States v. Drayton, 536 U.S. 194, 200–01 (2002) (“The proper inquiry ‘is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” (quoting Bostick, 501 U.S. at 436)). See also 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.4(a) (5th ed. 2012) (“[I]t does not appear . . . that the Mendenhall-Royer [‘free to leave’] test is intended to divide police-citizen encounters into their seizure and nonseizure categories by reliance upon the amorphous concept of consent.”).
14 See Defendants’ Proposed Findings of Fact and Conclusions of Law ¶ 42 n.19 (“First, not every police encounter requires reasonable suspicion and may be consensual. Contrary to plaintiffs’ counsel’s assertions during closing arguments . . ., New York Law applies.”). This is the only reference to consent in defendants’ post-hearing brief. I also emphasize, as I did in the Opinion, that defendants’ argument that “New York Law applies” does not address the United States Supreme Court’s clear holding that any question of the reasonableness of a search or seizure must be governed by the Fourth Amendment to the Constitution of the United States. See Ligon, 2013 WL 71800, at *39 & n.430 (citing Sibron v. State of New York, 392 U.S. 40 (1968)).
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plaintiffs consented to their police encounters, however, I will briefly address this issue now. With the possible exception of Letitia Ledan’s stops — the second of which Ledan initiated by approaching a police officer and asking questions15 — there was no evidence at the hearing that any of plaintiffs’ stops were consensual. Thus, for the same reasons that I found a reasonable person would not have felt free to terminate plaintiffs’ encounters with the police, I also find that none of the plaintiffs consented to being stopped — with the possible exception of Ledan. It is wishful thinking, at best, to suggest that plaintiffs, who were neither asked for consent nor gave it, and who did not feel free to terminate their encounters, willingly consented to the encounters that left them feeling “violated,” “disrespected,” “angry,” and “defenseless.”16
Defendants also argue that the Opinion misinterprets Florida v. Bostick.17 It is peculiar to hear defendants defend the NYPD’s current practices by suggesting that this Court is ordering a departure from Bostick, because the “Immediate Relief” section of the Opinion quotes the Bostick definition of a Terry
15 See Ligon, 2013 WL 71800, at *17, *29 n.345. Ledan’s first stop is discussed below.
16 Id. at *2. 17 See 1/14 Grossman Ltr. at 2.
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stop and orders defendants to comply with it.18 Indeed, one of the central, often repeated principles of the Opinion is that the NYPD must comply with Bostick’s definition of a Terry stop, and not only with New York state law.19 It is reassuring that defendants now agree that a police officer must have reasonable suspicion to initiate any encounter in which a reasonable person would not feel free “to decline the officers’ requests or otherwise terminate the encounter,”20 as Bostick states.21 If defendants endorse these principles, however, it is puzzling that defendants continue to defend the NYPD’s training materials, which make little reference to the “terminate the encounter” or “free to leave” standards, and instead base the officers’ training almost entirely on the ambiguous, overlapping, and problematic stop standards contained in De Bour and its progeny. As the Opinion recognizes, the extent to which De Bour conflicts with or complements the Fourth Amendment
18 “To summarize: as the Fourth Amendment has been interpreted by the U.S. Supreme Court and the Second Circuit, an encounter between a police officer and a civilian constitutes a Terry stop whenever a reasonable person would not feel free to ‘“terminate the encounter.”’” Ligon, 2013 WL 71800, at *41 & n.454 (quoting Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436)).
19 Again, I note that the Opinion invokes Bostick’s “terminate the encounter” standard on more than ten occasions.
20 Bostick, 501 U.S. at 436. 21 See 11/14 Grossman Ltr. at 2 (citing Bostick).
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is unclear.22 But it is obviously no defense of practices that violate the Fourth
Amendment to say that they resulted from training based on New York state law,
as defendants continue to argue.23
To the extent that defendants criticize my application of the Fourth
Amendment standards articulated in Bostick, I recognize that opinions may differ
regarding when a reasonable person would feel free to terminate an encounter.24 I
22 See Ligon, 2013 WL 71800, at *6, *38 n.422 (discussing People v. De Bour, 40 N.Y.2d 210 (1976)).
23 See, e.g., 1/17 Grossman Ltr. at 1 (stating that it would be “an impossible burden” to require the NYPD to conduct training that “contradicts well established, long standing New York State case law as set forth in People v. De Bour”). On the primacy of the U.S. Constitution over New York state law, see Ligon, 2013 WL 71800, at *1 & nn.3–7 (quoting Sibron, 392 U.S. at 61). If defendants accept that Bostick’s view of the Fourth Amendment governs the NYPD, then the NYPD should train its officers in accordance with that standard. The message delivered in training would be simple: without reasonable suspicion, a police officer may not treat someone in such a way that a reasonable person would not feel free to terminate the encounter. It is unclear why this lesson, instead of forming the core of NYPD training on the legality of stops, appears to play almost no role.
24 Specifically, defendants question my ruling that the two encounters described by Ledan and the second encounter described by Abdullah Turner were, in fact, Terry stops, rather than merely constitutionally permissible “pointed questioning designed to elicit an incriminating response.” 1/17 Grossman Ltr. at 2. See also 1/14 Grossman Ltr. at 2.
Based on my best judgment, as informed by Supreme Court and Second Circuit precedent, I made a good faith effort to determine whether a reasonable person would have felt free to terminate the encounters described by plaintiffs. See Ligon, 2013 WL 71800, at *36 nn.408–09 (citing United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009); Brown v. City of Oneonta, N.Y., 221
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find it highly unlikely, however, that defendants could prevail in their attempt to
defend the NYPD’s current training regime simply on the basis of marginal
disagreements with my application of the Fourth Amendment’s “free to leave”
standard to the specific facts described by one or two plaintiffs. There can be little
doubt that most of the plaintiffs experienced Terry stops; and even if there were
such doubt, there can be no doubt that the stops recorded in UF-250 forms were
F.3d 329, 340 (2d Cir. 2000)). Defendants are correct that Turner’s second stop was one of the least intrusive described at the hearing. I note, however, that the officer in Turner’s second stop did not simply ask pointed questions designed to elicit an incriminating response. The officer’s patrol car pulled in front of the exit to the building as Turner was attempting to leave; the officer stopped Turner from leaving by asking him pointed questions designed to elicit an incriminating response, asked for Turner’s ID and took it, and told Turner and the others that they could not stand in front of their own building; and the encounter unfolded in such a way that Turner, whose subjective state is not dispositive but may shed light on the objective tenor of the encounter, did not feel free to leave. See id. at *13–14, 28. I again conclude that no reasonable person would have felt free to leave under these circumstances, particularly once the police had possession of the ID.
On the other hand, defendants’ newly articulated criticisms have persuaded me that I should have refrained from identifying Ledan’s first encounter as a Terry stop. See id. at *16. The Opinion never explicitly analyzed Ledan’s first encounter under the Bostick test, but in the “deliberate indifference” section, I wrote: “each of plaintiffs’ encounters with the police rose to the level of Terry stops.” Id. at *28. I now conclude based on Ledan’s limited testimony that a reasonable person would probably have felt free to leave under the circumstances of her first encounter, especially if the officers treated Ledan politely rather than in an aggressive, coercive, or threatening manner. See id. I also emphasize, as I did in the Opinion, that further evidentiary development may affect my factual findings. See id. at *44 (“I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing.”).
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Terry stops.25 Standing alone, the UF-250 forms indicate that hundreds or even thousands of violations of constitutional rights have occurred outside TAP buildings in the Bronx. This suit is a putative class action. Setting aside Ledan’s stops and Turner’s second stop, there is more than enough proof that a large number of people have been improperly stopped as a result of NYPD practices. These facts warrant an injunction.
Despite my reservations regarding the likelihood of defendants’ success on appeal, however, I recognize that reversal is always a possibility. The Opinion acknowledges at the outset that many of the questions raised by stop and frisk are not easily answered,26 and that “it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters.”27
Second, defendants argue that they would suffer irreparable injury in the absence of a stay. Defendants state that “[f]or the NYPD to ensure compliance with the ‘Immediate Relief’ ordered by the Court . . . at least some form of
25 Officers are required to fill out a UF-250 (“Stop, Question and Frisk Report Worksheet”) after each Terry stop, and only then. See Transcript of Preliminary Injunction Hearing (“Tr.”) 10/15 at 69:24–70:6 (testimony of plaintiffs’ expert witness Dr. Jeffrey Fagan); Tr. 10/23 at 1110:5–8 (testimony of Officer Miguel Santiago); July 2012 Chief of Patrol Field Training Unit Program Guide, Defendants’ Exhibit N, at 24.
26 See Ligon, 2013 WL 71800, at *1. 27 Id. at *3.
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notification to and/or training of thousands of NYPD officers and their supervisors would be necessary.”28 Plaintiffs question this assertion, arguing that “the NYPD routinely sends out notifications to members of the department instructing them about changes in practice in response to lawsuits.”29 Plaintiffs provide evidence that the NYPD could use, and has used in similar cases, the “FINEST” messaging system to notify officers and supervisors of court orders.30
After review of the parties’ letters, I conclude that effective compliance with the immediate remedy ordered in the Opinion will likely require steps beyond the circulation of FINEST messages, and that these steps may impose significant burdens on the NYPD. It was for this reason that I refrained from ordering the “Proposed Additional Relief” in the Opinion.31 I am now persuaded that the immediate relief ordered cannot be effectively implemented without the sorts of significant steps I proposed.
I am also cognizant of the possibility that administrative inefficiencies
28 1/14 Grossman Ltr. at 2. See also 1/17 Grossman Ltr. at 2–3 (describing the extensive changes to training that would be required to comply with the immediate relief ordered in the Opinion).
29 1/16/13 Letter from Christopher Dunn et al., Counsel for Plaintiffs, to the Court (“1/16 Dunn Ltr.”) at 2.
30 See Exs. A, B to 1/16 Dunn Ltr. 31 See Ligon, 2013 WL 71800, at *41–44.
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may result from ordering certain remedies now and potentially ordering different remedies after the completion of the consolidated remedies hearing in Floyd and Ligon.32 Because any unnecessary administrative costs imposed on the NYPD will be in some sense irreversible, the risk of irreparable harm weighs in favor of granting the stay.
Third, with regard to whether issuance of a stay will substantially injure other parties, it is likely that a stay will cause some injury to those who are at risk of being subject to unconstitutional trespass stops outside TAP buildings in the Bronx. If the stay is granted, a certain number of unconstitutional stops are likely to take place that would not have taken place in the absence of a stay. I take seriously the cost of these unconstitutional stops, as the Opinion makes clear.33
On the other hand, allowing a longstanding unconstitutional practice to persist for a few months while the parties present arguments regarding the appropriate scope of a remedy is quite distinct from allowing such a practice to persist until the completion of trial. In the Opinion, I granted a preliminary injunction in part based on the risk that a final resolution of plaintiffs’ case might lie years in the future, as the protracted course of the Floyd litigation has
32 See id. 33 See id. at *39–40 (balance of equities analysis).
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illustrated.34 The likely cost of granting a brief stay in the present case is far smaller — though it is a source of concern that such a cost must be borne at all.
Fourth, with regard to the public interest, the analysis from the Opinion largely applies.35 There is a conflict between the liberty and dignity of those who may be stopped as a result of a stay, and the public safety interest in conserving the NYPD’s resources. Both interests are significant.
Weighing the factors above, I conclude that the balance tips in favor of granting a brief stay. In essence, now that I am persuaded that compliance with the immediate ordered relief in the Opinion would in practice require taking some or all of the burdensome steps presented as proposed relief, the same reasoning that led me to propose that relief rather than ordering it now leads me to favor granting a limited stay. The inefficiency of immediately implementing reforms that may require alteration after the Floyd-Ligon remedies hearing, the public safety interest in conserving the NYPD’s scarce resources, and the short duration of the stay I am ordering, outweigh the benefits to plaintiffs’ putative class of immediately ordering compliance with the Opinion. I am thus granting a stay of the immediate relief ordered in Ligon pending the issuance of a final decision regarding the appropriate
34 See id. at *39 (emphasizing the likely magnitude of unconstitutional stops “between now and the completion of trial if this Court does not act”).
35 See id. at *40–41 (public interest analysis). 14

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scope of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any) in Floyd. At that time, defendants may move for a stay of all remedies ordered if they are so inclined.
Finally, it is my understanding that the decision to stay the immediate relief ordered in the Opinion moots defendants’ appeal. No relief is now in effect, and there has been no final decision as to the appropriate scope of the relief to be ordered.36
B. Defendants’ Request for a Postponement of the Floyd Trial Defendants argue that the trial in Floyd should be postponed because
“[i]t makes little sense . . . to try the Floyd case under a view of the law that is incorrect.”37 In their reply letter, defendants cite a five-factor test adopted by the district court for determining whether to enter a stay pending an appeal in a related case.38 The factors are: “(1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation . . . (2) the private interests of and burden on
36 See Lynch v. City of New York, 589 F.3d 94, 98 n.1 (2d Cir. 2009) (“[T]he courts of appeals have general appellate jurisdiction only over ‘final decisions of the district courts.’” (quoting 28 U.S.C. § 1291)).
37 1/14 Grossman Ltr. at 2. 38 See 1/17 Grossman Ltr. at 4 (citing Estate of Heiser v. Deutsche Bank Trust Co. Ams., No. 11 Civ. 1608, 2012 WL 2865485, at *3 (S.D.N.Y. July 10, 2012)).
15

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the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest.”39 These factors overlap in some respects with the four factors for determining a stay pending appeal. Without repeating elements of the analysis offered above, I note that the following considerations argue against postponing the Floyd trial:
First, plaintiffs in Floyd filed their case on January 31, 2008. Unlike Ligon, Floyd is a certified class action challenging the constitutionality of stop and frisk practices in all contexts throughout the City of New York.40 After five years of preparation, the trial is scheduled to begin in less than two months. It would be unfair and inappropriate to delay the case any further.
Second, many of the legal issues in Floyd are different from those dealt with in the Opinion in Ligon.41 As the Floyd plaintiffs note, their case addresses, among other things, “whether minorities are stopped at an unconstitutionally disproportionate rate, and whether there is a failure to monitor, supervise, and discipline officers who fail to meet the NYPD’s reporting
39 Heiser, 2012 WL 2865485, at *3 (quoting LaSala v. Needham & Co., 399 F. Supp. 2d 421, 427 (S.D.N.Y. 2005)).
40 See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012) (granting class certification). The Ligon preliminary injunction hearing dealt only with stops based on suspicion of trespass outside TAP buildings in the Bronx.
41 See Ligon, 2013 WL 71800, at *1 n.1. 16

Case 1:08-cv-01034-SAS-HBP Document 251 Filed 01/22/13 Page 17 of 20
requirements for stop-and-frisks.”42 Third, to the extent that some of the legal issues in Floyd and Ligon
are the same, appellate review of those issues will be aided by proceeding with the Floyd trial without delay. Counsel in Floyd have not yet been heard on the issues defendants wish to raise on appeal. By allowing the Ligon preliminary injunction hearing to proceed before the Floyd trial,43 this Court recognized that it might be necessary to reach certain generally applicable legal conclusions on the basis of a preliminary injunction hearing concerning a relatively narrow range of facts. I concluded that such a course was appropriate given the long delays in the Floyd litigation and the Ligon plaintiffs’ request for preliminary relief.44 Now that the Floyd trial is imminent, there is no reason for the Second Circuit to operate under similar constraints. Indeed, if defendants are correct, and the Opinion leads the parties in Floyd to pose questions and develop a record that focuses in part on the nature of a stop,45 this can only aid review of the very issues that defendants
42 1/16/13 Letter from Darius Charney, Counsel for Floyd Plaintiffs, to the Court at 2 (footnote omitted).
43 See Ligon v. City of New York, No. 12 Civ. 2274, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012).
44 See id. at *3. 45 See 1/17 Grossman Ltr. at 3.
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contest. 46 III. CONCLUSION
Defendants' request for a stay is granted pending a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon. Defendants' request for a postponement of the Floyd trial is denied.

Dated:

January 22, 2013 New York, New York

46 The Floyd plaintiffs also argue that if the remedy phase of the Ligon litigation is stayed pending appeal, the consolidated Floyd-Ligon remedies hearing should be bifurcated from the Floyd trial, or the Floyd remedy phase should be separated from the remedy hearing in Ligon. See id. at 2. Because I have not stayed the remedy phase of the Ligon litigation, but have only stayed the immediately ordered relief in Ligon pending the completion of the Floyd-Ligon remedies hearing, I reject the Floyd plaintiffs' suggestion.
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For Ligon Plaintiffs:

- Appearances For Floyd 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
J. McGregor Smyth, Jr., Esq. 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

Darius Charney, Esq. Chauniqua Young, Esq. Sunita Patel, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614-6464
Philip A. Irwin, Esq. Eric Hellerman, Esq. Gretchen Hoff Varner, Esq. Kasey L. Martini, Esq. Covington & Burling LLP 620 Eighth Avenue New York, NY 10018 (212) 841-1155
Jonathan C. Moore, Esq. Jennifer Borchetta, Esq. Beldock Levine & Hoffman LLP 99 Park Avenue, Suite 1600 New York, NY 10016 (212) 490-0400

John A. Nathanson, Esq. Tiana Peterson, Esq. Mayer Grashin, Esq. Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 (212) 848-5222

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For Ligon and Floyd Defendants: Brenda Cooke Linda Donahue Heidi Grossman Morgan Kunz Joseph Marutollo Suzanna Publicker Lisa Richardson Cecelia 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
20

 
 Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 1 of 198

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- )(
DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
- against-
THE CITY OF NEW YORK,
Defendant.

OPINION AND ORDER 08 Civ. 1034 (SAS)

I. INTRODUCTION ...................................................... 1 

II. E)(ECUTIVE SUMMARy ............................................... 4 

III. APPLICABLE LAW ....... " .......................................... 15 
 A. Monell Liability ................................................. 15 
 B. Stops, Frisks, and Searches Under the Fourth Amendment ............. 18 
 1. The Definition of a Stop ..................................... 19 
 2. Stops Must Be Based on Reasonable Suspicion ................. 22 
 3. Protective Frisks for Weapons ............................... 23 
 4. Searching into Clothing for Weapons ......................... 25 
 5. De Bour and the Fourth Amendment .......................... 26 
 C. Equal Protection Under the Fourteenth Amendment .................. 26 

IV. FINDINGS OF FACT .................................................. 30 
 A. Overview of Uncontested Statistics ................................. 30 
 B. Expert Testimony ................................................ 37 
 1. The Liability Experts ....................................... 37 
 2. The Fourth Amendment Claim .............................. 40 
 a. Overview of Key Issues ............................... 40 
 b. Dr. Fagan's Method of Classifying Stops ................ 41 
 c. Unreliable Stop Factors ............................... 43 
 d. Quantifying the Magnitude of Apparently Unjustified Stops 
 Based on UF-250 Stop Factors ......................... 47 
 3. The Fourteenth Amendment Claim ........................... 48 


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a. Overview of Key Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 b. Competing Benchmarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 c. Findings Based on Dr. Fagan’s Analyses.. . . . . . . . . . . . . . . . . 58 C. Institutional Evidence of Deliberate Indifference.. . . . . . . . . . . . . . . . . . . . . . 60 1. Early Notice: the 1999 AG Report.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2. Pressure to Increase Stops.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 a. Compstat: Pressure on Commanders.. . . . . . . . . . . . . . . . . . . . 64 b. Evidence of Pressure in Survey Data. . . . . . . . . . . . . . . . . . . . . 67 c. Further Evidence of Pressure on Officers. . . . . . . . . . . . . . . . . 71
i. Pressure Before the 2010 Quota Law.. . . . . . . . . . . . . . 71 ii. Pressure After 2010 Quota Law. . . . . . . . . . . . . . . . . . . 77 d. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 3. Targeting “the Right People”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 4. Inadequate Monitoring and Supervision.. . . . . . . . . . . . . . . . . . . . . . . 89 a. Inadequate Documentation and Document Review. . . . . . . . . 89 b. Inadequate Supervision.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 5. Partially Inadequate Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 6. Inadequate Discipline. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 7. Ongoing Notice of Constitutional Violations.. . . . . . . . . . . . . . . . . . . 111 D. Individual Stops. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 1. Unconstitutional Stop and Frisk.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 a. Leroy Downs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 122 b. Devin Almonor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 127 c. Cornelio McDonald. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 132 d. Nicholas Peart — August 5, 2006. . . . . . . . . . . . . . . . . . . . . . . 133 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 136 e. Nicholas Peart — April 13, 2011 Stop. . . . . . . . . . . . . . . . . . . 138 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 139 f. Ian Provost. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 144 g. David Ourlicht — January 30, 2008 Stop. . . . . . . . . . . . . . . . 145 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 148 h. Clive Lino — February 5, 2008 Stop. . . . . . . . . . . . . . . . . . . . 149 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 153
ii

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i. Lalit Clarkson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 156
2. Unconstitutional Frisk Only. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 a. Dominique Sindayiganza.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 ii. Mixed Findings of Law and Fact. . . . . . . . . . . . . . . . . 160 b. David Floyd — April 20, 2007 Stop. . . . . . . . . . . . . . . . . . . . . 161 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 ii. Mixed Finding of Fact and Law. . . . . . . . . . . . . . . . . . 163 c. David Floyd — February 27, 2008 Stop.. . . . . . . . . . . . . . . . . 163 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 166 d. Clive Lino — February 24, 2011 Stop. . . . . . . . . . . . . . . . . . . 167 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 170 e. Deon Dennis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 i. Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 ii. Mixed Findings of Fact and Law. . . . . . . . . . . . . . . . . 173
3. Failure of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 a. John Doe Stops of Nicholas Peart in Spring 2008 and February 2010 and David Ourlicht in February and June 2008. . . . . . 174 b. Kristianna Acevedo Stop.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 c. Clive Lino — August 3, 2008. . . . . . . . . . . . . . . . . . . . . . . . . . 177
V. CONCLUSIONS OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 A. The City Is Liable for Violations of Plaintiffs’ Fourth Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 1. Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178 2. Widespread Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 B. The City Is Liable for Violations of Plaintiffs’ Fourteenth Amendment Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 1. Policy of Indirect Racial Profiling. . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 a. Intentionally Discriminatory Application of a Facially Neutral Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182 b. Express Classification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 c. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 2. Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
iii

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SHIRA A. SCHEINDLIN, U.S.D.J.: Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. — Railway Express Agency v. People of State of New York, 336 U.S. 106, 112–13 (1949) (Jackson, J., concurring) It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ — Terry v. Ohio, 392 U.S. 1, 16–17 (1968) 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. — United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.)
I. INTRODUCTION New Yorkers are rightly proud of their city and seek to make it as safe as the
largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it.
This case is about the tension between liberty and public safety in the use of a proactive policing tool called “stop and frisk.” The New York City Police Department (“NYPD”) made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person’s life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.
Plaintiffs — blacks and Hispanics who were stopped — argue that the NYPD’s
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use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on “reasonable suspicion” as defined by the Supreme Court of the United States;1 and second, that stops be conducted in a racially neutral manner.2
I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”3
This case is also not primarily about the nineteen individual stops that were the subject of testimony at trial.4 Rather, this case is about whether the City has a policy or custom

1

See generally U.S. CONST. amend. IV; Terry v. Ohio, 392 U.S. 1 (1968).

2

See generally U.S. CONST. amend. XIV § 1; Whren v. United States, 517 U.S.

806, 813 (1996).

3

District of Columbia v. Heller, 554 U.S. 570, 636 (2008).

4

The law requires plaintiffs to produce evidence that at least some class members

have been victims of unconstitutional stops. See U.S. CONST. art. III.

2

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of violating the Constitution by making unlawful stops and conducting unlawful frisks.5 The Supreme Court has recognized that “the degree of community resentment
aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security.”6 In light of the very active and public debate on the issues addressed in this Opinion — and the passionate positions taken by both sides — it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.
Plaintiffs requested that this case be tried to the Court without a jury. Because plaintiffs seek only injunctive relief, not damages, the City had no right to demand a jury. As a result, I must both find the facts and articulate the governing law. I have endeavored to exercise my judgment faithfully and impartially in making my findings of fact and conclusions of law based on the nine-week trial held from March through May of this year.

5

See Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978)

(establishing the standards under 42 U.S.C. § 1983 for municipal liability for constitutional torts

by employees).

6

Terry, 392 U.S. at 14 n.11.

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I begin with an Executive Summary of the most important points in the Opinion. Next, I address the legal standards governing the ability of police to conduct stops and frisks. I provide a statistical overview of the 4.4 million stops made between January 2004 and June 2012, followed by a discussion of the expert analyses of those stops. I then address the question of whether the City had notice of allegations of racial profiling in the conduct of stops and frisks, and the institutional response to that notice in terms of monitoring, supervision, training, and discipline. After addressing these big picture issues, I make findings of fact with respect to each of the nineteen stops of the twelve class members who provided testimony at trial.
Finally, I present my conclusions of law based on my findings of fact. I will address the question of remedies in a separate opinion, because the remedies overlap with a different case involving stop and frisk in which I have already found that preliminary injunctive relief is warranted.7
It is important that this Opinion be read synergistically. Each section of the Opinion is only a piece of the overall picture. Some will quarrel with the findings in one section or another. But, when read as a whole, with an understanding of the interplay between each section, I hope that this Opinion will bring more clarity and less disagreement to this complex and sensitive issue. II. EXECUTIVE SUMMARY
Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right,

7

See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 628534 (S.D.N.Y.

Feb. 14, 2013).

4

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plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.”8 “Official 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.”9
The Fourth Amendment protects all individuals against unreasonable searches or seizures.10 The Supreme Court has held that the Fourth Amendment permits 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.”11 “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”12 The test for whether a stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter.13 “‘[T]o proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.’”14
The Equal Protection Clause of the Fourteenth Amendment guarantees to every

8

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)).

9

Connick, 131 S. Ct. at 1359.

10 See infra Part III.B.

11 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)) (some quotation marks omitted).

12 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
13 See Florida v. Bostick, 501 U.S. 429 (1991).
14 United States v. Lopez, 321 Fed. App’x 65, 67 (2d Cir. 2009) (quoting Arizona v. Johnson, 555 U.S. 323, 326–27 (2009)).

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person the equal protection of the laws. It prohibits intentional discrimination based on race.
Intentional discrimination can be proved in several ways, two of which are relevant here. A
plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally
discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of
race, and that the classification does not survive strict scrutiny. Because there is rarely direct
proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact
of the official action — whether it bears more heavily on one race than another — may provide an important starting point.”15
The following facts, discussed in greater detail below, are uncontested:16
• Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
• The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
• 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
• In 52% of the 4.4 million stops, the person stopped was black, in 31% the person
15 Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir. 2010). 16 See infra Part IV.A.
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was Hispanic, and in 10% the person was white. • In 2010, New York City’s resident population was roughly 23% black, 29%
Hispanic, and 33% white. • In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer
recorded using force. The number for whites was 17%. • Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of
Hispanics, and 1.4% of the stops of whites. • Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7%
of the stops of Hispanics, and 2.3% of the stops of whites. • Between 2004 and 2009, the percentage of stops where the officer failed to state a
specific suspected crime rose from 1% to 36%. Both parties provided extensive expert submissions and testimony that is also discussed in detail below.17 Based on that testimony and the uncontested facts, I have made the following findings with respect to the expert testimony. With respect to plaintiffs’ Fourth Amendment claim,18 I begin by noting the inherent difficulty in making findings and conclusions regarding 4.4 million stops. Because it is impossible to individually analyze each of those stops, plaintiffs’ case was based on the imperfect information contained in the NYPD’s database of forms (“UF-250s”) that officers are required to prepare after each stop. The central flaws in this database all skew toward underestimating the number of unconstitutional stops that occur: the database is incomplete, in that officers do not prepare a UF-250 for every stop they make; it is one-sided, in that the UF250 only records the officer’s version of the story; the UF-250 permits the officer to merely check a series of boxes, rather than requiring the officer to explain the basis for her suspicion;
17 See infra Part IV.B. 18 See infra Part IV.B.2.
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and many of the boxes on the form are inherently subjective and vague (such as “furtive movements”). Nonetheless, the analysis of the UF-250 database reveals that at least 200,000 stops were made without reasonable suspicion.
The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as “apparently unjustified.” For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as “apparently unjustified.” The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked “other” on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as “ungeneralizable” rather than “apparently unjustified.” (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). (4) “Furtive Movements,” “High Crime Area,” and “Suspicious Bulge” are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.
With respect to plaintiffs’ Fourteenth Amendment claim,19 I reject the testimony of the City’s experts that the race of crime suspects is the appropriate benchmark for measuring racial bias in stops. The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population. But this
19 See infra Part IV.B.3. 8

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reasoning is flawed because the stopped population is overwhelmingly innocent — not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area. Instead, I conclude that the benchmark used by plaintiffs’ expert — a combination of local population demographics and local crime rates (to account for police deployment) is the most sensible.
Based on the expert testimony I find the following: (1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate. (2) Blacks and Hispanics are more likely than whites to be stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations. (3) For the period 2004 through 2009, when any law enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime. (4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely — and Hispanics 9% more likely — than whites to be subjected to the use of force. (5) For the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. Together, these results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.
With respect to both the Fourth and Fourteenth Amendment claims, one way to 9

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prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees — here, the NYPD. The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.20
As early as 1999, a report from New York’s Attorney General placed the City on notice that stops and frisks were being conducted in a racially skewed manner. Nothing was done in response. In the years following this report, pressure was placed on supervisors to increase the number of stops. Evidence at trial revealed that officers have been pressured to make a certain number of stops and risk negative consequences if they fail to achieve the goal.21 Without a system to ensure that stops are justified, such pressure is a predictable formula for producing unconstitutional stops. As one high ranking police official noted in 2010, this pressure, without a comparable emphasis on ensuring that the activities are legally justified, “could result in an officer taking enforcement action for the purpose of meeting a quota rather than because a violation of the law has occurred.”22
In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting “the right people” for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints.23 This is a form of racial profiling. While a person’s race may be important if it fits the description of a
20 See infra Part IV.C. 21 See infra Part IV.C.2. 22 2010 Memorandum of Chief of Patrol James Hall, Plaintiffs’ Trial Exhibit (“PX”) 290 at *0096. 23 See infra Part IV.C.3.
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particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.
Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk. Despite the mounting evidence that many bad stops were made, that officers failed to make adequate records of stops, and that discipline was spotty or non-existent, little has been done to improve the situation.
One example of poor training is particularly telling. Two officers testified to their understanding of the term “furtive movements.” One explained that “furtive movement is a very broad concept,” and could include a person “changing direction,” “walking in a certain way,” “[a]cting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth constantly,” “looking over their shoulder,” “adjusting their hip or their belt,” “moving in and out of a car too quickly,” “[t]urning a part of their body away from you,” “[g]rabbing at a certain pocket or something at their waist,” “getting a little nervous, maybe shaking,” and “stutter[ing].”24 Another officer explained that “usually” a furtive movement is someone
24 4/18 Trial Transcript (“Tr.”) at 4047–4049 (emphasis added). 11

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“hanging out in front of [a] building, sitting on the benches or something like that” and then making a “quick movement,” such as “bending down and quickly standing back up,” “going inside the lobby . . . and then quickly coming back out,” or “all of a sudden becom[ing] very nervous, very aware.”25 If officers believe that the behavior described above constitutes furtive movement that justifies a stop, then it is no surprise that stops so rarely produce evidence of criminal activity.
I now summarize my findings with respect to the individual stops that were the subject of testimony at trial.26 Twelve plaintiffs testified regarding nineteen stops. In twelve of those stops, both the plaintiffs and the officers testified. In seven stops no officer testified, either because the officers could not be identified or because the officers dispute that the stop ever occurred. I find that nine of the stops and frisks were unconstitutional — that is, they were not based on reasonable suspicion. I also find that while five other stops were constitutional, the frisks following those stops were unconstitutional. Finally, I find that plaintiffs have failed to prove an unconstitutional stop (or frisk) in five of the nineteen stops. The individual stop testimony corroborated much of the evidence about the NYPD’s policies and practices with respect to carrying out and monitoring stops and frisks.
In making these decisions I note that evaluating a stop in hindsight is an imperfect procedure. Because there is no contemporaneous recording of the stop (such as could be achieved through the use of a body-worn camera), I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. This task is not easy, as every witness has an
25 5/9 Tr. at 6431–6433. 26 See infra Part IV.D.
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interest in the outcome of the case, which may consciously or unconsciously affect the veracity of his or her testimony. Nonetheless, a judge is tasked with making decisions and I judged the evidence of each stop to the best of my ability. I am also aware that a judge deciding whether a stop is constitutional, with the time to reflect and consider all of the evidence, is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves or others. I respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.27
In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law. In addition, the City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause. Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband. I also conclude that the City’s highest officials have turned a blind eye to the evidence that officers are
27 “Throughout the country, police work diligently every day trying to prevent crime, arrest those who are responsible, and protect victims from crimes that undermine their dignity and threaten their safety. They work for relatively low pay for the risks that they take, and although in some communities their role is respected and admired, in other communities they are vilified and treated as outcasts.” CHARLES OGLETREE, THE PRESUMPTION OF GUILT 125 (2012).
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conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting “the right people” is racially discriminatory and therefore violates the United States Constitution. One NYPD official has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason — in the hope that this fear will deter them from carrying guns in the streets. The goal of deterring crime is laudable, but this method of doing so is unconstitutional.
I recognize that the police will deploy their limited resources to high crime areas. This benefits the communities where the need for policing is greatest. But the police are not permitted to target people for stops based on their race. Some may worry about the implications of this decision. They may wonder: if the police believe that a particular group of people is disproportionately responsible for crime in one area, why should the police not target that group with increased stops? Why should it matter if the group is defined in part by race?28 Indeed, there are contexts in which the Constitution permits considerations of race in law enforcement operations.29 What is clear, however, is that the Equal Protection Clause prohibits the practices described in this case. A police department may not target a racially defined group for stops in general — that is, for stops based on suspicions of general criminal wrongdoing — simply
28 I note again that based on the uncontested statistics, see infra Part IV.A, the NYPD’s current use of stop and frisk has not been particularly successful in producing arrests or seizures of weapons or other contraband.
29 For example, as discussed at length in this Opinion, race is a permissible consideration where there is a specific suspect description that includes race. See, e.g., Brown v. City of Oneonta, New York, 221 F.3d 329, 340 (2d Cir. 2000).
14

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because members of that group appear frequently in the police department’s suspect data.30 The Equal Protection Clause does not permit the police to target a racially defined group as a whole because of the misdeeds of some of its members.
To address the violations that I have found, I shall order various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD’s conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD’s compliance with the ordered remedies. III. APPLICABLE LAW
A. Monell Liability Section 1983 of Title 42 of the United States Code (“section 1983”) creates “‘a
species of tort liability’” for, among other things, certain violations of constitutional rights.31 As the Supreme Court established in Monell v. New York City Department of Social Services,32 in
30 Cf. City of Indianapolis v. Edmond, 531 U.S. 32, 41–42 (2000) (holding that while suspicionless stops at a highway checkpoint may be constitutional under the Fourth Amendment when “designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety,” highway stops that lack “some measure of individualized suspicion” and “whose primary purpose [is] to detect evidence of ordinary criminal wrongdoing” contravene the Fourth Amendment).
31 Heck v. Humphrey, 512 U.S. 477, 483 (1994) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)).
32 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.’” Monell, 436 U.S. 658, 690–91 (1978) (quoting Adickes v. S. H. Kress
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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.”33 “In other words, municipalities are ‘responsible only for their own illegal acts,’ and cannot be held ‘vicariously liable under § 1983 for their employees’ actions.’”34 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.”35 Such policies “may be pronounced or tacit and reflected in either action or inaction.”36
One way to establish the existence of a municipal policy or custom 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.’”37 Deliberate indifference requires
& Co., 398 U.S. 144, 167–68 (1970)). 33 Cash, 654 F.3d at 333 (quoting Connick, 131 S. Ct. at 1359, 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.).
34 Cash, 654 F.3d at 333 (quoting Connick, 131 S. Ct. at 1359) (some quotation marks omitted).
35 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).
36 Cash, 654 F.3d at 334. 37 Id. (quoting Amnesty, 361 F.3d at 126).
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“‘proof that a municipal actor disregarded a known or obvious consequence of his action.’”38 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.’”39
A municipality may incur Monell liability based on deliberate indifference through its training and supervision practices. “[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[.]’”40 Although “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,”41 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.”42
In Walker v. City of New York, the Second Circuit framed the deliberate indifference inquiry in three parts:

38 Connick, 131 S. Ct. at 1359 (quoting Board of Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410 (1997)).

39
128).

Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct at 1360; Amnesty, 361 F.3d at

40 Id. (quoting Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995); Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)).

41 Connick, 131 S. Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)).

42 Id. (citing Bryan Cnty., 520 U.S. at 407).

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(1) [the] policymaker knows “to a moral certainty” that its employees will confront a given situation; (2) either [the] 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 [the] situation; and (3) [a] wrong choice by employees will frequently cause [the] deprivation of constitutional rights.43
“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.’”44 “A pattern of similar constitutional violations by untrained
employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of failure to train.”45
B. Stops, Frisks, and Searches Under the Fourth Amendment
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment,46 states: “The right of the people to be secure in their persons, houses, papers, and
43 Cash, 654 F.3d at 334 (citing Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992)).
44 Walker, 974 F.2d at 298 (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989)). 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.
45 Connick, 131 S. Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 409). By contrast, “once 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) (emphasis added).
46 See Maryland v. Pringle, 540 U.S. 366, 369 (2003) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
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effects, against unreasonable searches and seizures, shall not be violated . . . .”47 The Supreme Court of the United States has repeatedly affirmed that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”48 The Supreme Court has 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.”49 This form of investigative detention is now known as a Terry stop.50
1. The Definition of a Stop As the Supreme Court reaffirmed in Florida v. Bostick, the test for determining whether a Terry stop is taking place “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.”51 Whether a stop has taken place depends on “whether, taking into account all of the circumstances surrounding the encounter, the

47

U.S. CONST. amend. IV.

48 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, 392 U.S. at 19)).

49
omitted).

Swindle, 407 F.3d at 566 (quoting Sokolow, 490 U.S. at 7) (some quotation marks

50 See Davis v. City of New York, 902 F. Supp. 2d 405, 411 (S.D.N.Y. 2012) (citing Terry, 392 U.S. at 88).

51 501 U.S. at 436. The “free to terminate the encounter” standard is a more general formulation of Justice Potter Stewart’s “free to leave” standard in United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). See also Terry, 392 U.S. at 16 (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).

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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.’”52
While the Supreme Court explicitly refrained from determining whether a seizure occurred in Bostick,53 it noted several types of police encounters that were not necessarily stops.54 However, the Court confirmed that even in these cases, the “free to 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.”55 The Bostick majority
emphasized that police officers may not “demand of passengers their ‘voluntary’ cooperation” through “‘an intimidating show of authority.’”56
52 Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). Bostick also notes that “the ‘reasonable person’ test presupposes an innocent person.” Id. at 438. For a comprehensive summary of the “free to leave” test as it has been interpreted and applied, see 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.4(a) (5th ed. 2012) (“LAFAVE”).
53 See Bostick, 501 U.S. at 437. 54 See id. at 434–35. 55 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)). These cases confirm 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). 56 Bostick, 501 U.S. at 438 (quoting Bostick, 501 U.S. at 447 (Marshall, J., dissenting)) (emphasis omitted).
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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.57
The following summarizes 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 you,” and then told the person to show his hands.58
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.”59
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. The
Second Circuit has further held: “[a] seizure occurs when (1) a person obeys a police officer’s
57 United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (citing Lee, 916 F.2d at 819). Accord United States v. Drayton, 536 U.S. 194, 203–04 (2002) (concluding, under Bostick framework, that a reasonable passenger on a 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 the 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”).
58 Ligon, 2013 WL 628534, at *36 (citing United States v. Simmons, 560 F.3d 98, 101, 105–06 (2d Cir. 2009); Brown, 221 F.3d at 340).
59 Id. at *36 n.410 (citing Brown, 221 F.3d at 341).
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order to stop or (2) a person that does not submit to an officer’s show of authority is physically restrained.”60
2. Stops Must Be Based on Reasonable Suspicion
In order for a Terry stop to comply with the Fourth Amendment, it must be based on a reasonable suspicion that criminal activity “may be afoot.”61 That is, the police may make a
Terry stop “when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.”62 At minimum, “‘[t]he officer [making a Terry stop]
. . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’”63 That is, “[p]olice ‘must be able to point to specific and articulable facts which, taken
together with rational inferences from those facts, reasonably warrant [the] intrusion [on a citizen’s liberty interest].’”64 “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”65
60 Simmons, 560 F.3d at 105 (citing Swindle, 407 F.3d at 572). 61 Terry, 392 U.S. at 30. 62 United States v. Place, 462 U.S. 696, 702 (1983) (citing Terry, 392 U.S. at 22). Although the Court in Terry did not explicitly refer to crimes that are “about to be” committed, the stop upheld in Terry was based on a police officer’s suspicion that two men were about to carry out a “stick-up.” Terry, 392 U.S. at 6. It has long been recognized that arrests may be based on probable cause to believe that a crime is about to be committed. The New York stop and frisk statute, New York Criminal Procedure Law (“CPL”) § 140.50(1), allows stops when an officer “reasonably suspects that such person is committing, has committed or is about to commit either (a) a felony or (b) a misdemeanor defined in the penal law.” 63 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7) (some 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 LAFAVE § 9.5(c). 64 United States v. Elmore, 482 F.3d 172, 178–79 (2d Cir. 2007) (quoting Terry, 392 U.S. at 21). 65 Bayless, 201 F.3d at 133.
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In general, reasonable suspicion requires an individualized suspicion of wrongdoing.66 While the Supreme Court has recognized certain narrow exceptions to this requirement, there is no exception for stops of pedestrians for the general purpose of controlling crime.67
Courts reviewing stops for reasonable suspicion “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.”68 “[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.”69 “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.”70
3. Protective Frisks for Weapons The Supreme Court has recognized that a police officer making an investigatory

66
(1997)).

See Edmond, 531 U.S. at 37 (citing Chandler v. Miller, 520 U.S. 305, 308

67 See id. at 37–40 (summarizing exceptions); id. at 34, 41–44 (distinguishing between suspicionless stops at highway checkpoints “for the purposes of combating drunk driving and intercepting illegal immigrants,” which are constitutional; and suspicionless stops at checkpoints that primarily aim to advance “‘the general interest in crime control,’” which are unconstitutional (quoting Delaware v. Prouse, 440 U.S. 648, 659 n.18 (1979))).

68 United States v. Arvizu, 534 U.S. 266, 273 (2002) (quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)).

69 Lee, 916 F.2d at 819.

70 Illinois v. Wardlow, 528 U.S. 119, 123 (2000).

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stop “should not be denied the opportunity to protect himself from attack by a hostile suspect.”71
As a result, “a law enforcement officer, for his own protection and safety, may conduct a
patdown to find weapons that he reasonably believes or suspects are then in the possession of the
person he has accosted.”72 “‘[T]o proceed from a stop to a frisk, the police officer must
reasonably suspect that the person stopped is armed and dangerous.’”73 “The test is an objective
rather than a subjective one, . . . and thus it is not essential that the officer actually have been in
fear.”74
“The purpose of [a frisk for weapons] is not to discover evidence of crime, but to
71 Adams v. Williams, 407 U.S. 143, 146 (1972) (citing Terry, 392 U.S. at 24). 72 Ybarra v. Illinois, 444 U.S. 85, 93 (1979) (citing Adams, 407 U.S. at 146). 73 Lopez, 321 Fed. App’x at 67 (quoting Johnson, 555 U.S. at 326–27 ) (holding that the following behavior provided reasonable suspicion that a suspect was carrying a weapon: “[w]hen [the suspect] saw [the officer] approaching him, [the suspect] transferred [a] cup from his right to his left hand and dropped his right hand to his right side”). Accord 4 LAFAVE § 9.6(a) (noting that “assuming a proper stopping for investigation, a protective search is permissible when, at the time the frisk itself is commenced, there is reason to believe that the suspect may be armed and dangerous”). 74 4 LAFAVE § 9.6(a) (citing United States v. Tharpe, 536 F.2d 1098 (5th Cir. 1976)). Trial courts “have been inclined to view the right to frisk as being ‘automatic’ whenever the suspect has been stopped upon the suspicion [of a criminal activity] for which the offender would likely be armed,” such as “robbery, burglary, rape, assault with weapons, car theft, homicide, and dealing in large quantities of narcotics.” Id.
I note that the New York stop and frisk statute authorizes an officer to conduct a frisk whenever, after a stop, he “reasonably suspects that he is in danger of physical injury.” CPL § 140.50(3). This standard is not the constitutional standard. It would allow an officer to conduct a frisk even when she lacks reasonable suspicion that the stopped person is armed and dangerous. As the Supreme Court has made clear, New York “may not . . . authorize police conduct which trenches upon Fourth Amendment rights.” Sibron v. New York, 392 U.S. 40, 61 (1968). The Fourth Amendment, and not New York law, establishes the requirements for a constitutional frisk in this case.
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allow the officer to pursue his investigation without fear of violence.”75 Thus, the frisk must be “limited in scope to this protective purpose,”76 and “strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.’”77 However, 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 without a warrant.78 In sum, “[n]othing in Terry can be understood to allow a generalized ‘cursory search for weapons’ or indeed, any search whatever for anything but weapons.”79
4. Searching into Clothing for Weapons Just as reasonableness is the touchstone for the Fourth Amendment generally, reasonable suspicion provides the standard at each stage of a Terry stop. Once an officer has lawfully stopped someone based on reasonable suspicion of criminal activity, the officer may lawfully frisk the stopped person based on reasonable suspicion that the person is armed and dangerous. If the frisk gives rise to reasonable suspicion that an object in the clothing of the stopped person is a weapon that could be used to harm the officer, then the officer may take whatever action is necessary to examine the object and protect himself — including removing

75 76 77
26).
78 79

Adams, 407 U.S. at 146. Id. Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (quoting Terry, 392 U.S. at
Id. at 375 (emphasis added). Ybarra, 444 U.S. at 93–94.
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the object from the clothing of the stopped person.80 5. De Bour and the Fourth Amendment 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.81 Because De Bour and the Fourth Amendment draw the line between permissible and impermissible police encounters in different ways, De Bour is in some respects more protective of liberty from governmental intrusion than the Fourth Amendment, and in other respects less.82 The Supreme Court has held that although states may impose greater restrictions on police conduct than those established by the Fourth Amendment, a state “may not . . . authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.”83 Thus, even where a police encounter would be permissible under De Bour, it remains unlawful if it violates the Fourth Amendment.
C. Equal Protection Under the Fourteenth Amendment
80 See People v. Collins, 463 P.2d 403, 406 (Cal. 1970) (holding “that an officer who exceeds a pat-down without first discovering an object which feels reasonably like a knife, gun, or club must be able to point to specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down”).
81 People v. De Bour, 40 N.Y.2d 210 (1976). See, e.g., Ligon, 2013 WL 628534, at *35–39. I note that the NYPD’s policies and training materials also draw from New York’s stop and frisk statute. Compare, e.g., Patrol Guide 212-11: Stop and Frisk, PX 98, at 1, with CPL § 140.50. As noted earlier, the New York statutory standard for a frisk is not the Fourth Amendment standard as defined by the Supreme Court.
82 See Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 1288176, at *6 n.75 (S.D.N.Y. Mar. 28, 2013).
83 Sibron, 392 U.S. at 61 (reversing conviction for failure to suppress evidence seized in an unlawful stop).
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The Fourteenth Amendment’s Equal Protection Clause declares that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”84 The Clause “is essentially a direction that all persons similarly situated should be treated alike.”85 It prohibits intentional discrimination on the basis of race, but not government action that merely has a disproportionate racial impact.86
The Second Circuit has outlined “several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause.”87 First, “[a] plaintiff could point to a

84

U.S. CONST. amend. XIV § 1.

85 City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985).

86 See Washington v. Davis, 426 U.S. 229, 239–40 (1976). I note that the parties sometimes use the phrase “pattern and practice” in referring to plaintiffs’ constitutional claims. See, e.g., 6/12/13 Post-Trial Memorandum of Law in Support of Plaintiffs’ Claims (“Pl. Mem.”) at i–ii; 6/12/13 Defendant’s Post-Trial Memorandum of Law (“Def. Mem.”) at 6 n.11. However, pattern or practice analysis does not govern equal protection claims. See Chavez v. Illinois State Police, 251 F.3d 612, 638 n.8 (7th Cir. 2001). Rather, the term “pattern or practice” appears in civil rights statutes such as Title VII of the Civil Rights Act of 1964, as well as several “statutes authorizing the Attorney General to bring suits to remedy discrimination.” Marshall Miller, Police Brutality, 17 YALE L. & POL’Y REV. 149–151, 169 & n.124 (1998) (discussing Title XXI of the Violent Crime Control and Law Enforcement Act of 1994, codified at 42 U.S.C. § 14141, which allows the Attorney General to sue law enforcement agencies that “engage in a pattern or practice” of unconstitutional conduct).
I also note that despite the occasional use of the terms “disparate treatment” and “disparate impact” by the parties’ experts, see infra Part IV.B.3, these terms of art are generally applied to Title VII and other statutory claims, not equal protection claims. See, e.g., Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).”). The New York City Council recently passed a bill that would create a private right of action for claims of “bias-based profiling” based on discriminatory intent or disparate impact. See N.Y. City Council Introductory No. 1080 of 2013 § 2.

87 Brown, 221 F.3d at 337. Accord Pyke v. Cuomo (“Pyke II”), 567 F.3d 74, 76 (2d Cir. 2009) (citing Pyke v. Cuomo (“Pyke I”), 258 F.3d 107, 110 (2d Cir. 2001)).

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law or policy that ‘expressly classifies persons on the basis of race.’”88 Second, “a plaintiff could identify a facially neutral law or policy that has been applied in an intentionally discriminatory manner.”89 Third, “[a] plaintiff could also allege that a facially neutral statute or policy has an adverse effect and that it was motivated by discriminatory animus.”90 In none of these three cases is a plaintiff “obligated to show a better treated, similarly situated group of individuals of a different race in order to establish a claim of denial of equal protection.”91
In order to show intentional discrimination under the second and third models of pleading above, plaintiffs need not prove that the “‘challenged action rested solely on racially discriminatory purposes,’”92 or even that a discriminatory purpose “was the ‘dominant’ or

88 Brown, 221 F.3d at 337 (quoting Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)). An express racial classification is “subject to strict judicial scrutiny.” Pyke II, 567 F.3d at 77 (citing Loving v. Virginia, 388 U.S. 1, 11 (1967); Johnson v. California, 543 U.S. 499, 505 (2005) (holding that “all racial classification” imposed by government “must be analyzed by a reviewing court under strict scrutiny”)). Accord Fisher v. University of Texas at Austin, 133 S. Ct. 2411, 2419 (2013) (“[A]ny official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” (quotation marks and citation omitted, and emphasis added)). “In order to satisfy strict scrutiny, a classification must further a compelling state interest and be narrowly tailored to accomplish the purpose.” Pyke II, 567 F.3d at 77 (citing Shaw v. Hunt, 517 U.S. 899, 908 (1996)).

89
(1886)).

Brown, 221 F.3d at 337 (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74

90 Id. (citing Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977); Johnson v. Wing, 178 F.3d 611, 615 (2d Cir. 1999)).

91 Pyke I, 258 F.3d at 110. An exception exists for plaintiffs alleging a selective prosecution in violation of the Equal Protection Clause. In order to prevail on this claim, plaintiffs “must plead and establish the existence of similarly situated individuals who were not prosecuted; that is because courts grant special deference to the executive branch in the performance of the ‘core’ executive function of deciding whether to prosecute.” Pyke I, 258 F.3d at 109 (citing United States v. Armstrong, 517 U.S. 456, 465 (1996)).

92 Paterson, 594 F.3d at 163 (quoting Arlington Heights, 429 U.S. at 265).

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‘primary’ one.”93 Rather, plaintiffs must prove that “a discriminatory purpose has been a motivating factor” in the challenged action.94 That is, plaintiffs must show that those who
carried out the challenged action “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.”95 As
the Supreme Court and the Second Circuit 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.”96
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.”97 “‘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.’”98
93 Arlington Heights, 429 U.S. at 265. 94 Id. at 265–66 (emphasis added). Accord Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 277 (1979) (“Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the [governmental action] or it is not.”). 95 Paterson, 594 F.3d at 163 (quoting Feeney, 442 U.S. at 279 (citation and footnote omitted)) (some quotation marks omitted). 96 Id. (quoting Arlington Heights, 429 U.S. at 266). 97 Feeney, 442 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. 98 United States v. City of Yonkers, 96 F.3d 600, 612 (2d Cir. 1996) (quoting United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1217 (2d Cir. 1987)).
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“‘If the defendant comes forward with no such proof or if the trier of fact is unpersuaded that
race did not contribute to the outcome of the decision, the equal protection claim is
established.’”99
IV. FINDINGS OF FACT
A non-jury trial on liability and remedies was held between March 18 and May
20, 2013.100 Based on the preponderance of the credible evidence,101 as well as the parties’ post-
trial submissions, the following are my findings of fact pursuant to Federal Rule of Civil
Procedure 52(a).102
A. Overview of Uncontested Statistics
Officers are required to complete a UF-250 form, also known as a “Stop,
99 Id. (quoting Yonkers, 837 F.2d at 1217). 100 Plaintiffs filed the case on January 31, 2008. On August 31, 2011, I granted in part and denied in part defendants’ motion for partial summary judgment. See Floyd v. City of New York, 813 F. Supp. 2d 417 (S.D.N.Y. 2011), partial reconsideration granted, 813 F. Supp. 2d 457 (S.D.N.Y. 2011). On April 14, 2012, I granted in part and denied in part defendants’ motion to exclude the testimony of plaintiffs’ liability expert. See Floyd v. City of New York, 861 F. Supp. 2d 274 (S.D.N.Y. 2012). On May 16, 2012, I granted plaintiffs’ motion to be certified as a class. See Floyd v. City of New York, 283 F.R.D. 153 (S.D.N.Y. 2012). In an order entered March 8, 2013, I approved the parties’ stipulation withdrawing plaintiffs’ damages claims, dismissing plaintiffs’ claims against individual officers, and altering the caption to reflect the remaining parties. See Stipulation and Order of Withdrawal of Individual Damage Claims (3/8/13). Plaintiffs have not pursued the state law claims in their Second Amended Complaint. See Second Amended Complaint (10/20/08); Pl. Mem. at i–ii; Def. Mem. at 2 n.2. Plaintiffs’ only claims are section 1983 claims against the City for Fourth and Fourteenth Amendment violations. 101 “To establish by a preponderance of the evidence means very simply to prove that something is more likely than not so.” Duke Labs., Inc. v. United States, 222 F. Supp. 400, 406 (D. Conn. 1963), aff’d, 337 F.2d 280 (2d Cir. 1964). 102 “In an action tried on the facts without a jury . . . , the court must find the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1).
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Question and Frisk Report Worksheet,” after each Terry stop. Each side of the form contains

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 (the “stop factors”). A copy of a blank UF-250 appears as Appendix A to this Opinion.103

Plaintiffs’ liability expert, Dr. Jeffrey Fagan, conducted various statistical

analyses of UF-250s based on an electronic database containing the information on the forms.104

The more complicated and contested statistical analyses will be discussed below.105 In this

section, I summarize the most relevant uncontested statistics culled from the UF-250 database:106

•

Between January 2004 and June 2012,107 the NYPD conducted over 4.4 million Terry

103 See infra App. A (“Blank UF-250”).
104 See Report of Jeffrey Fagan, Ph.D. (Oct. 15, 2010), PX 411 (“Fagan Rpt.”); Supplemental Report of Jeffrey Fagan, Ph.D. (Dec. 3, 2010), PX 412 (“Fagan Supp. Rpt.”); Second Supplemental Report of Jeffrey Fagan, Ph.D. (Nov. 29, 2012), PX 417 (“Fagan 2d Supp. Rpt.”).
105 See infra Part IV.B. The City’s liability experts concede that Dr. Fagan’s “descriptive statistics are not a source of contention.” Report of Dennis C. Smith, Ph.D. and Robert M. Purtell, Ph.D. in Response to the Second Supplemental Report of Jeffrey Fagan, Ph.D. (Feb. 1, 2013), Defendant’s Trial Exhibit (“DX”) H13, at 7 (“Smith Rpt.”). I rely on the Smith Report for most of my citations to Dr. Smith’s and Dr. Purtell’s written opinions, although they had prepared prior written opinions. See, e.g., Report of Dennis C. Smith, Ph.D. (Nov. 15, 2010), DX T8; Declaration of Dennis C. Smith (Dec. 19, 2011), DX O8.
106 Of course, if an officer decides that he has not made a Terry stop, or simply fails to complete a UF-250 after a stop, then the encounter will not be reflected in the UF-250 database. See infra Part IV.C.4–5 (evidence of inadequate training regarding what constitutes a Terry stop, and of failures to fill out UF-250s).
107 These dates are the class period in this case. Dr. Fagan’s October 2010 and December 2010 reports analyzed data from January 1, 2004 through December 31, 2009, while his November 2012 report analyzed data from January 1, 2010 through June 30, 2012. See Fagan 2d Supp. Rpt. at 1.
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stops.108
• The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.109
• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.110
• 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.111
• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.112
108 The City counts a total of 4,431,414 UF-250s, while plaintiffs count a total of 4,430,140. See DX V14-A; PX 417D; Fagan 2d Supp. Rpt. at 10 tbl. 1. While I use the 4.4 million figure throughout this Opinion, the actual number of stops during the class period is likely higher, because officers do not always prepare a UF-250 after a stop. See, e.g., infra Part IV.D.1.a (no UF-250 for Leroy Downs stop); infra Part IV.D.1.h (no UF-250 for Clive Lino stop); Ligon, 2013 WL 628534, at *11 (noting that the officer who stopped named plaintiff Charles Bradley failed to fill out a UF-250); id. at *20 & n.241 (noting that the CCRB has reported on a systematic problem with officers failing to complete UF-250s after stops). It is impossible to determine how often officers fail to fill out UF-250s for Terry stops, because the NYPD has no reliable mechanism for monitoring this failure. See infra Part IV.C.4.
109 See DX V14-A.
110 See id. (2,284,246 total frisks); DX V14-C (33,882 weapons found). This assumes that weapons were only found in stops that involved frisks. If weapons were found in stops that did not involve frisks, the percentage of frisks leading to the discovery of weapons would be even lower.
111 See DX V14-B; DX V14-C; DX V14-D; Fagan Rpt. at 63 (defining contraband).
112 These statistics are sometimes referred to as “hit rates.” See Fagan Rpt. at 64 tbls. 14 & 15 (5.37% of stops resulted in arrest and 6.26% of stops resulted in a summons between 2004 and 2009); Fagan 2d Supp. Rpt. at 34 tbl. 14 (6.26% of stops resulted in arrest and 6.25% of stops resulted in a summons between 2010 and June 2012).
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•

In 52% of the 4.4 million stops, the person stopped was black.113

•

In 31% of the stops, the person stopped was Hispanic.114

•

In 10% of the stops, the person stopped was white.115

• In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.116

• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.117

• Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.118

113 See Fagan Rpt. at 22 tbl. 3 (1,445,472 stops of blacks between 2004 and 2009); Fagan 2d Supp. Rpt. at 11 tbl. 3 (843,684 stops of blacks between January 2010 and June 2012). In Dr. Fagan’s studies, the category “black” encompasses two checkboxes in the “Race” section on the UF-250, “Black” and “Black Hispanic.” See Fagan Rpt. at 20; Blank UF-250. The term black is used throughout this opinion rather than African-American as that term is used on the UF-250 form.
114 See Fagan Rpt. at 22 tbl. 3 (841,755 stops of Hispanics between 2004 and 2009); Fagan 2d Supp. Rpt. at 11 tbl. 3 (520,171 stops of Hispanics between January 2010 and June 2012). As in Dr. Fagan’s studies, when the term “Hispanic” appears in this Opinion, it refers only to the “White Hispanic” checkbox on the UF-250. See Fagan Rpt. at 20; Blank UF-250. “Hispanic” is an imperfect and contested term, like most racial and ethnic classifications. The term “Hispanic” is used rather than “Latino” because “Hispanic” appears on the UF-250. See Blank UF-250. It is unfortunately necessary to reduce New York’s rich demographic diversity to a few simple racial categories for the purposes of this case.

115 See Fagan Rpt. at 22 tbl. 3 (286,753 stops of whites between 2004 and 2009); Fagan 2d Supp. Rpt. at 11 tbl. 3 (148,283 stops of whites between January 2010 and June 2012). 90% of all stops were of men, and 69% were of people between the ages of 16 and 34. See Fagan Rpt. at 22 tbl. 3; Fagan 2d Supp. Rpt. at 11 tbl. 3.

116

See RAYMOND W. KELLY, POLICE COMMISSIONER, NYPD, CRIME AND

ENFORCEMENT ACTIVITY IN NEW YORK CITY (JAN[.] 1–DEC[.] 31, 2012) app. B (citing 2010

census).

117 See Fagan Rpt. at 64 tbl. 14; Fagan 2d Supp. Rpt. at 34 tbl. 14.

118 See Fagan Rpt. at 64 tbl. 15; Fagan 2d Supp. Rpt. at 35 tbl. 15. Because guns were seized in only 0.1% of stops, it is difficult to draw meaningful inferences from the statistics regarding gun seizures. See Fagan Rpt. at 63–64 & tbls. 14–15; Fagan 2d Supp. Rpt. at 35 & tbl.

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• Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.119

•

For the years 2004 to 2009,120 the two most commonly checked boxes indicating the

reasons for a stop were “Furtive Movements” and “Area Has Incidence Of Reported

Offense Of Type Under Investigation” (“High Crime Area”). Setting aside stops

based on radio runs, officers marked “Furtive Movements” as a basis for the stop on

42% of the forms, and “High Crime Area” on 55% of the forms. In 2009, officers indicated “Furtive Movements” as a basis for the stop nearly 60% of the time.121

• Both “Furtive Movements” and “High Crime Area” are weak indicators of criminal activity. For the years 2004 to 2009, stops were 22% more likely to result in arrest if “High Crime Area” was not checked, and 18% more likely to result in arrest if “Furtive Movements” was not checked.122

• Between 2004 and 2009, as the number of stops per year soared from 314,000 to
576,000, the percentage of UF-250s on which the officer failed to state a specific suspected crime rose from 1% to 36%.123

15.
119 See Fagan Rpt. at 64 tbl. 15; Fagan 2d Supp. Rpt. at 35 tbl. 15.
120 Dr. Fagan did not update the following statistics for the years 2010 through 2012.
121 See Fagan Rpt. at 51–52 & tbl. 11; Fagan Supp. Rpt. at 41. In a stop based on a radio run, as opposed to a self-initiated stop, the suspicion leading to the stop involves information received by the officer over the radio. See Fagan Rpt. at 50. 78% of stops during the class period were self-initiated. See PX 417D.
I also note that the number of stop factors indicated on UF-250s increased from 2004 to 2009. In 2004, the average was 1.01 factors on the front of the form (“What Were Circumstances Which Led To Stop?”) and 1.53 factors on the back (“Additional Circumstances/Factors”). By 2009, the average was 1.47 factors on the front of the form and 1.93 factors on the back. “Furtive Movements” appears on the front, and “High Crime Area” on the back. See Fagan Supp. Rpt. at 40 tbl. S6; Blank UF-250.
122 See Fagan Rpt. at 52.
123 See Fagan Supp. Rpt. at 39; DX V14-A. On the forms without a specific suspected crime, the “Specify Which Felony/P.L. Misdemeanor Suspected” field was either left empty, contained a text string that does not describe a penal law category or a violation, or contained the following generic text strings: “FEL,” “FELONY,” “MISD,” or “MISDEMEANOR.” See Fagan Supp. Rpt. at 39 n.89.
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Finally, I note that the City’s attempt to account for the low rate of arrests and summonses following stops was not persuasive. The City states that “[v]arious witnesses testified, including former Chief of Department Joseph Esposito, that many stops interrupt a crime from occurring, for example an individual casing a location or stalking an individual late at night.”124 No evidence was offered at trial, however, of a single stop that was: (1) based on reasonable suspicion, and (2) prevented the commission of a crime, but (3) did not result in probable cause for an arrest. While I have no doubt that such a stop has taken place at some time, it is highly implausible that successful “preventive” stops take place frequently enough to affect the conclusion that in at least 88% of the NYPD’s 4.4 million stops between January 2004 and June 2012, the suspicion giving rise to the stop turned out to be misplaced.
Indeed, for several reasons, the 12% “hit rate” likely overstates the percentage of stops in which an officer’s suspicions turn out to be well-founded. First, officers are trained to prepare UF-250s only for stops based on suspicion of a misdemeanor or felony. The UF-250 itself states: “Specify Which Felony/P.L. Misdemeanor Suspected.”125 By contrast, a summons may be issued for offenses less serious than a misdemeanor, such as violations.126 Although the parties did not offer evidence on the types of summonses recorded in the UF-250 database, it is
124 6/12/13 Defendant’s Proposed Findings of Fact and Conclusions of Law (“Def. Findings”) ¶ 88.
125 Blank UF-250. See also Patrol Guide 212-11: Stop and Frisk (7/18/13) (“Patrol Guide: Stop and Frisk”), PX 98, at 1.
126 In fact, by far the most commonly charged summons offenses in the City are public consumption of alcohol, a violation under New York City Administrative Code § 10125(b), and disorderly conduct, a violation under N.Y. Penal Law (“PL”) § 240.20. See, e.g., HON. FERN A. FISHER, DEPUTY CHIEF ADMINISTRATIVE JUDGE, CRIMINAL COURT OF THE CITY OF NEW YORK: ANNUAL REPORT 2010, at 35 (recording 140,425 summonses for public consumption and 81,036 summonses for disorderly conduct in 2010).
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likely that many of these summonses were for violations rather than misdemeanors or felonies.127 In these cases, the issuance of the summons provides no evidence that the suspicion giving rise to the stop was well-founded, because if the officer was following NYPD procedures, the stop cannot have been initiated based on suspicion of the summonsed offense. Similarly, when a stopped person provides identification and is then arrested for an unrelated open warrant, the arrest does not prove that the suspicion leading to the stop was well-founded.128
Second, the fact that many post-stop summonses are dismissed further undermines the reliability of the 6% post-stop summons rate as a true “hit rate,” that is, a measure of validated suspicions.129 The same argument applies to post-stop arrests that were not charged.130
Third, both summonses and arrests may be unrelated to the suspected crime for which a person was stopped. For example, it has been reported that the most common arrest after a stop is for marijuana possession.131 The NYPD has recognized concerns that some

127 See, e.g., infra Part IV.D.1.g (David Ourlicht’s post-stop summons for disorderly conduct based on conduct beginning after the stop).
128 See, e.g., infra Part IV.D.2.e (stop in which officers approached Deon Dennis for drinking in public, then arrested him based on an active warrant).
129 See, e.g., infra Part IV.D.1.g (Ourlicht’s post-stop summons was dismissed); FISHER, CRIMINAL COURT OF THE CITY OF NEW YORK: ANNUAL REPORT 2010, at 16 (stating that 42% of all summonses in 2010 resulted in either dismissal or adjournment in contemplation of dismissal).
130 See, e.g., Ligon, 2013 WL 628534, at *6–8 (discussing the Bronx ADA’s decision to decline prosecution of some trespass arrests based on stops outside Clean Halls buildings).

131

See NEW YORK CIVIL LIBERTIES UNION, NYPD STOP-AND-FRISK ACTIVITY IN

2012, at 17 (2013) (noting that 16% of total arrests following stops are for marijuana possession,

making marijuana the most common arrest offense arising out of stops). However, marijuana

possession can only lead to arrest when the marijuana is “in a public place . . . burning or open to

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marijuana arrests are based, improperly, on “occasions when the officers recover marihuana pursuant to a search of the subject’s person or upon direction of the subject to surrender the contents of his/her pockets.”132 If it is true that officers sometimes carry out arrests for marijuana possession following stops that were based on suspicion of another crime, then these arrests do not provide evidence that the officers’ initial suspicions were well-founded.133
B. Expert Testimony Both parties offered expert testimony about whether the NYPD’s stop and frisk
practices violate the Constitution. After describing the qualifications of the competing experts and discussing their differing views on the central issues in dispute here, I first determine which expert I find more reliable and the basis for that decision. I then make certain findings based on the credible expert testimony with respect to both the Fourth and Fourteenth Amendment claims.
1. The Liability Experts Dr. Fagan is a Professor of Law at Columbia Law School and Professor of Epidemiology at the Mailman School of Public Health at Columbia University. He has been studying the policies at issue in this case for over a decade.134 Dr. Fagan’s honors, academic and professional appointments, and publications, make him an expert in criminology, with special
public view.” PL § 221.10(1). 132 NYPD, Operations Order 49 (9/19/11), ¶ 2. 133 The NYPD’s marijuana possession arrest practices recently became the subject of
a separate lawsuit filed by the Bronx Defenders. See Felix v. City of New York, No. 13 Civ. 2941 (JMF).
134 See Floyd v. City of New York, 861 F. Supp. 2d 274, 279 (S.D.N.Y. 2012) (summarizing Dr. Fagan’s qualifications, including his role in the production of the 1999 report from the New York State Office of the Attorney General on the NYPD’s stop and frisk practices).
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expertise in the statistical study of racial disparities in police enforcement activities.135 The City’s liability experts are Dr. Dennis Smith, an Associate Professor of
Public Administration at the Robert F. Wagner Graduate School of Public Service at New York University; and Dr. Robert Purtell, an Assistant Professor of Finance at the University of Albany’s Nelson A. Rockefeller College of Public Affairs and Policy.136 Dr. Smith has a Ph.D. in political science and is an expert at evaluating the effectiveness of police organizations. However, Dr. Smith is not a statistician. For this reason, Dr. Smith collaborated with Dr. Purtell, a statistical expert.137 Dr. Purtell has a BS in Mathematics, an MBA with an emphasis on finance and economics, and a Ph.D. in Public Administration; began his career as a research mathematician writing code used to run regression analyses; spent over thirty years working in finance and management; and now teaches finance.138 Dr. Purtell is not an expert in the study of policing, criminology, or racial discrimination.139
I find Dr. Fagan a more reliable expert than Drs. Smith and Purtell. While Dr. Smith’s research makes him specially qualified to opine on the effectiveness of the NYPD’s practices in controlling crime, the effectiveness of stop and frisk is not at issue in this case, as I have repeatedly explained. Unlike Dr. Fagan, Dr. Smith had never worked on a statistical study
135 See Curriculum Vitae of Jeffrey Fagan (Oct. 2012), PX 417A. 136 See Smith Rpt. at 3, 5. 137 See Floyd v. City of New York, No. 08 Civ. 1034, 2012 WL 3561594, at *1 (S.D.N.Y. Aug. 17, 2012) (summarizing Dr. Smith’s and Dr. Purtell’s qualifications). 138 See Smith Rpt. at 5–6; 5/2 Tr. at 5724, 5728–5729, 5839. 139 Indeed, Dr. Purtell testified that he had never read a study of racial disparities in police stops other than Dr. Fagan’s study in this case. See 5/2 Tr. at 5861.
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of racial disparities in any context until he became the City’s expert.
In addition, while both parties’ experts made errors in the course of their analyses that were later corrected,140 one error by Dr. Purtell called into question the general reliability of
his interpretations of Dr. Fagan’s statistical analyses. Dr. Purtell conflated Tables 5 and 7 in
Fagan’s Reports, which are at the center of Dr. Fagan’s conclusions regarding racial disparities
in the NYPD’s stop practices. Table 5 deals with the effect of the racial composition of a
geographic area on the number of stops that take place there — without reference to the race of the individuals being stopped. Table 7 deals with the races of individuals who are stopped.141
Yet, in his testimony, Dr. Purtell described how the numbers in Dr. Fagan’s Table 5 “are
comparing the probability of a black person being stopped to the chances of a white person being stopped,”142 and persisted in defending that analysis even after plaintiffs’ counsel explicitly pointed out the error.143
140 To take two examples: First, in his October 2010 report, Dr. Fagan made a coding error, later corrected, that resulted in the mis-classification of a large number of “apparently unjustified” stops as “indeterminate.” See 4/4 Tr. at 2295–2296; 4/5 Tr. at 2445–2448. Second, table 10 in the Smith Report contains a partly mislabeled column of data that was later corrected. See 5/13 Tr. at 6839; Smith Rpt. at 70 tbl. 10; PX 574 (corrected and expanded table 10).
141 See Fagan Rpt. at 33 tbl. 5, 42 tbl. 7; Fagan 2d Supp. Rpt. at 18 tbl. 5, 20 tbl. 7. 142 5/2 Tr. at 5764. Based on this assumption, Dr. Purtell claimed that Dr. Fagan’s Table 5 showed that “the chance of a black person over a white person being stopped is . . . [0.22%] above random chance.” Id. 143 In response to Dr. Purtell’s testimony, plaintiffs’ counsel objected that “nowhere in table 5 is there anything about the likelihood of a black or a white person being stopped.” Id. at 5765. Dr. Purtell defended his analysis of the numbers in Table 5, stating: “This is a standard interpretation of these numbers.” Id. at 5767. The following day, the City and Dr. Purtell conceded plaintiffs’ objection. Dr. Purtell stated that his exhibit had been mistitled, and explained that he “wrote that the night before,” while he had another of Dr. Fagan’s tables on his mind. 5/3 Tr. at 5903.
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Finally, while the “battle of the experts” between Dr. Purtell and Dr. Fagan showed that Dr. Purtell has a sophisticated understanding of the purely mathematical aspects of statistics, Dr. Fagan has a deeper understanding of the practical, real-world meaning and implications of the statistical analyses in this case. Given a choice between relying on highly sophisticated mathematical analysis but limited practical understanding, or deep practical understanding informed by established statistical expertise, I favor the latter.
2. The Fourth Amendment Claim a. Overview of Key Issues
Dr. Fagan performed an analysis of the NYPD’s UF-250 database in order to evaluate how often the NYPD’s stops lack reasonable suspicion. Before delving into Dr. Fagan’s Fourth Amendment analysis and my findings, I highlight several general points.
First, it is impossible to assess individually whether each of the 4.4 million stops at issue in this case was based on an officer’s reasonable articulable suspicion that criminal activity was afoot. It took weeks of testimony to try nineteen stops. It would take multiple lifetimes of many judges to try each of the 4.4 million stops.144 The best available information for assessing those stops comes from the UF-250s prepared by officers shortly after the stops.
Second, while the UF-250 database is the best available source of information, it is highly flawed for the following reasons: (1) Officers do not always prepare a UF-250, either because the officer does not believe she made a Terry stop or because the officer failed to prepare the form. (2) A UF-250 is one-sided, in that the UF-250 only records the officer’s version of the story. (3) Even NYPD commanders and supervisors have acknowledged that UF-
144 Even if there were no time constraints, after-the-fact testimony from interested parties is an imperfect source of information, as the individual stop testimony in this case shows.
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250s do not provide enough information to determine whether reasonable suspicion existed for a stop.145 (4) Many of the checkboxes on the UF-250 that officers use to indicate the basis for a stop are problematic. “Furtive Movements” is vague and subjective. In fact, an officer’s impression of whether a movement was “furtive” may be affected by unconscious racial biases. “Fits Description” is a troubling basis for a stop if the description is so general that it fits a large portion of the population in the area, such as black males between the ages of 18 and 24. “High Crime Area” is also of questionable value when it encompasses a large area or an entire borough, such as Queens or Staten Island.
Third, Dr. Fagan was extremely conservative in characterizing stops as lacking reasonable suspicion. He categorized each stop as “apparently justified,” “apparently unjustified,” or “ungeneralizable.” The City argued that because Dr. Fagan characterized only 6% of the stops as “apparently unjustified,” that is, lacking reasonable suspicion, the plaintiffs have failed to demonstrate that the City has a policy or custom of carrying out stops without reasonable suspicion. However, in light of Dr. Fagan’s very generous assumptions in categorizing the stops, his analysis can best be understood as providing a very rough minimum number of unjustified stops. The actual number of unjustified stops was likely far higher. Moreover, even if I were to accept that Dr. Fagan’s 6% figure accurately reflects the number of stops lacking reasonable suspicion — which I do not for the reasons stated here and below — that relatively small percentage still represents 200,000 individuals who were stopped without reasonable suspicion. Even this number of wrongful stops produces a significant human toll.
b. Dr. Fagan’s Method of Classifying Stops

145
7.

See, e.g., 4/10 Tr. at 3207 (McHugh); Pl. Findings ¶ 118. Accord Def. Mem. at 41

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Dr. Fagan estimated the number of stops apparently lacking reasonable suspicion by analyzing the UF-250 database. He began with the assumption that all the forms had been filled out accurately and completely, then distinguished the stop factors on Side 1 of the UF-250 from the stop factors on Side 2.146 Dr. Fagan identified the following Side 1 boxes as providing a sufficient basis for a Terry stop, standing alone: (1) “Actions Indicative Of ‘Casing’ Victims Or Location” (“Casing”), (2) “Actions Indicative Of Engaging In Drug Transaction” (“Drug Transaction”), and (3) “Actions Indicative Of Engaging In Violent Crimes” (“Violent Crime”). Dr. Fagan defined the remaining Side 1 stop factors — except the “Other” box — as “conditionally justified,” that is, contributing to reasonable suspicion, but not generally providing an independently sufficient basis for a Terry stop: (4) “Carrying Objects In Plain View Used In Commission Of Crime e.g., Slim Jim/Pry Bar, etc.,” (5) “Suspicious Bulge/Object (Describe),” (6) “Actions Indicative Of Acting As A Lookout,” (7) “Fits Description,” (8) “Furtive Movements,” and (9) “Wearing Clothes/Disguises Commonly Used In Commission Of Crime.”147
Based on these classifications, Dr. Fagan categorized the stops recorded in the UF-250 database as (a) “apparently justified,” that is, based on reasonable suspicion; (b) “apparently unjustified,” that is, lacking reasonable suspicion; or (c) “ungeneralizable,” meaning that the UF-250 contains insufficient information to make a determination without further
146 See Fagan Rpt. at 48–50; 2/2/12 Declaration of Jeffrey Fagan, PX 415, ¶¶ 14–18; Floyd, 861 F. Supp. 2d at 283–84; Blank UF-250.
147 See Fagan Rpt. at 48–50; Blank UF-250. 42

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analysis.148 All stops in which officers checked the “Other” box are categorized as either ungeneralizable or apparently justified.149 A stop is “apparently unjustified” in Dr. Fagan’s analysis if: (a) no Side 1 stop circumstances are indicated, and only one Side 2 additional circumstance is indicated — unless the Side 2 additional circumstance is “Other (Describe),” in which case the stop is ungeneralizable; or (b) only one Side 1 stop circumstance is indicated, that stop circumstance is only “conditionally justified,” and no Side 2 additional circumstances are indicated — unless the Side 1 stop circumstance is the “Other” box, in which case the stop is ungeneralizable.150
c. Unreliable Stop Factors Dr. Fagan thoroughly undermined the assumption that the two most frequently checked stop factors provide a reliable basis for suspecting criminality: Furtive Movements on Side 1, and High Crime Area on Side 2.151 Part of Dr. Fagan’s argument against the reliability of these factors rested on the uncontested statistics cited above,152 including that stops were more likely to result in arrest when Furtive Movements and High Crime Area were not checked than
148 See Fagan 2d Supp. Rpt. at 24–25. The revised version of the October 2010 report uses different language to describe these three categories, see Fagan Rpt. at 50, but I use the updated language in the Fagan 2d Supp. Rpt. for the sake of simplicity.
149 See Fagan Rpt. at 50; Fagan 2d Supp. Rpt. at 25. 150 See id. at 50–52, 56 tbl. 12. 151 The parties have generally referred to the latter factor as “High Crime Area” and I do the same, although everyone agrees that the abbreviation is not a perfect reflection of the full label, “Area Has High Incidence of Reported Offense Of Type Under Investigation.” The same applies to the shorthand for other stop factors, including “Time of Day” for “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” on Side 2 of the UF-250. See Blank UF-250. 152 See supra Part IV.A.
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when they were. Courts have also recognized that furtive movements, standing alone, are a vague and unreliable indicator of criminality.153 As Judge Richard Posner has stated in a related context: “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.”154 Recent psychological research has also provided evidence that officers may be more likely to perceive a movement as indicative of criminality if the officer has been primed to look for signs that “crime is afoot.”155 As I stated in Ligon, “[g]iven the nature of their work on patrol, officers may have a systematic tendency to see and report furtive movements where none objectively exist.”156
Other recent psychological research has shown that unconscious racial bias continues to play an objectively measurable role in many people’s decision processes.157 It
153 The Supreme Court has “recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 124 (emphasis added) (citing numerous cases). But “furtive behavior absent additional indicia of suspicion generally does not suffice to establish reasonable suspicion.” United States v. Bellamy, 592 F. Supp. 2d 308, 318–19 (E.D.N.Y. 2009) (collecting cases). Accord Ligon, 2013 WL 628534, at *33.
154 United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005). 155 See Ligon, 2013 WL 628534, at *33. 156 Id. (footnote omitted). 157 See, e.g., Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of “Affirmative Action”, 94 CAL. L. REV. 1063 (2006) (illustrating relevance of implicit social cognition studies to issues of discrimination). Kang and Banaji quote the following apt observation from a dissent by Justice Ruth Bader Ginsburg: “Bias both conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become the country’s law and practice.” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 274 (1995) (Ginsburg, J., dissenting).
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would not be surprising if many police officers share the latent biases that pervade our society.158
If so, such biases could provide a further source of unreliability in officers’ rapid, intuitive
impressions of whether an individual’s movements are furtive and indicate criminality.
Unconscious bias could help explain the otherwise puzzling fact that NYPD officers check
“Furtive Movements” in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the stops of whites.159 There is no evidence that black people’s movements are
objectively more furtive than the movements of white people.
The High Crime Area stop factor is likewise problematic. Presence in an area
with high rates of crime is not a sufficient basis for a stop, although it may contribute to reasonable suspicion.160 Plaintiffs offered evidence that the High Crime Area checkbox has been
interpreted so broadly by at least some officers that it would contribute very little to the justification for a stop.161 In addition, Dr. Fagan has shown that the rate at which officers check
158 As I noted in a related context in Ligon, “this is an area in which further training may be highly beneficial.” Ligon, 2013 WL 628534, at *33 n.374. A study of police officers in Savannah, Georgia found evidence that minority suspects were more likely than white suspects to be viewed suspiciously by the officers for nonbehavioral reasons — even when the officers knew they were being closely observed by social scientists while on patrol. See Geoffrey P. Alpert et al., Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 CRIMINOLOGY 407, 417–19 (2005).
159 See Fagan 2d Supp. Rpt. at 23 app. tbl. D1. These are the numbers for 2010 through June 2012. In 2004 through 2009, the numbers were 46% for stops of black people, 42% for stops of Hispanics, and 37% for stops of white people. See Fagan Rpt. app. D tbl. D1.
160 See, e.g., Wardlow, 528 U.S. at 124 (citing Brown v. Texas, 443 U.S. 47, 99 (1979); Adams, 407 U.S. at 144, 147–48).
161 See, e.g., 4/1 Tr. at 1687 (Officer Fernando Guimaraes testifying that when he worked in the 43rd Precinct, the entire precinct was a “high crime area”); 4/17 Tr. at 3717–3721 (Officer Edward French testifying that “two robberies with similar circumstances in Queens could constitute a robbery pattern,” and that this pattern could “encompass all of Queens,” and that when he was in the anticrime unit, there was a crime pattern that encompassed all of
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High Crime Area in a precinct or census tract is roughly 55%, regardless of the amount of crime
in the precinct or census tract as measured by crime complaints.162
Dr. Fagan also showed that over time, officers increasingly developed “scripts”
for checking off stop factors.163 Not only did the average number of stop factors checked on UF-
250s increase, but this increase reflected a growing use of several of the more subjective stop
factors, such as Furtive Movements, Evasive Response, High Crime Area, and “Actions
Indicative Of Engaging In Violent Crimes.”164 There was also credible evidence of scripting in
the UF-250s of officers who testified at trial. During a sample quarter in 2009, Officer Edgar
Queens).
162 See Fagan Rpt. at 53–54 & fig. 13 (summarizing data for 2004 through 2009); Fagan 2d Supp. Rpt. at 32–34 & fig. 13 (summarizing data for 2010 through June 2012). The former analysis was based on precincts, and the latter on census tracts. The fact that the results of the analysis were unchanged despite a change in specifications and time period indicates the robustness of the results.
In otherwise low-crime areas, there may be small areas of concentrated criminality where the NYPD often deploys officers. The City appropriately notes that a particular building where a stop takes place might have a high incidence of the suspected crime for which the stop is made. See 4/5 Tr. at 2359–2361. But, as Dr. Fagan noted at trial, see id. at 2360–2361, it is simply not plausible that 55% of all stops take place in an “area” whose particular crime characteristics objectively justified checking the High Crime Area box, regardless of the crime rate of the census tract or the precinct where the stop takes place. The unvarying rate of checking High Crime Area across locations and times is more likely a product of reflexive box-checking that is unrelated to any defined crime condition.
163 This reveals the fallacy of the critique by Drs. Smith and Purtell that Fagan’s analysis failed to address the “steady improvement in NYPD use of ‘Terry stops.’” Smith Rpt. at 49. It may well be that officers simply learned how to fill out the UF-250s to better indicate reasonable suspicion — even when it did not exist.
164 See Fagan Supp. Rpt. at 39–47. “Evasive, False Or Inconsistent Response To Officer’s Questions” (“Evasive Response”) is a Side 2 additional circumstance. See Blank UF250. In theory, High Crime Area could be checked based on an analysis of crime data. In practice, however, it is often checked based on inconsistent, subjective impressions or scripts, as discussed above.
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Gonzalez — who carried out a notably high number of stops — checked the same four boxes on 99% of his UF-250s: Fits Description, Casing, High Crime Area, and Time of Day.165 Officer Kha Dang — another aberrantly high stopper — checked an average of 4.2 boxes on the UF250s he prepared during a sample quarter, and checked both High Crime Area and Time of Day on 75% of the forms, despite the stops being widely geographically and temporally dispersed.166
d. Quantifying the Magnitude of Apparently Unjustified Stops Based on UF-250 Stop Factors
Dr. Fagan’s extremely conservative definition of “apparently unjustified” almost guarantees that the roughly 200,000 stops he placed in that category underestimate the true number of stops lacking legal justification.167 For example, a UF-250 on which the officer checked only Furtive Movements on Side 1, and only High Crime Area on Side 2, is not classified as “apparently unjustified” according to Dr. Fagan’s definition. Similarly, a UF-250 on which the officer checked only Furtive Movements and Suspicious Bulge on Side 1, and no boxes on Side 2, is not classified as “apparently unjustified.” While some stops in which an officer checked only these factors might be based on reasonable suspicion, there is little doubt that many others would not be. In addition, any UF-250 on which an officer checked only the
165 See PX 557, 557-D. 166 See DX L12, L14; 6/12/13 Plaintiffs’ Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”) ¶ 8. 167 Without analyzing the “Other” text strings, 198,000 or 5.7% of the non-radio-run stops between 2004 and June 2012 were “apparently unjustified” according to Dr. Fagan’s definition. See PX 417B (updating Fagan Rpt. at 56 tbl. 12 to show 6.45% of 2,233,027 nonradio-run stops between 2004 and 2009 to be “apparently unjustified”); Fagan 2d Supp. Rpt. at 26 tbl. 12 (categorizing 4.43% of 1,215,846 non-radio-run stops between 2010 and June 2012 as “apparently unjustified”). The summary numbers in PX 417D appear to include the results of the “Other” text string analysis. PX 417D states that 219,814 or 6.4% of the 3,448,873 nonradio-run stops between 2004 and June 2012 were “apparently unjustified.”
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“Other” box on Side 1, or only the “other” additional circumstances box on Side 2, is not classified by Dr. Fagan as “apparently unjustified.”
The finding that Dr. Fagan’s stop factor analysis likely significantly undercounts the number of unjustified stops is corroborated by evidence in this case, as well as in Ligon, showing that officers sometimes fail to fill out UF-250s for stops that lack reasonable suspicion, or fail to fill out UF-250s because they misunderstand when an encounter evolves into a Terry stop, or fill out UF-250s inaccurately and in a way that increases the apparent justification for a stop.168 In addition, several of the uncontested statistics suggest that far more than 6% of stops are “apparently unjustified,” including: the number of UF-250s that do not identify a suspected crime (36% of all forms in 2009), the fact that the two most commonly checked stop factors (Furtive Movements and High Crime Area) are negatively correlated with a summons or arrest, and the fact that only 12% of all stops result in an arrest or summons.169
The problems with Dr. Fagan’s Fourth Amendment analysis of the UF-250s result not from analytical failures but from the inadequacy of the NYPD’s systems for identifying unjustified stops when they occur. As a result, the magnitude of Fourth Amendment violations that have taken place in this case — beyond the rough minimum indicated by Dr. Fagan’s statistics — will almost certainly never be known.
3. The Fourteenth Amendment Claim
168 See, e.g., infra Part IV.D.1.a (Downs); infra Part IV.D.1.h (Lino); Ligon, 2013 WL 628534, at *11; id. at *20 & n.241. It remains likely that there are “‘many unlawful searches . . . of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we never hear.’” Washington v. Lambert, 98 F.3d 1181, 1193 n.1 (9th Cir. 1996) (quoting Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting)).
169 In fact, as discussed supra in Part IV.A, the true “hit rate” is likely below 12%. 48

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a. Overview of Key Issues The crux of plaintiffs’ Fourteenth Amendment claim is that blacks and Hispanics are stopped more frequently than they would be if police officers did not discriminate based on race when deciding whom to stop. Assessing this claim required comparing statistics about rates of stops of blacks and Hispanics to “[a] standard, or point of reference, against which [those statistics] can be compared, assessed, measured or judged” — what is known in statistics as a “benchmark.”170 In this case, the benchmark was meant to capture “what the racial distribution of the stopped pedestrians would have been if officers’ stop decisions had been racially unbiased.”171 Conclusions regarding racial bias drawn from statistics “may vary drastically based on which benchmark is used.”172 As such, a central dispute between the experts regarding the Fourteenth Amendment claim was the appropriate benchmark for measuring racial bias in stops.
b. Competing Benchmarks Each expert submitted voluminous reports and testified at trial in support of his choice of benchmark. Of necessity, I must simplify their very detailed and complex submissions

170 Organization for Economic Cooperation and Development Statistical Glossary, available at http://stats.oecd.org/glossary/detail.asp?ID=7228. Accord BLACK’S LAW DICTIONARY (defining benchmark as “a standard unit used as a basis for comparison”).

171

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

POLICE DEPARTMENT’S STOP, QUESTION, AND FRISK PRACTICES xi (2007) (“RAND REPORT”),

DX K6. See also Smith Rpt. at 11 (“Benchmarks help social scientists demonstrate statistically

if there is an unjustifiable cause-and-effect relationship between membership in a group . . . and

a particular practice . . . .”).

172 RAND REPORT at 19.

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and testimony to focus on the question at the heart of the parties’ dispute: is there statistical
evidence of racial discrimination in the NYPD’s stop practices? With that caveat, I endeavor to
summarize their differing benchmarks.
Dr. Fagan explained his choice of benchmark as follows:
[A] valid benchmark requires estimates of the supply of individuals of each racial or ethnic group who are engaged in the targeted behaviors and who are available to the police as potential targets for the exercise of their stop authority. Since police often target resources to the places where crime rates and risks are highest, and where populations are highest, some measure of population that is conditioned on crime rates is an optimal candidate for inclusion as a benchmark.173
Accordingly, Dr. Fagan’s “analyses use both population and reported crime as benchmarks for understanding the racial distribution of police-citizen contacts.”174 While there is scholarly
disagreement regarding the best benchmark to use in such measurements, none of the sources
Drs. Smith and Purtell cited criticized the benchmark used by Dr. Fagan. In addition, at least
one other study of a police department’s stop patterns — a study of stop patterns in Los Angeles
by Dr. Ian Ayres, the William K. Townsend Professor of Law at Yale Law School — used an “[a]lmost identical” benchmark to Dr. Fagan’s.175
173 Fagan Rpt. at 16–17. 174 Id. at 17. See also Fagan Rpt. at 33 tbl. 5; Pl. Mem. ¶ 22. To be clear: Dr. Fagan includes local crime rate data because the police are more likely to be deployed to places with higher crime rates, and stops are more likely to take place in areas where the police are more heavily deployed. 175 See 5/6 Tr. at 6121, 6135–6139 (Smith). Dr. Ayres’ report on the LAPD is discussed in 3/4/13 Amicus Curiae Brief of Communities United for Police Reform at 6. Drs. Smith and Purtell cited Dr. Fagan’s and Dr. Ayres’ scholarship in a short list of “[n]otable articles” in the literature on benchmarking in disparate treatment claims. See Smith Rpt. at 11 n.5. The City concedes that “[t]here is no prevailing benchmark for racial disparity regression analysis.” Def. Findings ¶ 69.
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The City’s experts, by contrast, used a benchmark consisting of the rates at which various races appear in suspect descriptions from crime victims — in other words, “suspect race description data.”176 The City’s experts assumed that if officers’ stop decisions were racially unbiased, then the racial distribution of stopped pedestrians would be the same as the racial distribution of the criminal suspects in the area.177
I conclude that Dr. Fagan’s benchmark is the better choice. The reason is simple and reveals a serious flaw in the logic applied by the City’s experts: there is no basis for assuming that the racial distribution of stopped pedestrians will resemble the racial distribution of the local criminal population if the people stopped are not criminals. The City defends the fact that blacks and Hispanics represent 87% of the persons stopped in 2011 and 2012 by noting that “approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were Black and Hispanic.”178 This might be a valid comparison if the people stopped were criminals, or if they were stopped based on fitting a specific suspect description. But there was insufficient evidence to support either conclusion. To the contrary, nearly 90% of the people stopped are released without the officer finding any basis for a summons or arrest,179
176 Smith Rpt. at 19 (quotation marks omitted). 177 Because crime victims are often unable to provide race information — especially for non-violent crimes — the City’s experts eventually attempted to supplement their crime suspect race data with data showing the races of arrestees. Dr. Fagan offered persuasive criticisms of the resulting “Merge File” — such as its reliance on arrestee data that may obscure rather than reveal racial bias — as well as of the City’s experts’ earlier reliance on extrapolations from incomplete crime suspect data. See Pl. Findings ¶ 20 (collecting sources). 178 Def. Findings ¶ 70 (citations and emphasis omitted). 179 See supra Part IV.A.
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and only 13% of stops are based on fitting a specific suspect description.180 There is no reason to believe that the nearly 90% of people who are stopped and then subject to no further enforcement action are criminals. As a result, there is no reason to believe that their racial distribution should resemble that of the local criminal population, as opposed to that of the local population in general. If the police are stopping people in a race-neutral way, then the racial composition of innocent people stopped should more or less mirror the racial composition of the areas where they are stopped, all other things being equal. Dr. Fagan’s benchmark captures what the NYPD’s stops would look like in the absence of racial discrimination: his use of local population data reflects who is available to be stopped in an area (assuming, as the evidence shows, that the overwhelming majority of stops are not of criminals), and his use of local crime rates reflects the fact that stops are more likely to take place in areas with higher crime rates.
By contrast, Dr. Smith rejected the assumption that 88% of those stopped were innocent. “[H]ow do we know . . . [i]f they were utterly innocent[?]” Dr. Smith asked at trial. He then proposed a “hypothetical” in which “the stop prevents a crime.”181 If one assumes that those stopped with no further enforcement action are nevertheless criminals, then it is natural to conclude, as Dr. Smith did, that a valid benchmark for measuring racial disparities in stops must
180 See Fagan 2d Supp. Rpt. at 23 app. tbl. D1; Fagan Rpt. app. D tbl. D1. The City’s speculation that the low hit rate for stops overall could be explained by “multiple people [being] stopped in connection with the description provided in a single radio run” neglects the fact that only 13% of stops are based on matching a suspect description. Def. Findings ¶ 90. In addition, the City’s theory is weakened by its failure to collect evidence from the UF-250 database concerning how often multiple stops are made in connection with a single event or a single suspect description. See id.
181 5/6 Tr. at 6155–6156. 52

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“enable us to know who is committing the crime in [an] area.”182 Thus, he concludes that the
best benchmark for the population of people who will be stopped in the absence of racial
discrimination is the local criminal population. As Dr. Smith testified, “the best proxy for the
share of the population by race engaged in the targeted behaviors that lead officers to make
Terry stops” is the percentage of each racial category that appears in crime suspect data, or more
precisely a combination of crime suspect data and arrestee data, because “[t]hat’s what we know about who is committing crime.”183
Based on this analysis, Dr. Smith concludes that the disproportionate stopping of
black people can be explained by the disproportionately black composition of the pool of criminals.184 But even if all stops by the NYPD were based on reasonable suspicion — which is
highly unlikely for reasons already stated — the low hit rate would undermine the assumption
182 Id. at 6114. 183 Id. at 6151, 6154. Accord Def. Findings ¶ 70 (“Crime suspect description data estimates the available pool of persons exhibiting suspicious behavior that could be observed by the police — while population merely estimates the potential number of persons in a given area.” (citations omitted)). 184 Drs. Smith and Purtell state:
Obviously, if particular racial or ethnic groups in New York City participate in crime at a rate disproportionate to their share of the population, we would expect officers to conduct Terry stops for such groups at rates higher than each groups’ respective share of the City’s population. The benchmark of suspect race description allows us to measure if [the] NYPD’s officers are stopping minorities at a rate over and above what could be explained by the racial composition of the criminally active population in New York.
Smith Rpt. at 20. Accord id. at 14–15 (suggesting that criminal participation of various races must be incorporated into benchmark, because certain races may commit crimes at a higher rate than others, “and so are more likely to be observed by police engaging in suspicious activity that would justify a Terry stop” (emphasis added)).
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that the stopped people were in fact engaged in criminal activity, and thus members of the criminal population. The City failed to establish that a significant number of the approximately 3.9 million stops that resulted in no further enforcement action were stops of people who were about to commit, but were prevented from committing, a crime.185 Dr. Smith’s theory that a significant number of these stops resulted in the prevention of the suspected crime is pure speculation and not reliable.
Crime suspect data may serve as a reliable proxy for the pool of criminals exhibiting suspicious behavior. But there is no reason to believe that crime suspect data provides a reliable proxy for the pool of non-criminals exhibiting suspicious behavior. Because the overwhelming majority of people stopped fell into the latter category, there is no support for the City’s position that crime suspect data provides a reliable proxy for the pool of people exhibiting suspicious behavior. Moreover, given my finding that a significant number of stops were not based on reasonable suspicion — and thus were stops drawn from the pool of noncriminals not exhibiting suspicious behavior — the use of crime suspect data as a benchmark for the pool of people that would have been stopped in the absence of racial bias is even less appropriate.186
185 See 4/19 Tr. at 4310–4314 (Assistant Commissioner Philip McGuire stating that “nobody knows” what portion of people who are stopped but not arrested or summonsed “were probably about to or might have committed a crime,” and that “the number could be zero to fifty percent,” but that he does not know); 4/9 Tr. at 2915–2916, 2983–2984 (Chief Esposito stating “we’re not really able to tell” how often a stop prevents a crime, then imagining what such a stop might look like). I also note that none of the testifying plaintiffs — even those whose stops were based on reasonable suspicion — were engaged in criminal activity.
186 Of course, if the real purpose of the stops is not to investigate suspected criminal activity based on individualized suspicion, but instead to deter criminals from carrying weapons or contraband by stopping people who fit a general profile of criminal suspects in an area, then criminal suspect data would in a sense be the appropriate benchmark for measuring racial
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When confronted by plaintiffs’ counsel with similar reasoning, Dr. Smith
ultimately appeared willing to entertain the possibility that black people, even when they are
law-abiding, might simply be more likely to engage in suspicious behavior than white people:
Q. So is it your testimony that law-abiding black people in New York City are more likely to engage in suspicious behavior than law-abiding white people?
A. I’m only saying that that’s the evidence from the stop patterns, which we have said, according to Professor Fagan, are ninety percent apparently justified.187
Dr. Smith’s position, while surprising, is not illogical once his premises are
accepted. Dr. Smith apparently does not find it plausible that officers’ decisions regarding
whether to stop a person may be swayed by conscious or unconscious racial bias.188 If a
researcher begins with this premise, he will attempt to find a credible, race-neutral explanation
for the NYPD’s stopping of blacks and Hispanics out of proportion to their share of the
population. For example, the researcher may seek to explain the disproportionate stopping of
disparities in stops. But the City does not make this argument, and if it did, the argument would fail for reasons related to plaintiffs’ Fourth and Fourteenth Amendment claims. First, to the extent that such “deterrence” stops were based solely on a person’s resemblance to a general profile of the criminals in an area, the stop would not be based on individualized reasonable suspicion of criminal activity. Second, to the extent that “the general profile of criminal suspects in an area” contains a racial description, the use of that description as a basis for stops would constitute racial profiling. On the issue of racial profiling, see infra Part V.B.1.
187 5/6 Tr. at 6158. 188 See Smith Rpt. at 9 (asking rhetorically: “In view of the tens or even hundreds of thousand[s] of persons an officer observes in the course of each month on duty, when the overwhelming majority are Blacks and Hispanics, is it plausible to believe that the several persons actually stopped were selected based on their race?”). Plaintiffs and the City dispute the average number of stops per officer per month, with the City claiming it is “only” two to three, and the plaintiffs claiming it is far higher. A review of the numerous monthly activity reports in the record suggests that most officers who are actively making stops conduct between 10 and 20 per month. See, e.g., PX 15, 178, 219, 229, 236, 309, 310. But the number of stops is not particularly relevant. It is the quality of the stops that is at issue here — that is, whether the stops were based on reasonable suspicion and free of racial discrimination.
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minorities as the result of the characteristics of the criminal population. However, as already explained, there is no evidence that 88% of the people stopped are, in fact, members of the criminal population. Next, the researcher may analyze the deployment of police to high crime areas or “hot spots.” If these areas happen to be disproportionately minority, then heavy deployment to these areas will provide a race-neutral basis for the disproportionate stopping of minorities. But Dr. Fagan’s “Table 5” analysis showed that blacks and Hispanics are overstopped even after controlling for police deployment to high crime areas.189 In the end, if the researcher cannot think of any relevant race-neutral factors for which Dr. Fagan did not control, the only remaining race-neutral explanation for the NYPD’s stop patterns may be that members of the overstopped racial groups have a greater tendency to appear suspicious than members of other racial groups, even when they are not breaking the law.
Rather than being a defense against the charge of racial profiling, however, this reasoning is a defense of racial profiling. To say that black people in general are somehow more suspicious-looking, or criminal in appearance, than white people is not a race-neutral explanation for racial disparities in NYPD stops: it is itself a racially biased explanation. This explanation is especially troubling because it echoes the stereotype that black men are more likely to engage in criminal conduct than others.190 In a recent speech responding to the public controversy surrounding the shooting of a black teenager, President Obama noted his personal experience with this stereotype:
There are very few African-American men in this country who haven’t had
189 Similarly, by controlling for various other factors, such as patrol strength, socioeconomic factors, and other local characteristics, Dr. Fagan persuasively undermined a number of other potential race-neutral explanations for the racial disparities in stops.
190 For an analysis touching on the prevalence of this stereotype, and the consequences related to it, see generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010).
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the experience of being followed when they were shopping in a department store. That includes me. There are very few African-American men who haven’t had the experience of walking across the street and hearing the locks click on the doors of cars. That happens to me, at least before I was a senator. There are very few African-Americans who haven’t had the experience of getting on an elevator and a woman clutching her purse nervously and holding her breath until she had a chance to get off. That happens often.191
Another commentator observed in even starker terms:
What is reasonable to do, especially in the dark of night, is defined by preconceived social roles that paint young black men as potential criminals and predators. Black men, the narrative dictates, are dangerous, to be watched and put down at the first false move. This pain is one all black men know; putting away the tie you wear to the office means peeling off the assumption that you are owed equal respect. Mr. Martin’s hoodie struck the deepest chord because we know that daring to wear jeans and a hooded sweatshirt too often means that the police or other citizens are judged to be reasonable in fearing you.192
No doubt many people have heard similar fears and stereotypes expressed, whether intentionally
or unintentionally. But race alone is not an objective basis for suspicion by the police. Because
there is no evidence that law-abiding blacks or Hispanics are more likely to behave objectively
more suspiciously than law-abiding whites, Dr. Smith’s — and the City’s — refuge in this
unsupported notion is no refuge at all. It is effectively an admission that there is no explanation
for the NYPD’s disproportionate stopping of blacks and Hispanics other than the NYPD’s stop
practices having become infected, somewhere along the chain of command, by racial bias.
Why would the people stopped by the NYPD, both criminal and law-abiding, so
closely resemble the criminal population — or, more precisely, the NYPD’s understanding of the

191 7/19/13 Remarks by President Barack Obama on Trayvon Martin, White House Press Briefing Room.

192
at A23.

Ekow N. Yankah, Op-Ed., The Truth About Trayvon, N.Y. TIMES, July 16, 2013,

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criminal population, based on its limited suspect data?193 A simple explanation exists: the racial composition of the people stopped by the NYPD resembles what the NYPD perceives to be the racial composition of the criminal population because that is why they were stopped. Evidence discussed later in this Opinion shows that the NYPD has an unwritten policy of targeting racially defined groups for stops, based on the appearance of members of those groups in crime suspect data.194 A strong correlation between the races of people stopped and the known races of criminal suspects is the natural result.
In short, the correlation highlighted by the City and its experts in their attempt to refute the allegation of racial profiling in fact provides evidence of racial profiling. Rather than revealing a valid race-neutral variable that explains the NYPD’s disproportionate stopping of blacks and Hispanics, the correlation highlighted by the City’s experts suggests how the racial disparities identified by Dr. Fagan might have come about — namely, through a widespread practice of racial profiling based on local criminal suspect data.
c. Findings Based on Dr. Fagan’s Analyses Because I accept Dr. Fagan’s benchmark for measuring racial disparity and find his statistical analyses generally reliable, I make the following findings.
193 The suspect’s race was unknown in 70% of crime complaints in 2005 and 2006. See Fagan Rpt. at 76 tbl. 18. Even after merging crime suspect data and arrestee data, the race of the perpetrator is only known for roughly 63% of crimes. See Fagan 2d Supp. Rpt. app. B tbl. 1–2 (using data from 2010 to 2011); Smith Rpt. at 34. In addition, based on this “merged” data, while the suspect’s race is known for a high percentage of certain types of crime — such as felony violent crimes (86%), weapons crimes (98%), and drug offenses (99%) — race is known in only 22% of felony property crimes, which are the basis for 25% of all stops. See id. app. B tbl. 2. Dr. Fagan persuasively showed that using data where almost 40% of the information is missing would introduce sample selection bias, and is not a reliable approach to drawing conclusions about the criminal suspect population. See id.; 4/3 Tr. at 2148–2150 (Fagan); 5/6 Tr. at 6160–6161 (Dr. Smith acknowledging that he had not found any scholarly support for estimating the demographics of crime suspects based on data that is nearly 40% incomplete).
194 See infra Part IV.C.3. 58

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First, as reflected in Dr. Fagan’s Table 5, the NYPD carries out more stops in areas with more black and Hispanic residents, even when other relevant variables are held constant. The best predictor for the rate of stops in a geographic unit — be it precinct or census tract — is the racial composition of that unit rather than the known crime rate.195 These findings are “robust,” in the sense that the results persist even when the units of analysis are changed from precincts to census tracts, or from calendar quarters to months.
Second, as reflected in Dr. Fagan’s Table 7, within any area, regardless of its racial composition, blacks and Hispanics are more likely to be stopped than whites. This is different from the first finding — that the best predictor for the stop rate in a geographic area is the racial composition of that area. Table 7, by contrast, shows that blacks and Hispanics are more likely to be stopped than whites within precincts and census tracts, even after controlling for the racial composition, crime rate, patrol strength, and various socioeconomic characteristics of the precincts or census tracts where the stops take place. These findings are also robust. They apply not only when the spatial and temporal units of the analysis are changed, but also when the analysis is limited to areas with low crime rates, racially heterogenous populations, or predominately white populations.196
Third, for the period 2004 through 2009, blacks who were subject to law enforcement action following their stop were about 30% more likely than whites to be arrested (as opposed to receiving a summons) after a stop for the same suspected crime, even after controlling for other relevant variables.197
195 See 4/3 Tr. at 2029. 196 See Pl. Findings ¶ 15 (citing, among other sources, Dr. Fagan’s testimony; Fagan Rpt. at 4, 40–45 & tbls. 7–10; Fagan 2d Supp. Rpt. at 19–21 & tbl. 7). See also 4/3 Tr. at 2030. 197 See 4/3 Tr. at 2031–2032. See also Fagan Rpt. at 66.
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Fourth, for the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who were stopped were about 14% more likely — and Hispanics 9% more likely — than whites to be subjected to the use of force.198
Fifth, for the period 2004 through 2009, all else being equal, the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white. In addition, the greater the black population in a precinct, the less likely that a stop would result in a sanction. These results show that blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites.199
C. Institutional Evidence of Deliberate Indifference The previous two sections addressed the statistical evidence of unconstitutional
stops. This section addresses the evidence regarding the NYPD’s awareness of and response to those unconstitutional stops. In short, I find that the “institutional evidence” — evidence regarding the actions or inactions of the NYPD — shows that the City has been deliberately indifferent to violations of the plaintiff class’s Fourth and Fourteenth Amendment rights.
The NYPD has known for more than a decade that its officers were conducting unjustified stops and frisks and were disproportionately stopping blacks and Hispanics. Despite this notice, the NYPD expanded its use of stop and frisk by seven-fold between 2002 and 2011. This increase was achieved by pressuring commanders at Compstat meetings to increase the numbers of stops. The commanders, in turn, pressured mid-level managers and line officers to
198 See Pl. Findings ¶ 17; Fagan Rpt. at 66, 68 fig. 14. I note two reservations about this data: First, it is difficult to control reliably for the suspected crime when by 2009, 36% of UF-250s stated no suspected crime. See Fagan Supp. Rpt. at 39. Second, these “use of force” figures refer to stops in which any use of force was indicated, including “Hands On Suspect.” See Fagan Rpt. at 63–69; Blank UF-250.
199 See Pl. Findings ¶ 16 (citing, among other sources, Fagan Rpt. at 66–67 & tbl. 16); 4/3 Tr. at 2123.
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increase stop activity by rewarding high stoppers and denigrating or punishing those with lower numbers of stops.
This pressure to increase the quantity of stops was not accompanied by attention to the constitutionality of the stops. No policies were implemented to ensure that officers were recording each stop with sufficient detail to permit an assessment of the constitutionality of the stops. Similarly, no study was done to ensure that officers were not reflexively creating a “script” of checkmarks — especially Furtive Movements and High Crime Area — by searching the UF-250 database to identify such patterns. No effort was made to identify outliers — meaning those officers with the highest stop numbers, officers who stopped only or almost only blacks or Hispanics, or officers who routinely checked the same boxes on the UF-250. No rewards or punishments turned on the quality of stops conducted. Indeed, when officers were found to have made “bad” stops, little or no discipline was imposed. The evidence showed that the NYPD turned a blind eye to its duty to monitor and supervise the constitutionality of the stops and frisks conducted by its officers.
In addition, I find that the NYPD instituted a policy of indirect racial profiling by directing its commanders and officers to focus their stop activity on “the right people” — the demographic groups that appear most often in a precinct’s crime complaints. This policy led inevitably to impermissibly targeting blacks and Hispanics for stops and frisks at a higher rate than similarly situated whites.
1. Early Notice: the 1999 AG Report In 1999, New York’s Attorney General investigated the constitutionality of the NYPD’s stop and frisk practices under the Fourth and Fourteenth Amendments. The investigation was prompted in part by the Attorney General’s finding that despite a decade of falling crime rates, “the climate in many of New York’s minority neighborhoods . . . was one of
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resentment and distrust of the NYPD.” Many of the complaints involved “lower-level police involvement in the everyday lives of minority residents,” such as stop and frisk encounters.200
The Attorney General sought the assistance of a team of researchers from Columbia University’s Center for Violence Research and Prevention, led by Dr. Fagan. The researchers performed statistical analyses of 175,000 UF-250s from January 1, 1998 through March 31, 1999. The resulting Report was apparently the first-ever quantitative analysis of pedestrian stop and frisk practices in the United States.201
For their Fourth Amendment investigation, the researchers analyzed and grouped 15,000 UF-250s using a methodology that resolved “every ambiguity of factual or legal interpretation . . . in favor of a determination that ‘reasonable suspicion’ existed.” Nevertheless, the researchers found that 15% of the UF-250s contained facts that did not meet the legal test for reasonable suspicion.202
For their Fourteenth Amendment investigation, the researchers tested then-NYPD Commissioner Howard Safir’s theory — which largely remains the City’s theory in this case — that the apparently disproportionate stopping of blacks and Hispanics can be explained on raceneutral grounds by police deployment to high crime areas, and by racial differences in crime
200 The investigation was also prompted by the shooting and killing of Amadou Diallo, an unarmed twenty-two-year-old West African immigrant, by members of the NYPD’s now-disbanded Street Crimes Unit. Diallo was shot during an incident that apparently began as a stop. See THE NEW YORK CITY POLICE DEPARTMENT’S STOP AND FRISK PRACTICES: A REPORT TO THE PEOPLE OF THE STATE OF NEW YORK FROM THE OFFICE OF THE ATTORNEY GENERAL (1999) (“1999 AG Report”), PX 333, at 4–5. The 1999 AG Report was admitted only for the purpose of showing that the NYPD had notice of various issues raised in this case, not for the truth of its contents. See 4/19 Tr. at 4283–4284.
201 See 1999 AG Report at v–xv, 1, 12. The UF-250s analyzed in the report were the old version of the form. See id. at 89; PX 449 (old UF-250).
202 See 1999 AG Report at vii–xv. 62

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rates.203 The researchers found, however, that “blacks and Hispanics were significantly more
likely than whites to be ‘stopped’ [even] after controlling for race-specific precinct crime rates
and precinct population composition by race.”204 In addition, the Report found that different
crime rates among precincts did not explain the higher overall stop rate in majority-minority
precincts as opposed to majority-white precincts.205
The Report called for a broad, public dialogue among the Office of the Attorney
General, the NYPD, and members of the community.206 This dialogue never occurred. Instead,
senior officials at the NYPD either found pretexts for rejecting the Report’s findings,207 or
ignored the Report entirely — like Chief Esposito, who testified that he had never read it.208
203 The Report quotes Safir as stating: “‘The racial/ethnic distribution of the subjects of ‘stop’ and frisk reports reflects the demographics of known violent crime suspects as reported by crime victims. Similarly, the demographics of arrestees in violent crimes also correspond with the demographics of known violent crime suspects.’” Id. at 120 n.26. The Report also highlights an issue discussed later in this Opinion: because only 13% of stops resulted from the stopped person fitting the description of a known criminal suspect, suspect descriptions for violent criminals cannot be the primary driver for NYPD stop activity, which suggests that such descriptions cannot provide a race-neutral explanation for racial disparities in stops overall. See id. at 122 n.30.
204 Id. at 121. 205 See id. at 130–131. 206 “It is now for the [NYPD] and others interested in a constructive dialogue to review the data and offer their perspectives.” Id. at 175. 207 Assistant Commissioner Philip McGuire, who has been in charge of Crime Analysis and Program Planning (CAPPS) in the Office of Management, Analysis and Planning (OMAP) since 1994, disagreed with the Report’s findings because the benchmark it used was the arrest data from 1997, instead of data from 1998 and 1999, the years in which the UF-250s were prepared. Deputy Commissioner Michael Farrell has overseen OMAP and the Quality Assurance Division (QAD) since 2002. He disagreed with the findings in the Report because Dr. Fagan used arrest data instead of suspect description data as his benchmark. See 5/14 Tr. at 7081–7082, 7090–7091. The use of arrest data rather than suspect data would likely hide rather than exaggerate the overstopping of minorities. 208 See 4/9 Tr. at 2804.
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2. Pressure to Increase Stops Between 2002 and 2011, the number of stops increased from roughly 97,000 to roughly 686,000 per year.209 How did the NYPD increase its stop activity by roughly 700%, despite the fact that crime continued to fall during this period?210 Based on numerous, mutually reinforcing sources of evidence at trial including live testimony, depositions, roll call recordings, internal NYPD documents, and survey results, the most plausible explanation is that NYPD officers prior to and during the class period experienced significant pressure to increase their stop activity.211
a. Compstat: Pressure on Commanders Introduced in 1994, Compstat is the NYPD’s statistics-based performance management system.212 The system collects and analyzes statistical and other data about local crime and enforcement activities, conducts weekly meetings during which senior officials question local commanders about the data, and holds commanders accountable for addressing

209 See id. at 2807; DX V14-A. The City speculates that this increase may only reflect increased documentation of stops, but offers no evidence for its speculations. See 4/11/13 Defendant[’s] Memorandum of Law in Opposition to Plaintiffs’ Requested Injunctive Relief (“Def. Inj. Mem.”) at 1.

210

See, e.g., NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES, INDEX

CRIMES REPORTED TO POLICE BY REGION: 2003–2012 (2013) (showing 17% drop in index crime

reports between 2003 and 2012, and 30% drop in reported murders). I emphasize again that this

Opinion takes no position on whether stop and frisk contributed to the decline in crime. The

point here is that the dramatic increase in the number of stops cannot be explained by an increase

in the number of people displaying suspicious behavior on the streets. To the contrary, the fall in

crime reports suggests that stops based on suspicious behavior rose even as the amount of

suspicious behavior declined.

211
below).

See generally Pl. Findings ¶¶ 56–85 (collecting many of the sources discussed

212 See John A. Eterno & Eli B. Silverman, The NYPD’s Compstat: Compare Statistics or Compose Statistics?, 12 INT’L J. POLICE SCI. & MGMT. 426–29 (2010). Redacted versions of two tables from the Eterno and Silverman article were admitted into the record as PX 291 and 292. See 5/31/13 Endorsed Letter [Dkt. No. 306].

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crime conditions and improving the quantitative measures of their performance.
Chief Esposito, who chaired Compstat’s meetings until his retirement earlier this
year, and Assistant Chief Raymond Diaz testified that the amount of UF-250s that a unit has completed is a factor in evaluating the unit’s performance.213 Excerpts from heavily redacted
minutes of Compstat meetings show Chief Esposito questioning commanders about their low stop numbers.214 Assistant Chief Diaz also stated that one way of measuring the effectiveness of impact response teams is to look at the number of UF-250s they generate215 and that “an increase
in the 250s is usually a good sign . . . that the unit that is being reviewed is engaging in more activity as opposed to less.”216
Chief Esposito and other NYPD officials testified that the quality of UF-250s is
also reviewed at Compstat meetings. Indeed, there was evidence that attention is paid at
213 See 4/9 Tr. at 2868–2869 (Esposito); 3/29 Tr. at 1511 (testimony that Chief Esposito chaired weekly Compstat meetings). See also 3/22 Tr. at 1030–1031 (Diaz).
214 See, e.g., 2008 Compstat Meeting Notes Part A, PX 281, at *7017 (Chief Esposito: “Your [enforcement] numbers are way down. . . . If you look at [the] raw [number] of 250s[,] you are down 50%.” An executive officer responds that he “[w]ill look at it.”); id. at *7026 (Chief Esposito: “How many C summonses are given out per officer on straight time? What should [the] average be?” A commanding officer responds: “2.3 sir and 2.3 for 250s as well.”); id. at *7080 (Chief Esposito: “I have to go but 9 robberies compared to none[,] I don’t think we are doing enough[] in that zone. You have 4 C[’]s and 5 250s in [a] 28 day period.”); 2008 Compstat Meeting Notes Part B, PX 283, at *7959 (Chief Esposito noting that there were only “1 250 and 4 C [summonses] for [a] whole daytour.” A commanding officer responds: “I[’]m on top of it[,] I saw it.”); id. at *8045 (Chief Esposito: “Everyone is working hard, just trouble with the violence, 250s[] down, C[s] down, arrests down. OCCB collars up 16%[,] doing [a] great job.”); id. at *8144 (Chief Esposito: “In and around housing you are down in C’s, 250s.” A commanding officer responds: “We have called on the [borough] for resources . . . .”). The quotations come from Compstat meeting notes.
215 See 3/29 Tr. at 1556. Accord Deposition of Chief of Patrol Robert Giannelli (“Giannelli Dep.”), PX 157, at 268–269 (testifying that at Compstat meetings, Chief Esposito might criticize an inordinately low number of stops in relation to a crime pattern).
216 3/29 Tr. at 1555.
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Compstat meetings to the quality of enforcement activity in the sense of its effectiveness.217 For
example, Chief Esposito often questions commanders at Compstat about whether enforcement activity was responding to crime conditions in specific places and times.218 There was no
evidence, however, that the quality of stops in the sense of their constitutionality receives
meaningful review or plays a role in the evaluation of commanders’ performance during
Compstat meetings.
Several NYPD officials conceded in testimony that Compstat focuses on
effectiveness, not constitutionality. For example, Chief Esposito was asked to explain an excerpt
from the Compstat meeting notes in which he is recorded as stating:
Quality on 250s[,] forget the number. 5% enforcement rate off 250s, 102 [Precinct] is the worst with enf[orcement] off 250s. A lot of it is probably training. But quality of 250 in [Queens] South has a lot to be desired.219
When asked by plaintiffs’ lawyers whether “quality” in this passage could refer to whether stops
were based on reasonable suspicion, Chief Esposito stated: “No. I think we talk more about where and when. Does it match up with the crime picture? That’s what is paramount.”220 None
217 See, e.g., 4/9 Tr. at 2881 (Chief Esposito testifying that “[i]n the context of CompStat, we always stress quality”); 3/22 Tr. at 925 (Deputy Chief Michael Marino testifying that “[t]he main thing that you hear a lot at CompStat is they talk about quality over quantity. Nobody from the top on down has ever said they want more numbers for numbers’ sake.”); 3/22 Tr. at 1030 (similar testimony from Assistant Chief Diaz).
218 See, e.g., Giannelli Dep. at 268–269; 2008 Compstat Meeting Notes Part B at *7958 (Chief Esposito considering redistribution of resources, in part based on low number of UF-250s in area with spike in robberies). Accord 3/22 Tr. at 925 (Deputy Chief Marino illustrating the emphasis on quality at Compstat meetings by stating: “They can do things like they can put up the computer maps and show robberies up in this area. And then they will show a lot of activity in this area. No, it should be here. You’re not taking proper steps to stop the conditions.”).
219 2008 Compstat Meeting Notes Part B at *8025. 220 4/9 Tr. at 2893–2894. See also 4/9 Tr. at 2879–2881, 2893–2894 (Chief Esposito credibly clarifying that 2008 Compstat Meeting Notes Part B at *8051–8052 does not question the constitutionality of stops generating a low hit rate).
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of the excerpts from the Compstat meeting notes regarding UF-250s include a discussion of racial profiling or use the term reasonable suspicion.221
Similarly, to the extent that Chief of Patrol James Hall and his staff “raise issues or concerns about the UF-250s with COs at the meetings,”222 these relate to the effectiveness of stops and officers’ basic compliance with paperwork requirements.223 There was no credible
evidence that Chief Hall or his staff perform regular or meaningful reviews of the constitutionality of stops before Compstat meetings.224
In sum, Compstat exists to measure the effectiveness of police enforcement
activities, not their constitutionality.
b. Evidence of Pressure in Survey Data
The evidence discussed in the previous section shows that senior NYPD officials
at Compstat meetings routinely place pressure on commanders to increase their enforcement
activity, including their stop numbers. The survey evidence in this section shows that
subordinate managers in the NYPD have communicated this pressure to the rank and file.
221 See id. at 2895. See also 4/2 Tr. at 1838 (Deputy Inspector Steven Mauriello stating that he did not recall any discussion at a Compstat meeting of “whether the stops and frisks that would be recorded in [a commander’s] 250s are . . . legal or constitutional”); 4/16 Tr. at 3544 (Deputy Inspector Charles Ortiz stating that the review of UF-250s at Compstat meetings consisted only of aggregate statistics, not the review of individual forms). For further evidence of NYPD officials’ and managers’ failure to discuss racial profiling at Compstat meetings, or among themselves, see Pl. Findings ¶¶ 186–190 (collecting sources).
222 Def. Findings ¶ 47 (citing 5/15 Tr. at 7348–7352). 223 See 5/15 Tr. at 7349. See also id. at 7348–7350; 5/16 Tr. at 7623. 224 Chief Hall ultimately conceded that “[p]rimarily,” the purpose of his and his staff’s reviews of UF-250s “would probably be more related to the crime condition than the actual stop.” 5/16 Tr. at 7626; id. at 7621–7626. When asked whether there is “ever an analysis of the circumstances which led to [a] stop” at a Compstat meeting, Assistant Chief Diaz replied “No”: “The CompStat process is basically to look at criminal activity and to see what strategies are in place to address that criminal activity, not so much to look at the quality . . . of the stop.” 3/29 Tr. at 1518.
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Dr. Eli Silverman and Dr. John Eterno, a retired NYPD captain, conducted two surveys of retired members of the NYPD, one in 2008 and the other in 2012.225 The 2008
survey was sent to 1,197 retired NYPD personnel with the rank of captain or above. 41%
responded. The 2012 survey was sent to 4,069 retired NYPD personnel of all ranks who had
listed themselves as “active retirees,” that is, available if needed to serve in an emergency. 48% responded.226
The 2008 survey asked: “With respect to the following criteria and based on your
personal experience, on a scale of 1 to 10 (with 1 being the least and 10 the most), how much
pressure was there from management/supervisors to . . .” — followed by a list including, among
other items, “Increase summonses,” “Increase arrests,” and “Increase Stop and Frisk Reports.” The final page of the survey asked: “Did you serve on [the] NYPD after 1994?”227 As noted
above, 1994 was the year in which Compstat was introduced.
The responses to the 2008 survey show that mid-level managers in the NYPD
who served during the Compstat era perceived significantly greater pressure to increase stops,
225 These surveys were pre-tested and approved by the Institutional Review Board of Molloy College, where Dr. Eterno is an associate dean and professor of criminal justice.
226 See 4/5 Tr. 2470–2481 (Silverman testimony regarding 2008 survey); id. at 2503–2509 (same regarding 2012 survey); PX 300 (blank copy of questionnaire used in 2008 survey). Dr. Silverman testified that the original purpose of the 2008 survey was to determine whether NYPD personnel were experiencing pressure to misrepresent crime numbers in order to improve their performance measurements at Compstat meetings. See 4/5 Tr. at 2470. After the publication of the survey results, Commissioner Kelly appointed a three-person committee, including two former federal prosecutors, to prepare a report on “whether the NYPD’s internalauditing and quality-control processes are sufficient to ensure the accuracy” of Compstat. DAVID N. KELLEY & SHARON L. MCCARTHY, THE REPORT OF THE CRIME REPORTING REVIEW COMMITTEE TO COMMISSIONER RAYMOND W. KELLY CONCERNING COMPSTAT AUDITING i (Apr. 8, 2013). The report finds support for Dr. Silverman’s concerns, see id. at 49–50, and recommends a number of reforms, including officer interviews to complement QAD’s document-focused audits, more accountability for egregious misclassifications of crimes, and formalized periodic external assessments of the Compstat audit process. See id. at 55–58.
227 PX 300.
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arrests, and summons than those who retired prior to 1994. Specifically, when asked to rate the amount of pressure they perceived to increase stops, the mean response of Compstat era personnel was a statistically significant 2.2 points higher on the scale from 1 to 10 than preCompstat era personnel.228 In addition, between the pre-Compstat and Compstat eras, the percentage of NYPD personnel who reported low pressure (1 to 3 on the scale) fell from 55% to 23%, while the percentage who reported high pressure (8 to 10 on the scale) rose from 5% to 28%.229
The 2012 survey began by stating: “For all questions, if you retired before 1994, base your answers on your overall impressions over your entire career; if you retired in 1994 or after, base your answers on experiences that occurred only in 1994 and after.” The second set of questions presented a refinement of the question on the first page of the 2008 survey: “With respect to the following criteria and based on your personal experience/knowledge, on a scale of 1 to 10 (with 1 being the least and 10 the most), how much pressure did precinct (patrol) personnel receive from management/supervisors to . . .” — followed by a list including “Increase summonses,” “Increase stop and frisk,” and “Increase arrests,” as well as a new item: “Obey Legal/Constitutional Rules.” The survey later asked respondents to state the year in which they retired.230
Dr. Silverman divided the respondents to the 2012 survey into three categories:
228 See PX 291. The mean responses with regard to pressure to increase summonses and arrests were 1.5 points and 1.8 points higher for Compstat-era personnel, and both of these results were also statistically significant. See id.
229 The increases in the degrees of reported pressure to increase summonses and arrests were similarly stark. See PX 443; PX 441 (with regard to summonses, reports of low pressure fell from 28% to 9%, while reports of high pressure rose from 26% to 45%); PX 442 (with regard to arrests, reports of low pressure fell from 31% to 8%, while reports of high pressure rose from 17% to 42%); 4/5 Tr. at 2496–2500.
230 See PX 293. 69

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those who retired in 1994 or earlier (pre-Compstat), those who retired between 1995 and 2001, and those who retired after 2002 (the year of Mayor Bloomberg’s arrival and his appointment of Commissioner Kelly). The responses showed that the percentage of NYPD personnel reporting high pressure to increase stops increased from 9% in the pre-Compstat era, to 19% in the Compstat era before Mayor Bloomberg, to 35% of all respondents who retired after 2002. The percentage of personnel reporting low pressure fell from 58% for pre-Compstat retirees to 37% for pre-Bloomberg retirees to 24% for post-Bloomberg retirees. The increases in reported pressure to raise summons and arrest numbers was similarly stark.231
Finally, while the 2012 survey showed an increase from 35% to 42% in those reporting medium pressure to obey legal and constitutional rules, it also showed a significant post-2002 decrease in those reporting high pressure to do so. 45% of pre-Compstat retirees and 47% of early Compstat era retirees reported high pressure to obey legal and constitutional rules, while only 36% of post-Bloomberg retirees reported high pressure. Dr. Silverman testified that this represented a modest but statistically significant decline.232
Although the City attempted to undercut the reliability of the 2008 and 2012 findings,233 I find that the City’s criticisms do not undermine the surveys’ central finding for the purposes of this case: NYPD personnel experienced or were aware of pressure to increase the number of stops after the introduction of Compstat, and especially after the arrival of Mayor Bloomberg and Commissioner Kelly. In addition, this rising pressure for stop numbers was not
231 See PX 446 (stops); PX 444 (summonses); PX 445 (arrests). 232 See PX 292, 447; 4/5 Tr. at 2518–2519. 233 See Def. Findings ¶ 68 (arguing, for example, that the 2008 survey is not “representative” because it “included only retirees who opted to join [a] union mailing list,” without offering any grounds for believing that retirees who joined this mailing list are more or less likely than other retirees to perceive pressure to increase stops).
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accompanied by equivalent pressure to obey constitutional restrictions. c. Further Evidence of Pressure on Officers
Additional anecdotal evidence supports plaintiffs’ argument that the NYPD pressured officers to increase stops without due regard to the constitutionality of those stops. For convenience, I divide the evidence into two periods: before the enactment of New York’s Quota Law in 2010, and after.
i. Pressure Before the 2010 Quota Law Before 2010, the NYPD had no written policy prohibiting quotas for stops, arrests, or other enforcement activities.234 There is abundant evidence during this period of supervisors directing officers to meet numerical enforcement goals, as well as threatening the officers with negative consequences if they did not achieve those goals. In particular, three NYPD officers from three precincts made secret recordings revealing institutional pressure to increase enforcement numbers: Officers Adrian Schoolcraft, Adhyl Polanco, and Pedro Serrano.235 The three officers’ recordings provide a rare window into how the NYPD’s policies are actually carried out. I give great weight to the contents of these recordings. Officer Schoolcraft’s recordings take place at the 81st Precinct in the Bedford Stuyvesant area of Brooklyn. Many of the recordings are of roll calls, the period before a tour when officers assemble to receive assignments and training.236 Requests or commands to issue
234 See Chief of Patrol, Memorandum Regarding Quota Bill (Oct. 22, 2010), PX 290, at *0096 (“Quotas are not addressed as part of any managerial training . . . .”). The lack of citation to any prior written policy prohibiting quotas strongly suggests that no such policy existed.
235 To the extent that the officers chose what to record, the recordings may present an incomplete picture. But for the most part, the context of the recordings and the meaning of the supervisors’ words were plain.
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UF-250s are common on the recordings, though sometimes innocuous.237 The recordings also
show repeated calls for increased “activity,” including summonses, stops, and arrests.
Sometimes supervisors use numerical goals backed by the threat of negative consequences if the
goals are not met. For example, at a June 12, 2008 roll call, Lieutenant Jean Delafuente stated:
[W]e had the CO’s meeting today. . . . First and foremost, we need more activities, all right? The CO wants more activity. The XO wants more activity. The borough is monitoring the activity sheets. So, if your activity falls below par, they’re going to have either you or I or the Sergeant or the CO have to explain what’s going on, all right? So, let’s not let it get that far, all right?238
Later, Lieutenant Delafuente states: “The XO was in the other day. . . . He actually laid down a
number, all right?” Lieutenant Delafuente says, perhaps jokingly, that he is not going to quote
the number, then proceeds to say that the Executive Officer “wants at least three seatbelts, one
cellphone, and 11 others.” He also suggests that he has criticized officers whose numbers were
not high enough: “The CO gave me some names. I spoke to you. I’m not going to embarrass you in front of everyone.”239
The most striking aspect of the Schoolcraft recordings is the contempt and
hostility of supervisors toward the local population. For example, at a roll call on November 8,
2008, Lieutenant Delafuente states:
All right, I went out there [to Howard and Chauncey] yesterday and . . . we’ve got the old man out there with the grey hairs. A loud mouth. He thinks since he’s 55 years old he’s not going to get locked up. Well, guess what? I don’t tolerate shit out there. He went in and two of his pals went in. All right? So we’ve got to keep the corner clear. . . . Because if you get too big of a crowd there, you know, . . . they’re going to think that they own the block. We own the block. They don’t own the block, all right? They might
237 See, e.g., PX 289T (10/30/08 at 4.20–6.30) (“If you see something just do some, uh, 250’s, get all the fucking riff-raff off the corners.”).
238 Id. (6/12/08 at 7.13–8.10). 239 Id. (6/12/08 at 12.10–13.28).
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live there but we own the block. All right? We own the streets here. You tell them what to do.240
Similarly, Lieutenant Delafuente reminds the officers at a roll call on November 1, 2008 that
they are “not working in Midtown Manhattan where people are walking around smiling and
happy. You’re working in Bed-Stuy where everyone’s probably got a warrant.”241 Because
Bedford Stuyvesant is a historically black neighborhood and continues to have a majority black
population,242 Lieutenant Delafuente’s comment carries troubling racial overtones.
As further evidence of a culture of hostility in the 81st Precinct, Sergeant
Raymond Stukes said the following at a roll call on March 13, 2009:
If you see guys walking down the street, move ‘em along. Two or three guys you can move, you can’t move 15, all right? If you want to be a[n] asshole or whatever you want to call it, make a move. If they won’t move, call me over and lock them up [for disorderly conduct]. No big deal. We could leave them there all night. . . . The less people on the street, the easier our job will be . . . . If you stop them[,] 250, how hard is a 250. I’m not saying make it up but you can always articulate robbery, burglary, whatever the case may be. That’s paperwork . . . It’s still a number. It keeps the hounds off, I’ve been saying that for months.243
240 Id. (11/8/08 at 13.09–14.36).
241 Id. (11/1/08 at 2.12–3.50).
242 See 5/9 Tr. at 6458–6459 (Inspector Juanita Holmes, who became the Commanding Officer of the 81st Precinct after the release of Officer Schoolcraft’s tapes in 2010, testifying that the 81st Precinct is “77 percent African-American”); NYC.gov, Community Snapshot 2011, CD3: Bedford Stuyvesant (2012) (stating that Bedford Stuyvesant as a whole is 59% black).
243 PX 289T (3/13/09 at 4.32–5.20) (emphasis added). “The hounds” apparently is a reference to superiors, such as commanders, who are monitoring enforcement activity, pushing for higher activity, and have the power to transfer an officer as punishment for low enforcement activity. See, e.g., id. (6/12/08 at 14.58–16.40); id. (12/8/08 at 12.20–15.00); 4/2 Tr. at 1897–1898.
For another example of Sergeant Stukes’ directives at roll call, see PX 289T (1/7/08 at 6.58–8.00) (“Be an asshole. They going to do something, shine a light in their face whatever the occasion, inconvenience them.”). When asked to explain Sergeant Stukes’ statement “[b]e an asshole,” Deputy Inspector Steven Mauriello offered the following interpretation: “It means be a police officer. You have a footpost. You walk your footpost.
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Similarly, Sergeant Stukes states at a roll call on November 23, 2008: “If they’re on a corner, make them move. They don’t want to move, you lock them up. Done deal. You can always articulate later.”244
In a speech at roll call on Halloween in 2008, Deputy Inspector Mauriello states: Tonight is zero tolerance. It’s New Years Eve all over again. Everybody goes. I don’t care. . . . They’re throwing dice? They all go, promote gambling. I don’t care. Let the DA discuss what they’re going to do tomorrow. . . . They got [bandanas] on and they’re running like nuts down the block, chasing people? Grab them. Fuck it. You’re preventing a robbery . . . . You know that and I know that.245 When asked to explain what he meant in these remarks, Deputy Inspector Mauriello testified that throwing dice is a quality of life infraction.246 In addition to revealing a virulent precinct culture that the NYPD failed to address until forced to do so by the publication of the recordings, some of the recorded statements are directly relevant to plaintiffs’ claims. Sergeant Stukes’ statements on more than one occasion that “you can always articulate” some basis for a stop after the fact encourages officers to stop first and develop a justification later.247 The same Sergeant Stukes later directs his officers to “[s]hake everybody up. Anybody moving, anybody coming out that building, 250, verticals, and
And be omnipresent.” 4/2 Tr. at 1900. 244 PX 289T (11/23/08 at 5.46–6.28) (emphasis added); 4/2 Tr. at 1825. When asked
to interpret the phrase “[y]ou can always articulate later,” Deputy Inspector Mauriello at first evaded the question by discussing the NYPD’s commitment to “CPR” (Courtesy, Professionalism, and Respect). Id. at 1903–1904. He eventually responded: “I guess he means do your paperwork later. Articulate. Online booking sheet.” Id. at 1903.
245 PX 289T (10/31/08 at 9.05–9.50). 246 See 4/2 Tr. at 1912–1913. 247 This tactic, of course, contravenes the requirement that an officer must have individualized and articulable reasonable suspicion before making a stop.
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give me a couple of community visits. C-summons as well.”248 Because exiting a building —
even in a high crime area — is not a sufficient basis for reasonable suspicion, these words are an
instruction to carry out stops and other enforcement activity without legal justification.
Likewise, the following words by Deputy Inspector Mauriello at a roll call on
November 8, 2008 provide evidence that the rapid escalation in stops between 2002 and 2011
may have been accomplished in part by encouraging stops without reasonable suspicion of any
crime:
I’m tired of bandanas on their waist and I’m tired of these beads. Red and black beads mean Bloods. Their bandanas — if they’re walking down the street and they’ve got a bandana sticking out their ass, coming out there — they’ve got to be stopped. A 250 at least. At least.249
Most significantly, Sergeant Stukes repeatedly instructs the officers that their
careers depend on carrying out high levels of activity, and shows utter disregard for the
requirement that a stop only be made based on a reasonable suspicion that crime is afoot. At a
December 8, 2008 roll call, Sergeant Stukes explained:
This job is so easy. Just keep the hounds off. A parker, a 250, you could book somebody walking down the street. You know what? I stopped and asked — so what? I did a 250. What’s the big deal? Let him go. He doesn’t want to give you no information, who cares? It’s still a 250.250
248 PX 289T (12/8/08 at 1.20–1.38). According to one officer’s testimony, there are three types of summonses: A summonses for parking violations (“parkers”), B summonses for moving violations, and C summonses for quality of life offenses (also known as “criminal court summonses”). See 5/10 Tr. at 6765 (Herran).
249 PX 289T (11/8/08 at 15.34–15.45). Even if it were an effective gang-suppression strategy to stop every person wearing known gang paraphernalia, it would not be a constitutional strategy, because neither carrying beads nor flaunting a bandana is a crime.
250 Id. (12/8/08 at 12.20–15.00). Accord id. (12/8/08 at 7.07–7.42) (suggesting that officers with low activity will be transferred); id. (12/12/18 at 2.20–4.30) (encouraging more UF-250s and C summonses, and stating “your evaluations are based on your activity”); id. (1/28/09 at 23.24–24.10) (“[T]hey’re looking at those numbers and people are gonna be moved.”); id. (1/29/09 at 6.56–9.03) (“You get . . . your numbers, and everybody leaves you alone.”).
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Officer Polanco’s recordings take place in 2009 at the 41st Precinct in the Bronx, and reveal similar pressure on officers to achieve enforcement activity numbers regardless of whether there is a reasonable suspicion of criminal activity. In one recording, Officer Polanco’s union delegate, Officer Angel Herran, refers repeatedly to a requirement that officers complete “20 and 1,” which Officer Polanco testified meant twenty summonses and one arrest per month.251 Officer Herran encourages the other officers to “[c]rush the fucking city” and make the required numbers, because someone who does not is a “zero,” and he will not fight for a zero.252 Officer Herran confirmed in his testimony that “20 and 1” referred to the goal of 20 summonses and 1 arrest, which patrol officers in the 41st Precinct were expected to achieve (at least prior to the Quota Law) in approximately 20 to 22 days on patrol.253 Officer Polanco’s recordings also appear to show Lieutenant Andrew Valenzano instructing officers to stop anyone on a bike who is carrying a bag near an area where there have been car break-ins.254 “[T]hose are good stops,” Lieutenant Valenzano states.255
Officer Serrano’s recordings take place at the 40th Precinct in the Bronx, and also show the pressure for enforcement activity. During a roll call on June 30, 2010, Lieutenant
251 PX 284T track 1; 3/19 Tr. at 423–425. 252 PX 284T track 1–2. See also 3/20 Tr. at 469–470 (Officer Polanco interpreting Officer Herran as encouraging officers to carry out an arrest on Friday night so that the City will have to pay overtime the following day); 3/21 Tr. at 734–735 (Officer Serrano describing distinction between a “zero” with low activity and a “hero” with high activity). 253 See 5/10 Tr. at 6765–6766, 6768. 254 See PX 284T track 5; 3/19 Tr. at 417. 255 PX 284T track 5. Officer Polanco credibly interpreted this as an instruction to “[s]top and frisk anybody who is on a bike carrying a bag” in the area of the crime pattern. 3/20 Tr. at 487–488.
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Stacy Barrett directs each officer to get five summonses or UF-250s,256 and says it should not be difficult. She tells the officers to “go crazy” in St. Mary’s Park: “If we get every single summons in St. Mary’s, I don’t care.” Her primary concern is to “get those numbers.”257
Beyond the recordings, many other officers offered credible, consistent testimony regarding the pressure to increase enforcement activity and the threat of adverse consequences for failing to achieve high enough numbers.258
ii. Pressure After 2010 Quota Law In 2010, after the Village Voice publicized Officer Schoolcraft’s recordings,259 the State of New York enacted the Quota Law, which prohibits retaliation against officers for failing to meet quotas for tickets, stops, summonses, and arrests.260 Subsequently, Chief Hall sent a memo to the commanders of every patrol borough purporting to clarify the NYPD’s position on performance quotas. The memo first clarifies that “a requirement that a specific number of summonses be issued or arrests be made over a specific period of time has always been prohibited.” The memo then states that “[o]fficers who avoid engaging in enforcement activities . . . can be subjected to adverse consequences.”261 Furthermore, “[a]n obvious way of gauging an officer’s activity level is to count the number of enforcement encounters that an officer has over time,” and to compare an

256 Lieutenant Barrett credibly testified that “we were looking for fives, that was any combination of summonses or UF-250s.” 5/7 Tr. at 6272.
257 PX 297. 258 See Pl. Findings ¶¶ 61–62 (collecting sources). 259 See 4/2 Tr. at 1842.

260
at *0096.
261

Previously, section 215 only addressed quotas for traffic violations. See PX 290 Id. at *0097.

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officer’s activity level to that of similarly situated officers. The memo only explicitly prohibits “discussing specific numerical objectives” or linking “the failure to reach a specific numerical goal with an adverse employment consequence.”262
In 2011, the NYPD introduced the “Quest for Excellence” program, a set of new policies for evaluating the performance of officers and encouraging the use of performance goals.263 One of the central documents in the Quest program is Operations Order 52 (“OO 52”), which was issued October 17, 2011 and describes officers’ performance objectives. OO 52 made clear that supervisors must evaluate officers based on their activity numbers, with particular emphasis on summonses, stops, and arrests, and that officers whose numbers are too low should be subjected to increasingly serious discipline if their low numbers persist. Specifically, NYPD managers “can and must” set “performance goals” for “proactive enforcement activities,” with “particular attention” to “self-initiated arrests, issuing summonses, [and] conducting stops.”264 Deputy Commissioner Beirne testified that “performance goals” could include “setting a goal of a certain number of stops.”265 Officers who “fail to engage in proactive activities,” and thus continue to fail in “addressing sector/post conditions,” will ultimately be referred to the “Performance Monitoring Unit” for potential “transfer,
262 Id. (emphasis added). 263 See 4/15 Tr. at 3364 (Deputy Commissioner of Labor Relations John Beirne, one of the designers of Quest). 264 OO 52, PX 285 ¶¶ 1, 3. For the many ways of referring to low activity numbers, see 3/22 Tr. at 966 (Lieutenant Rafael Mascol testifying that he would tell an underperforming officer: “Listen, you need to be a little more proactive out there, be a little bit busier about doing your assignments out there, handling the conditions that you have out there, you know, you seem to have fallen off for a few months there, is there something going on?” (emphases added)). 265 4/15 Tr. at 3368–3369.
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reassignment or other appropriate disciplinary action.”266
In addition, the form used to track officer performance reflects the NYPD’s
emphasis on enforcement activity numbers and effectiveness without attention to the
constitutional justifications for enforcement. An officer is required to tally her activities each day on the Police Officer’s Monthly Conditions Impact Measurement Report.267 The form
contains columns for a number of activities, including vertical patrols, radio runs, arrests and summonses, and the preparation of various reports, including UF-250s.268 At the end of the
month, the officer tallies her total activities, and the supervisor provides a brief written
evaluation of whether the officer’s “impact on declared conditions” was “effective.” Each
quarter, the supervisor reviews the officer’s activity over the prior three months and evaluates the officer’s effectiveness.269
In contrast to this detailed review system for effectiveness, there is no process for evaluating whether enforcement activities are legally justified.270 For the purposes of
266 OO 52 ¶ 15. 267 See Interim Order 49 (Oct. 24, 2011) (“IO 49”), PX 315 (suspending Patrol Guide 205-57), at 2; Police Officer’s Monthly Conditions Impact Measurement Report, PX 205 (blank form). 268 See PX 205. The form provides another example of the NYPD systematically collecting information relevant to evaluating the “quality” of stops in the sense of their effectiveness, but not in the sense of their constitutionality. 269 See IO 49 at 2–5; PX 205; 3/22 Tr. at 892–893 (Deputy Chief Marino confirming that officers’ success or failure in meeting performance goals is monitored exclusively through the monthly, quarterly, and annual reports). The monthly and quarterly evaluations also play a significant part in an officer’s annual performance evaluation. See, e.g., 4/15 Tr. at 3410 (Beirne). 270 This fact is evident from the form itself, see PX 205, but was also corroborated by testimony. See, e.g., 3/27 Tr. at 1178 (Lieutenant Jonathan Korabel acknowledging “there’s no substantive information [on a monthly activity report] about [the] stops and frisks, arrests, or summonses” tallied on the report).
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performance review, an unconstitutional stop is no less valuable to an officer’s career than a
constitutional one — because the two are indistinguishable. In fact, a review of several monthly
activity reports suggests that in practice, many officers are evaluated almost exclusively based
on the number of stops, arrests, and summonses that they carry out. Based on these reports, as
well as corroborating testimony, an “effective” “impact on declared conditions,” in the context
of performance reviews, is sometimes nothing more than a euphemism for an acceptable number of stops, arrests, and summonses in targeted locations.271
Officers may be subject to warnings and more severe adverse consequences if
they fail to achieve what their superiors perceive as appropriate enforcement activity numbers.
Deputy Commissioner Beirne acknowledged that an officer’s failure to engage in enough
proactive enforcement activities could result in a negative performance evaluation and
reassignment to a different command, and that both of these steps represent “an adverse employment action.”272 As noted earlier, the only proactive enforcement activities mentioned in
271 For example, the following are notes from supervisors on the back of officers’ monthly report forms in the field labeled “Officer’s Impact on Declared Conditions,” which invites supervisors to “[d]escribe in detail why [the officer] was effective/ineffective.” All of the evaluations are from 2012: “Officer showed improvement from last month and was proactive in combating conditions which resulted in 24 summonses to address conditions.” PX 234 (marked “Effective”). “PO . . . was effective for the month with 1 grand larceny . . . arrest and 20 UF250s.” Id. at *1255 (marked “Effective”). “PO . . . was effective for the month [with] 1 arrest and 20 UF-250s in target areas.” Id. at *1257 (marked “Effective”).
272 4/15 Tr. at 3370–3372. In contrast to Deputy Commissioner Beirne, Chief Esposito and Deputy Chief Marino evaded plaintiffs’ questions about numerical enforcement activity goals, and insisted that officers are evaluated on “tak[ing] care of the condition,” 4/9 Tr. at 2957 (Esposito). Accord 3/22 Tr. at 881 (Marino). Chief Esposito and Deputy Chief Marino offered this testimony even though the Quest program contains no metrics for measuring “addressing conditions” other than the tallies of an officer’s activities. I also note that an arbitration proceeding found that Deputy Chief Marino himself imposed quotas on officers when he was the Commanding Officer of the 75th Precinct. See 4/9 Tr. at 2954–2955 (Chief Esposito acknowledging Marino arbitration findings).
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OO 52 are stops, summonses, and arrests.273 It is difficult to see any difference between a performance goal and a quota if
“performance goals” operate as Deputy Commissioner Beirne testified.274 It is not surprising, then, that since 2010, there have been at least nine grievances filed by police officers against the NYPD alleging adverse employment action as a result of quotas.275
d. Conclusion The foregoing evidence shows that officers are routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops are constitutionally justified. Together with evidence described in the next section, this is a predictable formula for producing unjustified stops. To paraphrase a statement by Chief Hall from his 2010 memo, imposing numerical performance goals for enforcement activities, without providing effective safeguards to ensure the activities are legally justified, “could result in an officer taking enforcement action for the purpose of meeting a [performance goal] rather than because a violation of the law has occurred.”276 3. Targeting “the Right People” The role of race in stop and frisk has been a source of contention since the Supreme Court first sanctioned the practice in 1968. In Terry, the Supreme Court recognized that “‘[i]n many communities, field interrogations are a major source of friction between the police and minority groups,’” and that friction “‘increases as more police departments
273 See OO 52 ¶¶ 1, 3. 274 4/15 Tr. at 3369 (distinguishing quota and performance goal). 275 See id. at 3399–3400 (Beirne); 5/10 Tr. at 6790–6791 (Herran). 276 PX 290 at *0096. The original includes “quota” rather than “performance goal,” but the meaning is the same.
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[encourage] officers . . . routinely to stop and question persons on the street.’”277 In 1996, the Ninth Circuit noted that these stops “are humiliating, damaging to the detainees’ self-esteem, and reinforce the reality that racism and intolerance are for many African-Americans a regular part of their daily lives.”278
The NYPD maintains two different policies related to racial profiling in the practice of stop and frisk: a written policy that prohibits racial profiling and requires reasonable suspicion for a stop279 — and another, unwritten policy that encourages officers to focus their reasonable-suspicion-based stops on “the right people, the right time, the right location.”280
Based on the evidence summarized below, I find that the NYPD’s policy of targeting “the right people” encourages the disproportionate stopping of the members of any racial group that is heavily represented in the NYPD’s crime suspect data. This is an indirect form of racial profiling. In practice, it leads NYPD officers to stop blacks and Hispanics who would not have been stopped if they were white. There is no question that a person’s race, like a person’s height or weight, is a permissible consideration where a stop is based on a specific description of a suspect.281 But it is equally clear that it is impermissible to subject all members
277 Terry, 392 U.S. at 14 n.11 (quoting PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE POLICE (1967)). See also id. at 14–15 (noting the problem of “[t]he wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain”).
278 Lambert, 98 F.3d at 1188 (collecting scholarly sources). 279 See, e.g., Interim Order 20 (5/16/12), PX 183 ¶¶ 2–4 (current racial profiling policy, emphasizing that stops must be based on reasonable suspicion); Operations Order 11 (3/13/02), PX 184 ¶¶ 1–2 (previous racial profiling policy, emphasizing same). 280 PX 332T at 20. NYPD personnel of diverse ranks repeated variations on this phrase throughout the trial. See Pl. Findings ¶¶ 49–55 (collecting sources); 4/10 Tr. at 3035 (Chief Esposito agreeing that the NYPD looks for “the right people, at the right place, at the right time”). 281 See infra Part V.B.1 (conclusions of law regarding racial profiling).
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of a racially defined group to heightened police enforcement because some members of that
group appear more frequently in criminal complaints. The Equal Protection Clause does not
permit race-based suspicion.
Chief Esposito, the highest ranking uniformed member of the NYPD throughout
the class period and the chair at Compstat meetings, was especially frank about the NYPD’s
policy of targeting racially defined groups for stops, provided that reasonable suspicion is also
present:
Q. Quality stops are stops that are in the right place at the right time, correct? A. Yes. Q. And targeting . . . the right people, correct? A. Among other things. Q. And the right people would be young black and Hispanic youths 14 to 20, correct? A. At times. [pause] You failed to mention reasonable suspicion.282
Chief Esposito conceded that not all stops are based on a specific suspect description from a
crime complaint. In fact, officers check “Fits Description” on only 13% of UF-250s.
Nevertheless, Esposito testified, the NYPD uses criminal suspect data to target certain
individuals for stops even when there is no suspect description:
Q: Do you believe the disparity in stop, question and frisk among black and Latino men is evidence of racial profiling? A: No. I don’t believe that. . . . Because the stops are based on complaints that we get from the public. . . . THE COURT: But there are many street stops that have nothing to do with complaints, right? THE WITNESS: Correct. THE COURT: It’s observed conduct. . . . It’s not based on a complaint of a victim. THE WITNESS: It’s based on the totality of, okay, who is committing the
282 4/10 Tr. at 3034. To be clear, there is nothing constitutionally problematic about targeting “the right place at the right time,” where this means that deployment should “mirror the time of the crime and the place of the crimes that are being committed.” PX 157 at 268–269 (Giannelli).
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— who is getting shot in a certain area? . . . Well who is doing those shootings? Well, it’s young men of color in their late teens, early 20s.283
Thus, within the pool of people that an officer could reasonably suspect of criminal activity, the
people who match the general demographics of the local criminal suspect data are “the right
people” to be stopped.284
Other evidence corroborates this interpretation of Chief Esposito’s testimony. On
one of the Serrano recordings, Deputy Inspector Christopher McCormack explained to Officer
Serrano that stopping “the right people, [at] the right time, [in] the right location” meant not
stopping “a 48-year-old lady [who] was walking through St. Mary’s Park when it was closed.”285
He continued as follows:
INSPECTOR: This is about stopping the right people, the right place, the right location. SERRANO: Okay. INSPECTOR: Again, take Mott Haven where we had the most problems. And the most problems we had, they was robberies and grand larcenies. SERRANO: And who are those people robbing?
283 4/10 Tr. at 3027–3029 (emphasis added). Chief Esposito later testified that stop activity targets “the people that are committing the crimes.” Id. at 3029. While I find that the NYPD has defined “the right people” to be stopped in terms of race, gender, and age, I note that it would be equally problematic if the NYPD instructed officers to target “the right people” or “the people that are committing the crimes” without defining these categories. This would invite officers to fill in the undefined terms with their own stereotypes and biases regarding what a criminal looks like.
284 Chief Esposito does not view targeting “the right people” as a form of racial profiling, because in his view, racial profiling cannot exist provided that stops are based on reasonable suspicion:
As I think about, since this has been going on since ‘08, yeah, I think if you look at that form, if it’s filled out properly, it gives you reasonable suspicion, and if you have reasonable suspicion established, then you do not have racial profiling. It’s as simple as that.
4/9 Tr. at 2824. Of course, it is also erroneous to suggest that properly filling out a UF-250 necessarily establishes reasonable suspicion.
285 PX 332T at 21.
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INSPECTOR: The problem was, what, male blacks. And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21. I said this at roll call.286
Deputy Inspector McCormack testified that his statements in the recording were based on
suspect descriptions from victims. But he also acknowledged that the descriptions of the suspects consisted only of the information stated here: males, black, between 14 and 21.287
Earlier in the recording, when challenged by Officer Serrano, Deputy Inspector
McCormack clarified that he does not believe “every black and Hispanic” is subject to being stopped based on the crime suspect data.288 Deputy Inspector McCormack, like Chief Esposito,
recognized that reasonable suspicion is required for every stop. But both believe that, within the
pool of people displaying reasonably suspicious behavior, those who fit the general race, gender, and age profile of the criminal suspects in the area should be particularly targeted for stops.289
The stop of Cornelio McDonald illustrates the NYPD’s policy of indirect racial
profiling based on crime suspect data. Officer Edward French (now a detective) was aware of
crime reports that a black male had been burglarizing residences in Queens, as well as reports of
a black male committing armed robberies of commercial establishments in the borough. The
only information known about the suspects in these robbery patterns was that they were male
286 Id. at 23–24. Mott Haven is a mostly black and Hispanic housing development in the Mott Haven neighborhood in the Bronx. See id. at 22–23; 5/13 Tr. at 7014 (McCormack).
287 See 5/13 Tr. at 7016–7017. 288 See PX 332T at 23. I also note that Deputy Inspector McCormack does not display the contempt or hostility toward the local population that appears in many of the Schoolcraft recordings. To the contrary, Deputy Inspector McCormack emphasizes his belief “that 99 percent of these people in this community are great, hardworking people,” and makes clear that he has no interest in targeting blacks or Hispanics as such: his goal is to focus stop activity on “whatever group” is committing targeted crimes. Id. at 8, 11. 289 Similarly, Deputy Inspector Stephen Cirabisi testified that at Compstat meetings, attention is paid to whether the people being stopped are the same as “the people that are suspected of committing the crimes.” 5/2 Tr. at 5696–5697.
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and black — a very general description that would not justify a stop based on “fits description.”290 Nevertheless, Officer French stopped McDonald in part because he fit the suspect description. McDonald was a black man crossing the street late on a winter night with his hands in his pockets, and as a black man he was treated as more suspicious than an identically situated white man would have been.291 In other words, because two black males committed crimes in Queens, all black males in that borough were subjected to heightened police attention.
The UF-250s prepared by Officer Gonzalez, one of the most aggressive stoppers in 2009, provide a different illustration of an officer responding to the NYPD’s policy of indirect racial profiling based on crime suspect data. Officer Gonzalez checked “Fits Description” on 132 of his 134 UF-250s, although he also indicated that not a single one of those stops was based on an ongoing investigation, a report from a victim, or a radio run.292 Nonetheless, Gonzalez’s supervisor, then-Sergeant Charlton Telford, testified that he was not concerned by this discrepancy. Telford insisted that Officer Gonzalez’s stops were based on “the race, the height, [and] the age” of criminal suspects.293 The following were the suspect descriptions that formed the basis for Officer Gonzalez’s 134 stops:
The burglaries, the description we had was a male Hispanic, between 5’8”, 5’9”, in his 30s. The robberies were male blacks, anywhere from four to five [in number], between the ages of 14 to 19. And the shooting was a male
290 See 4/17 Tr. at 3743; Def. Findings ¶ 13. 291 See infra Part IV.D.1.c. 292 See PX 557; PX 557-D; 5/7 Tr. at 6327–6328 (Lieutenant Charlton Telford). “Radio Run/Sprint #” is a field on the front of the UF-250, while “Report From Victim/Witness” and “Ongoing Investigations, e.g., Robbery Pattern” are boxes in the Additional Circumstances section on the back of the form. See Blank UF-250. 293 5/7 Tr. at 6327–6328.
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black in his 20s.294 Perhaps as a result of Officer Gonzalez’s reliance on this general suspect data, 128 of the 134 people he stopped were black or Hispanic.295 This is roughly in line with the percentage of criminal suspects in his precinct who are either black or Hispanic (93%), but far exceeds the percentage of blacks and Hispanics in the local population (60%).296 Thus, Officer Gonzalez’s UF-250s provide a perfect example of how racial profiling leads to a correlation between the racial composition of crime suspects and the racial composition of those who are stopped by the police. By checking “Fits Description” as a basis for nearly every stop, Officer Gonzalez documented what appears to be a common practice among NYPD officers — treating generic crime complaint data specifying little more than race and gender as a basis for heightened suspicion.
New York State Senator Eric Adams’ testimony provided further evidence of official acquiescence in racial profiling by NYPD leadership. Senator Adams, a former NYPD captain, testified about a small meeting he attended at the Governor’s office in Manhattan in July 2010. Former New York Governor David Paterson, Senator Adams, another state senator, a state assemblyman, and Commissioner Kelly were all present to discuss a bill related to stop and frisk. Senator Adams raised his concern that a disproportionate number of blacks and Hispanics were being targeted for stops. Commissioner Kelly responded that he focused on young blacks and Hispanics “because he wanted to instill fear in them, every time they leave their home, they
294 Id. at 6341. 295 PX 557-D. Similarly, Officer Dang stopped 120 blacks and 0 whites during a sample quarter in 2009, despite the fact that he was patrolling a 43% black precinct. See DX L14; RAYMOND W. KELLY, POLICE COMMISSIONER, REASONABLE SUSPICION STOPS: PRECINCT BASED COMPARISON BY STOP AND SUSPECT DESCRIPTION, DX Y8, at *4974. 296 DX Y8 at *4974.
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could be stopped by the police.”297 Senator Adams testified that he was “amazed” that Commissioner Kelly was “comfortable enough to say that in the setting.”298
I find Senator Adams’ testimony credible, especially in light of the Senator’s former affiliation with the NYPD, Commissioner Kelly’s decision not to appear at trial to rebut the testimony, the City’s failure to offer any rebuttal evidence regarding Commissioner Kelly’s statement at this meeting, and the other evidence of tolerance toward racial profiling at the NYPD. In fact, the substance of Commissioner Kelly’s statement is not so distant from the City’s publicly announced positions. Mayor Bloomberg stated in April that the NYPD’s use of stop and frisk is necessary “to deter people from carrying guns. . . . [I]f you end stops looking for guns, . . . there will be more guns in the hands of young people and more people will be getting killed.”299 At the same time, the City emphasized in its opening arguments that “blacks and Hispanics account for a disproportionate share of . . . crime perpetrators,”300 and that “90 percent of all violent crime suspects are black and Hispanic.”301 When these premises are combined — that the purpose of stop and frisk is to deter people from carrying guns and that blacks and Hispanics are a disproportionate source of violent crime — it is only a short leap to the conclusion that blacks and Hispanics should be targeted for stops in order to deter gun violence, regardless of whether they appear objectively suspicious. Commissioner Kelly simply made explicit what is readily inferrable from the City’s public positions.
297 4/1 Tr. at 1589. Defendants did not object to this out of court statement. 298 Id. at 1585–1589. 299 Mayor Bloomberg Delivers Address on Public Safety to NYPD Leadership (4/30/13) (“April 30, 2013 Bloomberg Address”), PX 583 (emphasis added). 300 3/18 Tr. at 44 (Heidi Grossman). 301 Id. at 45.
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4. Inadequate Monitoring and Supervision
Previous sections have described the institutional pressure on NYPD officers to
make more stops and the reward for high stop activity. The City argues that the NYPD has taken
effective measures to counter the risk that this pressure will lead to legally unjustified stops.
However, after nine weeks of trial, the City failed to establish that the NYPD has any effective
mechanism for identifying or tracking unconstitutional stops.
a. Inadequate Documentation and Document Review
The City concedes that a UF-250, standing alone, often provides inadequate information to indicate whether a stop was based on reasonable suspicion.302 An earlier version
of the UF-250 included a large blank space in which officers were required to state the “factors which caused [the] officer to reasonably suspect [the] person stopped.”303 The current UF-250,
which has been in use since November 2002, does not require the officer to articulate in writing the facts justifying the stop.304 Instead, officers are directed to record the details of each stop in their memo books, also known as “activity logs.”305
In practice, however, officers do not in fact record the factors justifying a stop in
302 See Def. Mem. at 7; supra Part IV.B.2 (discussing weaknesses of UF-250s for verifying constitutionality of stops); Fagan Rpt. at 53–55.
303 Stop and Frisk Report, PX 449. As one supervisor stated on a recording: “We used to have to write a two-page story on the damn thing. . . . You had to write the whole story. . . . Now it’s easy. You just check a couple boxes off.” PX 289T (1/29/09 at 6.56–9.03).
304 See Blank UF-250. 305 See Operations Order 44 (9/11/08), PX 96, at 1 (emphasizing the importance of activity logs, stating that supervisors must inspect subordinates’ activity logs for “accuracy and completeness at regular and unspecified intervals,” and noting that failure to make required entries may result in discipline); id. at 2 (stating that “IT IS IMPERATIVE THAT A DETAILED ENTRY BE MADE AS INDICATED” for each stop, such as: “susp. male randomly looking in apt. windows”); Patrol Guide: Stop and Frisk at 1 (noting that officer is required to enter details of stop in activity log); 3/27 Tr. at 1099 (B. Dennis) (stating that all officers are required to carry a memo book, which is also called an activity log).
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their memo books, and supervisors do not address this deficiency. Officer Dennis testified that “while it was suggested” that officers record the “time, date, location of the stop, name of the person stopped, crime suspected, and that a 250 was prepared,” it was not “always” necessary and he did not always do so.306 Officer Dennis’s memo book entry regarding his stop of Devin Almonor included only the time of the stop and the following two statements: “2 males stopped,” “one male refused [illegible mark], UF-250.” With regard to Almonor’s arrest and transfer to the 30th Precinct, Dennis wrote only “one under to 30.”307 No one ever discussed these memo book entries with him.308 In fact, throughout his many years as a police officer, no superior ever told him that his activity log entries concerning stops were insufficient.309
Some supervisors are not even aware that officers are required to record the factors justifying a stop in their memo books. Sergeant Michael Loria could not remember ever being told in training that officers should record more information in their memo books than appears on the UF-250.310 In addition, Chief Esposito openly expressed resistance to the policy of requiring officers to state the justifications for a stop in their memo books, suggesting that the practice was “redundant many times” and interfered with an officer’s “ability to do police
306 3/27 Tr. at 1099–1100. Accord id. at 1141–1142 (B. Dennis). 307 Id. at 1101–1102; PX 19 (memo book). 308 See 3/27 Tr. at 1103. 309 See id. at 1100–1101. Similarly, Officer French did not believe he needed to state the reasons for a stop in his memo book, as long as he noted the suspected crime. See 4/17 Tr. at 3737. For numerous other examples of credible testimony concerning inadequate memo book entries, supervisors’ failures to discuss these deficiencies, and superiors’ failures to address the problem, see Pl. Findings ¶¶ 97, 99 (collecting sources). 310 See 4/17 Tr. at 3796–3797.
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work.”311
In fact, the NYPD has been aware for the last decade of a systematic failure by
officers to record the justifications for stops in their memo books. Each month, every
enforcement command is required to perform a self-inspection of a sample of twenty-five of its
UF-250s and corresponding activity log entries. As part of the self-inspection, the reviewer is
required to indicate whether, for each stop, the officer made an activity log entry detailing the circumstances of the stop.312
According to QAD, which is responsible for ensuring that the NYPD as an organization complies with its written policies and procedures,313 every patrol borough has failed every annual audit of activity log entries corresponding to stops for the last decade.314 Numerous
commanders acknowledged that they received QAD audits showing their officers’ failure to prepare activity log entries for stops, but did not correct the failure.315 Assistant Chief Thomas
Dale, the Commanding Officer of Patrol Borough Queens South, acknowledged that failure to
complete activity log entries for stops is “a serious problem,” but testified that he took no
311 4/9 Tr. at 2912. Accord id. (Chief Esposito testifying that “[i]n a perfect world, I think this is a hundred percent acceptable. But we’re not in a perfect world out there.”); id. at 2929 (Chief Esposito testifying that memo book entries providing more detail than a UF-250 would be “[f]or the most part” redundant, and that “if an officer checked off furtive movement,” that would be “enough” for him).
312 See PX 58, 71, 89 (Worksheets 802 and 802-A, and instructions for completing them). Reviewers are instructed that an activity log entry does not need to include any information about the reasons for a stop beyond what already appears on the UF-250. See 4/23 Tr. at 4645 (Cronin).
313 See 4/23 Tr. at 4624. 314 See Pl. Findings ¶ 197 (citing PX 450; DX G6); 4/23 Tr. at 4651 (testimony that any score below a three is considered failing). 315 See, e.g., 4/10 Tr. at 3213–3219 (Inspector Donald McHugh, Commanding Officer of 41st Precinct); 4/16 Tr. at 3527–3531 (Deputy Inspector Charles Ortiz, Commanding Officer of 43rd Precinct); Pl. Findings ¶ 198 (collecting sources).
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corrective actions even after every precinct in Queens South failed the QAD audit of activity log entries for three consecutive years.316 Failure on this scale indicates, in the words of plaintiffs’
police practices expert Lou Reiter, that “the operational way memo books are used in the field is
contrary to . . . all of the written training and all of the policy,” and the supervisors “are not holding their officers accountable for it.”317
On March 5, 2013, five years after the commencement of this litigation and two
weeks before the beginning of trial, Chief Hall circulated a memo requiring all patrol borough
officers to include nine categories of information in every activity log entry for a stop; to
elaborate the basis for a stop in the “Additional Circumstances/Factors” section of the UF-250;
and to photocopy every activity log entry for a stop and attach the photocopy to the UF-250 before submitting it to a supervisor.318 Just as I gave little weight to the equally ambitious memo
that Chief Hall circulated shortly before the beginning of the Ligon preliminary injunction hearing,319 I give little weight to the March 5 memo or to the City’s uncorroborated anecdotal evidence of compliance with it.320
316 PX 155 at 93–94, 118–120 (Dale deposition). 317 4/24 Tr. at 4845. Accord id. (Reiter testifying that “[i]t’s like everybody sticks their head in the sand and hopes that passing [a] memo up through the chain of command and back down will somehow change it.”). 318 See 2013 Memorandum of Chief of Patrol James Hall, DX J13. The nine categories of information are: “Date/time of stop; Location of stop; Suspect’s Last name, First name; Suspect’s pedigree; Suspected crime or offense (felony or penal law misdemeanor); Explanation of suspicion (looking into windows, pulling on doorknobs, etc[.]); Whether or not the suspect was frisked; Sprint/Job number; Disposition of stop (96, 92C, 93Q, etc.).” Id. 319 See Ligon, 2013 WL 628534, at *25 n.291. 320 See Def. Findings ¶ 54 (citing testimony of Chief Hall and Chief William Morris). This evidence included the review by NYPD personnel of a sample of forty UF-250s. According to the City’s witness, all forty were accompanied by memo book entries, but sixteen contained “either no entry or an inadequate entry regarding the reason for the stop” — the essential element in determining whether a stop was legally justified. 5/9 Tr. at 6578–6580. In addition,
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An untested, last-minute adjustment — even if undertaken in good faith — cannot undo ten uninterrupted years of willful disregard. I take the March 5 memo neither as evidence that the NYPD has solved the problem of documenting stops, nor as evidence of the NYPD’s commitment to finding a solution, but rather as a belated recognition of the obvious inadequacies of the existing system of documentation.321
Finally, I note that the NYPD has no meaningful procedures for auditing stop paperwork to monitor the constitutionality of stops. The City agreed to conduct regular audits of whether stops recorded on UF-250s were based on reasonable suspicion when it executed the Stipulation of Settlement in Daniels v. City of New York on September 24, 2003.322 After signing the settlement, however, QAD simply continued to use audit protocols that it had introduced in 2002. These protocols, which remain in effect today, require every command to conduct the monthly “self-inspection” described above, using two forms, Worksheets 802 and 802-A, which are then reviewed by QAD.323 The only arguably substantive element of these forms is a column on Worksheet 802 in which the reviewer is asked to note whether at least one
because plaintiffs were not given an opportunity to review the forty UF-250s and accompanying memo book entries, see id., it is possible that more than sixteen lacked adequate entries regarding the reason for the stop.
321 Cf. United States v. Oregon State Med. Soc., 343 U.S. 326, 333 (1952) (“It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.”).
322 See 9/24/03 Stipulation of Settlement, Daniels v. City of New York, No. 99 Civ. 1695, PX 114, at 6.
323 See PX 58, 71, 89 (Worksheets 802 and 802-A, and instructions); Finest Message Regarding Compliance with Operations Order 11 § 2 (12/26/02), PX 350 (ordering selfinspection based on Worksheets 802 and 802-A); 4/23 Tr. at 4630; Pl. Findings ¶¶ 108–121; Def. Findings ¶ 24.
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box on the UF-250 was checked under “What Were Circumstances Which Led To Stop?”324 In
other words, the Worksheets lead to a superficial review of whether paperwork was completed,
not a substantive review of whether a stop was constitutional. QAD’s annual audit of the selfinspections is similarly ineffective.325
Despite the obvious inadequacy of the QAD audits as a means to identify either unjustified stops or racial profiling,326 officials in the NYPD continue to defend the QAD audit process.327 Inspector Mary Cronin, the former Executive Officer and current Commanding
Officer of QAD, testified that the QAD audit worksheets allow reviewers to evaluate whether a
stop was based on reasonable suspicion, because any form on which at least one stop
circumstance has been checked — for example “furtive movements” as the sole basis for a criminal trespass stop — is sufficient “for purposes of [QAD’s] review.”328 This testimony
demonstrates the patent inadequacy of QAD audits. A review of whether a single stop factor has
324 See PX 89 at 2, 4. 325 See 4/23 Tr. at 4650 (Cronin). 326 See, e.g., 3/22 Tr. at 1053–1055 (Assistant Chief Diaz conceding that officers engaged in racial profiling are unlikely to write on a UF-250 “‘I stopped this person because they’re black’”). As early as 1999, Commissioner Safir recognized the inadequacy of relying solely on paperwork prepared by an officer to monitor the constitutional adequacy of the officer’s stops. See PX 46 at 48. In addition, NYPD commanders and supervisors testified at trial that UF-250s do not provide enough information to determine whether reasonable suspicion existed for a stop. See, e.g., 4/10 Tr. at 3207 (McHugh); Pl. Findings ¶ 118. Accord Def. Mem. at 7. 327 Defending the current paperwork-only audit process, Deputy Commissioner Farrell rejected a proposal to include field observations of stops in the audit. See 5/15 Tr. at 7297–7299. QAD is aware of practical methods for evaluating police conduct without relying purely on paperwork, such as the methods it uses to audit the treatment of crime complaints, and complaints about courtesy, professionalism, and respect. In both cases, QAD makes phone calls to a sample of civilians to evaluate their encounters with the police. See 4/24 Tr. at 4792 (Cronin); 5/15 Tr. at 7291–7293 (Farrell). 328 4/23 Tr. at 4640–4641, 4720–4721.
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been checked on a UF-250 is not an effective review of the constitutionality of a stop. b. Inadequate Supervision
As summarized above, the NYPD’s documentation provides an inadequate basis for monitoring whether officers are conducting unconstitutional stops. Nevertheless, the City argues that in practice, the NYPD identifies unconstitutional stops through “a chain of command of supervisors, namely, sergeants, lieutenants, and precinct commanders.”329 At trial, the City introduced a large volume of testimony and other evidence concerning the details of this chain of command, and the responsibilities of NYPD personnel at various ranks.330 Very little of this evidence was relevant, however, because very little of it concerned the supervision of the constitutionality of stops. In fact, the City notes only two concrete mechanisms for identifying unconstitutional stops: first, sergeants “routinely witness stops made by officers”; and second, sergeants “review their officers’ UF-250s and frequently discuss the underlying facts of stops with officers to determine whether an officer is able to articulate a proper basis for the stop.”331
The evidence showed that neither mechanism provides an effective means for monitoring the constitutionality of stops. With regard to sergeants witnessing stops, there was no quantitative evidence concerning how many of the 4.4 million stops during the class period were witnessed by sergeants or how many of the observed stops were self-initiated versus based

329 Def. Findings ¶ 47. Accord Pl. Findings ¶ 86; 4/9 Tr. at 2841–2842, 2919 (Chief Esposito testifying that supervisory review mitigates the risk posed by incomplete or inaccurate documentation of stops); id. at 2929–2930 (Chief Esposito testifying that he relies on supervisors as his “main . . . way of determining” whether the NYPD’s officers are acting in accordance with the policy against racial profiling and the policy of only making stops based on reasonable suspicion).

330 See, e.g., Def. Findings ¶ 47 (collecting some sources).

331

Id.

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on radio runs.332 More importantly, the evidence showed that sergeants do not effectively
monitor the constitutionality of stops even when they are present.333
With regard to supervisors’ review of stops after the fact, there are no written
policies requiring supervisors to evaluate the constitutionality of stops. The section of the Patrol
Guide containing the procedures for stops and frisks directs uniformed members of the service to
“[i]nform [the] desk officer, [in the] precinct of occurrence, of [the] facts [of the stop].”334 Chief
Giannelli explained that this requirement is satisfied when the officer submits a UF-250 to her
supervisor.335 Despite the fact that NYPD officials like Chief Esposito present supervisory
review as the central mechanism for monitoring the constitutionality of stops, the section of the
Patrol Guide describing the desk officer’s duty to review UF-250s contains no mention of a
332 As noted above, 78% of the stops during the class period were self-initiated rather than based on a radio run. See PX 417D.
333 Sergeant Stephen Monroe, when asked directly how he ensures “that officers under [his] supervision are conducting lawful stops based on reasonable suspicion,” responded : “I usually . . . observe the stops looking for safety and their approach of the suspect.” 4/29 Tr. at 5266–5267 (emphasis added). When asked what he discusses with officers regarding their stops, Sergeant Monroe again emphasized officer safety and effectiveness, making no mention of constitutionality. See id. at 5267; 4/17 Tr. at 3778. In addition, the supervisors who witnessed the unconstitutional stops in this case failed to recognize or respond to their unconstitutionality. See, e.g., 3/27 Tr. at 1145–1147, 1176–1179 (Sergeant Korabel testifying that he was supervising Officer Dennis in the anticrime unit during the stop of Devin Almonor); infra Part IV.D.1.b (concluding that Almonor’s stop and frisk was unconstitutional).
Sergeant Loria testified that during his twelve years as an anticrime sergeant, he was present “[v]ery frequently” for stops by his officers. 4/17 Tr. at 3755–3756, 3789–3792. Nevertheless, he testified that he had never told a single officer that a stop or frisk was improper. See id. at 3778. Sergeant Loria also testified at his deposition that as a sergeant, he did not review his officers’ UF-250s for reasonable suspicion, and that he could not recall anyone in the NYPD ever telling him to do so. See id. at 3770; 4/8 Tr. at 2706 (Officer Leek testifying that his supervising Sergeant never exited the police van during the February 24, 2011 stop of Clive Lino). See infra Part IV.D.2.d.
334 Patrol Guide 212-11, Stop and Frisk (7/18/03) (“P.G. 212-11”), PX 98 at 1; Patrol Guide 212-11, Stop and Frisk (5/24/02), Ex. 4 to Giannelli Dep.
335 See Giannelli Dep. at 166–167. Chief Giannelli also testified that he did not require desk officers to ask police officers about the facts of a stop. See id. at 168.
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review for constitutionality, or of any substantive review for that matter.336 In addition, while the
lesson plan for training newly promoted sergeants on stop and frisk mentions the need for
reasonable suspicion and the prohibition on racial profiling, the plan does not instruct sergeants
to perform any review of stops for constitutionality.337
The evidence also shows that in practice, supervisors do not review the
constitutionality of stops after the fact. Rather, supervisors review whether a UF-250 was fully
completed.338 Supervisors are not required to review activity logs alongside UF-250s,339 nor do
they routinely discuss the circumstances of a stop with the stopping officer in order to determine
whether the stop was justified.340
336 See P.G. 212-11 ¶ 10.
337 See Lesson Plan, Sergeants Leadership Course (4/30/09), DX R3; 4/29 Tr. at 5168–5170 (Chief James Shea unable to explain why, contrary to his testimony that sergeants are trained to review every street stop for reasonable suspicion, lesson plan does not instruct newly promoted sergeants to do this); 4/2 Tr. at 1937, 1939, 1951–1953 (Sergeant Richard Hegney testifying that he does not recall receiving any training regarding stop and frisk after he was promoted to sergeant in 2000). I also note that the Quest for Excellence program, as discussed above, does not require supervisors to review the constitutionality of officers’ stops. See supra Part IV.C.4.a; 4/15 Tr. at 3385–3390 (Deputy Commissioner Beirne conceding that nothing in Orders 49, 50, or 52 directs a supervisor to review stops for constitutionality).
338 See, e.g., Pl. Findings ¶ 94 (collecting sources); 4/17 Tr. at 3763 (Sergeant Loria’s deposition testimony that when he reviews UF-250s, he “make[s] sure that it’s signed and all the boxes are filled in,” but does not review it for anything else); 3/20 Tr. at 634 (Officer Edward Velazquez testifying that supervisors had only returned UF-250s to him based on incompleteness, such as failing to record the date); 3/22 Tr. at 986–990 (Sergeant Julio Agron ultimately conceding that he does not believe an Operation Impact sergeant is required to review his officers’ UF-250s at the end of a tour).
339 See, e.g., Pl. Findings ¶ 100 (collecting sources); 4/16 Tr. at 3522 (Deputy Inspector Ortiz testifying that he did not require supervisors to review activity logs alongside UF-250s).
340 See, e.g., Pl. Findings ¶¶ 95–96 (collecting sources); 3/20 Tr. at 606–607 (Officer Victor Marrero testifying that when a sergeant reviews a UF-250, the officer is usually present, but that the only question the sergeant asks is the time of the occurrence); 3/20 Tr. at 634 (Officer Velazquez testifying that no supervisor had ever questioned him about the circumstances of a stop based on a UF-250). In addition, supervisors do not notice stop patterns
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Alternately, the City suggests that Integrity Control Officers (“ICOs”) are
available to monitor the constitutionality of stops.341 ICOs are “the eyes and ears of the Precinct
Commander,” and they are tasked with performing various inspections and reviews to identify
misconduct by officers.342 While ICOs might in theory be well-positioned to review the
constitutionality of officers’ stops,343 there is no evidence that ICOs do so in practice, or are
instructed to do so through training or written policies.344 The detailed thirty-one-point list of an
ICO’s duties and responsibilities contains no mention of monitoring the constitutionality of
officer behavior in general or of stops specifically, nor does it require ICOs to review officers’
UF-250s or activity log entries for stops.345 Former Chief Giannelli testified that he expects
that suggest unconstitutionality. See Pl. Findings ¶ 87. For example, Lieutenant Telford testified that as an anticrime sergeant, he reviewed his officers’ UF-250s. However, he was unaware that two of his officers were among the four top issuers of UF-250s in the NYPD in the third quarter of 2009 — including Officer Gonzalez, who checked the same four boxes on 99% of his UF-250s. See 5/7 Tr. at 6314–6315. Sergeant Joseph Marino was unaware that Officer Dang, one of the anticrime officers under his supervision, was another of the officers who conducted the most stops in the third quarter of 2009. See 4/30 Tr. at 5555–5556.
341 See Def. Findings ¶ 48. 342 Giannelli Dep. at 47. See generally 4/16 Tr. at 3581–3582 (Lieutenant Enno Peters, ICO of the 28th Precinct, stating that ICOs are usually lieutenants, and assistant ICOs are usually sergeants). 343 For example, ICOs observe officers in the field responding to radio runs, and at least some ICOs review officers’ memo books. 344 For example, Lieutenant Cosmo Palmieri, ICO of the 43rd Precinct, testified that despite his regular field observations of officers, during his five years as an ICO he has never observed an officer perform a stop. See 4/17 Tr. at 3673. Lieutenant Peters testified at a deposition that as ICO of the 28th Precinct, he could not remember having ever discussed reasonable suspicion with members of the precinct. See 4/16 Tr. at 3583–3584. 345 See Patrol Guide 202-15, Command Integrity Control Officer (“P.G. 202-15”), DX F5. Paragraph 16 of P.G. 202-15 requires ICOs to inspect and sign the activity logs of sergeants, but not of officers, and not specifically in relation to stops. I note that the burden of carrying out the thirty-one duties listed on P.G. 202-15 make it highly unlikely that ICOs would have the time or resources to review the constitutionality of stops unless specifically trained and directed to do so.
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ICOs to review UF-250s to determine whether officers’ stops are based on reasonable suspicion.346 In practice, however, ICOs review UF-250s and officers’ activity logs solely for completeness, if at all,347 rather than for the constitutionality of the underlying stop.348
In sum, neither the NYPD’s review of stop documentation nor its supervision of officers provides an adequate mechanism for identifying unconstitutional stops. Consequently, the NYPD is unable to hold officers accountable for those stops or prevent them from happening in the future. I also note that the failure of supervisors and ICOs to effectively supervise the constitutionality of stops is not the result of oversight by subordinates, but rather stems from the failure of senior NYPD managers and officials to direct supervisors and ICOs to perform this task.349
5. Partially Inadequate Training The core constitutional standards governing stop and frisk are well established.350 Training officers to comply with these standards, however, is no simple task, because there are no mechanical rules for their application to the varied circumstances of an officer’s work. Viewed in light of this difficulty, the NYPD’s efforts to train its recruits have been largely
346 See Giannelli Dep. at 48–50, 106. 347 See 4/17 Tr. at 3675 (Lieutenant Palmieri testifying that as an ICO, he has not reviewed UF-250s). 348 See, e.g., 5/2 Tr. at 5692–5693 (Cirabisi); Pl. Findings ¶¶ 102–107. The City solicited lengthy testimony concerning the duties and activities of ICOs. See, e.g., Def. Findings ¶ 48 (collecting sources). As with so much of the City’s evidence concerning institutions at the NYPD, however, this testimony was largely irrelevant because it did not relate to the constitutionality of stops. 349 See, e.g., Pl. Findings ¶¶ 89, 91 (collecting some sources showing that high-level managers, such as precinct commanders, did not direct supervisors and ICOs to monitor the constitutionality of stops). 350 See supra Part III.
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adequate.351 The gravest problems in the NYPD’s stop and frisk practices stem not from inadequate training but from a divergence between the NYPD’s written training materials and the “operational policy” carried out in the streets.352
Nevertheless, plaintiffs accurately note several problematic and obvious omissions or errors in the NYPD’s training programs.353 Some of these flaws effectively encourage officers to commit constitutional violations, and the evidence in this case shows that predictably, such violation have in fact occurred on a widespread basis. The following are some of the problems I find in the written training materials.
First, the Police Student’s Guide’s training on reasonable suspicion explains “Furtive Behavior” as follows: “If an officer observes strange, suspicious, or evasive behavior, he or she may have reasonable suspicion. The officer’s experience and/or expertise are often taken into account in these situations.”354 The vagueness and overbreadth of this description invites officers to make stops based on “hunches,” in violation of Terry. Given the frequency with which Furtive Movements is checked (roughly 42% of forms), and the obvious risk that stops based merely on “strange, suspicious, or evasive behavior” may lack reasonable suspicion, the Guide’s description of furtive movements is inadequate.
The danger of this inadequate training is illustrated by the testimony of Officer Christopher Moran, who stopped David Ourlicht for walking in a suspicious way with an
351 See Def. Findings ¶¶ 43, 45 & nn.46, 48 (collecting sources). 352 The distinction between official policy and operational policy is common in the study of law enforcement. See 4/24 Tr. at 4834–4835 (Reiter). 353 See generally Pl. Findings ¶¶ 122–134. 354 Police Student’s Guide, Policing Legally: Street Encounters (July 2012) (“Student’s Guide: Street Encounters”), DX Q11, at 17.
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ostensible bulge under his winter clothing.355 Officer Moran testified that “people acting nervous” could “[o]f course” provide reasonable suspicion for a stop.356 Officer Moran also explained that “furtive movement is a very broad concept,” and could include “changing direction,” “walking a certain way,” “acting a little suspicious,” “making a movement that is not regular,” being “very fidgety,” “going in and out of his pocket,” “going in and out of a location,” “looking back and forth constantly,” “looking over their shoulder,” “adjusting their hip or their belt,” “moving in and out of a car too quickly,” “[t]urning a part of their body away from you,” “[g]rabbing at a certain pocket or something at their waist,” “[g]etting a little nervous, maybe shaking,” and “stutter[ing].”357 To the extent that Officer Moran views nervousness or fidgeting, standing alone, as an adequate basis for seizing, questioning, and potentially frisking a person under the Fourth Amendment, he is incorrect. But his view is also a natural response to the vague and overly broad description of furtive movement in the Police Student’s Guide. Misconceptions like Officer Moran’s are a predictable consequence of the training reflected in the Guide, and likely lead to unconstitutional stops.358
Second, the NYPD’s training on the identification of weapons invites unjustified stops based on “suspicious bulges” that are not in fact suspicious, and constitutionally unjustified frisks and searches based on objects that officers cannot reasonably suspect to be weapons. In
355 See infra Part IV.D.1.g. 356 4/18 Tr. at 4042 (Moran). 357 Id. at 4046–4049. 358 See infra Part IV.D.1.g. See also infra Part IV.D.1.b (unconstitutional Almonor stop based in part on “furtive movements”); 5/9 Tr. at 6431–6433 (Officer Dang explaining that “usually” a furtive movement is someone “hanging out in front of [a] building, sitting on the benches or something like that” and then making a “quick movement,” such as “bending down and quickly standing back up,” “going inside the lobby . . . and then quickly coming back out,” or “all of a sudden becom[ing] very nervous, very aware”).
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particular, the training draws attention to several “unusual firearms,” such as a gun shaped like a pen, a gun shaped like an old-model cell phone, and a folding gun that fits into a wallet.359 It is no doubt valuable for officers’ safety to know that such weapons exist.360 However, the outline of a commonly carried object such as a wallet or cell phone does not justify a stop or frisk, nor does feeling such an object during a frisk justify a search. The training materials are misleading and unclear on this point.361 The materials encourage officers to perform stops and frisks without reasonable suspicion based on the now-ubiquitous bulge created by a cell phone or other common objects — as was the case in the stops of Leroy Downs, Devin Almonor, Cornelio McDonald and Nicholas Peart,362 and was likely the case in the vast majority of stops involving suspicion that the suspect was carrying a weapon, based on the extremely low seizure rate.363
Third, more generally, the NYPD’s training materials fail to make clear the legal standard for when a frisk may be undertaken. Rather than simply stating that a frisk must be based on reasonable suspicion that a person is armed and dangerous,364 the training materials present a four-part rule that includes an invitation for officers to conduct frisks whenever “they
359 See Detective Benito Gonzalez, Characteristics of Armed Subjects (“Armed Subjects Powerpoint”), DX C8, at 44–57.
360 See 4/25 Tr. at 5040–5043 (Shea). 361 See Armed Subjects Powerpoint at 4; Lesson Plan, Firearms and Tactics Section (3/12) (“Firearms Lesson Plan”), DX W3, at 1, 20; 4/29 Tr. at 5176–5177 (Shea). 362 See infra Part IV.D.1.a–d (Leroy Downs frisked based on presence of keys, wallet and bag of cookies in his pocket; Officer Brian Dennis checked “suspicious bulge” on the UF250 after the fact, when Devin Almonor had only his cell phone in his pocket; Cornelio McDonald stopped based on “suspicious bulge” that turned out to be cell phone; Nicholas Peart stopped in August 2006 based on anonymous suspect description corroborated only by “suspicious bulge” that turned out to be cell phone). 363 See Fagan Rpt. 57, 64 tbl. 15. 364 See Johnson, 555 U.S. at 326–27.
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are in fear of their safety,” without clarifying that the fear must be both reasonable or related to a weapon.365 Based on this four-part rule, which officers have apparently internalized,366 it is not surprising that several of the individual stops in this case involved unconstitutional frisks,367 or
that the 2.3 million frisks during the class period resulted in the recovery of weapons only 1.5% of the time.368
Fourth, while the NYPD deserves praise for its use of scenarios and role playing
in training on the legal justification for stops, plaintiffs correctly observe that these exercises are exclusively based on radio runs rather than self-initiated stops.369 As noted above, 78% of stops during the class period were self-initiated,370 and self-initiated stops create a different set of
constitutional risks than stops based on suspect descriptions from a radio run. Just as ICOs
observing stops based on radio runs cannot provide adequate monitoring of self-initiated stops,
365 Firearms Lesson Plan at 2. If an officer’s fear for her safety is unrelated to any suspicion that the stopped person may be armed, there is no reason to conduct a protective frisk for weapons, and such a frisk would be unjustified. For example, an officer may not frisk a stopped person simply because the stopped person is physically imposing, or because the stop took place in a dangerous neighborhood. The only justification for a protective frisk is to discover weapons. See generally supra Part III.B.3 (noting that the frisk standard in CPL § 140.50 does not reflect the constitutional standard for a frisk).
366 See, e.g., 4/17 Tr. at 3867 (Officer Mahoney, who frisked Downs, testifying that the standard for whether a stopped person may be frisked is “[w]hether it was a violent crime or you have reasonable . . . fear for your safety or the safety of . . . [a] civilian”); 4/10 Tr. at 3117–3120 (Officer Luke White testifying, although somewhat unclearly, that his frisk of Dominique Sindayiganza was justified based on reasonable suspicion that Sindayiganza had committed aggravated harassment, even though this is not a violent crime and Officer White did not suspect that Sindayiganza had a weapon). See also infra Parts IV.D.1.a, IV.D.2.a (detailing Downs’s and Sindayiganza’s stops and frisks).
367 See infra Parts IV.D.1–2. 368 See DX V14-A; DX V14-C. 369 See Pl. Findings ¶ 126; 4/25 Tr. at 5161–5162 (Shea). 370 See PX 417D.
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role playing that focuses exclusively on radio runs is inadequate to train officers about the
application of constitutional standards to self-initiated stops.
Fifth, the NYPD’s training regarding racial profiling does not clearly define the
difference between the constitutionally permissible use of race in a stop based on a specific,
reliable suspect description, and the constitutionally impermissible targeting of racially defined groups for stops in general.371 Because the NYPD has an unwritten policy of conducting the
latter type of stops, as described above, this omission is not surprising.
Sixth, I have already noted in another opinion the constitutional infirmities in the
NYPD’s stop and frisk refresher course at the Rodman’s Neck training center in the Bronx, as well as other recently introduced materials.372 In that opinion, I expressed concern that the recent
training materials misstate what constitutes a stop, which likely leads some officers not to
prepare UF-250s in cases when they wrongly conclude that the encounter did not rise to the level of a stop.373 Although Chief Shea testifed that the Rodman’s Neck training was developed in
part because the NYPD wants officers to fill out UF-250s more selectively, a more significant concern is the failure of officers to fill out UF-250s after encounters that clearly were stops.374 In
371 See generally infra Part V.B.1 (conclusions of law regarding racial profiling). For the NYPD’s racial profiling training, see, for example, Police Student’s Guide, Policing Impartially, DX V11, at 3–7, 12–14 (appropriately drawing attention to latent bias even among well-intentioned officers, but offering an inadequately narrow definition of racial profiling: “when a police officer decides to stop and question a person when the sole rationale for the contact is the race, ethnicity, or national origin of the person being stopped” (emphasis added)).
372 See Ligon, 2013 WL 628534, at *25, *35–39; Pl. Findings ¶¶ 130–131. I stated in that opinion that more than three thousand officers had attended the training since its development in 2012. See Ligon, 2013 WL 628534, at *25. More than six thousand officers have now attended. See 4/25 Tr. at 5121 (Shea).
373 See Ligon, 2013 WL 628534, at *38. 374 See 4/25 Tr. at 5126, 5151–5154 (Shea). The individual stops in this case show that officers frequently fail to fill out UF-250s after encounters that were clearly stops. See, e.g., infra Part IV.D.1.a (no UF-250 for Downs stop); infra Part IV.D.1.h (no UF-250 for February 5
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addition, testimony in the present case confirmed that officers misunderstand what constitutes a
stop based on training materials used at Rodman’s Neck.375
6. Inadequate Discipline
As described in earlier sections, the NYPD has chosen to document, review, and
supervise its officers’ stops in such a way that unconstitutional stops are unlikely to be
identified, and as a result the responsible officer cannot be held accountable. Moreover, when
confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of
the evidence, refuses to impose meaningful discipline, and fails to effectively monitor the
responsible officers for future misconduct.
Civilian complaints are one source of notice to the NYPD that an unconstitutional
stop may have taken place. Anyone can make a complaint against an NYPD officer for
misconduct through a variety of channels, including the CCRB, an all-civilian municipal agency
tasked with investigating allegations against the NYPD of excessive force, abuse of authority,
Lino stop). See also Ligon, 2013 WL 628534, at *11, *20 & n.241. 375 See 4/29 Tr. at 5212 (Detective Damian Vizcarrondo testifying that an encounter
rises to the level of a stop not based on whether the stopped person is free to leave, but based on whether the officer has reasonable suspicion); 4/25 Tr. at 4971 (Lieutenant James McCarthy testifying to the same). The Rodman’s Neck training materials, which are reflected in Detective Vizcarrondo’s and Lieutenant McCarthy’s testimony, teach the following lesson: if an officer has an encounter with a civilian and is wondering whether to fill out a UF-250, the officer should ask himself whether the encounter was based on reasonable suspicion — not whether a reasonable person would have felt free to leave. This approach is legally incorrect and will predictably lead to officers not filling out UF-250s after encounters that began based on something less than reasonable suspicion, but that in retrospect involved a level of coercion amounting to a stop. Chief Shea argued that it makes more sense to train officers never to conduct stops without reasonable suspicion than it does to train officers to prepare a UF-250 even when a stop was not based on reasonable suspicion. See 4/25 Tr. at 5119–5124 (Shea). But officers can and should be trained to do both. That is, they should be trained never to conduct stops without reasonable suspicion and trained to recognize when an encounter that was intended to be a “Level 1” request for information or “Level 2” inquiry under De Bour in fact resulted in a Terry stop. Whenever this occurs, whether intentionally or unintentionally, the encounter must be recorded as a stop.
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discourtesy, or offensive language (collectively referred to as “FADO”);376 the Bloomberg administration’s “311” information and government services hotline; or by contacting the NYPD directly.377 Of course, a complaint made to the NYPD may not even be recorded if the officer receiving that complaint decides to ignore it — as Officer Anthony Moon did in response to Downs’s complaint.378 It is impossible to know how often the NYPD simply disregards complaints.
The correct practice when the NYPD receives a complaint regarding a stop is to either forward the complaint to the CCRB, or, if the complaint falls outside of the FADO categories, to the Investigative Review Section of the Office of the Chief of Department (“OCD”).379 The NYPD’s Internal Affairs Bureau (“IAB”) can, in theory, initiate its own investigations into alleged misconduct based on media reports,380 although no evidence was offered that IAB has in fact done this in response to the media reports over the last decade concerning racially biased and/or constitutionally unjustified stops and frisks.
Once the CCRB receives a complaint of an unconstitutional stop, CCRB investigators will generally “interview complainants, witnesses, and officers and determine
376 Allegations of improper stops or frisks fall within the category of “abuse of authority” complaints. See 4/15 Tr. at 3284 (Joan Thompson, Executive Director of CCRB); CCRB, January–June 2012 Report (“CCRB June 2012 Report”), DX V13, at 4 (defining “Abuse of Authority”).
377 See Def. Findings ¶ 25. 378 See infra Part IV.D.1.a. Downs took extraordinary measures to identify the police officers despite the lack of any official record of the stop. 379 See Def. Findings ¶ 25 & n.34 (noting that the NYPD refers all FADO complaints to the CCRB, including “[s]earch and seizure allegations relating to stop, question, and frisk,” and refers “the remainder of the complaints” to the OCD); id. ¶ 32 (noting that the OCD processes a small number of “complaints featur[ing] allegations related to” stop and frisk). 380 See id. ¶ 25.
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whether allegations are substantiated, unsubstantiated, exonerated, or unfounded.”381 A complaint is “substantiated” if, based on the preponderance of the evidence, “[t]here is sufficient credible evidence to believe that the subject officer committed the act charged in the allegation and thereby engaged in misconduct.”382 A complaint is “unsubstantiated” if there is insufficient evidence to determine whether the officer committed misconduct.383 The investigator’s decision will be reviewed by a supervisor and then passed along to a three-member panel, which makes the final decision after reviewing the evidence. If the panel finds a complaint substantiated, the case is forwarded to the NYPD’s Department Advocate’s Office (“DAO”), which serves as an internal prosecutor for officer misconduct at the NYPD.384
It is at this stage that the CCRB complaint process founders. Rather than accepting the CCRB’s findings, the DAO conducts its own review of the materials that the CCRB’s three-member panel has just reviewed. Instead of applying the well-established “preponderance of the evidence” standard like the CCRB, the DAO applies its own evidentiary standards. Deputy Commissioner Julie Schwartz, an attorney who has lead the DAO since 2005, testified that if the CCRB bases its findings on a credibility determination in favor of a witness and against a police officer, the DAO will as a rule reject the CCRB’s findings. In Deputy Commissioner Schwartz’s words, it “doesn’t matter” that the CCRB has seen and heard the
381 Def. Findings ¶ 26. 382 CCRB June 2012 Report at 4. 383 See id. An officer is “exonerated” if she committed the alleged acts, but the acts “were determined to be lawful and proper,” and an allegation is “unfounded” if there is sufficient evidence that the officer did not commit the alleged act. Id. Accord 4/15 Tr. at 3272 (Thompson). 384 See Def. Findings ¶ 26; CCRB, 2011 Annual Report (“CCRB 2011 Annual Report”), DX P12, at 17–18 (describing prosecutorial function of the DAO). In the first half of 2012, the CCRB closed 2,518 cases. Of the 27% of cases closed after full investigations, 11% resulted in a finding of substantiated misconduct. See CCRB June 2012 Report at 10.
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witnesses, while the DAO has not, “[b]ecause if one witness says A happened and the other witness says B happened,” the complaining witness cannot satisfy the preponderance of the evidence standard: “there is nothing that brings [the allegation] to 51 percent.”385 In this “he said . . . she said” situation, the DAO will only accept the CCRB’s findings if there is “a little corroboration,” like visible marks on a complainant alleging overly tight handcuffs.386
Deputy Commissioner Schwartz stated further that “in any stop-and-frisk case in which you only have the complainant’s version and the officer’s version, the department cannot pursue discipline.”387 It appears that in the eight years that she has led the DAO, Deputy Commissioner Schwartz has consistently applied the unique evidentiary standard that a complainant’s testimony can never be sufficient standing alone.
Deputy Commissioner Schwartz also testified that the CCRB and the OCD apply the same evidentiary standard,388 although she was unable to cite any source articulating that standard. When pressed, Deputy Commissioner Schwartz changed her testimony and stated that in some instances a complainant’s word is enough to sustain a complaint.389 I do not find this later testimony credible.390 Instead, I find that the DAO follows a policy of rejecting CCRB determinations when they are based only on the uncorroborated testimony of a civilian witness. Deputy Commissioner Schwartz testified that she was not concerned about allegations that the
385 4/22 Tr. at 4485–4486. 386 Id. at 4486–4487. 387 Id. at 4508. 388 See id. at 4484, 4486–4487, 4508. 389 See id. at 4508–4511. 390 Deputy Commissioner Schwartz’s later testimony also conflicted with her deposition testimony in another case. See id. at 4511–4512.
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DAO is biased in favor of police officers.391
Because many of the complaints related to stop and frisk involve precisely the
scenario described by Deputy Commissioner Schwartz, the DAO’s evidentiary theory seriously
undermines the NYPD’s ability to hold officers accountable for unconstitutional stops or frisks.392 In light of this evidentiary standard, as well as other indications of the DAO’s resistance to evidence of unconstitutional stops provided by the CCRB,393 it is not surprising that
the DAO frequently declines to pursue any discipline against officers who have been the subject
of substantiated CCRB complaints. Between 2007 and 2011, the DAO declined to pursue
discipline in between 16% and 36% of the substantiated complaints forwarded by the CCRB, and in 2012 the percentage of substantiated cases resulting in no discipline rose again.394 In
addition, the NYPD consistently downgrades the discipline recommended by the CCRB,
imposing only instructions — the least serious form of discipline — in the majority of cases in most years.395 The DAO’s frequent rejection of the CCRB’s disciplinary recommendations has
391 See id. at 4512–4513. 392 See id. at 4481–4482, 4485–4486, 4496; 4/15 Tr. at 3289, 3292 (Thompson). 393 Deputy Commissioner Schwartz also testified that the law governing search and seizure, and especially De Bour, is not “clearly established, well-articulated, and understandable,” and when an officer violates an unclear law like De Bour unintentionally, the CCRB should consider the officer’s “good faith” in its credibility determination. 4/22 Tr. at 4513–4521. In addition, she testified that when the CCRB has failed to identify an officer by name and has not conducted a show-up or a photo array, the DAO will dismiss the case rather than attempting to determine the identity of the officer based on specific identifying information in the CCRB’s findings. See id. at 4484–4485. 394 See CCRB 2011 Annual Report at 17; CCRB, Police Department Discipline, DX U13. These figures exclude the small number of cases where the statute of limitations had expired or the officer resigned before the NYPD could take action. Several officers testified that they were never disciplined even after the CCRB substantiated complaints against them. See Pl. Findings ¶¶ 139–141 (collecting sources). 395 See 4/15 Tr. at 3294 (Thompson); CCRB 2011 Annual Report at 18, tbl. 30. Instructions as the most common form of discipline in every year. Chief Hall testified that an
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likely undermined public confidence in the CCRB and discouraged the filing of complaints —
many of which may have been meritorious.396
The relatively few stop complaints that pass through the OCD are no more likely
to result in officer discipline than those processed by the CCRB and the DAO.397 Despite the
fact that the OCD is apparently the only entity responsible for addressing civilian complaints of
racial profiling, its system for categorizing and tracking complaints contains no tracking code for
either stop complaints or complaints of racial profiling.398 Not surprisingly, the evidence showed
that the OCD has been ineffective in monitoring and imposing discipline in response to
allegations of racial profiling. For example, the OCD received an allegation that Officer
officer who engages in stops that are not based on reasonable suspicion could be subjected to “incredibly severe discipline,” up to and including termination. 5/16 Tr. at 7628. When asked on cross-examination whether he had personal knowledge of any officer being subjected to such discipline for a stop lacking reasonable suspicion, Chief Hall said that he did not. See id. at 7629.
396 See 3/19 Tr. at 345 (Nicholas Peart testifying that after his first CCRB complaint was not substantiated, he did not file any CCRB complaints in response to later stops because he did not believe that the CCRB would do anything). See also Pl. Findings ¶ 155 (collecting sources indicating the DAO’s awareness of longstanding public concerns that the NYPD does not take the CCRB’s recommendations seriously); id. ¶ 156 (noting that even after the NYPD agreed in 2012 to allow CCRB attorneys to prosecute a small category of serious police misconduct cases, they can only do so at the discretion of the Police Commissioner). The City’s proposed findings describe at great length the NYPD’s performance monitoring system, which tracks officers who have received multiple substantiated CCRB complaints. See Def. Findings ¶¶ 36–42; Pl. Findings ¶ 138. However, this system is ineffective for monitoring unjustified stops because of the low likelihood that a wrongfully stopped person will have the knowledge and take the time to file a CCRB complaint. The likelihood of multiple complaints against the same officer is even lower.
397 See Pl. Findings ¶¶ 142–147 (collecting sources).
398 See 4/18 Tr. at 3962–3968, 3981, 4013 (Inspector McAleer). In addition, there was evidence that complaints of racial profiling made during stops are not conveyed to the OCD. See Tr. 5/7 at 6307, 6332–6333 (Lieutenant Telford testifying that as an anticrime supervisor in 2009, he was not concerned after Officer Gonzalez submitted a UF-250 indicating that a black male he had stopped had asked: “Why don’t you stop other people?”); PX 557 at *15999–16000.
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Jonathan Rothenberg stopped and arrested someone based on racial profiling a year before his stop of Ian Provost,399 yet he was never questioned about the allegation,400 and the NYPD is unable to determine whether an investigation ever occurred.401 The OCD’s inadequate response to civilian complaints of wrongful stops is all the more troubling because the OCD receives most of the racial profiling complaints that are addressed either to the CCRB or the NYPD.402
7. Ongoing Notice of Constitutional Violations The 1999 AG Report put the NYPD on notice that its stop and frisk practices were resulting in constitutional violations. Despite that notice, senior NYPD officials significantly increased the risk of constitutional violations by applying pressure throughout the chain of command to raise the number of stops without imposing a countervailing pressure to ensure their constitutionality, and without instituting adequate supervisory, monitoring, or disciplinary procedures. This section describes the various ways the NYPD has continued to receive notice since 1999 of widespread constitutional violations in its practice of stop and frisk. The NYPD has received thorough and consistent notice of constitutional problems in its stop practices from multiple sources, including the media, community members, community and legal organizations, individual police officers, and the class members and attorneys in this case. As Reiter testified, the prominent media coverage of complaints about baseless and racially motivated stops would have given “any reasonable police department”

399
frisk).

See 4/17 Tr. at 3822 (Rothenberg); infra Part IV.D.1.f (detailing Provost stop and

400 See 4/17 Tr. at 3820, 3825 (Rothenberg).

401 See 4/30 Tr. at 5385 (stipulation).

402 See, e.g., 4/18 Tr. at 3962–3963 (Inspector Helen McAleer, OCD, testifying that CCRB forwards non-FADO complaints to OCD, including racial profiling complaints, of which there have been “[v]ery few”); 4/15 Tr. at 3271 (Thompson testifying that the CCRB sometimes forwards racial profiling complaints to the OCD).

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notice of the need “to take a look at” these issues.403 In fact, Chief Esposito is aware of media reports that the NYPD racially profiles young black and Hispanic males in its stop activities, and has personally heard complaints from community organizations, civil liberties groups, and elected officials about racial profiling in stops.404 Deputy Chief Marino testified that the NYPD’s stop and frisk practices are “always a concern and a complaint in any precinct I’ve worked in,” and that community leaders and community members had complained to him about suspicionless stops and frisks.405 Similarly, Inspector Lehr has heard complaints from black residents about being stopped for no reason, and has witnessed demonstrations in overwhelmingly black precincts that raised concerns about stop and frisk and racial profiling.406 Chief Morris testified that he, too, had heard complaints from individuals who felt they were stopped for no reason.407 Chief Shea testified that when members of the community participate in the multicultural immersion course for newly graduated officers, community leaders have repeatedly shared complaints involving stops based on racial profiling.408 Similarly, Chief Shea testified that when he was a precinct commander, “there were occasions when community members might come to a community meeting and claim a family member or themselves was the subject of police action and they fear it was influenced by their race.”409 Despite this
403 4/24 Tr. at 4878. 404 See 4/10 Tr. at 3023–3027. Chief Esposito also testified that he has been aware of public controversies concerning street encounters between NYPD officers and blacks and Hispanics since at least 2000, when he became Chief of Department. See 4/9 Tr. at 2794–2796. 405 3/22 Tr. at 931. 406 See 4/30 Tr. at 5410, 5429–5430, 5434–5435. 407 See 5/10 Tr. at 6633. 408 See 4/25 Tr. at 5081. 409 Id. at 5081–5082.
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extensive evidence, Chief Esposito and other NYPD officials testified that they had never heard an individual complain about being stopped based on his race.410 I do not find this testimony
credible given the other testimony in this case and the widespread public concern regarding racially biased policing by the NYPD.411 In any event, whether or not high officials heard
individual complaints is immaterial, given the many other sources of notice discussed in this
section.
In addition to receiving notice from the public and community organizations, the
NYPD has been apprised of unconstitutional practices by some of its own officers. In 2009, Officer Polanco delivered an anonymous letter412 to his ICO, reporting that officers were
engaging in racial profiling and other misconduct toward minority communities:
[W]e were handcuffing kids for no reason. They would just tell us handcuff them. And boss, why are we handcuffing them? Just handcuff them. We’ll make up the charge later.
Some of those kids were not doing anything. Some of those kids were just walking home. Some of those kids were just walking from school.413
In his letter, which he believed would be forwarded to IAB, Officer Polanco described the following
incident, from 2009:
I remember one incident where one kid — and I reported this — they stopped
410 See, e.g., 3/22 Tr. at 1055–1056 (Diaz testifying that he is not sure); 4/10 Tr. at 3025–3026 (Esposito); 4/30 Tr. at 5434 (Lehr); 5/9 Tr. at 6511 (Holmes); 5/10 Tr. at 6633 (Morris); Def. Findings ¶ 23.
411 See, e.g., 5/14 Tr. at 7174 (Deputy Commissioner Farrell testifying that he was aware in early 2007 of “concerns raised by [some] members of the public that the NYPD may be engaging in racially biased policing”).
412 When asked why he submitted the letter anonymously, Officer Polanco explained that he was worried by the adverse consequences Officer Schoolcraft suffered after reporting the alleged manipulation of crime statistics. See 3/20 Tr. at 453.
413 3/20 Tr. at 450, 453, 508–509. The letter does not appear in the record. See id. at 450, 661; 3/19 Tr. at 435–436.
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his brother. He was 13. And he was waiting for him from school at the corner to bring him home. When he came to us, the officer — Officer, what’s wrong with my little brother? Was he acting out? He wind[s] up with handcuffs too. For simply asking what was going on with his brother.414
Officer Polanco also reported in the letter that on more than one occasion, he was required to
drive on patrol with supervisors who directed him to stop individuals without what he believed
to be reasonable suspicion. A supervisor would point to a “group of black kids or Hispanic kids
on the corner, in the park, or anywhere,” and direct Officer Polanco to “just go grab, go 250
them, go summons them. Sometimes they will ask me to summons them. We will ask the
supervisor why. And they will say unlawful assembly or something like that . . . [b]ecause there’s more than three of them on the corner.”415
After his initial letter in 2009, Officer Polanco anonymously called IAB to
express his concerns regarding the treatment of minority youths and the manipulation of crime statistics.416 Finally, Officer Polanco gave IAB the recordings played at trial, which corroborated
his testimony about institutional pressure to meet target numbers of enforcement activity by making stops and arrests without an adequate legal basis.417
414 3/20 Tr. at 450-451, 509. See also id. at 460–461 (Officer Polanco testifying that his letter to IAB stated the address, date, and other information concerning the encounter with the thirteen-year-old).
415 Id. at 457–458. See also id. at 459–460 (Officer Polanco testifying that after an unjustified stop, supervisors instructed him about which boxes to check on the UF-250, including High Crime Area and Furtive Movements).
416 See id. at 455–456. 417 See id. at 462–464. For a summary of some of Officer Polanco’s recordings, see supra Part IV.C.2. Eventually, Officer Polanco abandoned his anonymity and participated in a televised interview. See 3/20 Tr. at 515–516. After the interview aired in March 2010, IAB charged him with perjury. The charge was based on an incident described in Officer Polanco’s complaint to IAB. Officer Polanco stated that he was once instructed to issue a summons to someone for walking a dog without a license, even though he had not seen a dog, and that he obeyed the instruction. See id. at 451–452, 540. While Officer Polanco was charged with perjury, the supervisor who issued the instruction was promoted. See id. at 540.
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CCRB complaints regarding stop and frisk, discussed above, provided a further
source of ongoing notice to the NYPD.418 In addition, the NYPD has received mounting
evidence regarding unconstitutional stops through the proceedings in Daniels v. City of New
York, filed in 1999;419 this case, filed in 2008;420 and the two related stop and frisk cases, Davis v.
City of New York and Ligon v. City of New York, filed in 2010 and 2012, respectively.421
The City attempts to rebut evidence of notice by pointing to a 2007 report by the
RAND Corporation that found little evidence of pervasive racial profiling in the NYPD’s
pedestrian stop and frisk activity.422 But the RAND study used violent crime suspect data as its
benchmark, which is problematic for reasons discussed at length in the section on expert
I note that Officer Craig Matthews has alleged in another case that the NYPD retaliated against him for complaining to superiors about “‘a system of quotas mandating numbers of arrests, summonses, and stop-and-frisks’” that was allegedly introduced in 2008. See Matthews v. City of New York, No. 12 Civ. 1354, 2013 WL 3879891, at *1 (S.D.N.Y. July 29, 2013) (quoting Complaint ¶ 2). Officer Matthews’ allegations of retaliation echo Officer Polanco’s allegations. Compare 3/20 Tr. at 575–576 (Officer Polanco testifying that footpost assignment was punitive for someone with his seniority), and 3/21 Tr. at 727, 789 (Officer Serrano testifying to same), with Complaint ¶ 21, Matthews, 2013 WL 3879891 (describing footpost assignment as punitive). While recognizing that “as a matter of fact, Officer Matthews’ speech had undeniable value to the public,” the Court granted summary judgment to the City based on First Amendment grounds unrelated to the substance of Officer Matthews’ allegations. Matthews, 2013 WL 3879891 at *19.
418 See 3/28 Tr. at 1424–1425 (Officer Hernandez testifying regarding CCRB complaints about his stop activity).
419 See Daniels, No. 99 Civ. 1695. See also 4/9 Tr. at 2800–2801 (Chief Esposito testifying that, as of 1999, he was aware of the allegations in Daniels of racial profiling and stops and frisks that lacked reasonable suspicion).
420 I note that plaintiffs originally intended to pursue this case as a challenge to the NYPD’s non-compliance with the Daniels settlement.
421 See Davis, No. 10 Civ. 0699; Ligon, No. 12 Civ. 2274. 422 Def. Findings ¶ 20. See RAND REPORT. I note that the City only relies on the RAND Report as proof that it lacked notice of racially motivated stops, but not that it lacked notice of stops made without reasonable suspicion. See Def. Findings ¶ 20. I also note that the RAND Report was admitted only for the purpose of notice, not for the truth of its conclusions.
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testimony.423 As a result, the Report concluded that the NYPD’s stop patterns are racially neutral
because the people stopped by the NYPD resemble the suspects in reported violent crimes —
even though less than a quarter of stops are based on suspicion of violent crimes,424 and even
though blacks are more highly represented in the violent crime suspect data than in the suspect
data for other types of crime.425 Nonetheless, the Report cautioned that the use of benchmarks
“can either detect or hide racial bias due to unobserved or unmeasured factors that affect both
the racial distribution that the benchmark establishes and the racial distribution of the stops.”426
Moreover, even if the NYPD did not question the Report’s choice of benchmark,
the Report concluded that “for some particular subsets of stops, there are racial disparities, and,
423 See supra Part IV.B.3.
424 See 4/19 Tr. at 4302 (Assistant Commissioner McGuire); Fagan Rpt. apps. C4–C6 (noting that 15% of stops from 2004 to 2009 were based on suspicion of violent crime); Fagan 2d Supp. Rpt. app. B tbl. 2 (noting that 23% of stops from 2010 to 2011 were based on suspicion of violent crime). The earlier chart shows that 15% of all UF-250s from 2004 to 2009, including those that failed to state a specific suspected crime, were based on suspicion of a violent crime; by contrast, the later table appears to show that 23% of the UF-250s from 2010 to 2011 containing a codable suspected crime were based on suspicion of a violent crime. Compare Fagan Rpt. app. C4–C5 noting that the suspected crime on 18% of UF-250s was uncodable or otherwise erroneous), with Fagan 2d Supp. Rpt. app. B tbl. 2 (not including UF-250s with erroneous crime codes in any category). Thus, the 15% figure appears to be a more accurate indication of the percentage of stops that are based on suspicion of a violent crime.
425 See RAND REPORT at 19 (noting that “black suspects were described in 69 percent of all violent-crime suspect descriptions”); Fagan Rpt. at 76 tbl. 18 (revealing, apparently based on updated data, that the suspect’s race was black in 73% of the violent crime reports in 2006 indicating a suspect’s race, versus 54% for non-violent crimes). The RAND Report’s claim that black suspects were described in 69% of all violent-crime suspect descriptions in 2006 is not strictly accurate, because no race was indicated in 47% of those complaints. See Fagan Rpt. at 76 tbl. 18, 77 (noting that contrary to the language in the RAND Report, black was in fact “identified as the suspect’s race in only 38.50% of all violent crime complaints . . . in 2005,” once the complaints lacking race data are included). As Dr. Fagan testified, the lack of race information in 47% of the complaints further undermines the reliability of the 2006 violent crime suspect data as a benchmark. See 4/4 Tr. at 2266–2268; Fagan Rpt. at 75–77.
426 RAND REPORT at 19 (emphasis added).
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in some boroughs for some outcomes, the disparities are fairly large” — such as in Staten Island for frisks of blacks, and Brooklyn South for the use of force against blacks.427 The Report
recommended a “closer review” of stop outcomes in these boroughs, which was never carried out.428 The NYPD also failed to effectively implement other recommendations in the Report.429
In light of these warnings and recommendations, the NYPD’s reliance on the RAND Report as
proof that its stops are racially neutral was and is unreasonable. In sum, the numerous sources
discussed above were more than adequate to put the NYPD on notice that its officers were
engaging in racially motivated stops, and nothing in the RAND report justified ignoring those
clear signs.
D. Individual Stops
Plaintiffs offered evidence from twelve individuals regarding nineteen stops. In
twelve of those stops the plaintiff testified as did some or all of the police officers involved in
the stop. Evaluating whether these stops — and often frisks — complied with the Fourth
Amendment turned, in large part, on the credibility of the witnesses. In some cases the
427 Id. at 44. 428 See 4/9 Tr. at 2830–2831 (Esposito); 5/14 Tr. at 7121 (Deputy Commissioner Farrell testifying that “it was our conclusion that the differences that did exist were quite small”). Throughout his testimony, Deputy Commissioner Farrell refused to acknowledge the validity of statistical evidence of racial disparities in stops and stop outcomes, no matter how large or persistent the disparities. See, e.g., 5/15 Tr. at 7248–7256. 429 See RAND REPORT at 44–46. For example, the NYPD began a pilot project to distribute information cards to stopped pedestrians, as recommended by the RAND Report. See 5/14 Tr. at 7106–7107; DX A8 (tear-off card used in pilot project). Although Deputy Commissioner Farrell testified that the pilot project had been expanded citywide, none of the individuals stopped in this case testified to receiving a card, and the card itself does not provide a number for making complaints to the CCRB or the NYPD. Instead, the card states: “For more information . . . www.nyc.gov/nypd,” and directs recipients of the card to call a toll-free number or 311 with tips about illegal handguns. DX A8. See also Pl. Findings ¶¶ 179–182 (collecting sources regarding the NYPD’s failure to implement the RAND Report’s recommended early warning system for officers who overstop minorities).
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testimony of the plaintiff and the officers was irreconcilable, and I was required to accept one version and disregard the other.
In the remaining seven stops, no officer testified — either because the officers involved in the stop could not be identified or, in one case, because the officers identified dispute that the stop ever occurred. In the majority of these cases the plaintiff’s testimony was either not sufficiently credible or lacked sufficient detail to establish that the stop was unconstitutional. In others, I found the plaintiff’s testimony sufficiently credible and sufficiently detailed to make a determination about the constitutionality of the stop. I recognize the dilemma posed by making findings based on only one side of the story, particularly given the NYPD’s apparent good faith efforts to locate the officers involved. However, finding a failure of proof in all stops where no officer was identified would create a perverse incentive for officers not to record stops where the basis for those stops or the police conduct during the stop was clearly problematic, which would immunize the most egregious stops from scrutiny. This appears to be what happened in the stop of Leroy Downs, discussed below, and it was only through his extraordinary persistence that the officers involved were identified.
Evaluating the police conduct in each of these stops is an imperfect science. There is no objective contemporaneous recording of the stop — either audio or visual. I am relegated to finding facts based on the often conflicting testimony of eyewitnesses. The task is particularly challenging where everyone who testified had an interest in the outcome, which may have, consciously or otherwise, affected the veracity of his or her testimony. I understand that a judge reviewing the facts in hindsight is in an entirely different position from officers on the beat making split-second decisions in situations which may pose a danger to themselves and others. With this in mind, I have endeavored to exercise my judgment faithfully and impartially in making, as I am required to do, the following findings of fact with respect to each of the nineteen
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stops at issue.430 I have placed each stop in one of three categories: (1) unconstitutional stop and frisk (if frisk occurred); (2) unconstitutional frisk only; (3) insufficient evidence to find that the stop or frisk was unconstitutional.
1. Unconstitutional Stop and Frisk a. Leroy Downs i. Findings of Fact
Leroy Downs is a black male resident of Staten Island in his mid-thirties.431 On the evening of August 20, 2008, Downs arrived home from work and, before entering his house, called a friend on his cell phone while standing in front of a chain link fence in front of his house. Downs used an earpiece connected to the phone by a cord, and held the cell phone in one hand and the black mouthpiece on the cord in the other.432
Downs saw a black Crown Victoria drive past and recognized it as an unmarked police car. The car stopped, reversed, and double-parked in front of Downs’s house, at which point Downs told his friend he would call back.433 Two white plainclothes officers, later identified as Officers Scott Giacona and James Mahoney, left the car and approached Downs.434 One officer said in an aggressive tone that it looked like Downs was smoking weed. They told
430 See Terry, 329 U.S. at 22 (“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.”).
431 See 4/19 Tr. at 4094–4095 (Downs). The following account is largely taken from Downs’s testimony, which I found credible despite minor inconsistencies.
432 See id. at 4095–4097. 433 See id. at 4097–4098. 434 Officer Giacona was wearing a black t-shirt and Officer Mahoney was wearing a New York Jets jersey that said “Favre” on the back.
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him to “get the [fuck] against the fence,” then pushed him backwards until his back was against the fence. Downs did not feel free to leave.435
Downs explained that he was talking on his cell phone, not smoking marijuana, that he is a drug counselor, and that he knows the captain of the 120th Precinct. Without asking permission, the officers patted down the outside of his clothing around his legs and torso, reached into his front and back pants pockets and removed their contents: a wallet, keys, and a bag of cookies from a vending machine. The officers also searched his wallet.436
After the officers failed to find any contraband, they started walking back to the car. Downs asked for their badge numbers. The officers “laughed [him] off” and said he was lucky they did not lock him up. Downs said he was going to file a complaint, and one of them responded by saying, “I’m just doing my [fucking] job.” Charles Joseph, a friend of Downs who lives on the same block, witnessed the end of the stop. After the officers drove away, Downs walked to the 120th Precinct to file a complaint.437
Downs told Officer Anthony Moon at the front desk that he wanted to make a complaint and described what had happened. Officer Moon said that he could not take the complaint because Downs did not have the officers’ badge numbers, and that Downs should file a complaint with the CCRB. As Downs left the station he saw the two officers who stopped him driving out of the precinct in their Crown Victoria, and he wrote down its license plate number on his hand.438
Downs then returned to the station. He tried to give Officer Moon the license
435 See id. at 4098–4102. 436 See id. at 4101–4106. 437 See id. at 4106–4108. 438 See id. at 4108–4111.
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plate information, but Officer Moon said that he should give the information to the CCRB instead. Downs waited at the station until he saw the two officers come through the back door with two young black male suspects.439
Downs pointed out the two officers to Officer Moon and asked him, “Can you get their badge numbers?” Officer Moon talked to the officers and then told Downs “maybe you can ask them.” At that point, Downs went outside again and took a picture of the license plate on the Crown Victoria, which was the same number he had written on his hand.440
Eventually, Downs spoke with a supervisor, who said he would try to get the officers’ badge numbers and then call Downs. The call never came. Having spent a few hours at the station, Downs went home.441
The next day, Downs submitted a complaint to the CCRB. Five months later, Officers Mahoney and Giacona both testified under oath to the CCRB that they had no memory of stopping and frisking Downs — an assertion that was “not entirely credited” by the CCRB, because it is “unlikely that PO Giacona and PO Mahoney would not recall their actions immediately prior to effecting two arrests.” The CCRB substantiated Downs’s complaint that Officers Mahoney and Giacona failed to provide their badge numbers. The CCRB found the complaints that the officers stopped Downs without reasonable suspicion, and used profanity unsubtantiated. The CCRB found Downs’s allegation of a search into his pants pockets
439 See id. at 4110–4111, 4113; PX 166-D, 166-CL. Officer Mahoney was still wearing his Brett Favre jersey. Officer Giacona’s records confirm that he arrested two young, black men that evening.
440 See 4/19 Tr. at 4111–4112; PX 166-C. 441 See 4/19 Tr. at 4114–4115. Downs later spoke with a Deputy Inspector at the 120th Precinct, who told him the stop “was probably an isolated incident,” and invited Downs to attend the citizens’ police academy, to better understand the NYPD’s practices. Downs attended the academy for eleven months. At the end, he still believed the August 20 stop violated his rights. See id. at 4116–4119, 4124–4126.
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“unfounded,” based in part on Joseph’s testimony that he did not witness a search. The CCRB substantiated the complaint against Officer Moon for failing to process Downs’s complaint.442
Neither Officer Mahoney nor Officer Giacona received any discipline as a result of the CCRB’s recommendations. Instead, each lost five vacation days for failing to make a memo book entry for the Downs stop. They also failed to prepare a UF-250 for the stop, but received no discipline for this. Officer Mahoney has since been promoted to Sergeant.443
Officers Mahoney and Giacona testified that they have no recollection of the Downs stop. Like the CCRB, I do not find their denials of recollection credible.444
Downs testified that he has been stopped “[m]any times” other than the stop on August 20, 2008.445
ii. Mixed Findings of Fact and Law Downs was stopped when the officers told him to “get the [fuck] against the fence.” The officers lacked reasonable suspicion to stop Downs. The officers seized Downs based on a glimpse of a small object in Downs’s hand from the window of their passing car. The officers’ hunch, unaided by any effort to confirm that what they glimpsed was contraband, was too unreliable, standing alone, to serve as a basis for a Terry stop. Moreover, whatever legal justification the officers might have had for the stop
442 See id. at 4116; PX 166 (CCRB file for Downs’s complaint). 443 See 4/17 Tr. at 3847–3850, 3852–3853, 3865, 3870 (Mahoney); id. at 3876–3879 (Giacona); Tr. 4/18 at 3895 (Giacona). I refer to Sergeant Mahoney as Officer Mahoney because that was his rank at the time of the stop. 444 See Tr. 4/17 at 3849–3850 (Officer Mahoney); id. at 3875–3875 (Officer Giacona); Tr. 4/18 at 3892–3896 (Officer Giacona) (“According to CCRB I guess or whatever their investigation, they found that I did this stop that I don’t remember or have any knowledge of. . . . So that’s — I guess that’s what I was disciplined for, not having memo book entries for the stop that I don’t remember doing.”). 445 See 4/19 Tr. at 4119 (Downs).
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dissipated shortly after they approached Downs. The absence of any physical evidence, smoke or marijuana smell, and Downs’s explanation that he was talking on his mouthpiece, negated any ground for reasonable suspicion. Just as an officer may not reach into the pocket of a suspect after a frisk has negated the possibility that the pocket contains a dangerous weapon or immediately perceptible contraband,446 so an officer may not persist in stopping a person after the suspicion giving rise to the stop has been negated.447 Officers Mahoney and Giacona violated Downs’s rights under the Fourth Amendment by stopping him based on a hunch, and continuing to detain him after it became clear that he had not been smoking marijuana.
The officers further violated the Fourth Amendment by frisking Downs without any objective basis for suspecting that he was armed and dangerous. Nothing about the suspected infraction — marijuana use — in combination with the facts summarized above provides reasonable suspicion that Downs was armed and dangerous.
The officers further violated Downs’s Fourth Amendment rights by searching his pockets and wallet after the frisk. Such a search would only have been justified if the officers’ frisk of the outer surfaces of Downs’s pockets gave rise to reasonable suspicion that his pockets contained a dangerous weapon, or if the frisk made it immediately apparent that an object in his pockets was a form of contraband. Nothing in Downs’s pockets could have provided reasonable suspicion that he was armed; nor could it have been immediately apparent from the patdown that
446 See Dickerson, 508 U.S. at 373, 377–78. 447 See United States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001) (“Fourth Amendment intrusion ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop’ and . . . the officer should employ the least intrusive means available to dispel the officer’s suspicion in a timely fashion.”) (quoting Florida v. Royer, 460 U.S. 491, 500 (1983)).
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Downs’s pockets contained contraband.448 b. Devin Almonor i. Findings of Fact
Devin Almonor is a sixteen-year-old black male high school student living in Manhattan. In 2010, Almonor was thirteen years old.449 He was approximately five foot ten and weighed approximately 150 pounds.450
On March 20, 2010, a Saturday, around 8:45 p.m., Almonor left his house to walk his friend Levon Loggins to the bus stop at 145th Street and Amsterdam.451 After Loggins boarded the bus, Almonor began to walk home along Hamilton Place toward a bodega where he planned to meet his brother Malik.452 A group of males was standing outside the bodega and, after talking to friends outside, Almonor continued home with another individual.453
Around 10:00 p.m., Officer Brian Dennis and Sergeant Jonathan Korabel454 were driving an unmarked vehicle in the vicinity of Hamilton Place in response to nine 911 calls describing a group of about forty youths fighting, throwing garbage cans, and setting off car
448 Because Officers Mahoney and Giacona disclaim any memory of the incident, I cannot draw any inferences in their favor.
449 See 3/18 Tr. at 111–114 (Almonor). Minor inconsistencies between Almonor’s deposition and trial testimony, such as whether he began to walk his friend to the bus stop at 8 p.m. versus 8:45 p.m., see id. at 137, or whether the bodega was at 141st or 142nd Street, see id. at 140, do not undermine his credibility.
450 See id. at 143–144. 451 See id. at 115–117. 452 See id. at 119–124. Malik texted Almonor that he was at the bodega. 453 See id. at 134–135. Neither officer saw Almonor with a group of males. 454 Korabel is now a Lieutenant, see 3/27 Tr. at 1068 (B. Dennis), but I will refer to him as Sergeant Korabel, as that was his title at the time of the stop.
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alarms. A few calls indicated the possibility that weapons were involved.455 The calls suggested that the youths were dispersing when marked cars arrived and then returning. When the officers arrived at Hamilton Place there were garbage cans in the middle of the street and car alarms still going off.456 The only description they had of the individuals was that they were young black males.457
The officers briefly observed Almonor and another individual walking on Hamilton Place in the direction from which the calls originated.458 The individuals crossed 141st Street.459 The officers — two white males in plainclothes — pulled up alongside Almonor, at which point Almonor retreated onto the sidewalk.460 After the officers exited the car and approached Almonor, Officer Dennis grabbed Almonor’s arm and said: “Police.”461 Almonor pulled away and within moments, Officer Dennis pushed Almonor down on the hood of the police car because he was not “satisfied [that Almonor] did not have something in his waist.”462
Together the officers handcuffed Almonor.463 Without explanation, Officer
455 See id. at 1085–1087, 1115. The officers arrived at Hamilton Place about twenty minutes after the last 911 call. See id. at 1096.
456 See id. at 1117. Accord id. at 1189 (Korabel). 457 See id. at 1086 (B. Dennis). 458 See id. at 1117; id. at 1150 (Korabel). 459 See id. at 1119. 460 See 3/18 Tr. at 125–126 (Almonor). 461 See id. at 127; 3/27 Tr. at 1069, 1087 (B. Dennis). 462 3/27 Tr. at 1088, 1121 (B. Dennis). Officer Dennis thought Almonor was twisting his body as if to keep his right side away from the officers — a behavior called “blading.” See id. at 1144. 463 See id. at 1121–1122. Sergeant Korabel testified that the reason for handcuffing Almonor was that his conduct rose to the level of disorderly conduct. See id. at 1162 (Korabel). However, he testified that he did not observe any disorderly conduct prior to the frisk. See id. at
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Dennis patted Almonor down from his feet to his torso, during which Almonor was saying,
“What are you doing? I’m going home. I’m a kid.”464 The officers did not recover anything —
Almonor only had a cell phone in his right front pocket and a few dollars.
The officers did not ask Almonor his name until after he was handcuffed.465
Almonor did not have ID but identified himself as “Devin Al.”466 Almonor told the officers that
he was thirteen years old and was going home, which was a few blocks away.467 At some point,
though not initially, Almonor gave the officers his full address.468 The officers did not ask for
Almonor’s phone number or whether his parents were home — instead the officers put Almonor
in the back of the patrol car, took him to the precinct, and placed him in the juvenile room
because of the possibility that he was thirteen.469
1164, 1169. Moreover, Officer Dennis testified that Almonor was not yelling or screaming when he was being questioned and frisked. See id. at 1090 (B. Dennis). While Almonor may have struggled in response to being grabbed by the arm and pushed up against a car, I do not find credible the assertion that Almonor’s behavior constituted disorderly conduct.
464 Id. at 1089–1090. Officer Dennis testified that he frisked Almonor after handcuffing him and that the basis for the frisk was that Almonor’s “actions as he was walking down the street and as I continued to observe him by holding his waist, I suspected that he may have had a weapon at that point, and that’s the area that I frisked.” Id. at 1093. See also id. at 1161 (Korabel) (Officer Dennis frisked Almonor within a few seconds of exiting the car). I do not find credible that Almonor was walking as if he had a weapon in his waist.
465 See id. at 1091 (B. Dennis). 466 See id. at 1205 (Korabel) (the name of the individual Sergeant Korabel tried to call was Ms. Al); 3/18 Tr. at 145–146 (Almonor) (acknowledging that he initially identified himself as Devin Al). 467 See 3/18 Tr. at 128–129. Almonor’s age was relevant because if he was sixteen or older, the officers could issue a summons for disorderly conduct, but if he was younger than sixteen, he would have to be released to his parents. See 3/27 Tr. at 1123 (B. Dennis). 468 See 3/27 Tr. at 1090 (B. Dennis). 469 See id. at 1124. Accord 3/18 Tr. at 130–131, 143 (Almonor). Almonor disputes that he resisted efforts by the police to search, cuff or put him in the squad car. See id. at 157 (Almonor).
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After Almonor was released, Officer Dennis completed a handwritten UF 250 form and a juvenile report.470 The suspected crime was criminal possession of a weapon, and the circumstances of the stop indicated on the form were “fits description” and “furtive movements.” The “suspicious bulge” box was not checked and Officer Dennis testified that he did not see a suspicious bulge that night.471 No contemporaneous document noted that Almonor was touching his waistband.472 The juvenile report form indicated that Almonor was “resisting arrest,” although Almonor was never arrested.473 The next morning, Officer Dennis filled out a computerized UF-250 and another juvenile report worksheet, both of which noted a suspicious bulge.474
ii. Mixed Findings of Fact and Law Almonor was stopped when the officers approached him on the sidewalk, and Officer Dennis grabbed Almonor’s arm and said: “Police.” Even if credited, Almonor’s alleged furtive movements — looking over his shoulder and jaywalking — in combination with the generic description of young black male does not establish the requisite individualized suspicion that Almonor was engaged in criminal activity.475 The officers could have approached Almonor
470 See 3/27 Tr. at 1125 (B. Dennis). 471 See id. at 1070–1077. 472 See id. at 1103. 473 Id. at 1081. Officer Dennis acknowledged that the officers did not have probable cause to arrest Almonor. See id. at 1088. I do not believe Sergeant Korabel’s testimony that they had probable cause based on Almonor’s alleged jaywalking in violation of New York laws. In any event, Sergeant Korabel acknowledged that the officers did not intend to arrest Almonor for jaywalking. See id. at 1152–1155 (Korabel). 474 See id. at 1125–1126 (B. Dennis). Officer Dennis acknowledged that he did not see a suspicious bulge on Almonor. See id. at 1078–1079. 475 See Lambert, 98 F.3d at 1190–91 (“If the general descriptions relied on here can be stretched to cover [plaintiffs] then a significant percentage of [black] males walking, eating,
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and asked him some questions, but instead chose to physically restrain and handcuff him first, and ask questions later. The circumstances did not justify any restraint of Almonor’s liberty, much less immediate physical restraint and the use of handcuffs.476
Even if the officers had possessed the requisite basis to stop Almonor — which they did not — they had no basis to frisk him. While some of the 911 calls suggested that some youths involved in the fighting may have had weapons, that alone does not establish individualized suspicion that Almonor was armed and dangerous. No contemporaneous document indicates a suspicious bulge, and Almonor was not in possession of anything that would have created a suspicious bulge. Almonor’s actions did not indicate that he was armed.477
Finally, not only were Almonor’s Fourth Amendment rights violated at the inception of both the stop and the frisk, but the officers made no effort to minimize the intrusion on his liberty. Instead, they used the most intrusive methods at their disposal, thereby exacerbating the violation of his rights.478
c. Cornelio McDonald i. Findings of Fact
Cornelio McDonald is a middle-aged black male who resides on Parsons
going to work . . . might well find themselves subjected to similar treatment.”). 476 See El-Ghazzawy, 636 F.3d at 457–58 (investigative stop unconstitutional where
there was no indication that plaintiff was armed and dangerous, and officer “failed to conduct even the most basic investigation into the facts prior to handcuffing and frisking”); Lambert, 98 F.3d at 1188 (stating that “handcuffing substantially aggravates the intrusiveness of an otherwise routine investigatory detention”) (quotations omitted).
477 See Singleton v. United States, 998 A.2d 295, 302 (D.C. 2010) (A “generic bulge in a pocket can be explained by too many innocent causes to constitute ‘reasonable’ suspicion.”).
478 See Terry, 392 U.S. at 28–29 (“The Fourth Amendment proceeds as much by limitations upon the scope of governmental action as by imposing preconditions upon its initiation.”).
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Boulevard, in a private co-op apartment building in Queens.479 McDonald often cares for his mother who lives across the street from him in a New York City Housing Authority (“NYCHA”) complex called Pomonok Houses.480 Parsons Boulevard is a wide street with a concrete island dividing two lanes and cars parked on both sides of each lane.481 The majority of residents on McDonald’s side of the block are white, while the majority of residents on his mother’s side of the block are black.482
On December 18, 2009, a Friday, McDonald spent approximately ten hours at his mother’s house and left her building around 1:00 a.m.483 Because the weather that night was below freezing, McDonald was wearing a zipped-up jacket, with his hands in his pockets the entire time he was crossing the street. He had his cell phone in his left jacket pocket, his keys in his right pants pocket, and his wallet in his back pocket. McDonald turned his body sideways to pass through the cars parked along the divider.484
McDonald had crossed the first lane of Parsons Boulevard and was standing between two parked cars on the far side of the island, getting ready to cross the second lane, when he saw an unmarked red van with plainclothes individuals inside make a u-turn and pull up
479 See 4/17 Tr. at 3677 (McDonald). McDonald is employed at Cavalry Staffing where he drives cars. See id.
480 See id. at 3678. 481 See id. at 3679–3680. 482 See id. at 3678–3679. McDonald testified that about 80% of the residents on McDonald’s side of the block are white, while about 80% of the residents on his mother’s side of the block are black. The basis for this testimony was McDonald’s own perception rather than documented statistical information. See id. at 3701. 483 See id. at 3679. It was December 19 when he left. 484 See id. at 3681–3683, 3696.
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in front of him, trapping him between two parked cars.485 The driver rolled down the window and, without identifying himself as police,
asked McDonald where he was coming from, to which McDonald responded, “Why you stopping me for?”486 At that point both officers in the van, one of whom was Officer Edward French, and both of whom were white,487 stepped out of the car, identified themselves as police, and began to search McDonald without explanation.488 Officer French told McDonald to remove his hands from his pockets, patted down the outside of McDonald’s pockets, asked McDonald to take out his keys — which McDonald did — placed his hand inside McDonald’s pocket, and removed a cell phone.489 When McDonald asked why he was being frisked, the officer said he wanted to be sure McDonald did not have a weapon.490
After conducting the frisk, which failed to produce any contraband, Officer French asked McDonald for ID. McDonald obliged and then asked for the officers’ identification. Only Officer French identified himself and gave his shield number.491 McDonald was then permitted to leave. No summons was issued and the entire incident took seven to ten
485 See id. at 3680–3681. 486 Id. at 3683. 487 Although French has been promoted to detective, I refer to him by his rank at the time of the stop. See id. at 3739 (French). 488 See id. at 3685, 3709 (McDonald). 489 See id. at 3686. Accord id. at 3750 (French) (testifying that he frisked the outermost jacket and the pocket in which he observed the suspicious bulge, including placing his hand inside the pocket, because once McDonald removed his hands from his pockets, there was still a suspicious bulge). I do not believe that a cell phone created a “suspicious” bulge. 490 See id. at 3706–3707 (McDonald). 491 See id. at 3687.
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minutes.492 On the UF-250, Officer French listed McDonald’s suspected crime as criminal
possession of a weapon.493 Officer French did not believe he needed to include the reason he suspected a person of a crime in his memo book — he believed that the reason for stopping a person was enough.494 At trial, however, Officer French testified that his suspicion was based on crime patterns and a suspicious bulge.
Officer French testified about three crime patterns. First, he made an arrest for armed robbery a month earlier in the general vicinity where he stopped McDonald. Second, he was aware of a robbery pattern somewhere in Queens on the night he stopped McDonald — specifically, a black male holding up commercial establishments. Third, he was aware that a black male had been burglarizing residential establishments in Queens, but could not be more specific about the location of the burglaries.495 The other explanation Officer French gave for his suspicion was his observation that McDonald had his hands in his pockets and was leaning to one side, and had a “suspicious bulge” in his left front pocket.496 I do not believe that Officer French saw a suspicious bulge.497
McDonald believes that he was stopped based on his race because other, non-

492 See id. at 3689.

493 See id. at 3726 (French).

494
495
3743.

See id. at 3737. See id. at 3726, 3743. The only suspect description was black male. See id. at

496 See id. at 3747.
497 The testimony about a “suspicious bulge” appears to have been an after-the-fact justification and is unsupported by either contemporaneous documents or the objects McDonald had in his pockets.

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black individuals — whites or Asians — were coming out of a bowling alley about twenty-five feet from where he was stopped, and none of them were stopped.498
ii. Mixed Findings of Fact and Law McDonald was stopped when two officers pulled up to him in a police van, trapped him between two cars, and proceeded to question him. The officers made a u-turn and specifically targeted him in a manner that would not have made a reasonable person feel free to simply walk away. The only articulated bases for the stop were the existence of highly generalized crime patterns involving black males — a month-old armed robbery, a robbery pattern somewhere in Queens and a burglary pattern somewhere in Queens499 — the fact that McDonald was walking with his hands in his pockets in December and a supposedly suspicious bulge, which turned out to be a cell phone. “[P]resence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”500 Moreover, a crime area defined as the entire borough of Queens is far too broad to contribute to a totality of the circumstances establishing reasonable suspicion, let alone to form the sole basis.501 This, combined with the vague description of “black males” and the entirely unsuspicious act of putting one’s hands in one’s pockets in the wintertime, is a far cry from the individualized suspicion of wrongdoing that constitutes reasonable suspicion.
498 See id. at 3688–3689, 3701 (McDonald). McDonald has brought several lawsuits based on racial discrimination in the past. Specifically, he alleged that the postal service falsified the records of African Americans and sued a white male for racial discrimination. See id. at 3691.
499 See id. at 3726. 500 Wardlow, 528 U.S. at 124 (citing Texas, 443 U.S. at 47). 501 See 4 LAFAVE § 9.5(h) (“the time and spatial relation of the ‘stop’ to the crime is an important consideration in determining the lawfulness of the stop”) (collecting cases).
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Absent any other justification, there was no basis for a Terry stop, and there was certainly no basis to believe that McDonald was armed and dangerous.
I also find that McDonald was stopped because of his race. The only suspect description was “black male,” the street was racially stratified, and other non-black individuals were present and presumably behaving no differently than McDonald — yet only McDonald was stopped. In sum, McDonald was stopped, in violation of the Fourth and Fourteenth Amendments, because he was a black man crossing the street late at night in Queens.
d. Nicholas Peart — August 5, 2006 i. Findings of Fact
Nicholas Peart is a twenty-four-year-old black resident of Harlem. He is the legal guardian of three younger siblings and works for a non-profit organization as an after-school program facilitator.502 On August 5, 2006, around 5:00 a.m., Peart was with his cousin and a friend, both of whom are also black, after celebrating his eighteenth birthday at his sister’s house.503 It was dark out and Peart was wearing light blue basketball shorts and a white — or black and white — tank top. At least one of the men was wearing a hat.504
Peart and his companions were standing in the median at 96th and Broadway when three marked police cars pulled up on 96th Street.505 Approximately five uniformed
502 See 3/19 Tr. at 300–302 (Peart). 503 See id. at 319–320. 504 See id. at 320, 347–348. Peart testified that he only recently found the shorts he was wearing that day while doing laundry. See id. at 320. 505 See id. at 320. Officer White, who has since been promoted to detective, was in a vehicle with Officer Fontanez. See 5/7 Tr. at 6211–6213 (White). On August 5, Officer White responded as backup to a radio run reporting crime in progress involving a man with a gun in the vicinity of 96th and Broadway. See id. at 6214. Three cars responded. See id. at 6215–6216.
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officers exited the cars with their guns drawn.506 Officer White stated: “Police. Don’t move. Let me see your hands” and, when the men did not immediately show their hands, ordered them to get down on the ground.507 Peart and his companions protested but eventually obeyed the order.508 Once Peart was on the ground, Officer White patted him down over his shorts and in the groin area and buttocks, without consent.509 Officer White also frisked the other two men.510
After frisking the men, Officer White told them to stand up and asked for ID.511 In response to Peart’s inquiries about why they were stopped, Officer White played the radio call three times to show that the men fit the description in the radio call.512 The dispatcher’s report described a call coming from a payphone at 96th and Broadway about three black males — one carrying a firearm and wearing blue pants and a black shirt, and two others wearing blue and white tank tops, shorts and red hats — walking uptown on Broadway toward 98th Street.513
506 See 3/19 Tr. at 320–321 (Peart). Accord 5/7 Tr. at 6224 (White). 507 5/7 Tr. at 6224 (White). Officer White testified that he ordered Peart and his companions to get on the ground because they did not initially comply with the order to raise their hands and because he believed one or more of them might be armed. 508 See id. at 6225 (Officer White stating that he had to ask two or three times before the men got on the ground, during which time they asked “Why? For what? What did I do? I didn’t do nothing.”). 509 See 3/19 Tr. at 322–323, 326–327 (Peart). 510 See 5/7 Tr. at 6226 (White). 511 See id. at 6227; 3/19 Tr. at 324–326 (Peart). 512 See 3/19 Tr. at 324–326 (Peart); 5/7 Tr. at 6256–6258 (White) (discussing the radio run description). The officers asked central command to repeat the description several times in an effort to convince the three individuals that they were stopped was because they fit the suspect description and location provided in the call. See 5/7 Tr. at 6219–6220, 6227 (White). 513 See DX Z8 (radio transmissions).
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After hearing the radio run, Peart and his companions were free to leave.514 However, they continued to ask why they had been stopped, and stated their belief that the only reason they were stopped was because they were black.515
Following the stop, Peart filed a complaint with the CCRB.516 He declined to state his race in filing the complaint.517 Over a year later, Peart received a letter informing him that the officers had been exonerated.518
The officers who stopped Peart and his friends were responding to a radio run based on a report from an anonymous caller.519 The officers stopped the three men because they resembled the description relayed by the dispatcher and were in the same location from which the call had been made only minutes before.520 Based on the descriptions from the radio run, Officer White believed he had stopped the right people, although no weapons were found.521
Officer White completed three UF-250s after the stop. He checked the boxes for

514 See 3/19 Tr. at 324–326 (Peart).

515 See 5/7 Tr. at 6227 (White).

516 See 3/19 Tr. at 326 (Peart). In his formal interview with the CCRB on August 26, 2006, Peart said that he had received a laceration on his lip when he dropped to the ground in response to the officers’ commands. However, he corrected this testimony at trial, explaining that the reason he lied was that he was eighteen and wanted to be taken seriously. See id. I find this explanation plausible and it does not undermine Peart’s generally credible trial testimony.

517 See id. at 370.

518 See id. at 345. Peart did not file any CCRB complaints concerning his later stops because he did not feel that the CCRB would do anything, given that his initial complaint had not been substantiated. See id.
519 See DX Z8; 5/7 Tr. at 6219 (White).
520 See 5/7 Tr. at 6219–6221. Although Officer White could not recall exactly what the men were wearing, he testified that “[t]hey were wearing exactly what central had put over which [] was very unique.” Id. at 6222.

521
See id.

See id. at 6228. The officers attempted to locate the caller but were unsuccessful.

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“fits description” and “suspicious bulge.”522 As reasons for the frisk, he listed violent crime suspected, suspicious bulge, and refusal to comply with directions (relating to the command that the men show their hands and get on the ground).523 On each form Officer White noted that the “bulge in pocket” had in fact been a cell phone. As additional circumstances, Officer White noted “report from victim witness” and “proximity to crime location.” However, nothing about the radio run suggested that the caller was a victim rather than a mere observer.524
ii. Mixed Findings of Fact and Law Peart and his companions were stopped when the officers exited their car with guns drawn. Although it is a close call, I am constrained by controlling Supreme Court law to find that the officers lacked reasonable suspicion to forcibly stop the men. In Florida v. J.L., the Supreme Court held that “an anonymous caller[’s report] that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun” did not establish reasonable suspicion for a stop and frisk.525 The Court held that “reasonable suspicion . . . requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”526 The Court rejected an exception for reports of firearms, explaining that “[s]uch an
522 See id. at 6230. Officer White acknowledged that he couldn’t stop someone based on the description “male blacks with a gun,” or solely based on an anonymous call reporting criminal conduct. He explained that he would need additional contributing factors and that, in this case, those factors were the bulges in the waistband and proximity to the crime location. See id. at 6234.
523 See id. at 6231. Officer White did not check violent crime suspected on all three forms, which he attributed to “officer oversight.” Id. at 6231–6232.
524 See id. at 6232. 525 529 U.S. 266, 268 (2000). The report described three black males, one of whom was wearing a plaid shirt. See id. 526 Id. at 272 (explaining that “[a]n accurate description of a subject’s readily observable location and appearance is of course reliable in th[e] limited sense [that it] will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however,
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exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.”527 Florida v. J.L. makes clear that a suspect description from an anonymous caller cannot by itself justify the forcible stop and frisk of Peart and his companions. Although the Second Circuit held that a 911 call reporting that an assault (or any crime for that matter) was in progress would require less corroboration, the calls here did not indicate that an assault was in progress.528
The only additional factor cited as the basis for the stop was the bulges in the men’s waistband area.529 The only items recovered from the frisk were cell phones. Because the men were wearing minimal clothing, it would be difficult to mistake a cell phone for a firearm. Moreover, to conclude that the bulge created by the now ubiquitous cell phone can provide the additional corroboration necessary to justify an invasive stop and frisk would eliminate the corroboration requirement entirely.530
I do not find credible the assertion that the officers saw any suspicious bulges that would corroborate the anonymous caller’s statement that the men stopped were armed. Rather, I find that they stopped the men solely on the basis of the description in the radio run. No other

does not show that the tipster has knowledge of concealed criminal activity”). Under the reasoning in J.L., Officer White’s belief that he stopped the right individuals, although they were not armed, does not establish reasonable suspicion.

527

Id.

528 See Simmons, 560 F.3d at 103.

529 See 5/7 Tr. at 6223 (White).

530 Accord Singleton, 998 A. 2d at 302 (“[A] generic bulge in a pocket can be explained by too many innocent causes to constitute ‘reasonable’ suspicion.”) (distinguishing cases in which only a “noticeable bulge” was cited from cases in which the officer identified with specificity the characteristics that led him to believe it was a firearm).

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factor establishes reasonable suspicion for the highly intrusive stop. Because there was no legally sufficient justification for the stop, the frisk was also unconstitutional.
e. Nicholas Peart — April 13, 2011 Stop531 i. Findings of Fact
On April 13, 2011, around 11:00 p.m., Peart was walking on 144th Street between Lenox and Seventh Avenue — the block on which he resides — on his way to the corner store. Peart was wearing sneakers, jeans and a red hooded sweatshirt. He was sending a text message while walking when two uniformed officers appeared directly in front of him. One officer was white, shorter than Peart, and wore glasses (“Officer A”). The other officer was roughly Peart’s height and had salt-and-pepper hair (“Officer B”).532
One of the officers took Peart’s cell phone and instructed Peart to put his hands up against the wall of a church. Officer A patted Peart down outside his clothing over his entire body and put his hands in his pockets. Officer B also put his hands in Peart’s pockets, removed Peart’s keys and wallet, and searched the wallet for ID. Officer B did not ask permission to search the wallet and Peart did not consent.533 During the search Peart asked, “why is this happening?” In response to questions about what building he was coming from, he explained that he was coming from his apartment in the Frederick Samuel House, which is a NYCHA building.534
531 No officers were identified in connection with the April 13, 2011 stop of Peart and no UF-250 or other form exists. My findings are based entirely on Peart’s testimony, which was both detailed and consistent in identifying which officer did what.
532 See 3/19 Tr. at 303–307. Peart was not certain of the second officer’s race but testified that the officer was not black. See id. at 305.
533 See id. at 307–311. 534 See id. at 312, 397–398. The officers asked if he was coming from building 129, and he explained that he was coming from building 125. See id. at 409.
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Officer A then grabbed Peart’s sweatshirt with his fist near Peart’s chest area and handcuffed him.535 Officer B, who had Peart’s keys, asked which key opened Peart’s door, and Peart identified the key in order to prove that he lived where he said he did. He did not give Officer B permission to enter the apartment, but Officer B entered the building and remained for about five minutes.536
While Officer B was in the building, Officer A, who was still holding Peart’s sweatshirt, placed Peart, still handcuffed, in the back of an unmarked police vehicle parked in front of the church. Officer A removed Peart’s sneakers, patted down his socks and asked Peart if he had weed on him. Peart said he did not.537 Eventually, Officer B came out of Peart’s building. The officers opened the car, let Peart out, removed the handcuffs, and returned his keys, phone and wallet.538 The officers explained that Peart fit the description of someone who had been ringing a doorbell at the Frederick Samuel House.539 Peart was then free to go.
ii. Mixed Findings of Fact and Law Peart was stopped when the officers blocked his path and told him to put his arms against the wall. The stated reason for the stop was that he fit a suspect description of someone who was ringing doorbells in NYCHA housing. While I cannot know from Peart’s testimony whether the description he allegedly fit was sufficiently detailed to form the basis for reasonable
535 See id. 536 See id. at 313–314. 537 See id. at 315–316, 399. Peart testified that he was upset and concerned that the other officer was inside the building with his younger siblings. See id. at 316. 538 See id. at 317–318. 539 See id. at 399–400. The door of Peart’s building had recently been replaced, requiring all residents to obtain a new key, which was an involved process requiring proof of residency in the building. See id. at 391–394.
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suspicion,540 the stop the officers conducted was not justified by the circumstances.541 The officers had every right to ask Peart whether he lived in the Frederick Samuel House — a question he could have answered easily. Instead, they forced him up against a wall and handcuffed him.
The officers violated Peart’s Fourth Amendment rights by frisking him, going into his pockets and searching his wallet.542 The officers further abused their authority — and Peart’s rights — when Officer B took Peart’s keys and entered his apartment without permission while Officer A continued to search Peart and question him about drugs.
f. Ian Provost i. Findings of Fact
Ian Provost is a forty-two-year-old black male who currently resides in North Carolina but lived in Queens from 1978 to 2011.543 On November 24, 2009, Provost was at his girlfriend’s apartment in the Seth Low Houses at 365 Sackman Street in Brooklyn, which is a
540 See 4 LAFAVE § 9.5(h) (discussing requisite specificity for suspect descriptions). 541 See El-Ghazzawy, 636 F.3d at 457 (Terry stop must be conducted in a manner “‘reasonably related in scope to the circumstances which justified the interference in the first place.’”) (quoting Terry, 392 U.S. at 19–20); Allen v. City of Los Angeles, 66 F.3d 1052, 1057 (9th Cir. 1995) (“‘The relevant inquiry is always one of reasonableness under the circumstances.’” (quoting United States v. Sanders, 994 F.2d 200, 206 (5th Cir. 1993))). 542 See Dickerson, 508 U.S. at 378 (“The officer’s continued exploration of [plaintiff’s] pocket after having concluded that it contained no weapon was unrelated to the sole justification of the search under Terry: the protection of the police officer and others nearby.”) (original alterations and quotations omitted). Because the initial frisk provided no evidence of a weapon or immediately perceptible contraband, it could not have justified a further search of his pockets or wallet. 543 10/10/12 Deposition of Ian Provost (“Provost Dep.”), PX 584, at 17–19. Provost did not testify at trial. His testimony was received through his pretrial deposition.
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NYCHA housing project with a high crime rate.544 Provost had a key to access the apartment and the front door lock was broken.545 That day Provost had been doing odd jobs around his girlfriend’s apartment, which involved tools including a knife with a four-inch blade.546
Provost left his girlfriend’s apartment around 2:15 p.m. to get food at a restaurant across the street on Belmont Avenue. He was wearing jeans, a hooded sweatshirt and a down jacket, which did not cover his back pockets, and was carrying the knife in his right back pocket.547 As he reached the corner of Belmont and Sackman, Provost saw two uniformed police officers, since identified as Jonathan Rothenberg and David Furman.548 After he passed them, Officer Rothenberg said “excuse me,” and Provost stopped and turned around.549 The officers asked if Provost was from around there, where he was going, and where he was coming from. Provost responded that he was from Queens and that he was coming from a friend’s house.550 When Officer Rothenberg asked where he was going, Provost responded that it was not the officer’s business which led to an argument about whether the officer had the right to question Provost’s comings and goings.551 Provost said, “you have no reason to stop me. This is
544 See id. at 33–36, 82–83. Both Officer Rothenberg and Sergeant Houlahan testified that crowds sometimes gathered and became violent in response to police activity in the area.
545 See id. at 33–36. 546 See id. at 38–41. 547 See id. at 34–35, 39, 42. 548 See id. at 42–46. Provost testified that he had seen the officers from the window of his girlfriend’s apartment before he left. See id. at 44. See also 1/8/13 Deposition of Sergeant Daniel Houlahan (“Houlahan Dep.”), DX Q14, at 41. 549 See Provost Dep. at 45–46. Accord 4/17 Tr. at 3807 (Rothenberg). 550 See Provost Dep. at 46–48. 551 See id. at 49.
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harassment.”552 Officer Rothenberg told Provost he was being stopped for criminal trespass.553 Provost tried to use his cell phone and Officer Rothenberg commanded him not
to. When Provost asked why, Officer Rothenberg said that he did not like people using their cell phones when he was talking to them.554 When Provost attempted to use his cell phone a second time, Officer Rothenberg grabbed his right hand, which was holding the cell phone, handcuffed him, and pushed him up against the fence.555 As he was being handcuffed, Provost repeated Officer Rothenberg’s name and badge number so he could remember it to file a complaint. Provost also yelled out to his girlfriend in hopes that she would hear him from her apartment.556
After Provost was handcuffed, Officer Rothenberg frisked him.557 Provost informed Officer Rothenberg that he had a knife and told him which pocket it was in.558 After retrieving the knife from Provost’s pocket, Officer Rothenberg called Sergeant Houlahan.559 Officer Rothenberg then searched Provost’s person and looked through Provost’s cell phone.560
552 4/17 Tr. at 3807 (Rothenberg). 553 Id. Officer Rothenberg claims that he was using suspicion of criminal trespass and questioning Provost about where he was going to divert attention from the fact that he knew Provost was carrying a knife. See id. at 3809. In fact, the officer had no basis to suspect that Provost had committed criminal trespass. 554 See Provost Dep. at 48–51. Provost could not recall whether his cell phone was in his hand or in his pocket but noted that he was not inclined to reach into his pockets while talking to police because he believed police had a tendency to shoot people who reach into their pockets and pull things out while being questioned. See id. at 51–52. 555 See id. at 58. 556 See id. at 59, 60. 557 See id. at 58. 558 See id. 559 See id. at 64–65. 560 See id. at 59.
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When Sergeant Houlahan arrived, he felt it was unsafe to stay on the street where crowds sometimes gathered and became violent, so he instructed the officers to put Provost in his car and then drove him to the precinct.561 After the officers determined that the knife was not a gravity knife, Provost was given a summons for carrying a knife with a blade exceeding four inches and a summons for disorderly conduct for being loud and boisterous.562
Officer Rothenberg’s memo book entry for the stop reflected that he had stopped Provost for possible criminal trespass, but did not include any information about the circumstances leading to the stop.563 Rothenberg had observed Provost going in and out of the Seth Low Buildings and did not observe him use a key, but Rothenberg acknowledged that he did not have reasonable suspicion to believe that Provost was engaged in criminal trespass.564 Officer Rothenberg testified that he observed an inch or two of a knife handle sticking out of Provost’s pocket when Provost approached the corner where he and another officer were standing, and that this was the reason for his stop.565
Provost filed a CCRB complaint after the incident and was interviewed. The complaint was not substantiated.566 Provost does not believe that the officers saw the knife
561 See Houlahan Dep. at 46–49. 562 See 4/17 Tr. at 3814, 3832 (Rothenberg). Rothenberg admitted that Provost was not being disorderly prior to being stopped and that he was not engaging in “tumultuous behavior” as defined in the disorderly conduct statute. 563 See id. at 3802; PX 277 (memo book). Rothenberg testified that he mistakenly wrote criminal trespass because he was rushed. See 4/17 Tr. at 3833. See also Houlahan Dep. at 85–86 (stating that if Officer Rothenberg engaged Provost because of a knife in plain view, he should have recorded it in his activity log). Criminal possession of a weapon was also noted in the memo book but not as a basis for the stop and no further details were recorded. See PX 277. 564 See 4/17 Tr. at 3804. 565 See id. at 3805. 566 See Provost Dep. at 92–93.
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before he informed them that he was carrying it, which occurred after the stop but before the frisk.567
ii. Mixed Findings of Fact and Law Provost was stopped when Officer Rothenberg informed him that he was being stopped on suspicion of criminal trespass, and possibly earlier. Whether the stop was unlawful turns on whether I credit Officer Rothenberg’s testimony that he stopped Provost because he saw the knife in his right back pants pocket. I do not. While it is plausible that an officer would delay handcuffing and frisking an individual suspected of possessing a gravity knife, the testimony suggests that Officer Rothenberg had not, in fact, seen the knife when he first stopped Provost. In particular, the fact that Officer Rothenberg wrote in his memo book — the only contemporaneous record of the stop — that he stopped Provost for possible criminal trespass rather than not possession of a weapon, suggests that the knife was not the original reason for the stop.568 In light of this conclusion, there was no basis to stop Provost on suspicion of criminal trespass. Going in and out of his girlfriend’s building is not in and of itself suspicious behavior and, without more, does not rise to the level of reasonable suspicion. Handcuffing and then frisking Provost was also unreasonable. Although Officer Rothenberg’s actions may have been influenced by the fact that he had been assaulted in the area on a prior occasion, nothing in Provost’s actions — arguing about his right not to disclose where he was coming from, reaching for his cell phone while stating that he was reaching for his cell phone — suggested that he
567 See id. at 74. 568 As I have recognized, memo books, while imperfect, are the only contemporaneous documents by which a judge or supervisor can evaluate the basis for the stop — that is their primary purpose. Therefore, I have no choice but to credit them over after-thefact testimony of what occurred, which often incorporates post hoc justifications for the stop.
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presented a sufficient threat to warrant handcuffing him. The frisk was unreasonable for the same reason, particularly in light of the fact that Provost was already handcuffed and could not have harmed Officer Rothenberg or anyone else.569
g. David Ourlicht — January 30, 2008 Stop i. Findings of Fact
David Ourlicht is a twenty-five-year-old male of mixed black and white heritage who grew up and currently lives in Manhattan. At the time of his testimony Ourlicht was applying for admission to law school.570 On January 30, 2008, Ourlicht was enrolled at St. John’s University in Queens. Around 2:00 p.m., he left school and walked his girlfriend to her job. Ourlicht then began walking north on 164th Street to a deli near his dorm. He was wearing a black down Marmot jacket, a sweatshirt, jeans and sneakers. The jacket had six pockets which held Ourlicht’s keys, cell phone, wallet, passport, ipod, pens, and a five-subject notebook. Most of the items were in the jacket’s interior pockets, but the notebook lay flat in one of the front external pockets, with about twenty-five percent sticking out of the pocket.571
As Ourlicht was walking up 164th Street, he saw a uniformed officer, Christopher Moran,572 on a police scooter drive past him from behind. They made brief eye contact but Ourlicht kept walking. When Ourlicht reached the intersection where Officer Moran’s scooter was stopped, Officer Moran asked what Ourlicht was doing in the area and where he was

569

Because Provost was not arrested prior to Sergeant Houlahan’s arrival, the

search of Provost’s person and cell phone cannot be justified as part of a search incident to

arrest. The stated purpose of calling Sergeant Houlahan was to determine whether or not Provost

should be arrested.

570 See 4/19 Tr. at 4173–4177 (Ourlicht).

571 See id. at 4175–4176, 4185.

572 Moran was promoted to Sergeant in 2010, but I will refer to him by the position he held at the time of the stop. See 4/18 Tr. at 4027 (Moran).

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going.573 Ourlicht did not feel free to leave.574 Officer Moran left the scooter and asked Ourlicht for ID, to which Ourlicht
responded, “why are you stopping me?” Officer Moran asked whether Ourlicht went to school around there, and Ourlicht said, “why are you asking me this?” Officer Moran again asked for ID and Ourlicht asked, “why do you need to see ID? What did I do?” in an irritated way. Officer Moran responded that it looked like Ourlicht had a gun on him, and proceeded to pat down his waist area.575 Officer Moran did not reach into Ourlicht’s pockets.576
As soon as Officer Moran told Ourlicht he suspected him of having a gun, Ourlicht asked if he could give him his ID, and then reached into the inside breast pocket of his jacket and handed Officer Moran his passport and his St. John’s student ID.577 Officer Moran recorded Ourlicht’s information at which point Ourlicht said, “now that you have my information do you mind if I take down yours?” Officer Moran said sure, and Ourlicht made clear that he was going to reach into his pocket to get a pen and paper and began to write down Officer Moran’s badge number, nameplate, and scooter number.578
573 See 4/19 Tr. at 4177–4180 (Ourlicht); 4/18 Tr. at 4051, 4055 (Moran). 574 See 4/19 Tr. at 4181 (Ourlicht) (“Q: Why didn’t you just walk away when [the] officer started asking you questions? A: He was a police officer. He had a gun. I don’t know anybody that would in that situation, walk away.”). 575 See id. at 4180–4181. Ourlicht disputes that he was yelling or being hostile, see id., while Officer Moran testified that Ourlicht was irate, screaming and using obscene language. See 4/18 Tr. at 4059 (Moran). Although I believe that Ourlicht may have used obscene language in response to receiving the summons, I credit Ourlicht’s testimony that he was not disorderly during the initial stop. At most he became irate after being frisked. See id. at 4069 (Moran) (“A: In the beginning I started to question — asked him a question. Began a conversation. I frisked him. He became very irate. He was yelling obscenities . . . He stated he wanted to fight me.”). 576 See 4/19 Tr. at 4183 (Ourlicht). 577 See id. 578 See id. at 4184.
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Officer Moran had radioed for backup and a patrol car pulled up.579 Officer Moran then said, “okay now you’re going to get the full treatment, get against the wall.”580 Two uniformed police officers got out of the car.581 Ourlicht faced the wall with his hands behind his head and the officers proceeded to pull everything out of his jacket pockets and reached into his jeans pockets, which were empty.582 The officers instructed Ourlicht to sit on the ground, which he did, while Officer Moran returned to the scooter with Ourlicht’s ID.583
Officer Moran returned and asked Ourlicht for his address, which Ourlicht provided, and Officer Moran accused him of lying. Ourlicht then provided his mailing address, which was different from his residence — a college dorm.584 Moran wrote Ourlicht a ticket for disorderly conduct. When Ourlicht learned what the ticket was for he said “that’s fucked up” and “I’m going to fight this.” Ourlicht was then free to go.585 The summons was dismissed. Ourlicht’s mother filed a CCRB complaint regarding the stop.586
Officer Moran observed Ourlicht for no more than two minutes — as he approached Ourlicht on the scooter and after he passed him, from his rearview mirror.587 Officer

579 See 4/18 Tr. at 4081 (Moran).

580 4/19 Tr. at 4148 (Ourlicht).

581 See id. at 4185. Moran testified that based on threats Ourlicht was making, “after [Officer Moran] had frisked him and found nothing, [he] reasonably suspected at that time that [Ourlicht] was hiding something else”). See 4/18 Tr. at 4070.
582 See 4/19 Tr. at 4186 (Ourlicht).
583 See id. at 4187–4188.

584 See id. at 4189–4190.

585
Ourlicht.

See id. at 4191; PX 248 (criminal court summons). Moran never handcuffed

586 See 4/19 Tr. at 4192 (Ourlicht). 587 See 4/18 Tr. at 4079 (Moran).

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Moran believed Ourlicht was “blading” the right side of his body in order to protect something in his right waist area that was preventing him from taking normal steps.588 Officer Moran claimed he saw an object running from Ourlicht’s hip along his ribs. Based on that and the way Ourlicht was walking, Officer Moran decided to stop him.589
Officer Moran completed a UF-250 in connection with the stop of Ourlicht. He checked the “suspicious bulge” box but did not identify what the bulge ultimately was.590 Officer Moran noted in his memo book that he stopped a male around 2:15 p.m. based on a suspicious bulge, and issued a summons. No other details about the stop were recorded.591
ii. Mixed Findings of Fact and Law Ourlicht was stopped when Officer Moran confronted him on the sidewalk and began questioning him — and certainly when the men began to argue about Officer Moran’s authority to demand information about Ourlicht’s comings and goings. The only articulated basis for the stop was the “blading.” Even if Officer Moran saw Ourlicht walking strangely because he had a five-subject notebook in his pocket, that is insufficient to form a “reasonable, particularized suspicion that the person is committing a crime.”592 Nothing else about the circumstances provided added basis for suspicion. It was daytime and Ourlicht made eye contact with Officer Moran, and did not attempt to evade his presence. I also do not find that Officer Moran reasonably believed that Ourlicht was armed and dangerous. The five-subject notebook, the only item that could have been the object that
588 See id. at 4051–4052. 589 See id. at 4056. 590 See id.; PX 250 (UF-250 form). 591 See 4/19 Tr. at 4068 (Moran); PX 249 (Memo Book Entry). 592 Wardlow, 528 U.S. at 124 (citing Texas, 443 U.S. at 47).
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supposedly caused Officer Moran to believe Ourlicht was armed, could not be confused for a gun, and, in fact, would be easily identifiable as a notebook.593 Therefore, I also find that the first frisk was unreasonable.
Even if the first frisk were justified, the search when the other officers arrived was not justified because Moran had already frisked Ourlicht and found nothing. Nothing that Ourlicht did after the initial stop justified Moran’s suspicion that Ourlicht was hiding “something,” much less that he was hiding a weapon. Terry’s authorization of “strictly circumscribed” protective searches contemplated that evidence of criminal conduct might be missed, but concluded that the Constitution did not permit a more intrusive search absent probable cause.594
h. Clive Lino — February 5, 2008 Stop i. Findings of Fact
Clive Lino is a thirty-two-year-old black resident of the Bronx. He works as a social worker at a non-profit faith-based organization. Lino is about five foot ten and weighs about 175 pounds.595
593 I note that because Officer Moran’s memo book and the UF-250 did not state what the suspicious bulge actually was, I conclude that it was either entirely fabricated, or was, in fact, the five subject notebook.
594 Terry, 392 U.S. at 25–26 (contrasting a search based on probable cause, which is justified on grounds other than protecting the arresting officer, including obtaining evidence of the crime, with “[a] search for weapons [which must] be strictly circumscribed. . . .”). Nor does Terry authorize stopping an individual, antagonizing him, and then conducting a more intrusive search based on post-stop allegations of disorderly conduct. Even Moran doesn’t contend that Ourlicht was being disorderly before he frisked him. Ourlicht admits that he questioned the basis for the stop and the need for ID but not that he was being disorderly. Because Officer Moran’s memo book had no details and his memory is limited, I credit Ourlicht, who acknowledged that he used obscenity after receiving the summons and is generally more credible.
595 See 4/1 Tr. at 1728–1729, 1762 (Lino). 149

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On February 5, Officer Brian Kovall, who is white, and Officer Edward Arias, who is black, learned during roll call of a robbery pattern involving two black males, one wearing a beige or yellow coat and the other wearing a blue or black coat, committing gunpoint robberies in the vicinity of a check-cashing location near 103rd Street and Lexington Avenue, a high crime area.596 The height range for the suspects was five foot six to six foot two, the weight range was 170 to 200 pounds, and the age range was mid-twenties.597 Officer Kovall watched a video of the two suspects running, which was taken around noon on January 30.598
Around 8:00 p.m. on February 5, Lino and his friend James went to pick up takeout from a Chinese restaurant at 103rd Street and Lexington Avenue. At the time, Lino lived just two blocks from the restaurant. Lino and James ordered food and were waiting outside the restaurant facing the street.599 Lino was wearing a tan State Property-brand jacket and James was wearing the same jacket in a greenish color.600
As Lino and James waited outside for their food, Officers Kovall and Arias approached and ordered Lino and James to take their hands out of their pockets, which they did after several requests.601 The officers asked the men what they were doing on the corner, where they were going, where they were coming from, where they lived, and if they had ID. Lino said
596 See 4/16 Tr. at 3468–3471, 3485 (Arias). See also id. at 3479 (there are higher crime rates near subways stations).
597 I note that this description is so generic as to cover the vast majority of young black males.
598 See 4/10 Tr. at 3045, 3063–3064 (Kovall). Officer Kovall testified that the man running “looked like — I don’t want to say a normal person, but of a medium stature, as [did] Mr. Lino and the other gentleman stopped.” Id. at 3077.
599 See 4/1 Tr. at 1729–1730, 1752, 1765. 600 See id. at 1731–1732. 601 See 4/10 Tr. at 3050, 3069.
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he did not have ID because he had just come from his apartment to get food and was going right back there.602 Lino and James were not free to leave.603
The officers informed Lino and James that they were stopped because they fit the description of armed robbery suspects. Officer Arias stated that they had orders to stop anyone on that particular corner whenever they felt like it.604 Officer Arias frisked Lino’s pockets and waist but did not reach inside his pockets.605 The officers obtained Lino and James’s names and addresses.
The officers called their supervising Lieutenant to come down and confirm whether these men were the robbery suspects, which took five to ten minutes.606 During that time, Officer Kovall permitted Lino to enter the restaurant and get the food because Officer Kovall was “satisfied that there were absolutely no weapons on either individual.”607
After Lino returned with the food, Lieutenant Gaglio and two other officers arrived in plainclothes. Lino knew they were officers because “they spoke to the officers who were already there, and they were able to have access to us.”608 After asking the same questions that Officers Kovall and Arias had asked, Lieutenant Gaglio told Officer Kovall and Arias that

602 See 4/1 Tr. at 1732–1733, 1768 (Lino).
603 See 4/10 Tr. at 3048 (Kovall); 4/16 Tr. at 3473 (Arias).
604 See 4/1 Tr. at 1734 (Lino). I credit this testimony both because Lino’s recollection of the stop was generally credible and because Officer Arias testified that the particular corner of 103rd and Lexington was a high crime, high traffic area. See 4/16 Tr. at 3468–3471, 3485, 3479 (Arias).

605 Lino conceded that neither officer checked his pockets. See 4/1 Tr. at 1734–1735. The officers also frisked James. See id.
606 See 4/10 Tr. at 3071 (Kovall).

607

Id.

608 4/1 Tr. at 1735–1736. Accord 4/16 Tr. at 3491–3492 (Arias).

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these were not the men.609 Lieutenant Gaglio told Officers Kovall and Arias to run the men’s names. While they were doing so, one of the plainclothes officers frisked Lino again.610
Officers Kovall and Arias returned and reported a summons that Lino and James had received in January. The plainclothes officers left and Lino asked Kovall and Arias for their badge numbers. Officer Kovall provided his name and badge number, while Officer Arias just walked away.611 Lino was then free to go. He did not receive a summons and was not arrested.
Following the stop, Lino filed a complaint with the CCRB, which was unsubstantiated.612 Lino believed he and James were stopped because of their race.613
The officers stopped the men because their coats matched the description in the robbery pattern — one light coat and one dark coat. In addition, the officers observed Lino and James standing outside on a cold night in the vicinity of the robberies, and they were still there after the officers circled the block and returned.614 Officer Arias frisked Lino because the suspected crime was armed robbery.615
Officer Kovall filled out a UF-250 after stopping Lino. Under circumstances that led to the stop he checked “Fits Description”; “Area Has High Incidence Of Reported Offense
609 See 4/10 Tr. at 3072 (Kovall). 610 See 4/1 Tr. at 1735–1736 (Lino). But see 4/16 Tr. 3492 (Arias); 4/10 Tr. at 3072 (Kovall) (testifying that they did not see the other officers frisk either man). I credit Lino’s testimony that Kovall and Arias were sent to run the names because he said they returned and reported that he had an outstanding summons. 611 See 4/1 Tr. at 1736–1737 (Lino). 612 See id. at 1738; 4/16 Tr. at 3492 (Arias). 613 See 4/1 Tr. at 1774 (Lino). 614 See 4/16 Tr. at 3486–3489 (Arias). 615 See id. at 3490. Officer Arias did not fill out a UF-250 and did not follow the requirements for filling out his memo book in connection with this stop. See id. at 3475 (Arias); PX 214.
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Of Type Under Investigation”; and “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity” because of “Ongoing Investigations, e.g. Robbery Pattern.” As the reason for the frisk, Officer Kovall checked “Violent Crime Suspected” and “Knowledge Of Suspect’s Prior Criminal Violent Behavior/Use of Force/Use of Weapon,” to refer to the fact that he was looking for an armed robbery suspect. “Refusal To Comply With Officer’s Directions” was also checked, in reference to Officer Kovall’s initial instruction to Lino to remove his hands from his pockets.616
ii. Mixed Findings of Fact and Law Lino and James were stopped when the officers approached and told them to remove their hands from their pockets. Although it is a close question, I find that the officers lacked reasonable suspicion to forcibly stop Lino and James. The suspect description alone — two black men, of average height and weight, one wearing a light jacket and one wearing dark — is too generic to form the basis for reasonable suspicion, especially given the passage of time between the commission of the armed robberies and the stop of Lino and James.617 The act of standing outside in the cold near the check-cashing location for the amount of time it took the officers to circle the block does not raise the totality of the circumstances to reasonable suspicion justifying a forcible stop of Lino and James.618 No other
616 See 4/10 Tr. at 3053–3054 (Kovall); PX 211. 617 Contrast 4 LAFAVE § 9.5(h) (5th ed.) (discussing Hampleton v. United States, 10 A.3d 137 (D.C. App. 2010) (finding reasonable suspicion where robbers were described only as “black males in dark clothing,” but direction of flight and distance from the crime location fit, and defendant was stopped in close time/space relationship to that event, and “was the only one in the immediate area who fit the lookout description”) and United States v. Turner, 699 A.2d 1125 (D.C. App. 1997) (reasonable suspicion where officers arrived at scene of crime within a minute and encountered only two persons fitting fairly general description). 618 While observing the men standing facing the street across from the check-cashing location with no apparent agenda for an extended period of time might give rise to the suspicion that they were casing a location for a robbery, several minutes is insufficient.
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circumstances provided additional cause for suspicion. Furthermore, Officer Arias told Lino that
the officers had orders to stop anyone on that corner whenever they felt like it. Such an order
ignores the requirement of individualized, articulable suspicion, and Officer Arias’ reference to
it discredits the officers’ assertions that they had the requisite suspicion in this instance. Thus, the initial stop of Lino violated his Fourth Amendment rights.619
I note that the officers could easily have observed for a few minutes longer to
determine whether there was an innocent explanation for this conduct — namely obtaining the food — at no cost to their safety or law enforcement objectives.620 Moreover, they would have
been justified in approaching the men and asking them some questions — the equivalent of a
DeBour level one stop. But the intrusion here was considerably more severe and included a frisk of the men’s persons.621 The second frisk by the plainclothes officers further violated Lino’s
rights, as there was clearly no threat at that point that the men were armed and dangerous.
i. Lalit Clarkson
i. Findings of Fact
619 Lino’s rights were further violated when he was detained for additional time by the plainclothes officers. By the time these officers arrived, Lino had dispelled any suspicion that he and James were engaging in criminal activity by showing that they were in fact waiting for Chinese food. See Royer, 460 U.S. at 500 (Terry stop must “last no longer than is necessary to effectuate the purpose of the stop”).
620 The Supreme Court held that the Fourth Amendment does not require police to use the least intrusive means possible to verify their suspicions, reasoning that such a rule would “unduly hamper the police’s ability to make swift, on-the-spot decisions.” Sokolow, 490 U.S. at 10-11. However, this deference only applies when the suspicion to be verified is sufficient to justify a Terry stop. See id. at 10 (holding that the circumstances gave rise to reasonable suspicion that the suspect was smuggling drugs, and only then turning to whether police were required to use least intrusive means possible to investigate). See also El-Ghazzawy, 636 F.3d at 457–58.
621 I note that because the suspected crime was robbery at gunpoint, if the stop had been reasonable at its inception, the frisk would also have been justified, particularly in light of the men’s hesitancy to remove their hands from their pockets, which occurred before the men were frisked.
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Lalit Clarkson is a thirty-one-year-old black male who works as a union organizer and lives in New Jersey, but visits New York frequently.622 When he was stopped in January, 2006, Clarkson worked as a teacher’s assistant at Grand Concourse Academy, a school located at 169th Street in the Bronx. Clarkson was returning to the school after picking up lunch at a Subway around 1:00 p.m., wearing slacks, a tie, and a collared shirt.623 Clarkson entered a bodega on the corner of 169th and Walton, across from the school, holding a clear Subway bag containing a sandwich. He saw two plainclothes officers, one white and one Hispanic, standing in the back of the bodega, and assumed they were police because of the way they were standing and his experience in the neighborhood. Clarkson did not interact with the officers in the bodega. He purchased a food item, put it in his pocket and left the store.624
As he was about to cross the street, he heard a voice say, “hey” and he turned around. The white officer said, “come over here, can I talk to you,” and Clarkson went over. The officers showed their badges and identified themselves as police. The officers came closer to Clarkson so that eventually his back was against the bodega wall and the officers were standing between Clarkson and the street.625
The officers told Clarkson they had seen him walk past a building down the block that they knew to be a drug building. Clarkson had walked past the building because it was on the route he took back to school, but had not stopped or spoken to anyone. The officers asked
622 See 4/8 Tr. at 2634–2635 (Clarkson). 623 See id. Clarkson was not sure of the exact day he was stopped. No CCRB complaint was filed and no UF-250 or memo book entry was identified in connection with this stop. The officers who conducted the stop were never identified. Therefore, my findings regarding this stop are based entirely on Clarkson’s testimony, which I find credible. 624 See id. at 2636–2637. 625 See id. at 2638–2641.
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twice if Clarkson had any contraband on him, and he said he did not. Then they asked: “if I go in your pockets you don’t have anything on you?” Again Clarkson said no. He did not consent to a search and the officers did not search him. The officers left after Clarkson said a third time that he had no contraband, and did not consent to be searched. The stop lasted a few minutes.626 At no point did Clarkson feel free to leave.627
ii. Mixed Findings of Fact and Law Clarkson was stopped when the officers called him over and surrounded him with his back against the wall. Although merely blocking a means of egress may not constitute a seizure where the police do not actually prevent a person from leaving,628 the act of surrounding an individual on the street against a wall is an intentional “assertion of authority to restrain a person’s freedom of movement” sufficient to constitute a seizure.629 Clarkson was not required to attempt to push past the officers in order to test whether or not he was, in fact, free to leave. Because the officers lacked reasonable suspicion to stop Clarkson where all he did was walk past a building known to be associated with drugs, this stop violated the Fourth Amendment.630 2. Unconstitutional Frisk Only
a. Dominique Sindayiganza
626 See id. at 2641–2642. 627 See id. at 2643. 628 Pinto-Montoya v. Mukasey, 540 F.3d 126, 132 (2d Cir. 2008) (discussing Delgado, 466 U.S. at 218). 629 Id. (citing Brendlin v. California, 551 U.S. 249, 254 (2007) (“A person is seized . . . when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.”) (quotation marks and citations omitted)). 630 See Wardlow, 528 U.S. at 124 (citing Texas, 443 U.S. at 47) (presence in high crime area insufficient).
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i. Findings of Fact Dominique Sindayiganza is a middle-aged, black male who resides in Queens with his wife and two daughters. In 2010, Sindayiganza worked at a non-profit organization in Manhattan.631 On February 12, 2010, Sindayiganza left his office at Lexington Avenue and 25th Street around 5:30 p.m. carrying a backpack and wearing dark blue rain pants and a green winter jacket. After running an errand in Union Square, he was walking along Broadway toward the F train at 14th Street and Sixth Avenue to go home. He entered Petco on the corner of Broadway and East 17th Street thinking it was a store that sold children’s clothes. He quickly realized it was a pet store, and as he started to exit he heard someone say: “this is the guy.” Four young white male uniformed officers, including Luke White and Sean Gillespie, surrounded him and forcibly escorted him out of the store.632 Once outside, the officers surrounded Sindayiganza on the sidewalk and aggressively questioned him about what he was doing there, where he came from, and whether he was armed. The officers told him that a lady had identified him as the man who was following her and asking her for money.633 Sindayiganza replied that he was an educator, that he was buying supplies for a field trip and then going home to Queens, and that he had not followed
631 See 4/8 Tr. at 2586–2587 (Sindayiganza). 632 See id. at 2588–2592, 2598, 2606. Sindayiganza testified that the officers looked like they were in their mid-twenties and questioned him like rookie cops. See id. at 2597. See also 4/10 Tr. at 3087–3088 (White); 4/15 Tr. at 3420 (Gillespie) (both testifying that the majority of the officers in the impact squad to which they were assigned at the time of the stop were recent graduates of the police academy). 633 See 4/8 Tr. at 2592–2595 (Sindayiganza). Officer White spoke first with the Petco employee and then directly with the woman. The woman did not say that she was verbally threatened or touched and she did not identify herself when she initially spoke with Officer White. See 4/10 Tr. at 3093–3094 (White).
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any lady. He asked to see the woman so he could clear his name and was told he could not.634 At some point during this initial interaction, Officer White frisked Sindayiganza.635
Officer White asked Sindayiganza for ID and then went into Petco to see if the woman could identify Sindayiganza as the harrasser. The other officers continued to aggressively question Sindayiganza.636 The woman identified Sindayiganza and stated that she just wanted him to leave.637 Officer White went back outside and told Sindayiganza that he could go but that he had to walk north up Broadway. Sindayiganza asked if he could go to the 4 train or the F train, both of which were south, and was told he could not. Sindayiganza asked indignantly why, if he was free to go, he could not go to the train that would take him directly home.638 He was speaking loudly at this point, but was not yelling.639
Officer White went back inside Petco and conferred with the woman who said she wanted Sindayiganza arrested. Officer White then told Sindayiganza that he was going to teach him a lesson and told him to put his hands against the wall, made him take off his backpack, handcuffed him, and forced him to sit down on the sidewalk.640 Another officer looked through
634 See 4/8 Tr. at 2596–2597 (Sindayiganza). 635 See 4/10 Tr. at 3115–3116 (White) (testifying that although he may have frisked Sindayiganza before arresting him, it was all part of a continuous event and acknowledging that he testified in his CCRB report that he patted down Sindayiganza before the woman informed him that she wanted to press charges). 636 See 4/8 Tr. at 2597–2599 (Sindayiganza); 4/10 Tr. at 3102 (White). Officer White clarified that he did not specifically point out Sindayiganza to the woman, but rather asked her if she recognized anyone. See 4/10 Tr. at 3105 (White). 637 See 4/10 Tr. at 3106–3107 (White). 638 See 4/8 Tr. at 2599–2600 (Sindayiganza). See id. at 2616. Accord 4/10 Tr. at 3108 (White). 639 See 4/10 Tr. at 3146 (White). 640 See 4/8 Tr. at 2600 (Sindayiganza). Just before handcuffing Sindayiganza, Officer White spoke to the woman who identified Sindayiganza and told her that Sindayiganza
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Sindayiganza’s backpack and removed items, and opened his jacket and searched his pockets, all without consent. When Sindayiganza asked why he was being arrested, the officers told him it was for “excessive panhandling.” Sindayiganza was then taken in a police car to the precinct and given a summons for disorderly conduct, which was never prosecuted.641 Sindayiganza submitted a CCRB complaint online a day or two after the event and provided a sworn statement seven months later.642
Officer White believed he had reasonable suspicion to stop Sindayiganza because he matched the woman’s description — tall, light-skinned black male with dark hair, a big backpack, glasses, a green jacket, and green pants — and was in close proximity to the location of the incident.643 Officer White believed he had probable cause to arrest Sindayiganza for aggravated harassment based on the woman’s allegations and identification.644 He further believed that once he handcuffed Sindayiganza, he had the right to search him incident to arrest.645 No arrest report was filled out and only a summons for disorderly conduct was
was refusing to walk north, at which point she told Officer White that she wanted to press charges. Until she said this, Officer White had no intention of arresting Sindayiganza, although he believed he had probable cause to do so based on the witness’s identification. See 4/10 Tr. at 3112 (White).
641 See 4/8 Tr. at 2600–2602 (Sindayiganza). 642 See id. at 2623–2624. Sindayiganza explained that he did not want to provide a sworn statement to the CCRB until his summons was resolved because he was unsure how legal proceedings worked. See id. at 2629. 643 See 4/10 Tr. at 3104, 3143 (White). 644 See id. at 3117. 645 See id. at 3112–3113, 3120. One of the officers obtained the woman’s personal identification prior to handcuffing Sindayiganza but Officer White threw it out once it was determined that Sindayiganza would not be arrested. See id. at 3123–3124.
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issued.646
ii. Mixed Findings of Law and Fact
Sindayiganza was stopped when the police surrounded him and escorted him
outside. The police had reasonable suspicion to forcibly stop Sindayiganza for suspected
harassment because he matched a specific description provided by an identified victim, and was in close proximity to the reported harassment just minutes after it allegedly occurred.647
There was, however, no basis to frisk Sindayiganza. His stop was based on a
woman’s report that a man had been following her and asking her repeatedly for money, which caused her alarm.648 The woman never said she believed her harasser was armed, or that she had
been physically threatened.
The frisk cannot be justified as a search incident to arrest that preceded the arrest.
As a preliminary matter, the officers almost certainly lacked probable cause under New York
law to arrest Sindayiganza. Based on the woman’s allegations, Officer White at most had
reasonable suspicion that Sindayiganza had committed harassment in the second degree, a violation under New York law.649 New York law prohibits arrest based on second–degree
646 See id. at 3121. No UF-250 was filled out. See id. at 3125. Officer White recorded the arrest in his memo book and noted that the arrest occurred about fifteen minutes after he stopped Sindayiganza. See id. at 3131.
647 See Williams, 407 U.S. at 147 (holding that “when the victim of a street crime seeks immediate police aid and gives a description of [her] assailant,” that may form the basis for reasonable suspicion and a forcible stop).
648 See Def. Findings ¶ 2 (describing Sindayiganza stop). 649 See PL § 240.26 (defining harassment in the second degree as “follow[ing] a person in or about a public place or places; or . . . engag[ing] in a course of conduct . . . which alarm[s] or seriously annoy[s] such other person and which serve[s] no legitimate purpose”). Although Officer White stated that he had probable cause to arrest Sindayiganza for aggravated harassment, nothing about the woman’s statement suggested any fear of physical injury, much less any of the elements of aggravated harassment. See id. § 240.30 (aggravated harassment, even in the second degree, involves use of the mails or telephone, or use of physical violence).
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harassment that does not occur in the arresting officer’s presence.650
Even if probable cause for an arrest had existed, when Officer White frisked
Sindayiganza he had no intention of arresting him; rather he planned to let Sindayiganza leave,
as long as he walked north. A frisk cannot be justified after the fact as a search incident to
arrest, where there is no intent to arrest at the time the frisk is conducted.651
b. David Floyd — April 20, 2007 Stop652
i. Findings of Fact
David Floyd is a thirty-three-year-old black male who lived in the Bronx from
650 See CPL § 140.10 (commentary) (“Where [violations] are concerned . . . while an arrest, even for an offense punishable only by a fine, does not violate federal constitutional Fourth Amendment rights . . . , [New York law] bars an arrest based upon a report made to the officer about something that occurred outside the officer’s presence.”). Accord People v. Solomon, 817 N.Y.S.2d 819 (4th Dep’t 2006) (“The warrantless arrest of defendant for a violation, i.e., harassment, that did not occur in the presence of the arresting officers was illegal.”). Although arrest for the violation would not have violated Sindayiganza’s Fourth Amendment rights per se, the fact that the officers lacked authority to arrest Sindayiganza under New York law forecloses using search incident to arrest as a basis for the stop.
651 The Second Circuit has upheld the constitutionality of the search incident to arrest conducted prior to an arrest where probable cause to arrest existed and an arrest was later effectuated. See United States v. Wilson, 94 Fed. App’x 14, 17 (2d Cir. 2004) (“Once probable cause was established, it is irrelevant whether the officers’ searches of Wilson occurred prior or subsequent to his arrest.”); United States v. Jenkins, 496 F.2d 57, 72–73 (2d Cir. 1974). However, these cases left open the question whether a search could be justified as a search incident to arrest where no arrest was ever made. See Evans v. Solomon, 681 F. Supp. 2d 233, 249 (E.D.N.Y. 2010). Although the court in Evans held that the search was justified even if no arrest was ultimately made, I decline to go a step further and hold that a search can be justified as incident to arrest where the officer has no intention of arresting the individual at the time the search is conducted.
652 No officers were ever identified in connection with this stop. I am satisfied that the defendant performed a thorough investigation to identify the officers who conducted this stop. See 4/30 Tr. at 5480 (Stipulation). Floyd was uncertain about the exact day that the stop occurred. See 3/18 Tr. at 196–197 (Floyd). However, I find Floyd’s testimony generally credible and sufficiently detailed, and base my findings on that testimony.
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2001 until 2010, when he left to attend medical school.653 On or around April 20, 2007, a Friday, Floyd was coming from the subway walking towards his home at 1359 Beach Avenue in the Bronx, wearing jeans and sneakers, and carrying his wallet, keys and cell phone in his pocket.654 As he crossed East 172nd Street, Floyd saw two police officers about a block-and-a-half away interacting with another individual. The officers then got into a van and Floyd continued walking down Beach Avenue toward his home. Shortly thereafter, the van pulled up to Floyd and the officer in the driver’s seat said, “Excuse me, may I speak to you, sir?” Floyd immediately stopped walking.655
Three uniformed officers, one Latino male, one white male and one female, exited the vehicle and one asked Floyd for ID.656 Floyd asked whether he had to give ID, but did not feel free to refuse.657 After he produced the ID, Floyd reached into his pocket to get his cell phone or a pen to write down the officers’ identification. The white male officer jumped toward him and Floyd immediately stopped and put his hands up and said, “it’s a cellphone.” The officer said that it made him nervous when people put their hands in their pockets. The officer asked Floyd if he had a weapon, and Floyd said he did not and that he did not consent to being searched. The officer proceeded to pat down Floyd’s entire body including pushing the cell phone, a BlackBerry, up out of Floyd’s pocket with his finger.658
653 3/18 Tr. at 160–161 (Floyd). 654 See id. at 161–162. 655 See id. at 164–166, 213. 656 See id. at 166. 657 See id. at 166–168. See also 3/19 Tr. at 223 (“Q: [Y]ou knew that you were free not to give the ID to the police officer, correct? A: I did not feel like it would have been smart for me not to have given it to them. So I did give it to them.”). 658 See 3/18 Tr. at 170–172; 3/19 Tr. at 229, 253–254.
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The frisk lasted about thirty seconds and then the officer holding Floyd’s ID told him it was illegal for him not to have a New York City license — Floyd’s ID was out-of-state. The officers then got back in the van. Floyd asked for names and badge numbers and two of the officers identified themselves as Rodriguez and Goodman and provided badge numbers. The officers then left.659 Floyd did not file a CCRB complaint in connection with this stop.660
ii. Mixed Finding of Fact and Law Without testimony from the stopping officers, I have insufficient evidence to determine whether they had reasonable suspicion to approach Floyd and question him. However, I credit Floyd’s testimony and find that there was no basis for the frisk. The officers did not appear to believe that Floyd was armed and dangerous when they approached him, because they did not immediately frisk him. Nothing in Floyd’s behavior gave the officers reason to reconsider whether Floyd was “armed and dangerous.” He reached for his cell phone and promptly identified it as such. The officer asked Floyd if he had a weapon and Floyd said he did not. I find that there was no credible basis for believing Floyd was armed and dangerous. Therefore, the frisk was unconstitutional.
c. David Floyd — February 27, 2008 Stop i. Findings of Fact
On February 27, 2008, Floyd resided on Beach Avenue in a three-family home with a separate cottage. Floyd’s Godmother owned the property and lived on the top floor, and tenants occupied the ground floor and the basement. Floyd lived in the cottage. Around 3:00 p.m., Floyd left the cottage carrying a backpack, with his wallet, cell phone, keys, and some
659 See 3/18 Tr. at 172–173. The badge numbers that Floyd identified did not belong to officers named Rodriguez or Goodman. See id. at 204–205.
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change in his pocket. Before Floyd got to the street, the basement tenant, also a black male, told Floyd that he was locked out of his apartment and asked for Floyd’s assistance because Floyd had access to the spare keys.661
Floyd retrieved seven to ten keys on separate key rings from his Godmother’s apartment and went to the door of the basement apartment with the tenant. Because the keys were not marked, both Floyd and the tenant tried five or six different keys for a minute or two.662 At that point, three plainclothes officers, since identified as Officers Cormac Joyce and Eric Hernandez, and Sergeant James Kelly, approached and told Floyd and the tenant to stop what they were doing and put their hands up.663 Floyd obeyed.664 Officer Joyce patted Floyd down and searched Floyd’s pockets without his consent.665 He did not remove anything from Floyd’s pockets.666
After frisking the men, the officers remained calm throughout the encounter.667 The officers asked the men for ID, and Floyd showed his Louisiana drivers’ license. The tenant did not have ID on him. After additional inquiries, Floyd produced an electric bill with his name and address on it, and the tenant went inside his apartment and got ID.668 Floyd asked why he
661 See 3/18 Tr. at 174–177, 180. 662 See id. at 177–178; 3/19 Tr. at 237 (Floyd). 663 See 3/19 Tr. at 239–241 (Floyd); 3/28 Tr. at 1312 (Joyce). 664 See 3/28 Tr. at 1322 (Joyce) (testifying that the officers would not have permitted the men to leave). 665 See 3/18 Tr. at 179–180 (Floyd). Joyce admitted frisking Floyd but disputes that he put his hands in Floyd’s pockets. See 3/28 Tr. at 1329, 1364 (Joyce). 666 See 3/19 Tr. at 244 (Floyd). 667 See id. at 247. 668 See id. at 244–246.
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had been stopped and the officers informed him that there had been a pattern of burglaries in the area. Floyd asked for the officers’ names and badge numbers and the officers provided them. The officers then left.669
Earlier that day the officers had been patrolling Beach Avenue in response to reports of robberies and burglaries of private homes in the area — specifically the area of the 43rd Precinct near the Cross-Bronx Expressway. Proximity to the Cross-Bronx Expressway was significant because it provided easy access for a vehicle to get away from the area quickly.670 The majority of the burglaries in the pattern identified during trial occurred in January 2008, with the last occurring on February 2.671
The officers observed Floyd and the tenant for about two minutes before approaching them.672 Sergeant Kelly observed them playing with the door knob, and also saw a bag on the ground next to Floyd.673 When he approached the men, he saw that they were trying numerous keys, which was consistent with his belief that they might be burglars, because burglars sometimes have master keys.674 The basis for the frisk was the belief that Floyd and the tenant were in the process of committing a violent felony.675
669 See 3/18 Tr. at 181; 3/19 Tr. at 245. 670 See 3/28 Tr. at 1360, 1362. Accord id. at 1404–1406 (Hernandez) (testifying that many robberies and burglaries happened near the Cross-Bronx and that there was a specific burglary pattern in private homes in the northern part of the 43rd Precinct that day). See also DX K13 (mapping out burglary pattern). 671 See 3/28 Tr. at 1411 (Hernandez); DX L4. Officer Hernandez could not confirm whether he saw the specific burglary pattern identified in DX L4, but testified that he was aware of patterns of burglaries and robberies in that area on the day he stopped Floyd. 672 See 3/28 Tr. at 1319 (Joyce) (discussing UF-250 form). 673 See id. at 1450 (Kelly). 674 See 3/29 Tr. at 1480. 675 See id. at 1363 (Joyce). See also id. at 1509 (Kelly).
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Officer Joyce filled out a UF-250 in connection with this stop. He checked the box for Furtive Movements based on the jostling of the doorknob and the keys.676 He also checked time of day corresponding to criminal activity.677
ii. Mixed Findings of Fact and Law Floyd was stopped when the officers told him to stop what he was doing and raise his hands. The totality of the circumstances established reasonable suspicion to stop Floyd and his neighbor. The officers observed the men jostling the door knob and trying numerous keys in the door, and also observed a backpack on the ground. Beach Avenue is near the Cross Bronx Expressway, which makes it a target for burglary. The officers also had knowledge of a specific burglary pattern in the area of Beach Avenue. Although the last reported burglary was over three weeks before Floyd was stopped, the totality of the circumstances just recounted justified the officers’ belief that the men might be in the process of committing a daytime burglary. Furthermore, because burglary is often a violent crime, the officers were justified in promptly telling the men to put their hands up and frisking their outer garments for weapons before further investigating.678 The stop was also reasonable in duration because Floyd’s ID was out of state and the basement tenant did not have ID on him. Therefore, the officers were justified in continuing to investigate the possibility that the men were burglars. However, Officer Joyce did not testify that he felt anything that might be a weapon or anything that was
676 See 3/28 Tr. at 1327 (Joyce); DX X4 (UF-250 form). Officer Joyce also checked the box for “evasive, false or inconsistent response to officer’s question,” which he explained was based on the out-of-state ID, which was inconsistent with Floyd living on Beach Avenue. See 3/28 Tr. at 1330–1331 (Joyce). This is irrelevant, however, because it relates to events that occurred after the stop and frisk had already taken place.
677 See 3/28 Tr. at 1333–1334 (Joyce). 678 See Terry, 392 U.S. at 28 (frisk justified where “[t]he [suspects’] actions . . . were consistent with . . . a daylight robbery — which, it is reasonable to assume, would be likely to involve the use of weapons”).
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clearly contraband. Therefore, Officer Joyce violated Floyd’s Fourth Amendment rights when he felt inside his pockets.
d. Clive Lino — February 24, 2011 Stop i. Findings of Fact
On the night of February 24, 2011, Lino was at a party at his mother’s apartment at 102nd Street and Third Avenue. He left the apartment to take the subway home, wearing a red leather Pelle Pelle brand jacket and carrying a white plastic grocery bag full of Tupperware containing leftover food.679
Lino entered the subway at 103rd Street and Lexington Avenue and noticed two male police officers, since identified as Officer Daniel Leek, who is white, and Officer Edgar Figueroa, who is Hispanic.680 Lino went down to the uptown platform.681 As an uptown-bound train was pulling into the station, the officers entered the uptown platform. Lino stepped back on the platform to let them pass but instead the officers surrounded him.682
Officer Figueroa immediately put his hand in Lino’s right jacket pocket, and Lino pushed it away while stepping aside. Lino asked what the problem was, to which the officers responded that he needed to wait with them. Lino missed the train. Lino asked why he was being stopped and stated his belief that his race was the reason. Officer Leek said, “If you shut
679 See 4/1 Tr. at 1738–1739. Lino’s jacket was red leather, said “Pelle Pelle” on the front and had no white stripes or numbers on it. Lino testified that it is a popular brand.
680 See id. at 1739 (Lino). On February 24, Officers Leek and Figueroa were conducting a directed patrol in the subway station at 103rd Street and Lexington Avenue because it is a high pedestrian traffic, high crime area. See 4/8 Tr. at 2695, 2725 (Leek).
681 See 4/1 Tr. at 1739 (Lino). 682 See id. at 1740.
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the fuck up, we’ll tell you why we stopped you.”683 The officers told Lino to put the bag of food on the platform, which he refused to
do because it was filthy. Officer Figueroa said “just put the [fuck]ing bag down” and reached for the bag. Lino placed the bag on the bench. The officers asked for ID, which Lino produced.684
Officer Leek asked Lino if he had anything on him that he shouldn’t have and Lino said no. Officer Leek then said, “Do you mind if we check?”685 While Lino may have initially consented, he clearly did not agree to be searched and at one point said, “you can’t search me.”686 Yet Officer Leek patted his waist and front pockets, and Officer Figueroa reached into his back pockets. When Lino looked back at what Officer Figueroa was doing, Officer Figueroa asked if Lino had a “fucking problem.” Lino said he did have a problem because the officer “was in his pockets.”687 He had not yet been told why he had been stopped. Officer Leek eventually informed Lino that he was being stopped because there were reports of a shooting suspect wearing a jacket similar to Lino’s.688
After frisking Lino, the officers forced Lino to go upstairs with them without explaining why. At no point was Lino free to walk away.689 Outside the subway station, Officer
683 See id. at 1741–1742. See also 4/8 Tr. at 2737, 2773 (Leek). 684 See 4/1 Tr. at 1742 (Lino). 685 4/8 Tr. at 2754 (Leek). 686 Id. at 2759 (Figueroa). See also PX 216 (Officer Leek memo book) (stating that Lino gave permission for frisk when Leek asked him). 687 4/1 Tr. at 1743 (Lino). Accord 4/8 Tr. at 2760 (Figueroa) (testifying that Lino jerked his body around when he felt Officer Figueroa’s hands on his back pockets, at which point Officer Figueroa asked if there was a problem). 688 See 4/1 Tr. at 1743 (Lino). 689 See id. at 1745–1746; 4/8 Tr. at 2734 (Leek) (investigative stop was not completed when the officers took Lino upstairs); id. at 2774 (Figueroa) (same).
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Figueroa stayed with Lino while Officer Leek took Lino’s ID to the police van where his Sergeant was waiting. Officer Leek attempted, unsuccessfully, to locate the wanted poster describing the shooting suspect. He did not run Lino’s ID because Lino had not, to Officer Leek’s knowledge, committed a crime.690 Officer Leek returned and the officers walked Lino back down to the platform, without his having to pay another fare, and returned his ID.691
Lino never received a ticket or summons. The interaction lasted about twenty minutes.692 Following the interaction, Lino filed a complaint with the CCRB. The CCRB complaint was substantiated with respect to the stop and charges were recommended against the officers. The allegations regarding the search and the officers’ use of rude or obscene language were unsubstantiated.693
The officers stopped Lino because he matched a description of a homicide suspect from a wanted poster given to them by their sergeant at the beginning of their tour that day. The poster stated that the crime occurred on February 10, 2011, two weeks earlier, at 108th Street and Madison Avenue, two avenues and five blocks away from where Lino was stopped. The poster described a black male approximately five foot nine to six feet tall and showed a security
690 See 4/8 Tr. at 2704–2706, 2735–2736 (Leek). Sergeant Shirvis never exited the van, and did not confirm whether Lino was the suspect.
691 See 4/1 Tr. at 1746–1747 (Lino). Lino then pulled out his cell phone and Officer Leek said “Oh, no, you’re not taking no fucking pictures of me.” Id. at 1748. Lino asked Officer Figueroa for his information, and Officer Figueroa mumbled it. When Lino asked for his information again, Officer Figueroa said, “I already gave it to you, if you didn’t get it the first time too bad.” Id.
692 See id. Accord 4/8 Tr. at 2706 (Leek). 693 See PX 194. Lino received no additional follow up. See 4/1 Tr. at 1748–1749 (Lino). Officer Leek received a letter notifying him that the charges against him had been substantiated but received no reprimand or further training. See 4/8 Tr. at 2708 (Leek). Officer Figueroa was put on monitoring because it was the third CCRB complaint filed against him and the CCRB recommended that charges be brought. See id. at 2761 (Figueroa).
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photo of the suspect leaving the shooting wearing a red leather Pelle Pelle jacket, and two stock photos of such a jacket.694 From the photo, Officer Leek discerned the suspect’s height, weight, and an age range of eighteen to thirty.695
Officer Leek believed that Lino’s jacket, height and complexion matched the crime scene photo. In addition, he noticed that the jacket was loose-fitting and bulky.696 Officer Leek frisked Lino because he matched the description of a murder suspect, had a bulky jacket that could conceal a weapon, and was in a high crime area.697
ii. Mixed Findings of Fact and Law Lino was stopped when the officers surrounded him on the subway platform. Although the murder was two weeks old, the distinctiveness of the red leather Pelle Pelle jacket, along with the three-inch height range — which was verifiable from the suspect photo — and the suspect’s race, “afford[ed] a sufficient basis for ‘selective investigative procedures’ vis-a-vis a universe made up of all [potential suspects] of the crime in question.”698 It was reasonable to assume that the murder suspect might have lived in the neighborhood and remained or returned within an eight-block radius. Murder is a violent crime that would justify a frisk. Although the crime was two weeks old, it was reasonable to believe that the suspect in a shooting might still be armed and, if
694 See PX 187; 4/8 Tr. at 2698–2699, 2722 (Leek). 695 See 4/8 Tr. at 2723 (Leek). 696 See id. at 2726–2727. Accord id. at 2756 (Figueroa). 697 See id. at 2731–2732 (Leek). 698 4 LAFAVE § 9.5(h) (quotations and citations ommitted). See also U.S. v. Marxen, 410 F.3d 326, 330 (6th Cir. 2005) (“The mere passage of time [– eleven days –], however, does not negate the lawfulness of the stop under the circumstances presented.”).
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approached and questioned about the murder, would pose a danger to the officers.699 Because the jacket was loose and a train was approaching, the officers could not readily verify whether Lino was the right person or whether he was armed before stopping and frisking him.
Although both the stop and the frisk were justified at their inception, the frisk was not “reasonably related in scope to the justification for [its] initiation.”700 Officer Figueroa immediately put his hands in Lino’s pockets without Lino’s consent, and the officers later conducted a search, to which they acknowledge Lino did not consent. The frisk, particularly in combination with the abusive manner in which the stop was conducted, violated Lino’s Fourth Amendment rights.
e. Deon Dennis i. Findings of Fact
Deon Dennis was raised in Harlem and resides in South Carolina, but visits New York frequently.701 Around 8:00 p.m. on January 12, 2008, Dennis arrived at the apartment of his then-girlfriend at 122nd Street and Seventh Avenue to help set up for her birthday party, which was scheduled to begin at 11:00 p.m.702 While setting up he drank a beer and some brandy in a plastic cup.703 Later, Dennis went to smoke a cigarette on the sidewalk outside the building on Seventh Avenue, while his girlfriend went to the store. The street was empty. Dennis was wearing a jacket and jeans, and had his cell phone, keys, wallet and cigarettes in his
699 See Terry, 392 U.S. at 27 (“The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”).
700 Id. at 29 (citations omitted). 701 See 3/19 Tr. at 263 (D. Dennis). 702 See id. at 278–279. 703 See id. at 266.
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pocket.704 After Dennis finished his cigarette, an NYPD van pulled up and two uniformed
officers, Angelica Salmeron and Luis Pichardo, both of whom are Hispanic, approached Dennis.705 Dennis was not free to leave.706 Officer Salmeron pointed to a cup several feet to the right of Dennis and asked if it was his cup. Dennis said it was not. Officer Pichardo asked if Dennis had been drinking, and Dennis said he had been drinking earlier.707 The officers claim that Dennis had a cup in his hands and was drinking from it when they approached him, and that there was a bottle of Hennessy on the sidewalk.708
The officers asked Dennis for ID and he produced his driver’s license from the wallet in his pocket. Officer Salmeron took Dennis’s ID to the van while Officer Pichardo stayed and searched Dennis’s jacket and pants pockets without consent. During the search, Dennis was standing with his wallet in his hand and his hands raised at chest level.709
Officer Salmeron returned from the van having discovered an active warrant against Dennis. The officers then handcuffed Dennis and put him in the back of the van based on the open container violation and the active warrant.710 Dennis’s girlfriend returned and saw
704 See id. at 268, 286. 705 The officers were patrolling Seventh Avenue that night on assignment to enforce “quality of life” offenses. See 3/22 Tr. at 852 (Salmeron). 706 See 4/27 Tr. at 1270 (Pichardo). 707 See 3/19 Tr. at 269–272 (D. Dennis). 708 See 3/22 Tr. at 853 (Salmeron). The officers also claim that when they asked what he was doing Dennis replied that he was drinking some Hennessy, that it was a Saturday night and his girlfriend’s birthday and that they were going out later. The officers claim that there was a bottle of Hennessy on the sidewalk next to Dennis. See id. 709 See 3/19 Tr. at 272–274 (D. Dennis). 710 See 3/22 Tr. at 854–855, 872 (Salmeron); 3/27 Tr. at 1272 (Pichardo) (“So instead of giving him a summons you arrested him, correct? A. Yes[.]”).
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Dennis handcuffed.711 No summons was issued and Dennis was never prosecuted for drinking in public. No alcohol was vouchered or put in evidence.712 Neither officer recorded the incident in his or her memo book.713 Dennis’s girlfriend filed a CCRB complaint about Dennis’s arrest, and Dennis spoke with a CCRB officer about the incident.714 Dennis believes that he was stopped because of his race, because “only blacks and Hispanics get stopped in Harlem.”715
ii. Mixed Findings of Fact and Law Based on the conflicting testimony about what the officers saw when they approached Dennis, and because plaintiffs bear the burden of proof, I cannot find by a preponderance of the evidence that the officers lacked reasonable suspicion that Dennis was violating New York’s open container law.716 However, even if the officers saw Dennis drinking from a plastic cup, they would only have had reasonable suspicion to approach him and investigate further.717 They did not have reasonable suspicion to frisk or search Dennis. The officers acknowledge that when they took Dennis’s ID to the van, they intended to issue him a summons, not to arrest him. Even assuming the officers were justified in issuing Dennis a summons for violating open container laws, and even with knowledge of an
711 See 3/19 Tr. at 274–275 (D. Dennis). 712 See 3/27 Tr. at 1272–1273 (Pichardo); 3/19 Tr. at 275–276 (D. Dennis). 713 See 3/28 Tr. at 1286 (Pichardo). 714 See 3/19 Tr. at 276–277 (D. Dennis) 715 Id. at 295. 716 I do not, however, find that the officers had probable cause to arrest Dennis when they approached him. 717 See People v. Mack, 853 N.Y.S.2d 764, 765 (4th Dep’t 2008) (holding that the viewing of three men, one of whom was drinking from a large bottle wrapped in a brown paper bag, established reasonable suspicion of violation of the open container ordinance).
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active warrant, there was no basis for Officer Pichardo to frisk, let alone search, Dennis.718 The
authority to conduct a protective frisk when issuing a summons for a violation is limited to
occasions where officers have reason to believe that the suspect is armed and dangerous.719
Absent any indication that Dennis posed a threat to the officers’ safety, there was no basis to
conduct a frisk or search prior to arresting Dennis. Officer Pichardo’s search violated Dennis’s
Fourth Amendment rights.720
3. Failure of Proof
a. John Doe Stops of Nicholas Peart in Spring 2008 and February 2010 and David Ourlicht in February and June 2008
In the John Doe stops discussed below, plaintiffs’ testimony did not provide
sufficiently detailed credible information for me to find, by a preponderance of the evidence, that
the stop and, in some cases, frisk, lacked reasonable suspicion.721 Nicholas Peart testified that he
was stopped and frisked in the Spring of 2008 in Brooklyn, based on a burglary pattern.
718 See People v. Muhammad, 502 N.Y.S.2d 859, 860 (4th Dep’t 1986) (“Even assuming, however, that defendant carried an open beer bottle or was drinking beer, the officer would not have been authorized to frisk or search defendant for a suspected violation of an ordinance.”) (citations omitted).
719 See, e.g., People v. King, 476 N.Y.S.2d 847, 849 (1st Dep’t 1984) (officer has authority to conduct a search for safety purposes in circumstances that reveal only the commission of a violation where it was reasonable for an arresting officer to believe that the suspect might resist the officers efforts to arrest him or issue a summons to him).
720 Compare Mack, 853 N.Y.S.2d at 765 (holding, in the context of a stop for an open container violation, that, “[t]he disproportionately frightened reaction of defendant upon seeing the [officers], his refusal to remove his hand from his pocket despite the repeated demands of [the officer], his conduct in walking toward that officer with his hand in his pocket, and the fact that the area in which the incident occurred was one in which violent crimes and shootings were common provided the officers with reasonable suspicion [] that defendant posed a threat to their safety”).
721 I find that the NYPD’a attempts to identify the officers involved in the stops of Ourlicht and Peart were sufficient. See 4/30 Tr. at 5471–5476 (Stipulation) (discussing Ourlicht stops); id. at 5477–5480 (discussing Peart stops). Therefore, no adverse inference against the defendant is warranted.
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Although the existence of a burglary pattern alone would not provide reasonable suspicion, I cannot conclude that there was not reasonable suspicion to stop and frisk Peart without knowing what additional information the officers had.722 Peart also testified that, in September of 2010, he was stopped and frisked at 144th Street, between Seventh and Eighth Avenues. Because I have no information about the basis for this stop, I cannot find that the stop and frisk lacked reasonable suspicion.723
David Ourlicht testified that on February 21, 2008, he and a friend were stopped and frisked near the subway station at 168th Street in the Bronx.724 I do not fully credit Ourlicht’s version of the events, and without the officers’ version of what occurred, I cannot find that Ourlicht’s Fourth or Fourteenth Amendment rights were violated. Ourlicht also testified that in June 2008, he was stopped and frisked at an apartment complex at 115th Street and Park Avenue based on reports of a gun in the area.725 Without information about the officers’ knowledge about the gun in the area, I cannot find that the stop and frisk lacked reasonable suspicion.
b. Kristianna Acevedo Stop Kristianna Acevedo is a thirty-year-old Hispanic female resident of Staten Island and works as a recruiter of home health aides. In 2007 she lived in Queens.726 On Tuesday, May 29, 2007, Acevedo was walking on 43rd Street in a desolate area when she noticed two
722 See 3/19 Tr. at 327–336 (Peart). 723 See id. at 337–342. 724 See 4/19 Tr. at 4193–4203 (Ourlicht). 725 See id. 4204–4209, 4265. 726 See 4/1 Tr. at 1693–1694 (Acevedo).
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men, since identified as Detectives Louis DeMarco and Damian Vizcarrondo, in a minivan.727 Detective DeMarco spoke to Acevedo to obtain information about drug activity.728 Acevedo did not believe the men were police, so she kept walking and then began to run.729
Acevedo stopped at a UPS truck parked up the block.730 The van reversed and stopped, and three officers — Detectives DeMarco, Vizcarrondo, and a female officer, Detective Michele Hawkins — got out, approached Acevedo, and identified themselves as police.731 The officers wanted to assure Acevedo that she was not in danger because there had been recent media reports of individuals impersonating police officers.732 The detectives did not stop Acevedo based on reasonable suspicion.733 After a brief exchange, the officers left.
Acevedo called 911 to report what happened and filed a CCRB complaint.734 The CCRB substantiated the charges that the detectives abused their authority by stopping Acevedo, and failing to record the incident in their memo books. As discipline, the officers were docked one vacation day. Detective DeMarco was exonerated of the charges relating to his questioning
727 See id. at 1695–1696, 1698. 728 See 4/8 Tr. at 2659, 2664, 2684 (DeMarco). 729 See 4/29 Tr. at 5198 (Vizcarrondo). 730 See id. at 5199. 731 4/1 Tr. at 1697–1698 (Acevedo); 4/30 Tr. at 5458 (Hawkins). All three detectives were in plainclothes. See 4/1 Tr. at 1698–1699 (Acevedo). 732 See 4/8 Tr. at 2685 (DeMarco); 4/29 Tr. at 5199 (Vizcarrondo); 4/30 Tr. at 5456 (Hawkins). 733 See, e.g., 4/8 Tr. at 2659 (DeMarco); 4/30 Tr. at 5468 (Hawkins) (explaining that she did not record the stop in her memo book because she did not believe that the interaction ever rose to the level of a stop — rather, she perceived it to be a simple request for information). 734 See 4/1 Tr. at 1704–1705 (Acevedo).
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of Acevedo and the other charges were unsubstantiated.735 Acevedo clearly felt free to leave when the detectives first spoke to her because
she continued walking and eventually ran.736 What occurred after the detectives exited the van is unclear. Acevedo’s version of the events is irreconcilable with the officers’ testimony. Although the CCRB found that the officers stopped Acevedo, I did not find her story sufficiently credible to conclude by a preponderance of the evidence that a forcible stop or frisk occurred in violation of her Fourth Amendment rights.737
c. Clive Lino — August 3, 2008 Lino testified about an August 3, 2008 interaction with Officers Jose Colon and Mohamed Hassan in the lobby of his apartment, a NYCHA building at 102nd Street and Third Avenue.738 Lino’s testimony about what occurred is incompatible with the officers’ testimony.739 Because I credit the officers’ testimony, I do not find that Lino’s Fourth or Fourteenth Amendment rights were violated by this interaction. V. CONCLUSIONS OF LAW A. The City Is Liable for Violations of Plaintiffs’ Fourth Amendment Rights
735 See PX 5. 736 In fact, Acevedo did not believe the officers were police at all, so she cannot have been stopped based on their show of authority, and the officers did not use force. 737 I also do not find that race played any role in this event. I note, moreover, that this stop is anomalous insofar as the officers do not assert that they possessed reasonable suspicion of any crime and never intended to conduct a stop at all. Thus, it is of limited value in assessing the central claims at issue in this case. 738 See 4/1 Tr. at 1749–1750 (Lino). 739 Lino testified that Officer Hassan received a phone call during the stop, and suggested that his ringtone, which was a rap song, would calm Lino down. See 4/1 Tr. at 1749–1750 (Lino). Officers Hassan and Colon deny that this ever occurred. See 4/18 Tr. at 4018 (Hassan); see also id. at 4024–4025 (Colon).
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Plaintiffs established the City’s liability for the NYPD’s violation of their Fourth Amendment rights under two theories, either of which is adequate under Monell: first, plaintiffs showed that senior officials in the City and at the NYPD were deliberately indifferent to officers conducting unconstitutional stops and frisks; and second, plaintiffs showed that practices resulting in unconstitutional stops and frisks were sufficiently widespread that they had the force of law.
1. Deliberate Indifference There is no dispute that the primary concern of a police department can and should be combating crime. At the same time, section 1983 limits the lack of concern that any municipal agency may show toward constitutional violations by its employees. The NYPD’s senior officials have violated section 1983 through their deliberate indifference to unconstitutional stops, frisks, and searches. They have received both actual and constructive notice since at least 1999 of widespread Fourth Amendment violations occurring as a result of the NYPD’s stop and frisk practices. Despite this notice, they deliberately maintained and even escalated policies and practices that predictably resulted in even more widespread Fourth Amendment violations.740 Moreover, while the NYPD is an acknowledged leader in the use of data collection and analysis to improve the effectiveness of policing, it has hindered the collection of accurate data concerning the constitutionality of its stops, and made no effective use of the limited data that is available. The NYPD has repeatedly turned a blind eye to clear evidence of unconstitutional stops and frisks. Further evidence of deliberate indifference is found in the City’s current positions as expressed at trial. The City continues to argue that no plaintiff or class member was subjected to an unconstitutional stop or frisk — not Downs, Almonor, McDonald, Sindayiganza, or any of
740 These policies and practices are summarized supra Part IV.C. 178

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the other plaintiffs.741 The City defends Officer Dang’s stops in the third quarter of 2009 as unproblematic,742 despite the fact that he stopped 120 black people and 0 white people during that period. Officer Dang relied on a routine set of vague and unreliable stop justifications, and in only 5.5% of his stops made an arrest or summons.743 The City also defends the contents of the tape recordings quoted above, arguing that they “provide no basis whatsoever from which any reasonable inference can be drawn that . . . pressure for activity existed that drove officers to make unconstitutional stops.”744 In addition, the City recognizes the impossibility of tracking unconstitutional stops through UF-250s,745 but disclaims the need to develop a better, more adequate system of documentation and review.746 Indeed, the City continues to believe that there is no need to alter the status quo.747 Confronted with the persuasive statistical evidence that stops frequently lack reasonable suspicion, the City argues that even if “18% . . . of the 4.43 million stops” were legally unjustified, that “is not necessarily a widespread pattern,” and would not require a remedy.748
Throughout the class period, the need for better supervision, monitoring, training,
741 See Def. Mem. at 2–4. 742 See Def. Findings ¶¶ 50–52. 743 See DX L14. 744 Def. Mem. at 11. Accord Def. Findings ¶ 60 (“The recordings made by P.O.s Polanco and Serrano support” the conclusion that “[f]rom the Chief of Patrol down to officers straight out of the Police Academy, the message is clear: address conditions, not ‘numbers for numbers[’] sake.’”). 745 See Def. Mem. at 7. 746 See id. at 12 (presenting plaintiffs’ criticisms of the NYPD’s training, supervision, monitoring, and discipline as baseless); id. at 24 (“Plaintiffs failed to prove that the NYPD systems already in place . . . might require more than minor adjustments . . . .”). 747 See id. at 24–25. 748 Id. at 8.
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and discipline to protect against constitutional violations was obvious, but senior officials at the NYPD “‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs.’”749 Even if “deliberate indifference” were not the standard for liability, it would still perfectly describe the attitude of senior officials at the NYPD toward the risk of officers conducting stops, frisks, and searches in violation of the Fourth Amendment.
2. Widespread Practice Despite the NYPD’s deliberate failure to collect accurate data regarding stops that violate the Fourth Amendment, there is sufficient evidence of such stops to establish Monell liability based on “practices so persistent and widespread as to practically have the force of law.”750 As described above, the likely number of stops lacking reasonable suspicion was far higher than the roughly 200,000 “apparently unjustified” stops identified by Dr. Fagan. In particular, this conclusion is supported by the number of UF-250s that do not identify a suspected crime (36% of all forms in 2009), the problems inherent in the two most commonly checked stop factors (Furtive Movements and High Crime Area), and the fact that only 6% of all stops result in an arrest for any crime.751 The NYPD’s practice of making stops that lack individualized reasonable suspicion has been so pervasive and persistent as to become not only a part of the NYPD’s standard operating procedure, but a fact of daily life in some New York City neighborhoods.
749 Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192). 750 Connick, 131 S. Ct. at 1359. 751 I was not persuaded, however, by plaintiffs’ argument that “stopping people at random would more frequently uncover criminal activity,” based on the 9% arrest rate for the suspicionless roadblocks in Edmond, 531 U.S. at 32. Pl. Mem. at 2. There may be a higher likelihood of finding contraband in a randomly stopped vehicle than on the person of a randomly stopped pedestrian. In addition, the police in Edmond, unlike the NYPD in this case, used narcotics-detection dogs. See Edmond, 531 U.S. at 35.
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Likewise, the pervasiveness of unconstitutional frisks was established by the uncontested fact that over half of all people stopped are frisked, while only 1.5% of frisks reveal a weapon, as well as the institutional evidence of inaccurate training regarding when to frisk, testimony by officers who did not know the constitutional standard for a frisk, and anecdotal evidence of routine unconstitutional frisks in this case. “The security of one’s privacy against arbitrary intrusion by the police — which is at the core of the Fourth Amendment — is basic to a free society.”752 Far too many people in New York City have been deprived of this basic freedom far too often.
B. The City Is Liable for Violations of Plaintiffs’ Fourteenth Amendment Rights Plaintiffs have established the City’s liability for the NYPD’s violation of
plaintiffs’ Fourteenth Amendment rights under two theories, either of which is adequate under Monell. First, plaintiffs showed that the City, through the NYPD, has a policy of indirect racial profiling based on local criminal suspect data. Second, plaintiffs showed that senior officials in the City and at the NYPD have been deliberately indifferent to the intentionally discriminatory application of stop and frisk at the managerial and officer levels.
1. Policy of Indirect Racial Profiling Throughout this litigation the City has acknowledged and defended the NYPD’s policy of conducting stops based in part on criminal suspect data, of which race is a primary factor. The NYPD implements this policy by emphasizing to officers the importance of stopping “the right people.” In practice, officers are directed, sometimes expressly, to target certain racially defined groups for stops. “The Constitution prohibits selective enforcement of the law based on
752 Wolf v. Colorado, 338 U.S. 25, 27 (1949). 181

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considerations such as race.”753 The Second Circuit has admonished that courts should “not
condone racially motivated police behavior” and must “take seriously an allegation of racial profiling.”754 Racial profiling constitutes intentional discrimination in violation of the Equal
Protection Clause if it involves any of the following: an express classification based on race that does not survive strict scrutiny;755 the application of facially neutral criminal laws or law enforcement policies “in an intentionally discriminatory manner;”756 or a facially neutral policy that has an adverse effect and was motivated by discriminatory animus.757 The City’s policy of
targeting “the right people” for stops clearly violates the Equal Protection Clause under the
second method of proof, and, insofar as the use of race is explicit, the first.
a. Intentionally Discriminatory Application of a Facially Neutral Policy
In order to establish an equal protection violation based on an intentionally
discriminatory application of a facially neutral policy, plaintiffs “must prove that the defendants’ actions had a discriminatory effect and were motivated by a discriminatory purpose.”758 In this
753 Whren, 517 U.S. at 813. 754 United States v. Davis, 11 Fed. App’x 16, 18 (2d Cir. 2001) (citing United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992)). Accord, e.g., Chavez, 251 F.3d at 635 (noting that the use of “impermissible racial classifications in determining whom to stop, detain, and search” violates the Equal Protection Clause). 755 See Melendres v. Arpaio, No. 07 Civ. 02513, 2013 WL 2297173, at *67–68 (D. Ariz. May 24, 2013). 756 Brown, 221 F.3d at 337 (citing Yick Wo, 118 U.S. at 373–74). See also Whren, 517 U.S. at 813 (“[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause.”). 757 See Brown, 221 F.3d at 337. 758 Chavez, 251 F.3d at 635–36. In some contexts, discriminatory effect may be presumed based on proof of discriminatory intent. See Doe v. Village of Mamaroneck, 462 F. Supp. 2d 520, 543 (S.D.N.Y. 2006) (“Once racially discriminatory intent infects the application of a neutral law or policy, the group that is singled out for discriminatory treatment is no longer
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case, plaintiffs’ statistical evidence of racial disparities in stops is sufficient to show a discriminatory effect.759 In particular, plaintiffs showed that: (1) the NYPD carries out more
stops where there are more black and Hispanic residents, even when other relevant variables are
held constant; (2) NYPD officers are more likely to stop blacks and Hispanics than whites within
precincts and census tracts, even after controlling for other relevant variables; (3) NYPD officers
are more likely to use force against blacks and Hispanics than whites, after controlling for other
relevant variables; and (4) NYPD officers stop blacks and Hispanics with less justification than whites.760 In addition to their statistical evidence of a racially disproportionate impact, plaintiffs
provided significant anecdotal evidence, such as the stark racial disparities in the UF-250s
prepared by Officers Dang and Gonzalez, and the fact that Officer French chose to stop
McDonald, rather than similarly situated non-blacks nearby, based in part on generalized crime
complaints about black males.
To establish discriminatory intent, plaintiffs must show that those responsible for
the profiling did so “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects
similarly situated to any other in the eyes of the law, so adverse effects can be presumed.”). The terms “discriminatory purpose” and “discriminatory intent” are interchangeable.
759 See supra Parts IV.A and IV.B. See also Chavez, 251 F.3d at 638 (noting that the Supreme Court has “repeatedly relied on statistics” to prove discriminatory effect, citing, for example, Hunter v. Underwood, 471 U.S. 222, 227 (1985), and concluding that the Supreme Court in Armstrong rejected statistical evidence of discriminatory effect “not because plaintiffs can never use statistics to prove discriminatory effect, but because the particular statistics presented to the Court did not address the relevant issue,” id. at 639). As the discussion of benchmarking in Part IV.B makes clear, this Opinion assumes — unlike the presumption criticized in Armstrong — that there are racial disparities in crime participation rates.
760 Evidence of a racial disparity in stop justifications included the following: (a) the odds of a stop resulting in any further enforcement action are lower if the person stopped is black than if the person stopped is white; (b) stops of blacks and Hispanics are less likely to result in the seizure of a weapon than stops of whites; (c) officers are more likely to check Furtive Movements as the basis for stopping blacks and Hispanics than for whites; and (d) the greater the black population in a precinct, the less likely that a stop will result in a sanction. See generally supra Part IV.A–B.
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upon” the profiled racial groups.761 Plaintiffs are not required to prove that race was the sole, predominant, or determinative factor in a police enforcement action.762 Nor must the discrimination be based on “ill will, enmity, or hostility.”763
The NYPD has directed officers to target young black and Hispanic men because
these groups are heavily represented in criminal suspect data — the reliability of which is questionable764 — in those areas where the NYPD carries out most of its stops. Under the
NYPD’s policy, targeting the “right people” means stopping people in part because of their race.
Together with Commissioner Kelly’s statement that the NYPD focuses stop and frisks on young
blacks and Hispanics in order to instill in them a fear of being stopped, and other explicit
references to race discussed in the next section, there is a sufficient basis for inferring
761 Paterson, 594 F.3d at 163 (quoting Feeney, 442 U.S. at 279 (citation and footnote omitted)) (some quotation marks omitted).
762 Judge G. Murray Snow of the District of Arizona provides a useful summary:
A government policy is presumed to be racially discriminatory when it is “based in part on reports that referred to explicit racial characteristics.” Flores v. Pierce, 617 F.2d 1386, 1389 (9th Cir. 1980) (emphasis added) (Kennedy, J.). In Grutter [v. Bollinger], the Supreme Court applied strict scrutiny to a policy which involved race as one factor among many even though plaintiff’s expert conceded that “race is not the predominant factor” in the policy. 539 U.S. [306, 320 (2003)]; see also Arlington Heights, 429 U.S. at 263 (subjecting government action to equal protection review on “proof that a discriminatory purpose has been a motivating factor in the decision”).
Melendres, 2013 WL 2297173, at *69 (holding that the Maricopa County Sheriff’s Office violated the Equal Protection Clause through its use of Hispanic ancestry or race as a factor in forming reasonable suspicion of violating immigration laws, despite express policy against racial profiling).
763 Ferrill v. Parker Grp., Inc., 168 F.3d 468, 473 & n.7 (11th Cir. 1999). 764 The NYPD’s use of local crime suspect data to target racially defined groups for stops is not only a form of racial profiling, it is also a deeply flawed way of identifying the criminal population. See supra Part IV.B.3.b.
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discriminatory intent.765 The fact that the targeted racial groups were identified based on crime victim
complaints does not eliminate the discriminatory intent. Just as it would be impermissible for a public housing agency to adopt a facially race-neutral policy of disfavoring applications from any group that is disproportionately subject to tenant complaints, and then apply this policy to disfavor applications from a racially defined group, so it is impermissible for a police department to target its general enforcement practices against racially defined groups based on crime suspect data.
b. Express Classification Plaintiffs have readily established that the NYPD implements its policies regarding stop and frisk in a manner that intentionally discriminates based on race. While it is a closer call, I also conclude that the use of race is sufficiently integral to the policy of targeting “the right people” that the policy depends on express racial classifications. When an officer is directed to target “male blacks 14 to 21” for stops in general based on local crime suspect data — a practice that the City has defended throughout this litigation — the reference to “blacks” is an express racial classification subject to strict scrutiny.766 Chief Esposito’s concession that the NYPD has targeted young blacks and Hispanics for stops confirms that explicit references to
765 Plaintiffs have presented other circumstantial evidence of discriminatory intent, such as the NYPD’s longstanding indifference to evidence of racial discrimination in stops, discussed at greater length below. See infra Part V.B.2 (deliberate indifference); Pl. Mem. at 20–23.
766 “It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.” Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007). In order to satisfy strict scrutiny, a racial classification must be “‘narrowly tailored’ to achieve a ‘compelling’ government interest.” Id. (quoting Adarand, 515 U.S. at 227).
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race are not limited to a few rogue supervisors.767 The City has not attempted to defend — nor could it defend — the proposition that the targeting of young black males or any other racially defined group for stops is narrowly tailored to achieve a compelling government interest. Because the use of express racial classifications in the City’s policy of indirect racial profiling cannot withstand strict scrutiny, the policy violates the Equal Protection Clause.768
This policy far exceeds the permissible use of race in stopping suspects as set forth in Brown v. City of Oneonta, New York. There, the Second Circuit held that when the police carry out stops as part of a “search[] for a particular perpetrator,” the use of racial information from the victim’s description of the suspect is not an express racial classification subject to strict scrutiny.769 The court explained that the Oneonta police department’s “policy

767 See 4/10 Tr. at 3034 (Chief Esposito acknowledging that “the right people” are young black and Hispanic youths 14 to 20 for whom there is reasonable suspicion); id. at 3027–3029 (Chief Esposito acknowledging that stops are based on “who is doing th[e] shootings,” specifically “young men of color in their late teens, early 20s”). Again, I note that this targeting is based on the inaccurate assumption that the characteristics of the criminal population can be applied to the non-criminal population. The policy assumes that all members of a racially defined group are “the right people” to target for stops because some members of that group committed crimes.

768 To be sure, the policy’s use of racial classifications only becomes express at the managerial level, when commanders and supervisors acting in accordance with the policy instruct officers to target racially defined groups for stops. I note, however, that four judges of the Second Circuit, including now-Associate Supreme Court Justice Sonia Sotomayor, concluded that even the use of race in Brown — where the police attempted to stop every black person in Oneonta as part of a search for a suspect described as a young black male with a cut on his hand — constituted an express racial classification requiring strict scrutiny. See Brown v. City of Oneonta, New York, 235 F.3d 769, 779–83 (2d Cir. 2000) (Calabresi, J., dissenting from denial of rehearing in banc). Accord In re Cincinnati Policing, 209 F.R.D. 395, 401 (S.D. Ohio 2002) (noting that “[i]t is difficult to comprehend how the use of race in routine policing — for example, in the description of a suspect when the police are not in hot pursuit — could satisfy” strict scrutiny).

769
holding:

Brown, 221 F.3d at 338. The Second Circuit emphasized the narrowness of its

While we . . . believe that the conduct of the police in the circumstances presented here did not constitute a violation of the equal protection rights of

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was to investigate crimes by interviewing the victim, getting a description of the assailant, and seeking out persons who matched that description” and, as such, “was race-neutral on its face.”770
The NYPD’s policy of targeting “the right people” for stops, by contrast, is not directed toward the identification of a specific perpetrator.771 Rather, it is a policy of targeting expressly identified racial groups for stops in general. There is no dispute that it would violate equal protection for a police department to adopt an express policy of targeting members of one race for stops or other enforcement activities — such as an express policy of only pulling over speeding drivers who are Hispanic. Similarly, the following hypothetical police department policy would surely be subject to strict scrutiny, despite its failure to mention any specific race at the outset: “No one is to be stopped except the members of whatever race participated at the highest rate in violent crime during the previous month, based on suspect descriptions.” Such a policy would be especially deserving of strict scrutiny if its drafters knew that the same race would be targeted every month, and managers implementing the policy were responsible for expressly directing officers to stop members of that race. The NYPD’s policy of indirect racial
the plaintiffs, we do not establish any rule that would govern circumstances giving rise to liability that are not present in this case. Any such rule will have to wait for the appropriate case. Id. at 339. As already noted, the Second Circuit has subsequently reiterated that it is concerned about allegations of racial profiling. See Davis, 11 Fed. App’x at 18. 770 Brown, 221 F.3d at 337. 771 The Second Circuit specifically distinguished the facts of Brown from the type of policy at issue here, stating: “Plaintiffs do not allege that . . . the police used an established profile of violent criminals to determine that the suspect must have been black. Nor do they allege that the defendant law enforcement agencies have a regular policy based upon racial stereotypes that all black Oneonta residents be questioned whenever a violent crime is reported.” Id. Indeed, Brown may be strictly limited to its facts — the use of race in the search for a particular suspect in a particular crime who was identified in part by his race.
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profiling is closer to this hypothetical policy than it is to the race-neutral policy in Brown.
c. Conclusion
Whether through the use of a facially neutral policy applied in a discriminatory
manner, or through express racial profiling, targeting young black and Hispanic men for stops
based on the alleged criminal conduct of other young black or Hispanic men violates bedrock
principles of equality. Two young men in the 81st Precinct who are similarly situated in every
way, except that one is black and the other white, are similarly situated for the purposes of equal
protection and must be treated alike. Brown establishes the common-sense principle that if a
description of a specific criminal suspect includes the fact that the suspect is black, then the
police need not focus equal attention on individuals of other races in pursuit of that suspect. But
Brown specifically rejects the use of racial profiling as a basis for enforcement activity. The
Equal Protection Clause does not sanction treating similarly situated members of different racial
groups differently based on racial disparities in crime data. Indeed, such treatment would
eviscerate the core guarantees of the Equal Protection Clause. If equal protection means
anything, it means that individuals may not be punished or rewarded based on the government’s views regarding their racial group, regardless of the source of those views.772
772 Finally, the City argues, erroneously, that “plaintiffs failed to prove individual equal protection claims against known or unknown NYPD officers by proving discriminatory purpose against and discriminatory effect upon at least one of the named plaintiffs.” Def. Mem. at 18 (emphasis added). Such proof is unnecessary. Even if named plaintiffs are unable to prove their claims at trial, the claims of an unnamed member of the class is sufficient for the purposes of Article III standing and may serve as a basis for liability. See Sosna v. Iowa, 419 U.S. 393, 402 (1975) (“The controversy [required by Article III] may exist . . . between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.”); Whitlock v. Johnson, 153 F.3d 380, 384 & n.1 (7th Cir. 1998) (noting that “[t]he reasoning of Sosna . . . applies with equal force” whether named plaintiffs’ claims are terminated based on mootness or a failure on the merits); Melendres, 2013 WL 2297173, at *59 (“[W]hen the claims of named plaintiffs are not proven at trial, unnamed class members may be awarded relief so long as a ‘controversy’ still exists between the unnamed class members and the defendants.”). As discussed above, Officer French treated McDonald, an unnamed class member, differently than the similarly situated whites or Asians leaving the
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2. Deliberate Indifference
In a case alleging that a municipality bears Monell liability based on senior
officials’ deliberate indifference to equal protection violations by subordinates, it is not
necessary for plaintiffs to provide direct evidence that the senior officials were motivated by a
discriminatory purpose. Rather, it is sufficient if plaintiffs show that: (1) subordinates followed
a course of action in part because of its adverse effects on an identifiable group, and (2) senior
officials were deliberately indifferent to those adverse effects in such a way that a reasonable
inference can be drawn that those officials intended those adverse effects to occur.773
Plaintiffs in this case did provide direct evidence of discriminatory intent, as
discussed above. But plaintiffs also showed that senior officials in the City and at the NYPD
have been deliberately indifferent to the discriminatory application of stop and frisk at the
managerial and officer level such that a reasonable inference of discriminatory intent can be
drawn. Despite frequent and ongoing notice of troubling racial disparities in stops,774 the NYPD
bowling alley nearby, and Officer French stopped McDonald in part because of his race, as a result of the NYPD’s policy of indirect racial profiling. See supra Part IV.C.3 (McDonald’s stop as illustration of indirect racial profiling policy).
773 See Cash, 654 F.3d at 334. See also DiStiso v. Cook, 691 F.3d 226, 241 (2d Cir. 2012) (noting that an equal protection claim against school officials can be based on their deliberate indifference to student-on-student racial harassment, even in the absence of direct proof of the officials’ discriminatory intent, provided that the evidence of their “clearly unreasonable” response to “actually known” circumstances “give[s] rise to a reasonable inference that [the officials] intended for the harassment to occur”).
774 Although the following sources lie outside the trial record and therefore play no role in my decision, I observe for the public record that notice of racial bias in NYPD stops has continued since the close of discovery. For example, the Human Rights Committee of the United Nations recently asked the United States to “provide information on steps taken to address discriminatory and unlawful use of ‘stop and frisk’ practices by officers of the New York Police Department,” as part of the Committee’s preparation of the fourth periodic report on U.S. compliance with the International Covenant on Civil and Political Rights, ratified by the United States in 1992. UN Human Rights Committee, List of issues in relation to the fourth periodic report of the United States of America (CCPR/C/USA/4 and Corr. 1), adopted by the Committee at its 107th session (11-28 March 2013) (4/29/13). No other police department is
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has long shown its lack of concern for racial profiling through the failure of NYPD officials and
managers to discuss racial profiling among themselves or at Compstat meetings, and through the
numerous failures of supervision, monitoring, training, and discipline discussed above.775 In
addition, senior NYPD officials such as Deputy Commissioner Farrell have adopted an attitude
of willful blindness toward statistical evidence of racial disparities in stops and stop outcomes.776
mentioned. See id. In addition, as has been widely reported, a teenager named Alvin Cruz has made
public an audio recording of his stop in Harlem on June 3, 2011. It appears to be the only known recording of a stop by a civilian. In the recording, the officers verbally abuse Cruz, threaten to break his arm, and appear to physically abuse him. After an officer asks Cruz if he wants to go to jail, Cruz asks why the officers are threatening to arrest him, and one replies: “For being a fucking mutt! You know that?” Ross Tuttle & Rein Schneider, Stopped-and-Frisked: ‘For Being a F**king Mutt’ [VIDEO], THE NATION, Oct. 8, 2012; 1/11/13 Letter from Darius Charney, Counsel for Plaintiffs, to the Court (“1/11/13 Charney Letter”) at 2. An amicus brief from a caucus of the New York City Council states that during three heavily attended public hearings in October 2012, several constituents who had been stopped “compared their own experiences of needlessly aggressive policing” to the Cruz recording. 3/4/13 Brief of Amicus Curi[a]e the Black, Latino, and Asian Caucus of the Council of the City of New York at 4. Plaintiffs requested on January 11, 2013 that they be allowed to add Cruz as a trial witness, after first contacting Cruz in December 2012. See 1/11/13 Charney Letter at 2. I denied the request on the basis of prior scheduling orders and the imminent trial date. See 1/17 Tr. at 4–5.
775 See supra Part IV.C; Pl. Findings ¶¶ 186–190 (collecting sources regarding lack of internal attention to racial profiling).
776 See supra Parts IV.C.1, 4, 7. I note that the City’s highest elected official, Mayor Bloomberg, has also defended the racial disparities in the NYPD’s stops by invoking the crime suspect data benchmark. See April 30, 2013 Bloomberg Address at 3. On that basis, he has argued that the police “‘disproportionately stop whites too much and minorities too little.’” Associated Press, Bloomberg: Police Stop Minorities “Too Little,” June 28, 2013. Echoing Chief Esposito’s testimony, Mayor Bloomberg stated that “‘[t]he cops’ job is to stop (people in) the groups fitting the description. It’s society’s job to make sure that no one group is disproportionately represented as potential perpetrators.’” Id. (emphasis added).
Similarly, Commissioner Kelly has embraced the use of violent crime suspect data as a benchmark, and on this basis has argued that “‘really, African-Americans are being under-stopped.’” Lawrence Downes, What Ray Kelly Said About Stop-and-Frisk, TAKING NOTE: THE EDITORIAL PAGE EDITOR’S BLOG, N.Y. TIMES, May 3, 2013 (quoting May 1, 2013 interview with ABC News). Of course, using violent crime suspect data as a benchmark for measuring racial bias in the NYPD’s stops is even less valid than using general crime suspect data as a benchmark. See supra Part IV.C.7 (discussing RAND Report’s use of violent crime suspect data benchmark). I note that Commissioner Kelly has also promoted the use of a violent crime suspect benchmark for stops through yearly public reports released by the NYPD. See, e.g.,
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During trial this indifference was further demonstrated by many officials’ apparent belief that racial profiling is a myth created by the media,777 as well as by the testimony describing and defending the targeting of “the right people” for stops.778
The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion.779 This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.”780 Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless.781 A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those
KELLY, CRIME AND ENFORCEMENT ACTIVITY, at 15 (presenting, without explanation, racial composition of stop subjects alongside racial composition of violent crime suspects).
777 See supra Part IV.C.7 (noting skepticism of NYPD officials toward reports of racial profiling, which they claim to have not personally heard).
778 See supra Part IV.C.3 (targeting “the right people”). The City finds nothing problematic in Inspector McCormack’s instruction to Officer Serrano to target “male blacks 14 to 20, 21” for stops based on local crime suspect data. See Def. Findings ¶ 65; PX 332T at 24.
779 See, e.g., 4/9 Tr. at 2824 (Esposito); Def. Mem. at 19 (“Plaintiffs . . . have failed to prove a widespread pattern of suspicionless stops, and consequently cannot prove a widespread pattern of race-based stops.” (emphasis added)).
780 Whren, 517 U.S. at 813 (emphasis added). 781 I note, however, that plaintiffs have offered evidence of a widespread pattern of suspicionless stops. See supra Part V.A.
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races as compared to other races, which will then increase their representation in crime statistics.
Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.782
The Equal Protection Clause’s prohibition on selective enforcement means that
suspicious blacks and Hispanics may not be treated differently by the police than equally
suspicious whites. Individuals of all races engage in suspicious behavior and break the law.
Equal protection guarantees that similarly situated individuals of these races will be held to
account equally.
VI. CONCLUSION
For the foregoing reasons, the City is liable for the violation of plaintiffs’ Fourth
and Fourteenth Amendment rights. In a separate opinion, I will order remedies, including
immediate changes to the NYPD’s policies, a joint-remedial process to consider further reforms,
and the appointment of an independent monitor to oversee compliance with the remedies ordered
in this case. I conclude with a particularly apt quote: “The idea of universal suspicion without
individual evidence is what Americans find abhorrent and what black men in America must
constantly fight. It is pervasive in policing policies — like stop-and-frisk, and . . . neighborhood
782 The direction not to stop “a 48-year-old lady [who] was walking through St. Mary’s Park when it was closed,” is just one example of instructions not to stop all individuals for whom a justification for a stop exists, but only to stop the right people. PX 332T at 21. While this particular instruction seems benign, to the extent that the NYPD focuses its resources on blacks and Hispanics to the exclusion of whites generally, the result is deeply troubling. White people also carry guns and contraband, but if the NYPD declines to stop them, they will go undetected and unrepresented in crime statistics.
In addition, applying law enforcement tactics unequally between various racial groups is a recipe for abuse. “[N]othing opens the door to arbitrary action so effectively as to allow . . . officials to pick and choose only a few to whom they will apply [the law] and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” Railway Express Agency, 336 U.S. at 112 (Jackson, J., concurring). I note one poll shows that 76% of black voters disapprove of stop and frisk. See Quinnipiac University, New Yorkers Back Ban on Take-Out Foam More Than 2-1, at 8 (Feb. 28, 2013).
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watch - regardless of the collateral damage done to the majority of innocents. It's like burning down a house to rid it of mice.,,783

Dated:

August 12, 2013 New York, New York

783 2013.

Charles Blow, The Whole System Failed Trayvon Martin , N.Y . TIMES, July IS, 193

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APPENDIX A Blank UF-250
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For 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

- Appearances -
For Defendant:
Heidi Grossman Brenda Cooke Linda Donahue Morgan Kunz Joseph Marutollo Suzanna Publicker Lisa Richardson Judson Vickers Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 356-3503

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 Case 1:08-cv-01034-SAS-HBP Document 372 Filed 08/12/13 Page 1 of 39

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 


Case 1:08-cv-01034-SAS-HBP Document 372 Filed 08/12/13 Page 2 of 39
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.

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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.

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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”).
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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.
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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).
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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

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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”).
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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”).
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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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
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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).
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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”).
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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).
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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.
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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

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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

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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

 
 Case: 13-3088 Document: 243 Page: 1 10/31/2013 1080946 3

MANDATE

13-3123 Ligon, et al. v. City of New York, et al.
13-3088 Floyd, et al. v. City of New York, et al.

United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand thirteen.

Present:

John M. Walker, Jr., José A. Cabranes, Barrington D. Parker,
Circuit Judges.

_____________________________________ Jaenean Ligon, et al.,
Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________ _____________________________________

David Floyd, et al.,

Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________

13-3123 13-3088

MANDATE ISSUED ON 10/31/2013

Case: 13-3088 Document: 243 Page: 2 10/31/2013 1080946 3
Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction (“Remedies Opinion”).
It is hereby ORDERED that the District Court’s January 8, 2013 “Opinion and Order,” as well as the August 12, 2013 “Liability Opinion” and “Remedies Opinion,” each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals.
The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:
Defendants shall perfect their appeals by January 24, 2014.
Plaintiffs shall file by February 28, 2014.
Defendants shall reply by March 14, 2014.
Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course.
The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media
1 In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case
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interviews and public statements purporting to respond publicly to criticism of the District Court.2
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.
The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.
In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
2 See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.
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UNITED STATES COURT OF APPEALS for the
Second Circuit

In reOrder of Removal of District Judge

Jaenean Ligon, et al.,
v.

Plaintiffs-Appellees

City ofNew York, et al., Defendants-Appellants

13-3123 (Corrected)

David Floyd, et. al.,
v.

Plaintiffs-Appellees

City of New York, et al., Defendants-Appellants

13-3088

Request for Leave to File Motion to Address Order of Disqualification The undersigned counsel move for leave to appear on behalf of Hon. Shira: A. Scheindlin (hereafter "the District Judge") in order to address so much of the order of the Motion Panel herein, dated October 31, 2013, as directed the removal of the District Judge as presiding judge in David Floyd et al. v. City ofNew York

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(13-3088), and Jaenean Ligon, et al. v. City ofNew York et al. (13-3123) (corrected), and found that the District Judge "ran afoul" ofthe Code of Conduct for United States Judges. A copy of the Motion Panel's ruling is annexed hereto as Exhibit 1.
This motion is brought pursuant to Rules 21(b)(4), 27, and 29 ofthe Federal Rules of Appellate Procedure; 28l.J.S.C .§ 2106; 28 U.S.C. § 1651 (the All Writs Act); and the First and Fifth Amendments to the Constitution of the United States.
Counsel seek leave in the nature of an order under Rule 21 (b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel's sua sponte order of removal.
The undersigned are prepared to appear as counsel for Judge Scheindlin, or as amici curiae on her behalf, in accordance with the wishes of the court.
In support of the motion, counsel state: 1. The District Judge has served with distinction as a trial judge in the
Southern District of New York since November, 1994. 2. From March 18, 2013 to May 20, 2013, the District Judge presided over
an extensive trial in David Floyd, et al. v. City ofNew York (13-3088);
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challenging the constitutionality of certain "stop and frisk" practices engaged in by the New York City Police Department (''NYPD") that were alleged to violate the Fourth Amendment's prohibition on unreasonable searches and seizures and the Fourteenth Amendment's guaranty of equal protection of the laws. 3. From October 15, 2012 to November 7, 2012, the District Judge presided over a hearing on a motion for preliminary injunction in Jaenean Ligon, et al. v. City ofNew York, et al. (13-3123) (corrected), seeking injunctive relief against allegedly unlawful "stop and frisk" practices engaged in by theNYPD. 4. At no point during the extensive trial in Floyd, the hearing on injunctive relief in Ligon, or during the proceedings that preceded the hearings in either case, did any party seek the disqualification of the District Judge, by recusal or otherwise, or claim that she had violated any Canon of the Code of Conduct for United States Judges; nor did any party raise an objection under Local Rule 13 Governing the Distribution of Business Among District Judges. A copy of Local Rule 13 is annexed hereto as Exhibit 2. 5. On August 12, 2013, the District Judge issued a lengthy and detailed opinion holding that the "stop and frisk" practices before the Court
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violated the Fourth and Fourteenth Amendments to the United States Constitution. 6. On August 12, 2013, the District Judge issued an order concerning remedies in connection with the NYPD's unconstitutional "stop and frisk" practices. 7. New York City filed an appeal from the District Court's orders on August 16, 2013. On August 27, 2013, New York City moved in the District Court for a stay by letter motion, which was denied by the District Court on September 17, 2013. 8. At no point during the post-trial motion for a stay in the District Court did any party seek the disqualification of the District Judge on any grounds, or allege that she had "run afoul" of any Canon of the Code of Conduct for United States Judges. 9. On October 29, 2013, New York City's application for a stay was argued before a motion panel of this Court, consisting ofHon. John M. Walker, Jr., Hon. Jose Cabranes, and Hon. Barrington D. Parker, Jr. (hereafter "the Motion Panel"). 10. At no point during the oral argument before the Motion Panel did any party seek the disqualification of the District Judge, or allege that she had "run afoul" of a Canon of the Code of Conduct for United States Judges.
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When one member of the Motion Panel (Judge Cabranes) sua sponte raised the District Court's colloquy with counsel concerning Local Rule 13, and her interviews with the press, neither party responded with a suggestion of disqualification, or an allegation that the Canons of the Code of Conduct for United States Judges had been breached. 11. On October 31, 2013, the Motion Panel issued an order staying enforcement of the District Court's August 12, 2013 orders pending resolution ofNew York City's appeal on the merits. The Motion Panel directed, in the name of judicial efficiency, that the appeal be heard by the same three judges who constituted the Motion Panel, rather than by random assignment. See Exhibit 1. 12. In addition to the grant of a stay, the Motion Panel issued a sua sponte order directing the removal of the District Judge, purporting, without affording the District Judge notice or an opportunity to defend herself, to find that the District Judge had "run afoul" of Canons 2 and 3(C)(l) of Code of Conduct for United States Judges. A copy of the Code of Conduct for United States Judges is annexed hereto as Exhibit 3. 13.With respect, the undersigned counsel believe that the Motion Panel's sua sponte order of removal raises troubling issues warranting
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reconsideration by the Motion Panel, or in the alternative, en bane review by the full Circuit, on both substantive and procedural grounds.
A. The Motion Panel's Sua Sponte Order Was Procedurally Deficient 14. The Motion Panel's sua sponte order directing removal of the District Judge for "running afoul" of Canons 2 and 3(C)(1) of the Code of Conduct for United States Judges is the functional equivalent of a judicial finding that the District Judge behaved improperly. 15. Unlike United States v. The City ofNew York, No. 11-5113-cv (May 14, 2013), where the Circuit panel praised the District Judge, but remanded a portion of the case to a new judge to hold a bench trial because the trial judge's earlier negative characterization of the evidence might raise an appearance of a lack of neutrality, the Motion Panel's order of removal in this case rested on allegations ofjudicial misbehavior. 16. Rule 21 ofthe Federal Rules of Appellate Procedure carefully assures that where a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before a Circuit court, and an opportunity to seek leave to be heard. 17. In the vast bulk of cases, requests for the disqualification of a District Judge are raised by a motion to disqualify in the trial court pursuant to 28
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a U.S.C. §§ 455(a) and (b). Because denial of such a motion is not final
order, appellate review of an order denying a motion to disqualify is available in every Circuit pursuant to Rule 21 F.R.App. Proc., and 28 U.S.C § 1651 (the All Writs Act). See Hearings on Examining the State ofJudicial Recusal after Caperton v. A.T. Massey: Hearings before the Subcommittee on Courts and Competition Policy ofthe H Comm. on the Judiciary, 111 Cong. (2009). 18. In connection with such a Rule 21 proceeding, Rule 21(b)(4) authorizes a district judge to request permission from the Court of Appeals to address the allegations contained in the mandamus petition; or, in the alternative, to request the Circuit to invite an amicus curiae to address legal and factual issues posed by the application for a writ of mandamus. 19. Counsel understand that the practice in this Circuit is to grant a district judge's request to be heard, either in person or through amicus cu,riae, prior to issuing an order: (a) removing the judge for alleged misbehavior casting aspersions on the District Judge's judicial integrity; or (b) issuing a writ of a mandamus directing the district judge to engage in other remedial conduct. See In re German and Austrian Banking Litigation, 250 F.3d 156 (2d Cir. 2001) (authorizing the appointment of counsel to represent judge Shirley Kram in a Rule 21 mandamus proceeding);
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Securities & Exchange Commission v. Citigroup Global Markets, 115375 (authorizing the appointment of counsel to represent Judge Jed Rakoff in mandamus proceeding involving actions pending before Judge Rakoff pursuant to the related case doctrine). 20. In this case, the Motion Panel circumvented the formal protections of Rule 21 by acting sua sponte in the absence of a request for disqualification from any of the parties. This is particularly noteworthy in light of the parties' failure to request disqualification even after Judge Cabranes' expressions of concern during oral argument. 21. Where, as here, a Circuit panel engages in sua sponte action removing a District Judge for alleged improper behavior "running afoul" of the Code of Conduct for United States Judges, the need for notice to the District Judge and an opportunity to be heard is even greater than in the ordinary Rule 21 setting. Under Rule 21, the judge will ordinarily be on notice of the charges against her. Indeed, she will have ordinarily denied a motion for disqualification. 22. Even in such a setting, Rule 21 contemplates notice to the judge and an opportunity to defend herself in the Circuit court. 23. In this case, givert the sua sponte nature of the order of removal, and the failure of any party to have sought disqualification, or asserted an alleged
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violation of the Code of Conduct for United States Judges, during the more than five years that the Floyd case was before the District Court, the District Judge was completely blind-sided by the Motion Panel's sua sponte order finding that her behavior had "run afoul" of the Code of Conduct for United States Judges. 24. In addition to Rule 21(b)(4), in analogous settings, the Federal Rules of Appellate Procedure require notice and an opportunity to be heard before a court takes adverse action. See Rule 38 F. R. App. Proc. (providing for notice and an opportunity to be heard before the imposition of appellate sanctions on a party). 25. With .respect, the Motion Panel's failure to have provided the District Judge with notice and an opportunity to defend herself was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, it is an affront to the values underlying the Fifth Amendment's guaranty of procedural due process of law.
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B. The Motion Panel's Sua Sponte Order Summarily Removing the District Judge Was Inaccurate and Substantively Unwarranted 26. The failure to accord the District Judge notice and an opportunity to be heard resuited in a sua sponte order of removal premised on inaccurate and incorrect assumptions concerning the behavior of the District Judge. 27. The Motion Panel found that the District Judge's colloquy with plaintiffs' counsel in Daniels v. City ofNew York, No. 99 Civ. 1695 (S.D.N.Y. filed March 8, 1999) concerning "the related case doctrine" constituted an "improper application of the related case rule" rising to the level of a violation of Canons 2 and 3(C)(1) ofthe Code of Conduct of United States Judges, and warranted her summary removal. See Exhibit 1. 28. Unfortunately, the Motion Panel's inaccurate characterization of the colloquy, as misreported in a newspaper article cited by the Motion Panel, provides a misleading impression of the District Court's behavior. 29. The Motion Panel did not attach the text of the colloquy to its order. A copy of the full colloquy is annexed hereto as Exhibit 4. 30. A fair reading of the actual colloquy could not lead a reasonable person in possession of all the facts to infer bias or lack of neutrality on the part
10

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ofthe District Judge. See United States v. Jacobs, 955 F.2d 7, 10 (2d Cir. 1992); United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en bane). 31. As a review of the text of the 42 page colloquy demonstrates, the discussion of Local Rule 13 dealing with the related case doctrine was in response to efforts by plaintiffs' counsel in Daniels to raise newly discovered evidence concerning the allegedly racially discriminatory nature of the NYPD's "stop and frisk" practices. 32. The District Judge firmly rebuffed efforts to interpret the settlement agreement in Daniels broadly to permit consideration of newly discovered evidence concerning racially discriminatory "stop and frisk" . practices, noting that pursuing such a course would result in a waste of the court's time and the parties' resources because the Daniels case had been settled in a manner that made it inappropriate to consider the newly discovered evidence. 33. Instead, the District Court brought Local Rule 13 to the attention. of counsel as an alternative that would achieve the desired result without wasting judicial resources. The District Judge's observation that she would accept a new case that would enable consideration of the newlydiscovered evidence applied clearly established principles designed to achieve judicial economy.
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34. Such a colloquy concerning a judicially efficient means of dealing with
)
newly discovered evidence is indistinguishable from suggestions routinely made by district judges that pleadings be amended in order to permit the efficient consideration of additional issues relevant to the underlying dispute. 35. On remand after the Motion Panel's order of removal, counsel understand that both the Floyd and Ligon cases were assigned to the same trial judge precisely because they clearly fall under Local Rule 13 as related cases. 36. The District Court's recognition that judicial economy would be .served by the invocation of the related case doctrine codified in Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy. 37. The Motion Panel alleged, as well, that the District Judge had granted three press interviews in a manner that called her neutrality into question. 38. Once again, the Motion Panel failed to attach transcripts of the press interviews to its ruling. A fair reading of the text of the three interviews, annexed hereto as Exhibits 5, 6, and 7, reveals that no reasonable person could infer bias from the District Judge's responses.
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39. In each ofthe three instances of press questioning, the District Judge explicitly refused to comment on legal issues raised in the pending litigation, and confined her responses to general discussions of constitutional law and explanations of the judicial process.
40. In one interview, the District Judge refuted an allegation circulated in the press by unlmown persons that she had granted a disproportionate number of motions to suppress in criminal cases. See Exhibit 7.
41. The District Judge pointed out the methodological inadequacy of the socalled study by noting that it dealt only with written opinions, ignoring the massive number of oral denials of suppression motions that she had issued from the bench.
42. Counsel understand that the Corporation Counsel of the City of New York appeared personally in the District Judge's chambers to apologize for the misleading assertion, and to disclaim responsibility for it.
43. Discussion of important legal issues by members of the judiciary enriches the dialogue that is crucial to public understanding of the rule of law, and is consistent with the values underlying the First Amendment.
44. Given our First Amendment tradition, the general discussion of legal issues engaged in by the District Judge in the press interviews cited by the Motion Panel cannot be deemed to "run afoul" of any Canon of the
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Code of Conduct for United States Judges, and cannot justify a sua sponte order removing her as a Judge in these proceedings. 45. Until the Motion Panel's sua sponte order directing removal, no party had questioned the District Court's conduct, had sought disqualification, or had alleged a violation of the Code of Conduct for United States Judges. 46. While sua sponte removal by an appellate court may be appropriate in a genuinely egregious case where the parties are unable to raise the issues freely, there is no basis for sua sponte appellate action in a setting where powerful litigants have declined to seek disqualification, even after the judicial conduct in question was critically described by a member of the Motion Panel during oral argument.
WHEREFORE, the undersigned counsel request leave to appear either as counsel to the District Judge, or as amici curiae on her behalf, in order to address the legal and factual issues raised by the Motion Panel's sua sponte order directing her removal in David Floyd, et al. v. City ofNew York, and Jaenean Ligon et al. v. City ofNew York, et al.
If the court deems it appropriate on the existing record, including this motion, counsel move, as well, that the order directing disqualification of
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the District Judge be vacated; or, in the alternative, be reviewed en bane by the judges of the Circuit.
Dated: November 5, 2013 New York, New York Burt Neubome (Lead Counsel of Record) Norman Dorsen Arthur R. Miller Judith Resnik Frederick A.O. Schwarz, Jr. 40 Washington Square South New York, New York 10012 (212) 998-6172 burt.neubome@nyu.edu
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First Report of the Independent Monitor Peter L. Zimroth
July 9, 2015
Floyd, et al. v. City of New York Ligon, et al. v. City of New York Davis, et al. v. City of New York

Case 1:08-cv-01034-AT-HBP Document 513 Filed 07/09/15 Page 8 of 97
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Edward Davis
Jennifer Eberhardt John MacDonald James McCabe
Jane Perlov

Case 1:08-cv-01034-AT-HBP Document 513 Filed 07/09/15 Page 9 of 97
TABLE OF CONTENTS Page
I. INTRODUCTION AND BACKGROUND ......................................... 1 A. The Monitor Team ................................................................... 10 B. The Monitor’s Activities .......................................................... 11
II. THE REQUIREMENTS OF THE COURT ORDERS, PRELIMINARY FINDINGS AND OBSERVATIONS.................... 15 A. Finest Messages for Floyd and Ligon ...................................... 15 B. Department Policies and Procedures........................................ 16 1. Written Policies Concerning Stops and Frisks .............. 16 2. Racial Profiling Policies ................................................ 21 3. Trespass Affidavit Program (TAP) Policies .................. 22 4. Documenting a Stop on a Stop Report Form................. 23 5. Davis/NYCHA Policies ................................................. 28 C. Training .................................................................................... 30 1. Training on Stop, Question and Frisk............................ 33 2. Training on Racial Profiling .......................................... 36 a. Training on Bias-Free Policing ................................ 37 b. Training on Implicit Bias and Procedural Justice .... 38 3. Training on TAP Policies (Ligon) ................................. 40 4. Training on Patrols in NYCHA Buildings (Davis) ....... 41 5. Training for Supervisors ................................................ 42
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D. Supervision............................................................................... 43 E. Auditing.................................................................................... 46
1. Quality Assurance Division (QAD)............................... 46 2. Early Identification System (EIS).................................. 50 3. Bronx TAP Audit........................................................... 54 F. How NYPD Handles Complaints and Discipline Concerning Profiling, Trespass Enforcement and Stop, Question and Frisk.......................................................................................... 55 1. Tracking and Investigating Profiling Complaints ......... 55 2. NYPD Handling of Complaints Substantiated by the
CCRB ............................................................................. 58 3. CCRB Investigations ..................................................... 63 G. Performance Goals, Objectives and Evaluation....................... 64 H. Body-worn Cameras................................................................. 67 1. Design of a Randomized Controlled Trial..................... 71 2. Exclusions ...................................................................... 74 3. Ranking, Matching and Randomization ........................ 75 III. MEASURING COMPLIANCE WITH THE COURT ORDERS ..... 78 APPENDIX 1................................................................................................ 79 APPENDIX 2................................................................................................ 84
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INDEPENDENT MONITOR’S FIRST REPORT
I. INTRODUCTION AND BACKGROUND This is the court-appointed monitor’s first report regarding the work
done pursuant to court orders in three federal lawsuits concerning New York Police Department (NYPD or Department) practices and policies with respect to encounters between the police and civilians.
Specifically, the three cases challenged the NYPD’s practices and policies concerning “stop, question and frisk,” and also criminal trespass enforcement in and around certain private multiple dwelling buildings enrolled in the Trespass Affidavit Program (TAP) and in New York City Housing Authority (NYCHA) buildings. Floyd v. City of New York, Ligon v. City of New York, and Davis v. City of New York. TAP (also known as Operation Clean Halls) is a program in which building owners authorize the NYPD to conduct patrol activities inside and around their buildings, including, in some buildings, floor-to-floor inspections, called interior patrols or vertical patrols.
In 2013, the district court ruled that the NYPD’s “stop, question and frisk” practices violated the Fourth Amendment and Fourteenth Amendment, and ordered remedial measures. The court named a monitor, Peter Zimroth, to develop and implement those remedies in consultation with the NYPD
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and the plaintiffs and to assess and report to the court on compliance. The City appealed the district court’s actions and obtained a stay of the remedial order. In early 2014, the City and the plaintiffs resolved the Floyd case and part of the Ligon case. The City moved to withdraw its appeal without contesting liability or the court’s related findings.
The City and the plaintiffs agreed that the measures set out in the district court’s 2013 order would be implemented but with an additional provision removing the monitor’s and court’s supervision after specified periods of time if substantial compliance is achieved. The NYPD’s five unions moved to intervene to obtain the status of parties and continue the City’s appeal. On October 31, 2014, the Second Circuit Court of Appeals affirmed the district court’s denial of the unions’ motion to intervene and remanded the case back to the district court, which accepted the parties’ resolution.
The monitorship, which had been on hold for more than a year, began its work again in early November 2014. Judge Analisa Torres is now overseeing the implementation of the Floyd and Ligon remedies.
The City and the plaintiffs have now settled the Davis case, and the court gave final approval to the Davis settlement on April 28, 2015. The Davis case is now part of the remedial process underway in Floyd and
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Ligon. Although there is substantial overlap among the issues raised in Davis, Floyd and Ligon, the Davis case also focuses on officers’ interactions with residents and guests in public housing and on the interplay between the enforcement of criminal trespass laws and the enforcement of NYCHA’s “House Rules.”
The measures required by the court orders in Ligon and Floyd include revisions to NYPD policies, training, supervision, auditing, handling of complaints and discipline, and performance objectives, and a pilot program for body-worn cameras. Remedies in the Davis case are consistent with the remedies in Ligon and Floyd but also include remedies relating to enforcement of the criminal trespass laws, including a revised NYPD form for trespass arrests and changes in NYCHA’s “House Rules.”
In addition to these measures, which the court labeled as the “Immediate Reforms,” the court included a “Joint Remedial Process” to obtain input from the community and criminal justice stakeholders on additional potential reforms, which is being overseen by Judge Ariel Belen (ret.).
This effort has begun at a difficult and contentious period in policecommunity relations. This is also a moment of opportunity. Police Commissioner William J. Bratton has acknowledged that the NYPD’s
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overuse and misuse of stop, question and frisk helped to fuel mistrust between the NYPD and minority and immigrant communities, and recognized the need to repair the breach.
Getting “stop, question and frisk” right is a vital step in the healing process.
These are some principles and observations that have guided the monitor’s work so far:
1. The NYPD and the plaintiffs have agreed that certain changes in NYPD policies and practices need to be made. The roles of the participants in the current remedial process differ from what they would be if these cases were still in litigation. The goal of this process is not to advance adversarial positions. It is to implement the changes agreed to and incorporated in the court orders and to improve how the police function as guardians in a democratic society. This is a responsibility shared by the police and all other participants in the remedial process.
2. As the court orders make clear, the monitor’s role is not to displace the police commissioner. Under the City’s charter, one person is charged with running the NYPD—the police commissioner, who is appointed by the City’s chief executive officer, the mayor.
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3. Although the monitor and his team are not substitutes for police officials, the team is willing to provide technical support and assistance when desired by the NYPD. Members of the monitor team have substantial experience in law enforcement, including as police officers and executives. The academic members of the team have worked with police departments throughout the country (including the NYPD) and have expertise in areas related to the court’s orders. Substantive assistance has already been given, for example, in planning for the implementation of the pilot program on body-worn cameras.
4. Achieving the agreed-upon changes of NYPD policy and practices will not be easy. The basic outlines of these changes have already been agreed to by the NYPD and have been incorporated in the court orders. The work of the monitor involves filling in the outlines consistent with those orders and in consultation with the parties. It is primarily the NYPD’s responsibility to generate proposals to meet the requirements of the court orders. The plaintiffs can suggest revisions or generate proposals of their own, as they have already done.
The monitor will seek agreement among the parties, but ultimately it is the monitor’s responsibility to decide which recommendations are
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submitted to the court for approval. This task will be informed by what the monitor team has learned and will learn about the organizational and other legitimate needs of the NYPD and its officers, as well as by the comments and insights of plaintiffs. The monitor will also need to conduct periodic audits and other reviews and advise the court on progress.
5. It is critical as well to obtain input from others who have a stake in the implementation of the changes. To this end, the monitor and his team have met with union officials, individual police officers and groups of officers, community groups and community leaders, elected and appointed officials, advocacy organizations and their clientele, minority police fraternal organizations, and individuals (and their families) who have had personal experience with the NYPD’s “stop, question and frisk” practices and trespass arrests.
6. The court did not order the cessation of stop, question and frisk. Since at least as early as 1968, the U.S. Supreme Court has permitted this law enforcement technique so long as the officer’s actions meet the requirements of the U.S. Constitution. When used lawfully and wisely, it can be an important tool for police officers. Nor do the court orders mandate
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an end to the City’s programs for policing public and some private housing. Although the court orders do require some changes in the way these programs are carried out, the orders have not changed federal constitutional law in these areas. Rather, the orders require clearer statements of the law so that officers can better understand what is and is not permissible, and call for more robust ways for the Department to oversee those practices.
7. We are mindful that since 2011 the number of stop, question and frisk encounters as reported by the NYPD has diminished significantly. However, that reported decline in numbers does not “fix” the problem. The focus should not be on the number of stops per se, but rather on the lawfulness of those stops and whether these law enforcement encounters are conducted in accordance with the Department’s principles of “courtesy, professionalism and respect.”
It is not the monitor’s role to determine whether there are too many or too few stops. That said, in our work thus far, we have heard two explanations for the decline in numbers that do relate to our work.
First, one concern is that the data being reported may not be entirely accurate because some officers are making stops without appropriately documenting them. Recent NYPD audit results show that this is happening,
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at least to some extent. (See Section II.E.1 below.) The NYPD recognizes that undocumented stops are a serious issue and that more work needs to be done to determine the extent of the problem and ensure proper recordkeeping. The monitor team will have continued involvement in this matter. The integrity of the data being reported by the Department is essential to its credibility and therefore its proper functioning in a democratic society.
Second, in interviews and informal conversations, the monitor and members of his team have been told by officers at ranks from patrol officer to supervisor that officers on the street may be declining to stop, question and frisk when it would be lawful and prudent to make the stop. Among the reasons suggested are that officers are not confident or have been misinformed about, among other things, what they are authorized to do under the law, what their supervisors expect of them, what their personal legal liability might be and under what circumstances discipline will be administered.
We do not know the extent to which officers may be declining to make lawful, appropriate stops because of these uncertainties. To the extent it is happening, though, it is not a healthy state of affairs for police officers or communities. One of the goals of the court orders and agreements, and therefore this monitorship, is to clarify areas of uncertainty so that police
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I. Introduction and Background
officers can go about their difficult tasks with a clearer understanding of their lawful authority.
8. Making the necessary changes will take time. The NYPD is a complex organization with roughly 35,000 sworn officers and 17,000 civilian employees. The process for making changes in policy can sometimes be difficult and cumbersome. Implementing new policies in the field is harder still. Whether written policies actually affect conduct on the street depends on, among other things, how 35,000 officers (plus some civilians) are trained, the incentives and disincentives officers have to follow the new policies and the expectations that their superiors communicate. Then the NYPD needs to find ways to measure implementation: whether the changes are actually being carried out by the officers on the street and by their supervisors. These are among the significant challenges that the NYPD has committed itself to meet.
This report describes the work thus far, assessing that work and the steps ahead. Of course, there is still much to be done—accomplishing
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I. A. Monitor Team
change in this sphere is a large and complex undertaking. It is the monitor’s view that this initial period has seen good progress.
A. The Monitor Team The monitor team consists of people with substantial experience in areas directly related to the court orders and the parties’ agreement. Peter Zimroth has been a federal prosecutor in the U.S. Attorney’s Office for the Southern District of New York, the chief assistant district attorney in Manhattan and the City’s corporation counsel, as well as a defense lawyer. Richard Jerome was the deputy monitor in two police reform settlements in Cincinnati, a deputy associate attorney general in the U.S. Department of Justice and a project manager for the Pew Charitable Trusts for its public safety performance project. Anthony Braga is Professor of Evidence-Based Criminology at Rutgers University and a senior research fellow in criminal justice policy at Harvard University. Edward Davis was the police commissioner for the Boston Police Department for seven years and before that was the superintendent of the Lowell Police Department. In his thirtyfive years of policing, Davis rose through the ranks of the Lowell Police Department, holding positions as a patrol officer, detective supervisor, and head of a local, state and federal narcotics and organized crime task force.
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I. B. Monitor’s Activities
Jennifer Eberhardt is a social psychologist at Stanford University and a national expert on implicit bias. John MacDonald is chair of the Department of Criminology at the University of Pennsylvania and previously was at the RAND Corporation. James McCabe held several significant posts in the NYPD, including commanding officer of the Police Academy, and is now a professor at Sacred Heart University. Jane Perlov began her policing career at the NYPD as a patrol officer, commanded two precincts in Manhattan and served as chief of detectives in Queens. After retiring from the NYPD, she served as the Secretary of Public Safety for the Commonwealth of Massachusetts and as the police chief in Raleigh, North Carolina. More complete biographies are in Appendix 1.
B. The Monitor’s Activities Soon after beginning his work, the monitor convened a meeting of counsel for the NYPD, the City and the plaintiffs (the first of monthly allparties meetings). The monitor worked with the parties to agree on milestones to be met to satisfy the requirements of the court orders. The goal was to make sure that the parties and the monitor had the same understanding of those requirements. The parties also agreed on a process for the development of remedial measures, and the court issued orders dealing with how and when court
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I. B. Monitor’s Activities
approval should be sought. Drafts of new or modified policies, procedures, training materials or other changes are initially proposed by the NYPD. Those drafts are sent to the monitor and plaintiffs’ counsel, who, after consulting their experts, make comments and suggestions or submit proposals of their own. Sometimes those suggestions are adopted by the NYPD. When they are not, the monitor decides what to recommend to the court for approval. Any party then has the right to object to the monitor’s recommendation, in which case the court decides.
During this process, the monitor and the parties communicate frequently with one another to make sure that all parties understand why each party has made a suggestion or has not agreed to one. This communication helps to minimize misinformation and lower the level of possible mistrust among the parties.
In addition, it was important to find ways for other stakeholders to provide input without making the process unduly cumbersome and without transforming the remedial process into continued litigation. With the consent of the monitor and the NYPD, and with appropriate confidentiality assurances, plaintiffs’ counsel have been permitted to share draft documents with some of their constituent client groups and then use that input to inform recommendations made to the NYPD and the monitor. Likewise, under
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I. B. Monitor’s Activities
similar confidentiality provisions, the NYPD may provide drafts to the police unions to seek their input. Independently, the monitor has met with all the police unions and with many advocacy groups, including those consulted by the plaintiffs.
Since the monitor began his work in November 2014, he and the other members of the team have spent significant time with NYPD executives and members of the service at every level, from the police commissioner to patrol officers. In the fall of 2014, the NYPD created a new Risk Management Bureau to establish a centralized compliance and risk assessment function at the Department and identify and correct weaknesses in policies, procedures and practices. The Risk Management Bureau is responsible for coordinating the Department’s responses to the monitor’s requests and has set up meetings and collected the data and documents needed for the monitoring effort. Meetings with NYPD executives and units have included the First Deputy Commissioner, Chief of Department, Chief of Patrol, Housing Bureau, Police Academy, Internal Affairs Bureau (IAB), Office of Management Analysis and Planning (OMAP), Information Technology, Department Advocates Office (DAO), Trials, Collaborative Policing, Performance Analysis Unit, Community Affairs, Operations, Labor Relations and Legal Bureau, among others.
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I. B. Monitor’s Activities
In addition to the meetings with police executives, the monitor team has visited precincts and spoken to officers at all levels from commanding officer to patrol officer, attended focus groups of police officers to hear their concerns, observed training of recruits and officers as well as training of Police Academy staff, and gone on ride-alongs. All this has allowed the team to learn more about the operations of the Department and understand how remedial measures might be implemented and their impact on operations. The monitor has also met with representatives of each of the NYPD’s unions, the Civilian Complaint Review Board (CCRB), the Inspector General, the director of the Mayor’s Office of Criminal Justice, City Council members and members of the NYPD’s Training Advisory Committee. The monitor and his team, sometimes with Judge Belen, have met with more than 100 community members and organizations, elected officials, district attorneys, public defenders and other stakeholders throughout the city. The monitor also meets regularly with counsel for the plaintiffs, the NYPD and the City Law Department to discuss progress, address issues and discuss the next steps to be taken.
In addition to these meetings, the monitor team has obtained its information in other ways. A significant amount of the monitor’s work has involved reviewing NYPD policies, procedures, operations orders and
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II. Requirements of the Court Orders A. Finest Message for Floyd and Ligon
memoranda, forms, reports, files, and other documents and data. The monitor team will be reviewing, among others, the Department’s stop reports (previously called UF-250s), memo books and activity logs, trespass crime fact sheets and other data on trespass arrests, reports of citizen complaint investigations, and documentation of any interventions or disciplinary actions taken in response to unconstitutional actions. The monitor team will develop an appropriate sampling methodology for selecting files and reports to review and analyze. The team has also begun reviewing the NYPD’s audits and monitoring of its own procedures, files and recordings. II. THE REQUIREMENTS OF THE COURT ORDERS,
PRELIMINARY FINDINGS AND OBSERVATIONS A. Finest Messages for Floyd and Ligon The NYPD was required to issue a message to all members of the service describing the reforms and the constitutional standards for stops and frisks. The court directed that the NYPD transmit two “Finest” messages, to be read at successive roll calls of officers, describing the changes agreed upon in Floyd and Ligon. A Finest message is one way the Department communicates with its officers. The NYPD drafted the two messages and submitted them to the monitor and the parties for review. After a significant number of drafts and
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II. B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
comments from the parties and the monitor, the parties agreed on Finest messages for Floyd and Ligon, which were approved by the court in February. The NYPD began publishing these messages in early March. The Department reports that each message was read at ten consecutive roll calls so that they were presented to all members of the service. The NYPD also sent the Finest messages to every officer at the rank of captain and above via the NYPD’s email system. Members of the monitor team observed the Finest message being read at roll calls in two precincts.
The NYPD has met the requirements for this remedial measure. Having observed the Finest message being read, however, both the monitor and the NYPD recognize that there may be more effective ways of presenting materials to officers at roll calls and in other venues.
B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
In 1968, in Terry v. Ohio, the U.S. Supreme Court determined that the police practice of stopping and detaining individuals and frisking them for weapons or other dangerous items was lawful as long as the police met the requirements of the Constitution. That federal constitutional principle is being applied in these cases. Following Terry, in People v. DeBour, the New York State Court of Appeals adopted standards for police encounters
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II. B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
less intrusive than a stop or an arrest. The Court of Appeals described the levels of knowledge required by the officer and the amount of interference permissible for a police officer to approach and question a person. For example, in order to approach a person simply to ask him or her questions (a “request for information”), the officer does not have to suspect criminality but does need an “objective credible reason” (that is, a reason not based on whim or bias). If the officer wants to ask “accusatory” questions (“common law right of inquiry”), the officer needs further justification—i.e., that there may be “criminal activity afoot.” These guidelines for encounters less intrusive than stops govern situations not addressed in Terry and therefore add some complexity. The Court of Appeals’ decision in DeBour created the standards by which all investigative encounters in New York are assessed—(1) requests for information, (2) common law right of inquiry, (3) stops, questions and frisks, and (4) arrests.
The court in Floyd dealt primarily with “stop, question and frisk,” and recognized that it could be an important tool to further public safety. Consistent with Terry, the court did not hold that the practice was impermissible or prohibit its use. The court held that the practice had to meet the requirements of the Constitution.
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II. B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
Thus, the changes required to be made to the NYPD’s written policies and procedures are not new legal requirements: the court orders require only that the legal standards be stated correctly and clearly. Clarity is important because officers should have confidence that they understand when it is permissible to stop, question and frisk people and when it is not. If officers are uncertain about their lawful authority, they may stop someone when they should not, or forgo stopping someone when it would be lawful and prudent to do so. Both these outcomes lead to a diminution of public safety and confidence in the police.
Milestones The NYPD’s policy regarding stop, question and frisk is written in Section 212-11 of the NYPD Patrol Guide (P.G.). This Patrol Guide section describes the procedures to be followed when an officer stops a person based on reasonable suspicion that the person has committed, is committing or is about to commit a felony or Penal Law misdemeanor. The current version focuses almost entirely on the steps officers and superiors should take after what is assumed to be a lawful stop. The procedures do not give guidance about the legal standards or the degree of knowledge an officer must have to make a stop lawful, do not give guidance about the degree of knowledge necessary for the encounters governed by DeBour, do not distinguish
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II. B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
between the legal requirements governing stops and those governing frisks and searches, and give only limited guidance as to the responsibility of supervisors. In short, as the NYPD itself recognizes, the current version of P.G. 212-11 is not sufficiently helpful to officers on the street or their supervisors.
The changes required by the agreed-upon court orders include: (1) The Patrol Guide must state what constitutes a stop; when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted. (2) The Patrol Guide must include a definition of “reasonable suspicion,” the standard needed for a stop based on Terry (that the person has committed, is committing or is about to commit a felony or Penal Law misdemeanor). (3) The Patrol Guide must state clearly that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person. The court noted that some officers were not aware of the different standards for a stop and for a frisk, and some officers assumed that reasonable suspicion for a stop automatically provided the basis for a frisk.
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II. B. Department Policies and Procedures 1. Written Policies Concerning Stops and Frisks
(4) The Patrol Guide must require officers to document the stop and reasonable suspicion, and, if conducted, the frisk, on both a stop report form (formerly called a UF-250) and in their activity logs.
(5) The Patrol Guide must require supervisory review of stops, including review of the constitutionality of the stop, not just that a stop report form was filled out. The Patrol Guide must also provide for supervisors to identify officers needing further training and/or potential discipline.
Status and Assessment The NYPD has drafted a revised P.G. 212-11, and the monitor and plaintiffs have reviewed the draft and worked with the NYPD to reach an agreed-upon procedure. The revised P.G. 212.11 is close to being completed as a final recommendation of the monitor and submitted to the court for approval. Once the new procedure is approved, it will be published and disseminated to members of the service, and officers will be trained on the new policy. There will be additional training for all of the new procedures developed by the NYPD and approved by the court. The draft P.G. 212-11 currently under review deals with the inadequacies of the current Patrol Guide section and provides guidance about the degree of knowledge necessary for the different levels of
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II. B. Department Policies and Procedures 2. Racial Profiling Policies
investigative encounters governed by DeBour. It requires documentation of all stops and makes more explicit the responsibilities of supervising officers up the chain of command. And it makes clear that officers in need of training or possible discipline should be identified, but also states that, ordinarily, isolated cases of good-faith mistakes made by officers trying to do their jobs will be dealt with by training at the command level and not by discipline.
2. Racial Profiling Policies Milestones The NYPD’s policy prohibiting racial profiling is set out in Section 203-25 of the Patrol Guide. The court orders provide that the revised Patrol Guide procedure must include a definition of racial profiling stating that race, ethnicity or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description. This is not new law; it is based on the Fourteenth Amendment of the U.S. Constitution. Status and Assessment The NYPD has prepared a revised P.G. 203-25 and the parties and monitor have provided comments. The Patrol Guide procedure prohibiting racial profiling is close to being completed and submitted to the court for
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II. B. Department Policies and Procedures 3. Trespass Affidavit Policies
approval as a final recommendation of the monitor. The revised P.G. 203-25 currently under review addresses the requirements of the court’s orders. The new procedure will state that police action, including stops, frisks, arrests or other law enforcement actions, may not be motivated, even in part, by the actual or perceived color, ethnicity or national origin of an individual. Race may be used only if it is part of a reliable and specific suspect description that includes not just race, gender and age, but other identifying characteristics or information.
The new procedure will also include a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
3. Trespass Affidavit Program (TAP) Policies Milestones The court orders require a revised NYPD procedure that specifies the circumstances in which it is permissible for an officer to stop a person outside a building enrolled in the TAP on suspicion of criminal trespass. Stops inside and outside TAP buildings must comply with the revised stop, question and frisk policies noted above (P.G. 212-11). The orders also
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II. B. Department Policies and Procedures 4. Documenting a Stop on a Stop Report Form
require the NYPD to amend its procedures to state that “mere presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information. Section 212-59 is the Patrol Guide section that governs stops in and around TAP buildings.
Status and Assessment The current P.G. 212-59 does not include the language required by the court orders and the parties’ agreements. The NYPD has prepared a revised P.G. 212-59 to address this requirement, and the plaintiffs have provided the monitor with their comments and suggested edits to the procedures. The revised Patrol Guide will apply not just to the Bronx—the borough to which the preliminary injunction issued in Ligon was limited—but citywide. The court’s decision on the preliminary injunction in Ligon applied only to criminal trespass stops outside TAP buildings in the Bronx. The Ligon plaintiffs and the City and NYPD are still in negotiations over other issues not yet resolved by the court’s orders. The completion of a new P.G. 212-59 may be deferred while those negotiations are ongoing.
4. Documenting a Stop on a Stop Report Form The court orders require changes to the documentation of stops by NYPD officers. The current P.G. 212-11 requires officers to complete a stop
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II. B. Department Policies and Procedures 4. Documenting a Stop on a Stop Report Form
report form every time a person is stopped. The current form contains a series of checkboxes used to describe the basis for the stop. The court found that these checkboxes, standing alone, did not provide sufficient information to determine whether a stop was based on reasonable suspicion. In particular, the court found the checkboxes for “furtive movement” and “high crime area,” which had been used excessively, do not provide that information.
The court orders require the NYPD to revise the stop report form to address the deficiencies identified at trial, including the addition of a narrative section on the form where the officer must record, in his or her own words, the basis for the stop and a separate narrative section supporting the basis for the frisk, if one was conducted. Although these narrative sections are a change from the current stop report form, similar narratives were included in prior stop forms used by the NYPD; and the officer is currently required to write similar narratives in his or her activity log.
Documenting an officer’s actions in making a stop is important for several reasons. Proper documentation provides detail so that an officer will have sufficient information to refresh his or her memory if called to testify about the incident. It enables the officer’s direct supervisor and others in the NYPD to review the stop and assess whether the officer had sufficient
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II. B. Department Policies and Procedures 4. Documenting a Stop on a Stop Report Form
justification for his or her actions; it provides the NYPD important data for both investigative and other law enforcement purposes and for analysis of patterns or trends; it is an opportunity for training officers and reinforcing the standards and requirements of a stop; and it allows the NYPD a way to aggregate information to report to the public—for example, by reporting the number of stops in particular periods and locations.
Designing a form for reporting stops necessarily involves trade-offs among competing goals. For example, requiring more information has benefits for review and analysis; but that will make the form more difficult for officers to use in the field—the form will take more time to complete and perhaps need to be larger, which, in turn, might create logistical challenges for officers using it on patrol. Compliance with the court orders is essential, but there is no one right way to design a stop report form, and it should not be more complicated than necessary.
Milestones In accordance with the court orders and the parties’ agreements, the new stop report form must include space for narratives describing (1) the reasons for the stop, (2) the reasons for the frisk, if conducted, and (3) the reasons for the search, if conducted. The court orders also require that the checkboxes for “Reasons for the Stop” be simplified and improved and that
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II. B. Department Policies and Procedures 4. Documenting a Stop on a Stop Report Form
the check boxes “furtive movement” and “high crime area” be eliminated. These boxes did not describe in any detail the reasons why the officer found the person’s movement suspicious or what “area” was referred to. The form will provide other places for the officer to record his or her observations concerning these factors—for example, in the narrative sections. In addition to revising the stop report form, the NYPD must also require officers to include in their activity logs the reasons for the stop and, if conducted, the frisk.
The court also urged the NYPD to consider a receipt or card to provide a person stopped with the reason for the stop and the officer’s badge number, and information about how and where to file a complaint. The NYPD currently has a receipt form, but it does not include the officer’s name or badge number and does not provide the specific reason for the stop. It states only “common reasons for a stop.” This form began as part of a pilot program in 2009 and was implemented citywide in 2010. All precincts are supposed to have these forms available for officers, but it is not required that officers use them and it is not clear to what extent they do.
Status and Assessment Two versions of a new stop report form have been drafted and will be piloted in seven commands: five precincts, one housing police service area
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II. B. Department Policies and Procedures 4. Documenting a Stop on a Stop Report Form
(PSA) and one transit district (TD). Both forms include the same information, but they are different sizes. One is the same size as the existing form and fits into an officer’s memo book without being folded. The larger version is 8 x 14 inches and will need to be folded into four to fit in the memo book. It has more space for the narratives and contains detailed instructions on the back of the form, but it may be more difficult for officers to use. (The two stop report forms are attached as Appendix 2.)
The pilot program will evaluate which size works best, how the forms are completed, whether one format or the other is easier to use, and whether officers are more likely to use one form or the other. The evaluation will include officer surveys, focus group discussions, review of the reports for accuracy, legibility and completeness, and an analysis of the description of the basis for the stop and any frisk.
The pilot started in July and is expected to last for ninety days. The NYPD has conducted training in the pilot precincts for officers, supervisors, data entry staff and staff of the Quality Assurance Division (QAD). QAD will use this pilot to test ways in which it can perform more robust audits. The training for the pilot includes a refresher on the law of stop, question and frisk, as well as instruction on the completion and processing of the form.
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II. B. Department Policies and Procedures 5. Davis/NYCHA Policies
The NYPD also has prepared a revised “tear-off receipt.” Under the current NYPD stop procedures, P.G. 212-11, officers are given the option of providing the receipt to persons stopped; after the new P.G. 212-11 is approved, officers will offer the form to persons stopped who are not arrested or given a summons (absent exigent circumstances). Officers in the pilot precincts testing the new stop report form will also pilot the new receipt.
The NYPD’s stop report pilot will assess whether the current draft of the new stop report form should be revised in any way before it is finalized. A final version of the new stop report will be proposed to the monitor and plaintiffs’ counsel and ultimately submitted to the court for approval. Once the court approves a new form, the NYPD will use it throughout the Department.
5. Davis/NYCHA Policies In the Davis settlement, the City, the NYPD and the plaintiffs agreed that residents of NYCHA buildings and their authorized visitors have the same legal rights as the residents and visitors of any other residential building in New York City. The parties agreed that developing cooperative and trusting relationships between NYPD officers and NYCHA residents advances effective policing.
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II. B. Department Policies and Procedures 5. Davis/NYCHA Policies
Milestones The Davis settlement requires a new Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) that promotes constitutional interactions between NYPD officers and persons encountered during interior patrols. The new provision deals with encounters governed by DeBour (described in Section II.B.1). Among other things, the new provision states that, without more, entering, being in or exiting a NYCHA building is not an “objective credible reason” justifying an officer’s approach and request for information. The settlement also requires a new form documenting all trespass arrests in NYCHA buildings (the Trespass Crimes Fact Sheet). The agreed-upon order also modifies certain NYCHA rules requesting residents’ cooperation with police inquiries and defining “lingering,” which NYCHA rules prohibit in its buildings.1
Status and Assessment The language of P.G. 212-60 was agreed to as part of the settlement and has been approved by the court. The NYPD and the plaintiffs in Davis, Ligon and Floyd all agree that the procedures for NYCHA patrols (P.G. 21260) should align when possible with procedures for patrol of TAP buildings (P.G. 212-59) and should be consistent with the stop procedures applicable
1 NYCHA was also a defendant in Davis and reached a settlement with the Davis plaintiffs.
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II. C. Training
to all street encounters (P.G. 212-11). Because the submission of a final recommendation for a revised P.G. 212-59 has been deferred while the parties in Ligon continue their negotiations, the publication of P.G. 212-60 may also be deferred so both procedures can be issued at the same time.
C. Training An important focus of attention for the parties and monitor in the first months of this remedial effort has been training for the current police recruit class that started in January 2015 and recently graduated. The monitor, the NYPD and the plaintiffs recognized that a new class of approximately 890 recruits could not be trained at the Police Academy using materials that the court and the NYPD had determined to be inadequate. The parties worked to develop new student guides, lesson plans, PowerPoint presentations and scenarios for several subjects, including Policing Legally—Street Encounters; Policing Impartially; and Patrolling Housing Facilities. The revisions to training materials do not reflect any changes in federal constitutional law. Much of the recruit training materials were the same as those used in prior classes. Changes were made to the extent required by the court orders, and there were additional revisions that the NYPD wanted to make. Recruit training may undergo further review and modifications for future recruit classes.
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II. C. Training
Recruit training is just one piece of the larger training effort needed for this remedial effort. All 35,000 NYPD members of the service will need to be trained on the new policies and procedures to be put into place. This will require significant time, coordination and resources. The Department will be developing roll-call training for precincts, PSAs and TDs, and more in-depth annual in-service training that will include lectures, discussions and role-play scenarios. In addition to recruit training, revisions to training required by the court orders and parties’ agreements include the following elements:
 Changes to the Field Training Officer (FTO) guide and training for the field training officers who will be working with the newly graduated recruits in July;
 Roll-call training on the following topics: o New Patrol Guide procedures on stop, question and frisk (P.G. 212-11); o New procedures prohibiting racial profiling (P.G. 203-25); o New procedures on interior patrols in NYCHA housing (P.G. 212-60); o New procedures on interior patrols in TAP buildings (P.G. 21259);
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II. C. Training
o New Stop Report Form (formerly UF-250); o New Trespass Crimes Fact Sheet, to be completed for each
trespass arrest;  Training on changes to NYCHA House Rules, including the
definition of lingering;  Promotional training for supervisors; and  In-service training for all NYPD members of the service. Separate from the court orders, the NYPD recognizes that its training, both recruit and in-service, is due for comprehensive review. The NYPD wants to move to a curriculum that relies more on scenarios and interactive training. The Department has opened a new Police Academy building in College Point, Queens, which is a consolidated training campus for new recruits, officers and civilians. The Department established a civilian Training Advisory Committee to assist the NYPD in reviewing and observing training. The NYPD also has identified the need for more in-service training in addition to the training needed for this remedial effort. In 2015, the NYPD began a new three-day training curriculum on use of force and de-escalation tactics for all officers. This training focuses on how an officer can avoid a physical confrontation when dealing with a suspect, and how to take a
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II. C. Training 1. Training on Stop, Question and Frisk
suspect into custody safely while minimizing the possibility of harm to the individual and the officer. The training is designed to reinforce skills and tactics to maintain safety in often difficult and dangerous situations. Although much of this training goes beyond what is required by the court orders in these cases, there are elements that are relevant to the court orders, including material relating to procedural justice.
Training is essential to the success of the remedial efforts. Officers at every level should feel comfortable that they understand what the law and NYPD policy require and permit. Unless that happens, the Department will find it difficult to ensure that stop, question and frisk and trespass arrests are used when they should be and not used when they shouldn’t be.
1. Training on Stop, Question and Frisk Milestones A recruit training class entitled “Policing Legally—Street Encounters” covers the legal standards governing when an officer may stop, question and frisk a person. The court orders require that this course underscore that officers need to articulate specific facts describing why they had reasonable suspicion, so that they avoid using boilerplate language or “scripts” in describing the basis for a stop. The training should also emphasize that the legal authority for a stop does not automatically provide the authority for a
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II. C. Training 1. Training on Stop, Question and Frisk
frisk. To frisk a person, the officer must have reasonable suspicion that the person stopped is armed and presently dangerous. The court also found that the description of “furtive behavior” in the prior training materials was vague, and that the language on “unusual firearms” was misleading. The new training materials will also include scenarios involving self-initiated stops in addition to stops based on radio runs.
Status and Assessment The NYPD worked with the monitor and the plaintiffs in revising the recruit training materials. The revisions were designed to clarify this area of the law and expand the discussion of the constitutional standards. The training materials stress that an encounter between a civilian and an officer is considered a “stop” under the law when a reasonable person would not feel free to disregard the officer and walk away. Such an encounter requires the officer to have reasonable suspicion that the person was engaged in or is about to be engaged in criminal conduct. The course covers Terry and the four levels of DeBour encounters. The revised training materials for this subject included a student guide and PowerPoint presentation, an instructors’ lesson plan, scenarios and workshops involving encounters at each of the levels of DeBour encounters, and exam questions.
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II. C. Training 1. Training on Stop, Question and Frisk
On April 24, 2015, the court approved the monitor’s final recommendations on the training materials submitted, and training began on May 11, 2015. The monitor team has observed training classes; one of the plaintiffs’ experts accompanied the monitor team in observing some of the training classes.
Although the NYPD has made changes to the written recruit training materials required by the orders, the parties agree that it was not possible for the NYPD to rewrite and restructure the recruit curriculum completely in the short time available for preparing the materials for this recruit class. The NYPD, the monitor and the plaintiffs will learn from the training of this first recruit class, and revisions to training for future classes can incorporate the lessons learned.
In conducting its evaluation, the monitor team sat in on many recruit classes and participated in “train the trainer” sessions, which also were focus groups about how the curriculum could be better taught. We spoke to individual teachers and had many conversations and meetings with those concerned with training—including the First Deputy Commissioner, the commanding officer of the Police Academy, many of the staff in charge of particular aspects of training, the civilian Training Advisory Committee, and outside consultants to the NYPD whose tasks include providing advice about
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II. C. Training 2. Training on Racial Profiling
training. Members of the monitor team have had substantial experience in education and in training police officers, and we shared with the Department some preliminary impressions and thoughts about how training could be improved. These comments related to increasing and improving teacher training, increasing the use of hands-on training, and rethinking how teachers are chosen for the Academy and how they are evaluated once there.
2. Training on Racial Profiling As the student guide for the “Policing Impartially” course states: “As a police officer, you are required to enforce the law impartially without regard to actual or perceived race, class, ethnicity, culture, religion, age, gender, sexual orientation, disability, immigration or housing status. At the same time, we are members of a larger society in which bias and discrimination against certain groups of people are matters of historical and statistical fact…. As noted in a recent speech by Police Commissioner Bratton, American policing has been part of the best of American history, but unfortunately some of the worst parts as well. Understanding this history and how it has shaped perceptions will help you become a better, more effective police officer.”
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II. C. Training 2. Training on Racial Profiling a. Training on Bias-Free Policing
a. Training on Bias-Free Policing Milestones The court orders require new training on the NYPD’s prohibition of racial profiling. Under that policy, officers may not use race as a motivating factor, even in part, for law enforcement action, unless the action is based on a reliable and specific suspect description. A general suspect description, such as “young, black male,” is not sufficient; in addition, the fact that a particular group may appear more frequently in local crime statistics is not enough information for there to be reasonable suspicion for a stop. Status and Assessment The NYPD prepared a student guide and PowerPoint presentation for the “Policing Impartially” recruit course and the plaintiffs provided their comments. The monitor submitted and the court approved these materials for this recruit class. These written materials included what was required by the court orders and the parties’ agreements. In addition, the NYPD worked with the plaintiffs and the monitor to prepare the instructors’ lesson plan, scenarios, workshops and exam questions. The material includes information regarding bias and police history and how knowledge of this history can help officers be more effective. Most of the training material in this course was previously included in prior recruit training classes and was
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II. C. Training 2. Training on Racial Profiling b. Training on Implicit Bias and Procedural Justice
prepared by the NYPD. The topic of this training is an important area of focus for the NYPD. The monitor team observed that the recruit class benefited greatly from the diversity of the class itself and their personal experiences with police encounters. Further changes may be made for future classes based on experience from this training class and from the comprehensive review of training materials being undertaken by the NYPD. In-service training for officers in the field also will be conducted after the Patrol Guide procedure on racial profiling is approved by the court.
b. Training on Implicit Bias and Procedural Justice
Milestones Training on implicit bias and procedural justice are two important areas of education. The Department has recognized that police officers will be much more effective and safer if they are aware of their own unconscious biases as well as those of others with whom they interact—e.g., community residents, witnesses and complainants, prosecutors, lawyers and judges. Incorporating training on implicit bias into the NYPD training curriculum will inform new recruits and officers about how stereotypes and unconscious attitudes (some developed during police work) can sometimes improperly influence their perceptions.
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II. C. Training 2. Training on Racial Profiling b. Training on Implicit Bias and Procedural Justice
The Department has committed itself to “procedural justice” training, a well-known training tool. The U.S. Justice Department describes the core values of procedural justice as “(1) fairness and consistency in rule application, (2) impartiality and unbiased decision making, (3) providing voice and representation, and (4) demonstrating transparency and openness.” www.cops.usdoj.gov/pdf/taskforce/Procedural-Justice-and-Legitimacy-LEReview-Summary.pdf. A benefit of procedural justice is that voluntary compliance is furthered when individuals believe they are being treated fairly, respectfully and within the law. Police officers will be more effective and safer when civilians comply voluntarily with law enforcement directives. Another tenet of procedural justice is that police officers are more effective when they believe they are being treated by their superiors fairly, respectfully and within the law.
Status and Assessment Preparing training on implicit bias and procedural justice will take time. The monitor and parties agree that it should be included for the recruit class starting in July 2015, if possible, or for the following 2016 recruit class. The NYPD is hiring consultants with expertise in policing, implicit bias and procedural justice to assist in reviewing NYPD training and NYPD policies, and in developing revised training materials.
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II. C. Training 3. Training on TAP Policies (Ligon)
3. Training on TAP Policies (Ligon) Milestones The agreed-upon orders require the NYPD to revise its training regarding how officers conduct interior patrols (sometimes called “vertical patrols”) inside or near apartment buildings enrolled in TAP. The training must emphasize that mere presence in, entry into or exit from a TAP building is not sufficient to stop an individual on suspicion of criminal trespass; nor is it an “objective credible reason” to approach a person to request information. Status and Assessment The court has approved the study guide and PowerPoint presentation on TAP policies for the current recruit class. The NYPD worked with the plaintiffs and the monitor to develop the instructors’ lesson plan, exams and scenarios. The training covers stops both outside and inside TAP buildings and is not limited to buildings in the Bronx. The written TAP training materials include the changes required. The monitor team will continue to observe NYPD training on this topic. In-service and roll-call training on this topic will be reviewed after the Patrol Guide procedures are approved by the court.
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II. C. Training 4. Training on Patrols in NYCHA Buildings (Davis)
4. Training on Patrols in NYCHA Buildings (Davis) Milestones As part of the Davis settlement, the NYPD and plaintiffs have developed an instructors’ lesson plan for recruits on interior patrols in NYCHA buildings, which has been approved by the court. In-service and roll-call training also will need to be developed. Status and Assessment The court-approved lesson plan was incorporated into the Police Academy recruit training for the January 2015 recruit class. The NYPD also developed a student guide, PowerPoint presentation and other materials consistent with the lesson plan. The NYPD incorporated the court-approved training materials two weeks after the April 28 approval of the Davis settlement, although it was not required for the January–July 2015 recruit class. The monitor has observed recruit training on this topic. The monitor also will be observing in-service and roll-call training on this topic when they are developed.
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II. C. Training 5. Training for Supervisors
5. Training for Supervisors Milestones One of the significant changes to NYPD procedures is that front-line supervisors will be responsible for reviewing the legality of stops and trespass arrests. NYPD supervisors must be trained on these new responsibilities. Promotional training for each of the ranks from sergeant to captain must be revised to include training on the new responsibilities of supervisors and the chain of command. In addition, the officers who will be partnering with the recruits who graduated in July 2015 under the FTO program also must be trained so that they are familiar with the training provided to the recruits. The FTO Field Guide also must be revised with respect to stops and interior patrols of NYCHA buildings and buildings enrolled in TAP. Status and Assessment The NYPD has prepared revisions to the FTO Field Guide and drafted training materials for FTOs. The parties have not agreed on whether any additional revisions to the Field Training Guide are needed to meet the requirements of the court orders, and the monitor will be reviewing this issue. Additional training materials will be prepared after court approval of new stop, question and frisk Patrol Guide procedures. These materials will include roll-call training for supervisors on the Patrol Guide procedures, in-
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II. D. Supervision
service training and training for newly promoted members of the service. Revised training materials will be prepared for the next in-service training classes, which are now being planned for September. The monitor will report on training for supervisors after the revised NYPD procedures are approved by the court and training is developed.
D. Supervision One of the findings of the court in Floyd was that NYPD supervisors did not review the constitutionality of the stops made by officers under their supervision. Under the existing Patrol Guide procedures, officers submit their stop report forms to the desk sergeant, not to their direct supervisor (usually the patrol sergeant). In addition, to the extent that the desk sergeant or any other supervisor in the NYPD chain of command reviews an officer’s stop report form, it is only to assess whether the form is fully completed— that is, whether all the captions are filled out. Furthermore, there is little review of an officer’s activity log, and no assessment of whether the activity log describes a constitutional stop and/or frisk, based on appropriate reasonable suspicion. Front-line supervision was emphasized by the court because there is consensus among police agencies that these supervisors play the most important role affecting the culture of the organization. An engaged
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II. D. Supervision
supervisor who actively intervenes at the scene and reviews reports sets the tone. Misfeasance is best identified and corrected, and good conduct recognized and rewarded, at this level of the organization.
Milestones The court orders require that front-line supervisors review officers’ stop report forms and activity logs not just for their completeness but also for the constitutionality of the stop, the constitutionality of the frisk and/or search, if conducted, and the reasonableness of any use of force. The procedures must also include a description of supervisory actions taken or to be taken if an officer’s actions are not appropriate. In the Ligon case, the court orders require that the NYPD implement a system for reviewing the constitutionality of stops for criminal trespass outside TAP buildings in the Bronx, consistent with the supervisory reforms ordered in Floyd. Under the Davis settlement, the NYPD must ensure that supervisors review their officers’ interactions with NYCHA residents and guests when making arrests for trespass, when making stops and when enforcing NYCHA rules. The review will be to ensure the lawfulness of the interaction and that officers prepare the appropriate documentation.
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II. D. Supervision
Status and Assessment One of the most significant changes in the daily operations of the NYPD relating to stops and frisks will be the new responsibilities of supervisors in ensuring that their officers’ actions are lawful. The draft revised Patrol Guide procedures for stops (P.G. 212-11) include supervisory review and responsibility for taking appropriate action. An officer’s immediate supervisor (usually the patrol sergeant) will conduct a substantive review of the constitutionality of the stop and, if conducted, the frisk or search. In addition, the procedures provide for the sergeants’ reviews of stops to be assessed by the precinct’s Integrity Control Officer (ICO) and the Executive Officer. These responsibilities will be included in the new Patrol Guide sections and will also be documented on the new stop report form. The revised stop report form (now in draft) requires supervisors to document whether the stop was supported by reasonable suspicion and, separately, whether the frisk, if conducted, was supported by reasonable suspicion. If not, the supervisor must then document what action, if any, was taken: whether the report was corrected or the officer was instructed, referred for training or disciplined. The monitor also will review the NYPD procedures covering supervisory actions relating to trespass enforcement.
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II. E. Auditing 1. Quality Assurance Division (QAD)
E. Auditing Under the court orders, the monitor will “regularly conduct compliance and progress reviews” to assess the extent to which the NYPD has implemented the required remedial measures. It is even more important, however, that the NYPD itself monitor and audit its conduct to ensure that the reforms are carried out. There are several ways the NYPD audits and monitors its officers’ actions. At the precinct level, each command has an ICO, who must perform inspections and reviews to identify misconduct by officers. QAD is responsible for ensuring that the Department complies with its written policies and procedures. With respect to NYPD stop and frisk practices, the court found that the Department’s monitoring and audit procedures were inadequate. Supervisors, ICOs and QAD reviewed the paperwork to assess how the stop report forms were filled out but did not conduct reviews to ensure that the stops were lawful.
1. Quality Assurance Division (QAD) Milestones The court orders require that the NYPD develop auditing protocols for stops and frisks that ensure compliance with legal standards, not just documentation requirements. In addition, the NYPD must develop
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II. E. Auditing 1. Quality Assurance Division (QAD)
procedures to review supervisory actions taken in response to improper stops and improper trespass arrests in NYCA housing.
Status The Department has moved QAD to the Risk Management Bureau to consolidate areas of risk management and to ensure early identification and centralized reporting of issues uncovered during the course of audits. QAD evaluates compliance in many different performance areas: stop, question and frisk is one of them. Currently, QAD is continuing to conduct audits of stops and oversee self-inspections mostly as it did before the court orders, without the changes the NYPD understands need to be made, because neither the Patrol Guide section governing stop, question and frisk nor the stop report form has yet been revised to reflect the requirements of the orders. In anticipation of the appropriate changes to the Patrol Guide and stop report form, however, the NYPD is in the process of developing new audit work plans. The NYPD has stated that audits undertaken pursuant to the new plans will focus on assessment of the lawfulness of the stop (and frisk, if conducted) and evaluate the supervisor’s review of those actions. The work plans also will analyze data to identify citywide, borough-wide, and precinct-level patterns and trends of potentially problematic stops. The new audit program will also
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II. E. Auditing 1. Quality Assurance Division (QAD)
include a revised sampling approach that will increase the number of stops analyzed by QAD. NYPD staff have visited the Los Angeles Police Department to review its audit system and are collecting information on auditing from other large city police departments. The NYPD has also hired a CPA with extensive auditing experience who was previously employed by a major accounting firm.
One major challenge for the NYPD is how to identify and then address stops and frisks that are made by police officers but not documented. Without accurate reporting, it will be impossible for the Department’s supervisors to make informed judgments about what is actually happening on the street. Without that knowledge, it will be difficult for the Department’s policy-makers to account for and perhaps respond to what communities are in fact experiencing. And finally, it is essential in a democratic society that the public have confidence in what is being reported by the police.
Before 2008, QAD did not conduct any audits to determine whether stop forms were in fact completed every time a person was stopped. After a study by the RAND Corporation in 2008, the NYPD developed an audit program using radio transmissions to identify instances in which a stop was made and a stop report should have been prepared. The audit required
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II. E. Auditing 1. Quality Assurance Division (QAD)
listening to a sample of hours of radio transmissions, however, so only a limited number of evaluations were completed each year.
In October 2014, the NYPD obtained technology that does keyword searches on the Department’s new computer-aided dispatch system (ICAD). QAD uses keywords including “Stopped,” “Show-up,” “Holding” and “Warrant Check” to identify possible stop encounters; then QAD reviews the radio transmissions and NYPD records to determine if a corresponding stop report form was prepared. If not, further investigation is done to determine whether one should have been prepared. QAD performs this audit based on ICAD in five commands each month.
Assessment The NYPD has acknowledged that the current ICO self-inspections and QAD audits are not sufficient, and the Risk Management Bureau is preparing new audit work plans to meet the requirements of the court orders. The new audit work plans also should include protocols for monitoring and auditing stops and arrests for criminal trespass in NYCHA housing. Some audits that QAD is now conducting, however, do identify issues that need to be addressed. The NYPD provided the monitor with recent audits of nineteen precincts based on reviews of radio transmissions (ICAD audits). For seven of these precincts, the audit looked at three-day periods.
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II. E. Auditing 2. Early Identification System (EIS)
For five precincts, the audit was for seven-day periods. In total, these twelve audits concluded that there were seventeen instances in which stops were conducted when there should have been a stop report form but none was made. For seven additional precincts, QAD identified a number of instances in which it appeared likely that a stop was conducted but there was no or improper documentation. The NYPD is currently conducting further investigation of those events. The monitor has asked for additional information about the outcomes of these audits.
The monitor team will be working with the NYPD and the plaintiffs to identify additional methods for determining whether stops are being made but not documented and will be reviewing the results of the audits.
2. Early Identification System (EIS) Milestones The court highlighted the benefits of an Early Identification System (EIS) (sometimes called an “Early Intervention System” or “Early Warning System”), a centralized database to collect and analyze information relating to behavior that might put the Department or its officers at risk. Many major police departments use an EIS to support the supervision and management of their officers, supervisors and units. It is not meant to be a tool for discipline; it is used to identify at-risk employees and patterns of at-risk
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II. E. Auditing 2. Early Identification System (EIS)
behaviors so that they can be addressed and corrected before more serious misconduct occurs. As part of the remedial efforts, the NYPD has committed itself to implementing an effective EIS system.
Status The NYPD has described an EIS that it has had in place for some time. The Performance Analysis Section of the Risk Management Bureau tracks officer performance using several databases to identify officers and supervisors who display at-risk behavior. Officers flagged in the system are then candidates for a monitoring program. The data reviewed include disciplinary actions, evaluations that are below standards, civil lawsuits, CCRB complaints, use of force complaints, referrals by supervisors and personnel information collected in the Department’s Central Personnel Index (CPI). Personnel from the Performance Analysis Section then interview officers that were identified for placement into a monitoring program. A monitoring program is then put in place with a plan for remediation, which may include re-training or mentorship. The NYPD has committed itself to upgrading its technology to integrate more of its databases and to creating an alert system that identifies officers and units for potential intervention. As part of this effort, the Department has moved its Enterprise Liability Assessment Unit (ELAU) to
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II. E. Auditing 2. Early Identification System (EIS)
the new Risk Management Bureau. ELAU’s task is to analyze notices of claims and lawsuits filed against the City and officers to identify patterns or trends. ELAU has begun creating an internal database, the Risk Assessment Information Litigation System (RAILS), for this purpose. The NYPD plans to expand the RAILS database to create a single, integrated database for both officer performance analysis and department-wide risk assessment. This expanded database would provide the Performance Analysis Section, as well as supervisors and others in the Department, with up-to-date data regarding officers and squads. The New York City Comptroller’s Office has approved a new “scope of work” and registered the contract for expanding RAILS.
As described to the monitor, once it is in operation, the expanded RAILS will include information on complaints against officers, civil lawsuits, uses of force, discipline, sick leave and overtime, traffic accidents, IAB investigations, criminal proceedings against officers and other data relating to at-risk behavior. The NYPD also hopes to incorporate positive information on officers, including commendations, letters of reference and promotions, among other items. RAILS will use “triggers,” or thresholds, to identify when officers need additional review by supervisors; these triggers will be both quantitative (e.g., if an officer has been named in a certain number of lawsuits) and comparative (e.g., if an officer has used force
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II. E. Auditing 2. Early Identification System (EIS)
significantly more often than officers with similar assignments and patrols). The NYPD plans to use the RAILS system to evaluate individual officers and also as a tool to analyze patterns for squads and units to encourage and audit supervisory accountability.
Assessment The monitoring program overseen by the Performance Analysis Section is an avenue for evaluating officer performance, but it has limitations. The section uses data from the CPI, performance evaluations and some data from the CCRB, but it does not include other information that would be useful, such as data on stops, as well as trespass arrests in public housing. The NYPD’s proposals to expand RAILS are encouraging. If it is put into place, RAILS can be a formidable early identification system. Some of the challenges the NYPD faces in getting this system up and running include: completing the procurement process; obtaining data from all the appropriate sources, including the CCRB and the City Law Department; and training supervisors on using the data and analysis. The NYPD agrees that it should use RAILS or another methodology to analyze and assess patterns and trends of officers’ stops.
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II. E. Auditing 3. Bronx TAP Audit
3. Bronx TAP Audit The remedies agreed to by the NYPD in Ligon require it to develop procedures to ensure that officers are completing a stop report form for every criminal trespass stop made outside a TAP building in the Bronx. The QAD audits described in Section II.E.1 above should include trespass stops outside TAP buildings in the Bronx, so that the NYPD can implement procedures to ensure proper documentation of those stops. In addition, the NYPD has proposed a draft Operations Order for a pilot program to examine the supervisory review of criminal trespass stops outside TAP buildings in the Bronx. The draft pilot program requires the ICO in each Bronx command to review a percentage of stop reports each month. The procedure will include supervisory reviews focusing on assessing the constitutionality of stops in addition to ensuring the forms have been completed correctly. The monitor has reviewed the draft audit protocol and will be sending the parties proposed revisions to the draft Operations Order. After reviewing additional input from the parties, the monitor will submit a final recommendation for court approval.
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II. F. How NYPD Handles Complaints and Discipline 1. Tracking and Investigating Profiling Complaints
F. How NYPD Handles Complaints and Discipline Concerning Profiling, Trespass Enforcement and Stop, Question and Frisk
A fair, accurate and prompt disciplinary system is central to the court orders, the parties’ agreements and also to improving relations between police officers and their superiors and between the police and the community. The system should be seen as legitimate by the police and the community being policed.
1. Tracking and Investigating Profiling Complaints Milestones Until the fall of 2014, the NYPD did not have a separate category for allegations of racial or other prohibited profiling, and therefore could not know how many of these complaints had been made. Profiling allegations that came into the Department most often were sent to be investigated at the precinct where the alleged conduct occurred, and the NYPD did not track the outcome of the complaints—whether the allegation was substantiated and, if so, whether any remedial or disciplinary action was taken. The court orders require the NYPD to begin tracking and investigating complaints it receives related to profiling.
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II. F. How NYPD Handles Complaints and Discipline 1. Tracking and Investigating Profiling Complaints
Status The NYPD has changed the way it processes, tracks and responds to profiling complaints. In October 2014, the NYPD upgraded the case management system used by the Internal Affairs Bureau (IAB) and added a “profiling” category with nine subcategories: race, color, ethnicity, national origin, religion, age, gender, gender identity and sexual orientation. These complaints can now be tracked. The NYPD also changed by whom profiling allegations are investigated. Previously, allegations of profiling were categorized as “Outside Guidelines” or “OG” complaints, and the Investigative Review Section of the Office of Chief of Department would determine where the allegations were sent to be investigated. Usually, the investigations were sent to the officer’s precinct, where the officer’s supervisor often did the investigation. Now, profiling complaints are categorized as more serious “Misconduct” or “M” cases. These M cases are logged into the IAB’s case management system and the IAB tracks the complaint. The allegations are no longer investigated in the command where the officer is assigned. Instead, the Office of Chief of Department determines where the allegation will be investigated, and forwards the case to one of the investigation units
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II. F. How NYPD Handles Complaints and Discipline 1. Tracking and Investigating Profiling Complaints
of the relevant borough or bureau command. The IAB reviews both the quality and the outcome of these M case investigations.
According to the NYPD, as of April 30, 2015, there have been ninetythree allegations of profiling received by the NYPD since October 2014, when the IAB case management system began tracking profiling complaints (fourteen in 2014 and seventy-nine in 2015). The fourteen 2014 cases were classified as OG cases and investigated at the precinct level. Of the 2015 cases, however, seventy-eight have been classified as M cases, with one case classified as a “C” (Corruption) case.
The NYPD has stated that with the changes to its database, which separately categorizes profiling allegations, IAB and the Risk Management Bureau will now be able to analyze the data to determine whether there are trends, patterns or other indications of problematic behavior within a precinct, borough or bureau, or by a single officer. These analyses would be more complete if the NYPD included allegations of profiling that are received at the CCRB. Although the CCRB does not have a category of complaints for profiling allegations, if profiling is alleged in a complaint or during the investigation of the complaint, the CCRB does note those allegations in its database. The Department does not obtain that data routinely and regularly, and the NYPD is not currently using the CCRB
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II. F. How NYPD Handles Complaints and Discipline 2. NYPD Handling of Complaints Substantiated by the CCRB
complaint data (whether related to profiling or to stops, frisks and searches) for any analysis of trends and patterns of complaints.
Assessment Having complaints of profiling investigated by the IAB or a borough investigation unit improves the NYPD process because a supervisor of the subject of the complaint will no longer investigate the complaint. When the NYPD begins completing investigations and dispositions of these cases, the monitor will review a sample of those investigations and report on that review. The monitor also will review the NYPD’s intake procedures, investigative protocols and training materials for these investigations. The Department has made improvements in how it categorizes and tracks complaints of profiling. It is too early to assess how the Department investigates these complaints or how it uses and analyzes the data it collects.
2. NYPD Handling of Complaints Substantiated by the CCRB
Milestones The court found inadequacies in how the NYPD handled complaints relating to stops, frisks or searches that were substantiated by the CCRB. The CCRB has jurisdiction to investigate complaints against officers alleging use of excessive or unnecessary force, abuse of authority, discourtesy or the use of offensive language (collectively known as FADO
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II. F. How NYPD Handles Complaints and Discipline 2. NYPD Handling of Complaints Substantiated by the CCRB
complaints). Improper stops, questions, frisks or searches fall under the category of abuse of authority. Under the agreed-upon court orders, the NYPD’s Department Advocates Office (DAO) must revise its procedures for dealing with cases in which the CCRB has substantiated an allegation. The NYPD must give increased deference to credibility determinations by the CCRB and not favor an officer’s word simply because he or she is an officer.
Status There are several levels of discipline that can be imposed on NYPD members of the service. The most serious discipline recommendations, called “charges and specifications,” are prosecuted in the NYPD’s trial room before an administrative law judge, under the supervision of the NYPD’s deputy commissioner of trials. There are other cases in which less serious discipline is recommended. The discipline recommended can be a loss of five or fewer days of vacation, or ten or fewer days of vacation (known as “command discipline A” and “command discipline B,” respectively), retraining or instructions from a supervisor. At the time of the Floyd trial, all complaints that were substantiated by the CCRB were sent to the Department Advocates Office (DAO) in the NYPD. The DAO could proceed with the case or decide not to go forward
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II. F. How NYPD Handles Complaints and Discipline 2. NYPD Handling of Complaints Substantiated by the CCRB
with the CCRB’s findings or recommended discipline. For cases in which a CCRB panel substantiated an allegation of an unconstitutional stop and recommended serious discipline (i.e., charges and specifications), the DAO would decide whether or not to prosecute the case in the NYPD trial room. The DAO reviewed the case, considered the recommendations of the CCRB and made its own recommendations to the police commissioner.
In April 2012, the NYPD and the CCRB executed a Memorandum of Understanding (MOU) giving the CCRB authority to prosecute in the trial room complaints that have been substantiated by the CCRB and in which it has recommended that charges and specifications be brought. The CCRB has established its own Administrative Prosecution Unit (APU) to prosecute these cases. The police commissioner still has the final authority over the disposition of the case and the discipline imposed, if any, if the trial results in a plea or finding of guilt.
Another change in NYPD’s handling of cases substantiated by the CCRB is the “reconsideration process” used by the DAO. If the DAO disagrees with the CCRB’s determination to substantiate a case with charges and specifications, or disagrees with the CCRB’s recommendation of discipline, the DAO may request in writing that the CCRB reconsider the case, and state why the NYPD disagrees with the CCRB’s decision. The
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II. F. How NYPD Handles Complaints and Discipline 2. NYPD Handling of Complaints Substantiated by the CCRB
CCRB can agree to reconsider the case or decide not to reconsider. If it does reconsider the case, the CCRB panel that made the initial decision can modify its decision to substantiate the complaint or its recommendation for discipline; or it can determine that its original decision was correct, in which case the APU continues with its prosecution in the trial room. The reconsideration process was formalized by a CCRB vote in December 2014.
For cases in which the CCRB substantiates the allegation and recommends discipline less serious than charges and specifications, the DAO continues to review CCRB’s determination. The DAO can agree with the CCRB’s determination, decide not to go forward with the complaint (Department Unable to Prosecute, or DUP), or change the CCRB’s recommendation by recommending less severe or more severe discipline. These cases are also subject to reconsideration by the CCRB.
The NYPD has developed a process it calls the penalty review process for cases in which the NYPD disagrees with the CCRB’s determination in these less serious cases. If the DAO determines that the discipline recommended by the CCRB is too harsh, is not harsh enough or does not apply to the type of conduct in which the officer engaged, the DAO sends an email to the CCRB stating its reasons for disagreeing with the CCRB’s recommendation. The CCRB can reconsider its recommendations before the
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II. F. How NYPD Handles Complaints and Discipline 2. NYPD Handling of Complaints Substantiated by the CCRB
DAO’s decision on the complaint and the recommended discipline is forwarded to the police commissioner’s office for final disposition.
Assessment Under the MOU between the CCRB and the NYPD, the CCRB now prosecutes in the trial room cases in which complaints have been substantiated by the CCRB and charges and specifications recommended. That is an important change that addresses some of the concerns expressed by the court. However, this change does not deal with cases in which the CCRB recommends discipline at the command level. In addition, further study is needed of other parts of the NYPD’s disciplinary process to determine whether, as a whole, this process meets the requirements of the court orders. The plaintiffs have raised concerns that the reconsideration and penalty review processes will undermine the reforms incorporated in the MOU. Plaintiffs are concerned that the new procedures might delay the process so long that cases could not be prosecuted because the statute of limitation had run. They also have expressed concerns that the procedures would allow the DAO to impose its legal analysis, factual findings and penalty recommendations on the CCRB. In its 2014 annual report, the CCRB states that the new spirit of collaboration between the NYPD and the
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II. F. How NYPD Handles Complaints and Discipline 3. CCRB Investigations
CCRB has increased the percentage of cases in which the NYPD has given officers the discipline recommended by the CCRB. However, the monitor team has not yet had the chance to assess fully the plaintiffs’ concerns and possible responses by the NYPD or to take into account the data underlying the CCRB’s 2014 report.
3. CCRB Investigations The CCRB is an independent agency and was not party to the lawsuits or the agreements among the parties, and the court orders did not require the CCRB to change its procedures. Nonetheless, it is an important part of the disciplinary process. The success of some of the reforms agreed to by the NYPD may be affected by whether the CCRB’s processes are perceived by police officers and the public to be, and are in fact, fair and effective. The CCRB has reorganized its investigative units, and changed how it trains its investigators and coordinates with the NYPD. Its investigative units are now smaller and have more direct supervision. It has developed new benchmarks for how long it should take to interview complainants, officers, and witnesses and to complete investigations. The NYPD also has assigned IAB officers to work at the CCRB, which significantly enhances the CCRB’s ability to obtain NYPD documents (such as crime reports and stop
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II. G. Performance Goals, Objectives and Evaluation
report forms) and to help identify NYPD members who might be the subject of a CCRB complaint.
According to the 2014 CCRB Annual Report, http://www.nyc.gov/html/ccrb/downloads/pdf/Annual%20Report%202014Rev4Final.pdf, these and other changes have reduced the time it takes to complete CCRB investigations, the number of days it takes before NYPD officers are interviewed and the backlog of cases.
G. Performance Goals, Objectives and Evaluation In many meetings with NYPD officials and officers at every rank and from many different units, the Department has acknowledged, as the court found, that an excessive focus on “numbers” led to the overuse and misuse of “stop, question and frisk.” This emphasis was included in the evaluation of officers as part of periodic reviews and in less formal ways. The push for more and more stops (along with other enforcement activities) was ingrained in the expectations of supervisors at every level and of officers on the street. The result was less focus on the lawfulness and effectiveness of individual stops and more on increasing the number of stops. This also had the collateral consequence of creating or exacerbating rifts between the police and the communities being policed, which, among other things, adds to the danger and difficulty of an officer’s job and makes the communities less
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II. G. Performance Goals, Objectives and Evaluation
safe. Union officials also criticized the emphasis on numbers as diminishing the discretion of police officers and effectively pushing them into behavior that officers did not always think was appropriate.
The point here is not to participate in the debate about the pros and cons of this emphasis on numbers or the policing strategies that led to it. It is that performance evaluation was one of the most important elements leading to the court’s opinions, the court orders and the agreements. It is therefore an important part of the remedial process. Unless officers on the street see evidence and believe that they will be rewarded and supported for doing their jobs well—for quality, not just quantity—and not just disciplined for unacceptable behavior, change will be slow and reforms may be fleeting.
Deciding how to change performance measures and evaluations and putting them into effect in the NYPD is, however, difficult and complex. Here are a few of the many challenges:
First, the NYPD needs to decide what officer behavior or characteristics it wants evaluated. Whatever else is going to be evaluated, the Department believes that “activity” of some sort will have to be part of the evaluation. Otherwise it will be difficult for supervisors to learn which officers are doing their jobs and which are slacking off. In a department the size of the NYPD, moreover, it is understandable that activity has to be
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judged to some extent by quantifiable numbers. So the NYPD’s challenge is to devise a system that recognizes “quality” (which would include lawfulness), but also has metrics by which officers’ activity and their supervisors’ review of that activity can be judged without having those metrics become a system of unlawful quotas. In addition, certain activities do not lend themselves to metrics that could be applied easily in such a large department. For example, the Department is committed to more engagement with communities, but determining what is a productive engagement and what is just going through the motions is not simple.
Second, as anyone knows who has had to deal with this question in a large organization, it is not so easy to get those doing the evaluations to take them seriously and do them honestly. No system—no matter what the metrics—is useful if superiors, out of loyalty or laziness or something else, give everyone terrific grades.
Third, as stated above, the system has to be felt on the street—in both the discipline being handed out and in the rewards. With respect to the rewards, the Department has tools, but those tools are limited by civil service rules.
The NYPD understands both the importance and complexity of changing its performance evaluations. The police commissioner has
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II. H. Body-worn Cameras
announced that there will be changes in the “Quest for Excellence” program of evaluation, but has not yet announced what those changes will be.
The monitor team also understands the importance and complexity of performance evaluations and will be working with the NYPD and the plaintiffs, and will report progress in the future as appropriate.
H. Body-worn Cameras The court noted the potential benefits of outfitting NYPD officers with body-worn cameras (BWCs). These potential benefits include creating objective records of stop encounters, encouraging lawful and respectful police-citizen interactions when both parties know exchanges are recorded, alleviating mistrust between the NYPD and the public, and offering a way to substantiate whether officers have been wrongly or rightly accused of misconduct. As described below, the monitor team is working with the NYPD to plan a BWC pilot program that will be a randomized control trial so that the NYPD and others will be able to evaluate the impact cameras have on the behavior of officers and civilians. The pilot is expected to involve approximately 1,000 cameras, with about fifty cameras in twenty precincts. The activities of officers wearing BWCs will be compared to those of officers with similar assignments in twenty control precincts.
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Milestones The court orders require the NYPD to conduct a one-year pilot BWC program. The purpose of the pilot is to assess whether the benefits of the cameras outweigh their financial, administrative and other costs, and whether the program should be expanded or terminated. The monitor will work with the parties to evaluate the pilot. The court ordered that the monitor establish procedures for reviewing stop recordings by supervisors and senior managers, preserving stop recordings, and measuring the effectiveness of BWCs in reducing unconstitutional stops and frisks. The court provided that BWCs must 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 in that borough during 2012. These NYPD commands were identified as the 23rd, 40th, 75th, 103rd , and 120th Precincts.
Status The NYPD is currently conducting its own small-scale BWC pilot program in the five commands identified in the remedial order and in one housing PSA (PSA 2) to test different BWC equipment, understand the IT infrastructure necessary to support BWCs, and gain insight on matters of policy and practical implementation. Nine officers in each command
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II. H. Body-worn Cameras
volunteered to wear BWCs and have now been trained and equipped (fiftyfour in all). In collaboration with the NYPD, the Marron Institute of Urban Management at New York University is conducting an evaluation of the NYPD small-scale pilot program. This effort is separate from the larger one-year pilot BWC program and monitor evaluation required by the court orders and the parties’ agreement.
With respect to the pilot program required by the court orders, the monitor team has begun to work with several units within the NYPD to plan the design and implementation of the court-mandated pilot program. We have met with representatives from the NYPD’s Risk Management Bureau, Information Technology Bureau, the Office of the Chief of Department, and the Office of Management Analysis and Planning.
The monitor team appreciates that there are many important issues that need to be discussed, such as training, policy, technology, outreach to other stakeholders, privacy concerns and possible legal issues such as those raised by the state’s Freedom of Information Law; and we have had very preliminary conversations on these subjects. However, most immediately, the monitor team has been focusing on a design for a rigorous evaluation of the court-mandated pilot program.
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The a priori selection of the five NYPD precincts for the BWC program is problematic for several reasons. First, some of the precincts with the highest counts of stop reports in 2012 were no longer the precincts with the highest number of reported stops in 2014. For example, in 2012 the 75th Precinct had the highest number of reported stops in the city; it was down to sixteenth in 2014. Second, the selection in advance prevents the use of a rigorous randomized experimental design, since it would be impossible to have a random selection of commands matching those that had cameras with those that did not. The advantage of a randomized experiment is the relatively high degree of certainty that any observed differences between the precincts with cameras and those without would be attributable to the cameras, not to chance or other causal factors. Third, requiring that every officer in a precinct wear a BWC creates significant IT and logistical challenges for the NYPD.
For all these reasons, the monitor will be recommending to the court that it modify its orders. We describe below the outlines of a randomized controlled trial (RCT), but emphasize that we are still in the process of designing the program and that further changes may be made after consultation with the NYPD, the plaintiffs and others.
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II. H. Body-worn Cameras 1. Design of a Randomized Controlled Trial
1. Design of a Randomized Controlled Trial Randomized experimental designs allow researchers to assume that the only systematic difference between the “control” group (here, those without cameras) and the “treatment group” (those with cameras) is the presence of the intervention (i.e., use of cameras). This design permits a clearer assessment of causes and effects.2 We plan to use a well-recognized variant of the classic randomized controlled trial called “cluster” randomization. In these trials, clusters (groups) of subjects, rather than individual subjects, are randomly allocated to treatment and control conditions.3 In the proposed cluster randomized controlled trial, NYPD officers will be randomly allocated by precinct to the BWC treatment group or non-BWC comparison group.
The cluster randomized experimental design will allow better control of “contamination” across individual subjects. As suggested by the study on BWCs done in Rialto, California, officers with BWCs could influence the
behavior of officers without BWCs if they simultaneously worked in the
2 William R. Shadish, Thomas D. Cook, and Donald T. Campbell. Experimental and quasi-experimental designs for generalized causal inference. Boston: Houghton Mifflin. 2002. 3 Frederick Mosteller and Robert F. Boruch, eds. Evidence matters: Randomized trials in education research. Washington, DC: Brookings Institution Press, 2002; David M. Murray. Design and analysis of group-randomized trials. New York: Oxford University Press. 1998.
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II. H. Body-worn Cameras 1. Design of a Randomized Controlled Trial
same area and interacted with the same people. 4 This contamination undermines the ability of analyses to detect the effects of using cameras because both treatment and control officers might be modifying their behaviors due to the presence of BWCs. Randomly allocating groups of officers who work in distinct precincts to treatment and control conditions limits this problem of contamination.
In the proposed trial, eligible NYPD precincts will be ranked according to the 2012-2014 mean yearly counts of complaints handled by the CCRB in New York City. We picked this measure because the number of CCRB complaints is highly correlated to the highest rates of reported stop activity and because the number of stops reported in each precinct in 2012 no longer reflects the stops now being reported. Using the number of CCRB complaints as the measure, the top forty eligible precincts will be matched into pairs based on those counts as well as other measures—specifically, the crime rate, arrests, calls for service, use of force, number of police officers in the precinct and neighborhood characteristics, such as racial composition and poverty level. Precincts in the twenty matched pairs will then be
4 Barak Ariel, William Farrar, and Alex Sutherland. 2014. The effect of police bodyworn cameras on use of force and citizens’ complaints against the police: A randomized controlled trial. Journal of Quantitative Criminology, http://link.springer.com/article/10.1007%2Fs10940-014-9236-3 (last visited May 30, 2015).
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II. H. Body-worn Cameras 1. Design of a Randomized Controlled Trial
randomly allocated to the BWC treatment group and non-BWC comparison
group.
We are also discussing which officers within the treatment precincts will be required to wear BWCs. Identifying a well-defined group of officers ensures an “apples to apples” comparison of officers in the treatment and control groups. One possibility is to select all officers assigned to a specific shift. For instance, BWCs could be provided to all patrol officers working the third platoon (4:00 p.m.–midnight shift) in the treatment group (there will be approximately fifty patrol officers in each platoon). The comparison group will consist of patrol officers working the third platoon in the nonBWC precincts. Thus, there will be approximately 1,000 patrol officers in the treatment group (twenty precincts and fifty officers per precinct) and 1,000 patrol officers in the control group. This is roughly the same number of cameras as would have been required under the terms of the court orders.5

5

For the more technically minded reader: since outcomes for individuals within

clusters may be correlated, standard sample sizes need to be inflated for cluster

randomized controlled trials. Using the “Optimal Design” software available from the

University of Michigan

(http://sitemaker.umich.edu/group-based/optimal_design_software), a total sample size of

2,000 (40 clusters of 50 subjects each) will provide statistical power at the .78 level to

detect a standardized effect size of .20 and statistical power at the .99 level to detect a

standardized effect size of .40, depending on assumptions about the intra-class

correlations in the outcome measure. Stephen W. Raudenbush, et al. (2011). Optimal

design software for multi-level and longitudinal research (Version 3.01) [Software].

Available from www.wtgrantfoundation.org.

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II. H. Body-worn Cameras 2. Exclusions
2. Exclusions Ten NYPD precincts will be excluded from the randomized experiment. The NYPD is currently piloting the BWC camera technology in five precincts—the 23rd, 40th, 75th, 103rd, and 120th Precincts. If one of these precincts were to be in a pair and randomly selected as the control, this would compromise the experiment because the use of BWCs in that precinct might already have affected behavior. The NYPD is also piloting a “neighborhood-based policing” program in the 33rd, 34th, 100th, and 101st Precincts. These precincts will be excluded because it would be difficult to distinguish the effects of the BWC technology on key outcome measures from the effects of the community engagement reforms implemented as part of the neighborhood-based policing program. Finally, the 22nd Precinct serving Central Park will be excluded because it has relatively low levels of NYPD activity and an almost non-existent residential population. All five boroughs have at least one precinct eligible for inclusion in the randomized field experiment (see Table 1 below)
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II. H. Body-worn Cameras 3. Ranking, Matching and Randomization

Table 1. Eligibility of NYPD precincts for inclusion in BWC experiment

Eligible

Not Eligible

Total

Manhattan

18

Bronx

11

Brooklyn

22

Queens

13

Staten Island

3

Total

67

4

22

1

12

1

23

3

16

1

4

10

77

3. Ranking, Matching and Randomization Sixty-seven precincts were ranked according to 2013–2014 CCRB

mean yearly counts. The top forty precincts are distributed throughout the

city in all five boroughs (see Table 2 below).

Table 2. Eligible NYPD precincts in Top 40 CCRB yearly mean counts by borough

Top 40

Not Top 40

Total

Manhattan

11

Bronx

8

Brooklyn

14

Queens

6

Staten Island

1

Total

40

7

18

3

11

8

22

7

13

2

3

27

67

The matching process should yield twenty similar pairs of NYPD

precincts that can then be randomized to treatment and control conditions. A

member of the monitor team will flip a coin to determine randomly which of

the precincts within the pair will receive the BWCs. The precincts not

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selected from each of the pairs will serve as controls. The monitor team will then assess the randomization process by determining whether balanced treatment and control groups were created. The monitor team will first compare treatment and control precincts on selected police, crime and neighborhood characteristics. Balanced clusters help to ensure that the treatment and control officers will be working in similar neighborhood, crime and policing contexts. The monitor team will then analyze data on treatment and control officers to determine whether the units of analysis (e.g., NYPD officers working the third platoon) systematically differ in the treatment and control groups. The officer comparison will include important information such as age, sex, race, rank and years on the job.
Assessment There are many issues to be addressed in the development of a pilot program for BWCs. The monitor will be consulting with the NYPD, the plaintiffs and others on these issues. The monitor team needs to devise an evaluation plan for the implementation of BWCs on NYPD officers working in PSAs. The characteristics of PSAs are too different from precincts for them to be included in the design described above. Also, there are too few PSAs to do a cluster randomized design. Therefore, we are currently considering a quasi-
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experimental research design comparing PSA 2 (treatment area) to the other PSAs (control areas).
In addition, the monitor team needs to develop outcome measures based on official data sources such as officer use of force incidents, officer injury and resisting arrest information, and CCRB complaints. We are also considering the practicalities and cost of using officer surveys, community surveys, surveys of enforcement action subjects (e.g., arrested individuals, stop and frisk subjects) and videos of police-citizen interactions.
The monitor team is working with the NYPD to develop a plan to implement the BWC technology that will consider the time and resources required to acquire the cameras, wire the precincts to transfer videos via secure internet connections, train officers and supervisors on policy and procedures, and undertake other important steps. The NYPD has published a Request for Proposal. The NYPD anticipates a requirements contract that would allow for the purchase and installation of up to 5,000 BWCs. The monitor has begun to identify, but not yet fully discuss or resolve, the legal and policy issues mentioned earlier.
Several important steps are needed before a BWC pilot can begin. These include moving forward on the NYPD procurement process, ensuring sufficient technology infrastructure in the pilot treatment precincts, and
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III. Measuring Compliance with Court Orders
developing protocols for camera use and data collection, review and evaluation. The NYPD anticipates that because it needs to decide which technology suits its purposes best and to have an infrastructure plan in place to meet the requirements of a pilot of this magnitude, it could be as long as twelve months before the pilot is started. Once the cameras are in place, there would be a one-year trial period. III. MEASURING COMPLIANCE WITH THE COURT ORDERS
The monitor will be working with the parties to establish baselines from which to measure progress, set milestones for accomplishing reform, and assess the Department’s compliance with the court-ordered and agreedupon remedial measures. We will be using both quantitative and qualitative measures. The monitor has asked both the NYPD and the plaintiffs for recommendations for measuring success. The hope is that these measures will also be useful for the Department and will support its needs to assess its own success and that of its officers.
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Appendix 1
APPENDIX 1
MONITOR TEAM
Peter L. Zimroth (monitor) is currently senior counsel at Arnold & Porter LLC and has been a lawyer for more than forty years. He has served as an assistant U.S. attorney for the Southern District of New York, the chief assistant District Attorney in Manhattan and New York City’s corporation counsel. The corporation counsel is the City’s chief lawyer and is in charge of, among other things, representing all the City’s agencies including the NYPD and its officers. At the time Mr. Zimroth served, there were about 500 lawyers in the Law Department, which the corporation counsel heads. Earlier in his career, Mr. Zimroth was a professor at NYU Law School, where he is currently an adjunct professor and director of its Center on Civil Justice.
Mr. Zimroth has served on many boards and committees, among which are the executive committee of the New York City Bar Association, the board of the Legal Aid Society and the boards of two schools for children with learning disabilities. He was appointed by the chief judge of New York State to serve as one of the three directors of the now defunct Capital Defender’s Office, which had the responsibility of ensuring legal representation for indigents charged with capital offenses.
Mr. Zimroth is a lifelong resident of New York City. He is a graduate of Abraham Lincoln High School, Columbia College and the Yale Law School. Upon graduation from Yale, he served as law clerk to Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit and to U.S. Supreme Court Justice Abe Fortas. He was the 2014 recipient of the Interfaith Center of New York’s James P. Morton Interfaith Award for his work in public service and private practice. Also in 2014, he received one of the New York Law Journal’s Lifetime Achievement Awards for Lawyers Who Lead by Example.
Richard Jerome (deputy monitor) is a lawyer who has spent most of his career working on criminal justice issues with law enforcement agencies and private foundations. Most recently, he was project manager of the public safety performance project of the Pew Charitable Trusts. This project helps states advance fiscally sound sentencing and corrections policies that protect public safety, hold offenders accountable and control corrections costs.
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Prior to joining Pew, Mr. Jerome served for six years (2002–2008) as Deputy Monitor and court-appointed Special Master for two police reform settlements in Cincinnati, Ohio. Other projects included reviews of the Denver Police Department’s and Portland, Oregon, Police Bureau’s officer-involved shootings (both with the Police Assessment Resource Center (PARC)); reviews of police oversight systems in Farmington, NM, Milwaukee, WI, and Albuquerque, NM (also with PARC); and assistance to the District of Columbia Council on police department responsibilities and standards for handling First Amendment demonstrations and other assemblies. Mr. Jerome also served as a consulting expert for the City of Oakland and the Detroit Police Departments.
From 1997 to 2001, he was Deputy Associate Attorney General in the U.S. Department of Justice, overseeing the work of the Civil Rights Division and the Community Relations Service, as well as coordinating the Justice Department’s efforts to promote police integrity, including its publication of “Principles for Promoting Police Integrity.” Mr. Jerome has been a senior trial lawyer in the Civil Rights Division and has worked on Capitol Hill and in private practice.
Anthony A. Braga is the Don M. Gottfredson Professor of Evidence-Based Criminology in the School of Criminal Justice at Rutgers University and a Senior Research Fellow in the Program in Criminal Justice Policy and Management at Harvard University. He is also a member of the University of Chicago Crime Lab. He is the immediate Past President and an elected Fellow of the Academy of Experimental Criminology. Dr. Braga’s research involves collaborating with criminal justice, social service and community-based organizations to address illegal access to firearms, reduce gang and group-involved violence, and control crime hot spots. Dr. Braga’s work on controlling and preventing violent crime has received many awards. He was a recipient of the U.S. Attorney General’s Award for Outstanding Contributions to Community Partnerships for Public Safety (2009), the U.S. Department of Justice Project Safe Neighborhoods’ Distinguished Service by a Research Partner Award (2010) and the International Association of Chiefs of Police Excellence in Law Enforcement Research Award (2011).
Dr. Braga has published numerous scholarly papers and his work has been published in top criminology and criminal justice journals such as Criminology, the Journal of Quantitative Criminology, Journal of Research in Crime and Delinquency, and Criminology & Public Policy. His work has also appeared in important medical and public health journals such as the New England Journal of Medicine, the Journal of the American Medical Association, and the American Journal of Public Health. With colleagues, he has authored and edited several
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books such as Policing Problem Places: Crime Hot Spots and Effective Prevention (Oxford University Press, 2010), Problem-Oriented Policing and Crime Prevention (Criminal Justice Press, 2008), Legitimacy and Criminal Justice: A Comparative Perspective (Russell Sage Foundation Press, 2007) and Police Innovation: Contrasting Perspectives (Cambridge University Press, 2006).
Edward Davis is a thirty-five year veteran police officer. He rose through the ranks of the Lowell Police Department holding positions in patrol, as detective supervisor and leader of a local, state and federal narcotics and organized crime task force. In 1994, Mr. Davis was promoted to Superintendent of the Lowell Police Department and led that agency for thirteen years. During his tenure, he introduced a community policing philosophy that led to a more than 60% reduction in serious crime. Lowell was recognized by Attorney General Janet Reno for its leadership in forming close relationships with the community that drive crime reduction.
In 2006, Mr. Davis was appointed by Mayor Thomas Menino to lead the Boston Police Department. Davis worked to bring the BPD closer to the community. He was a constant presence in Boston’s troubled neighborhoods. This community policing philosophy led to a reduction of serious crime in Boston of more than thirty percent. During the same period, there was also a reduction in arrests of thirty percent. Davis is an accomplished lecturer in police leadership. He completed a fellowship at Harvard’s Institute of Politics in 2014. After managing several high–profile cases, including the Boston Strangler, the Craigslist Killer and the tragic Boston Marathon bombing, Davis stepped down in 2013. He is the founder and president of Edward Davis, LLC, a security consulting firm located in Boston’s North End.
Jennifer Eberhardt is an Associate Professor in the Psychology Department of Stanford University. Her area of expertise is the ways that individuals racially code and categorize people, with a particular focus on associations between race and crime. She is currently working with the Oakland Police Department to design ways to improve policing and to help build and maintain the trust of the communities it serves. She is also working with that Department to study the implementation of its program of body-worn cameras.
Professor Eberhardt received a B.A. (1987) from the University of Cincinnati and an A.M. (1990) and Ph.D. (1993) from Harvard University. From 1995 to 1998, she taught at Yale University in the Departments of Psychology and African American Studies and was a research fellow at the Center for Race, Inequality, and
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Politics. She joined the Stanford University faculty in 1998. Professor Eberhardt was one of twenty-one people who received a fellowship from the John D. and Catherine T. MacArthur Foundation in 2014 (a MacArthur “genius grant”).
John MacDonald is Professor of Criminology and Sociology and Chair of the Department of Criminology at the University of Pennsylvania. Professor MacDonald focuses primarily on the study of crime, race and ethnic disparities in criminal justice, and the effect of public policy responses on crime. In 2012, Dr. MacDonald won the Association of Public Policy and Management’s David N. Kershaw Award, established to honor individuals younger than forty who have made significant contributions to the field of public policy analysis and management. He has served as a principal investigator and co-principal investigator on health, injury prevention, and crime research projects through funding provided by the American Statistical Association, the National Institute of Justice, the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation and the National Institutes of Health. He was awarded the Young Experimental Scholar Award by the Academy of Experimental Criminology for significant contributions to experimental research.
Dr. MacDonald’s research publications include numerous studies using rigorous quantitative methods to examine the effects of social policies on crime and of institutional social justice reforms on criminal justice practices. His recent work on racial disparities in criminal justice has appeared in the American Journal of Public Health and the Journal of Legal Studies.
James McCabe is an Associate Professor, Department Chair and Director of the Graduate Program in Criminal Justice at Sacred Heart University in Fairfield, CT. He joined the faculty at Sacred Heart after completing twenty-one years with the New York City Police Department. In the NYPD, he held numerous–command level assignments, including Commanding Officer of Labor Relations, Commanding Officer of the Training Bureau, Commanding Officer of the Police Academy and the Commanding Officer of the 110th Precinct in Elmhurst/Corona, Queens. He was also assigned as the Executive Officer of the Police Commissioner’s Office and the 113th Precinct in South Jamaica. He retired in 2006 from the NYPD with the rank of Inspector to assume a new career in academia at Sacred Heart.
Dr. McCabe has a B.A. in Psychology from Queens College, an M.A. in Labor Studies from Empire State College, an M.A. in Criminal Justice from John Jay
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Appendix 1
College, and a Ph.D. in Criminal Justice from the CUNY Graduate Center. He is a graduate of the 189th Session of the FBI National Academy, and of the Executive Programs at Columbia University’s Police Management Institute and the JFK School of Government at Harvard University. He has published numerous scholarly articles and book chapters on the subject of police effectiveness and has been the principal investigator in more than forty studies examining police operations in twenty-six states and in every region of the country. He has lectured around the country to both police and academic audiences about organizational behavior, leadership, supervisory communications, and the impact of police operations on public safety and neighborhood satisfaction with police services.
Jane Perlov has an extensive background in risk management and a distinguished career in law enforcement, public safety and corporate security. She served more than twenty-five years in law enforcement, starting in 1981 as a police officer in the New York City Police Department. She rose through the ranks, ultimately commanding the 20th and 30th Precincts in Manhattan and serving as Chief of Detectives for the Borough of Queens. In late 1998, while in that position she was invited by Governor Cellucci of the Commonwealth of Massachusetts to join his Cabinet as Secretary of Public Safety. There, she managed policy and fiscal oversight for twenty-one agencies, boards and commissions, such as the State Police and the Corrections Department.
In 2001, Ms. Perlov was sworn in as Chief of Police for the capital city of Raleigh, North Carolina. Under her leadership, the Department initiated a decentralized district policing model that fostered strong bonds between police officers and the neighborhoods they served, and placed both opportunity and accountability in the hands of district commanders.
From 2009 to 2011, Ms. Perlov served as Global Corporate Security Director of Bank of America. She was responsible for developing and implementing strategies and programs that provided a safe and secure environment for employees, customers and assets worldwide. Born and raised in New York City, Ms. Perlov is now an independent consultant and resides in Asheville, North Carolina.
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Appendix 2
APPENDIX 2
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Appendix 2
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Appendix 2
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Appendix 2
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 Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 1 of 94
Peter L. Zimroth Peter.Zimroth@aporter.com +1 212.715.1010 +1 212.715.1399 Fax 399 Park Avenue New York, NY 10022-4690
February 16, 2016
VIA ECF
Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Submission of Second Report of the Independent Monitor
Dear Judge Torres, I am pleased to submit my second report under the court orders and the parties’
agreements in the cases of Floyd v. City of New York, Ligon v. City of New York, and Davis v. City of New York. These cases challenged the NYPD’s stop and frisk policies and practices (Floyd), and its policies and practices concerning criminal trespass enforcement in and around private buildings enrolled in the Trespass Affidavit Program (Ligon) and in New York City Housing Authority buildings (Davis). This report focuses on significant steps since my first report in July 2015 and the challenges that lie ahead.
Let me highlight several findings and observations. To start, the Department disseminated a new Patrol Guide procedure governing stops and frisks and a new

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 2 of 94
Honorable Analisa Torres February 16, 2016 Page 2 procedure prohibiting racial profiling and bias-based policing. The Department also developed and put in use new training materials for recruit classes and conducted training for Field Training Officers, who work with probationary officers just out of the Police Academy as they move to their assignments in the field. Other steps include the development of reference materials on stop and frisk issues, their placement on the Department’s intranet site and dissemination to all officers. A pilot program was conducted in seven commands using a draft stop report form that will be the basis of a new stop form for use throughout the Department, after court approval. Some auditing practices were changed, and an audit work plan for 2016 is in the works. During this period, too, the Department’s dealings with the monitorship were put under the control of the Department’s second highest official, First Deputy Commissioner Benjamin B. Tucker.
The progress the report details owes much to the hard work of NYPD officials and valuable input from the plaintiffs. All parties worked diligently, collaboratively and in good faith.
The work during this time also brought into sharp focus major challenges ahead. Chief among these is ensuring that written changes in policies are carried out in practice—in the Police Academy, in the precincts and other commands, by supervisors and, ultimately, in encounters between officers and civilians.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 3 of 94
Honorable Analisa Torres February 16, 2016 Page 3
As you know, the last four years have seen a dramatic decrease in the number of reported stops. The 685,724 stop reports filed in 2011 compare with 45,787 filed in 2014 and approximately 24,000 in 2015. However, as my first report stressed, the focus should not be on the number of stops per se, but rather on the lawfulness of the stops and whether the encounters are conducted in accordance with the Department’s principles of “courtesy, professionalism and respect.” The NYPD’s stop and frisk practices and the related practices regarding trespass enforcement that led to this monitorship exacerbated tensions between the NYPD and some communities the Department serves, particularly minority and immigrant communities.
Getting stop and frisk and related trespass enforcement practices right is important, but that does not mean eliminating the practices. The court did not rule that they are prohibited. When conducted lawfully and professionally, they are valuable and legitimate law enforcement tools. Getting it right means this: that police officers understand their lawful authority and limit their activities to what is permitted by law; that officers do not avoid enforcement activities when appropriate; that they treat the people with whom they interact professionally, with dignity and respect and in ways best designed to protect the safety of civilians and officers; and, finally, that officers document their activities as required by law and Department policy.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 4 of 94
Honorable Analisa Torres February 16, 2016 Page 4
Those elements, broadly speaking, reflect the goals of the court orders and the parties’ agreements, which, notably, overlap with the goals for the Department described by Commissioner Bratton.
Of course, transformation of any large government organization is a difficult undertaking. It is apparent from focus group sessions and discussions with individual officers throughout the ranks that many police officers, including supervisors, are not well informed as yet about the changes underway or the reasons for them and, therefore, have yet to internalize them. Many appear not to understand what is expected of them. If, as the Commissioner has stated, the court-ordered changes and agreements among the parties will improve the Department, and advance the safety of both communities and officers, that message needs to be communicated and reinforced better, not just at the top, but throughout the Department.
Ultimately, this is a challenge of leadership, particularly for those who supervise officers engaged day-to-day in enforcement activities—sergeants, their immediate supervisors, and the precinct and unit commanders who set the tone for those under them. The challenge here implicates every aspect of the court orders and the parties’ agreements, and it will not be met without changes in policies, training, supervision, and all the ways the NYPD incentivizes good police behavior and discourages unacceptable behavior. This is a large task that will take time and substantial effort to accomplish.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 5 of 94
Honorable Analisa Torres February 16, 2016 Page 5
Before closing, I want to underscore a few particular developments and concerns covered in the report.
Training. In my discussions with NYPD executives, they have emphasized that they view training improvements as a high priority. With respect to the subjects covered by the court orders and the parties’ agreements, the Department has revised some of its training for recruits and Field Training Officers. However, as the Department recognizes, there needs to be training or retraining of all the members of the service, a much more far-reaching undertaking. The Department is currently drafting new in-service training materials.
Supervision. If the changes required by the court orders and the parties’ agreements are to be implemented and take hold, the supervisors who have most to do with the officers on the street must play an increased leadership role. This includes especially sergeants, who are closest to the officers, and precinct and unit commanders, who set the tone. These supervisors must ensure that their subordinates are implementing the changes required by the court orders and the parties’ agreements—that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are correctly documented. Supervisors must take a more active role in oversight, teaching and, when appropriate, discipline. The new Department Patrol Guide procedure governing stops and frisks requires, for example, that supervisors, if they are not at the scene, speak to the officer who made the stop to determine whether there was

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 6 of 94
Honorable Analisa Torres February 16, 2016 Page 6 sufficient basis for it, as well as for the frisk or search, if either occurred. The supervisor must direct that the officer make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer him or her for additional training or other remedial action, including disciplinary action if warranted.
A note regarding discipline: although most officers understand that discipline is appropriate for deliberate violations of law or policy, they often express fear they will face serious disciplinary action or not be indemnified in lawsuits over minor or inadvertent mistakes in documentation or for isolated cases of erroneous but good-faith stops or frisks. Actually, the new Patrol Guide Section 212-11 announces a contrary policy for the Police Department, and, as far as can be determined, officers have not been denied indemnification for minor infractions or reasonable, honest mistakes. Sergeants and other supervisors need to take an active role in trying to correct these misperceptions, especially as they may affect decisions by some officers to make or refrain from making appropriate stops.
Body-worn cameras. According to the Department, procurement of body-worn cameras for the pilot program ordered by the court will not be completed until late summer 2016, at the earliest. In the meantime, there is much to do, including the promulgation of policies related to the use of the cameras and production of training materials.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 7 of 94
Honorable Analisa Torres February 16, 2016 Page 7
Since my first report, there have been two major developments. First, the court approved, with the consent of the parties, a change in the pilot program’s design to allow a controlled experiment, matching officers who will wear cameras with those who will not. Second, the Department has changed how it will develop body-worn camera policies. According to the Department’s new plans, as described to me in a November 24, 2015 letter (see Appendix 2 to the report), there will be significant outreach to internal and external stakeholders seeking views on alternative policy proposals. This month, the Department is to begin reaching out to officers of every rank, unions, community members and organizations, criminal justice stakeholders, including the courts, district attorneys and defender organizations, victims’ advocacy groups, privacy groups, the City Council, external oversight agencies and other interested parties. This is a very positive development. The use of body-worn cameras raises some difficult policy issues and choices, and inevitably not everyone will agree. But interested parties should have a voice and a way to make their views known.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 8 of 94

Honorable Analisa Torres February 16, 2016 Page 8
Further details on these and other subjects are contained in the report.
Thank you for the court’s time and attention.

Enclosures

Respectfully submitted,
/s/ Peter L. Zimroth
Peter L. Zimroth Monitor

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 9 of 94
Second Report of the Independent Monitor Peter L. Zimroth
February 16, 2016
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 10 of 94
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Edward Davis
Jennifer Eberhardt John MacDonald James McCabe
Jane Perlov

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 11 of 94
TABLE OF CONTENTS Page
I. Introduction............................................................................................................. 1 II. The Monitor’s Work ............................................................................................... 5 III. NYPD Policies ........................................................................................................ 7
A. SQF Policies................................................................................................ 7 1. Milestones ....................................................................................... 7 2. Status and Assessment .................................................................... 8
B. Racial Profiling Policies ........................................................................... 11 1. Milestones ..................................................................................... 11 2. Status and assessment ................................................................... 11
C. Policies Related to the Trespass Affidavit Program (TAP) ...................... 12 1. Milestones ..................................................................................... 12 2. Status and Assessment .................................................................. 13
D. New York City Housing Authority (NYCHA) Policies ........................... 14 1. Milestones ..................................................................................... 14 2. Status and Assessment .................................................................. 14
E. Stop Report Form...................................................................................... 15 1. Milestones ..................................................................................... 15 2. Status and Assessment .................................................................. 16
IV. Training................................................................................................................. 20 A. Monitors’ Observations of Police Academy Training .............................. 20 1. Teaching Quality........................................................................... 21 2. Curriculum Development.............................................................. 22 3. Course and Teacher Evaluation .................................................... 23
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4. Subject Integration ........................................................................ 24 B. Recruit Training ........................................................................................ 24
1. Stop, Question and Frisk............................................................... 24 a. Milestones ......................................................................... 24 b. Status and Assessment ...................................................... 24
2. Racial Profiling ............................................................................. 25 a. Milestones ......................................................................... 25 b. Status and Assessment ...................................................... 25
3. TAP Training ................................................................................ 26 a. Milestones ......................................................................... 26 b. Status and Assessment ...................................................... 27
4. Davis/NYCHA Training ............................................................... 27 a. Milestones ......................................................................... 27 b. Status and Assessment ...................................................... 28
C. In-Service Training ................................................................................... 28 1. Roll Call Training ......................................................................... 28 a. Milestones ......................................................................... 28 b. Status and Assessment ...................................................... 28 2. SQF Reference Materials.............................................................. 30 3. SQF In-Service Training at the Academy..................................... 31 a. Milestones ......................................................................... 31 b. Status and Assessment ...................................................... 31 4. Davis/NYCHA In-Service Training ............................................. 32 a. Milestones ......................................................................... 32 b. Status and Assessment ...................................................... 32
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5. Implicit Bias and Procedural Justice............................................. 32 a. Milestones ......................................................................... 32 b. Status and Assessment ...................................................... 32
D. Training on Supervision............................................................................ 34 1. Milestones ..................................................................................... 34 2. Status and Assessment .................................................................. 34
V. Supervision ........................................................................................................... 36 A. Milestones ................................................................................................. 37 B. Status and Assessment .............................................................................. 38
VI. Body-Worn Cameras ............................................................................................ 39 A. Milestones ................................................................................................. 40 B. Status and Assessment .............................................................................. 41
VII. Auditing ................................................................................................................ 45 A. Quality Assurance Division ...................................................................... 45 1. Milestones ..................................................................................... 45 2. Status and Assessment .................................................................. 45 a. Current Audits for Stop Reports and Activity Logs ......... 46 b. Audit of Revised Stop Reports Used in a Pilot Program .. 47 c. RAND Audits.................................................................... 48 d. Audits of Enforcement Activities Initiated by Officers .... 50 e. Audits of Self-Inspections by Integrity Control Officers . 51 B. Bronx TAP ................................................................................................ 53 1. Milestones ..................................................................................... 53 2. Status and Assessment .................................................................. 53 C. Early Identification System (EIS)............................................................. 55
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 14 of 94 1. Milestones ..................................................................................... 55 2. Status and Assessment .................................................................. 55
VIII. Complaints and Discipline.................................................................................... 57 A. Racial Profiling Allegations...................................................................... 57 1. Milestones ..................................................................................... 57 2. Status and Assessment .................................................................. 57 B. Handling of Complaints Substantiated by the CCRB............................... 61 1. Milestones ..................................................................................... 61 2. Status and Assessment .................................................................. 62
IX. Performance Goals, Objectives and Evaluation.................................................... 67 A. Milestones ................................................................................................. 69 B. Status and Assessment .............................................................................. 69
X. Joint Remedial Process ......................................................................................... 70 XI. Compliance Metrics .............................................................................................. 72
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 15 of 94
Monitor’s Second Report
I. Introduction This is the second report of the Independent Monitor overseeing implementation
of the court orders and the parties’ agreements in the cases Floyd v. City of New York, Ligon v. City of New York and Davis v. City of New York. Those orders and agreements call for reforms of the NYPD’s practices related to stop and frisk, trespass enforcement (i.e., stops and arrests for trespass) and bias-free policing in those areas—specifically, changes in policy, training, supervision, handling of complaints and discipline, auditing and performance measurement as well as a pilot program testing the use of body-worn cameras (BWCs). The report covers the period from July 1, 2015, through the date of this report.
In the period leading up to the monitor’s first report in July 2015, the NYPD was just beginning work on revising its policies relating to stop and frisk and trespass enforcement. The Department had started the process of changing its Patrol Guide to conform its policies to the requirements contained in the court orders. A significant focus of the first half of 2015 was on the development of training for a recruit class that started in January 2015.
This report discusses progress in several key areas since then and the challenges that lie ahead. Chief among the challenges is ensuring that written changes in policies and training material are carried out in practice—in the Police Academy, in the precincts and other commands, by supervisors, and, ultimately, in encounters between officers and civilians.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 16 of 94
I. Introduction Significant Steps Since the Last Monitor’s Report
As of the end of 2015, the NYPD has, among other things:  Published and disseminated a new Patrol Guide procedure governing stops
and frisks;  Published and disseminated a new Patrol Guide procedure prohibiting racial
profiling and other bias-based policing;  Developed training materials for recruits at the Police Academy and presented
those materials to three recruit classes (those beginning in January, July and October 2015);  Conducted training for Field Training Officers (FTOs), who work with probationary officers just out of the Police Academy as they move to their assignments in the field;  Developed reference materials on stop and frisk issues, put them up on the NYPD intranet site and disseminated them to all members of the service;  Conducted a pilot program in which officers in seven commands (five precincts, a Transit District and a housing Police Service Area (PSA)) used a revised stop report form that will be the basis of a new stop report form for use throughout the Department, after court approval;  Changed some of its auditing practices and begun developing an audit work plan for 2016; and  Reorganized the way in which the Department deals with the monitorship by placing the Risk Management Bureau (RMB) under the control of the First Deputy Commissioner, Benjamin B. Tucker.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 17 of 94
I. Introduction Significant Challenges
The last four years have seen a dramatic decrease in the number of reported stops. The 685,724 stop reports filed in 2011 compares with 45,787 reported in 2014 and approximately 24,000 in 2015. However, as the monitor’s first report stressed, the focus should not be on the number of stops per se, but rather on the lawfulness of the stops and whether the encounters are conducted in accordance with the Department’s principles of “courtesy, professionalism and respect.” The NYPD’s stop and frisk practices and the related practices regarding trespass enforcement that led to this monitorship exacerbated tensions between the NYPD and some communities the Department serves, particularly minority and immigrant communities.
Getting stop and frisk and related trespass enforcement practices right is important, but it does not mean eliminating the practices. The court did not rule that they are prohibited. When conducted lawfully and professionally, they are valuable and legitimate law enforcement tools. Getting it right means at least this: that police officers understand their lawful authority and limit their activities to what is permitted by law; that officers do not avoid enforcement activities when appropriate; that they treat the people with whom they interact professionally, with dignity and respect and in ways best designed to protect the safety of civilians and officers; and, finally, that officers document their activities as required by law and NYPD policy.
Those elements, broadly speaking, reflect the goals of the court orders and the parties’ agreements, which overlap with the goals for the NYPD. Commissioner William J. Bratton has stated repeatedly that officers should be concerned with the quality of their enforcement activities—including stop and frisk and trespass enforcement—rather than
3

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 18 of 94 I. Introduction
quantity. The monitor’s team has heard similar statements by those leading Compstat sessions, a key part of NYPD’s crime management system (described more fully on pages 67-68 below).
Of course, transformation of any large government organization is a difficult undertaking. It is apparent from focus group sessions and discussions with individual officers throughout the ranks that many police officers, including supervisors, are not well-informed as yet of the changes underway or the reasons for them and therefore have yet to internalize them. Many appear not to understand what is expected of them. If, as Commissioner Bratton has stated, the changes required by the court orders and the parties’ agreements will improve the NYPD and advance the safety of both communities and police officers, that message needs to be communicated and reinforced better, not just at the top, but throughout the Department.
Ultimately, this is a challenge of leadership, particularly for those who supervise officers engaged in day-to-day enforcement activities—sergeants, their immediate supervisors, and the precinct and unit commanders who set the tone for those under them. This challenge implicates every aspect of the court orders and the parties’ agreements, and it will not be met without changes in policies, training, supervision, and all the ways the NYPD incentivizes good police behavior and discourages unacceptable behavior. This is a large task that will take time and substantial effort to accomplish.
4

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 19 of 94
II. The Monitor’s Work Report Format
Like the monitor’s previous report, this update sets out what is required by the court orders and the parties’ agreements in the relevant cases (milestones), the status of the NYPD’s remedial efforts, and the monitor’s assessment of compliance to date. II. The Monitor’s Work
During the six months from July to December 2015, the monitor and his team continued to meet with members of the NYPD and its units, such as the Police Academy, Quality Assurance Division (QAD), Risk Management Bureau, Information Technology Bureau and others. The team observed Compstat meetings, conducted focus groups and had conversations with officers and supervisors, made site visits to precincts and borough commands, and observed training at the Police Academy and disciplinary trials in the NYPD trial room. A member of the monitor team toured each precinct in the city in preparation for a controlled pilot study of body-worn cameras, described in Section VI below. The team reviewed voluminous NYPD documents, including audits, stop report forms, complaint investigation files and NYPD data. The monitor and his team have also met with plaintiffs’ counsel, community organizations, the Civilian Complaint Review Board (CCRB) and other entities.
Significant time has been spent working with both the plaintiffs and the NYPD in developing training materials and policy. Whenever possible, the monitor has sought to find common ground, with the goal that the parties agree on a final document for approval. Both the NYPD and the plaintiffs have been working with the monitor diligently, collaboratively and in good faith to develop the reforms to be implemented. In the process, cooperation and trust has increased among those involved—an important
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 20 of 94 II. The Monitor’s Work
development for accomplishing revisions of police practices and enhancing policecommunity relations.
In addition, the monitor has worked with the parties and the court on developing a process to determine which documents should be submitted to the court for approval and which can be approved by the monitor without further court action. Many documents, certain training materials for example, are being updated and changed as the Department, the parties and the monitor learn from seeing these materials in use. In general, once the court approves materials or written policies, further changes or additions to those materials or policies are approved by the monitor and not submitted to the court when the new material does not make significant substantive alterations to language the court has already cleared. Any party that disagrees with the monitor’s determination not to submit a document to the court may seek court redress.
There is now a website for following the monitoring efforts (www.nypdmonitor.org). The site went live on October 31, 2015. Visitors to the website can access the following: monitor reports, court opinions and orders, revised NYPD policies, training materials, information on the body-worn camera pilot, information on the Joint Remedial Process, links and resources related to the monitoring effort, and an opportunity for the public to provide feedback to the monitor. A translation application available on the website allows users to access some material in languages other than English. Appendix 1 provides a list of documents currently on the website with links to those documents.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 21 of 94 III. NYPD Policies A. Stop and Frisk Policies
III. NYPD Policies A. Stop and Frisk Policies 1. Milestones The NYPD’s policies and procedures governing stops and frisks are set out in the
Department’s Patrol Guide. This is one way that the Department communicates guidance and instruction about what officers can and cannot do under the law and what their supervisors expect of them. In its opinion, the court found that the Patrol Guide did not adequately describe the legal standards governing stops or the degree of knowledge an officer must have to make a stop lawful. The Patrol Guide procedures also did not state the legal requirements for a frisk or search, which are separate from the requirement for a stop. The court did not require changes in these legal standards, only that they be stated correctly and clearly.
Under the court orders, as agreed to by the City and the Department, the Patrol Guide must:
1. State what constitutes a stop, when a stop may be conducted, when a frisk may be conducted and when a search may be conducted;
2. Require officers to document stops and frisks and the reasonable suspicion for each, both on a stop report form and in officers’ activity logs; and
3. Have procedures for supervisory review of stops, including an assessment of the constitutionality of the stop and not just that a stop report form (previously called a UF-250) was completed.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 22 of 94 III. NYPD Policies A. Stop and Frisk Policies
2. Status and Assessment The monitor submitted to the court the NYPD’s new procedures on stop and frisk, Patrol Guide (P.G.) 212-11, Investigative Encounters: Requests for Information, Common Law Inquiry and Level 3 Stops, which the court approved on August 24, 2015. The NYPD issued an Interim Order on September 16, 2015, and disseminated the procedures to all members of the service. The effective date of the procedures was September 21, 2015. The revised Patrol Guide meets the requirements of the court orders and the parties’ agreement. It states when an officer may make a Terry stop and includes a definition of reasonable suspicion. It states that reasonable suspicion for a stop does not give an officer the authority to make a frisk; an officer must have reasonable suspicion that the person stopped is armed and dangerous to frisk that person. Prior to issuance of the new P.G. 212-11, there were no procedures in the Patrol Guide that addressed encounters between officers and civilians that were less intrusive than a stop or an arrest. All such encounters are governed by the New York State Court of Appeals decision in People v. DeBour, which sets out four levels of encounters, establishing the standards for each.1 For a simple Request for Information (Level 1), the officer must have an “objective, credible reason” to make the approach and request; for a Common Law Right of Inquiry (Level 2), where an officer can ask accusatory questions, the officer must have a “founded suspicion” of some criminality; to stop and detain a person to investigate (Level 3), an officer must have “reasonable suspicion” that the individual committed, is committing or is about to commit a felony or Penal Law
1 40 N.Y.2d 210 (1976).
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 23 of 94 III. NYPD Policies A. Stop and Frisk Policies
misdemeanor; for an arrest (Level 4), an officer must have probable cause. P.G. 212-11 provides guidance to officers about the distinction between voluntary investigative contacts (Level 1 and Level 2 encounters) and forcible stops (Level 3 Terry stops), which must be based on reasonable suspicion. The procedures define “objective, credible reason,” “founded suspicion” and “reasonable suspicion.”
The approved procedures in the new Patrol Guide section require documentation of all stops and make more explicit the responsibilities of supervising officers up the chain of command. An officer’s immediate supervisor should respond to the scene when feasible. The supervisor is also required to discuss the circumstances of the stop with the officer who made the stop, and then review the stop and any frisk and search, if conducted, and determine whether the officer’s actions were appropriate.
If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. Supervisors also have the responsibility of identifying officers who need instruction, additional training or other remedial action, including, if appropriate, discipline. However, the procedures are clear that the goal is to make improvements to ensure compliance. Isolated cases of good-faith mistakes made by officers trying to do their jobs will be dealt with by training at the command level and not by discipline. As stated in the procedures:
In most instances, instruction and training should be accomplished at the command level. The application of the law in this area can be complicated, and investigative encounters are fluid situations in which one event or observation can alter the level of suspicion or danger. A single erroneous judgment will not generally warrant referral to the Legal Bureau for training. However, members who evince a lack of comprehension of the core concepts of the law governing this procedure should be referred to the Legal Bureau.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 24 of 94 III. NYPD Policies A. Stop and Frisk Policies
Of course, officers should be disciplined when they engage in deliberate or repeated violations of the Patrol Guide. But the above statement in the Patrol Guide is important because it addresses a commonly expressed fear of officers—that they will be harshly penalized for minor mistakes of documentation, or in isolated cases of good-faith mistakes by officers trying to do their jobs. Many officers do not appear to be aware of this provision in the new Patrol Guide.
Another important change to this Patrol Guide section relates to providing the person stopped with an explanation for the stop. In its remedial order, the court said that the NYPD should consider providing a form or card to people stopped that would provide them with the badge numbers of the officers and some information about why they were stopped, and about agencies that handle complaints from civilians. The new Patrol Guide section states that, absent exigent circumstances, officers should provide people stopped but not arrested with an explanation of the reasons for the stop and an information card. In connection with this requirement, the Department created a new “tear-off receipt” and instituted a pilot program in seven commands to test this form. Because this was a pilot program, the court was not asked to approve the contents of the tear-off receipt. The pilot program began in July 2015. When the new P.G. 212-11 went into effect in September, the NYPD began using the pilot tear-off receipt citywide. This receipt contains the following information: the officer’s name, command and badge number, a link to the NYPD website, the CCRB and Internal Affairs Bureau (IAB) phone numbers, and
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 25 of 94 III. NYPD Policies B. Racial Profiling Policies
checkboxes for the factors contributing to the officer’s suspicion that led to the stop. The Department is analyzing lessons learned from the pilot program and exploring alternative ways to provide information to people stopped but not arrested.
Approval of P.G. 212-11 was an important step. However, as noted in the Introduction, ensuring that the Patrol Guide is followed in practice will require effective changes in training, supervision, auditing and incentives.
B. Racial Profiling Policies 1. Milestones
The court orders and the parties’ agreements require the NYPD to revise its Patrol Guide prohibition on racial profiling. The new procedures must state that race, ethnicity or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description, and that racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data.
2. Status and assessment The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was submitted to the court and approved on August 24, 2015. The policy was then published and distributed by the NYPD. The new procedure states that police action, including stops, frisks, arrests or other law enforcement actions, may not be motivated, even in part, by the actual or perceived color, ethnicity or national origin of an individual. Race may be used only if it is part of a reliable and specific suspect
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description that includes not just race, gender and age, but other identifying characteristics or information.
The procedures also include a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
Training on the new policy is in its early stages. Assessment of the policy’s implementation must wait until training is further along. Moreover, determining whether the NYPD is in compliance with the new policy and the related requirements of the Fourteenth Amendment is complicated and may involve several yardsticks, including both qualitative and statistical measures. The monitor has asked the parties to suggest compliance measures (see Section XI below). The plaintiffs have provided some preliminary suggestions, the NYPD has responded and the monitor will be discussing these issues with the parties.
C. Policies Related to the Trespass Affidavit Program (TAP) 1. Milestones
In Ligon v. City of New York, the court issued a preliminary injunction against certain NYPD practices related to stops outside buildings enrolled in the Trespass Affidavit Program (TAP) in the Bronx and ordered specific changes to P.G. 212-59 governing interior patrols in TAP buildings applicable to stops in the Bronx.2 The new policy must state: (1) the circumstances in which it is permissible to stop a person
2 Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013) (preliminary injunction); Floyd v. City of New York, 959 F. Supp. 2d 668, 689 (S.D.N.Y. 2013) (remedies decision).
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outside a TAP building on suspicion of trespass; (2) that stops inside and outside TAP buildings must comply with the new stop and frisk policies; and (3) that “mere presence” in a TAP building, and entry into or exit from a TAP building, do not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information.
2. Status and Assessment The NYPD prepared a revised draft P.G. 212-59 for review by the plaintiffs and the monitor. The Ligon plaintiffs have made suggested edits, and subsequent draft versions of the policy have been exchanged. The parties have not yet reached an agreement on a final version of P.G. 212-59. The Ligon plaintiffs and the City and NYPD continue to negotiate a settlement on issues that were not addressed in the Ligon preliminary injunction and related order. This settlement, if reached, will likely include additional modifications to P.G. 212-59. For this reason, the monitor has not made any final recommendations to the court for approval of a new P.G. 212-59. Should negotiations be completed, a new P.G. 212-59 for interior patrols of TAP buildings will be finalized, adopted and implemented. If a settlement is not reached, the monitor will work with the parties to revise P.G. 212-59 so it meets the requirements of the preliminary injunction and related remedial order.
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D. New York City Housing Authority (NYCHA) Policies 1. Milestones
On April 28, 2015, the court in Davis v. City of New York gave final approval to the settlement between the City and the plaintiffs. The settlement requires revisions to P.G. 212-60, which concerns interior patrols of NYCHA buildings. The settlement also requires changes to related NYPD training materials and the use of a revised Trespass Crimes Fact Sheet, an NYPD form used by officers to describe the circumstances leading to or supporting an arrest for trespass. The court-approved policy states that officers must have an objective, credible reason to approach a person in or around a NYCHA building, and that simply entering, being in, or exiting a NYCHA building is not an objective credible reason for an approach.
2. Status and Assessment The language of P.G. 212-60 was agreed to as part of the Davis settlement and has already been approved by the court in Davis, so further revision or submission for approval is unnecessary. With the consent of the other parties, the NYPD postponed publication of P.G. 212-60 owing to three factors, only the third of which remains relevant. First, the parties thought it appropriate to defer publication until the policy for stops and frisks (P.G. 212-11) was approved and disseminated. This has now been done. Second, it was agreed that the procedures for NYCHA interior patrols should align whenever possible with the procedures for patrol of TAP buildings. There have been ongoing negotiations between the parties in Ligon over P.G. 212-59 (TAP). However,
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the parties have now agreed that any revisions to P.G. 212-59 will not hold up the publication of P.G. 212-60.
Third, there is ongoing discussion among the parties about the creation of a new Trespass Crimes Fact Sheet that would cover criminal trespass arrests in both NYCHA and TAP buildings. In that fact sheet, officers document and provide information about trespass arrests. The plaintiffs and the Department agree that it does not make sense to have one form for trespass arrests in NYCHA buildings and a different form for trespass arrests in TAP buildings. The Department and the Ligon and Davis plaintiffs have shared drafts of a Trespass Crimes Fact Sheet that could be used in either type of building. The Department has shared drafts with the city’s five district attorneys and heard their concerns. Once the Department has reviewed these concerns, it will propose a draft Trespass Crimes Fact Sheet for consideration by the Ligon and Davis plaintiffs and the monitor.
E. Stop Report Form 1. Milestones
The court orders and the parties’ agreements require that the NYPD develop and implement a new stop report form to be used by officers every time a person is stopped. The new form must document an officer’s stop and be used by supervisors to evaluate whether the stop, and the frisk and search, if conducted, was done properly and in accordance with law. A stop report form is also a teaching tool that can be used both for training and as part of operations to reinforce for officers the applicable standards for stop and frisk.
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The new form must have a narrative section for describing the reasons for the stop as well as a separate narrative section for describing the reasons for the frisk and the search, if conducted. The court found that without narrative sections, the current version of the stop form, which has only checkboxes for the factors leading to the stop, did not provide sufficient information to determine whether a stop was based on reasonable suspicion. The court required simplified and improved checkbox categories and a place on the form for the officer to record, in his or her own words, the basis for the stop and, separately, for the frisk and search, if conducted. Documenting an officer’s actions when making a stop provides details so that an officer can refresh his or her memory if called to testify about the incident; and it enables the officer’s direct supervisor and others in the NYPD to review the stop and assess whether the officer had sufficient justification for his or her actions.
2. Status and Assessment A new stop report form designed by the NYPD has been in use in a pilot program since July 2015. That pilot form includes a narrative section for the officer to describe the basis for a stop and a separate narrative section to describe the basis for a frisk and search, if conducted. It eliminates “furtive movement,” “high crime area” and “suspicious bulge” as checkbox categories. The pilot form also has a new section that requires the officer’s supervisor to confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check a box indicating whether or not: (1) the basis of the stop was reviewed with the officer; (2) the report was accurate and complete; (3) the supervisor was present on the scene; (4) the corresponding activity log entry was reviewed; (5) there was a sufficient basis for the
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stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken, if appropriate.
The pilot program ran in five precincts, a Transit District and a housing PSA for 90 days, from July 1, 2015 through September 30, 2015. There were two versions of the stop report form used for the pilot. A smaller version of the form was designed to fit into an officer’s memo book without being folded. Instructions for completing the form were printed on a separate document that also fit into the officer’s memo book. A larger version of the stop report form was printed on an 8½ x 14 sheet of paper, with the instructions on the back of the form. The two stop report forms differed in size and format only—the content was identical. Four commands started with the smaller form and three commands started with the larger one. After 45 days, the pilot commands switched forms so that each command used both forms. Almost 600 stop reports were prepared during the pilot.
The Risk Management Bureau (RMB) oversaw the pilot program, conducting training on the new forms for the members of the pilot commands, monitoring use of the forms, conducting focus groups of officers and supervisors, and administering surveys. Training regarding the pilot program also was provided at promotional classes for sergeants, lieutenants and captains. Surveys were distributed to officers in the seven pilot commands to elicit feedback about the content of the stop forms and the ergonomics and clarity of the two versions. In addition, the Quality Assurance Division (QAD) reviewed the stop forms from the pilot commands for potential deficiencies, including whether the stop report form articulated reasonable suspicion for the stop and, if conducted, the frisk and search.
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The RMB analyzed the data as well to determine whether there were qualitative differences between the two versions of the report form when completed, whether the officers expressed a preference and, if so, whether using the preferred form increased the likelihood that the report would be filled out accurately. The Department has made recommendations for revising the new form and the plaintiffs have made additional suggestions. The monitor will work with the parties to finalize the form and submit it to the court for approval.
Once the new stop report form is approved, the Department will need to change its SQF (stop, question and frisk) database to conform to the new form, provide in-service training on the new form, and revise existing procedures and training materials as needed. The NYPD is also developing a new online records management system that will incorporate the new stop report form. When the new records management system is completed, police officers will be able to access and prepare the stop report on their smartphones and tablets.
The Department is continuing to analyze the information from the pilot program. However, it has shared several observations. The NYPD found that there was a 20 percent greater reduction in reported stops in the commands that were using the new forms, compared to other commands throughout the city that were using the current form (formerly known as the UF-250). The NYPD noted, however, that whenever a new procedure or form is rolled out, there is generally a temporary decrease in activity or use of the form. The stop report form also documents whether a tear-off receipt was given to persons stopped but not arrested. In the pilot, absent exigent circumstances, the officers were required to offer the tear-off receipt to persons stopped but not arrested. For the
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pilot, the NYPD found that in a significant number of stops, officers did not give the tearoff receipt to persons stopped but not arrested. There are several possible reasons for this. For example, the officer might not have offered the receipt because of exigent circumstances; or the person stopped might have walked away before the receipt was offered; or, contrary to policy, the officer might not have offered the receipt.
The Quality Assurance Division also reviewed the forms to assess whether officers appropriately articulated reasonable suspicion for the stops, reasonable suspicion that the person stopped was armed and dangerous for those stops where a frisk was conducted, and an appropriate basis for the search, if conducted. QAD found that 28 percent of the stop report forms analyzed did not properly articulate reasonable suspicion for the stop, 27 percent of the forms documenting a frisk did not properly articulate reasonable suspicion for the frisk, and 16 percent of the forms documenting searches did not show an appropriate basis for the search. In almost every case in which QAD found insufficient basis for the stop, frisk or search, the supervisor in that command nonetheless had signed off on the report and noted there was sufficient basis for the stop, frisk or search.
Although the pilot was conducted before the new stop and frisk policies were issued, QAD’s analysis does illustrate the gaps in knowledge among officers, reinforcing the importance of new in-service training on the revised stop and frisk policies and the
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new stop report form, and of the role of supervisors in evaluating the constitutionality of stops and frisks. These are matters of concern on which the monitor will be reporting in the future. IV. Training
A. Monitors’ Observations of Police Academy Training In the monitor’s discussions with NYPD executives, they have emphasized that they view training improvements as a high priority and want to make significant changes. For example, the Department has embraced the concept of experiential training. It has dedicated a group of excellent instructors to develop scenarios that can be used in the mock environments at the new Police Academy and elsewhere. Beginning in October 2015, recruits were sent to precincts for twelve days where they partnered with officers, met with members of the community and were oriented to what they would face upon graduation. All this was to give the recruits more context for their classroom training. In the period covered by this report, the Department has produced new training material and is in the process of developing more substantial changes. In doing so, it has retained well-respected outside experts, reached out to other police departments, and welcomed the advice of experts on the monitor team and those retained by the plaintiffs. The Department recognizes that more work needs to be done and, as stated, has welcomed suggestions. To that end, and as part of the monitor’s role, the monitor team spent many hours at the Police Academy observing classes and role-play scenarios on the subjects relevant to the monitor’s mandate—stop and frisk, racial profiling, and housing and interior patrols. The team saw classes for recruits in the January 2015 recruit class and then again for the June and October recruit classes. The team saw many instructors,
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sometimes observing the same teacher present the same material to different classes, and often seeing the same material taught by different teachers. Based on these observations, the monitor provided the NYPD with the team’s views and recommendations for improvements in Academy training. Written training materials are important, and the recruit training materials discussed in the sections below were developed after thoughtful review and revisions. However, written materials are just one piece of effective training. Unless the materials are communicated effectively, they will not be as useful as they should be.
1. Teaching Quality The quality of the instruction at the Police Academy is mixed. The monitor and his team observed some excellent teaching and some poor teaching. This unevenness suggests the Academy should develop a more rigorous program of instructor development. Although instructors must now attend a course on Methods of Instruction focused on adult learning techniques, Academy instructors could use additional training to help them become more effective teachers. For example, strong teachers could be partnered as mentors with new teachers or weaker teachers to help them improve their teaching skills. If the performance of weak teachers does not improve, consideration should be given to removing them from the classroom. Instructors would also profit from additional training in the substantive areas relevant to their teaching duties; for example, advanced seminars in social psychology, history and law. There is a substantial literature that relates these disciplines to police work, and instructors should be familiar with this literature. It was evident from observing lessons delivered by some instructors that simply providing a lesson plan,
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student guide and a two-week course in Methods of Instruction on top of their own experiences is not sufficient to deliver quality instruction for officers in the increasingly complex and changing world of 21st-century policing.
2. Curriculum Development As for the court-approved lesson plans, student guides and PowerPoint slides, they are a good start. However, the curriculum should use other teaching methods as well; for example, developing more videos, assigning more independent readings and using more scenarios of realistic policing situations. Instructors could then draw upon a more varied and interesting set of tools than PowerPoint slides. The Academy is in the process of developing a more robust scenario-based instruction platform. The instructors dedicated to this effort are among the best the monitor team has seen in the Academy. The scenario sessions the team observed were very effective. The Academy should, however, more closely integrate these scenarios into the broader instructional goals of the curriculum. For example, the staff developing the courses should work with the scenario team to develop the scenarios; and the scenario team should provide feedback and be involved in the development of the courses. Most of the lesson plans for the role-play scenarios the monitor team has seen do not include instructor notes and other material that would make the instructional goals clear and facilitate quality control in the implementation of scenarios when they are passed on to other instructors.
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3. Course and Teacher Evaluation The monitor team’s observations also suggest that the Police Academy should develop a more comprehensive plan for evaluating both the quality of instructors and the content of the curriculum. Such a plan could include: (1) Academy evaluators observing classes more closely; (2) asking recruits for their evaluations immediately after the end of the subject area—for example, when the class completes “Policing Legally” (see below at pages 23-25), recruit officers could complete an evaluation of the sessions on this topic; and (3) evaluating certain training, for example in-service training, by surveying officers’ knowledge and attitudes both before and after the training to see whether the training accomplished its goals, and, if not, what could be improved. One specific recommendation regarding the content of the Policing Legally sessions is to provide recruits with more instruction on how to prepare a stop report form and activity log. Greater emphasis should be put on developing, articulating and writing reasonable suspicion for stops and frisks. Recruits should be required to prepare stop reports based on scenarios they observe. More experienced officers and supervisors have said that they too would benefit from this kind of training once the new stop report is approved. As for evaluating instructors, it would be useful if they were evaluated early in an instructor’s assignment. Instructors with poor evaluations could then be identified early and given the support they need. This support could include more intensive training or more supervision. Performance by recruits on trimester exam questions relating to Policing Legally, Policing Impartially and Policing in a Multicultural Society could be
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used as one way to obtain feedback concerning how well the instructor communicates the curriculum.
4. Subject Integration Street encounters and trespass enforcement are critical areas of police operations, and training would be enhanced if the legal and other principles in those areas were integrated into other relevant areas of instruction (e.g., car stops, use of force, racial bias, and search and seizure). This integration should focus on both the timing of the blocks of instruction and the ways in which the areas of instruction relate to each other. Universities often use “teaching teams” to handle complex multi-disciplinary topics, and the Academy could benefit from a similar approach. B. Recruit Training
1. Stop, Question and Frisk a. Milestones
Training for recruits on stop, question and frisk must provide recruits with the standards for what a stop is, when a stop may be conducted and when a frisk may be conducted.
b. Status and Assessment In April 2015, the court approved training materials—Policing Legally: Investigative Encounters—for the recruit class then at the Academy. The training materials included a student guide and a PowerPoint presentation. The NYPD also prepared an instructor lesson plan, exam questions and role-play scenarios. The course covers Terry stops and the four levels of DeBour encounters; what constitutes a stop;
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when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted.
Training on stops and frisks for the January class of recruits began in May 2015, and the monitor team observed training, as did one of the plaintiffs’ experts. Slight revisions were made to the Policing Legally course for the June 2015 and October 2015 recruit classes. These revisions were reviewed by the parties and approved by the monitor. The Academy also expanded the use of scenarios for its recruit courses. This expanded scenario-based training uses the mock environments (e.g. subway stations, streetscapes) at the new Academy and provides recruits with additional experiential training. The NYPD has begun a new field orientation program for recruits. They are taken out of the classroom for approximately two weeks during their six-month Academy training and placed in precincts, transit districts and housing PSAs to get hands-on experience and a practical context for their classroom training.
2. Racial Profiling a. Milestones
The NYPD’s training regarding racial profiling must clearly state the difference between the constitutionally permissible use of race in a stop based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops.
b. Status and Assessment In April 2015, the court approved training materials for the Academy’s Policing Impartially course, including a student guide and PowerPoint presentation. The NYPD also prepared an instructor’s lesson plan, exam questions and scenarios, which were
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reviewed by the parties and approved by the monitor. These materials address the Department’s prohibition against racial profiling and other forms of bias-based policing, as well as the impact of unconscious bias on the exercise of discretion. They also include information on police history and bias, and how knowledge of this history can help officers be more effective. The Academy also provides recruits with a course on Policing in a Multicultural Society.
Based on experience from the January training class, changes to the training on racial profiling were made for the July and October 2015 Academy classes. These included additional scenarios to make recruits more aware of issues regarding bias and how to avoid it. These changes have been reviewed by the parties and approved by the monitor. The NYPD anticipates additional revisions to its recruit training on racial profiling as it develops in-service training on implicit bias and procedural justice, described below in Section IV.C.5. In addition, the NYPD, the plaintiffs and the monitor are discussing development of a training scenario to address the NYPD’s revised racial profiling policy (P.G. 203-25) that prohibits the targeting of racially defined groups for stops simply because they appear more frequently in local crime suspect data.
3. TAP Training a. Milestones
Training regarding stops outside TAP buildings must be included in Police Academy recruit training. The training must instruct officers that mere presence near, entry into or exit from a TAP building is not an “objective credible reason” to approach a person to request information.
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b. Status and Assessment In April 2015, the court approved training materials for Academy recruits regarding TAP policies (a student guide and PowerPoint presentation). The NYPD also prepared instructor lesson plans, exam questions and scenarios that were reviewed by the parties and approved by the monitor. These materials cover stops both outside and inside TAP buildings and are not limited to TAP buildings in the Bronx. In October 2015, the NYPD combined the TAP recruit materials with the training materials approved by the court in Davis governing housing patrols in and around NYCHA buildings. These materials were reviewed by the parties and were approved by the monitor. They meet the requirements of the court’s orders.
4. Davis/NYCHA Training a. Milestones
On April 28, 2015, the court in Davis approved the settlement relating to trespass enforcement in NYCHA buildings, including a lesson plan for training recruit officers on interior patrols. The lesson plan included discussions of hypothetical situations in NYCHA buildings featuring NYPD officers engaging in both appropriate and inappropriate conduct. The court also approved a lesson plan for officers assigned to the Housing Bureau dealing with enforcement of the NYCHA house rules. (See Section IV.C.4 below.)
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b. Status and Assessment The NYPD incorporated the court-approved lesson plan on interior patrols into Academy training for its January 2015 recruit class. For the July and October 2015 recruit classes, the NYPD combined the chapters on TAP and NYCHA interior patrols so that the lesson plan included court-approved materials from the TAP lesson plan and the NYCHA lesson plan. The student guide and the PowerPoint also combined TAP and NYCHA materials. Some of the hypothetical examples from the Davis lesson plan were revised to feature TAP situations. These materials were reviewed by the parties, finalized in November 2015 and approved by the monitor. They meet the requirements of the Davis settlement and the Ligon preliminary injunction. C. In-Service Training
1. Command Level Training a. Milestones
In-service training is conducted at several venues, one of which is at the officer’s command. There, the training sergeant or others can and often do conduct brief training sessions. The most common time for command training is at roll call. Roll call is at the beginning of the officer’s shift; it is a time when supervisors give assignments and alert officers to relevant information.
b. Status and Assessment The NYPD decided to produce short videos regarding P.G. 212-11 for roll call training to ensure that the training and information provided to NYPD members is uniform. The first of these videos has already been produced and played at roll call for all officers. In this video, the Chief of the Department, James O’Neill, introduced the
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new policy for investigative encounters and briefly explained its contents. The Department is producing four additional videos: a video explaining (1) Level 1 Requests for Information; (2) Level 2 Common Law Right of Inquiry; (3) Level 3 Terry stops; and (4) documentation requirements and supervisory responsibilities for Level 3 stops. The scripts for Chief O’Neill’s introductory video and the three videos for each DeBour level were drafted by the NYPD, reviewed and commented on by plaintiffs, and, after editing, approved by the monitor. The Levels 1, 2 and 3 videos are expected to be shown at roll calls starting in February 2016. The script for the video dealing with documentation and supervisory responsibilities will await the approval of the new stop report form (see Section III.E above).
The video for Level 3 stops will also address one of the issues discussed in the court’s opinions. In 2012, the NYPD produced a video on stop and frisk (SQF Training Video #5) that described what constituted a stop requiring reasonable suspicion. The narrator in the video states:
Usually just verbal commands, such as STOP, POLICE!!!, will not constitute a seizure. However, a verbal command, plus other actions may be considered a seizure—other actions, such as: using physical force to subdue a suspect; physically blocking a suspect’s path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground. In the Ligon preliminary injunction opinion, the court ruled that this misstates the law and that if an officer yelled “STOP, POLICE!!!” and the person stopped, the result would “usually” constitute a Terry stop. “Indeed, it is difficult to imagine many contexts in which an officer shouting this command, followed by the person stopping, would not
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constitute a Terry stop.”3 In accordance with this ruling, the Level 3 video that will be
used for roll call corrects the earlier error. The script for the video says:
The question of whether the circumstances create a situation where a reasonable person would not feel free to leave typically involves a consideration of all the facts, such as whether the officer’s gun is drawn and visible, whether the individual was prevented from moving, the location of the encounter, how many officers were involved in the encounter, whether verbal commands were given, and the content and tone of the commands. Tone really matters. You may have the impression from earlier materials that when an officer yells “STOP, POLICE!” and the person stops, that would not usually constitute a stop. That is not the case. If an officer is approaching someone from behind and says, “Hey, can you hold up for a second?” that may not be a stop, but if an officer yells forcefully “Stop!” and the person stops, a court would likely find that a reasonable person would not feel free to leave.
The Department also issued a training memorandum, reviewed by the parties and
approved by the monitor, on the NYPD’s revised policy prohibiting racial profiling and
bias-based policing, P.G. 203-25. The memo summarized the new policy, defined racial
profiling and included text from Administrative Code Section 14-451 prohibiting bias-
based profiling based on several enumerated categories. This training memo was sent to
all training personnel on October 30, 2015 and was read in its entirety at roll call
trainings during the month of November 2015.
2. SQF Reference Materials
When the Department issued its revised procedures on stop and frisk in
September 2015, it also prepared reference materials for an online intranet library
(Investigative Encounters Resource Center). These materials include a detailed reference
guide, a PowerPoint presentation, summary charts and an at-a-glance booklet regarding
3 Ligon, 925 F. Supp. 2d at 535.
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investigative encounters that summarize the new procedures and the applicable legal standards under DeBour and Terry. The library also contains relevant forms (including the stop report form and tear-off receipt used in the pilot described in Section III.E above), legal bulletins and videos. The Department has created a new activity log insert summarizing the four levels of investigative encounters outlined in DeBour, as well as a police officer’s authority and limitations under each.
3. SQF In-Service Training at the Academy a. Milestones
Training for current members of the service is critically important and the most time-consuming of the NYPD’s training tasks. A central part of in-service training is when officers are assigned to locations outside their precincts (e.g., to the Police Academy) and trained in concentrated blocks of time devoted to particular subjects. Thirty-six thousand members of the service must go through the training to reinforce the proper legal standards and new policies and address any prior misunderstandings that may have developed. The in-service training should include materials on: stop and frisk; trespass enforcement; proper documentation of stops; the Department’s policy on racial profiling and bias-based policing; and new supervisory responsibilities under P.G. 21211.
b. Status and Assessment The Department is currently drafting a curriculum for a Department-wide inservice training on stop and frisk, and invited the plaintiffs and their experts to review and comment on an early draft. The one-day program will include a classroom session on the law and policy, as well as scenario-based exercises for members of the service.
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The scenarios will include examples of self-initiated stops and radio runs. The current plan is for supervisors to be trained in the same sessions as patrol officers, and there will be materials addressing their role in supervising and reviewing stops. The monitor will assess the NYPD’s in-service training after the training is approved by the court and the monitor team has observed the training sessions. These training materials, once approved, will likely include changes that should be incorporated into the recruit training.
4. Davis/NYCHA In-Service Training a. Milestones
The court-approved settlement in Davis includes a module on NYCHA house rules for officers patrolling public housing.
b. Status and Assessment The NYPD plans to conduct a separate day of in-service training for the Housing Bureau and other members of the service who patrol NYCHA buildings. That training will include a module on NYCHA house rules approved by the Davis court, as well as other training related to public housing.
5. Implicit Bias and Procedural Justice a. Milestones
In its remedial order, the court noted that it might be appropriate to conduct training for officers on the effect of unconscious racial bias. The NYPD has recognized the importance of teaching officers about the concept of implicit bias and the related concept of procedural justice.
b. Status and Assessment The NYPD is committed to including training on implicit bias and procedural justice as part of its in-service training. It currently plans to add at least one day to its in-
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service training curriculum for these topics. The Department has retained Professor Tracey Meares and Professor Phillip Atiba Goff to serve as consultants as it develops this training. Professors Meares and Goff have expertise in policing and in providing training on implicit bias and procedural justice. The Department expects these new training materials to be created in the next several months. The NYPD plans to incorporate implicit bias and procedural justice concepts into its training in many areas of enforcement beyond stop and frisk, such as issuing summonses, dealing with victims and making arrests. The monitor will assess the Department’s efforts on these topics after new training materials are developed and incorporated into the curriculum and the monitor team has observed the training.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 48 of 94 IV. Training D. Training on Supervision
D. Training on Supervision 1. Milestones
Under the new NYPD stop and frisk procedures, supervisors will be responsible for reviewing the legality of stops. Current and newly promoted supervisors and field training officers must be trained on these new responsibilities and on their responsibilities for reviewing trespass arrests. In addition, the leadership training for NYPD executives must be revised to incorporate training on the responsibilities of supervisors relating to the court orders and the parties’ agreements.
2. Status and Assessment The NYPD plans to train supervisors in several ways on their new responsibilities under revised P.G. 212-11. Initially, they will view roll call videos, including a video on documentation requirements and supervision responsibilities. They will then receive stop and frisk training during the upcoming Department-wide in-service training. Training for supervisors will deal with their new duties and responsibilities under the revised procedures. The monitor will assess compliance for this area after the in-service training is conducted. With respect to housing patrols, supervisory responsibilities regarding stops will be part of the stop and frisk in-service training. Beyond this training, the parties will be discussing any additional training that may be necessary relating to trespass enforcement. Newly promoted supervisors also need training in their promotional classes. Since the publication of the NYPD’s new stop and frisk procedures, P.G. 212-11, the Department has promoted new classes of sergeants, lieutenants and captains. The first promotions were of captains in October 2015. Although the NYPD had prepared an
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“SQF refresher” module, the materials dealt with supervisory responsibilities only in a cursory way. There was not enough time before the class began for rewriting the materials to address the supervisory responsibilities more completely. Therefore, the module was not used for this class of new captains.
New sergeants and lieutenants also were promoted, and materials regarding the new stop and frisk policies and supervisory responsibilities were included in classes for the new sergeants and lieutenants in November and December. The monitor team observed the sergeants’ and lieutenants’ training. Although some aspects of that training were useful, the materials were not sufficient. Among other things, the training needs to include a fuller discussion of what leadership means in the NYPD and of the changes to NYPD policies and practices, why they are being made and why they are important for the NYPD.
The Department has agreed that further work needs to be done on promotional training and additional materials will be prepared based on the in-service training that is now being developed.
The Field Training Officer (FTO) Field Guide was revised in June 2015 with respect to stops and frisks and trespass stops outside TAP buildings. The Department prepared a new section of the FTO Field Guide entitled “Investigative Encounters” and a refresher training module for FTOs, which includes a legal review of the prohibition against racial profiling and the policies that govern housing interior patrols. These materials were reviewed by the parties and approved by the monitor. In June 2015, FTOs
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had one day of in-service training at which they were provided presentations on several topics, including the new stop and frisk training that the new recruits had received at the Academy. A second FTO in-service training session was conducted in October 2015.
In addition, in September 2015, the Academy delivered stop and frisk training to the training sergeants who serve in the Department’s many commands. This training module provided training sergeants with an overview of the new Patrol Guide procedures regarding investigative encounters and racial profiling, the law of investigative encounters and the contents of the NYPD’s new online Investigative Encounters Resource Center. The training sergeants will be responsible for retraining officers who have been identified by supervisors as needing retraining. Going forward, the monitor will be examining how well this retraining is being implemented. V. Supervision
If the changes required by the court orders and the parties’ agreements are to be implemented and take hold, the supervisors who have most to do with the officers on the street must play an increased leadership role. This includes, especially, sergeants, who are closest to the officers, and precinct and unit commanders, who set the tone. These supervisors must ensure that their subordinates are implementing the changes required by the court orders and the parties’ agreements—that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented. Supervisors must take a more active role in supervision, oversight, teaching and, when appropriate, discipline.
On the question of discipline, although most officers understand that discipline is appropriate for deliberate violations of law or policy, they often express fear that they will face serious disciplinary action or not be indemnified in lawsuits over minor or
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inadvertent mistakes in documentation or for isolated cases of erroneous but good-faith stops or frisks. The newly approved P.G. 212-11 announces a contrary policy for the Police Department. And, as far as can be determined, officers have not been denied indemnification for minor infractions or reasonable, honest mistakes. Sergeants and other supervisors need to take an active role in trying to correct these misperceptions, especially as they may affect decisions by some officers to make or refrain from making appropriate stops.
These observations about the supervision necessary to implement the changes required by court orders and agreements do not conflict with the goals and needs of the Department. They are, in fact, similar to many comments that Commissioner Bratton and others at the NYPD have made about the need more generally to increase supervisory responsibility for sergeants and other supervisors and to push decision-making down the command structure.
A. Milestones The court orders and the parties’ agreements require that supervisory review of stop report forms and activity logs include a review not just of the completeness and accuracy of the forms, but of the constitutionality of the stop and, if conducted, the frisk and search. If an officer’s actions are improper, the officer’s supervisor must take corrective action. The Ligon remedy also requires the NYPD to develop procedures for supervisors to ensure that a stop report form is prepared for every trespass stop outside a TAP building in the Bronx. The Davis settlement provides that any additional reforms regarding supervision of officers engaged in trespass enforcement in or around NYCHA residences will be addressed by the monitor in consultation with the parties.
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B. Status and Assessment The new NYPD Patrol Guide procedures governing stops and frisks, P.G. 212-11, requires supervisors to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. The supervisor must determine whether the stop was based on reasonable suspicion of a felony or Penal Law misdemeanor; if a frisk was conducted, whether the frisk was supported by reasonable suspicion that the person was armed and dangerous; if a search was conducted, whether it was reasonable; and if force was used, whether the use of force was reasonable. The supervisor must direct the officer to make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer the officer for additional training or other remedial action, including, if appropriate, disciplinary action. The NYPD has stated that the review and discussion with the officer who made the stop is intended to be an occasion for teaching, rather than an attempt to catch an officer in a minor mistake of the law or policy. As noted in P.G. 212-11, instruction and training to correct isolated mistakes will generally take place in the officer’s command. However, officers who show a consistent lack of understanding of the law in this area should be referred to the Legal Bureau for retraining. The new stop report form will require supervisors to document their review and whether they took or directed any follow-up action, if appropriate.
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The NYPD’s new written policies meet the requirements of the court orders and the parties’ agreements. However, the limited review of supervisory actions based on the approximately 600 stop report forms completed during the pilot program described above in Section III.E suggests that more needs to be done before supervisors understand and exercise their new responsibilities. In future reports, the monitor will assess compliance by looking at whether the supervisory policies relating to stop and frisk and trespass enforcement are being effectively implemented in practice. The monitor team will do so by, for example, reviewing the Department’s own auditing and self-inspections on these subjects and by undertaking an independent review of a sample of stop report forms and other documentation. VI. Body-Worn Cameras (BWCs)
Beginning in December 2014, the NYPD instituted a small voluntary pilot program in which 54 officers volunteered to wear body-worn cameras (BWCs). The purpose was not to replace or circumvent the larger pilot program that had been ordered by the court. The purpose was primarily to learn about the technological challenges that might be faced in what the Department announced as its ultimate goal—to equip most of the members of the service with BWCs. The issues raised by equipping much of the police force with cameras include, but also go beyond, what the court stated as the primary focus of the pilot program it ordered—reducing unconstitutional stops and frisks. Nonetheless, the monitor team, the NYPD and the other parties recognized that it made sense for the court-ordered pilot to be designed so that the Department and the public could learn about other issues that would accompany a wider deployment of cameras. That is one reason the monitor recommended, and the court ordered, with the consent of the parties, that the pilot be restructured so that a controlled experiment could be done.
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However, using the court-ordered pilot to educate the Department and the public about issues that go beyond the subject matter of the court’s order raises additional challenges for both the monitor and the parties. Before a BWC program can be implemented, policies and procedures must be in place. Some of these will be within the monitor’s area of responsibility and some will not, which means that on some issues, the monitor will have a deciding voice, and on others, more deference will be given to the Department’s preferences. There certainly may be grey areas where it is not clear whether a policy is covered by the court order. Those will be discussed and resolved as they arise after discussion with the parties.
A. Milestones The court orders and the parties’ agreements require the NYPD to conduct a oneyear pilot program for body-worn cameras. The purpose of the pilot is to assess whether the benefits of the cameras relating to stop and frisk and trespass enforcement outweigh their financial, administrative and other costs, and whether the program should be expanded or terminated. The monitor will work with the parties to evaluate the pilot. The court ordered that the monitor establish procedures for reviewing stop recordings by supervisors and senior managers, preserving stop recordings and measuring the effectiveness of BWCs in reducing unconstitutional stops and frisks. The court required that BWCs must 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 in that borough during 2012. These NYPD commands were identified as the 23rd, 40th, 75th, 103rd and 120th Precincts.
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B. Status and Assessment As noted in the monitor’s first report, requiring officers in these five precincts to wear the cameras might not provide the best information regarding the benefits and costs of body-worn cameras, including whether they will be effective in reducing unconstitutional stops and frisks. The precincts with the highest counts of stop reports in 2012 were no longer the ones with the highest number of reported stops in 2014 or in 2015. In 2012, the 75th Precinct had the greatest number of reported stops in the city; in 2014, the 75th Precinct was down to sixteenth place (and in 2015, it appears likely to be around twentieth). Also, the selection of precincts in advance prevents the use of a rigorous randomized experimental design, because it precludes a random selection of commands matching those that had cameras with those that did not. The monitor team examined and discussed with the parties how to design a pilot that will yield more robust and useful information. The monitor recommended to the court that a randomized experimental design should be implemented. Such a design allows researchers to assume that the only systematic difference between the “control” group (here, those without cameras) and the “treatment group” (those with cameras) is the presence of the intervention (i.e., use of cameras). This approach permits a clearer assessment of causes and effects. The monitor is currently considering that the NYPD use a variant of the classic randomized controlled trial called “cluster” randomization. In these trials, clusters (groups) of subjects, rather than individual subjects, are randomly allocated to treatment and control conditions. In a cluster-randomized controlled trial, NYPD officers would be randomly allocated by precinct to the body-worn camera treatment group or non-body-worn camera comparison group.
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In December 2015, the court ordered, with the consent of the parties, that the NYPD use a randomized experimental design for the one-year 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 body-worn cameras in reducing unconstitutional stops and frisks and to assess the costs and benefits of the body-worn cameras.
The City’s procurement process to acquire BWCs is underway. More than 50 proposals were submitted to the NYPD by September 3, 2015. The NYPD created a committee to review these proposals. The procurement committee is in the process of reviewing and evaluating technical proposals and on-site demonstrations from potential vendors. Vendors achieving a satisfactory evaluation will be invited to submit a pricing proposal.
In November 2015, the NYPD informed the monitor that the Department’s plans for the research and development of the BWC pilot have changed since the start of this monitorship in 2014. These plans now include outreach to other police departments that use BWCs, review of BWC policies from other jurisdictions and model policies, consideration of other ongoing Department pilots and operational and technical constraints, and outreach to obtain input from community and other interested groups.
The NYPD created an internal BWC working group, which has plans to: revise and expand its body-worn camera policy with input from internal and external stakeholders, including community members; develop training materials for the personnel
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who will use and maintain the cameras and handle video footage; and assist in devising implementation and audit plans. In November and December 2015, members of the internal BWC working group made calls to other police departments that have implemented body-worn camera programs. In December, members of the working group visited three departments (Los Angeles, Las Vegas and Oakland) that have implemented BWC programs to learn about their programs.
In January 2016, the NYPD shared a draft outline of BWC policies with internal stakeholders, plaintiffs’ counsel and the monitor. The draft outline does not necessarily state the Department’s position on what the final policies should be, but is intended to begin discussions with the monitor and the plaintiffs and with external stakeholders. The draft outline covers issues such as when the cameras should be recording, data retention, accessing and reviewing footage, privacy concerns and the use of footage as evidence, among other things. The Department plans to engage in outreach to external stakeholders to get feedback and input on the draft outline. This outreach will include: officers of every rank; unions; community members and organizations; criminal justice stakeholders, including the courts, district attorneys and defenders’ organizations; victims’ advocacy groups; privacy groups; the City Council; external oversight agencies; and other interested parties and organizations. The NYPD expects to develop a final BWC policy in March 2016.
The Department will also need to draft the necessary training materials to train the officers who will wear the cameras and the personnel who will maintain the cameras and the footage; deliver the required trainings; complete the pilot design; devise
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implementation plans; and devise auditing procedures to track compliance with BWC policies.
In the current reporting period, the monitor team continued to test the feasibility of designing and implementing a rigorous cluster-randomized controlled trial. With the assistance of the NYPD, the monitor team collected data on policing, crime and neighborhood conditions in the 77 NYPD precincts and on officers assigned to work in those precincts. The monitor team’s preliminary analyses indicate that matching precincts into pairs and randomizing precincts within each pair yields balanced treatment of control clusters (precincts) and units of analysis (officers). To ensure that the best precinct matches are made for inclusion in the BWC randomized experiment, one member of the monitor team, Professor Anthony Braga, toured all 77 precincts with members of the NYPD Risk Management Bureau to examine relevant community dynamics within and across the precincts. Professor Braga noted important qualitative variations such as the rapid gentrification of certain neighborhoods, the presence of street crews and gangs, and variations in the physical environment. These and other factors will be considered before the appropriate randomization strategy is chosen.
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 59 of 94 VII. Auditing A. Quality Assurance Division
VII. Auditing A. Quality Assurance Division 1. Milestones As part of the remedial measures, the NYPD must maintain an effective auditing
system for ensuring the constitutionality of stops and frisks and trespass arrests. The NYPD’s Quality Assurance Division (QAD) is responsible for evaluating compliance with the Department’s policies and procedures, including those relating to stop and frisk and trespass enforcement. QAD evaluates each precinct, transit district and housing PSA commands, as well as borough task forces, the Detective Bureau, the Organized Crime Control Bureau, the School Safety Division and the Traffic Enforcement Division. The audit procedures must assess both compliance with constitutional standards and whether the paperwork has been properly prepared. The Department must also perform audits to assess the extent to which stops and frisks are being conducted but not documented.
2. Status and Assessment The NYPD recognizes that its auditing practices need to be revised to meet the requirements of the court orders and the parties’ agreements, and it has begun the process of doing so as part of the Department’s efforts to improve auditing more generally. A CPA with extensive auditing experience who previously worked at a major accounting firm now directs QAD. QAD is developing new audits to evaluate compliance with the new Patrol Guide sections on investigative encounters (P.G. 212-11) and the new stop report form, upon its approval. The monitor requested that QAD draft an audit plan for stop and frisk and trespass enforcement that would state the audits that QAD plans to conduct in 2016, the audit
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procedures and methodology to be used for each audit, including the number of samples to be tested and the sampling methodology for the audits, and the frequency of the audit and the audit period to be tested. The monitor recently received a draft audit plan. The NYPD has been discussing possible audit protocols with members of the monitor team and will be discussing the draft audit plan with the monitor and the plaintiffs in the near future. Described below are some of the recent audits that QAD has conducted.
a. Current Audits of Stop Reports and Activity Logs The NYPD has reported that QAD audited more than 6,000 stop report forms and associated activity logs from January 1, 2015, to September 30, 2015, but that these reviews used the prior approach, which did not focus on the constitutionality of the stops, frisks and searches. However, the Department states that in November 2015, QAD revised its SQF audits to evaluate the officer’s description of an encounter to assess whether the description stated a lawful basis for the stop, and for the frisk and search, if these were conducted. The revised audit methodology, as described by the NYPD, also assesses whether supervisors effectively performed their responsibilities in reviewing the basis for stops and frisks, or whether they instead signed and approved forms that did not articulate reasonable suspicion or that were missing information. The NYPD has reported some of its findings and recently provided these audit reports, which the monitor team has not yet had the opportunity to review. The NYPD states that from November 5, 2015 (when the revised SQF audits began), to December 10, 2015, QAD evaluated 859 activity log entries made in 62 commands for compliance with the new Patrol Guide procedure. QAD determined that officers articulated individualized reasonable suspicion for the stop in 81 percent of those activity log entries.
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QAD found that officers articulated the basis for the frisk in 64 percent of the activity logs documenting a frisk and the basis for the search in 71 percent of the activity logs documenting a search.
These results reported by the NYPD should not be taken as conclusions about the Department’s compliance with the mandates of the court orders and the parties’ agreements, because the audits were not done on the stop report form that is now being developed for approval. That form will include more informative check boxes and spaces for narrative descriptions. And the audits were done before the Department provided significant training for the members of the service. However, the audits, together with other information reported elsewhere in this report (see subsections below), suggest that the Department faces substantial challenges in educating its officers and supervisors on the requirements of its new policies, including the requirements of documentation and supervisory review of stops.
b. Audit of Revised Stop Reports Used in a Pilot Program Revised stop report forms were used in a pilot program in seven commands, as described in Section III.E above. QAD audited the forms from the pilot and found that 28 percent of the stop report forms did not properly articulate reasonable suspicion for the stop, 27 percent of the forms documenting frisks did not properly articulate reasonable suspicion for the frisk, and 16 percent of the forms documenting searches did not state an appropriate basis for the search. Even though QAD found these deficiencies, it also found that in almost all cases supervisors did not note the deficiencies on the stop report form, and did not direct changes in the stop report or require any other corrective action. The NYPD acknowledges a need for improvement in this area; it says it expects
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compliance to improve once officers and supervisors have more training on the procedure and the law.
c. RAND Audits In the monitor’s first report, the question of under-reported stops was highlighted. These are situations in which stops were made but no corresponding stop report was filed. There are several reasons why a stop might have occurred without the appropriate documentation. The officer might not have understood when the report was required; or perhaps, more seriously, the officer did know the report was required but deliberately decided not to file one. One way the Department attempts to measure under-reporting is through what it calls a “RAND audit.” This is an audit methodology recommended to the Department in 2007 in a report done by the RAND Corporation at the request of the NYPD. In a RAND audit, the Department looks at radio transmissions. QAD uses keyword searches of the NYPD’s dispatch system (ICAD) to identify events that likely involved a stop encounter. These keywords include “stopped,” “show-up,” “holding” and “warrant check.” Once an event that looks like it might have been a stop is identified through reviewing dispatch transcripts and/or listening to the corresponding radio transmissions, QAD looks through NYPD records to determine if a corresponding stop report was prepared. QAD then forwards the audit to the command for investigation and follow-up. The commanding officer determines if the encounters identified by QAD were in fact Terry stops, for which a stop report was required to be completed, or instead are “false positives.” A “false positive” might occur, for example, when the radio transmission used the word “stopped” but was describing a stop of an automobile based on probable cause that a
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traffic infraction was committed. If, however, it is determined that a stop was made and a stop report was required but not filed, the officer is directed to prepare a report retrospectively. The command may also take corrective action, such as providing the officer with instructions regarding stop and frisk documentation requirements, directing additional training for the individual or, if appropriate, the command or recommending disciplinary action. QAD now performs RAND audits in seven commands every month, an increase since June 2015 (when five commands were audited each month) and since 2014 (when two commands were audited each quarter).
In the first half of 2015, QAD conducted RAND audits in 36 commands and identified 53 instances in which it appeared a stop might have been made and a stop report should have been prepared. The audits were forwarded to the commands for investigation. In 27 of the 53 cases, the precinct determined that a stop report was not required, either because the officer had probable cause to arrest at the beginning of the street encounter, it was a car stop with probable cause, or it was not a stop at all. In another eight cases, the stop report was either prepared and on file, or prepared by the officer and not entered into the NYPD database. In one case, the command has not submitted a response. In 17 other cases, the precinct investigations concluded that a Terry stop occurred but was not documented. In 11 of the 17 cases, the officers were given instructions on stop and frisk documentation requirements. In five cases, an entry was made in the log at the precinct in which minor infractions are recorded; these minor violations do not go into the officer’s personnel file. In one case, an officer was disciplined and as a penalty lost four hours of compensation time, which can be used as vacation time or as pay.
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In the second half of 2015 (through November 2015), QAD conducted RAND audits in 35 commands. QAD identified 69 encounters in which it appeared a stop report should have been completed but was not, and forwarded that information to the commands for investigation. According to the NYPD, those investigations determined that 41 of the 68 encounters required a stop report, but that a report had not been completed. For the 41 stops without a stop report, the commands had the officers involved complete a stop report retrospectively. QAD is awaiting responses from several commands regarding the remaining encounters. The monitor does not yet have information on corrective actions taken with respect to these encounters.
d. Audits of Enforcement Activities Initiated by Officers Another audit that QAD uses to identify stops that are missing the required stop report form is its “police-initiated enforcement audit.” This is an audit of arrests when there is no radio run or individual complainant, but the officer makes an arrest based on his or her observations and investigation—for example, an arrest for criminal possession of a controlled substance or criminal possession of a weapon when the officer sees the controlled substance or weapon. QAD audits up to 25 arrests that result from “policeinitiated enforcement” in each command quarterly. When it is determined that a stop led to the arrest, QAD reviews arrest documents and court affidavits to determine whether the officer prepared a stop report. For arrests made in the second quarter of 2015, QAD found 310 that resulted from a Terry stop, but only 18 stop reports were prepared, a 5.8 percent compliance rate. In a more recent police-initiated enforcement audit, QAD audited approximately 1,400 arrests made between November 5, 2015 and December 10,
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2015, and identified 50 arrests that resulted from a Terry stop. However, only six stop reports were prepared for the 50 arrests (a 12 percent compliance rate).
One possible reason for these low compliance rates may be that some officers believe it is not necessary to prepare a stop report if an arrest is made, since other forms related to the arrest are prepared. If that is the reason, this belief does not comport with NYPD policy.
Another source of information about undocumented stops is the CCRB. In its 2015 Semiannual Report, the CCRB noted that 16 percent of all stop and frisk complaints for which a full investigation was completed in the first half of 2015 were referred to the Department for failure to fill out the required stop report form. The CCRB referred 18 percent of the stop and frisk complaints investigated in 2014 to the Department for failure to complete a stop report.
The monitor will be conferring with the NYPD and the other parties to determine whether there are reliable methods using these and perhaps other sources of information to estimate more systematically the total number of stops made, including those that were not documented.
e. Audits of Self-Inspections by Integrity Control Officers QAD has added another audit relevant to the remedial efforts. Each precinct has an Integrity Control Officer (ICO) whose responsibilities include performing “selfinspections,” which are reviews of precinct activities to identify violations of Department procedures. One of those self-inspections is a review of stop reports. The court noted that the ICO’s review of stops as part of the precincts’ self-inspections was insufficient
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because it involved only a cursory review of the paperwork and not a substantive review of the reasons for the stop and frisk.
In July 2015, at the recommendation of the monitor, QAD began reviewing the precincts’ self-inspections. In its review, QAD determines whether the monthly selfinspections are on file, whether they have been prepared and approved by the appropriate supervisor (Commanding Officer, Executive Officer or ICO), and whether the findings of the self-inspection for the stop reports and arrests are consistent with QAD’s findings. The monitor has not yet received the results of these audits.
The NYPD will also be forming an Audit Advisory Committee consisting of five auditing professionals with expertise in internal audits, external audits, forensic investigations, risk management and compliance. The NYPD has stated that the Audit Advisory Committee will perform an initial assessment of the Department’s existing
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auditing procedures, identify areas for improvement and make recommendations in those areas. Once constituted, the committee will advise on all future audit procedures and audit plans before they are implemented by QAD.
In sum, the monitor will be evaluating NYPD’s 2016 audit plan, following up on open questions and information requested about audits already being done, and monitoring the results of new audits once they are instituted.
B. Bronx TAP 1. Milestones
Under the remedial orders in Ligon, the NYPD must develop procedures for ensuring that stop report forms are completed for every trespass stop outside a TAP building in the Bronx and that the constitutionality of those encounters is reviewed. Stop report forms for criminal trespass stops outside TAP buildings in the Bronx must be provided to Ligon counsel.
2. Status and Assessment The NYPD is examining ways to assess whether trespass stops and arrests in TAP buildings (and also in NYCHA buildings) were properly conducted and recorded. First, the NYPD is developing an audit program for trespass stops and arrests. Second, the Department is considering precinct self-inspections, in which ICOs review the stop reports and activity log entries of trespass stops and also examine the sergeants’ review of those reports. Currently, the Department is using self-inspections to monitor criminal trespass stops at TAP locations in the Bronx. Since March 2015, the ICO in each Bronx precinct reviews the trespass stops at TAP locations in that precinct (both inside and outside the
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TAP building) and prepares a spreadsheet with the date of the stop, the stop report serial number, the tax ID of the reporting officer, the date the ICO conferred with the reporting officer (if applicable), the date the ICO conferred with the officer’s supervisor (if applicable), the findings for the stop and any corrective action taken. These assessment reports, along with the stop reports and activity logs, are sent to the Office of the Chief of Patrol, which collects and combines them into a monthly survey report.
The monitor and Ligon plaintiffs’ counsel were provided these survey reports for the months of March through September 2015. Based on these reports, there were only 29 stop report forms prepared for criminal trespass stops either inside or outside TAP buildings in the Bronx for these seven months. There were no trespass stops reported at TAP buildings in the Bronx in July, August or September 2015. After reviewing these trespass stops, the precinct ICO instructed the officers on how to improve their actions for 11 of the 29 stops and gave verbal warnings to the officers for two stops. These corrective actions were usually in response to an incomplete stop report form or because the officer’s activity log was insufficient. The monitor team reviewed these 29 stop reports and activity logs and found that many of them did not articulate reasonable suspicion for the stop; likewise, when there was a frisk, many of the reports did not articulate reasonable suspicion that the person frisked was armed and dangerous. These reports highlight the need for additional training and supervision relating to these types of stops and the need for clear descriptions of the basis for the stops and frisks. To address these issues, the NYPD has drafted, and the Ligon plaintiffs and the monitor have
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reviewed, an operations order that would establish a system for monitoring and assessing stops for criminal trespass at TAP buildings in the Bronx. The monitor will submit the operations order for court approval.
C. Early Identification System (EIS) 1. Milestones
As part of its remedial efforts, the NYPD has committed itself to upgrading its current performance monitoring system and implementing an effective Early Identification System to foster the goals of the Department and the remedial reforms. An EIS is a centralized database to collect and analyze information relating to behavior that might put the Department or its officers at risk. Many major police departments use an EIS to support the supervision and management of their officers, supervisors and units. It is used to identify at-risk employees and patterns of at-risk behaviors so that they can be addressed and corrected before more serious misconduct occurs.
2. Status and Assessment The Performance Analysis Section (PAS) of the Risk Management Bureau currently tracks the performance of officers using several databases and behavioral indicators to identify officers and supervisors who display at-risk behavior. To identify members of the service who need to be placed in a monitoring program, the PAS tracks disciplinary actions, substandard evaluations, civil lawsuits, complaints to the CCRB, use of force complaints, supervisor recommendations and other negative personnel actions. The Department is currently creating a program that it hopes will improve the EIS process and make it more useful. The system in development will use more databases and sources of information to populate an alert system. In 2013, the Enterprise Liability
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Assessment Unit, now part of the Risk Management Bureau, proposed the development of the Risk Assessment Information Liability System (RAILS). RAILS was originally designed to analyze lawsuits and claims against the City and to identify patterns and trends of liability or risky behavior. The project was approved in January 2014. The NYPD has now expanded the original scope of RAILS so that it will use other data in addition to lawsuits and claims, and will be used to analyze the performance of officers and Department-wide risks. This new “scope of work” was approved in August 2015. The NYPD expects that work on the expansion of RAILS will begin by February 2016.
The Department has created a working group to discuss how the Department will use the newly expanded RAILS program and identify all of the databases that should be included. So far, the Department plans to include information on officer complaints, civil lawsuits, use of force, discipline, sick leave and overtime, traffic accidents, investigations by the IAB and criminal proceedings against officers. The NYPD has stated that it also plans to incorporate positive information on officers, including promotions, commendations and letters of reference. In addition to containing information from CCRB complaints involving stops, an EIS system could track instances in which supervisors took corrective action after their review of stops.
If developed as planned, RAILS could be an important tool in supervision and management. EIS systems often use triggers to identify when officers need review by their supervisors, and these triggers can be both quantitative (e.g., if an officer has a certain number of vehicle accidents) and comparative to an officer’s peers (e.g., if an
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officer has used force significantly more than other officers with similar assignments). Some systems can also analyze information for trends and patterns of squads and units, not just individual officers, so supervisors can be reviewed as well. However, an EIS system like RAILS will affect the behavior of officers only if supervisors use the RAILS analyses to review officers and act when appropriate. VIII. Complaints and Discipline
The court orders and the parties’ agreements require that the NYPD improve the way it deals with discipline and complaints relating to stop and frisk and trespass enforcement. A fair, accurate and prompt disciplinary system is central to the court orders and also to improving relations between police officers and their superiors and between the police and the community. The system should be seen as legitimate by the police and the community being policed.
A. Racial Profiling Allegations 1. Milestones
The court found that the NYPD did not effectively track and investigate allegations of racial profiling. The NYPD did not have a separate category for allegations of racial or other prohibited profiling, and therefore did not know how many of these complaints had been made. It also did not track the outcome of the investigations of these complaints—whether the allegation was substantiated and, if so, whether any remedial or disciplinary action was taken. The court orders and the parties’ agreements require the NYPD to begin tracking and appropriately investigating complaints it receives related to profiling.
2. Status and Assessment
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The NYPD has changed the way allegations of racial profiling and bias-based policing are categorized, processed, tracked and investigated. All profiling allegations, no matter how they are made to the NYPD (e.g., in a 311 or 911 call, by a call or visit to the IAB, or at a precinct), are now referred to IAB. IAB’s Command Center logs the complaint into its case management system—the Internal Case Information System (ICIS). In October 2014, a “profiling” category was added to that system, including nine subcategories: race, color, ethnicity, national origin, religion, age, gender, gender identity and sexual orientation. Subsequently, additional subcategories of creed, alienage, citizenship status, disability and housing status were added to track the categories listed in the New York City Administrative Code and in the NYPD’s racial profiling policy, P.G. 203-25.
The Department also changed how and by whom profiling allegations are classified and investigated. Before January 2015, these complaints were classified as “OG” or “outside guidelines,” a classification for cases considered less serious than those categorized as “M” or “misconduct” cases, which are tracked and reviewed by IAB. An allegation of police corruption is categorized as a “C” case and investigated by IAB. As of January 2015, allegations of racial or other prohibited profiling are classified as the more serious “M” cases. After the allegation is logged into the IAB case management system, the complaint is assigned for investigation. Previously, complaints of profiling were investigated by supervisors assigned to the same precinct or bureau where the subject of the investigation worked. Since January 2015, these investigations have been assigned to investigative units attached to the borough (not precinct) command or to the relevant bureau command (e.g., the Transit Bureau command). If a complaint also
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includes an allegation of corruption, the investigation will be done by IAB. Pending investigations are reviewed at monthly meetings among IAB and investigative unit supervisors, and the resulting dispositions are reviewed and tracked in IAB’s case management system.
The changes in classification, intake, assignment and investigation of profiling complaints have been made through internal memoranda and orders rather than formal changes in NYPD procedures. The NYPD is currently examining relevant Patrol Guide, Administrative Guide and Detective Guide procedures, as well as IAB’s procedures, to determine whether it believes any changes in those documents should be made. IAB is also drafting guidelines for profiling investigations and training for its Command Center, IAB investigators and the borough investigations units. The material will cover the new policies for racial profiling and bias-based policing and investigative techniques to be used regarding profiling complaints. This training, when approved, will be conducted by the IAB training unit. These changes in procedures, training and investigative guidelines have been distributed to the parties for review and comment, and will be reviewed by the monitor.
One issue identified by the monitor is that allegations of racial or other profiling allegations made to the CCRB but not the NYPD are not being investigated by either the CCRB or the Department. The CCRB does not believe that profiling complaints are within its authority to investigate complaints of force, abuse of authority, discourtesy or offensive language (FADO), and so does not investigate them. If a complainant alleges that an improper stop was made and that the officer made the stop because of the complainant’s race, the CCRB will investigate whether there was an appropriate basis for
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the stop, but will not separately investigate the racial profiling allegation. It does, however, note these allegations of profiling in its database. CCRB personnel populate an on-line form that includes a “Reason for Initial Contact.” A drop-down menu states “C/V [complainant/victim] believes racially profiled (Do not ask C/V this question. Check only if C/V volunteers this info).”
Although the CCRB has captured information about racial profiling as a reason for initial contact since 2004, it has not referred these allegations to the NYPD for investigation. At a meeting with the monitor, the CCRB chair and staff, and IAB personnel, the Department and the CCRB agreed that the CCRB would now notify IAB when the complainant/victim states that he or she was profiled. IAB and the CCRB will work together on any procedures or protocols necessary to effectuate this agreement and will examine whether there are any practices or protocols that should be established for situations in which there are parallel investigations (the CCRB investigating the FADO allegation and NYPD investigating the profiling allegation), so that duplication and/or potential disruption for complainants, witnesses and officers can be diminished.
The Department states that with profiling allegations separately categorized in the IAB’s database, IAB and the RMB will be able to analyze the data to determine trends, patterns or other indications of problematic behavior within a precinct, borough or
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bureau, or by an individual officer. Any analysis should also include the CCRB cases in which a complainant or witness believes that he or she was subject to profiling.
In 2014, there were 15 allegations of profiling made to the Department after it began tracking profiling allegations. These cases were investigated as “outside guidelines” cases at the subject officers’ commands. Of the 15 cases, the Department reported that eight allegations were unsubstantiated and five were unfounded; in two cases, the officers were exonerated.4
During 2015, IAB received 335 profiling cases containing 478 allegations of profiling. Of those 478 allegations, 345 are open, 83 were determined to be unfounded and 39 were determined to be unsubstantiated; with respect to nine allegations, the officers were exonerated. The most cited category of profiling is “color” (155 allegations). The monitor has asked for the full investigative files for a sample of these cases. When received, the monitor will review them to assess the thoroughness of the investigations.
B. Handling of Complaints Substantiated by the CCRB 1. Milestones
The court orders and the parties’ agreements require that the Department Advocate’s Office (DAO) improve its procedures for handling CCRB findings of substantiated misconduct during stops. This improvement must include increased deference to credibility determinations made by the CCRB and an evidentiary standard that is neutral between the claims of complainants and officers. If the CCRB has
4 Unfounded means there is sufficient credible evidence to believe that the officer did not commit the alleged act. Unsubstantiated means the available evidence is insufficient to determine whether the officer did or did not commit misconduct. Exonerated means the officer was found to have committed the act alleged, but the officer’s actions were determined to be lawful.
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substantiated a complaint based on the statements and credibility of the complainant, the Department cannot impose an additional requirement of corroborating physical evidence.
2. Status and Assessment The court found that the NYPD failed to impose meaningful discipline when officers engaged in unconstitutional stops and frisks. In particular, it found that even when the CCRB determined that a complaint was substantiated, the DAO conducted its own review and rejected the CCRB’s findings if the CCRB based its decision on credibility determinations in favor of civilian witnesses as against police officers. If the CCRB decision was based only on the testimony of the complainant, the court found that the DAO required additional corroborating evidence. The court cited the percentage of cases in which the DAO declined to pursue discipline in substantiated cases in the years 2007-2012, and noted that in cases in which discipline was pursued, DAO “consistently downgraded the discipline” recommended by CCRB and recommended instructions, the least severe form of discipline, in the majority of cases in most years. Several changes have been made in the way the NYPD handles cases in which allegations have been substantiated by the CCRB. First, as the result of a memorandum of understanding (MOU) between the CCRB and the Department in 2012, the CCRB now prosecutes more serious cases—those involving charges and specifications—when it substantiates the allegation. These cases are tried in the trial room of the NYPD in front of an administrative law judge; the judge’s ruling is forwarded to the police commissioner, who makes the final decision regarding both disposition and penalty. Before the MOU was put in place, the DAO prosecuted cases involving charges and specifications, and could decline to proceed in the trial room on an allegation
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substantiated by the CCRB. The DAO can no longer decide not to prosecute those cases. Under the MOU, the police commissioner does retain the authority to direct that a case not be prosecuted.
The MOU does not apply to cases in which the CCRB recommends discipline less serious than charges and specifications. The DAO continues to review the CCRB’s determination in those cases. The DAO can agree with the CCRB’s determination, decide not to go forward with the complaint (Department Unable to Prosecute, or DUP), or recommend less or more severe discipline to the police commissioner. Unlike more serious cases in which a trial is held in the NYPD trial room, there is no trial for cases in which the discipline recommended is losing up to five days of vacation (command discipline A), losing up to ten days of vacation (command discipline B), retraining or instructions.
A second change in the complaint process was the establishment of a method for the DAO to request that the CCRB reconsider its determination and recommended discipline. This reconsideration process was approved by the CCRB in December 2014. Prior to the establishment of the reconsideration process, if the DAO disagreed with a CCRB disposition, it would not send the substantiated allegation to the police commissioner for a final decision, but would decline to proceed with the case (DUP); if the DAO disagreed with the CCRB’s suggested penalty, DAO would send its recommended penalty to the police commissioner. With the new reconsideration process, if the DAO disagrees with the CCRB’s determination that an allegation was substantiated or with the CCRB’s recommended discipline, the DAO may request in writing that the CCRB reconsider the case and state why the NYPD disagrees. If the CCRB agrees to
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reconsider the case, the CCRB panel that made the initial decision can modify its decision that the allegation was substantiated or its recommendation for discipline, or it can determine that its original decision was correct. Although the DAO may seek a change in CCRB’s decisions, the DAO no longer unilaterally decides whether or not to pursue the case. If the CCRB does not agree with the DAO’s request for reconsideration and maintains its original decision, both the DAO’s recommendations and the CCRB’s recommendations are sent to the police commissioner.
The CCRB and the DAO are agreeing more often than in prior years about when an allegation is substantiated and what penalties are appropriate. According to the CCRB’s 2015 Semiannual Report, “During the first half of 2015, the DAO pursued discipline in 92% of CCRB cases, up from 89% during September to December 2014, 62% from January to August 2014, and 57% in 2013.”5
The DAO provided the monitor team with data regarding complaints in which allegations relating to stops, questions, frisks or searches were substantiated by the CCRB and sent to the NYPD in 2014 and 2015. The DAO requested that the CCRB reconsider twelve of the cases sent to the NYPD in 2014. In two of these twelve cases, the DAO recommended that the disposition of the case be changed. In both cases, after reconsideration, the CCRB changed the disposition from “substantiated” to “exonerated,” and the NYPD agreed and closed the cases administratively. In ten cases, the DAO requested that the CCRB change its penalty recommendation. The CCRB agreed with the DAO’s recommendation in one of the ten cases. In six cases, the CCRB agreed to reduce the penalty, but not as much as the DAO had recommended, and in three cases,
5 CCRB 2015 Semiannual Report, p. 28, http://www.nyc.gov/html/ccrb/downloads/pdf/2015-SemiAnnual-Report.pdf.
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the CCRB disagreed with the DAO and did not change its penalty recommendation. In those nine cases, the police commissioner agreed with the final recommendation of the DAO.
In 2015, CCRB substantiated and sent to the NYPD 255 cases involving stops, questions, frisks or searches and one case involving an allegation of an improper trespass arrest. The DAO has reviewed 160 of these cases; 96 are still under review. Of the 160 cases reviewed, the DAO agreed with the CCRB’s recommendations in 142 cases (89 percent) and requested that the CCRB reconsider eighteen cases (eleven percent). In one case, the DAO requested that the penalty recommended by the CCRB be increased, and it was. In five cases, the DAO requested that the CCRB change its disposition from “substantiated” to “unsubstantiated”; the CCRB agreed in two of the five cases, but maintained its determination in the other three cases. In those cases, the police commissioner agreed with the CCRB in two and imposed training, and agreed with the DAO in the third and imposed no discipline. In twelve cases, the DAO requested that the CCRB reduce the penalty it recommended. In one of these twelve cases, the CCRB agreed to reduce its recommended penalty. In three cases, the CCRB agreed to reduce its recommended penalty, but not as much as the DAO had requested. In eight cases, the CCRB disagreed with the DAO and maintained its penalty recommendations.
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Figure 1–2015 SQF CCRB Cases (N=256)
2015 SQF CCRB Cases

38% 7%

55%

# CASES D.A.O. ACCEPTED C.C.R.B. RECOMMENDATION
# CASES D.A.O. REQUESTED C.C.R.B. TO RECONSIDER
# CASES STILL UNDER REVIEW

With respect to complaints involving stops, frisks and searches, one reason the
NYPD is agreeing more often with the CCRB may be that the CCRB has changed its
approach to discipline in these cases. As stated in the CCRB’s 2014 annual report:
The CCRB has historically always adhered to the strict letter and spirit of the laws that elucidate what is constitutional. The CCRB has also historically recommended the most serious discipline when the Board substantiated allegations of improper search— administrative charges, which result in disciplinary trials. This was the normal outcome during the stop-and-frisk era until 2014.
Given the changed policing landscape, the Board began, with the appointment of its new Chair, to take a different approach in its disciplinary recommendations. The Board has begun to make recommendations that move away from severe punishment to less serious discipline and, most importantly, to formalized training. This approach … acknowledges the pressure officers were under to conduct unconstitutional frisks, which often morphed into
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improper searches. It also acknowledges the lack of adequate and clear training, and the complexities of the law. Thus, the CCRB is recommending formalized training and command discipline more often than not for frisk and search misconduct, especially when the stop itself was lawful. The Board’s evaluation of misconduct has not changed, and remains consistent with constitutional and legal principles.6 The monitor will undertake a more in-depth review of the cases in which reconsideration was requested and will work with the parties to address any concerns. IX. Performance Goals, Objectives and Evaluation The Department’s development of a robust system for evaluating officers is central to the monitor’s mission because evaluations affect many of the incentives that can improve or worsen officer behavior. The evidence at trial, bolstered more recently by observations of focus groups and numerous conversations the monitor’s team has had with members of the service, was that in the past, officer evaluations were based largely on “numbers” to show enforcement activity. Officers felt pressure to produce these numbers in order to receive a positive evaluation. Otherwise, they feared, they would be disadvantaged in many ways—for example, in assignments, promotions, overtime, time off and transfers. These expectations were communicated through the Compstat process, a key component of the NYPD’s crime management system. Regularly, precinct commanders are called upon at Compstat meetings to explain the crime conditions in their commands, as well as what their personnel are doing in response to these crimes. In previous years, commanding officers returned to their precincts from Compstat meetings with a heightened focus on quantifiable activities, including the number of stops and frisks. A
6 CCRB 2014 Annual Report, at 46, available at http://www.nyc.gov/html/ccrb/downloads/pdf/2014annual-report-rev2layout.pdf.
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high number of stops reported became a common “defense” at Compstat sessions by precinct commanders wishing to demonstrate they were responding to crime conditions.
The court also identified the NYPD’s performance objectives, incorporated in Operations Order 52 (Use of Performance Objectives), as another illustration that the evaluation and measurement of officers was based predominantly on enforcement activity. Officers report their activities, including stop reports, weekly, monthly and quarterly (the Department’s activity reporting system is known as the “Quest for Excellence,” or “Quest”). The quality of those reports was not evaluated, just the number of reports submitted.
As described to us by many officers, the pressure for numbers caused by these evaluations and performance objectives affected stop-related activity in two ways. First, there were stops of people who should not have been stopped because the officers did not have the required reasonable suspicion for the stop. Second, officers would complete a stop report for encounters that were not stops at all, but voluntary encounters or Level 1 or 2 encounters, or even create fictitious reports purportedly documenting encounters that had not happened. It is not possible to determine how many of the stops reported in prior years were either improper or not stops at all; nor is that the monitor’s role. However, the findings of the court and what the monitor has heard more recently from numerous officers throughout the ranks suggest that there was a substantial amount of both. That history provides a caution going forward. It is critical to implement a new evaluation system that promotes both good police work and the integrity of reporting stop, frisk and trespass enforcement activity. That task includes clearing up any remaining
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misunderstanding among officers about when it is appropriate and lawful to engage in stops, frisks or trespass enforcement and also about when reports must be filled out.
A. Milestones NYPD performance measures and objectives should include an assessment of the constitutionality of an officer’s stops, frisks and trespass arrests. Performance measures and objectives for a supervisor should include the supervisor’s review of his or her subordinates’ activities in these areas and whether the supervisor adequately addressed any insufficiencies. Evaluations of Department members, including incentives the Department uses in managing its personnel, such as its criteria for discretionary promotions, should take into account the constitutionality of stops, frisks and trespass arrests engaged in or supervised by members of the service. B. Status and Assessment In addressing stop and frisk and also in explaining his vision for policing in New York City, Commissioner Bratton has said clearly that what matters is the quality of stops, not the quantity. Quality means that stops should be made when appropriate and that they should be done lawfully and professionally. That message has been reinforced at Compstat sessions. In the sessions observed by the monitor team, the commanding officers have not been asked about the number of stops in their commands. Many officers do report that they feel less pressure to produce “numbers” of stops, and this is reflected in the drop in the number of reported stops. But in focus groups, a few officers report—and these may be isolated instances—that “numbers” of stops still are being used to reward or withhold rewards from them. Many others say that they (or other officers) sometimes avoid making legitimate stops, or make them without documentation, because
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“it’s just not worth it.” As explained by these officers and as described at pages 36-37 above, this attitude is based on the belief that they will be severely disciplined for even minor errors in documentation or on fear of being sued for these errors and not being indemnified by the City. The monitor’s first report raised concerns that this may be happening, and more recent evidence does not dispel them.
The challenge for the NYPD, as noted earlier in this report, is for supervisors to ensure that officers are making stops and frisks when appropriate, that they do so constitutionally and professionally, and that they document the stops and frisks they make. Evaluation measures that reflect these goals are essential.
The NYPD has stated that it is committed to making substantive changes to its performance and evaluation criteria. It notes that these changes are part of the larger cultural change that the NYPD is attempting, including empowering sergeants and decentralizing authority, measuring problem-solving instead of activity only, and making training more relevant. The Department has created a working group to examine how to evaluate performance, and many ways are being explored. Whatever methods are chosen, however, if they do not incorporate the goal of constitutional policing that serves the communities, these methods will not support the changes required by the court orders and the parties’ agreements or the vision for the NYPD announced by Commissioner Bratton. X. Joint Remedial Process
A “Joint Remedial Process” was ordered by the court and agreed to by the parties. It is a process by which the facilitator (Justice Ariel Belen (ret.)) seeks input from stakeholders and affected communities to see whether there are possible reforms in addition to those already required. At the end of the process, Justice Belen will prepare a
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report with potential recommendations for the consideration of the monitor and the court. Under the court order, these proposed remedial measures must be no broader than necessary to bring the NYPD’s use of stop and frisk and trespass arrests into compliance with the Fourth and Fourteenth Amendments.
As currently planned, the Joint Remedial Process has several phases, starting with focus groups of those most affected by the NYPD’s stop and frisk and trespass arrest practices. Focus groups began in October 2015 and are scheduled to continue through February 2016. Thirty-eight focus groups have been conducted to date. Questions for the focus group were prepared in consultation with the parties and an advisory committee comprised of community organizations, NYPD leadership, police union representatives, religious leaders and academics. Each focus group has approximately eight to ten residents of New York City. Participants have predominantly included young black and Latino men, though there has also been substantial representation of women and LGBTQ youth, homeless people and NYCHA residents. The facilitator expects to conduct additional focus groups comprised of NYCHA housing residents to discuss issues pertaining to policing in and around residential buildings, and a session on Staten Island.
The facilitator then plans to meet with community leaders, advocates and the NYPD to discuss possible additional reforms that they may want the facilitator to consider. The next phase will be a series of community forums around New York City. These will be structured, and the discussions will be based in large part on the information gathered during the focus groups and subsequent meetings. Although the community forums will be primarily to collect community input about possible reforms,
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they may also serve as opportunities to develop further dialogue between the NYPD and the communities they serve.
The facilitator will share the information gathered from the process described above with stakeholders and the parties, seek their feedback, and prepare a report with possible recommendations for additional reforms to the monitor and the court. XI. Compliance Metrics
Ultimately, the monitor must report to the court his assessment of whether the NYPD is in “substantial compliance” with the requirements of the court orders and the parties’ agreements. In doing so, the monitor will evaluate compliance with specific remedial measures required by the court and the agreements, such as the promulgation of new policies, new training and a new stop report form, the institution of new audits, and the completion of a pilot program for body-worn cameras. But the monitor must also assess whether all of these changes and programs result in stops, frisks and trespass arrests that are consistently constitutional under the Fourth and Fourteenth Amendments. Beginning very early in this monitorship, the parties have been asked to express their views on how compliance with all the requirements of the court and the agreements should be measured. The monitor has recently received preliminary views from the plaintiffs and the NYPD. In the future, the monitor will report on these compliance measures. To the extent possible, the NYPD should have benchmarks against which it and others can judge progress.
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Appendix 1

Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 88 of 94
Appendix 1 Selected Documents on Monitor Website
Home Page (http://nypdmonitor.org/) Overview (http://nypdmonitor.org/overview/) First Report of Independent Monitor (http://nypdmonitor.org/resourcesreports/monitor-reports/)
Court Opinions and Orders (http://nypdmonitor.org/resourcesreports/court-opinions-and-orders/)
Floyd v. City of New York Remedial Order Floyd v. City of New York Liability Opinion Floyd v. City of New York Modification of Remedial Order Ligon v. City of New York Preliminary Injunction Davis v. City of New York Settlement and Exhibits Modification of Order with respect to Body-Worn Camera Pilot
Policies (http://nypdmonitor.org/resourcesreports/policies/)
Revised Policy on Stop and Frisk (P.G. 212-11) Revised Policy Prohibiting Racial Profiling and Bias-Based Policing (P.G. 203-25) Davis Letter on Policy Floyd Letter on Policy Ligon Letter on Policy
Training (http://nypdmonitor.org/resourcesreports/training/)
Stop and Frisk Investigative Encounters-Policing Legally, Recruit Student Guide Investigative Encounters-Policing Legally, Recruit Student Guide-Updated Investigative Encounters-Policing Legally, Recruit PowerPoint Presentation FTO Guide-Investigative Encounters FTO Training-Investigative Encounters, PowerPoint Presentation
Racial Profiling and Bias-Based Policing Policing Impartially, Recruit Student Guide Policing Impartially, Recruit Student Guide-Updated Policing Impartially, Recruit PowerPoint Presentation Policing Impartially, Recruit PowerPoint Presentation (part 2) Policing Impartially, Recruit PowerPoint Presentation (part 3)
Housing Trespass Affidavit Program (TAP), Recruit Student Guide Trespass Affidavit Program (TAP), Recruit PowerPoint Presentation NYCHA and TAP Housing Interior Patrol, Recruit Lesson Plan NYCHA and TAP Housing Interior Patrol, Recruit Student Guide NYCHA and TAP Housing Interior Patrol, Recruit PowerPoint Presentation NYCHA Rules and Regulations, In-service Lesson Plan
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Case 1:08-cv-01034-AT-HBP Document 523 Filed 02/16/16 Page 89 of 94 Body-Worn Cameras (http://nypdmonitor.org/resourcesreports/body-worn-cameras/)
Summary of Body Worn Camera Pilot Design Monitor’s Recommendation to Modify Remedial Order Modification of Order on Body-Worn Camera Pilot NYPD letter Outlining Plan for Body Worn Camera Policies NYPD Reference Materials (http://nypdmonitor.org/resourcesreports/nypd-reference-materials/) Investigative Encounters Reference Guide Investigative Encounters At a Glance Booklet Investigative Encounters Chart A Investigative Encounters Chart B Investigative Encounters Memo Book Insert
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Appendix 2

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 Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 1 of 57
Peter L. Zimroth Peter.Zimroth@aporter.com +1 212.715.1010 +1 212.715.1399 Fax 399 Park Avenue New York, NY 10022-4690
November 18, 2016
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Submission of Fourth Report of the Independent Monitor
Dear Judge Torres, I am pleased to submit my fourth report under the court orders and agreements in
the cases of Floyd v. City of New York, Ligon v. City of New York, and Davis v. City of New York. These cases challenged the NYPD’s stop and frisk policies and practices (Floyd), and its policies and practices concerning criminal trespass enforcement in and around private buildings enrolled in the Trespass Affidavit Program (Ligon) and in New York City Housing Authority buildings (Davis).
As in prior reports to the court, this one details the state of progress or lack of progress towards compliance with the court orders.

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November 18, 2016 Page 2
The period since the monitor’s report in February 2016 has seen at least these significant positive developments:
(1) The NYPD’s Patrol Guide Section on investigative encounters has been amended to meet the requirements of the court orders.
(2) A new stop report was launched, supporting the Patrol Guide changes. (3) New policies were written and should soon be implemented governing interior patrols in buildings enrolled in the Trespass Affidavit Program (TAP) and in New York City Housing Authority (NYCHA) buildings. (4) Some improvements in auditing were put in place and work continues on others. Still on the to-do list, the Department has not yet started in-service training on stop and frisk for all its members on patrol. Nor is there a plan yet for evaluating the courses and the instructors. Regarding body-worn cameras, the NYPD has indicated that the roll-out of the one-year pilot program will not begin until the first quarter of 2017, a delay largely related to the requirements of the procurement process. The status of other tasks is also covered in the body of the report. As always, when reviewing the state of progress in each of the areas covered in the court orders, a caveat is appropriate. The details noted in the report, though important for tracking compliance, should not obscure the larger point of the reforms—namely,

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November 18, 2016 Page 3
ensuring constitutional, respectful, and accountable policing in the areas the court orders cover.
As you know, this report comes at a time of transition. In September, William Bratton stepped down as New York City’s police commissioner. The monitor team looks forward to continuing its collaborative dealings under Mr. Bratton’s successor, James O’Neill.
Further details on these and other subjects are contained in the report. Thank you for the court’s time and attention.

Enclosure

Respectfully submitted, /s/ Peter L. Zimroth
Peter L. Zimroth Monitor

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 4 of 57
Fourth Report of the Independent Monitor Peter L. Zimroth
November 18, 2016
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 5 of 57
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Edward Davis
Jennifer Eberhardt John MacDonald James McCabe
Jane Perlov

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TABLE OF CONTENTS Page
I. Introduction............................................................................................................. 1 II. Benchmarks and Standards for Defining Compliance............................................ 3 III. Policies.................................................................................................................... 4
A. Stop and Frisk Policies................................................................................ 4 B. Stop Report Form........................................................................................ 6 C. Racial Profiling Policies ............................................................................. 8 D. Policies Related to the Trespass Affidavit Program ................................... 8 E. New York City Housing Authority (NYCHA) Policies ............................. 9 F. Trespass Crimes Fact Sheet ...................................................................... 10 IV. Supervision ........................................................................................................... 11 V. Training................................................................................................................. 12 A. Training for Recruits................................................................................. 13 B. In-Service Training ................................................................................... 15
1. Command Level/Roll Call Training ............................................. 15 2. Investigative Encounters and Racial Profiling.............................. 16 3. Procedural Justice and Implicit Bias............................................. 17 4. Housing ......................................................................................... 18 C. Training for Newly Promoted Supervisors ............................................... 19 D. Specialized Training ................................................................................. 19 1. Plainclothes Training .................................................................... 19 2. Training Updates Based on New Stop Report .............................. 20 VI. Auditing ................................................................................................................ 21 A. QAD Auditing........................................................................................... 21
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1. SQF Audit Results ........................................................................ 23 2. Undocumented Stops .................................................................... 24
a. RAND Audits Results....................................................... 25 b. Police-Initiated Enforcement Audits................................. 27 c. Trespass Audit Results...................................................... 28 B. Self-Inspection of TAP Stops in the Bronx .............................................. 29 C. Early Identification System....................................................................... 30 VII. Performance Evaluation........................................................................................ 31 VIII. Body-Worn Cameras (BWC)................................................................................ 35 IX. Complaints and Discipline.................................................................................... 36 A. Investigations of Profiling Allegations ..................................................... 36 B. NYPD Handling of Substantiated CCRB Complaints.............................. 38 1. The Time It Takes to Resolve Complaints ................................... 40 2. Penalties ........................................................................................ 41 3. Reconsideration............................................................................. 43 X. Joint Remedial Process ......................................................................................... 45
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 8 of 57
Monitor’s Fourth Report
I. Introduction This is the fourth report of the Independent Monitor overseeing implementation of the
court orders and the parties’ agreements in the cases Floyd v. City of New York, Ligon v. City of New York and Davis v. City of New York.
The orders in the three cases require reforms related to stop and frisk, trespass enforcement (i.e., stops and arrests for trespass), and bias-free policing. In these areas, the orders require changes in policy, supervision, training, auditing, performance measurement, and handling of complaints and discipline. The orders also call for a one-year pilot program testing the use of body-worn cameras (BWC). This report details the state of progress towards compliance in each of these spheres.
The period since the monitor’s report in February 2016 has seen at least these significant positive developments:
(1) The NYPD’s Patrol Guide Section on investigative encounters has been amended to meet the requirements of the court orders;
(2) A new stop report was launched supporting the Patrol Guide changes; (3) New policies were written and should soon be implemented governing interior patrols in buildings enrolled in the Trespass Affidavit Program (TAP) and in New York City Housing (NYCHA) buildings; and (4) Some improvements in auditing were put in place and work continues on others. Still on the to-do list: the Department has not yet started in-service training on stop and frisk for all its members on patrol. Nor is there a plan yet for evaluating the courses and the instructors. On body-worn cameras, the NYPD has indicated that the roll-out of the one-year

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 9 of 57 I. Introduction
pilot program will not begin until the first quarter of 2017, a delay largely related to requirements of the procurement process. The status of other tasks is also covered in the body of the report.
As always, when reviewing the state of progress in each of the areas covered in the court orders, a caveat is appropriate. The details noted in this report, though important for tracking compliance, should not obscure the larger point of the reforms. Each individual requirement must work as part of a whole coherent system supporting the aim of the court orders—namely, ensuring constitutional, respectful and accountable policing in the areas the court orders cover. As this monitorship has consistently stressed, this is an achievable goal in New York City, dependent on sustained leadership, not just at Police Headquarters but also throughout the police ranks. Amid competing pressures, it is critical that these reforms remain a priority and that sufficient resources be devoted to their achievement.
This report comes at a time of transition. On September 16, 2016, William Bratton stepped down as New York City’s police commissioner. From the outset, Mr. Bratton embraced the reforms ordered by the court and agreed to by the Department. He said repeatedly and publicly that those reforms do not conflict with, and in fact support, effective policing that promotes safety for the City and members of the service. His leadership allowed the Department to work collaboratively with the monitor and the plaintiffs and helped facilitate the progress reported here and in earlier reports.
The monitor team looks forward to continuing that collaborative relationship under Mr. Bratton’s successor, Commissioner James O’Neill. In recent public statements, Commissioner O’Neill spoke of the deep wounds, especially among people of color, caused in part by what he referred to as the stop, question and frisk “debacle” of the past and the need to heal those wounds.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 10 of 57 II. Benchmarks and Standards for Defining Compliance
II. Benchmarks and Standards for Defining Compliance One of the monitor’s important functions is to report to the court on whether the City and
the NYPD are in “substantial compliance” with the court’s orders. The monitor continues to be in discussion with all the parties about how best to measure compliance. Nonetheless, it is appropriate now to set out some general considerations that will inform the monitor’s recommendation to the court.
Some aspects of judging “substantial compliance” are relatively straightforward, but many are not. For example, the court orders and agreements by the parties require certain changes in policies appearing in the NYPD Patrol Guide or other official NYPD documents. Determining whether the appropriate changes have been made just requires reading the documents.
Changing written policy, however, is not meaningful unless the change is implemented and sustained in the field. That requires that officers be appropriately trained and supervised, that the NYPD’s systems of rewards and discipline support the requirements, and that the Department has in place auditing and review mechanisms to detect when officers are not following the policies and effective processes to correct violations and minimize future violations. Here, assessing the adequacy of compliance is more complex, and the monitor team will be reviewing each of these areas.
For example, there is no single correct way to design an audit system or a curriculum for recruits or more experienced members of the service. The same holds true for other aspects of the remedial requirements. In assessing compliance, the monitor will be relying on the expertise of the monitor team, informed by substantial input from the NYPD, its experts, and the plaintiffs and their experts. The question at the end of the day will be whether each of these requirements,
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 11 of 57 III. Policies A. Stop and Frisk Policies
working together, can provide a system of constitutional, respectful policing as experienced by New York City’s residents.
Therefore, in addition to assessing compliance with respect to each of the specific courtordered requirements, the monitor team will be performing its own audits on sample stops and undertaking its own statistical reviews as part of determining whether the Department’s performance complies with the Fourth and Fourteenth Amendments to the Constitution.
Finally, as the goal of the court orders is to ensure that the NYPD incorporates procedures and processes that sustain constitutional and respectful policing, compliance cannot be judged in a single snapshot. Rather, the monitor will be looking for trends over time— whether performance is improving, deteriorating or remaining static.
As in prior reports, this report now describes the requirements of the court orders and discusses developments and the state of progress in each. III. Policies
A. Stop and Frisk Policies Under the court orders, as agreed to by the City and the Department, the NYPD Patrol Guide must:  State what constitutes a stop, when a stop may be conducted, when a frisk may be conducted and when a search may be conducted;  Require officers to document stops and frisks and the reasonable suspicion for each, both on a stop report form and in officers’ activity logs; and  Require supervisory review of stops, including an assessment of the constitutionality of the stop and not just that a stop report form (previously called a UF-250) was completed. In August 2015, the monitor submitted to the court the NYPD’s new procedures on stop and frisk, which are included in Patrol Guide (P.G.) 212-11, Investigative Encounters: Requests for Information, Common Law Inquiry and Level 3 Stops, which the court approved. The revised
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Patrol Guide meets the requirements of the court orders. It correctly states the legal standard for when an officer may stop a person (i.e., make a Terry stop) and includes a definition of reasonable suspicion. It states that an officer must have reasonable suspicion that the person stopped is armed and dangerous to frisk that person. The Patrol Guide also addresses encounters between officers and civilians that are less intrusive than a stop or an arrest. All such encounters are governed by the New York State Court of Appeals decision in People v. DeBour,1 which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures, P.G. 212-11, describe the standards that govern each level.
In March 2016, the monitor submitted and the court approved a new stop report form, described in Section III.B below. At the same time, the court approved changes to P.G. 212-11 so that the documentation requirements in P.G. 212-11 correspond to what appears on the new stop form.
Patrol Guide 212-11 now in effect requires documentation of all stops and makes more explicit the responsibilities of supervising officers up the chain of command. The supervisor is required to discuss the circumstances of the stop with the officer who made the stop, and then review the stop and any frisk or search, if conducted. If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk or an appropriate basis for the search, the supervisor must refer the officer for further

1

40 N.Y.2d 210 (1976).

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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 13 of 57 III. Policies B. Stop Report Form
action: instruction, additional training or other remedial action, including, if appropriate, discipline.
B. Stop Report Form The court orders and the parties’ agreements require that the NYPD develop and implement a new stop report form to be used by officers every time a person is stopped. In March 2016, the monitor submitted and the court approved the NYPD’s new stop report form. The Department requisitioned and distributed approximately 50,000 new forms to its commands and, on June 27, 2016, the Department directed that all members of the service use the new stop report form and cease using the prior report form. A copy of the new report form, PD 383-151 (03-16), is attached as Appendix 1. As required, the new stop report documents stops when they occur and any related frisk or search. It has a narrative section in which the officer describes in his or her own words the reasons for the stop and a separate narrative section for describing the reasons for the frisk and the search, if conducted. The court found that without narrative sections, the prior version of the stop form, which had only checkboxes for the factors leading to the stop, did not provide sufficient information to assess the legal sufficiency of the officer’s reasons for a stop, frisk or search. The new form also simplifies the checkboxes that had been in use and eliminates ones that led to rote justifications (“furtive movement,” “high crime area” and “suspicious bulge”). Now that the new form is in use, officers are required to provide descriptions of the facts and circumstances that contributed to the officer’s suspicions, and not merely to check a box. The stop report additionally has a section in which supervisors document the review currently required by NYPD policy (P.G. 212-11) and any follow-up action called for by that review. An officer’s supervisor must confirm that he or she reviewed the constitutionality of the
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stop and discussed the facts of the stop with the officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the supervisor was present on the scene; (4) the corresponding activity log entry was reviewed; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken, if appropriate.
The new stop report was the product of substantial work. In the summer and fall of 2015, a new form was piloted for 90 days in five precincts, one transit district and one housing police service area (PSA). During and after the pilot program, there was substantial discussion among the NYPD, the other parties and the monitor team about the content of the form—specifically, what information to collect and how the instructions should be phrased. All the parties understood that designing this form involved necessary trade-offs. The new stop report balances the several goals of such a form—documenting stop, question, frisk and search activity, providing guidance about when these interventions are permissible, and facilitating their review by supervisors and others in the Department. The form meets the requirements of the court orders and the parties’ agreements.
The NYPD has developed a new online records management system that will incorporate the new stop report form. The monitor has submitted the procedures for the new electronic stop report form to the court for approval. Once the stop report form goes online, officers will be able to access and prepare the new stop report form on their smartphones and tablets, making it easier for them to complete the form.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 15 of 57 III. Policies C. Racial Profiling Policies D. Policies Related to the Trespass Affidavit Program
C. Racial Profiling Policies The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the court on August 24, 2015. This Patrol Guide section states that race, ethnicity or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description that includes not just race, age, and gender, but other identifying characteristics or information. A person may not be targeted for stops simply because he or she is a member of a racial or ethnic group that appears more frequently in local crime suspect data. The section also includes a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: religion, creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status. The Department’s racial profiling policy, P.G. 203-25, meets the requirements of the court orders and parties’ agreements. As with the Department’s stop and frisk policy, substantial compliance regarding the racial profiling policy also requires that Department personnel be trained on the policy and that the Patrol Guide section be followed in practice. D. Policies Related to the Trespass Affidavit Program The court’s orders in Ligon v. City of New York require the NYPD to revise its procedure for patrolling buildings enrolled in the Trespass Affidavit Program (TAP), also known as Operation Clean Halls. TAP is a program in which building owners authorize the NYPD to conduct patrol activities inside and around their buildings, including, in some buildings, floor-tofloor inspections, called interior patrols or vertical patrols.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 16 of 57 III. Policies E. New York City Housing Authority (NYCHA) Policies
On May 31, 2016, the monitor submitted, and on June 2, 2016, the court approved, new NYPD procedures for interior patrols in TAP buildings (P.G. 212-59). According to the new procedures, stops inside and outside TAP buildings must comply with the NYPD’s stop and frisk policies, P.G. 212-11. The procedures also state that “mere presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information, nor does it constitute reasonable suspicion for a Level 3 Terry stop. The revised procedures governing stops in and around TAP buildings make the changes required by the court’s orders.
The NYPD is currently working with the parties and the monitor to finalize roll call training for interior patrols in TAP buildings. The NYPD expects to publish the new P.G. 21259, conduct the roll call training and implement the new procedures in early December.
E. New York City Housing Authority (NYCHA) Policies The settlement in Davis v. City of New York requires a new Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) that promotes constitutional interactions between NYPD officers and persons encountered during interior patrols. An agreed-upon Patrol Guide section was submitted by the parties with their settlement papers, and approved by the court. The Patrol Guide section states, among other things, that, without more, entering, being in or exiting a NYCHA building is not an “objective credible reason” justifying an officer’s approach and request for information. The settlement also included agreed-upon changes to NYPD training materials and a revised Trespass Crimes Fact Sheet, an NYPD form used by officers to describe the circumstances leading to or supporting an arrest for trespass (see Section III.F below). When the court approved the settlement on April 28, 2015, it approved these documents as well.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 17 of 57 III. Policies F. Trespass Crime Fact Sheet
The promulgation of the Patrol Guide section (P.G. 212-60) and the Trespass Crimes Fact Sheet, however, was delayed because the NYPD and the plaintiffs in Davis, Ligon and Floyd agreed that the procedures for NYCHA patrols (P.G. 212-60) should align as much as possible with the procedures for patrol of buildings enrolled in the Trespass Affidavit Program (P.G. 21259) and should be consistent with the stop-and-frisk procedures applicable to all investigative encounters (P.G. 212-11). Aligning these three policies took until May 2016.
On May 31, 2016, the monitor submitted, and on June 2, 2016, the court approved, revisions to P.G. 212-60. These changes were the result of significant discussions among the NYPD, the City Law Department, the plaintiffs in Davis and the plaintiffs in Ligon to produce policies for interior patrols in both NYCHA buildings and TAP buildings that are consistent with each other, that provide clear guidance to officers and that will result in interior patrols respecting the rights of the residents of those buildings and their guests.
The NYPD is currently working with the parties and the monitor to finalize roll call training for interior patrols in NYCHA buildings. The NYPD expects to publish the new P.G. 212-60 and the Trespass Crimes Fact Sheet, conduct the roll call training, and implement the new procedures in early December.
F. Trespass Crimes Fact Sheet As part of the Davis settlement, the parties agreed on a new form to be completed by officers when they make a trespass arrest in a NYCHA building (the Trespass Crimes Fact Sheet). The promulgation of this form was delayed because the Davis and Ligon plaintiffs and the Department agreed that there should be a single form used for trespass arrests in both NYCHA buildings and TAP buildings. The parties worked to create a Trespass Crimes Fact Sheet that will now be used for all trespass arrests in both TAP buildings and NYCHA buildings,
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 18 of 57 IV. Supervision
and the court approved the form on June 2, 2016. The form also combines the Trespass Crimes Fact Sheet with a supporting deposition that can be used by district attorneys in criminal proceedings. Both P.G. 212-59 and P.G. 212-60, the policies for interior patrols in TAP buildings and NYCHA buildings, respectively, now reference the Trespass Crimes Fact Sheet and require a supervisor to sign off on the form. The new form will be in use when the Department publishes P.G. 212-59 and P.G. 212-60. IV. Supervision
The court orders and the parties’ agreements require that supervisors review stop report forms and activity logs not just for completeness and accuracy, but for the constitutionality of the stop and, if conducted, the frisk and search. If an officer’s actions are improper, the officer’s supervisor must take corrective action.
The new Patrol Guide section 212-11 governing stops and frisks meets these requirements. It requires supervisors to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. The supervisor must determine whether the stop was based on reasonable suspicion of a felony or Penal Law misdemeanor; if a frisk was conducted, whether the frisk was supported by reasonable suspicion that the person was armed and dangerous; if a search was conducted, whether it was reasonable; and if force was used, whether the use of force was reasonable. The supervisor must direct the officer to make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer the officer for additional training or other remedial action, including, if appropriate, disciplinary action. The NYPD’s new written policies meet the requirements of the court orders and the parties’ agreements.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 19 of 57 V. Training
For these new stop and frisk policies to take hold, supervisors must play an increased leadership role. This is particularly true for sergeants, who are closest to the officers, and precinct and unit commanders, who set the tone. These supervisors must ensure that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented. Under the new procedures, supervisors must take a more active role in supervision, oversight, teaching and, when appropriate, discipline. V. Training
The monitor team has continued to spend many hours at the Police Academy observing classes and role-play scenarios on the subjects relevant to the monitor’s mandate—stop and frisk, racial profiling, and housing and interior patrols. The plaintiffs and their experts have observed some of this training. As noted in the monitor’s Second Report, the monitor team has provided the NYPD with recommendations for improvements in Academy training. Those recommendations covered the topics of teaching quality, curriculum development, course and teacher evaluation, and subject integration (for example, combining lessons on tactics and the legal principles being taught). Effective training requires well-written training materials and quality instruction so that the materials are communicated successfully. Another area discussed with the Department is the importance of regularly assessing the training program to evaluate whether members of the service are learning and retaining the material.
The NYPD now has a new Deputy Commissioner of Training, Dr. Tracie Keesee. Deputy Commissioner Keesee previously served in the Denver Police Department for 25 years and is a co-founder of the Center for Policing Equity, which promotes police transparency and accountability. Dr. Keesee has begun to make organizational changes: for example, the creation of a new branch of the Training Bureau called the Center for Innovations in Training and
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 20 of 57 V. Training A. Training for Recruits
Education. The Center will be responsible for coordinating and overseeing efforts to improve curriculum development and alignment, increase instructor development and instructor training, and enhance course and instructor evaluation. Richard Glover has been hired as the executive director of the Center. Mr. Glover was a member of the faculty at John Jay College of Criminal Justice and previously was the Chief of Training for the New York City Department of Education.
According to the NYPD, the Training Assessment and Instructor Development Units will be reviewing all training courses provided by the Department and implementing stringent professional standards, with the goal of improving the quality of training. To accomplish this goal, these units will need to conduct ongoing appraisals of instructor qualifications, training methodologies and whether officers and recruits learn the key concepts of the courses being evaluated. The Instructor Development Unit also will need to provide Department instructors with the knowledge and skills necessary to deliver effective classroom instruction.
A. Training for Recruits Training materials for Police Academy recruit classes on stop and frisk, racial profiling and interior patrols for TAP and NYCHA buildings were rewritten and approved by the court in April 2015. The materials for these courses undergo revisions as new NYPD policies are approved (e.g., P.G. 212-11, Investigative Encounters), and in response to continued review by the parties and the monitor team. For example, Policing Legally, the course devoted to teaching the law of investigative encounters to recruits, has been updated to reflect the new stop report form, including instruction on what to include in the narrative sections and emphasis on the newly enhanced role of supervisors in reviewing the constitutionality of stops. The course on interior patrols of TAP and NYCHA buildings will be updated to reflect the new procedures
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 21 of 57 V. Training A. Training for Recruits
governing those topics, P.G. 212-59 and P.G. 212-60. The recruit training material will also need to be revised as the parties finalize in-service training on procedural justice and implicit bias, and material on these topics can be incorporated in the recruit curriculum.
The NYPD is developing more scenario-based instruction for recruits. Scenarios for recruits are being taught in mock environments at the Academy and are scheduled to coincide with classroom instruction for the courses on the remedial topics: Policing Legally, Policing Impartially and Housing Interior Patrol. The parties are also developing additional scenarios on racial profiling and biased policing for use in both recruit and in-service training.
One recruit training segment identified in the Floyd liability and remedies decisions as needing revision is a training module conducted by the Firearms Training Section on the Characteristics of Armed Suspects.2 This training teaches recruits about factors that should raise their awareness when attempting to determine whether or not an individual they encounter is armed. The original PowerPoint and lesson plan reviewed by the court included a section on “unusual firearms,” such as guns in the shape of cell phones or pens. The court found that the material was misleading, as it could encourage officers to perform stops and frisks based just on bulges created by cell phones or other common objects, which officers could not reasonably suspect to be weapons. The NYPD deleted this section of the training.
In reviewing the training module, however, the parties identified other material in the training that needed to be revised to ensure the training did not convey messages inconsistent with the legal standards for conducting a frisk. The Risk Management Bureau worked with the Firearms and Tactics Section of the Police Academy and the plaintiffs and their experts to edit the material and create a new lesson plan, which has been circulated to the parties. The monitor

2

Floyd v. City of New York, 959 F. Supp. 2d 540, 614 (S.D.N.Y. 2013) (liability decision);

see Floyd v. City of New York, 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013) (remedies opinion).

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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 22 of 57 V. Training B. In-Service Training
team and the parties observed a recruit class being trained using the new lesson plan and will be working to finalize the training materials based on observations from that class.
B. In-Service Training 1. Command Level/Roll Call Training
In-service training is conducted at several venues, one of which is at the officer’s command. There, the training sergeant or others often conduct brief training sessions. The most common time for command training is at roll call. Roll call is at the beginning of the officer’s shift; it is a time when supervisors give assignments and alert officers to relevant information. Roll call training is important, but, of necessity, it cannot be lengthy or include sustained discussion between the officers and the trainer.
The Department has produced five short videos regarding P.G. 212-11 for roll call training to ensure that the training and information provided to NYPD members is uniform. The first of these videos is an introduction to the new stop-and-frisk procedures, and was played at successive roll calls in October 2015. The next three videos cover the DeBour levels of investigative encounters (Level 1 requests for information, Level 2 common-law right of inquiry and Level 3 Terry stops) and were played at successive roll calls in February, May and June 2016, respectively. The final video covers the proper documentation and supervision of stops, and was finalized after the new stop report form was approved. That video was played at successive roll calls in July 2016, contemporaneously with the release of the new stop report. These five videos remain available online to members of the service.
The Department is now preparing roll call videos that address the newly revised Patrol Guide sections regarding interior patrols of TAP and NYCHA buildings, P.G. 212-59 and P.G. 212-60. The parties are reviewing PowerPoint presentations and scripts for these videos, and the
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 23 of 57 V. Training B. In-Service Training
final videos are expected to be played at roll call after the policies are published, which the Department expects to do in early December.
2. Investigative Encounters and Racial Profiling Currently, all NYPD officers are required to attend in-service training at the Police Academy each year. The Department is working with the parties and the monitor to increase the amount of in-service training and develop a refresher course on the law and procedures for investigative encounters. It is contemplated that the course will include a PowerPoint presentation and interactive discussion in the morning and an afternoon of scenario and role-play training. The parties have exchanged and discussed several drafts of the lesson plan and PowerPoint presentation, beginning with a draft prepared by the NYPD in January. This process has been long because the parties understand the critical importance of this training and want to get it right. The training must cover the fundamental principles of stop, question, and frisk, trespass enforcement, and bias-free policing. The training must clearly convey the changes in NYPD procedures and what is expected of officers and supervisors regarding the documentation and supervision of stops. It also should explain why the training is important to the officers and the Department and provide members of the service some of the history that led to the training. The parties are now moving toward a final draft of this training. Academy instructors have conducted a run-through of the morning presentation for other instructors, members of the monitor team and plaintiffs. Substantive feedback has resulted in changes to the draft materials as well as to methods of delivery. The Academy is working on an afternoon session that will present scenarios and ask officers to assess the level of the encounter and determine which investigative measures they can legally use. There will also be role-playing exercises where officers and supervisors will prepare and review stop reports and determine as supervisors what
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follow-up action may be necessary. The NYPD is planning to conduct additional workshops of the in-service training with the parties and members of the service, and will pilot the training before it is finalized and approved for use Department-wide.
3. Procedural Justice and Implicit Bias The NYPD is developing two additional days of in-service training. One day will be dedicated to “procedural justice.” This is a phrase used to describe the necessity of treating civilians with respect, listening to them and explaining the officer’s actions. The Department has retained Professor Tracey Meares of Yale Law School to assist in the development of this training. As a foundation to fashion its curriculum, the Department is using material created by police departments in other cities and the National Initiative for Building Community Trust and Justice. The NYPD team is working with Professor Meares to draft modules that include discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. The training will include lectures, videos, audience participation and interactive exercises. The NYPD and Professor Meares gave a presentation on the current state of the draft curriculum to the monitor team and the parties in early August. A second day of in-service training day will be dedicated to training on implicit bias. This is the concept that everyone has biases of which he or she is not aware, arising from the particular environment (neighborhood, family, friends, media, etc.) in which he or she lives. The point of the training is to make officers more aware of what those biases are so that they do not interfere with the officers’ law enforcement functions. The Department has retained Professor
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Phillip Atiba Goff to assist in the development of this training.3 Dr. Goff is working with a team of instructors from the Recruit Training and Specialized Training Sections of the Police Academy. Dr. Goff presented a draft of the PowerPoint presentation to the monitor team and the parties in early August. The Department has also workshopped the training with experts from John Jay College, the Department of Justice, the Center for Policing Equity and other police departments.
The Department expects to conduct workshops of both the Procedural Justice module and the Implicit Bias module and distribute revised drafts of the lesson plans to the parties by the end of the year. The NYPD could then have a run-through of the training for the parties. The Department understands that the success of both these courses depends on the ability of its instructors to communicate the concepts, and it also recognizes the need to spend more time training a sufficient number of instructors to do this training.
Once the in-service trainings on procedural justice and implicit bias have been developed and approved, the Department anticipates adapting some of their content for training recruits, executives and specific specialized units, as appropriate.
4. Housing The Department is also working on an additional day of in-service training that will be offered exclusively to Housing officers. This training will be in addition to the roll call training on the revised Patrol Guide section 212-60. The additional one-day training will include instruction on the new P.G. 212-60 (interior patrols) and on NYCHA house rules, and officers will role-play scenarios that apply the law of investigative encounters to interior patrols in

3

Dr. Goff is a professor at John Jay College of Criminal Justice and the president and co-

founder of the Center for Policing Equity.

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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 26 of 57 V . Training C. Training For Newly Promoted Supervisors D. Specialized Training
NYCHA buildings. The training also provides an opportunity to integrate tactics training with the legal and policy training, to improve officer and civilian safety.
C. Training for Newly Promoted Supervisors Training for newly promoted sergeants, lieutenants, and captains is currently undergoing extensive revision. Members of the monitor team, the Academy’s Leadership Development group and the Risk Management Bureau, with input from the plaintiffs, have drafted revised training focusing on the expanded responsibilities of supervisors, particularly sergeants under P.G. 212-11, and on the new stop report form. The training will be more interactive than it was in the past. The group working on this training developed a series of online quizzes, allowing participants to see immediately how many people in the class chose each potential answer. This allows the instructor to gauge the knowledge level of the class and whether more time should be spent on particular topics. The training also will include body-worn camera footage, and participants will evaluate those encounters as though they were supervisors. A draft of the training module was presented to the parties and the monitor in June, revised materials were circulated in July, and in August and September a version of the training was tested with two new classes of sergeants and a new class of lieutenants. Judging from the classes the monitor team has observed, providing training on supervisory responsibilities along with a refresher on investigative encounters is important and necessary. Once the training module is finalized, it will be submitted for court approval. D. Specialized Training
1. Plainclothes Training The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers, including officers who will be joining a precinct-based anti-crime or
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conditions units, or any other unit that works in plainclothes. It is important to ensure that these officers get their own training on stop and frisk policies, because their work more often involves actively seeking to detect and apprehend criminals and because they are making a significant proportion of stops. The basic plainclothes course involves a combination of skills—tactical mindset, knowledge of the law and defensive tactics, among other things. The course should place greater emphasis on the integration of physical tactics, the law, and the dynamics of interpersonal encounters. Officers in plainclothes assignments must have an in-depth working knowledge of the law and how to use this knowledge to do their jobs more effectively and more safely, while at the same time protecting the rights of those encountered.
In previous training for plainclothes officers, the NYPD played a 40-minute video to provide instruction on investigative encounters. Although the video contained useful real-world examples, other parts of it were somewhat confusing and at odds with the new Patrol Guide section 212-11 and related trainings. The Department replaced the video with a lecture on investigative encounters using a PowerPoint presentation modeled on training materials previously approved by the court. The NYPD is currently working with the monitor team to expand the investigative encounters component of this training to include more practical training aimed specifically at plainclothes officers and a new section on the law of investigative encounters. The existing curriculum for the plainclothes course is being revamped to integrate these concepts. Focus groups with incumbent plainclothes officers took place in October, and a draft of the new course should be completed by the end of the year.
2. Training Updates Based on New Stop Report In addition to updating recruit training materials to reflect the new stop report, the Department also updated a number of other training modules for more senior officers to reflect
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the new procedures for documenting stops. Among the materials updated were reference materials on the Department’s Investigative Encounters Resources Center, which are now accessible to officers online. The Department also conducted a brief training session with the Department’s training sergeants regarding the procedures for the new stop report. VI. Auditing
In order to maintain the remedial reforms, the Department must have in place a system that permits it to discover and then correct deviations from NYPD policy and the law. For this reason, the Department’s auditing function is essential.
A. QAD Auditing The NYPD’s Quality Assurance Division (QAD) is responsible for evaluating compliance with the Department’s policies and procedures, including those relating to stop and frisk and trespass enforcement. QAD evaluates each precinct, transit district and housing PSA command, the unit that responds to demonstrations (the Strategic Response Group), each borough task force and the Detective Bureau. The audit procedures assess both compliance with constitutional standards and whether the paperwork has been properly prepared. The Department also performs audits to assess the extent to which stops and frisks are being conducted but not documented. QAD has made significant progress in changing the way the NYPD audits its activities to address shortcomings identified by the court. The changes include updating its audit methodology and the forms used to record audit findings to reflect the revisions to P.G. 212-11 and the implementation of the new stop report. These changes are being reviewed and discussed by the parties.
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QAD is currently conducting four types of audits relevant to the remedial measures: (1) stop, question and frisk audits; (2) trespass stops/arrest audits; (3) police-initiated enforcement audits; and (4) RAND audits (so called because they are based on an audit recommended by the RAND Corporation) to identify undocumented stops. Each is described more fully below, along with the results of QAD audits from the first and second quarters of 2016.
Regarding the QAD audits for the first and second quarters of 2016, which are described below, there are two things to note. First, during that time period, the NYPD was still using the old stop reports (Stop, Question and Frisk Report Worksheet), because the new stop report form had not yet been promulgated. The older form did not have a space for a narrative, and therefore the auditors looked to the officers’ activity logs for a narrative description of what led to the encounter and the frisk and search, if conducted. Second, although the stops that were reviewed were made after the NYPD revised its stop and frisk procedures (included in P.G. 212-11), the NYPD had not conducted its in-service stop and frisk training (which is still in the future) and many of the stops were made before the roll call training videos on investigative encounters were played in the precincts. The new stop report will more easily allow officers to articulate the reasons for their actions, and new training should improve the officers’ compliance with the NYPD’s policies and the Constitution. Our examination of QAD’s audits during this period did permit the monitor team to review QAD’s audit methodology, how it produces audit reports, and the worksheets that it uses to prepare and report on its audits.
In addition to conducting its own audits, QAD oversees a self-inspection program in which the Integrity Control Officer (ICO) in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for
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the month reviewed, the ICO must evaluate all of the stop reports. The parties are now reviewing a new self-inspection worksheet that QAD created for the ICOs to use.
1. SQF Audit Results QAD conducts SQF audits of every precinct and command each quarter. In 2016, QAD began using a sampling methodology developed with the monitor team and reviewed by the parties. The number of stops audited for a particular precinct depends on the number of stops made in that precinct during the previous three-month period. For precincts with fewer than 25 stops in that period, QAD reviews all the stops in the quarter. For precincts with more than 25 stops in the prior quarter, QAD audits a random sample of stops. The sampling methodology was developed so that over four quarters, QAD will have reviewed a sufficient number of stops to obtain not only a representative sample of stop reports for the city as a whole, but also a representative sample of stop reports from each precinct. For the first quarter of 2016, QAD evaluated 1,984 stop reports and activity log entries in 132 commands for compliance with the new Patrol Guide procedure. QAD determined that officers articulated individualized reasonable suspicion for the stop in 81 percent of the activity log entries audited during this period. Officers articulated the basis for the frisk and the basis for the search in 65 percent and 66 percent of the activity log entries audited during the same period, respectively. For the second quarter of 2016, QAD audited 130 commands and evaluated 2,156 stop reports and activity logs. QAD determined that 77 percent of the stop reports and activity logs articulated reasonable suspicion to justify the stop. The person stopped was frisked in two-thirds of the stops, and QAD determined that 71 percent of the stop reports and activity logs articulated reasonable suspicion to justify the frisk. Twenty-two percent of persons stopped were searched,
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and QAD determined that legal justification for the search appeared in the documents in 69 percent of the cases. QAD also looked for reported stops that appeared in both the QAD audit and the command’s self-inspection. QAD and the command were consistent in their evaluation of the reports in 94 percent of these stops.
As noted above, the audits conducted in the first and second quarters of 2016 were based on stops recorded using the old stop report, so the auditors were evaluating the encounter based on what was written in the officers’ activity logs. The new stop report form was developed out of recognition that an officer’s activity log is not the best place for officers to articulate and record the facts and observations supporting the officer’s reasonable suspicion. For that reason, the results of the audits from the first and second quarters of 2016 are not necessarily an adequate measure of compliance. However, they do raise a caution, and also provide a baseline from which to evaluate results from future audits.
Starting with the audits from the fourth quarter of 2016, the monitor team will be obtaining a sample of the stop reports that were audited by QAD, along with the QAD audits, so that the monitor team can evaluate the auditors’ work, and also review a sufficient number of stops to be representative of the city.
2. Undocumented Stops The NYPD has acknowledged that undocumented Level 3 Terry stops are a serious issue that needs to be addressed. As noted in Section III.B above, the parties worked hard to devise a new stop report, recognizing its importance in documenting stop, question, frisk and search activity, giving guidance about when these interventions are permissible, and facilitating their review by supervisors and others in the Department. If stop forms are not filled out when appropriate, these benefits will not be realized as contemplated. The Department’s leadership
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will find it more difficult to know what is actually happening on the street. A significant percentage of undocumented stops would undermine the Department’s and the monitor’s ability to assess compliance with the court orders.
There are three types of audits that QAD performs to determine the extent of the problem and ensure proper recordkeeping: (1) RAND audits, reviewing NYPD radio transmissions; (2) police-initiated enforcement audits, reviewing arrests that started as Level 3 Terry stops; and (3) trespass enforcement audits, reviewing trespass arrests that started as Level 3 Terry stops. The results of each of these audits, described below, show that the failure to document stops remains a problem and signal the need for continued action to fix the problem.
a. RAND Audits Results One way that QAD audits the underreporting of Level 3 Terry stops is by conducting what it calls RAND audits. In a RAND audit, the NYPD uses radio transmissions to identify instances in which stops appear to have been made, but a stop report was not recorded. QAD uses keyword searches of the NYPD’s Intergraph Computer Aided Dispatch (ICAD) to identify events that likely involved stop encounters. These keywords include “stopped,” “show-up,” “holding” and “warrant check.” QAD auditors then review the ICAD events, listen to the corresponding radio transmissions, and determine whether a corresponding stop report was prepared. QAD performs this test in two commands each week or eight commands per month, an increase from seven commands per month since the monitor’s last report. The results of QAD’s test are reported to the commanding officer, who is then required to investigate further and report back to QAD whether the encounter did, in fact, require a stop report and whether one had been filed. Commands must submit a response through Department channels within six weeks of the date of the audit report.
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The data below summarize QAD’s audits conducted in the first quarter of 2016 and the command responses to those audits. During this period, QAD audited 28 precincts. The keyword search located 630 ICAD events. After listening to the radio transmissions, the auditors identified 36 ICAD events as possible Level 3 Terry stops. Two events had stop reports in the SQF database; 34 did not.
Of the 34 ICAD events identified by the QAD as possible stops without a stop report, the investigation at the command determined that no stop report was required in 14 of those incidents. The following reasons were given:
 Two involved disputes among civilians, not stops to investigate crimes;  Eight were instances for which probable cause existed at the beginning of the
encounter;  One was an encounter identified by the officer as a Level 2 encounter rather than a
Terry stop;  One involved a truant and a “truant referral” was required, not a stop report;  One was an observation with no encounter; and  One was a car stop for an equipment violation.
Of the remaining 20 of the 34 ICAD events for which no stop report was in the SQF database, the commands agreed with QAD that a Level 3 Terry stop had occurred, requiring the preparation of a stop report. In six cases, a stop report was completed and on file in the command, but the stop reports had not been entered into the SQF database at the time of the QAD audit. For the other 14, the following actions were taken:
 Seven resulted in instructions or training for the officers who did not record the stop;  Three resulted in entries in the minor violations log4 for officers who did not record
the stop; and

4

The minor violations log is a logbook kept at each command that records minor

violations of Department rules by members of the service. The information in these logs is not

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 In four cases, no action was taken with respect to officers who did not record the stop.
For the second quarter of 2016, QAD conducted RAND audits in 22 commands, including 16 patrol precincts, four transit districts and two PSAs. There were 560 ICAD events featuring the words searched. Of those, QAD determined that 25 ICAD events appeared to be Level 3 Terry stops. A stop report was found for five of these 25 events.
Of the 20 ICAD events identified by QAD as possible undocumented stops, the command investigation determined that two encounters started with probable cause and, in one case, patrol officers were assisting a complainant, so that stop reports were not required. As yet, one command has not reported on two events. In the remaining 15 cases, the commands reporting agreed that a Level 3 Terry stop had occurred and a stop report was required. In two of these 15 cases, stop reports were on file at the command, but had not been entered into the SQF database at the time of the QAD audit. Commands took the following actions with respect to the remaining 13 cases:
 Eight resulted in instructions for the officers who did not record stops;  Two command disciplines were issued;  In one case, a minor violations log entry was made (see footnote 4 for a description of
the minor violations log); and  In two cases, no action was taken with respect to the officers who did not record the
stop. b. Police-Initiated Enforcement Audits
QAD also uses a “police-initiated enforcement” audit to detect undocumented stop encounters. In these audits, QAD looks at certain types of arrests and determines whether a stop preceded the arrest and, if so, whether a stop report form was prepared. The arrests examined are
tracked centrally, it does not become part of a member’s personnel record, and there are no penalties or additional consequences for being listed in the log.
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for criminal possession of a controlled substance, criminal possession of a weapon and arrests where the People of the State of New York are the complainants on the Complaint Report. Arrest documents and court affidavits are reviewed to evaluate whether the arrest involved a Terry stop and whether the officers prepared a stop report for the arrest, when required. For each command, QAD looks at up to 25 of these arrests. The results of QAD’s audits are sent to the commands, which review the audits and report back to QAD. The command responses note any disagreements with QAD’s findings and any corrective action taken to address deficiencies.
For the second quarter of 2016, QAD identified 124 police-initiated arrests that may have involved a Terry stop. The commands provided information showing that 25 of these arrests did not involve a Terry stop (in most cases, the officer had probable cause at the beginning of the encounter). For the remaining 99 arrests, which did involve a Terry stop, there was a stop report filed in the command for 13 of these arrests (13 percent).
c. Trespass Audit Results In the second quarter of 2016, as part of the police-initiated enforcement audit, QAD began evaluating criminal trespass arrests at NYCHA and TAP buildings. QAD conducted this audit to ascertain whether a Level 3 Terry stop was conducted during these arrests and, if so, whether a stop report was on file in the command. This review found 59 trespass arrests in TAP buildings, of which 32 were found to involve a likely Terry stop. A stop report was on file in only one of those 32 incidents (three percent). As for trespass arrests in NYCHA buildings, for the second quarter of 2016, the review found 162 trespass arrests. QAD identified 64 of those trespass arrests as potentially involving a Terry stop. The commands have provided information showing that three of these arrests did not
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involve a Terry stop. In 15 of the remaining 61 trespass arrests (25 percent), a stop report was on file in the command.
B. Self-Inspection of TAP Stops in the Bronx As part of the Ligon remedial order, the NYPD is required to develop procedures for ensuring that stop reports are completed for all trespass stops outside TAP buildings in the Bronx, and for reviewing the constitutionality of those stops. In an effort to meet this requirement, in April 2015 the NYPD began requiring ICOs in the Bronx to conduct monthly self-inspections of trespass stops at Bronx TAP buildings. After a review of these self-inspections, the monitor’s second report noted that the ICOs did not clearly identify the deficiencies in the stop reports and address them, including attention to when the stop reports did not articulate reasonable suspicion for the stop or for a frisk, when conducted. The Department’s Risk Management Bureau recognized these shortcomings in the ICOs’ reviews and conducted remedial training for Bronx ICOs and assistant ICOs in April 2016. The training included a refresher on stop and frisk, trespass enforcement and the TAP program, identified common errors in stop reports and activity logs, and emphasized the need to ensure proper documentation of stops. The Risk Management Bureau also noted that the ICOs did not include in their reports stops that were in the SQF database and should have been in the ICOs’ assessment reports. After the training in April 2016, the ICOs continued to conduct self-assessments of trespass stops at Bronx TAP buildings. They reviewed the seven stop reports on file for May and June 2016. It appears that the ICOs still had not identified and addressed deficiencies in the stop reports.
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In early June 2016, the court approved an operations order creating a pilot program for increased supervisory review of criminal trespass stops in the Bronx. The pilot program requires review at the precinct level of all Terry stops for criminal trespass in or outside of TAP buildings in the Bronx. The precinct ICO must review a sample of stop reports for completeness, accuracy and constitutionality of the underlying stop. The ICO must then track the results and confer with officers and their supervisors when deficient stop reports are identified. Monthly reports from the program will be submitted to the Risk Management Bureau for further analysis.
The monitor has not yet received the monthly assessment reports from the court-approved Bronx TAP pilot program. However, if the pilot program is to meet the requirements of the Ligon court order, several issues must be addressed. The ICO reviews of stop reports and activity logs must be more thorough. Commanding officers and the Bronx Borough Command need to take ownership of this effort. They have responsibility for ensuring that the stops themselves are lawful, that the self-inspections are done well and that deficiencies are dealt with. And the issue of underreporting needs to be addressed and fixed. Otherwise, it is impossible to know whether the stops reviewed by the ICOs are all the stops being conducted.
C. Early Identification System The NYPD currently tracks officer performance using several databases and behavioral indicators to identify members of the service who display at-risk behavior. These indicators include disciplinary actions, substandard evaluations, civil lawsuits, Civilian Complaint Review Board (CCRB) complaints, use of force complaints, racial profiling complaints, supervisor recommendations and information from the NYPD’s personnel system. The Performance Analysis Section of the Risk Management Bureau then identifies members of the service
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to be placed in a performance monitoring program. This, however, is just the beginning of what a robust early identification system would look like.
More robust systems include centralized databases that collect and analyze information relating to at-risk behavior and provide automated alerts to supervisors so that patterns of at-risk behaviors can be addressed and corrected before more serious misconduct occurs. In determining what data should trigger an alert to a supervisor, some systems examine not only the quantity of certain behaviors (e.g., three uses of force in a year or two vehicle accidents), but also compare an officer’s behavior with the behavior of his or her peers in similar locations and assignments. Another feature of a robust system is the ability to identify troubling patterns and trends in commands, precincts, squads and units.
The Department has stated that it is in the early stages of developing an early identification system. It is beginning by automating the databases used by the Performance Evaluation Section and adding information to those databases regarding lawsuits and claims against the City. The Department has yet to decide what triggers might be used, what additional databases will be included, how supervisors will be provided the alerts and how supervisors will use those alerts to address at-risk behavior. NYPD will provide a briefing on these issues for the parties in the near future. VII. Performance Evaluation
The Department’s development of a robust system for evaluating officers is critical for success of the remedial efforts, because evaluations affect many of the incentives that can improve or worsen officer behavior.
In the past, as noted earlier, officer evaluations were based largely on “numbers” (i.e., the quantity of enforcement activity). Officers felt pressure to produce these numbers in order to
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receive a positive evaluation. Otherwise, they feared, they would be disadvantaged in many ways—for example, in assignments, promotions, overtime, time off and transfers.
As a policy matter, the Department’s leaders have stated, including at Compstat meetings, that they are interested in quality, not quantity. But that shift has yet to be incorporated in the Department’s performance evaluation system, something police officers care a lot about. A serious effort is under way by the Department to create a new evaluation system that reflects the quantity-to-quality change. This is not a simple task. Numbers are not meaningless, but rather need to be put into proper perspective and considered along with other important qualities and policing goals, such as good judgment, responsiveness, community engagement, problem-solving and adherence to law and policy.
As things stand, the Department’s activity reporting system, known as “Quest for Excellence” or “Quest,” requires officers to complete daily activity reports recording their activities, including stops, citations, summons, arrests and other enforcement actions. Supervisors then review these reports on a weekly, monthly and quarterly basis. It does not appear that the quality or legality of the enforcement activities gets evaluated, just the number of activities reported.
The NYPD surveyed members about ways to improve the current evaluation system and researched best practices used by police departments around the country. A primary goal of the new evaluation system is to convey to officers that they will be judged by the quality of their policing, rather than the quantity of their enforcement actions.
The NYPD’s current draft of its new performance evaluation system includes three components: a Police Officer Profile and Evaluation, a Supervisor’s Comment Form, and an Officer Self-Report Form.
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The Police Officer Profile is designed to provide a supervisor with information about the officer and how the officer’s work compares to other officers in his or her platoon, in the borough and citywide. It includes links to the officer’s reports regarding matters like arrests and criminal complaints and summonses but, importantly, does not have a link to the officer’s stop reports. Instead, the officer’s supervisor would be provided information on the officer’s stop reports when an insufficient basis for the stop, frisk or search is noted, as well as information regarding any follow-up action from those stops.
The draft form calls for the supervisor to rate the officer in 12 performance areas, including problem identification, judgment, responsiveness, community interaction and implementation of proactive policing strategies. After discussions with the parties and at the monitor’s recommendation, the NYPD draft now includes “Application of Law and Procedures” among the performance areas to be rated in the Officer Profile. As part of that performance area, the supervisor is to evaluate whether the officer understands and appropriately applies the law and Department procedures and guidelines, including for arrests, summonses, stops, frisks and searches.
The NYPD plans to create a supervisor comment form to allow a member’s supervisor to provide feedback on any of the performance areas covered in the evaluation. This form could be used for positive or negative feedback.
The officer’s daily self-report will replace the current daily activity report, and officers will no longer be required to report daily on activities that are already tallied in NYPD databases, such as arrests and stops. Officers will have to record their daily assignment and sector, and any A or B summonses until those items are recorded electronically by the NYPD. In addition, the
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self-report provides an opportunity for the officer to report on notable accomplishments, community engagement and interaction, and problem-solving efforts.
Under the draft performance evaluation framework, the supervisor comment forms and officer self-report forms would feed into the officer’s profile, allowing supervisors to take the information into account for their evaluations. As described by the NYPD, evaluations would be quarterly, and the four evaluations per year would replace Quest’s monthly and quarterly evaluations, as well as the current annual evaluation system.
The plaintiffs and the monitor have reviewed and provided comments on draft elements of the NYPD’s contemplated performance evaluation system. The Department recently disseminated revised drafts to the parties. In addition to working on these drafts, the NYPD needs to focus on a related challenge: development of policies and business rules for how supervisors should weigh and evaluate the data in an officer’s profile.
At a point when the development of the performance evaluation system is further along, the monitor will assess whether it appropriately weighs constitutional policing in the areas covered by the court orders and agreements.
It should be noted that the draft evaluation system as initially envisioned covered the evaluation of officers only, and did not change the evaluation system for sergeants, lieutenants, captains and other supervisors. The Department now anticipates that the new evaluation system will be expanded to cover sergeants and lieutenants after it is first implemented for officers. New performance measures and objectives for supervisors will need to be established, and these tools should include the supervisor’s review of his or her subordinates’ stop and frisk and trespass enforcement activities and whether the supervisor adequately addressed any insufficiencies.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 42 of 57 VIII. Body-Worn Cameras (BWC)
VIII. Body-Worn Cameras (BWC) In its August 12, 2013 remedial order, the court directed that the NYPD “institute a pilot
project in which body-worn cameras will be worn for a one-year period.” Floyd v. City of New York, 959 F. Supp. 2d 668, 685 (S.D.N.Y. 2013). The purpose of the BWC pilot program is to provide the public, the NYPD and the court with information to evaluate its benefits. Under the order, the monitor is required to establish procedures for reviewing recordings of stops by supervisors, preserving stop recordings for use in verifying complaints, and assessing the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks. At the end of the one-year pilot, the monitor will work with the parties to “determine whether the benefits of the cameras outweigh their financial, administrative, and other costs.” Id.
The monitor team has been working with the NYPD and plaintiffs to plan a pilot randomized control trial that will provide data necessary to evaluate the impact cameras have on the behavior of officers and civilians. As described in the monitor’s Third Report of August 9, 2016, the plan calls for the deployment of approximately 1,000 cameras, with about 50 cameras in each of 20 “treatment” precincts. The activities of officers wearing BWCs will be compared to those of officers with similar assignments in 20 “control” precincts. All five boroughs have at least one precinct included in the treatment group.
The NYPD is currently in the midst of a procurement process for the BWCs mandated by law; at the same time, it is developing policies and procedures for their use. With respect to policies and procedures, the NYPD sought feedback on draft policies by meeting with stakeholders, plaintiffs and the monitor team, and also fielding surveys of officers and NYC residents. The NYPD is preparing a public report responding to the feedback and explaining its reasons for accepting or rejecting proposed changes to the draft BWC policy. The Department
35

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 43 of 57 IX. Complaints and Disciplines A. Investigations of Profiling Allegations
will then distribute its proposed policies to the parties for review and, when finalized, the policies will be submitted for approval by the monitor and the court.
On procurement, the Department has selected a vendor and negotiated a contract with the vendor chosen. A public hearing on the selection was held on October 13.
Approvals are now needed by the Law Department, the Mayor’s Office of Contract Services, the Mayor’s Office of Management and Budget, the Department of Investigation, the Deputy Mayor and the Comptroller’s Office. Once a contract is in place, the vendor will have to prepare and deliver cameras and software to meet NYPD specifications.
In addition, the Department needs to draft training materials for the officers who will be wearing the cameras and their supervisors. IX. Complaints and Discipline
A. Investigations of Profiling Allegations The court orders and the parties’ agreements require the NYPD to begin tracking and investigating civilian complaints related to racial profiling and other allegations of bias. As a result, the NYPD has changed the way allegations of racial profiling and bias-based policing are categorized, processed, tracked and investigated. All profiling allegations, no matter how they are made to the NYPD (e.g., in writing, in a 311 or 911 call, by a call or visit to a precinct or to the Internal Affairs Bureau (IAB)), are now referred to IAB. The complaints are logged into the IAB’s case management system and then assigned for investigation. Since January 2015, these investigations have been assigned to investigative units attached to the borough (not precinct) command or to the relevant bureau command (e.g., the Transit Bureau command). If a complaint also includes an allegation of corruption, IAB investigators will conduct the investigation.
36

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 44 of 57 IX. Complaints and Disciplines A. Investigations of Profiling Allegations
The IAB has drafted guidelines for profiling investigations and training for its Command Center, IAB investigators and the borough investigative units. The material covers the new policies for racial profiling and bias-based policing and investigative techniques to be used for profiling complaints. The parties have reviewed the draft training materials and investigative guidelines and have exchanged comments and edits to the documents. The NYPD will be preparing new drafts for the parties to review so that the training materials and investigative guidelines can be finalized this year.
In 2015, the Department opened investigations of 509 allegations of profiling involving 475 officers. From January 1, 2016 to June 30, 2016, the NYPD opened investigations of 347 allegations of profiling involving 338 officers. Race (now combined with color, ethnicity and nationality) is the category with the most profiling allegations. Other categories included age, gender, religion, disability, gender identity, sexual orientation and housing status. For the complaints from 2015 and the first six months of 2016, the Department has completed its investigations of 394 allegations. Of the 394 allegations, officers were exonerated on 11 allegations, 279 allegations were determined to be unfounded and 104 were determined to be unsubstantiated.5 No allegation of profiling has yet been substantiated. Proving bias is difficult, especially with respect to an individual stop or other enforcement action. That is why it is important to get the training and procedures right, and why the monitor team will continue to

5

“Unfounded” means there is sufficient credible evidence to believe that the officer did

not commit the alleged act. “Unsubstantiated” means the available evidence is insufficient to

determine whether the officer did or did not commit misconduct. “Exonerated” means the officer

was found to have committed the act alleged, but the officer’s actions were determined to be

lawful.

37

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 45 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
review samples of profiling investigations to evaluate their thoroughness. In addition, the monitor will explore how the NYPD analyzes data on its stops and frisks and other enforcement activities, and how it uses data on profiling allegations to analyze trends and patterns of complaints.
Prior to December 2015, allegations of racial profiling or other bias-based policing made to the Civilian Complaint Review Board (CCRB) were documented by the CCRB in its database, but not investigated by the CCRB or referred to the NYPD for investigation. After a meeting with the monitor, IAB personnel and the CCRB, the Department and the CCRB agreed that, going forward, the CCRB would notify the IAB when a complainant states that he or she was profiled. The NYPD would then log in the complaint and assign it for investigation. The profiling complaints investigated by the NYPD from January 2015 to June 2016 include 188 allegations made initially to the CCRB.
B. NYPD Handling of Substantiated CCRB Complaints Under the court orders, the NYPD must improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the Department Advocate’s Office (DAO) must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint. These requirements arise from the court’s findings that the NYPD failed to impose meaningful discipline when the CCRB had determined that officers engaged in unconstitutional stops and frisks. The court cited the percentage of cases in which the DAO declined to pursue discipline in substantiated cases in the years 2007-2012, and noted that in cases in which discipline was pursued, DAO “consistently
38

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 46 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
downgraded the discipline” recommended by CCRB and recommended instructions, the least severe form of discipline, in the majority of cases in most years.
By agreement with the CCRB, the NYPD has changed the way it handles cases substantiated by the CCRB. The CCRB, not the NYPD, now prosecutes the more serious cases—those involving charges and specifications—when it substantiates the allegation. These cases are tried by the CCRB’s Administrative Prosecutions Unit (APU) in the trial room of the NYPD in front of an administrative law judge. However, the NYPD can decide, in limited circumstances, that the CCRB should not prosecute the case, but that the NYPD should retain it and either prosecute the case itself, reduce the level of discipline so that charges and specifications are no longer served, or take no disciplinary action.
The NYPD and the CCRB also have established a new “reconsideration process” when the DAO disagrees with the CCRB’s decision to substantiate an allegation or disagrees with the CCRB’s recommended discipline. In such instances, the DAO requests in writing that the CCRB reconsider the case and states why. Then the CCRB can modify its substantiation decision or its recommendation for discipline, or it can decide that its original decision was correct. Both the DAO’s recommendations and the CCRB’s recommendations are sent to the police commissioner for a final decision.
The CCRB formally approved the reconsideration process in a December 2014 Board resolution. Many of the substantiated CCRB cases sent to the NYPD in 2014 were closed before the reconsideration process was put in place, but a large number of them were still being reviewed by the NYPD in 2015, after the reconsideration process was in place. There were also a small number of 2014 cases decided before the reconsideration process was officially adopted
39

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 47 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
by the CCRB, for which the DAO emailed an informal request for reconsideration that was considered by the CCRB.
The DAO has provided the monitor team with data regarding complaints in which allegations relating to stops, questions, frisks, searches, or trespass arrests were substantiated by the CCRB and sent to the NYPD in 2014, 2015 and the first five months of 2016. We report below on several issues raised by the data.
1. The Time It Takes to Resolve Complaints A good disciplinary system should investigate civilian complaints, make decisions and impose discipline, where appropriate, in a timely manner. For many of the substantiated complaints, there is a significant amount of time between when the CCRB substantiates the complaint and sends it to the NYPD and when a final decision is made regarding the disposition of the complaint and any discipline is imposed. The NYPD has provided data on which cases are closed and which are still active after the substantiated complaint is sent to the NYPD. In 2014, the NYPD received substantiated allegations relating to stops, questions, frisks or searches involving 179 members of the service. Of those, 142 cases have been closed, while 37 remain active. Of those cases that are still active, 34 cases involved charges and specifications, while three involved less serious discipline. In 2015, the NYPD received substantiated allegations relating to stops, questions, frisks or searches involving 271 members of the service. Of those, 126 cases have been closed, while 146 remain active. In the first five months of 2016, the NYPD received substantiated complaints involving 58 members of the service. Only two of these cases have been closed. Cases in which the recommended discipline is charges and specifications generally take longer than cases involving command discipline, training or instructions. The monitor team will
40

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 48 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
be exploring with the NYPD whether there are steps it can take to shorten this time period, such as examining the time it takes to serve members of the service with the charges and specifications.
2. Penalties There are several levels of discipline that can be imposed on NYPD members of the service. The most serious level, charges and specifications, leads to either a trial or a negotiated plea. The resulting penalty will often be a loss of vacation days, and can, in the most serious cases, result in termination. No penalty is imposed if the trial results in a not-guilty decision. Another level of discipline is known as command discipline. In command discipline cases, the final decision regarding penalty is made at the command level by the Commanding Officer (CO) in the precinct. For Command Discipline A, a CO can impose up to five days loss of vacation, training or instructions, or the CO can “warn and admonish” the member. For Command Discipline B, the CO can impose up to 10 days loss of vacation, or impose training or instructions, or “warn and admonish” the member. 2014. The NYPD has closed 142 of the substantiated CCRB cases that were received by the NYPD in 2014. Of these 142 cases, 28 cases resulted in the loss of vacation days either after trial or through a negotiated plea; six resulted in Command Discipline B; 18 resulted in Command Discipline A; 28 resulted in instructions only; 29 others resulted in training only; and two resulted in both training and instructions. In 10 other cases, the member was found not guilty after trial, and in 14 cases, the case was closed with no disciplinary action. Seven cases were closed administratively because the officer resigned, the CCRB withdrew its decision to substantiate the case, or the statute of limitations lapsed.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 49 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
2015. The NYPD has closed 126 of the substantiated CCRB cases that the Department received from the CCRB in 2015. Of these 126 cases, two cases resulted in the loss of vacation days after trial or through a plea agreement; eight resulted in Command Discipline B; 41 resulted in Command Discipline A; 11 resulted in instructions only; 40 others resulted in training only; and 19 resulted in both training and instructions. In one case, the member was found not guilty after trial, and in four cases, the case was closed with no disciplinary action.
2016. Through June 2016, the NYPD received substantiated allegations relating to stops, questions, frisks or searches involving 58 members of the service. Of those, only two cases have been closed, while 56 remain active. In both closed cases, the member of the service was given instructions and training.
The monitor team will be examining the level of discipline the Department is imposing and whether the penalties imposed by the Department have changed over time. To some extent, the level of discipline depends—at least initially—on the recommendations of the CCRB. The CCRB has noted in its reports that it has shifted its emphasis from charges and specifications to command discipline and training and instructions. In addition, the court-approved stop and frisk policy in P.G. 212-11 notes that “[m]inor or inadvertent mistakes in documentation or isolated cases of erroneous but good-faith stops or frisks by members of the service should ordinarily be addressed through instruction and training.” There will not be a full picture of Department discipline until more of the APU cases from 2015 are complete.
There is one issue that we will be exploring more closely: cases in which the closing disposition was Command Discipline A or Command Discipline B, but the discipline did not include any loss of vacation days or deducted time. According to the NYPD data, for the substantiated CCRB cases sent to the NYPD in 2014 and 2015, there were 69 Command
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 50 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
Discipline cases. Of those 69 cases, 60 cases resulted in no loss of time or days, including nine Command Discipline B cases. Instead, the penalty imposed for these command discipline cases was instructions, training or a “warn and admonish.” At this point, the monitor is making no judgment about the reasonableness of these outcomes because more needs to be known about the circumstances of these cases.
3. Reconsideration Both the CCRB and the DAO have noted that the Department is now concurring with the CCRB’s recommendations for disposition and discipline to a greater extent than in prior years. There appear to be two reasons for this increase in agreement. The first is the reconsideration process, and the second is a shift in the CCRB’s recommendations towards command discipline, training and instructions, and away from charges and specifications for stop and frisk cases. The monitor will continue to examine reconsideration cases to evaluate whether the reconsideration process and NYPD’s decisions are consistent with the court orders. 2014. As noted above, NYPD closed 142 of the substantiated CCRB cases it received in 2014. The DAO agreed with the initial disposition and recommendation of the CCRB in 71 of these 142 cases, or 50 percent. In addition, there were eight cases in which the DAO agreed with the CCRB’s recommendation of command discipline but changed the command discipline from a B-CD to the somewhat less severe A-CD. (According to the NYPD, if the DAO agrees with a CCRB command discipline recommendation, the DAO does not make a reconsideration request to the CCRB if it changes the recommendation from a B-CD to an A-CD.) In 22 of the 142 cases (15 percent), the DAO requested that the CCRB reconsider its recommendations. Of those 22 cases, the CCRB agreed with the DAO’s reconsideration request in seven cases. In nine cases, the CCRB agreed to reduce its penalty recommendation, but not as
43

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 51 of 57 IX. Complaints and Disciplines B. NYPD Handling of Substantiated CCRB Complaints
far as the DAO suggested. And in five cases, the CCRB disagreed with the DAO’s reconsideration request and maintained its recommended discipline. In those five cases, the police commissioner agreed with the DAO’s recommendation.
In 37 of the 142 cases, the NYPD changed the disposition or discipline imposed without a reconsideration request. There were 16 cases in which the CCRB recommended charges and specifications, but the NYPD decided to retain jurisdiction of the case and not pursue a trial (the penalty was reduced in 10 cases and no discipline was imposed in six others). In 21 other cases, the NYPD changed the disposition or penalty before the reconsideration process was put in place (the penalty was reduced in 15 cases and no disciplinary action was taken in six cases).
2015. As noted above, the NYPD has closed 126 of the substantiated CCRB cases it received in 2015. The level of agreement between the NYPD and the CCRB rose from 2014 to 2015. The DAO agreed with the initial disposition and penalty recommendation of the CCRB in 72 of the 126 cases (57 percent). In addition, there were 12 cases in which the DAO agreed with the CCRB’s recommendation of command discipline but changed the command discipline from a B-CD to an A-CD. There were five additional cases in which the CCRB recommended both command discipline and training, but the DAO recommended training as the appropriate penalty. In 23 of the 126 closed cases (18 percent), the DAO requested that the CCRB reconsider its recommendations. Of those 23 reconsideration cases, the CCRB agreed with the DAO’s reconsideration request in eight cases. In five cases, the CCRB agreed to reduce its penalty recommendation, but not as far as the DAO suggested. And in ten cases, the CCRB disagreed with the DAO’s reconsideration request and maintained its recommended disposition or discipline. The police commissioner in those cases agreed with nine of the DAO’s recommendations and one of the CCRB’s recommendations.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 52 of 57 X. Joint Remedial Process
In 2015, there were fewer CCRB cases (14) in which the NYPD changed the disposition or discipline imposed without a reconsideration request. In six cases, the DAO reduced the penalty recommended to the police commissioner without a reconsideration request, and in one case, the DAO recommended and the police commissioner agreed that no disciplinary action should be imposed. There were no 2015 cases in which the CCRB recommended charges and specifications, but the NYPD decided to retain jurisdiction of the case and not pursue a trial. In two cases, the DAO agreed with the CCRB penalty recommendation, but the police commissioner reduced the penalty. And there were five cases in which the NYPD determined that the penalty should be increased from the penalty recommended by the CCRB. X. Joint Remedial Process
A “Joint Remedial Process” was ordered by the court and agreed to by the parties. It is a process guided by the court-appointed facilitator, Hon. Ariel Belen (Ret.), to solicit input from stakeholders and affected communities on possible reforms regarding stop and frisk and trespass enforcement in addition to those already required by the court. At the end of the process, Judge Belen will prepare a report with recommendations on potential additional reforms for the consideration of the monitor and the court. Under the court order, these proposed remedial measures must be no broader than necessary to bring the NYPD’s use of stop and frisk and trespass arrests into compliance with the Fourth and Fourteenth Amendments.
Judge Belen is conducting the Joint Remedial Process in several phases. The first phase involved meetings with stakeholders intended to lay the foundation for phase two—the focus group phase. Phase two began with focus groups of those most affected by the NYPD’s stop and frisk and trespass arrest practices. Focus groups began in October 2015 and continued through June 2016. Sixty-four focus group sessions were conducted. Questions for the focus group were
45

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 53 of 57 X. Joint Remedial Process
prepared in consultation with the parties and an advisory committee composed of community organizations, NYPD leadership, religious leaders and academics. Each focus group had approximately eight to ten residents of New York City. Participants predominantly included young black and Latino men, though there has also been substantial representation of women and LGBTQ youth, homeless people and NYCHA residents. The facilitator also conducted focus groups specifically composed of NYCHA housing residents to discuss issues pertaining to policing in and around residential buildings.
In phase three, the facilitator has begun to meet with community organizations, local and national police reform advocates, the clergy, the NYPD, national and international police organizations, and representatives of the Floyd, Davis, and Ligon plaintiff teams, to discuss possible additional reforms that they may want the facilitator to consider.
The fourth phase of the project will be a series of community forums around New York City. There will be at least one community forum in each borough. They will be structured, and the discussions will be based in large part on the information gathered during the focus groups and subsequent meetings. The aim of the community forums is to solicit community input on additional remedial measures to the NYPD that would supplement the immediate reforms identified in the court’s orders.
The facilitator anticipates that the forums will contain an educational segment including a short video presentation and accompanying infographic. This video and infographic will provide a brief historical overview of the litigation that will include a framing of the problem and current efforts towards reform, and will orient attendees toward imagining creative solutions. Each event will also include breakout segments. Recommendations gathered from the breakout sessions should be concrete reforms or areas of consideration for improving police-community
46

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 54 of 57 X. Joint Remedial Process
relations. Although the community forums will be primarily intended to collect community input about possible reforms, they may also serve as opportunities to develop further dialogue between the NYPD and the communities they serve.
The facilitator will share the information gathered from the process described above with stakeholders and the parties, seek their feedback, and prepare a report with possible recommendations for additional reforms to the monitor and the court.
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Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 55 of 57
Appendix 1

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 56 of 57

Case 1:08-cv-01034-AT-HBP Document 536 Filed 11/18/16 Page 57 of 57

 
 Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 1 of 16
Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12/

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
. ~----------,-~ ,.-.-,......-.,.--,.----,------------------------~-----------X
DAVID FLOYD, et. al.,

DOCUMENT
ELECTRONICALLY FILE])
DOC#:_ _ _ _ _ _ __
DATE FILED: 1/J..<f /f:l
•

-against-

Plaintiffs, 08 Civ. OJ 034 (AT)

THE CITY OF NEW YORK, et. al.,

Defendants.

STIPULATION OF' SETTLEM11:NT OF COUNSEL FEES, COSTS, EXPENSES
AND ORDER WHEREAS, on January 31, 2008, Plaintiffs in the above-captioned action filed a Complaint pursuant to 42 U.S.C. § 1983; the Fourth and Fourteenth Amendments to the United States Constitution; the Constitution and laws of the State of New York; and
WHEREAS, on August 12, 2013 the Cowt imposed a final order of permanent injunction and ordered several tbrms of permanent rei ief; and
WHEREAS, on October 31, 2014 the United States Court of Appeals for the Second Circuit affirmed the District Comi's Opinion of July 30, 2014 denying the police unions motion to intervene, granted the City of New York's motion to withdraw the appeal of this matter with prejudice, and remanded this case back to the District Court for further proceedings as may be appropriate in the circumstances; and
WHEREAS, the Parties now seek to reso!vc the issue of counsel fees, costs and expenses, without further litigation, on terms just and fair to all Patties and hereby entet· into the within Stipulation of Settlement of Counsel Fees, Costs and Expenses and Order. ("Fee Stipulation"); and

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 2 of 16
Case 1:08-cV-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 2 of 16

WHEREAS, the terms of this Fee Stipulation were extensively and vigorously negotiated in good faith, over a period of several months; and

WHEREAS, the Defendants and the Plaintiffs agree that, having obtained the abovedescribed relief, Plaintiffs are entitled to an award of reasonable attorneys' fees and costs, and

WHEREAS, the negotiations have resulted in this Fee Stipulation, which is subject to Court Approval, settles the counsel fees, costs and expenses in 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. DEFINITIONS

l. "Fee Stipulation" shall mean this Stipulation of Settlement of Counsel Fees, Costs

and Expenses and Order, executed by the Parties in the above-captioned action.

2.

"Effective Date" shall mean (30) thirty days following the "Final Approval Date''

defined below, and shall also be the date upon which this Fee Stipulation enters into effect.

3. "Final Approval Date" shall mean the date on which this Court endorses this Fee

Stipulation and following any court proceedings and/or rulings, if applicable, in connection with

the approval of this Fee Stipulation.

4. "Plaintiffs" shall mean the Class Representatives and Class Members.

5. "Parties" shall mean Plaintiffs and Defendants.

6. "Class Representatives" shall mean the Named Plaintiffs in the above captioned

action.

7. "Settlement Class" shall mean the class of Plaintiffs agreed upon by the Parties.

8.

"Class Members" shall mean all members of the Settlement Class.

2

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 3 of 16 Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 3 of 16
9. "Class Counsel" shall mean Plaintiffs' attorneys of record in the above-captioned action.
10. "Defendants" shall mean the City of New York, the New York City Police Department, and their predecessors, successors, or assignees together with past, present and future oftlcials, employees, representatives, and agents..
11. "City" shall mean the City ofNew York. 12. "NYPD" shall mean the New York City Police Department. 13. "Floyd/Ligon Remedial Order" shall mean the joint Opinion and Order issued in the above-captioned action, dated August 12, 2013 (ECF No.s 372, 373), as modified by the 01·der Modifying Remedial Order, dated July 30, 2014 (ECF No. 466).
B. INTRODUCTION 1. The Parties enter into this Fee Stipulation after arm's length good faith negotiations for the purpose of avoiding the burdens of further litigation over the payment of counsel fees, costs and expenses in this action.
2. 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.
C. COUNSEL FEES, COSTS AND EXPENSES FOR LITIGATION THROUGH OCTOBER31,2014 1. The City shall pay future periodic payments and up-front cash at a cost in the sum of ten-million four-hundred thirty thousand dollars ($ i 0,430,000.00) for counsel fees, and eight-hundred twenty-thousand dollars ($820,000.00) for costs and expenses to Class Counsel, and the Plaintiffs hereby agree to accept said payment in full satisfaction of all claims for attorneys' fees, costs, and expenses, in, arising fl·om, or in connection with this action, rrom the
3

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 4 of 16 Case 1:os:cv-01034-AT-H BP · Document 539-1 Filed 12/23/16 Page 4 of 16
beginning of time through and until October 31, 2014. Plaintiffs agree that payment slulll be made by check as tallows: $3,003,097.75 to Beldock, Levine & Hoffman, LLP, $700,000.00 payable to BARCO Assignments Ltd. and delivered to Kipnes Crowley Group, LLC, to fund the purchase of an annuity to provide future periodic payments to Jonathan C. Moore, Esq., on behalf of Moore & Goodman, LLP, more fully described in Exhibit A, $4,667,660.73 to the Center for Constitutional Rights, and $2,879,241.52 to Covington & Burling, LLP. These (4) four payments shall be made within (60) sixty days from the Effective Date of this Stipulation and Order. No post-judgement interest shall accrue if payment is issued within 60 days from the Effective Date of this Stipulation and Order. Any payment received beyond the 60 day period shall accrue interest as provided by the Federal Rules of Civi I Procedure.
D. COUNSRL rtk!i:S, COSTS AND EXPENSES FROMNOVEMUER 1,2014 UNTILtERMlNATIONOFTHE COURT'S JURISDICTION
1. The City agrees to pay reasonable counsel fees, costs and expenses to Class Counsel for time and expenses incurred in this matter, from November 1, 2014 until the Court's jurisdiction in this matter has terminated, and the Plaintiffs hereby agree to accept said payment in full satisfaction of all claims for attorneys' fees, costs and expenses, in, arising from, or in connection with this action, during that time period. To be compensated for fees, costs and expenses accrued during this time, Class Counsel agrees to first submit to the City, all invoices for their time and expenses incurred, with a description of the associated expenses and services rendered, annexed thereto, and allow the City sixty (60) days from the City's receipt of both the invoices and descriptions, for the purposes of their review and comment.
2. Within 45 days of the Effective Date of this Stipulation and Order, the Plaintiffs will submit to the City a statement for fees and costs incurred for the period of November l, 2014 through and including the date of the Effective Date of this Stipulation and Order.
4

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 5 of 16 ·· ·Case 1:08-cv-01034-AT-'-HBP Document 539~1 ·Filed 12/23/16 Page 5 of 16

Thereafter, Class Counsel agrees to submit to the City at six month intervals, additional requests

for reimbursement of reasonable counsel fees, costs and expenses. Class Counsel agrees to

submit a single joint application for fees, costs and expenses, inclusive of all counsel fees, costs

and expenses for the time period for which Class Counsel seeks compensation. Class Counsel

further agrees to engage in good~faith discussions and negotiations, if applicable, concerning the

associated fees, costs and expenses, and further agrees to provide the City with additional

informafton and/or documentation upon request, concerning the associated fees, costs and

expenses that would reasonably assist the City in its review process.

3.

After the City has received the requisite documents and information and has had

at least sixty (60) days to review, comment, and after the Parties have engaged in good-faith

discussions and negotiations with Class Counsel, if applicable, concerning the associated fees,

costs and expenses, the Class Counsel may then submit the associated fee demand to the Court.

Any dispute over fees, costs and expenses shall be adjudicated by the Court. The City reserves

its right to object to any application for such fees, costs and expenses. Alternatively, if the

Parties are able to resolve a request for fees, costs and expenses by Class Counsel, the Parties

shall submit a fee stipulation regarding the request, to the Court for approval.

E. RELEASE
1. In consideration of the payment set forth in C(l) above, the Plaintiffs individually and on behalf of their respective heirs, executors, administrators, personal representatives, successors and assigns of each of themselves hereby jointly and severally release and forever discharge the City and NYPD, including without limitation their predecessors, successors, or assignees together with past, present and future officials, employees, representatives, and agents and their respective heirs, executors, administrators, personal representatives, and transferees and each of them from any and all claims for fees, costs, and expenses arising from or in connection
5

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 6 of 16 Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12123/16 Page 6 of 16

with the above-captioned action through October 31, 2014, and this Fee Stipulation shall be

deemed a release to that effect.

2. This Fee Stipulation resolves all claims for attorneys' fees, costs, and expenses

accruing from the beginning of time through the duration of the Court's retention of jurisdiction,

in accordance with the provisions of this Fee Stipulation, as set f01ih in paragraphs C and D of

this Fee Stipulation.

3. Each of the undersigned represents that he or she has been duly authorized by

their respective clients, to enter into this Fee Stipulation. This authorization was recently

confirmed by two of the named plaintiffs, Lalit Clarkson and David Ourlicht. Recent repeated

attempts to contact David Floyd and Deon Dennis were unsuccessful.

4.

Facsimile signatures are acceptable for execution and filing of this Fee

Stipulation.

F. APPLICATION AND PARTIES BOUND
1. This Fee Stipulation applies to, and is binding upon the Plaintiffs and the Defendants, including the City's officers, agents, employees, successors, and assigns. This fee Stipulation is enforceable only by the Class Representatives and the Defendants. The undersigned Class Counsel certify that they are authorized to enter into and consent to the terms and conditions of this Fee Stipulation and to execute and legally bind the Plaintiffs to the Fee Stipulation. The undersigned Counsel of the Defendants certifies that they are authorized to enter into and consent to the terms and conditions of this Fee Stipulation and to execute and legally bind the Defendants to this Fee Stipulation.

6

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 7 of 16 · Case 1:08-cv-01034"AT-HBP Document539-l · Filed 12/23/16 PageT of 16
G. NOTIFICATION OF PARTIES UNDER THE SETTLEMENT STIPULATION AND ORDER
1. All notices contemplated by this Stipulation, shall be delivered by hand and by
email as follows:
Baher Azmy, Esq. Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 TeL (212) 614-6439 dcharney@cctjustice.org
Philip 1. Irwin, Esq. Covington & Burling LLP 620 Eighth A venue New York, NY 10018 TeL (212) 841-1000 pirwin@cov .com
Jonathan Moore, Esq. Beldock Levine & Hoffman, LLP 99 Park Avenue, Suite 1600 New York, NY 10016 TeL (212) 490-0900 jmoore@BLHNY.com
Thomas Giovanni, Esq. Amatullah K. Booth, Esq. New York City Law Department Office ofthe Corporation Counsel I00 Church Street New York, NY 10007 Tel. (212) 356-3534 abooth@law .nyc.gov tgiovanni@law.nyc.gov
H. AJ>PROVAL ORDIJ:R~ COURT .HJJUSDJCTION1 AND TERMINATION OF THIS STIPULATION
1. As soon as practicable after execution of this Fee Stipulation, but not later than
(15) fifteen days after execution of the Stipulation, Class Counsel shall submit to the Court the
7

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 8 of 16 Case 1:08'-cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 8 of 16
Fee Stipulation and a motion seeking entry of an order requesting approval of the terms of the Fee Stipulation.
2. On or after the Final Approval Date, the Parties will jointly request that the Court enter this Fee Stipulation as an order. The Court shall retain jurisdiction over this action for the purposes of adopting any orders resulting from the Fee Stipulation.
3. The terms ofthis Fee Stipulation shall be a full, final, and complete resolution of the counsel fees, costs and expenses in this action. Notwithstanding the foregoing, in the event that any appeals or petitions are taken or filed by the Parties regarding the Court's approval of the Fee Stipulation in this action, any and all obligations required to be undertaken pursuant to this Fee Stipulation by Defendants are stayed, pending the final determination of any such appeals or petitions. The Fee Stipulation shall not become effective nor shall the Defendants be required to undetiake any obligations in the event that the final determination of any such appeals or petitions, result in a rejection of the settlement, as set forth in this Fee Stipulation.
I. NULLIFICATION 1. In the event the Court does not approve this Fee Stipulation, the Parties shall meet and confer in good faith to determine whether to agree upon a modified Fee Stipulation. If they are unable to do so, this Fee Stipulation shall become null and void.
8

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 9 of 16 Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 9 of 16

Baber Azmy, Esq. Center for Constitutional Rights 666 Broadway, 7111 Floor New York, NY 10012 Tel. (212) 614-6439
bazmy(d?ccriusti<.:c. org

SIGNATURE BLOCKS
A.

PhilipJ. Irwin, Esq. Jonathan Moore, Esq.

Covington &

Beldock Levine &

Burling LLP

Hoffman, LLP

620 Eighth Avenue 99 Park Avenue,

New York, NY

Suite 1600

10018

New York, NY 10016

Tel. (212) 841-1000 Tel. (212) 490-0900

ph>Vin@cbv:coni i·inoote(ajBLHNY.cDm

Amatullah K. Booth, Esq. New York City Law Department Office of the

fl~ l_L..:_..

Dated: New York, New York
ilt~t:ii; Uld
SOORDE :

9

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 10 of 16 Case 1:08--cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 10 of 16 -
[Exhibit A]
Future Periodic Pavments Periodic payments made according to the schedule as follows (the "Periodic Payments"): PQ._y:ee: Jomtthan C. Moore
Beginning 6/112018, $50,000.00 annually, guaranteed for 4 years, with the last guaranteed payment on 6/1/2021;
Begilming 1/15/2026,$10,720.85 monthly, guaranteed for 60 months (5 years), with the
last guaranteed payment on 12/15/2020. (cost of annuity: $700,000.00)
Consent to Non~Oualified Assignment
Payee acknowledges and agrees that the City shall assign its liability to make the Periodic Payments set forth above to Barco Assignments Ltd. ("the Assignee"). The Assignee's obligation for payment of the Periodic Payments shaH be no greater than that of the City (whether by judgment or agreement) immediately preceding the assignment of the Periodic Payments obligation.
Such assignment, when made, shall be accepted by Payee without right of rejection and shall completely release and discharge the City from the Periodic Payments obligation assigned to the Assignee. Payee recognizes that, upon such assignment, the Assignee shall be the sole obligor with respect to the Periodic Payments obligation, and that all other releases with respect to the Periodic Payments obligation that pertain to the liability of the City shall thereupon become final, irrevocable and absolute.
Liberty Mutual Insurance Company will provide a Certificate of Guarantee that allows for Liberty Mutual Insurance Company to assume the responsibility to make any and all payments under the annuity contract in the event that Liberty Life Assurance Company of

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 11 of 16 Case 1:08-cv-01034-AT-HBP Document 539-t Filed 12/23/16 · Page ·11 of 16
Boston were unable to make said payments. Liberty Life Assurance Company of Boston will distribute a Notice of Financial Commitment to BARCO Assignments Ltd. with the contract. Stipulation Regarding Settlement Obligations And Novation
It is understood that the City is not a guarantor or insurer with respect to the aforementioned annuity. The purpose of this stipulation is to make clear that the obligations and responsibilities of the City are satisfied upon issuance of the aforementioned settlement monies and the execution of the assignment agreement.
It is agreed that the City will assign the obligation to make the specified periodic payments to the Assignee. The obligation of the City to make periodic payments shall, by this novation, become the sole and exclusive duty of the Assignee, and the terms and conditions of payments shall remain unchanged in lieu of the substitution of the Assignee for the obligations of the City.
Execution of the assignment agreement and funding ofthe annuity will absolutely and completely discharge the City from any further future periodic payment obligation. If either the Assignee or the issuer of the annuity contract purchased by Assignee to make the payment obligation specified above fail to make payments or become insolvent or bankrupt, Payee or Payee's heirs or representatives' sole remedy to enforce the payment obligations assigned shall be against Assignee, the guarantors, Liberty Mutual Insurance Company and Liberty Life Assurance Company of Boston, and/or other responsible party other than the City will have absolutely no future periodic payment obligations to Payee under those circumstances. Right to Purchase nn Annuitv
The Assignee reserves the right to fund the liability to make the Periodic Payments through the purchase of an annuity policy from Liberty Life Assurance Company of Boston

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 12 of 16
Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 12 of 16- - -
("Annuity Issuer"). The Assignee shall be the sole owner of the annuity policy and shall have all rights of ownership. The Assignee may have Liberty Life Assurance Company of Boston mail payments directly to the Payee. The Payee, or a duly authorized representative of Payee, shall be responsible for maintaining a current mailing address for Payee with Liberty Life Assurance Company of Boston. Payee's Rights to Payments
Payee acknowledges that the Periodic Payments cannot be accelerated, deferred, increased or decreased by any Payee; nor shall any Payee have the power to sell, mortgage, encumber, or anticipate the Periodic Payments, or any part thereof, by assignment or otherwise.
l)nyee's nenet'icbn;v
Any payments to be made after the death of Payee, Jonathan C. Moore, pursuant to the terms of this Settlement Agreement shall be made to Carol R. Sharpe, his spouse, or to any such person or entity as shall be designated in writing by Payee to the Assignee. If no person or entity is so designated by Payee, or if the person designated is not living at the time of the Payee's death, such payments shall be made to the estate of the Payee. Payee may request in writing that Assignee change the beneficiary designation under this Agreement. Assignee will do so but will not be liable, however, for any payment made prior to receipt of the request or so soon thereafter that payment could not reasonably be stopped. No such designation, nor any revocation thereof, sh£lll be effective unless it is in writing and delivered to the Insurer's Assignee. The designation must be in a form acceptable to the Insurer's Assignee before such payments are made. Discharge of Obligation
The obligation assumed by the Assignee to make each Periodic Payment shall be fully discharged upon the mailing of a valid check or electronic funds mmsfer in the amount of such

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 13 of 16 Case 1:08-cv-01034-AT-HBP Document 539:.1 Filed 12/23/16 Page 13 of 16
payment on or before the due date to the last address or account on record for the Payee or Beneficiary with the Annuity Issuer. If the Payee or Beneficiary notifies the Assignee that any check or electronic funds transfer was not received, the Assignee shall direct the Annuity Issuer to initiate a stop payment action and, upon confirmation that such check was not previously negotiated or electronic funds transfer deposited, shall have the Ammity Issuer process a replacement payment.
Pavec ReJ1resex1tntive
If at any time any Payee is for any reason legally incapable of acting on such Payee's own behalf, all notices, designations, or instruments required or permitted to be executed by or delivered to such Payee and all payments required to be made to such Payee shall be executed and delivered to or by, and paid to, any legal guardian, conservator, custodian, or trustee (any of the foregoing being hereinafter referred to as a "Representative") appointed to act for such Payee or with respect to such Payee's property. All payments made to any Representative shall be held and applied by such Representative solely for the benefit of the Payee for whom such representative acts.

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 14 of 16 Case 1:08-cv-01034-AT-HBP Document 539-1 Filed 12/23/16 Page 14 of 16

7/2001
Non-Qualified Assignment and Release of Periodic Payment Obligation

"Payee (Attorney)" Jonathan C. Moore

"Assignor"

City of New York

"Assignee"

Barco Assignments Ltd.

"Annuity Issuer"

Liberty Life Assurance Company of Boston

"Effective Date"

This Agreement is made and entered into by and between the parties hereto as of the Effective Date with reference to the following facts:

A. Payee has negotiated a settlement that results in the obligation of Assignor to make periodic payments to Payee as stated in Addendum No.1 (the "Periodic Payments"); and

B.

The parties desire to effect an assignment

of Assignor's periodic payment liabilities

to Assignee.

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the parties agree as follows:

1.

The Assignor hereby assigns and the

Assignee hereby assumes all of the

Assignor's liability to make the Periodic

Payments. The Assignee assumes no

liability to make any payment not

specified in Addendum No.1.

2.

The Assignee's liability to make the

Periodic Payments is no greater than that

of the Assignor immediately preceding

this Agreement. Assignee is not required

to set aside specific assets to secure the

Periodic Payments. The Attorney has no

rights against lhe Assignee greater than a

general creditor. None of the Periodic

Payments may be accelerated, deferred,

increased or decreased and may not be anticipated, sold, assigned or encumbered.

3.

The obligation assumed by Assignee with

respect to any required payment shall be

discharged upon the mailing on or before

the due date of a valid check in the amount

specified to the address of record.

4.

This Agreement shall be governed by and

interpreted in accordance with the laws of

New York.

5.

The Assignee may fund the Periodic

Payments by purchasing an annuity

conh·act or funding agreement issued by

the Annuity Issuer. All rights of

ownership and control of such annuity

contract or funding agreement shall be and

remain vested in the Assignee exclusively.

6.

The Assignee may have the Annuity Issuer

send payment under any annuity contract

or funding agreement purchased

hereunder directly to the payee(s)

specified in Addendum No. 1. Such

direction of payments shall be solely for

the Assignee's convenience and shall not

provide the payee with any rights of

ownership or control over the annuity

contract, funding agreement or against the

Annuity Issuer.

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 15 of 16 Case 1:08-cv-01034-AT~HBP Document-539~1 >Filed 12/23/16 Page 15--of 16

7.

Assignee's liability to make the Periodic

Payments shall continue without

diminution regardless of any bankruptcy

or insolvency of the Assignor.

8.

In the event that the Settlement is declared

terminated by a court of law this

Agreement shall terminate. The Assignee

shall then assign ownership of any annuity

contract or funding agreement purchased

hereunder to Assignor, and Assignee's

liability for the Periodic Payments shall

tenninate.

This Agreement shall be binding upon the respective representatives, heirs, successors and assigns of the Payee, the Assignor and the Assignee and upon any person or entity that may assert any right hereunder or to any of the Periodic Payments.
10. Payee hereby accepts Assignee's assumption of all liability for the Periodic Payments and hereby releases Assignor from all liability for the Periodic Payments.

Assignee: Barco Assi~nments Ltd.
B
Authorized Representative Title

·. :horizeci Repres~JJtative
Title 11/-ry ~~ t~

Case 1:08-cv-01034-AT-HBP Document 540 Filed 01/24/17 Page 16 of 16 CaseT:OS-cv-01034-AT-HBP· ·oocument 539-1 Filed 12/23/16 Page 16 of 16- · ·
Addendum No.1 Description of Periodic Payments
Payee Jonathan C. Moore Beginning 611/2018,$50,000.00 annually, guaranteed for 4 years, with the last guaranteed payment on 6/1/2021; Beginning 1/15/2026, $10,720.85 monthly, guaranteed for 60 months (5 years), with the last guaranteed payment on 12/15/2020. Beneficiary: Carol R. Sharpe, spouse Payee may request in writing that Assignee change the beneficiary designation under this agreement. Assignee will do so but will not be liable, however, for any payment made prior to receipt of the request or so soon thereafter that payment could not reasonably be stopped.
Initials
PayeedtwJ
Assignee

 
 Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 1 of 58
Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@apks.com
June 29, 2017
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Sixth Report of the Independent Monitor: The NYPD’s Body-Worn Camera Pilot–Research and Evaluation Plan
Dear Judge Torres: I am pleased to attach the monitor’s sixth report, which describes the
methodology used to choose the NYPD officers who will be participating in its one-year body-worn camera pilot program. The report also describes the current thinking about how the monitor will evaluate the pilot.
Respectfully submitted, /s/ Peter L. Zimroth Peter L. Zimroth Monitor Enclosure
Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, NY 10019-9710 | www.apks.com 79281472v1

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 2 of 58
Sixth Report of the Independent Monitor The NYPD’s Body-Worn Camera Pilot: Research and Evaluation Plan
Peter L. Zimroth June 29, 2017
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 3 of 58
MONITOR TEAM Peter L. Zimroth Monitor Richard Jerome Deputy Monitor Anthony A. Braga
Cassandra Chandler Jennifer Eberhardt Demosthenes Long John MacDonald
James McCabe Jane Perlov

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 4 of 58
TABLE OF CONTENTS Page
INTRODUCTION .......................................................................................................................... 1 I. The Body-Worn Camera Pilot Program ............................................................................. 2 II. The Design of the Randomized Controlled Trial................................................................ 3
A. Precincts Excluded from the Field Experiment ...................................................... 6 B. Choosing the 40 Camera and Control Precincts ..................................................... 7 C. Matching and Randomization ................................................................................. 8 D. Randomization of Precincts and Assessment of Cluster Balance........................... 9 E. Comparability of NYPD Officers in Camera and Control Precincts.................... 12 III. Outcome Measures for the Body-Worn Camera Pilot...................................................... 15 A. Impact of Cameras on the Civility of Police-Citizen Interactions........................ 15 B. Impact of Cameras on Policing Activity............................................................... 16 C. Impact of BWCs on Police Lawfulness ................................................................ 17 D. Impact of Cameras on Police-Community Relations............................................ 18 IV. Public Housing.................................................................................................................. 19
i

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 5 of 58
INTRODUCTION On April 27, 2017, the New York City Police Department (NYPD) launched its body-
worn camera (BWC) pilot program, with 57 officers in the third platoon of the 34 Precinct in Manhattan wearing cameras. One month later, the program was extended to a second precinct, the 60 Precinct in Brooklyn, with 49 officers wearing cameras. When the pilot is fully implemented, approximately 1,200 officers in 20 precincts will be wearing cameras for a oneyear period pursuant to the requirements of the amended remedial order in Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (Remedial Order at Floyd Dkt. No. 372, Amended Remedial Order at Floyd Dkt. No. 522). The goal of the pilot program is to assess the costs and benefits of deploying cameras and whether deployment results in reducing unconstitutional stops and frisks.
The monitor’s research and evaluation design for the BWC pilot program was developed by Professor Anthony Braga of Northeastern University and other members of the monitor team. This report describes that plan, providing details about how the camera and control precincts were selected and matched and how the results of the camera experiment will be judged.
In capsule, Professor Braga identified 20 pairs of precincts, matched in terms of demographics, socio-economic characteristics, crime and police activity. Care was taken to ensure that the officers in each precinct pair were also similar in terms of demographics, length of service, rank and citizen complaints. Then, in each pair, one precinct was randomly assigned to have cameras (the treatment precinct), and the other was assigned to be without cameras (the control precinct).
As for evaluating the cameras’ impact, the plan anticipates using four sets of outcome measures: civility of police-citizen interactions, arrest numbers and other policing activities,
1

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 6 of 58
police lawfulness, and police–community relations. To accomplish this, the monitor team will analyze pre-test and post-test data for officers in the camera and control groups collected from the NYPD and the Civilian Complaint Review Board. Data from community surveys will be used to assess police-community relations. In the camera precincts, responses from before and after camera deployment will be compared to look for any significant differences. Data from camera and control precincts will also be compared to ascertain whether any change is the result of some event or circumstance unrelated to the cameras.
I. The Body-Worn Camera Pilot Program
The Remedial Order in Floyd noted the potential benefits of outfitting NYPD officers with body-worn cameras. Those possible benefits included creating objective records of stop and frisk encounters, encouraging lawful and respectful police-citizen interaction, alleviating mistrust between the NYPD and the public, and offering a way to help determine the validity of accusations of police misconduct. The court order directed the NYPD to work with the courtappointed independent monitor to conduct a one-year pilot program to determine whether the benefits of the cameras outweigh their financial, administrative, and other costs and whether the program should be expanded or terminated. The monitor was charged with establishing procedures for the review of stop recordings by supervisors and senior managers, for preserving stop recordings, and for measuring the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks.
The Remedial Order further called for the one-year camera pilot to be implemented in the NYPD precinct with the highest number of stops reported in 2012 in each of the five boroughs– identified as the 23, 40, 75, 103, and 120 Precincts. After considerable consultation with
2

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 7 of 58
representatives from the NYPD’s Risk Management Bureau, the Information Technology Bureau, the Office of the Chief of the Department, and the Office of Management, Analysis and Planning, it was determined that the selection of the five NYPD commands was not the best way to design a rigorous evaluation of the pilot program. First, the precincts with the highest reported number of stops in 2012 were no longer the precincts with the most stops in 2015 and 2016.1 Second, dictating which commands would receive body-worn cameras meant that there could not be a rigorous randomized experimental design in which commands would be randomly assigned to treatment and control conditions.2 Without a randomized controlled trial design, the monitor and the NYPD would not be able to know for sure the benefits of the cameras. Thus, the monitor team recommended and the court approved a modification of the remedial order that required a more rigorous randomized controlled trial, the components of which are described below.
II. The Design of the Randomized Controlled Trial
Randomized experimental designs allow researchers to assume that the only systematic difference between the control and treatment groups is an intervention, such as the presence of
1 The number of reported stops made by NYPD officers plummeted from 532,911 in 2012 to 22,939 in 2015. The relative ranks of NYPD precincts also shifted. In 2012, the 75 Precinct was ranked 1 with 24,408 reported stops, the 40 Precinct was ranked 3 with 18,276 reported stops, the 103 Precinct was ranked 6 with 12,986 reported stops, the 120 Precinct was ranked 7 with 12,368 reported stops, and the 23 Precinct was ranked 10 with 11,095 reported stops. In 2015, the 75 Precinct was ranked 13 with 543 reported stops, the 40 Precinct was ranked 2 with 927 reported stops, the 103 Precinct was ranked 51 with 160 reported stops, the 120 Precinct was ranked 11 with 557 reported stops, and the 23 Precinct was ranked 23 with 340 reported stops. 2 One of the key benefits of using a randomized experimental design is the ability to produce a high degree of confidence in the observed effects. This is ultimately achieved through greater control of extraneous factors or threats to validity. It is important to move from correlation closer to causality: this is what well-executed and highquality research designs allow. See Donald T. Campbell and Julian C. Stanley. 1966. Experimental and quasiexperimental designs for research. Chicago: Rand McNally.
3

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 8 of 58
cameras; this permits a clear assessment of effects of the intervention.3 The camera pilot is using cluster randomization, a variation of the classic design in which clusters (groups) of subjects, rather than individual subjects, are randomly allocated to treatment and control conditions.4 The NYPD experiment calls for officers to be randomly allocated by precinct to the treatment group (with cameras) or comparison group (without cameras).
The cluster design will enable the evaluation to control for treatment “contamination” across individual officers and civilians. As a body-worn camera experiment in Rialto, California, suggested, officers with body-worn cameras could influence the behavior of officers without cameras if they work simultaneously in the same area and interact with the same people.5 Similarly, the exposure to body-worn cameras through a subset of officers in an area could influence how civilians in that area interact with the police more broadly. Such contamination undermines the ability to detect intervention effects because both treatment and control officers (and civilians) could be modifying their behaviors due to the presence of cameras. Randomly allocating groups of officers who work in distinct precincts to have cameras or not limits the contamination problem.
The random allocation of units of analysis smaller than precincts, such as sectors within precincts, was considered, but ultimately rejected. Depending on calls for service and other demands for police service, patrol officers sometimes work in other sectors within precincts, and this cross-sector work would cause contamination issues.
3 William R. Shadish, Thomas D. Cook, and Donald T. Campbell. 2002. Experimental and quasi-experimental designs for generalized causal inference. Boston: Houghton Mifflin. 4 Frederick Mosteller and Robert F. Boruch, eds. 2002. Evidence matters: Randomized trials in education research. Washington, DC: Brookings Institution Press; David M. Murray. 1998. Design and analysis of group-randomized trials. New York: Oxford University Press. 5 Barak Ariel, William Farrar and Alex Sutherland. 2015. The effect of police body-worn cameras on use of force and citizens’ complaints against the police: A randomized controlled trial. Journal of Quantitative Criminology, 31 (3): 509–535.
4

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 9 of 58
For the NYPD pilot program, rather than eligible precincts being ranked by the number of stop reports in each precinct, they were ranked according to the 2012-2015 mean yearly counts of complaints handled by New York City’s Civilian Complaint Review Board (CCRB). This was thought to be a better way to rank precincts because of the dramatic decline in reported stops between 2012 and 2015. Moreover, a 2012 study by the CCRB showed that the police precincts with the highest number of civilian complaints against officers had the highest stop rates.6 The top-ranked 40 precincts were then matched into 20 pairs based on CCRB counts, crime, police activity, and neighborhood characteristics. In each pair, one precinct was randomly assigned to the group receiving cameras and one to the comparison group. By the pilot’s conclusion, it is anticipated that at least 1,200 NYPD officers in the treatment group will have worn cameras (20 precincts x 60 officers per precinct), having been paired with 1,200 officers in the control group not wearing them.
Ensuring an “apples to apples” comparison of officers in the treatment and control groups required identifying a well-defined group of officers—here, by selecting all officers assigned to a specific shift or unit. Specifically, cameras will be provided to all uniformed patrol officers working the third platoon (3:00 pm to midnight shift) in the treatment precincts. On average, each platoon has approximately 45 patrol officers. In addition, there will be approximately 15 other officers wearing cameras—plainclothes officers from the specialized anti-crime units and traffic enforcement officers. The comparison group in the control precincts will likewise be composed of patrol officers working the third platoon and plainclothes officers in the anti-crime units and traffic enforcement officers.
6 See http://www.nydailynews.com/new-york/brooklyn/complaints-cops-mirror-stop-and-frisk-numbers-article1.1388735. (Accessed May 30, 2015.) For all NYPD precincts, 2012 precinct CCRB counts and 2012 precinct stop counts were highly correlated (Pearson’s r = .84, p<.000).
5

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 10 of 58

A. Precincts Excluded from the Field Experiment

Six precincts were excluded from the randomized field experiment. Prior to this courtordered pilot program, the NYPD conducted a small-scale voluntary body-worn camera program (not ordered by the court) that began in December 2014, in which 54 officers in five precincts and one housing Police Service Area (PSA) volunteered to wear cameras. This trial run, which ended on March 31, 2016, was intended to test body-worn camera equipment, enhance understanding of the information technology infrastructure necessary to support camera use, and gain insight on other matters of policy and practical implementation. The NYPD ran this small pilot in the 23, 40, 75, 103, and 120 Precincts. Prior use of cameras in those precincts excluded them from the experiment, owing to contamination concerns. Finally, the 22 Precinct serving Central Park was excluded because it has relatively low levels of police activity and an almost non-existent residential population. There is also no natural comparison precinct for Central Park.
As Table 1 shows, all five boroughs have at least one precinct eligible for inclusion in the randomized field experiment.

Table 1. Eligibility of NYPD Precincts for Inclusion in BWC Experiment

Manhattan Bronx Brooklyn Queens Staten Island Total

Eligible 20 11 22 15 3 71

Not Eligible 2 1 1 1 1 6

Total 22 12 23 16 4 77

6

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 11 of 58

B. Choosing the 40 Camera and Control Precincts

Seventy-one precincts were ranked according to 2012-2015 mean yearly counts of CCRB complaints (mean = 61.1, median = 50.5, range = 17.8 to 160.3).7 The 2012-2015 mean CCRB

complaint rate per 100,000 residents was considered as a possible ranking metric of the 71

eligible precincts. Ultimately, this measure was not used because precincts with lower

residential populations and higher levels of commercial and recreational activity often had

artificially high ranks. It was decided to use raw complaint counts instead of complaint rates.

For 2012-2015 CCRB mean yearly counts, the top 40 precincts chosen for inclusion in the trial had a mean = 80.9, median = 76.5, and range = 49.0 to 160.3.8 The 31 precincts omitted

from the trial had a mean = 35.6, median = 36.8, and range = 17.8 to 48.8. In sum, CCRB

complaints were a little more than two times higher in the top 40 precincts selected for the trial

relative to CCRB complaints in the 31 precincts excluded. As Table 2 shows, all five boroughs

had at least one eligible precinct in the top 40 precincts ranked by yearly mean CCRB counts.

Table 2.

The Inclusion of Eligible NYPD Precincts in Top 40 CCRB Yearly Mean Counts by Borough

Manhattan Bronx Brooklyn Queens Staten Island Total

Top 40 10 9 13 7 1 40

Not Top 40 10 2 9 8 2 31

Total 20 11 22 15 3 71

7 Work on the design for the randomized control trial was completed over the course of 2016. Precincts within matched pairs were randomized in July 2016 so that planning for officer training, information technology upgrades in the selected precincts, and other implementation requirements could proceed. The ranking used 2012-2015 fullyear CCRB data. However, as presented below at pages 10-11, full-year 2016 CCRB data were included in the assessment of treatment and control group balance prior to the roll-out of the cameras in April 2017.
8 In July 2013, the 121 Precinct was formed from areas in the 120 and 122 Precincts in Staten Island. Unfortunately, data for the newly formed precinct were not available in 2012 and 2013. CCRB complaints in these areas were included in the 120 and 122 Precinct counts in 2012 and 2013. Therefore, only 2014-2015 CCRB counts were considered for these three precincts rather than the mean 2012-2015 CCRB counts.

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C. Matching and Randomization
Simple, but deliberate, matching exercises ensure that any peculiarities found in one sample will most likely occur in the other as well.9
Precincts were matched into pairs within boroughs by first comparing mean yearly CCRB counts to ensure that treatment and control groups would be balanced on this key outcome measure. Other relevant variables were then considered. These variables included 2012-2015 mean yearly arrest counts, 2012-2015 mean yearly arrest counts where force was used, 2012-2015 mean yearly major crime counts,10 2012-2015 mean yearly counts of sworn officers, 2014-2015 mean 911 calls for service counts,11 2016 New York City Housing Authority resident population data, and an overall concentrated disadvantage index for the neighborhoods that comprised the precincts, based on census block data from the 2013 U.S. Census Bureau’s American Community Survey.12
This data was supplemented by information regarding neighborhood characteristics and dynamics that might not appear in the data. With the support of the NYPD, Professor Braga,
9 Hubert Blalock. 1979. Social statistics. Revised second edition. New York, NY: McGraw-Hill; Peter H. Rossi, Mark Lipsey, and Howard Freeman. 2006. Evaluation: A systematic approach. Seventh edition. Newbury Park, CA: Sage Publications. 10 The seven major crime categories reported by the NYPD are: murder, rape, robbery, felony assault, burglary, grand larceny, and grand larceny auto. 11 The NYPD 911 call center transitioned to a new computer-aided dispatch (CAD) system in May 2013. The new CAD system changed the 911 calls for service counting procedures. Due to inconsistent counts over time, the monitor team was limited to using 2014 and 2015, the most recent two years of calls for service data available. 12 The concentrated disadvantage index is a standardized index composed of the percentage of residents who are Black, the percentage of residents receiving public assistance, the percentage of families living below the poverty line, the percentage of female-headed households with children under the age of 18, and the percentage of unemployed residents (as measured by the percentage of men over age 16 who did not work in the previous year). For instance, see Robert J. Sampson, Stephen W. Raudenbush, and Felton Earls. 1997. Neighborhoods and violent crime: A multilevel study of collective efficacy. Science, 277: 918–924.
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 13 of 58

who led the design effort for the monitor team, visited all 77 precincts to develop qualitative information relevant to the matching.
The matching process yielded 20 similar pairs.13
D. Randomization of Precincts and Assessment of Cluster Balance

A randomization algorithm was used to determine randomly which precinct within each

pair would receive the body-worn cameras. The precincts not selected from each of the pairs are

control precincts. Table 3 presents the camera (treatment) precincts from each of the matched

pairs. All five boroughs have at least one precinct included in the camera group. Manhattan has

five camera precincts (13, 18, 25, 30, and 34), Bronx has five camera precincts (42, 43, 44, 47,

and 48), Brooklyn has six camera precincts (60, 63, 67, 71, 79, and 83), Queens has three camera

precincts (102, 105, and 115), and Staten Island has one camera precinct (121).

Table 3. List of Camera Precincts in the Matched Pairs

Bold = Camera Precinct

Pair 1 – Precinct a, Precinct 13 Pair 2 – Precinct b, Precinct 18 Pair 3 – Precinct 25, Precinct c Pair 4 – Precinct 30, Precinct d Pair 5 – Precinct e, Precinct 34 Pair 6 – Precinct f, Precinct 42 Pair 7 – Precinct 43, Precinct g Pair 8 – Precinct 47, Precinct h Pair 9 – Precinct 48, Precinct i Pair 10 – Precinct 44, Precinct j

Pair 11 – Precinct 60, Precinct k Pair 12 – Precinct l, Precinct 63 Pair 13 – Precinct 67, Precinct m Pair 14 – Precinct n, Precinct 72 Pair 15 – Precinct 71, Precinct o Pair 16 – Precinct 79, Precinct p Pair 17 – Precinct 102, Precinct q Pair 18 – Precinct 105, Precinct r Pair 19 – Precinct s, Precinct 115 Pair 20 – Precinct t, Precinct 121

13 In general, the most appropriate precinct matches were found within boroughs. There were two exceptions. One Bronx precinct was matched to a precinct in Brooklyn, and one precinct in Queens was matched to a precinct in Staten Island.
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Table 4 compares the treatment and control precincts based on selected police, crime, and neighborhood characteristics.14 The results of these comparisons (using the means of these characteristics), presented below in Table 4, show that the treatment and control precincts are similar.15 An examination of the distribution of the data from the two groups (treatment and control) also indicates that the distribution of the data in the two sets of precincts is similar.16 This suggests that the matching and randomization procedure generated balanced treatment and control clusters. Although conditions vary within precincts, the balanced clusters help ensure that the camera and control officers will be working in broadly similar neighborhood, crime, and policing contexts.
14 Table 4 provides a comparison of treatment and control group that includes 2016 data for arrests, arrests where force was used, major crimes, precinct sworn officers, calls for service, and CCRB complaints. 15 It is important to note that caution should be used when interpreting the t-test results due to the small sample size (total N=40, 20 cases in each group). 16 Treatment and control precincts were compared using two-sample Kolmogorov-Smirnov (K-S) tests for equality of distribution functions. K-S tests are used to compare the characteristics of the distributions of two samples of data to determine whether the samples are significantly different from each other.
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Table 4. Comparison of Treatment and Control Precinct Characteristics

Population NYCHA population Concentrated disadvantage Officers Major crimes Arrests Arrests w/force 911 calls CCRB complaints

Treatment Mean 115,557.2 4,986.2 .247 206.5 1,636.1 5,682.8 104.7 69,396.3 78.3

Control Mean 102,705.1 4,609.2 .409 202.8 1,548.7 5,821.1 112.8 67,500.2 77.6

Std. Mean Difference .143 .031 -.077 .042 .090 -.031 -.076 .052 .012

t 0.90 0.19 -0.48 0.26 0.56 -0.19 -0.47 0.32 0.08

p>|t| 0.376 0.848 0.637 0.797 0.580 0.848 0.638 0.747 0.940

N= 40 (20 treatment precincts, 20 control precincts)
Notes: The standardized mean differences are Beta coefficients generated by ordinary least squares regressions of each precinct characteristic on group assignment. A “t-test” is used to determine if two sets of data are significantly different from each other on a selected variable or characteristic. The t-test values reported here represent the test statistic results for comparisons of the difference between the control and treatment groups on specific variables. The t-test results are based on a standardized normal distribution; larger values represent larger differences between the two samples on selected characteristics. An absolute value of t (“|t|”) in excess of 1.96 would indicate that the two sets of data were significantly different. The p-value represents the probability that the differences between the two groups could occur by chance. By social science convention, p-values less than .05 indicate statistically significant differences, showing that there is less than a 5 percent chance that the observed differences occurred by chance. The t-values and p-values in Table 4 all indicate that the treatment and control precincts are not different from each other across the variables measured. Significant differences between treatment and control groups would also be noted by standardized mean differences in excess of |.20|. As Table 4 indicates, no standardized mean differences exceeded this benchmark.

Implementing a body-worn camera pilot program in a very large police department that provides services to citizens in a diverse set of communities across a sprawling metropolitan area is a very complex process. For the NYPD, it required coordinating the training of line-level officers and supervisors in the policies governing the camera program and technological operations, ensuring the appropriate information technology resources were available in each precinct to facilitate uploading acquired video from cameras, and addressing other matters of implementation. To accommodate these needs, the NYPD plans a staggered roll-out of the

11

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 16 of 58
cameras over seven months. Despite varying start dates, all treatment precincts will be using the cameras for one full year.17
E. Comparability of NYPD Officers in Camera and Control Precincts
Part of ensuring the validity of the randomized control design entails testing whether officers involved in the camera and control groups possess similar characteristics. That test was conducted by Professor Braga with data provided by the NYPD as of December 31, 2016. Because assignments will shift in the course of the experiment, so too will the number of officers actually wearing cameras.
All patrol officers assigned to the third platoon in the treatment and control precincts will be participating in the pilot program. In addition, anti-crime and traffic officers working a majority of their shift on the third platoon (i.e., tours of duty beginning between 12:00 pm and 8:00 pm) will participate.
Table 5 presents the distribution on December 31, 2016, of officers in the camera and control precincts whose assignments would make them eligible to participate in the pilot. Combining the third platoon patrol, anti-crime and traffic officers yields N=1,275 officers who would be wearing cameras and N=1,273 officers without cameras. The most recent estimate (as of mid-June, 2017) is that there are approximately 2400 officers in these assignments.18
17 The 34 Precinct received cameras in April 2017. In May 2017, the NYPD followed with the 60 Precinct. The plan is to continue with the 72 Precinct in June 2017; the 42, 47, and 48 Precincts in July 2017; the 25, 43, 71, and 79 Precincts in August 2017; the 44, 63, 105, 115 in September 2017; the 13, 18, 30, and 102 Precincts in October 2017; and the 67 and 121 Precincts in November 2017. 18 Preliminary analyses suggest that the NYPD trial with 40 clusters of roughly 2,400 subjects is more than adequately powered to detect very modest treatment effects. See Mark W. Lipsey. 1990. Design sensitivity: statistical power for experimental research. Thousand Oaks, CA: Sage Publications.
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Table 5.

Distribution of Officers by Assignment in Treatment and Control Precincts (As of 12/31/16)

Third platoon patrol Anti-Crime Traffic Total

Treatment 1,131
100 44 1,275

Control 1,114
114 45 1,273

Total 2,245
214 89 2,548

Comparisons of group characteristics (Table 6) did not reveal any statistically significant

differences in officer rank, sex, race/ethnicity, age, years on the job, and CCRB complaint rate per year of service19 for officers included in the treatment and control groups. An examination

of the distribution of the data from the two groups of officers (treatment and control) also indicate that the distributions of the two sets of precincts are similar.20 Taken as a whole, these

analyses suggest that randomization was achieved, as the process generated balanced clusters

and units of analysis.

19 The NYPD provided the monitor team with the CCRB complaint counts per officer for the length of their careers. Treatment officers had a total mean of 1.31 CCRB complaints with a range of 0–17 complaints. Control officers had a total mean of 1.54 CCRB complaints with a range of 0–25 complaints. Since career lengths vary (see Table 6), the number of complaints was divided by time of service to estimate each individual officer’s CCRB complaint rate per year of service.
20 Officers in the treatment and control precincts were compared using two-sample K-S tests for equality of distribution functions. K-S tests are used to compare the characteristics of the distributions of two samples of data to determine whether the samples are significantly different from each other.
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Table 6.

Comparison of Characteristics of NYPD Patrol Officers Working the Third Platoon, Anti-Crime and Traffic in Treatment and Control Precincts

Officer rank % Police officer % Sergeant

Treatment (mean)
92.6 7.4

Control (mean)
92.0 8.0

Std. Mean Difference t

p>|t|

-.0120

-0.61 0.545

Officer sex % Male % Female

87.4

87.7

12.6

12.3

.0044

0.22 0.707

Officer race / ethnicity

% White

47.8

49.3

-.0156

-0.79 0.429

% Hispanic

30.1

27.3

% Black

13.7

14.2

% Asian / other

8.4

9.2

Officer age Mean years Range

31.2 21–61

31.5 21–59

-.0203

-1.03 0.304

Officer years on the job Mean years Range

5.20 <1–37

5.49 <1–34

-.0282

-1.42 0.155

Officer CCRB complaint rate

Mean yearly rate

0.224

Range

0–3.0

0.239 0–3.5

-.0213

-1.08 0.281

Officer assignment

% Third platoon patrol

88.7

87.5

% Anti-Crime

7.8

9.0

% Traffic

3.5

3.5

.0184

0.93 0.351

N = 2,548 (1,275 treatment officers, 1,273 control officers)

Notes: The NYPD reports both white Hispanic officers and non-white Hispanic officers as “Hispanic” officers. The data did not allow race by ethnicity classifications. The standardized mean differences are Beta coefficients generated by ordinary least squares regressions of each precinct characteristic on group assignment. For the rank and sex dummy variables, police officer and male were the reference categories, respectively. For the white dummy variable, non-white was the reference category.

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III. Outcome Measures for the Body-Worn Camera Pilot
As previously noted, the randomized controlled trial of the body-worn camera pilot will measure the impact of the cameras using four sets of outcome measures: civility of police-citizen interactions, policing activity, police lawfulness, and police-community relations. With the exception of police-community relations metrics, the data for the study’s outcome measures will be available through official data systems of the NYPD and the Civilian Complaint Review Board. The primary analyses of these outcomes for the treatment and control groups will involve comparison of data from the 12-month pre-implementation (pre-test) and 12-month implementation (post-test) time periods.21
A. Impact of Cameras on the Civility of Police-Citizen Interactions
The available research suggests that having cameras on officers will improve the civility of police-citizen interactions by deterring undesirable behaviors—neither officers nor civilians want to be recorded on video doing something inappropriate or illegal—and prompting desirable, respectful behaviors.22 For officers in the treatment and control groups, pre-test and post-test data will be collected and analyzed for the following “civility/de-escalation” outcomes:
 CCRB complaints  Officer arrest reports listing force  Officer use of force reports  Officer injury reports
21 Because certain outcomes involve rare events (e.g., CCRB complaints), supplemental experimental analyses of longer pre-test periods will be conducted for all official data metrics. Therefore, the current plan is to collect NYPD and CCRB measures for treatment and control officers for a three-year time period prior to BWC implementation. 22 Barak Ariel, William Farrar, and Alex Sutherland. 2015. The effect of police body-worn cameras on use of force and citizens’ complaints against the police: A randomized controlled trial. Journal of Quantitative Criminology, 31: 509–535.
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 20 of 58
 Resisting arrest data  Disorderly Conduct and Obstructing Government Administration arrests and summonses
Variables in these datasets will be analyzed to determine whether cameras influence the types of CCRB complaints filed, lawsuit settlement amounts (if data is available), the types of force used (hand strike, baton, etc.), and other relevant subcategories for camera officers and control officers over the course of the study period. The monitor team will also examine the impact of cameras on the CCRB complaint process and outcomes, looking, for example, at dispositions, time-to-disposition of complaint, and disciplinary actions taken. The aim is to gauge differences in post-complaint experiences of treatment officers relative to control officers.
B. Impact of Cameras on Policing Activity
In the NYPD pilot, police officers with and without cameras will be compared over pretest and post-test periods to determine whether cameras affect policing activity.23 Metrics will include:
 Monthly number of responses to citizen calls for service (data available by unit only rather than by individual officer)
 Monthly number of officer-initiated calls (data available by unit only rather than by individual officer)
 Monthly number of complaints by citizens of crime  Monthly number of domestic incident reports  Monthly number of arrests
23 Some observers suggest that wearing cameras might cause officers to be less active or more reluctant to initiate citizen contacts, instead focusing most of their time on dispatched calls. However, one recent evaluation suggests that officers wearing cameras are more likely to initiate encounters and issue citations than their counterparts without cameras. Justin Ready and Jacob Young. 2015, The impact of on-officer video cameras on police–citizen contacts: findings from a controlled experiment in Mesa, AZ. Journal of Experimental Criminology, 11:445–458.
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 Monthly number of summons  Monthly number of stop reports  Monthly number of interior patrols The data will be further analyzed to assess whether the cameras affect the likelihood that crime complaints will result in arrests or summonses.
C. Impact of BWCs on Police Lawfulness
Stop reports provide an opportunity to examine whether cameras affect the lawfulness of police interactions with citizens. Each quarter, the monitor team will be reviewing stop reports to assess whether NYPD officers comply with the Constitution and provisions of the Floyd, Ligon, and Davis orders and to compare whether the level of compliance differs between camera and non-camera precincts. Random sampling techniques are being used to select for review a target number of stop reports each quarter, to ensure that after four quarters, a sufficient number of reports will have been reviewed to be representative of stop reports made in the 20 pairs of precincts in the experiment. The monitor team will be looking at whether the presence of cameras influenced the officers’ justifications for the stops, frisks and searches and also whether wearing cameras affected the demographic makeup of those stopped, such as their race, gender and age.
The monitor team will also be examining trespass enforcement in treatment precincts and control precincts. This examination will depend in part on the availability of data in a readily accessible format. Accounting for this caveat, the plan is to compare officers with and without cameras to see whether there are differences, for example, in whether their trespass arrests in NYCHA and TAP buildings were lawful and whether the officers completed the required arrest and stop reports.
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D. Impact of Cameras on Police-Community Relations
To evaluate whether cameras affect police-community relations, two sets of surveys of New York City residents will be used: one set conducted prior to the introduction of the cameras and the other set to be conducted after the cameras have been in use for a period of time. The first set of surveys were conducted in March and April of this year, and the second series of surveys are expected to be fielded 12 to 18 months afterwards.
The survey methodology will be the same for both sets of surveys, with interviews divided equally between treatment precincts and control precincts, allowing the monitor team to assess whether the cameras affect civilian interactions with the NYPD and public attitudes towards the police. Control precincts were included in the survey design so the monitor team can determine whether any changes in survey results in camera precincts are a result of the introduction of cameras, as opposed to other citywide factors.
To conduct the surveys, the monitor has brought on two organizations, Hart Research Associates and the CUNY Institute for State and Local Government. Hart Research Associates conducted a telephone survey of residents in the 20 treatment precincts and the 20 control precincts. Recognizing that the persons most impacted by past NYPD stop and frisk activities, particularly young minority men, are not always easy to reach in telephone surveys, the monitor team also assigned the CUNY Institute of State and Local Government to conduct a more targeted in-person survey in five treatment and five control precincts.
Detailed descriptions of both the telephone and in-person pre-treatment survey methodology are included in Attachment 1 (Hart) and Attachment 2 (CUNY). Copies of the survey instruments used are included in Attachment 3.
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 23 of 58 IV. Public Housing
Because Public Housing Police Service Areas (PSAs) overlap with the 40 precincts in the randomized control trial, the pilot experiment does not include NYPD Housing officers assigned to PSAs. The monitor team will be devising a separate evaluation plan for the use of cameras by NYPD officers working in PSAs. There are only nine PSAs in New York City—too few for a randomized controlled experiment. For this reason, a quasi-experimental research design is currently being considered.
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Attachment 1

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 25 of 58

TO:

Peter Zimroth and Richard Jerome, NYPD Monitor

FROM: Hart Research Associates

DATE: May 31, 2017

RE:

BWC Pilot Program Research Methodology

Overview Our evaluation of the impact of the body-worn camera (BWC) program involves two surveys of New York residents, one conducted prior to the introduction of the BWCs (pre-treatment) and one conducted after the BWCs have been in use for a period of time (post-treatment). The pre-treatment survey was conducted in March and April of this year, and the post-treatment survey is expected to occur 12 to 18 months later.

The survey methodology will be the same for both surveys, with interviews divided equally between treatment precincts and control precincts, allowing us to assess the impact of the BWCs on public attitudes toward and civilian interactions with the NYPD. The inclusion of the control precincts in the survey design is to allow us to determine whether any changes we may find in the post-treatment survey in treatment precincts are a result of the introduction of BWCs, as opposed to other city-wide factors.

A detailed description of the pre-treatment survey methodology follows.

Pre-Treatment Survey Methodology

The pre-treatment survey involved live telephone interviews with 6,000 residents: 3,000 in treatment precincts and 3,000 in control precincts. In order to reach a statistically robust number of respondents who likely have had relevant personal interactions with the NYPD, we substantially oversampled 18- to 34-year-old men in both the treatment and control precincts. However, the two subsamples (treatment and control) each were weighted by age and gender to reflect the actual demographics of these precincts, so that the views and experiences of young men are not over-represented in the results we will report for all adults.

Total interviews Number of interviews Population proportion
(weighted)

Men 18-34

Survey Samples Control Other Adults TOTAL

1,722 18%

1,278 82%

3,000 100%

Treatment

Men

Other

18-34 Adults TOTAL

1,714 17%

1,286 83%

3,000 100%

1724 Connecticut Avenue, NW, Washington, DC 20009 202-234-5570 www.hartresearch.com

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 26 of 58
Hart Research Associates
The samples were designed to be representative of the adult populations in the control and treatment precincts, including hard-to-reach residents such as young men of color. We developed a sample frame from a list of NYC residents provided by TargetSmart, a list vendor with 6.2 million names in its NYC database. TargetSmart was given shape files of all of the current NYPD police precincts and the New York City Housing Authority Districts, and selected samples from the precincts comprising the control and treatment areas. The 2010 American Community Survey was used in conjunction with the shape file data to set quotas by age and gender for the control and treatment samples. TargetSmart provided a sufficient number of randomly selected records to meet the targeted number of interviews within each quota group. Additional telephone numbers, including contract and prepaid cell phone numbers, were supplied by Link2Tek. This allowed us to complete substantial numbers of interviews with cellphone users in all samples (82% of interviews with young men were conducted by cell, as were 58% of interviews with other adults). The interviewing firm American Directions fielded the survey in English and Spanish (by respondent choice) from March 21 to April 25. The data for the control and treatment samples were weighted separately by age and gender to correct for the impact of the oversampling of young men. In addition, modest weights were applied to race, education, and precinct to ensure that the two samples were representative of the larger populations in each of these areas. A profile of the four main samples (using weighted data) is shown in the following tables. The margin of error for results among all adults in each sample is ±2.4 percentage points. The margin of error for results among men age 18 to 34 in each sample is ±2.4 percentage points. The margin of error for smaller subgroups will be larger. Pre-Treatment Survey Samples The two samples for the pre-treatment survey—control and treatment—proved very representative of the populations in their respective precincts. As the tables on the next page indicate, the demographic distributions in the survey samples closely match those reported for adults in these precincts by the Census Bureau’s 2010 American Community Survey (ACS). While this in part reflects the statistical weights applied after interviewing, the unweighted samples were already a close match to the ACS data and required only modest weights (except for adjusting the young male oversamples).
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 27 of 58
Hart Research Associates
Demographics of All Adults

Demographics of Control Adults

Survey

Sample

%

Men

46

Women

54

Ages 18-34

36

Ages 35-49

26

Ages 50-64

21

Ages 65/older

16

Don’t know/refused

1

Whites (non-Hispanic)

27

African Americans

30

Hispanics

30

Asians

8

Manhattan

14

Bronx

20

Queens

28

Brooklyn

38

Demographics of Treatment Adults

Survey

Sample

%

Men

46

Women

54

Ages 18-34

36

Ages 35-49

25

Ages 50-64

22

Ages 65/older

16

Don’t know/refused

1

Whites (non-Hispanic)

22

African Americans

31

Hispanics

33

Asians

9

Manhattan

18

Bronx

25

Queens

21

Brooklyn

31

Staten Island

5

Census (ACS 2010)
% 46 54 37 27 22 14 27 35 30 9 15 21 27 37
Census (ACS 2010)
% 46 54 36 26 23 15 22 36 33 9 18 26 22 30 5

The demographics of the two populations — control and treatment — are also similar in most respects. The tables on the next two pages report the survey sample demographics for control and treatment side-by-side, first for all adults and then for men 18-34.

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Hart Research Associates

Men Women Ages 18-34 Ages 35-49 Ages 50-64 Ages 65/older Don’t know/refused Whites (non-Hispanic) African Americans Hispanics Asians All others HS or less Some college College graduates Manhattan Bronx Queens Brooklyn Staten Island

Control % 46 54 37 26 20 16 1 27 30 30 8 5 33 29 37 14 20 28 38 -

Treatment % 46 54 36 25 22 16 1 22 31 33 9 5 34 29 36 18 25 21 31 5

Demographics of Men 18-34

Ages 18-24 Ages 25-29 Ages 30-34 Whites (non-Hispanic) African Americans Hispanics All other HS or less Some college College graduates Not sure/refused Manhattan Bronx Queens Brooklyn Staten Island

Control % 40 32 28 26 26 34 14 28 38 33 1 16 21 26 37 -

Treatment % 41 31 28 21 25 40 14 28 36 35 1 18 26 20 31 5

Experience with Police Stops
To identify those who have had a personal interaction with the NYPD, respondents were asked if they had either of two kinds of police stops over the preceding 12 months: 1) have been stopped by police officers while the respondent was in a car in their neighborhood, or 2) have been stopped by police officers while the respondent was walking or standing on the street, in their building, or in some other place or building in their neighborhood.
The following tables shows the frequency of each type of reported stop among different demographic groups, first for car stops and then for street stops.

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Hart Research Associates

Percentage of Adults with a Car Stop

Control

%

All Adults

13

Men

18

Women

9

Ages 18-34

16

Ages 35-49

16

Ages 50-64

9

Ages 65/older

7

Whites (non-Hispanic)

10

African Americans

17

Hispanics

12

Asians

11

White men

12

African American men

25

Hispanic men

17

White women

5

African American women

12

Hispanic women

7

Manhattan

8

Bronx

13

Queens

15

Brooklyn

14

Staten Island

N/A

Men 18-34

18

Men 35/older

17

Women 18-34

13

Women 35/older

6

Treatment % 12 16 8 15 15 10 4 8 13 11 17 12 21 13 4 7 9 8 13 12 12 23 19 14 11 7

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Hart Research Associates

Percent with a Street Stop

Control

%

All Adults

5

Men

7

Women

3

Ages 18-34

8

Ages 35-49

4

Ages 50-64

2

Ages 65/older

2

Whites (non-Hispanic)

3

African Americans

7

Hispanics

4

Asians

3

White men

4

African American men

11

Hispanic men

5

White women

2

African American women

3

Hispanic women

3

Manhattan

5

Bronx

5

Queens

4

Brooklyn

5

Staten Island

N/A

Men 18-34

12

Men 35/older

3

Women 18-34

4

Women 35/older

2

Treatment % 6 8 4 9 8 4 5 8 6 3 5 12 9 4 5 4 8 8 4 5 4 12 6 6 3

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Attachment 2

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 32 of 58
CUNY Institute for State and Local Governance Methods: In-person Surveys
Sampling Framework
In-person surveys were conducted to capture the perspectives of New York City (NYC) residents on law enforcement and public safety, with a particular interest in residents who are most likely to be affected by New York City Police Department (NYPD) stop, question, and frisk practices (i.e., Black/African American and Hispanic/Latino young men).1 The Institute for State and Local Governance (ISLG) employed a three-tiered sampling approach that included selection of police precincts, sites within those precincts, and residents within those sites.
Selection of precincts. In-person surveys were carried out in 10 precincts (five matched pairs) selected from the pool of 40 participating in the body-worn camera (BWC) pilot.2 The five matched pairs of precincts included one pair in each of the five NYC boroughs, so that withinand across-borough comparisons could be made between the two experimental groups. The five matched pairs were selected from the 20 matched pairs in the BWC pilot based on racial/ethnic composition, presence of NYCHA developments, police activity and crime patterns, among other variables.
Selection of sites. Within each of the 10 survey precincts, ISLG selected five to seven specific sites where surveys would be administered. The goal was to select sites where populations affected by NYPD stop and frisk practices would be likely to be included as participants. Toward that end, selection was informed by spatial analyses of three features: (1)
1 It was anticipated that these residents might be underrepresented in the telephone survey, and thus, the in-person survey sampling methodology was developed to ensure adequate representation of this population of interest. 2 These 40 pilot sites were selected by the Monitor team because they had the highest number of complaints from 2012-2015 to the Civilian Complaint Review Board (CCRB), an independent entity that reviews and investigates reports of officer misconduct.

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 33 of 58
stop reports in 2010 and 2015; (2) crime complaints to 311 in 2016; and (3) locations of NYCHA developments and public transportation stops/stations. Based on this analysis, ISLG selected sites that had higher concentrations of reported stops and 311 complaints; some were near NYCHA developments and/or public transportation locations as well. Each of the sites was approximately four blocks long and one to three blocks wide.
Selection of potential participants. Finally, within each site a probability sampling design was employed to engage potential survey participants. Specifically, every third person and every third group containing someone who appeared as though they could be age 18 or older was approached and asked to participate in the study. The number of individuals and group members who agreed and declined to participate was recorded. The estimated overall response rate was 15.1%, reflecting the proportion of people who agreed to participate in the study among the estimated total number of people who were approached.
In total, 1,181 respondents completed in-person surveys across the 10 NYPD precincts. An additional six surveys were submitted but discarded due to substantial incompleteness (i.e., with fewer than 25% of items completed by the respondent). Recruitment of Participants
Surveys were administered by 39 students enrolled in associate’s, bachelor’s, and master’s degree programs at the City University of New York (CUNY). Most students were also members of the Service Corps, a professional development and experiential learning program offered by CUNY. Students were assigned in teams of two to administer surveys in one or more sites per day, according to a schedule created by ISLG. All surveys were completed between the hours of 11am and 6pm, in April 2017. The schedule and site assignments were designed with
2

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 34 of 58
the goal of minimizing bias in the survey work—by having the surveys administered during the same time of the day, for example, and ensuring adequate representation of all targeted sites within a precinct. Each shift lasted between two and six hours. Before beginning the work, students were required to participate in a three-hour training covering the project background, research ethics, the study protocol, and tips for safe and effective fieldwork (many also had prior fieldwork experience).
Once on site, team members assumed one of two unique roles to recruit participants in accordance with the sampling framework. One member was responsible for counting passers-by and recording acceptances and declinations to participate, and the other was responsible for approaching potential respondents and requesting their participation in the survey. In general, teams assigned to sites in precincts with higher concentrations of Hispanic/Latino residents included at least one Spanish speaker, to increase the likelihood of a representative survey sample.
Potential respondents who informally agreed to participate were read a consent protocol in English or Spanish, and asked to verify that they were 18 or older and a resident of New York City. To maintain anonymity, participants were only asked to provide verbal consent, and were not asked to provide any other identifying information. Once consent was given, each participant was provided with an English or Spanish version of the survey (depending on their preference) to complete, along with a clipboard and a pen. The survey questionnaire generally took between 10 and 15 minutes to complete, and all participants were provided with a $10 gift card when they returned the completed survey to the team. The last page of the survey contained contact information for the study and a list of resources that participants could access if they became upset as a result of participating.
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Survey Instrument The survey questionnaire consisted of 26 close-ended items, including questions on
specific experiences of being stopped by police or other interactions with police occurring in the prior year. The in-person survey instrument was nearly identical to the telephone instrument, with minor variations in introductory wording due to the more sophisticated skip logic possible on a telephone survey. Demographics of Respondents
The demographics of the survey respondents indicate that the sampling approach achieved the two primary goals of the survey: (1) to broadly reflect the population of the precincts in which they were conducted, with a particular focus on young Black/African American (“Black”) and Hispanic/Latino men; and (2) to have comparability between treatment and control groups. With respect to the first goal, the survey results show that:
 Almost one-fifth (17.5%) of survey respondents were Black or Hispanic/Latino males age 34 or younger—approximately five percentage points higher than the 11.8% of the general adult population in those precincts estimated to reflect Black or Hispanic/Latino males between the ages of 20 and 34.
 The proportion of Black and Hispanic/Latino respondents in the sample was higher than the proportion of these racial/ethnic groups in the general precinct population (79.6% vs. 68.5%, respectively). The representation of Black individuals was substantially higher in the sample than in the general population (40.1% vs. 29.1%); Hispanic/Latino respondents, in turn, were only slightly overrepresented (39.5% vs. 38.9%).
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 36 of 58
 Nearly half (45.8%) of respondents were age 34 or younger, including 21.0% who were age 18-24. There are not comparable statistics for the precinct population, age 18-24, but only 11.1% of the general population of adults in the study precincts (with adults defined as individuals 20 years and older) fell into the 20-24 age bracket.
 More than one fifth of the sample (22.0%) consisted of NYCHA residents, compared to 7.5% of the general population.
The survey results also show comparability between treatment and control precincts at an aggregate level:
 In each set of precincts, nine in 10 respondents identified as a race/ethnicity other than White (91.0% of control respondents and 90.1% of treatment respondents).
 Slightly under half in each group identified as male (44.5% in control, 45.8% in treatment precincts), and around one quarter of each group (22.4% of control and 22.9% of treatment precincts) was comprised of males age 34 of younger, with 17.3% and 17.6% of control and treatment respondents, respectively, identifying specifically as Black or Hispanic/Latino young men.
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 37 of 58
Attachment 3

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 38 of 58
SURVEY OF COMMUNITY PERCEPTIONS OF LAW ENFORCEMENT
DO NOT FILL IN—FOR INTERVIEWER USE ONLY Date: ____________________________________ Precinct: _________________________________
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1. In what year were you born? ______________________
2a. Do you currently live in New York City? Mark one.
 Yes  No
IF YOU ANSWERED “NO” IN Q2a, PLEASE HAND THE QUESTIONNAIRE IN TO THE INTERVIEWER. THANK YOU FOR YOUR TIME.
2b. Are you of Hispanic, Latino, or Spanish origin, or not? Mark one.
 Yes  No
2c. And could you please indicate if you are white, black or African American, Asian, biracial or multiracial, or something else? Mark one.
 White  Black/African American  Asian  Biracial or multiracial  Other
3. When it comes to the problem of crime, how safe do you feel in your neighborhood--very safe, somewhat safe, somewhat unsafe, or very unsafe? Mark one.
 Very safe  Somewhat safe  Somewhat unsafe  Very unsafe
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The next section of this questionnaire asks about NYPD police officers who patrol in your neighborhood.

4.

Overall, how would you describe your feelings about the NYPD officers in your neighborhood? Do you feel very

favorable, somewhat favorable, neutral, somewhat unfavorable, or very unfavorable?

Mark one.

 Very favorable  Somewhat favorable  Neutral  Somewhat unfavorable  Very unfavorable

5.

How would you rate the job that NYPD officers are doing in your neighborhood--would you say they are doing a

very good job, a good job, a fair job, a not so good job, or a poor job?

Mark one.

 Very good  Good  Fair  Not so good  Poor

6.

Below are a few statements about police officers. Thinking about NYPD officers in your neighborhood,

please indicate if you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with

each statement.

Mark one X for each statement.

Strongly Somewhat Somewhat Strongly

agree

agree

disagree disagree

If I needed police assistance, I would feel comfortable seeking help from police officers in my neighborhood.
I respect the police officers in my neighborhood.

Police officers in my neighborhood respect people's rights.
Police officers in my neighborhood treat people fairly, regardless of race or background.
Police officers in my neighborhood often abuse their authority.
I sometimes feel nervous when I see police officers in my neighborhood approach me. Police officers stop and frisk too many people in my neighborhood. Police officers in my neighborhood use more force than necessary.

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7.

If you or someone in your neighborhood filed a complaint against a police officer for unfair treatment, do you

think the complaint would be investigated fairly and objectively? Would you say it definitely would, probably

would, probably would not, or definitely would not be investigated fairly and objectively?

Mark one.

 Definitely would  Probably would  Probably would not  Definitely would not

8.

In the past 12 months, have you been stopped by police officers in your neighborhood while you were in a car?

Were you stopped one time or multiple times? Your answers are completely confidential, and we are asking

only for research purposes.

Mark one.

 Yes, one time (Continue to Q9)  Yes, multiple times (Continue to Q9)  No ( Skip to Q12)

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ANSWER Q9, Q10, AND Q11 ONLY IF YOU ANSWERED “YES” IN Q8. IF YOU ANSWERED “NO” TO Q8, PLEASE SKIP TO Q12 ON PAGE 6.

9.

Thinking about the last time you were stopped by police officers in your neighborhood while you were in a car,

how satisfied were you with the way the officers handled that situation--very satisfied, somewhat satisfied,

somewhat dissatisfied, or very dissatisfied?

Mark one.

 Very satisfied  Somewhat satisfied  Somewhat dissatisfied  Very dissatisfied

10.

And thinking about this same stop, please tell me whether the following happened or did not happen.

Mark one X for each statement.

Yes, did No, did not happen happen

Don’t remember

The police officers explained the reason for the stop.
The police officers used physical force during the stop.
You were patted down on the outside of your clothing. The police officers searched the inside of your clothing, your bag, or other personal belongings. You were given a ticket or a summons for a moving violation. You were arrested.

11.

Still thinking about this same stop, please indicate whether you strongly agree, somewhat agree, somewhat

disagree, or strongly disagree with each of the following statements.

Mark one X for each statement.

Strongly Somewhat Somewhat Strongly

agree

agree

disagree disagree

The police officers treated you with respect.
The police officers had a good reason for stopping you.
The amount of time you were stopped was reasonable The police officers used language that you found threatening or abusive. You felt the police officers stopped you because of your race or ethnicity. The police officers used more force than necessary

5

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 43 of 58

12.

In the past 12 months, have you been stopped by police officers in your neighborhood while you were

walking or standing on the street, in your building, or in some other place or building in your neighborhood?

Were you stopped one time or multiple times? Your answers are completely confidential, and we are asking

only for research purposes.

Mark one.

 Yes, one time (Continue to Q13)  Yes, multiple times (Continue to Q13)  No ( Skip to Q16)

ANSWER Q13, Q14, AND Q15 ONLY IF YOU ANSWERED “YES” IN Q12. IF YOU ANSWERED “NO” TO Q12, PLEASE SKIP TO Q16 ON PAGE 8.

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The next section of this questionnaire asks about the last time you were stopped by police officers in your neighborhood and were not in a car.

13.

Thinking about the last time you were stopped by police officers while you were on the street, in your

building, or some other place or building in your neighborhood, how satisfied were you with the way the

officers handled that situation--very satisfied, somewhat satisfied, somewhat dissatisfied, or very

dissatisfied?

Mark one.

 Very satisfied  Somewhat satisfied  Somewhat dissatisfied  Very dissatisfied

14.

And thinking about this same stop, please indicate whether the following happened or did not happen.

Mark one X for each statement.

Yes, did No, did not

Don’t

happen happen remember

The police officers explained the reason for the stop. The police officers gave you a receipt or information card after the stop. You were patted down on the outside of your clothing. The police officers searched the inside of your clothing, your bag, or other personal belongings. The police officers used physical force during the stop.
You were arrested or given a summons.

15.

Still thinking about this same stop, please indicate whether you strongly agree, somewhat agree, somewhat

disagree, or strongly disagree with each of the following statements.

Mark one X for each statement.

Strongly Somewhat Somewhat Strongly

agree

agree

disagree disagree

The police officers treated you with respect.
The police officers had a good reason for stopping you. The amount of time you were stopped was reasonable. The police officers used language that you found threatening or abusive. You felt the police officers stopped you because of your race or ethnicity.
The police officers used more force than necessary.

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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 45 of 58

16.

In the past 12 months, have you spoken to or contacted any police officers in your neighborhood for help,

such as asking a police officer on the street for assistance, reporting a crime or an accident to an officer, or

having an officer respond to your 911 call? To be clear, this means any contact with a police officer other

than the stop situations described earlier.

Mark one.

 Yes (Continue to Q17)  No ( Skip to Q19)

ANSWER Q17, AND Q18 ONLY IF YOU ANSWERED “YES” IN Q16. IF YOU ANSWERED “NO” TO Q16, PLEASE SKIP TO Q19 ON PAGE 9.

17.

Thinking about the last time you spoke to or contacted police officers in your neighborhood, how satisfied

were you with how the officers handled that situation--very satisfied, somewhat satisfied, somewhat

dissatisfied, or very dissatisfied?

Mark one.

 Very satisfied  Somewhat satisfied  Somewhat dissatisfied  Very dissatisfied

18.

And still thinking about the last time you spoke to or contacted police officers in your neighborhood, please

indicate whether you strongly agree, somewhat agree, somewhat disagree, or strongly disagree with each of

the following statements.

Mark one X for each statement.

Strongly agree

Somewhat agree

Somewhat disagree

Strongly disagree

The police officers treated you with respect.
The police officers clearly explained where you could get the help or information you needed.
The police officers took your problem or question seriously.

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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 46 of 58

19.

Some police departments require officers to wear body cameras that provide an audio and video recording

of an officer’s interactions with the public. Do you strongly favor, somewhat favor, somewhat oppose, or

strongly oppose having NYPD police officers wear body cameras?

Mark one.

 Strongly favor  Somewhat favor  Somewhat oppose  Strongly oppose

20.

What is the last grade that you completed in school?

Mark one.

 Some high school or less  High school graduate  Some college, no degree  Vocational training/2-year college  4-year college/bachelor's degree  Some postgraduate work, no degree  Postgraduate or professional degree

21.

In the past twelve months, has anyone in your household, not counting yourself, been stopped by police

officers in your neighborhood?

Mark one.

 Yes  No

22.

Do you have a family member who is an NYPD officer?

Mark one.

 Yes  No

23.

Do you know any of the police officers that work in your neighborhood by name?

Mark one.

 Yes  No

24.

Do you currently live in NYCHA housing?

Mark one.

 Yes  No

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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 47 of 58

25.

How often do you go out in your neighborhood, outside your home, in the evening? Do you do that

frequently, sometimes, just a little, or rarely?

Mark one.

 Frequently  Sometimes  Just a little  Rarely

26.

And do you identify as male, female, or another gender?

Mark one.

 Male  Female  Another gender

10

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 48 of 58

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 49 of 58
ENCUESTA DE LAS PERCEPCIONES COMUNITARIAS DE LA
APLICACIÓN DE LA LEY
NO LLENAR SOLAMENTE PARA EL USO DEL ENTREVISTADOR Date: ____________________________________ Precinct/Location: __________________________
1

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 50 of 58
1. ¿En que año nacio? ______________________
2a. ¿Vive actualmente en la ciudad de Nueva York? Marque solamente una cajilla.
 Sí  No
SI RESPONDIÓ "NO" EN LA PREGUNTA 2a, POR FAVOR DEVUELVA SU CUESTIONARIO AL ENTREVISTADOR. GRACIAS POR TU TIEMPO.
2b. ¿Es usted de origen hispano o latino? Marque solamente una cajilla.
 Sí  No
2c. ¿Y podría usted por favor decirme si es blanco, Moreno /a Afro-Americano/a, asiático/a, biracial o multiracial, o algo diferente? Marque solamente una cajilla.
 Blanco/a  Moreno/a /Afro Americano/a  Asiático/a  Biracial o multiracial  Otro
3. Cuando se trata del problema de la delincuencia, ¿qué tan seguro se siente en su barrio—muy seguro/a, algo seguro/a, algo inseguro/a, o muy inseguro/a? Marque solamente una cajilla.
 Muy seguro/a  Algo seguro/a  Algo inseguro/a  Muy inseguro/a
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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 51 of 58

El próximo grupo de preguntas es sobre los policías de la NYPD que patrullan en su barrio

4.

En general, ¿cómo describiría sus sentimientos acerca de los policías de la NYPD en su barrio? ¿Se siente

muy favorable, algo favorable, neutral, algo desfavorable o muy desfavorable?

Marque solamente una cajilla.

 Muy favorable  Algo favorable  Neutral  Algo desfavorable  Muy desfavorable

5.

¿Cómo calificaría el trabajo que los agentes del NYPD están haciendo en su barrio - ¿diría que están

haciendo: un trabajo muy bueno, bueno, regular, no tan bueno, o malo?

Marque solamente una cajilla.

 Muy bueno  Bueno  Regular  No tan bueno  Malo

6.

A continuación se enumeran algunas declaraciones sobre los policías. Pensando en los policías del NYPD

en su barrio, por favor, dígame si está muy de acuerdo, algo de acuerdo, algo en desacuerdo o muy en

desacuerdo con cada declaración.

Para cada declaración, marque un X.

Muy de Algo de

Algo

Muy

acuerdo acuerdo desacuerdo desacuerdo

Si necesitara la asistencia de la policía, me sentiría cómodo buscar ayuda de policía en mi barrio.
Respeto a los policías de mi barrio.

Policías en mi barrio respetan los derechos de las personas.
Los policías de mi barrio tratan a las personas de manera justa, independientemente de raza u origen.
Los policías de mi barrio abusan de su autoridad.
A veces me dan nervios en mi barrio cuando veo policías acercarse a mí en mi barrio.
Los policías paran y registran demasiadas personas en mi barrio.

Los policías en mi barrio utilizan más fuerza de la necesaria.

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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 52 of 58

7.

Si usted o alguien de su barrio presentara una queja contra un agente de policía por un trato injusto, ¿cree que

la queja sería investigada de manera justa y objetiva? ¿Diría usted que definitivamente sería justa y objetiva,

probablemente sería, probablemente no sería, o definitivamente no sería investigado de manera justa y

objetiva?

Marque solamente una cajilla.

 Definitivamente sería  Probablemente sería  Probablemente no sería  Definitivamente no sería

8.

En los últimos doce meses, ¿ha sido parado por policías en su barrio mientras estaba en un automóvil? ¿Y

esto fue una vez, o varias veces? Le prometo que sus respuestas son completamente confidenciales, y

estamos preguntando sólo para propósito de una investigación académica.

Marque solamente una cajilla.

 Sí—me pararon una vez (Continue a la 9)  Sí—me pararon más de una vez (Continue a la 9)  No ( Salte a la 12)

4

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RESPONDA A LAS PREGUNTAS 9, 10 Y 11 SOLAMENTE SI USTED RESPONDIÓ "SÍ" EN LA PREGUNTA 8. SI RESPONDIÓ "NO" A LA PREGUNTA 8, POR FAVOR, SALTE A LA PREGUNTA 12 EN PÁGINA 6.

9.

Pensando en la última vez que fue parado por policías en su barrio mientras estaba en un automóvil, ¿Qué tan

satisfecho estaba con la manera en que los oficiales manejaron esa situación, -- muy satisfecho/a, algo

satisfecho/a, algo insatisfecho/a o muy insatisfecho/a?

Marque solamente una cajilla.

 Muy satisfecho/a  Algo satisfecho/a  Algo insatisfecho/a  Muy insatisfecho/a

10.

Y pensando en este mismo incidente, por favor dígame si ocurrió o no ocurrió lo siguiente.

Para cada declaración, marque un X.

Sí, ocurrió

No, no ocurrió

No estoy seguro/no recuerda

Los policías explicaron el motivo de la parada.
Los policías utilizaron la fuerza física durante el incidente.
Le registraron exteriormente, por encima de su ropa. Los policías revisaron el interior de su ropa, su bolso u otras pertenencias personales. Se le dio una multa o una citación por violación de transito.
Usted fue arrestado.

11.

Todavía pensando en este mismo incidente, por favor dígame si está totalmente de acuerdo/a, algo de

acuerdo/a, algo en desacuerdo/a o en total desacuerdo/a con cada una de las siguientes afirmaciones.

Para cada declaración, marque un X.

Muy de acuerdo

Algo de acuerdo

Algo desacuerdo

Muy desacuerdo

Los policías le trataron con respeto.
Los policías tenían una buena razón para pararle.
La cantidad de tiempo que duro la parada fue razonable. Los policías usaron un lenguaje que le pareció amenazante o abusivo. Siente que los policías le detuvieron por su raza u origen étnico.
Los policías utilizaron más fuerza de la necesaria.

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Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 54 of 58

12.

En los últimos doce meses, ¿ha sido parado por policías en su barrio mientras estaba caminando o de

pie en la calle, en su edificio, o en algún otro lugar o edificio en su barrio? ¿Y esto fue una vez, o

varias veces? Prometo que sus respuestas son completamente confidenciales, y estamos preguntando sólo

para fines de estudios.

Marque solamente una cajilla.

 Sí—parado una vez (Continue a la 13)  Sí—parado más de una vez (Continue a la 13)  No ( Salte a la 16)

RESPONDA A LAS PREGUNTAS 13, 14 Y 15 SOLAMENTE SI USTED RESPONDIÓ "SÍ" EN LA PREGUNTA 12. SI RESPONDIÓ "NO" A LA PREGUNTA 12, POR FAVOR, SALTE A LA PREGUNTA 16 EN PÁGINA 8.

6

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 55 of 58

El próximo grupo de preguntas es sobre la última vez que fue parado por policías en su barrio y no estaba en un automóvil.

13.

Pensando en la última vez que fue parado por policías mientras estaba en la calle, en su edificio, o en algún

otro lugar o edificio en su barrio, ¿cuán satisfecho estaba con la forma en que los policías manejaron esa

situación-- muy satisfecho/a, algo satisfecho/a, algo insatisfecho/a o muy insatisfecho/a?

Marque solamente una cajilla.

 Muy satisfecho/a  Algo satisfecho/a  Algo insatisfecho/a  Muy insatisfecho/a

14.

Y pensando en cuando fue parado, por favor dígame si ocurrió o no ocurrió lo siguiente.

Para cada declaración, marque un X.

Sí, ocurrió

No, no ocurrió

No estoy seguro/no recuerda

Los policías explicaron la razón de la parada. Los policías le dieron un recibo o tarjeta de información después de la parada. Le registraron exteriormente por encima de su ropa. Los policías revisaron el interior de su ropa, su bolso u otras pertenencias personales. Los policías utilizaron la fuerza física durante la parada.
Usted fue arrestado o dado una citación.

15.

Todavía pensando en este mismo incidente, por favor dígame si está totalmente de acuerdo/a, algo de

acuerdo/a, algo en desacuerdo/a o en total desacuerdo/a con cada una de las siguientes afirmaciones.

Para cada declaración, marque un X.

Muy de acuerdo

Algo de acuerdo

Algo desacuerdo

Muy desacuerdo

Los policías le trataron con respeto.
Los policías tenían una buena razón para pararle. La cantidad de tiempo que duró la parada fue razonable. Los policías usaron un lenguaje que le pareció amenazante o abusivo. Siente que los policías lo detuvieron por su raza o etnia. Los policías utilizaron más fuerza de la necesaria.

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16.

En los últimos doce meses, ¿ha hablado o contactado algún policía de su barrio para pedir ayuda, como por

ejemplo para solicitarle asistencia en la calle, reportar un crimen o un accidente o que un policía haya

respondido a su llamada al nueve-uno-uno? Que quede claro, me refiero a cualquier contacto con un policía

distinto de la situación de la parada que le pregunté antes.

Marque solamente una cajilla.

 Sí (Continue a la 17)  No ( Salte a la 19)

RESPONDA A LAS PREGUNTAS 17 Y 18 SOLAMENTE SI USTED RESPONDIÓ "SÍ" EN LA PREGUNTA 16. SI RESPONDIÓ "NO" A LA PREGUNTA 16, POR FAVOR, SALTE A LA PREGUNTA 19 EN PÁGINA 9.

17.

Pensando en la última vez que habló o contactó a policías en su barrio, ¿cuán satisfecho estuvo con la

forma en que los oficiales manejaron esa situación-- muy satisfecho/a, algo satisfecho/a, algo insatisfecho/a

o muy insatisfecho/a?

Marque solamente una cajilla.

 Muy satisfecho/a  Algo satisfecho/a  Algo insatisfecho/a  Muy insatisfecho/a

18.

Y aún pensando en la última vez que habló o contactó a policías en su barrio, por favor dígame si está

totalmente de acuerdo/a, algo de acuerdo/a, algo en desacuerdo/a o muy en desacuerdo/a con cada una de

las siguientes declaraciones.

Para cada declaración, marque un X.

Muy de acuerdo

Algo de acuerdo

Algo

Muy

desacuerdo desacuerdo

Los policías le trataron con respeto.
Los policías explicaron claramente dónde podía obtener la ayuda o la información que necesitaba. Los policías tomaron su problema o pregunta en serio.

8

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 57 of 58

19.

Algunos departamentos de policía requieren que los oficiales usen cámaras corporales que proporcionan

una grabación de audio y video de las interacciones de un oficial con el público. Usted esta fuertemente a

favor, algo a favor, se opone algo, o se opone fuertemente a que oficiales de la policía usen cámaras

corporales?

Marque solamente una cajilla.

 Fuertemente a favor  Algo a favor  Opone algo  Opone fuertemente

20.

¿Cuál fue el último grado que completó en la escuela?

Marque solamente una cajilla.

 Llegué a la escuela secundaria/bachillerato pero no se graduó  Me gradué de secundaria o bachillerato  Llegué a la universidad pero no se graduó  Obtuve un entrenamiento técnico o vocacional  Se gradué de la universidad  Llegué a una maestría pero no se graduó  Se gradué de una maestría o grado profesional

21.

En los pasados doce meses, alguien en su hogar, sin contarse a usted, ¿ha sido parado por agentes de la

policía en su barrio?

Marque solamente una cajilla.

 Sí  No

22.

¿Tiene un miembro de la familia que es un oficial NYPD?

Marque solamente una cajilla.

 Sí  No

23.

¿Conoce por su nombre alguno de los policías que trabajan en su barrio?

Marque solamente una cajilla.

 Sí  No

24.

¿En la actualidad vive en una vivienda de NYCHA?

Marque solamente una cajilla.

 Sí  No

9

Case 1:08-cv-01034-AT Document 557 Filed 06/29/17 Page 58 of 58

25.

¿Con qué frecuencia sale por su vecindario, fuera de su casa, por la noche? ¿Lo hace con frecuencia, a

veces, sólo un poco, o rara vez?

Marque solamente una cajilla.

 Frecuentemente  A veces  Solo un poco  Rara vez

26.

¿Y se identifica como hombre, mujer, o de otro género?

Marque solamente una cajilla.

 Hombre  Mujer  Otro género

10

 
 Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 1 of 70
Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@apks.com

December 13, 2017
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd,etal.v.C ity ofN ew York , 08-CV-1034 (AT), L igon,etal.v.C ity ofN ew York ,etal., 12-CV-2274 (AT), D avis,etal.v.C ity ofN ew York ,etal., 10-CV-0699 (AT), Seventh Report of the Independent Monitor
Dear Judge Torres,
I am pleased to attach the monitor’s seventh report, which reviews the requirements of
the court orders in Floyd v. C ity of N ew York , L igonv. C ity of N ew York and D avis v. C ity of
N ew York and assesses the state of progress towards meeting them. The orders in the three cases
require reforms to the New York City Police Department related to stop and frisk, trespass
enforcement (i.e., stops and arrests for trespass), and bias-free policing. In these areas, the orders
require changes in policy, supervision, training, auditing, performance measurement, handling of
complaints and discipline, and a one-year pilot program testing the use of body-worn cameras.
The report looks back at the last year, notes important achievements and also what is still to be
done and some significant challenges that lie ahead.

Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, NY 10019-9710 | www.apks.com

80291715v1

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 2 of 70

December 13, 2017 Page 2

Thank you for the court’s time and attention. Respectfully submitted, /s/P eterL .Z im roth

Enclosure

Peter L. Zimroth Monitor

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 3 of 70
Seventh Report of the Independent Monitor Peter L. Zimroth
December 13, 2017
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 4 of 70
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long
John MacDonald James McCabe
Jane Perlov

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 5 of 70
TABLE OF CONTENTS Page
I. Introduction..........................................................................................................................1 II. Policies.................................................................................................................................5
A. Stop and Frisk Policies.............................................................................................5 B. Stop Report Form.....................................................................................................7 C. Racial Profiling Policies ..........................................................................................8 D. Policies Related to the Trespass Affidavit Program ................................................9 E. Policies Relating to Patrol of NYCHA Buildings..................................................10 F. Trespass Crimes Fact Sheet ...................................................................................11 III. Supervision ........................................................................................................................11 IV. Training..............................................................................................................................14 A. Training for Recruits..............................................................................................14 B. In-Service Training ................................................................................................15
1. Command Level/Roll Call Training ..........................................................16 2. Investigative Encounters and Racial Profiling...........................................17 3. Procedural Justice and Implicit Bias..........................................................19 C. Training for Newly Promoted Supervisors ............................................................20 D. Specialized Training ..............................................................................................20 1. Plainclothes Training .................................................................................20 2. Housing ......................................................................................................21 V. Body-Worn Cameras .........................................................................................................22 VI. Performance Evaluation.....................................................................................................27
i

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 6 of 70
VII. Auditing .............................................................................................................................33 A. QAD Auditing........................................................................................................34 1. Audit Results for Stop Reports ..................................................................36 2. Undocumented Stops .................................................................................38 a. RAND Audit Results .....................................................................39 b. Police-Initiated Enforcement Audits..............................................40 3. Audits of the Trespass Crimes Fact Sheets................................................43 B. Self-Inspections of TAP Stops in the Bronx..........................................................43 C. Early Identification System....................................................................................44
VIII. Complaints and Discipline.................................................................................................45 A. Investigations of Profiling Allegations ..................................................................45 B. NYPD Handling of Substantiated CCRB Complaints...........................................47 1. Discipline and Penalties.............................................................................49 2. Reconsideration..........................................................................................54
IX. Joint Remedial Process ......................................................................................................60
ii

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 7 of 70 I. Introduction
Monitor’s Seventh Report
I. Introduction This is the seventh report of the Independent Monitor overseeing implementation
of the court orders in the cases Floyd v. City of New York, Ligon v. City of New York and Davis v. City of New York. The orders in the three cases require New York City Police Department (NYPD or Department) reforms related to stop and frisk, trespass enforcement (i.e., stops and arrests for trespass), and bias-free policing. In these areas, the orders require changes in policy, supervision, training, auditing, performance measurement, and handling of complaints and discipline. The orders also call for a oneyear pilot program testing the use of body-worn cameras (BWC).
This report comes as the monitorship enters an important new phase, evolving from a primary emphasis on the development of new policies and procedures to their sound implementation.
The stop and frisk policies needing revision have been rewritten and approved by the court. Many of the training courses that the court found wanting have been revamped. A new performance evaluation system has been created. Although, of course, there is still more work to be done to revise additional training courses and to improve policies and procedures, including, for example, in the NYPD’s auditing, complaints and discipline systems, there must now be expanded focus on effectively applying changes in policies.
Alterations to written policy are not meaningful unless the changes are implemented and sustained in the field. That requires that officers be appropriately trained and supervised, that the NYPD’s systems of rewards and discipline support the
1

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 8 of 70 I. Introduction
requirements, and that the Department has in place appropriate and workable auditing
and review mechanisms to detect when officers are not following the policies. There
must also be effective processes to correct violations and minimize their reoccurrence. It
is the monitor’s job to assess continuously where things stand in each of these areas. The
question at the end of the day will be whether the various remedial measures, working
together, provide a sustainable system of constitutional, respectful policing.
More than a year has passed since James P. O’Neill was named New York City’s
police commissioner. His leadership commitment to the reforms called for in Floyd,
Ligon and Davis is evident in his statements to the public and, very significantly, also to
members of the service, exemplified by his video introduction to NYPD’s new one-day
in-service training shared below.
There’s been a debate in New York City during the past several years about the NYPD’s use of stop, question, and frisk. It was a tool that was overused and sometimes misused. And that led to widespread resentment and distrust of our department, especially in communities of color. To be clear: I’m not laying fault for this on you. You did what the leadership of this Department asked, and the leadership bears responsibility for the consequences. The NYPD has since scaled back on stops dramatically. The Department is now working with a courtappointed federal monitor to ensure that stop, question, and frisk in New York City meets constitutional standards. The law surrounding this policing tactic can seem complicated. But it’s critically important that we learn the law and work within its confines. Doing so will protect you from legal action. It will also help preserve an essential policing tool.
In 1968, the United States Supreme Court recognized that—to do our job— officers must have the authority to conduct lawful stops based on reasonable suspicion of criminality. Cops know that stops help prevent and solve crimes every day. But it is also clear that their overuse, or misuse, undercuts both the legitimacy of the stops and the legitimacy of the police. As we move forward with neighborhood policing and seek greater connectivity with every community across the city, it is essential that enforcement generally—and investigative encounters in particular—are conducted with precision. Large numbers of arrests, summonses, and stops are not our goal. A safe city is our goal. And we can best achieve it by working more closely with the people in every neighborhood, and by exercising our police powers with discretion and good judgment.
2

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 9 of 70 I. Introduction
Implementing the stop and frisk remedies, Commissioner O’Neill emphasizes, is a critical component of strengthening trust in the NYPD and improving its relationship with the diverse communities it serves.
This report covers a number of significant developments over the past year: 1. The NYPD launched the body-worn camera pilot program in April 2017. As of November 15, officers during the third platoon (3:00 pm to midnight shift) in 20 precincts are wearing body cameras—approximately 1,350 in all. 2. The NYPD developed comprehensive in-service training on stop and frisk policies for officers and for supervisors and began testing this training on a pilot basis in June 2017. Materials for supervisor training were submitted to the court for approval, and the court approved them on December 5, 2017. The Department will now complete training its supervisors (sergeants and lieutenants), after which patrol officers will be trained. It will likely take roughly a year and a half for the patrol force of more than 20,000 officers, sergeants and lieutenants to be sent for this full-day training. 3. The NYPD has put in place a new performance evaluation system. The NYPD no longer counts the number of stops as a metric for officer performance and it has changed the way it measures performance from a system that focused on quantity to one that emphasizes quality. 4. The NYPD has begun using an electronic version of the stop report that officers can complete on their phones, tablets or desktop computers.
3

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 10 of 70 I. Introduction
5. In July 2017, the court approved a settlement between the Ligon plaintiffs and the City of New York governing the Trespass Affidavit Program (TAP) and trespass enforcement at TAP buildings throughout the city.
6. New policies governing interior patrols in buildings enrolled in the Trespass Affidavit Program and in New York City Housing Authority (NYCHA) buildings have been written (P.G. 212-59 and P.G. 212-60) and are now being implemented. The NYPD has produced roll-call videos that explain these new patrol guide procedures, and the vast majority of officers doing interior patrols have watched the videos. A new Trespass Crimes Fact Sheet is now required to record all trespass arrests in NYCHA and TAP buildings.
7. Although this is not easily documented or measured, the monitor perceives some positive changes in organizational culture driven by the police commissioner and others in leadership roles. In our visits to patrol borough commands and precincts, the monitor team has seen a number of commanders and executives implementing new protocols proactively to address stop and frisk issues. The monitor team no longer hears officers say that they feel pressure to make stops without regard for effectiveness or legality.
Nonetheless, much remains to be done. For example, there continues to be an issue of underreporting. Some officers making stops do not file the required stop forms documenting them, in part because of what appears to be an exaggerated fear of discipline and lawsuits. The monitor team has heard from some officers that completing stop reports “is not worth the trouble,” even though there are more serious consequences for not documenting a stop in a report than for making inadvertent mistakes in a stop
4

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 11 of 70 II. Policies A. Stop and Frisk Policies
report. This is an issue for first-line supervisors (sergeants and lieutenants), who have a major role in identifying and documenting improper stops by their officers and correcting and training them. The monitor team has questions about whether this role is being sufficiently embraced. The monitor will be evaluating supervisory performance, looking at whether supervisors are appropriately using tools available to them to improve their officers’ performance and whether, as a result, a higher percentage of stops are being done lawfully and being documented.
These and other developments will be discussed at greater length in the body of the report, which, following the format of earlier reports, reviews the requirements of the court orders and assesses the state of progress towards meeting them. II. Policies
A. Stop and Frisk Policies Under the court orders, as agreed to by the City and the Department, the NYPD Patrol Guide must state what constitutes a stop, when a stop may be conducted, when a frisk may be conducted and when a search may be conducted. Officers must document their reasons for the stop and for any frisk or search, if conducted, and supervisors must review stops and assess whether the stops, frisks and searches were constitutional. In August 2015, the court approved the NYPD’s new procedures on stop and frisk, which are included in Patrol Guide (P.G.) 212-11, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops. The revised Patrol Guide meets the requirements of the court orders. The Patrol Guide also addresses encounters between officers and civilians that are less intrusive than a stop or an arrest. These encounters are governed by the New York State Court of Appeals decision in
5

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 12 of 70 II. Policies A. Stop and Frisk Policies
People v. DeBour,1 which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures, P.G. 212-11, describe the standards that govern each level.
Patrol Guide 212-11 requires documentation of all stops and establishes the responsibilities of supervising officers up the chain of command. The supervisor is required to discuss the circumstances of the stop with the officer who made the stop, and then review the stop and any frisk or search, if conducted. If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk or an appropriate basis for the search, the supervisor must specify an appropriate follow-up: instruction, additional training or, when warranted, discipline.
The NYPD has a stop and frisk policy in place that meets the requirements of the remedial order. The Department is beginning an 18-month effort to train the 22,000 officers and supervisors on patrol, as discussed below in Section IV.B. The monitor will be observing this training and also evaluating the officers’ compliance with Department policies in the field. One significant way that this will be done is through the monitor team’s reviews of NYPD stop reports, discussed below in Section VII, Auditing.

1

40 N.Y.2d 210 (1976).

6

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 13 of 70 II. Policies B. Stop Report Form
B. Stop Report Form The court orders require that the NYPD develop and implement a new stop report form to be used by officers every time a person is stopped. In March 2016, the court approved the NYPD’s new stop report form and in June 2016, the Department directed that all members of the service use the new stop report form and cease using the prior report form. The new stop report has two narrative sections: one in which the officer states the reasons for the stop and a second in which the officer states the reasons for the frisk or search, if conducted. Of particular importance, the stop report has a section in which supervisors document the review required by NYPD policy (P.G. 212-11) and any follow-up action. An officer’s supervisor must confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the corresponding activity log entry was reviewed; (4) the supervisor was present on the scene; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken. In January 2017, the Department began using an electronic stop report. Officers can now complete a stop report on their phones, on tablets or at computers in the commands. The electronic stop report was added to the Department’s records management system: Finest Online Records Management System (FORMS). FORMS
7

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 14 of 70 II. Policies C. Racial Profiling Policies
will not allow officers to submit an electronic stop report unless they have filled out all mandatory data fields. Officers also will be able to describe the stop and any frisk or search in greater detail in the narrative sections, because there is no space limitation for the narratives in the electronic version of the stop report, as there is in the paper version.
The electronic form has an additional advantage. When the new stop report was first being used, many supervisors signed the reports but did not answer the supervisory review questions—for example, whether there was a sufficient basis for the stop, frisk or search. With the electronic stop report, supervisors cannot complete and submit the stop report without answering the supervisory review questions.
The stop report is now in place and officers are using the electronic version in the FORMS records management system. An issue that the monitor has identified in prior reports needs continued attention by the Department: the underreporting of stops. The Department recognizes that any assessment of compliance with the court’s remedial orders will be undermined if the NYPD’s data is not accurate and complete. Its efforts to audit underreporting are discussed below in Section VII, Auditing. The new supervisor training deals directly and forcefully with this requirement and the supervisors’ responsibility to ensure compliance. The Department believes once the training and auditing take hold, compliance with the requirements for officers to record stops and for supervisors to engage in meaningful review will improve substantially.
C. Racial Profiling Policies The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the court on August 24, 2015. As with the Department’s stop and frisk policy, substantial compliance regarding the racial profiling policy also requires
8

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 15 of 70 II. Policies D. Policies Related to the Trespass Affidavit Program
that Department personnel be trained on the policy and that the Patrol Guide section be followed in practice. Training on the Department’s racial profiling policies is part of the in-service training on stops and frisks. See Section IV.B.2 below. One of the ways the monitor will be assessing the Department’s compliance with its racial profiling policies and the Fourteenth Amendment will be through a statistical analysis of NYPD’s stop and frisk data. In May 2017, the monitor submitted his first report examining trends in the NYPD’s stop, question and frisk data, focusing on the years 2013, 2014 and 2015. This report did not draw any conclusion about the NYPD’s constitutional compliance. That determination awaits the availability of statistical data over a more extensive period. The report, however, explored available data and trends and informed the parties and the public about the kinds of statistical approaches the monitor will be considering. In publishing the report, the monitor also invited the parties and their experts, as well as any other experts, to present alternative or additional analyses for consideration by the monitor.
D. Policies Related to the Trespass Affidavit Program In June 2016, the court approved the new NYPD procedures for interior patrols in buildings enrolled in the Trespass Affidavit Program (P.G. 212-59), a program in which police officers conduct interior patrols in certain private apartment buildings. The NYPD published a new P.G. 212-59 in April 2017 and conducted roll call training on interior patrols in TAP buildings in June and July 2017. Stops inside and outside TAP buildings must comply with the NYPD’s stop and frisk policies, P.G. 212-11. The procedures state that “mere presence” in a TAP building, or entry into or exit from a TAP building, does
9

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 16 of 70 II. Policies E. Policies Relating to Patrol of NYCHA Buildings
not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information, nor does it constitute reasonable suspicion for a Level 3 Terry stop.
The Department also made revisions to Administrative Guide 303-27, setting out the requirements and procedures for entry into the TAP program. In order for a building to be enrolled in the program, the owner must certify concerns regarding criminal activity or community complaints in the building, such as trespass or drug activity within the last year. The enrollment must be renewed every six months.
At roll calls in the precincts starting in June 2017, patrol officers viewed a video explaining the TAP program and new interior patrol policies. In addition, new one-day stop and frisk training beginning for the patrol force will include training on interior patrols of TAP and NYCHA buildings.
E. Policies Relating to Patrol of NYCHA Buildings The settlement in Davis v. City of New York required a new Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) that promotes constitutional interactions between NYPD officers and persons encountered during interior patrols. As with the procedures for TAP buildings, the procedures for NYCHA buildings state that “mere presence” in a NYCHA building is not an “objective credible reason” for a Level 1 request for information, nor does it establish reasonable suspicion for a Level 3 Terry stop. P.G. 212.60 also states that arrests for trespass in restricted areas, such as roofs or roof landings, must be made after appropriate notice (e.g., through a conspicuously posted sign). The revised policy for interior patrols of NYCHA buildings became effective on April 25, 2017. The NYPD officers viewed videos explaining the revised policies at roll calls in July, August and September 2017. In
10

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 17 of 70 II. Policies F. Trespass Crimes Fact Sheet III. Supervision
addition to this roll call training, the NYPD is now designing and will be conducting a one-day training for Housing officers.
F. Trespass Crimes Fact Sheet As part of the Davis settlement, the parties agreed that officers making trespass arrests in NYCHA buildings would document the arrests on a new form (the Trespass Crimes Fact Sheet or TCFS) providing information about what led them to approach the person and what led them to believe that the person was a trespasser. The Davis and Ligon plaintiffs and the Department agreed that there should be a single form used for trespass arrests in both NYCHA buildings and TAP buildings. The parties worked together to create the TCFS, which, since May 2017, has been used for all trespass arrests in both TAP buildings and NYCHA buildings. Both the NYPD and the monitor will be looking at trespass arrests to ensure that officers’ actions are lawful and that they appropriately complete the TCFS for trespass arrests. III. Supervision As required by the court orders, Patrol Guide section 212-11 provides for a more robust supervision of officers with regard to their stop and frisk activity. Supervisors are required to respond to the scene of a stop when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. The supervisor must determine whether the stop was based on reasonable suspicion of a felony or Penal Law misdemeanor; if a frisk was conducted, whether the frisk was supported by reasonable suspicion that the person was armed and dangerous; if a search was conducted, whether it was reasonable; and if force was used, whether the use of force was reasonable. The supervisor must direct the
11

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 18 of 70
III. Supervision officer to make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer the officer for additional training or other remedial action, including, if appropriate, disciplinary action.
The new responsibility of supervisors to ensure that their officers’ actions are constitutional is one of the most significant changes in the daily operations of the NYPD relating to this monitorship. For the reforms to take root, supervisors must play an active role in ensuring that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented.
As noted in Section IV.B.2 below, NYPD sergeants and lieutenants will be the first to have the comprehensive one-day stop and frisk training, which will include a section on the responsibilities of supervisors. As part of the monitor’s assessment of compliance with the requirements of the court order, the monitor team will be assessing not only the written training materials but also whether these materials are being delivered effectively. In addition, the monitor team will be evaluating whether supervisors are actually evaluating the officers’ actions and whether appropriate followup action is being taken when warranted. As noted above, when the new stop report was first implemented, there were serious questions about whether supervisors were exercising appropriate supervision. Many supervisors failed to complete the supervisory review section of the form. Even when the form was filled out, it was often apparent that the review was perfunctory and done by rote. For example, there were many instances in which supervisors checked the box that said there were sufficient grounds for a frisk or search when in fact the officer had not conducted a frisk or search. The Department has recognized this issue, and there are steps being taken to improve performance, including
12

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 19 of 70 III. Supervision
an emphasis on supervisory responsibility in training. The Department’s Risk Management Bureau (RMB) and its auditing arm, the Quality Assurance Division (QAD), have been focusing on supervisory review. In addition, the monitor team has been emphasizing this issue in its visits to borough and precinct commands throughout the city. In these visits, there have been encouraging signs; some high-level commanders appear to have taken ownership of this issue and are communicating their concerns to both officers and supervisors. However, to date, the monitor team has seen very few instances in which supervisors are noting on stop reports an insufficient basis for a stop, frisk or search. The monitor team will continue its review of stop reports to see whether there are improvements.
An additional change, not required by the court orders, may be important. Since the last monitor’s report, New York City conducted new exams for officers seeking to become sergeants and lieutenants. Before those exams, the monitor and his team met with the NYPD and the City agency charged with the responsibility of administering the exam (the Department of Citywide Administrative Services). The monitor emphasized the importance of the new stop and frisk policies and the enhanced role of supervisors in the new policies. Months before the examination was administered, applicants were notified by a formal, published “Notice of Examination” of the topics from which the exam questions would be drawn. Those areas included stop and frisk and trespass enforcement policies and the role of supervisors. This was a very effective way to focus the attention of those taking the exams on these topics and, beyond that, to communicate the importance of the topics to everyone who read the notice or heard about it.
13

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 20 of 70 IV. Training A. Training for Recruits
IV. Training A. Training for Recruits Training materials for Police Academy recruit classes on stop and frisk, racial
profiling and interior patrols for TAP and NYCHA buildings were rewritten and approved by the court in April 2015. The materials for these courses were revised when new NYPD policies were approved (e.g., P.G. 212-11, Investigative Encounters), and in response to continued review by the parties and the monitor team. The course on investigative encounters has been updated to reflect the new stop report form, including instruction on what to include in the narrative sections and emphasis on the newly enhanced role of supervisors in reviewing the constitutionality of stops. The course on interior patrols of TAP and NYCHA buildings has been updated to reflect the new procedures governing those topics, P.G. 212-59 and P.G. 212-60.
Scenario-based training for recruits is being taught in mock environments at the Academy; the scenarios are scheduled to coincide with classroom instruction on the topics related to the remedial orders. The parties also developed additional scenarios raising issues of racial profiling and biased policing for use in both recruit and in-service training.
One recruit training segment identified in the Floyd liability and remedies decisions as needing revision is a training module conducted by the Firearms and Tactics Section on the characteristics of armed suspects.2 This training teaches recruits about factors that should raise their awareness when they attempt to determine whether or not

2

Floyd v. City of New York, 959 F. Supp. 2d 540, 614 (S.D.N.Y. 2013) (Liability

Opinion); see Floyd v. City of New York, 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013)

(Remedies Opinion).

14

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 21 of 70 IV. Training B. In-Service Training
an individual they encounter is armed. The Risk Management Bureau worked with the Firearms and Tactics Section of the Police Academy to create a new lesson plan and PowerPoint presentation. After a series of collaborative discussions with plaintiffs’ counsel and the monitor’s team, a final version of this training was submitted to the court and approved in February 2017.
B. In-Service Training A bigger challenge for the Department than recruit training is how to train or retrain experienced officers. First, there is the logistical challenge of assigning officers to attend classes without compromising the Department’s ability to meet its daily law enforcement responsibilities. Then there is the forensic challenge of teaching officers about their current responsibilities regarding street encounters and trespass enforcement when for years senior management of the Department, instructors and their colleagues in the station houses stressed something different. The fact that these earlier ways were so ingrained makes the in-service training challenging, but all the more important. That is why the Department, plaintiffs’ counsel and the monitor team have spent so much time developing materials and seeing how these materials were delivered and received in test runs. Once the court approves the materials and the in-service training begins in earnest, the monitor team intends to continue its practice of attending many training sessions to ensure that the training is being appropriately delivered. What follows is a more detailed description of the state of progress on in-service training.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 22 of 70 IV. Training B. In-Service Training
1. Command Level/Roll Call Training In-service training is conducted in several venues, one of which is at an officer’s command. There, the training sergeant or others often conduct brief training sessions. The most common time for this training is at roll call, at the beginning of the officers’ shift, when supervisors give assignments and alert officers to relevant information. Roll call training is important, but, of necessity, it cannot be lengthy or include sustained discussion between the officers and the trainer. The Department has produced five short videos regarding investigative encounters for roll call training to ensure that the training and information provided to NYPD members is uniform. The first of these videos is an introduction to the new stopand-frisk procedures, and was played at successive roll calls in October 2015. The next three videos cover the DeBour levels of investigative encounters (Level 1 request for information, Level 2 common-law right of inquiry and Level 3 Terry stops) and were played at successive roll calls in February, May and June 2016, respectively. The final video covers the proper documentation and supervision of stops, and was finalized after the new stop report form was approved. That video was played at successive roll calls in July 2016. These five videos remain available online to members of the service. The Department also prepared roll call videos addressing the revised Patrol Guide sections 212-59 and 212-60, dealing with interior patrols of TAP and NYCHA buildings respectively. The court approved the monitor’s recommendation and the TAP video (P.G. 212-59) on March 21, 2017, and the NYCHA video (P.G. 212-60) on May 9, 2017. In the interest of keeping officers’ attention during roll call, each of these videos was divided into two, the first of which described the new policy and the second showed a
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 23 of 70 IV. Training B. In-Service Training
series of scenarios illustrating how the new policies might play out in practice. The videos were shown in June, July and August of 2017 throughout the Department. They remain available online to all members of the service.
2. Investigative Encounters and Racial Profiling Currently, all NYPD officers are required to attend in-service training at the Police Academy each year. The Department worked with the other parties and the monitor to develop a full-day course on the law and procedures for investigative encounters, a substantial increase from what was previously allocated to these subjects. See Floyd Dkt. No. 571. The training covers the fundamental principles of stop, question and frisk, trespass enforcement, and bias-free policing. The materials clearly convey the changes in NYPD procedures and what is expected of officers and supervisors regarding the documentation and supervision of stops. More than 22,000 members of the service will go through this training. To be effective, the training classes will be limited to 30-35 officers or supervisors per class. The Department has started the training with supervisors. The parties agreed that supervisors should be trained separately so the training can cover additional material on supervisory responsibilities. After several thousand sergeants and lieutenants are trained, the Department will begin training patrol officers. The NYPD estimates that it will take up to 18 months to move the members of the service through the course. The training will be taught every weekday on both the day tour and evening tours. The first session of the training (before the meal break) begins with a short written quiz about stop and frisk law. In the pilot classes, the quiz served its purpose of showing the class that there are misunderstandings about the law and NYPD procedures. Then, an
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attorney and uniformed members of the service will co-teach a class on the law and procedures regarding investigative encounters. The instructors are encouraged to engage the attendees in discussion. Just before the meal break, there is a SurveyMonkey quiz. Again, in the pilot sessions, the results of the post-lecture quiz indicated that the content of the class was absorbed by most of those in attendance.
The content of the post-meal session will depend upon whether the class consists of officers or of sergeants and lieutenants. The post-meal session covers when stop reports are required and how to complete them, particularly the narrative sections. For officers, there will be acted-out scenarios involving investigative encounters in the Tactical Village at Rodman’s Neck, after which the officers will have to fill out stop reports based on what they saw. For sergeants and lieutenants, the post-meal segment will include discussions of video footage from NYPD body-worn cameras and focus more on their role as supervisors, particularly with regard to the supervision of stops, how to discuss stop reports with their subordinates, and their responsibilities to refer their officers for instruction, training or discipline when appropriate.
Opportunities for discussion about the role of race in investigative encounters are included in several places. The materials clearly describe the difference between the constitutionally permissible use of race based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops. Discussions about race are sometimes uncomfortable and difficult for some officers and instructors, as has been and continues to be true for many people in our country. The NYPD, plaintiffs’ counsel and the monitor team acknowledge this fact, which is why it is especially important for the parties to work together, as they have been doing, to ensure
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 25 of 70 IV. Training B. In-Service Training
that the instructors are leading these discussions in ways that make them meaningful and speak to policing tasks.
The training materials for sergeants and lieutenants were submitted to the court for approval in mid-November and were approved in early December. The training materials for officers will be finalized soon and submitted for court approval.
3. Procedural Justice and Implicit Bias The NYPD is developing an additional day of in-service training focusing on “procedural justice” and “implicit bias.” “Procedural justice” is a phrase used to describe the necessity of treating civilians with respect, listening to them and explaining the officer’s actions. The training will include discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. “Implicit bias” is the concept that everyone has biases of which they are not aware (i.e., “implicit”), arising from the particular environment (neighborhood, family, friends, media, etc.) in which he or she lives and works. The point of the training is to make officers more aware of what those biases are so that they do not interfere with the officers’ law enforcement functions. To conduct this training, the NYPD has contracted with Fair and Impartial Policing, an entity that has created training materials and provided training to law enforcement agencies around the country. This group will provide its training materials, adapted for use in New York City, and trained instructors to conduct the classes. Five training modules will be delivered: police officer, supervisor, manager, executive staff and train-the-trainer for the recruit school. The Department anticipates beginning the training by February 2018 and having it completed over the course of two years.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 26 of 70 IV. Training C. Training for Newly Promoted Supervisors D. Specialized Training
C. Training for Newly Promoted Supervisors Training for newly promoted sergeants, lieutenants and captains has undergone extensive revision. A principal focus of this training is the expanded responsibilities of supervisors, particularly sergeants, under the new Patrol Guide procedure for investigative encounters and specifically with regard to the stop report. The format of the training has been changed to encourage class participation and is similar to what was described above for sergeants and lieutenants already in rank. It is expected that the training materials for new sergeants and lieutenants will soon be put into final form and will then be submitted to the court for approval. D. Specialized Training
1. Plainclothes Training The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers, including officers who will be joining a precinct-based anti-crime or conditions unit, or any other unit that works in plainclothes. It is important to ensure that these officers get training on stop and frisk policies, because their work often involves actively seeking to detect and apprehend suspects and because they are making a significant proportion of the NYPD’s stops. The basic plainclothes course deals with tactical mindset, knowledge of the law and defensive tactics, among other necessary skills. The monitor team has conveyed to the Department the view that there should be greater emphasis on integrating the teaching of these skills. Officers in plainclothes assignments must have a good knowledge of the law and how to use this knowledge and understanding of interpersonal dynamics to do their jobs more effectively and more safely, while at the same time protecting the rights of those encountered.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 27 of 70 IV. Training D. Specialized Training
The Department has made extensive revisions to the training it provides to new plainclothes officers, to ensure it is consistent with the investigative encounters in-service training. The NYPD expects to finalize these materials shortly after the investigative encounters in-service training has been finalized.
2. Housing The Department is working on an additional day of in-service training that will be offered to all Housing officers. This training will be in addition to the roll call training on the revised Patrol Guide section 212-60 and the in-service stop and frisk training. The additional one-day training for Housing officers will include instruction on the new P.G. 212-60 (interior patrols) and on NYCHA house rules, and officers will role-play scenarios designed to illustrate how the law of investigative encounters applies when the officers are engaging in interior patrols in NYCHA buildings. The Department understands the importance of this training and is working hard with the plaintiffs and the monitor team to produce draft materials for approval. Once they are approved, the new training of the Housing officers will begin; the Department hopes this will happen early in the new year. As currently being discussed with the monitor team and the plaintiffs, the morning session will begin with introductory videos featuring the Chief of the Housing Bureau, James Secreto, and the Chair and Chief Executive Officer of NYCHA, Shola Olatoye. Then there will be a segment co-taught by an attorney and uniformed members of the Housing Bureau. The materials for this segment will be based in part on a lesson plan that was an exhibit to the Davis settlement agreement. The morning session will conclude with officers filling out a Trespass Crimes Fact Sheet based on a given fact
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 28 of 70 V. Body-Worn Cameras
pattern and completing a SurveyMonkey quiz to foster discussion and review of key points. The afternoon session will consist entirely of scenarios that the officers and instructors will discuss. V. Body-Worn Cameras
On April 27, 2017, the NYPD launched its body-worn camera (BWC) pilot program, with officers in the third platoon of the 34 Precinct in Manhattan wearing cameras. As of mid-November 2017, the Department had extended the program to all 20 of the precincts in which officers in the third platoon would be wearing cameras. Approximately 1,350 officers in these 20 pilot precincts will be wearing cameras for a one-year period pursuant to the requirements of the remedial orders. As of December 3, 2017, there were approximately 102,000 videos recorded and 14,000 hours of recordings.
The remedial order in Floyd noted the potential benefits of outfitting NYPD officers with body-worn cameras. Those possible benefits included creating objective records of stop and frisk encounters, encouraging lawful and respectful police-citizen interaction, alleviating mistrust between the NYPD and the public, and offering a way to help determine the validity of accusations of police misconduct. The court order directed the NYPD to work with the court-appointed independent monitor to conduct a one-year pilot program to determine whether the benefits of the cameras outweigh their financial, administrative and other costs. The monitor was charged with establishing procedures for the review of stop recordings by supervisors and senior managers, for preserving stop recordings and for measuring the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 29 of 70 V. Body-Worn Cameras
On April 3, 2017, the NYPD submitted to the monitor a draft operations order specifying policies and procedures related to the pilot program. Some provisions of those procedures required monitor approval because they dealt with matters within the monitor’s assigned responsibilities. These included provisions requiring the recording of arrests and investigative encounters and searches, notice that the encounter is being recorded, supervisory review of the recordings, and documentation and retention of the recordings. On April 11, 2017, the monitor approved those provisions in a memorandum and submitted the memorandum to the court. It was the monitor’s view that, upon his approval, the operations order could be promulgated by the NYPD and put into place and no additional proceedings in court would be required. On April 19, the Floyd and Davis plaintiffs objected to certain provisions of the BWC policies and argued that court approval of the BWC procedures was required and that the BWC pilot program could not go forward without court approval. On April 21, the court denied the plaintiffs’ request and the pilot went forward the following week.
The research and evaluation design for the BWC pilot program was developed by Professor Anthony Braga of Northeastern University and other members of the monitor team, in consultation with the NYPD. Professor Braga identified 20 pairs of precincts, matched in terms of demographics, socio-economic characteristics, crime and police activity. Care was taken to ensure that the officers in each precinct pair were also similar in terms of demographics, length of service, rank and citizen complaints. Then, in each pair, one precinct was randomly assigned to have cameras (the treatment precinct), and the other was assigned to be without cameras (the control precinct).
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 30 of 70 V. Body-Worn Cameras
As for evaluating the cameras’ impact, the plan anticipates using four sets of outcome measures: civility of police-citizen interactions, arrest numbers and other policing activities, police lawfulness, and police-community relations. To accomplish this, the monitor team will analyze pre-test and post-test data for officers in the camera and control groups collected from the NYPD and the Civilian Complaint Review Board (CCRB). Data from community surveys will be used to assess police-community relations. In the camera precincts, responses from before and after camera deployment will be compared to look for any significant differences. Data from camera and control precincts will also be compared to ascertain whether any change is the result of some event or circumstance unrelated to the cameras.
Because Public Housing Police Service Areas (PSAs) overlap with the 40 precincts in the randomized control trial, the pilot experiment does not include NYPD Housing officers assigned to PSAs. The monitor team will be devising a separate evaluation plan for the use of cameras by NYPD officers working in PSAs. There are only nine PSAs in New York City—too few for a randomized controlled experiment. For this reason, a quasi-experimental research design is being considered.
As noted in the Floyd remedial opinion, supervisory review of BWC footage and auditing of the procedures are important in the monitor’s evaluation of the pilot program. These are also important management tools for the Department. The monitor team has been working with the Department, with input from plaintiffs’ counsel, to design its review and audit of BWC footage.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 31 of 70 V. Body-Worn Cameras
There will be three categories of BWC review: 1. Self-inspections and supervisory reviews of BWC footage at the command level; 2. Auditing of compliance with BWC policies and procedures by RMB; and 3. Using BWC footage in QAD audits to evaluate compliance with other NYPD policies and procedures.
The NYPD developed a self-inspection for sergeants and lieutenants when the BWC pilot program was launched in the 34 Precinct. The self-inspection protocol is now being used in all BWC precincts. Under this protocol, the Risk Management Bureau randomly selects five videos recorded during the self-inspection period for a sergeant to review. The sergeant reviewing the videos completes a self-inspection worksheet that documents his or her findings and indicates any follow-up actions, where necessary, and forwards the report to the reviewing lieutenant. The worksheet instructs supervisors to review videos based on the following criteria:
1. Compliance with BWC procedural directives—was notice given? was the incident recorded in its entirety?
2. Application of law and procedures—did the officer(s) appropriately apply the law and Department procedures to interactions with the public including, but not limited to, the law and procedures regarding stops, frisks, and searches?
3. CPR standard—did the officer(s) treat members of the community with courtesy, professionalism and respect?
4. Tactics—did the officer engage in proper tactics? Based on this review, the supervisor provides comments and recommendations for follow-up actions for each of the reviewed videos, as appropriate. The self-inspection form emphasizes the quality of the interaction, with the goal of coaching the officers and
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 32 of 70 V. Body-Worn Cameras
improving performance. This information provides an important tool for precinct supervisors and executives to evaluate and assess the performance of their employees.
The platoon commander or special operations lieutenant must review two of the videos reviewed by the sergeant, using the same criteria, and note whether his or her findings are consistent with the sergeant’s. The command’s executive officer then has the final review and approval of the self-inspection worksheet.
In addition to this self-inspection regime, RMB will conduct audits of BWC videos. To determine what auditing and reporting capabilities might be available electronically, RMB is working with VieVu, the BWC vendor, and the NYPD’s Information Technology Bureau. RMB has worked with the NYPD’s Office of Crime Control Strategies to test the reliability of formulas to compare arrests, criminal summonses (C summonses) and stop reports to video recordings. In this way, the Department is able to assess the extent to which officers are recording situations in which the BWC policy requires mandatory activation.
Third, BWC video provides another record that can be incorporated into other audits to assess compliance with laws and the Department policies and procedures. QAD is in the process of evaluating what audits may benefit from BWC viewing. Body-worn camera video can be reviewed during a stop and frisk audit to see if the footage assists the auditor in determining whether the information recorded by the officer on the stop report is accurate and whether the officer had a sufficient basis for a stop, frisk or search. Additionally, the BWC footage can be cross-referenced with stop report data to identify instances of failure to document a stop. QAD has incorporated BWC review into its already existing audits of stop, question and frisk, police-initiated enforcement and
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 33 of 70 VI. Performance Evaluation
RAND audits (so called because they are based on an audit recommended by the RAND Corporation). (See below at Section VII, Auditing.) The monitor is responsible for approving the self-inspection and auditing procedures for the BWC pilot program. He is reviewing how these procedures are working in practice and considering changes suggested by the NYPD and the plaintiffs. VI. Performance Evaluation
On October 20, 2017, the monitor submitted his recommendation regarding a new performance evaluation system that the Department began earlier this year for patrol officers. Floyd Dkt. No. 562. The new system is a significant improvement from the prior evaluation system. The monitor recommended that the court issue an order that recognizes the important positive changes that have been made in how the NYPD evaluates its officers and also requires the Department to maintain those improvements as they relate to the reforms in stop and frisk practices and policies. The NYPD also recognized the importance of maintaining these improvements and consented to the entry of the proposed order. On November 6, the court approved the recommendation and entered the order. Floyd Dkt. No. 564.
In the past, the Department’s performance evaluation system was based largely on “numbers” (i.e., the quantity of enforcement activity), without considering the legality of the enforcement activity. Officers felt pressure to produce these numbers in order to receive a positive evaluation. Otherwise, they feared, they would be disadvantaged in many ways—for example, in assignments, promotions, overtime, time off and transfers.
The old performance evaluation system was incorporated in several NYPD orders. In 2011, the Department issued two orders:
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 34 of 70 VI. Performance Evaluation
1. Operations Order 50 – Quest For Excellence – Command Conditions Reports (OO50);
2. Operations Order 52 – Police Officer Performance Objectives (OO52). Operations Order 50 required commanding officers to prepare a Command Conditions Report each week identifying two crime and disorder conditions in their commands that needed to be addressed. It required officers daily to complete what was called the Police Officer’s Monthly Conditions Impact Measurement Report. Each day, officers were to list their assignments, two conditions that they were addressing, and any activities noted in 22 different columns (including arrests, summonses and stops). These reports were then submitted weekly to the officers’ supervisors, who were to review and sign them each week and add an assessment of the officer each month. Operations Order 52 described performance objectives for officers and stated that supervisors “can and must set performance goals” for proactive enforcement. In addition, supervisors used the monthly reports to prepare quarterly evaluations of their officers. These quarterly evaluations were separate from the officers’ annual evaluations, which were governed by a different Patrol Guide section. At the Floyd trial, there was evidence concerning pressure experienced by NYPD officers to increase the number of stops. The court identified two sources of this pressure: (1) CompStat meetings, at which commanding officers were questioned about their officers’ activities and number of stops; and (2) numeric goals imposed by supervisors that prompted negative consequences for officers if they were not met. Liability Opinion, 959 F. Supp. 2d at 592-602. The court discussed Operations Order 52, which, the court said, “made clear that supervisors must evaluate officers based on their activity numbers, with particular emphasis on summonses, stops, and arrests, and that
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officers whose numbers are too low should be subjected to increasingly serious discipline if their low numbers persist.” Id. at 600. Referring to the Police Officer’s Monthly Conditions Impact Measurement Report, the court stated “the form used to track officer performance reflects the NYPD’s emphasis on enforcement activity numbers and effectiveness without attention to the constitutional justifications for enforcement.” Id. at 601.
Based on the trial record, the court fashioned remedies. The court’s Remedies Opinion addressed performance evaluation in the following passage: “It is unclear at this stage whether Operations Order 52 (‘OO52’), 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 OO52’s use of ‘performance goals’ created pressure to carry out stops, without any system for monitoring the constitutionality of those stops. However, the use of performance goals in relation to stops may be appropriate, once an effective system for ensuring the constitutionality is in place.” Remedies Opinion, 959 F. Supp. 2d at 680.
After extensive internal work and consultation with and input from outside parties (other police departments, experts on performance evaluation in industry, the monitor team and plaintiffs’ counsel), the Department has begun to roll out a new performance evaluation system for patrol officers. In this new system, the lawfulness of stops and the accuracy of stop reports play a role, but the number of stops does not.
The new evaluation system has four main components. The first is the Officer Profile Report, an electronic form that is automatically generated monthly. This report compiles data from numerous Department databases and compares each officer to other
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officers in their precinct, their borough, and citywide. It does not count the number of stops conducted by the officer. The second component is the Supervisor Feedback Form, which allows supervisors to highlight commendable actions by an officer or note areas that may need improvement. A third component is the Officer Self-Report Form, which allows officers to document notable actions they consider to be positive, such as community engagement, problem-solving or achievements in crime prevention.
The final component of the new evaluation system of officers is the Quarterly Evaluation, which took effect on April 1 for the first quarter of 2017. Supervisors are instructed to review the Officer Profile Report as well as any Supervisor Feedback Forms or Officer Self-Report Forms from the relevant period prior to completing the Quarterly Evaluation. Supervisors will now use the Quarterly Evaluation to rate officers in 12 different dimensions on a scale of one to four. The fourth quarter evaluation will provide supervisors with a summary box to recap the officer’s performance over the entire year.
The NYPD now uses 12 performance categories or “dimensions” to evaluate its members. These are:
1. Problem Identification/Solving; 2. Adaptability and Responsiveness; 3. Judgment; 4. Integrity; 5. Application of Law and Procedures; 6. Community Interaction; 7. Departmental Interaction; 8. Professional Image and Maintenance of Equipment;
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9. Quality and Timeliness of Reports; 10. Initiative; 11. Leadership; and 12. Implementation of Proactive Policing Strategies. (For members who perform
administrative functions, a different dimension, Competence in Unit’s Mission, replaces this dimension.) In January 2017, the Department issued a Performance Evaluation System Guide that explains the system to members of the service and, importantly, highlights for them what the Department wants to accomplish by changing to this new performance evaluation system. “The overall message from the 12 performance dimensions is clear: it is about the quality and effectiveness of our work. It’s not purely about quantitative metrics.” See Floyd Dkt. No. 562 at ECF p. 54. The Guide notes that “[o]nly one of the 12 dimensions captures enforcement activity (‘Implementation of Proactive Policing Strategies’). This dimension is applicable only to members performing patrol functions, and it couples the evaluation of any activity with an assessment of whether the activity was lawful and appropriate.” Id. The Guide speaks to the court’s concerns about the lawfulness of stops in this passage: It should be noted that Terry stops (i.e., investigative stops or detentions that require the completion of a Stop Report) are no longer recognized as a quantitative performance metric in any way. However, if the member could not articulate a reasonable suspicion to justify a Terry stop, improperly prepared a Stop Report, or failed to complete stop documentation, supervisory members should take appropriate action, depending on the severity and frequency of the error, including guidance, training, preparing a feedback card, discipline or consideration in a quarterly evaluation. (Id. at ECF p. 58.) It should be noted that the new evaluation system covers the evaluation of officers only, and does not change the evaluation system for sergeants, lieutenants, captains and
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other supervisors. The Department anticipates that the new evaluation system will be expanded and possibly adapted to cover sergeants and lieutenants after it is first implemented for officers.
As stated, the Liability Opinion identified two sources of pressure on officers to make stops irrespective of their lawfulness. As for CompStat, that pressure has been removed. One or more members of the monitor team have watched almost all the CompStat meetings from April 2016 through early November 2017. There is seldom any mention of stops, and never criticism of the number of stops or lack of stops. This modified approach reflects an emphasis on quality over quantity concerning all enforcement activity. In one recent CompStat meeting, one of the executives running the meeting said forcefully that flooding an area with cops and “dropping a net”—the hallmarks of an earlier policing strategy—was not the answer. “The days of saying I gave a bunch of numbers over there and that’s good enough and the shootings continue is not the answer.” With respect to the second source of pressure, Operations Order 52 has been revoked.
With these changes, the specific actions referenced in the Remedies Opinion have been accomplished. In addition, the Liability Opinion referenced the daily tracking of stops and enforcement activities by officers (through the Monthly Police Officer’s Conditions Impact Measurement Reports) as an aspect of the prior system contributing to the pressure to make stops without attention to their constitutionality. That daily tracking by officers was eliminated as of January 2017 when “Quest for Excellence” was abolished.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 39 of 70 VII. Auditing
Although the specific remedy discussed in the Remedies Opinion has been accomplished—OO52 was revoked—if what replaces OO52 is just a name change and effectively still rewards officers for the quantity of stops without regard to their lawfulness, then the change would not, in the monitor’s view, meet the requirements of the Remedies Opinion. Therefore, there still must be scrutiny by the monitor and ultimately by the court to ensure that does not happen. For this reason, the monitor submitted to the court the proposed order, mentioned above, which the court has now entered. VII. Auditing
In order to maintain the remedial reforms, the Department must have in place a system that permits it to discover and then correct deviations from the law and NYPD policy. This section reports on both the efforts being made by NYPD’s Quality Assurance Division (QAD) and the results of its work. It must be recognized that QAD is appropriately rethinking how it goes about its work and the standards it uses to judge compliance and has made changes during the period under review. Therefore, differences in compliance reported by QAD from one quarter to another must be read in this context; changes in QAD’s audit findings may be the result of changes in officer behavior or instead may be the result of changes in QAD’s methodology and standards, as discussed below.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 40 of 70 VII. Auditing A. QAD Auditing
A. QAD Auditing QAD is responsible for evaluating compliance with the Department’s policies and procedures, including those relating to stop and frisk and trespass enforcement. QAD evaluates all precincts, transit districts and housing commands, as well as several specialty units. The audit procedures address both the quality of the documentation (i.e., whether the paperwork was properly prepared) and the quality of the information contained therein (e.g., whether the stop met constitutional standards). The Department also performs audits to assess the extent to which stops and frisks are being conducted but not documented. QAD and the Risk Management Bureau have made significant changes to address the auditing shortcomings identified by the court. These include changes in QAD’s audit methodology and the forms used to record audit findings to reflect the revisions to P.G. 212-11 and the use of the new stop report. The technology that provides data related to stop reports has been improving. Because the stop report is now electronic and many of the data fields on the stop report form must be completed in order for officers to submit the report, much of the administrative review to determine if the fields were complete and legible is no longer necessary. Also, the data from electronic stop reports can be aggregated and analyzed to allow for more meaningful and actionable information to be provided to commanding officers and Integrity Control Officers (ICOs) in the commands. As a result of these changes, the NYPD is in the process of making additional changes to its audit procedures, some of which (discussed below) are already in place.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 41 of 70 VII. Auditing A. QAD Auditing
QAD is currently conducting four types of audits relevant to the remedial measures: (1) audits of stop reports; (2) RAND audits to identify undocumented stops; (3) audits of police-initiated enforcement (called PIE audits); and (4) audits of trespass arrests. Each is described more fully below, along with the results of QAD audits from the third and fourth quarters of 2016 and the first and second quarters of 2017.
In addition to the audits conducted by QAD, commanding officers oversee selfinspections in their commands. Concerning stop, question and frisk, the Integrity Control Officer (ICO) in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for the month reviewed, the ICO must evaluate all of them. The results of these “self-inspections” are reported up the chain of command in the precinct and the borough and then QAD reviews a subset of the results.
ICOs in commands are now using a version of the self-inspection worksheet that does not require them to manually document that checkboxes on the stop report were completed; the electronic version of the stop report now in use prevents it from being submitted unless these boxes are checked. The self-inspection worksheet now focuses more on the quality of the officer’s narratives. The worksheet requires an assessment of the supervisor’s actions and any follow-up recommendations. The ICO conducting the self-inspection at the command now must document whether, in the ICO’s view, the supervisor came to the correct conclusion regarding whether there was sufficient basis for the stop, frisk and/or search.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 42 of 70 VII. Auditing A. QAD Auditing
1. Audit Results for Stop Reports QAD currently conducts stop report audits of every precinct and command each quarter. In 2016, QAD began using a sampling methodology developed with the monitor team and reviewed by the parties. The number of stops audited for each precinct depends on the number of stops made in that precinct during the previous three-month period. For precincts with fewer than 25 stops in that period, QAD reviews all the stops in the quarter. For precincts with more than 25 stops in the prior quarter, QAD audits a random sample of stops. The sampling methodology was developed so that over four quarters, QAD will have reviewed a sufficient number of stops to obtain not only a representative sample of stop reports for the city as a whole, but also a representative sample of stop reports from each precinct. Starting with the audits from the fourth quarter of 2016, the monitor team has obtained a sample of the stop reports that were audited by QAD, along with the QAD audits, so that the monitor team can evaluate the auditors’ work and also review a sufficient number of stops to be able to make meaningful statements about citywide compliance. When the monitor has a full year of these reviews, the monitor’s assessments will be included in the monitor’s public reports. The monitor team has met with both QAD and RMB to discuss the methodology and standards used by QAD in its audits and to review a sample of stop reports where the monitor team’s assessment of the stop report differs from QAD’s assessment. As a result of these meetings, QAD has stated that its approach to reviewing stop reports has become more stringent. For example, QAD states that if an officer has checked “Matches a Specific Suspect Description” on the stop report and the narrative repeats that the person
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 43 of 70 VII. Auditing A. QAD Auditing
stopped matched the description of a radio run, QAD will now consider that the stop report articulates reasonable suspicion for the stop only if the officer’s narrative or memo book includes what the description was and how the person stopped fit that description. This change in QAD practice during the period under review likely resulted in a larger number of stop reports not meeting QAD’s standards and may continue to do so until more officers and supervisors complete the in-service stop and frisk training.
From a legal perspective, if a stop was improper, with very few exceptions a frisk or search conducted during that stop also would be considered improper, and any contraband found from the frisk or search would be suppressed. However, when QAD auditors assess whether the stop report narrative articulated reasonable suspicion for a frisk, QAD auditors make a separate finding about the frisk narrative, independent of whether the stop itself reflected reasonable suspicion for the stop. In this way, NYPD commanders and supervisors can better use the QAD audits for training and instruction purposes. For this reason, the percentages of proper frisks can be different, and even higher, than the percentage of proper stops, as is the case illustrated in the chart below for 2016 and 2017.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 44 of 70
VII. Auditing A. QAD Auditing

Stop and Frisk Audits

Commands Audited Stop Reports Audited Percentage of Stops for Which QAD Found Reasonable Suspicion for Stop Articulated Percentage of Stops for Which QAD Found Reasonable Suspicion for Frisk Articulated Percentage of Stops for Which QAD Found Justification for Search Articulated Percentage of QAD Conclusions Consistent with Conclusions of Command’s Self-Inspections

3Q2016 132
1,944 95%

4Q2016 135
1,666 74%

1Q2017 131
1,627 71%

2Q2017 130
2,015 71%

96% 83% 80% 88%

91% 89% 87% 89%

85% 77% 87% 57%

QAD provides each command it has audited with a report of its quarterly audits so

that the command can take appropriate follow-up action. The monitor team is working

with NYPD and the plaintiffs to make these audit reports more focused on issues of

constitutionality, as well as more “user friendly” for precinct and Patrol Borough

executives. Once those improvements have been made, audit and self-inspection

procedures will be submitted to the court for approval.

2. Undocumented Stops The NYPD has acknowledged that undocumented Level 3 Terry stops are a

serious issue that needs to be addressed. If stop forms are not filled out when

appropriate, the stops cannot be reviewed by supervisors and others in the Department.

The Department’s leadership will find it more difficult to know what is actually

happening on the street. A significant percentage of undocumented stops would

undermine the Department’s and the monitor’s ability to assess compliance with the court

orders.

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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 45 of 70 VII. Auditing A. QAD Auditing
There are three types of audits that QAD performs to determine the extent of the problem and ensure proper recordkeeping: (1) RAND audits, reviewing NYPD radio transmissions; (2) police-initiated enforcement audits, reviewing arrests that started as Level 3 Terry stops; and (3) trespass enforcement audits, reviewing trespass arrests that started as Level 3 Terry stops. The results of each of these QAD audits, described below, show that the failure to document stops continues to be a problem and that continued action is needed to fix the problem.
a. RAND Audit Results One way that QAD audits the underreporting of Level 3 Terry stops is by conducting what it calls RAND audits. In a RAND audit, the NYPD uses radio transmissions to identify instances in which stops appear to have been made, but a stop report was not recorded. QAD uses keyword searches of the NYPD’s Intergraph Computer Aided Dispatch (ICAD) to identify events that likely involved stop encounters. These keywords are “stopped,” “show-up,” “holding” and “warrant check.” QAD auditors then review the ICAD events, listen to the corresponding radio transmissions, and determine whether a corresponding stop report was prepared. QAD performs this test in two commands each week or eight commands per month, an increase from seven commands per month since the monitor’s last report. The results of QAD’s test are reported to the commanding officer, who is then required to investigate further and report back to QAD whether the encounter did, in fact, require a stop report and whether one had been filed. Commands must submit a response through Department channels within six weeks of the date of the audit report.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 46 of 70
VII. Auditing A. QAD Auditing

The data below summarize QAD’s audits conducted in the fourth quarter of 2016

and the first and second quarter of 2017, and command responses to those audits.

RAND Audits with Command Responses

4Q 2016 1Q 2017

Total RAND Audits Indicating A Stop

28

28

Stop Reports On File During QAD Audit

4

2

ICAD Events Requiring Investigation

24

26

Stop Made By Another Command And

0

1

Report On File

Deemed Not Necessary After Command

8

10

Investigation (False Positive)

Stop Report Prepared At The Time Of The Event, But Not In System

4

3

Stop Made By Another Command And No Report On File

0

1

Terry Stops Without Stop Report

12

11

2Q 2017 31 4 27 0
9
2
0
16

Below are the follow-up actions taken by the commands for members who did not document stops.3

Command Follow-Up Action

Terry Stops Without Stop Report Command Discipline Instructions/Training Minor Violations Log or Supervisory Report Stop Identified Without Report, But No Disciplinary Action

4Q 2016 12 2 3 5 2

1Q 2017 11 0 6 5 0

2Q 2017 16 0 8 5 3

b. Police-Initiated Enforcement Audits QAD also uses a “police-initiated enforcement” audit to detect undocumented

stop encounters. In these audits, QAD looks at certain types of arrests and determines

whether a stop preceded the arrest and, if so, whether a stop report form was prepared.

3

The minor violations log was a logbook kept at each command that recorded

minor violations of Department rules by members of the service. The information in

these logs was not tracked centrally, it did not become part of a member’s personnel

record, and there were no penalties or additional consequences for being listed in the log.

The NYPD has replaced the minor violations log with a Supervisor’s Comment Form.

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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 47 of 70 VII. Auditing A. QAD Auditing
The arrests examined are for criminal possession of a controlled substance, criminal possession of a weapon and arrests, including for criminal trespass, where the People of the State of New York are the complainants on the Complaint Report. Arrest documents and court affidavits are reviewed to evaluate whether the arrest was preceded by a Terry stop and whether the officers prepared a stop report for the arrest, when required. For each command, QAD looks at up to 25 of these arrests. The results of QAD’s audits are sent to the commands, which review the audits and report back to QAD. The command responses note any disagreements with QAD’s findings and any corrective action taken to address deficiencies.
In the most recent quarter for which the monitor has complete data (second quarter of 2017), QAD identified 154 instances in which the police-initiated arrest appeared to involve a stop. In 13 of those instances, a stop report was on file. The commands were directed to investigate the remaining 141 arrests to determine whether the arrest started as a stop and thus required a stop report. The commands determined that 104 of the arrests did not require a stop report, often because the officer personally observed criminality or observed contraband in plain view and thus had probable cause. Removing these 104 cases from the calculus, there were 50 arrests that the commands and QAD agreed required a stop report, and 13 stop reports prepared (26.0 percent).
Separately, for criminal trespass arrests in the second quarter of 2017, QAD identified 62 trespass arrests in NYCHA buildings for which it appeared that a stop report was required. Seventeen of those stops were documented by a stop report. Commands reviewed the trespass arrests that did not have stop reports and determined that in 16 arrests, a stop report was not required. Thus, QAD and the commands agreed that 46
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 48 of 70 VII. Auditing A. QAD Auditing
criminal trespass arrests in NYCHA buildings started as stops, and of those, 17 stop reports were prepared (37 percent).
For stops in TAP buildings that preceded trespass arrests, the corresponding numbers for the second quarter of 2017 are 15 stops that QAD determined should have been accompanied by stop reports and four instances in which stop reports were found. Commands determined that three arrests did not require a stop report. Thus, there were 12 trespass arrests at TAP buildings in which the commands and QAD agreed that a stop report was required, with stop reports prepared in four of those arrests (33 percent).
Results from the first and second quarter of 2017 are shown below. These findings indicate that officers still are not completing stop reports when required. For these arrests, it has been suggested that officers believe completing an arrest report is sufficient. If that confusion is the source of the failure to document stops, this is an error and not a deliberate decision to hide the fact of a stop. And the error, if based on officer confusion, should be relatively easy to remedy through the in-service training that is now beginning, as well as instructions at the command level and other measures the Department can take to emphasize the importance of documenting stops.
PIE Audits with Command Responses

Stop Reports On File When QAD And The Command Determined That A Stop Led To An Arrest (%) Stop Reports On File When QAD And The Command Determined That A Stop Led To A NYCHA Trespass Arrest (%) Stop Reports On File When QAD And Command Determined That A Stop Led To A TAP Trespass Arrest (%)

4Q 2016 45% 17%
0%

1Q 2017 2Q 2017

29%

26%

39%

37%

17%

33%

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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 49 of 70 VII. Auditing B. Self-Inspections of TAP Stops in the Bronx
3. Audits of the Trespass Crimes Fact Sheets Officers are now required to complete Trespass Crimes Fact Sheets every time they make trespass arrests in and around NYCHA and TAP buildings. QAD now plans to audit these fact sheets and is developing worksheets for the audits. Review of the TCFS will focus on the articulation by the officer of the factors that led him or her to approach and question the defendant, whether there was probable cause for the arrest and whether a stop report was completed when required. The monitor will review the results of these audits. B. Self-Inspections of TAP Stops in the Bronx Stemming from a preliminary injunction proceeding in Ligon, the NYPD was ordered to develop procedures for ensuring that stop reports are completed for all trespass stops outside TAP buildings in the Bronx, and for reviewing the constitutionality of those stops. In an effort to meet this requirement, in April 2015 the NYPD began requiring ICOs in each Bronx precinct to conduct monthly self-inspections of the last 25 trespass stops at TAP buildings in their precinct. In early June 2016, the court approved an operations order incorporating this practice and emphasizing that the trespass stop reports had to be reviewed for completeness, accuracy and constitutionality of the underlying stops, and that the ICO must then track the results and confer with officers and their supervisors when deficient stop reports are identified. Monthly reports from the program are submitted to the Risk Management Bureau for further analysis. Since the monitor’s last report, RMB has been providing the Bronx TAP monthly assessment reports to the monitor’s team on a quarterly basis. In 2016, there were only
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 50 of 70 VII. Auditing C. Early Identification System
19 trespass stops recorded at TAP buildings in the Bronx, and in eight months none were recorded. For the first two months of 2017, there were only four trespass stops recorded at Bronx TAP buildings recorded, and for March through September none were recorded. These results require further inquiry in light of QAD’s PIE audits of trespass arrests at TAP buildings. QAD’s review of a sample of trespass arrests each quarter showed that there were trespass arrests that started as stops, without stop reports, both citywide and in Bronx precincts. ICOs should be examining these arrests as well as reviewing stop reports that are recorded.
C. Early Identification System The NYPD currently tracks officer performance using several databases and behavioral indicators to identify members of the service who have displayed behavior indicating they might be at risk of violating Department policies or creating liability for the Department. These indicators include disciplinary actions, substandard evaluations, civil lawsuits, Civilian Complaint Review Board (CCRB) complaints, use of force complaints, racial profiling complaints, supervisor recommendations and information from the NYPD’s personnel system. The Performance Analysis Section of the Risk Management Bureau then identifies members of the service to be placed in a performance monitoring program. The Department has automated the databases used by the Performance Analysis Section. The Department also developed an alert system to identify members of the service who display at-risk behavior. The Risk Assessment Information Litigation System (RAILS) was created to aggregate information from several Department databases and ensure supervisors are put on alert for further action when risky behavior
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 51 of 70 VIII. Complaints and Discipline A. Investigations of Profiling Allegations
or key performance indicators are detected. The new system was recently piloted for two months in 12 commands to test the capabilities of the system and determine whether there should be additional risk factors that would trigger alerts. RAILS delivered alerts to the commanding officer when a member of the service exceeded a threshold regarding at-risk behavior and required the command to acknowledge and respond to the alert.
In November, after the completion of the pilot, the NYPD issued an interim order and a new Administrative Guide applying the RAILS system to all commands citywide. See Appendix 1. The system now generates 17 different alerts regarding significant performance indicators related to members of the service. VIII. Complaints and Discipline
A. Investigations of Profiling Allegations The court orders and the parties’ agreements require the NYPD to begin tracking and investigating civilian complaints related to racial profiling and other allegations of bias. As a result, the NYPD has changed the way allegations of racial profiling and biasbased policing are categorized, processed, tracked and investigated. All profiling allegations, no matter how they are made to the NYPD (e.g., in writing, in a 311 or 911 call, by a call or visit to a precinct or directly to the Internal Affairs Bureau (IAB)), are now referred to IAB. Profiling allegations made to the CCRB also are referred to IAB. The complaints are logged into the IAB’s case management system and then assigned for investigation. Since January 2015, these investigations have been assigned to investigative units attached to the borough (not precinct) command or to the relevant bureau command (e.g., the Transit Bureau command). If a complaint also includes an allegation of corruption, IAB investigators will conduct the investigation.
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VIII. Complaints and Discipline A. Investigations of Profiling Allegations

The IAB has circulated to the monitor and the parties draft guidelines for profiling

investigations and training for its Command Center, IAB investigators and the borough

investigative units. The material covers the new policies for racial profiling and bias-

based policing and investigative techniques to be used for profiling complaints. The

parties and the monitor will review the drafts together with the Department so that the

training materials and investigative guidelines can be finalized.

The Department opened 339 investigations of profiling allegations made in 2015.

The dispositions of those cases were as follows: 154 were unfounded, 11 were

exonerated, 105 were unsubstantiated, 27 were partially substantiated, and 42 remain open and are still under investigation.4

There were 556 investigations of profiling allegations made in 2016, with the

following dispositions: 156 were unfounded, 201 were unsubstantiated, 22 were partially

substantiated, and 177 remain open and under investigation.

As of September 30, 2017, there were 641 investigations opened of profiling

allegations made in 2017. Of those, 25 were unfounded, 31 were unsubstantiated and

four were partially substantiated, while 581 remain open and under investigation.

Total Profiling Allegations Unfounded Exonerated Unsubstantiated Partially Substantiated Open Investigation

2015 339 154 11 105 27 42

2016 556 156 201 0 22 177

2017 641 25 0 31 4 581

4

“Unfounded” means there is sufficient credible evidence to believe that the officer

did not commit the alleged act. “Unsubstantiated” means the available evidence is

insufficient to determine whether the officer did or did not commit misconduct.

“Exonerated” means the officer was found to have committed the act alleged, but the

officer’s actions were determined to be lawful.

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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 53 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
Race (now combined with color, ethnicity and nationality) is the category with the most profiling allegations. Other categories included age, gender, religion, disability, gender identity, sexual orientation and housing status. To date, no allegation of profiling has been substantiated by the NYPD, although other violations have been identified in the investigations, such as failure to complete an activity log, and have been substantiated as part of the profiling investigations. Proving bias in individual enforcement actions is difficult. That is why it is important to get the investigative training and procedures right, and why the monitor team has reviewed and will continue to review samples of profiling investigations to evaluate their thoroughness. In addition, the monitor will explore how the NYPD analyzes data on its stops and frisks and other enforcement activities, and how it uses data on profiling allegations to analyze trends and patterns of complaints.
B. NYPD Handling of Substantiated CCRB Complaints The court orders require the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops and trespass arrests. Specifically, the Department Advocate’s Office (DAO) must provide increased deference to credibility determinations made by the CCRB, must use an evidentiary standard that is neutral between the claims of complainants and officers, and must not require that physical evidence corroborate the complaint. These requirements arise from the court’s findings that the NYPD failed to impose meaningful discipline when the CCRB had determined that officers engaged in unconstitutional stops and frisks. The court cited the percentage of cases in which the DAO declined to pursue discipline in substantiated cases in the years 2007-2012, and noted that in cases in which discipline was pursued, DAO “consistently downgraded the discipline” recommended by CCRB and recommended
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instructions, the least severe form of discipline, in the majority of cases in most years. The NYPD has recently provided the monitor and parties with draft procedures for handling substantiated CCRB complaints.
By agreement with the CCRB, the NYPD has changed the way it handles cases substantiated by the CCRB. The CCRB, not the NYPD, now prosecutes the more serious cases—those in which charges and specifications are served. These cases are tried by the CCRB’s Administrative Prosecutions Unit (APU) in the trial room of the NYPD in front of an administrative law judge. However, by statute the police commissioner has the final word on discipline, and the agreement with the CCRB provides that he can decide that the CCRB should not prosecute the case if he determines that it is in the public interest for the NYPD to retain the case and either prosecute the case itself, reduce the level of discipline so that charges and specifications are no longer served, or take no disciplinary action.
In addition, in 2014, the NYPD and the CCRB established a new “reconsideration process” applicable when the DAO disagrees with the CCRB’s decision to substantiate an allegation or disagrees with the CCRB’s recommended discipline. In such instances, the DAO requests in writing that the CCRB reconsider the case and states why. Then the CCRB can modify its substantiation decision or its recommendation for discipline, or it can decide that its original decision was correct. In either situation, the police commissioner makes the final decision on the disposition and penalty, after reviewing both the DAO’s recommendations and the CCRB’s recommendations.
The CCRB formally approved the reconsideration process in a December 2014 Board resolution. Many of the substantiated CCRB cases sent to the NYPD in 2014 were
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 55 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
closed before the reconsideration process was put in place, but a large number of them were still being reviewed by the NYPD in 2015, after the reconsideration process was in place. For a small number of 2014 cases decided before the reconsideration process was officially adopted by the CCRB, the DAO emailed an informal request for reconsideration that the CCRB considered.
The DAO has provided the monitor team with data regarding complaints in which allegations relating to stops, questions, frisks, searches or trespass arrests were substantiated by the CCRB and sent to the NYPD in 2014, 2015, 2016 and 2017. Subsections 1 and 2 below report on several issues raised by the data.
1. Discipline and Penalties Charges and specifications lead to a proceeding in the trial room, which, depending on the outcome, may lead to serious penalties. If the trial results in a not guilty decision, there will be no discipline. If, however, the officer is found guilty or there is a negotiated plea, the penalty could be serious—most often a loss of vacation days or, in the most serious cases, termination. Another level of discipline is known as command discipline. When command discipline is ordered, the final decision regarding a penalty is made by the commanding officer (CO) in the precinct. For Command Discipline A, a CO can impose up to five days loss of vacation, impose training or instructions, or “warn and admonish” the member. For Command Discipline B, the CO can impose up to 10 days loss of vacation, impose training or instructions, or “warn and admonish” the member. When training is imposed as discipline, the required training will depend on the circumstances of the violation and the history of the officer. It could involve a session with the Department’s Legal Bureau, command level training, such as
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 56 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
with the precinct training sergeant, or having the officer attend Police Academy training such as the stop and frisk training now being conducted for supervisors, if the officer has not received that training before.
In practice, the CCRB’s recommendation on the level of discipline usually is the ceiling of what the police commissioner imposes. The CCRB has noted that it “move[d] away from severe punishment to less severe discipline, and most importantly, to formalized training” in part to acknowledge the pressure officers were under to make stops and frisks, and to acknowledge “the lack of adequate and clear training and the complexities of the law.”5 In addition, the court-approved stop and frisk policy in P.G. 212-11 notes that “[m]inor or inadvertent mistakes in documentation or isolated cases of erroneous but good-faith stops or frisks by members of the service should ordinarily be addressed through instruction and training.”

5

CCRB 2014 Annual Report, p. 46,

http://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-

annual/2014_annual.pdf. See also, CCRB 2015 Annual Report, p. 32,

http://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-

annual/2015_annual.pdf and CCRB 2016 Annual Report, p. 32,

http://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-

annual/2016_annual.pdf.

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VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints

Discipline and Penalties for Substantiated Cases Sent to NYPD in 2014

NYPD Penalties 2014

Days Lost After Trial or Plea Command Discipline B

Command Discipline A

Training only

Instructions Only

Training and Instructions

Member Found Not Guilty

No Disciplinary Action

Case Closed Administratively

Discipline Losing Vacation Days After Trial Or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases (Days Lost) 47 (247 Days Lost)
17 (25 Days Lost) 17 (1 Day Lost) 32 31 4 12 12 10 172

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VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints

Discipline and Penalties for Substantiated Cases Sent to NYPD in 2015
NYPD Penalties 2015
Days lost after trial or plea Command Discipline B Command Discipline A Training only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively

Discipline
Losing Vacation Days After Trial Or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases (Days/Hours Lost) 24 (172 Days Lost)
15 (6 Days Lost) 66 (19 Hours Deducted) 70 23 27 9 10 11 255

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VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints

Discipline and Penalties for Substantiated Cases sent to NYPD in 2016
NYPD Penalties 2016
Days lost after trial or plea Command Discipline B Command Discipline A Training only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively

Discipline
Losing Vacation Days After Trial Or Through Negotiated Plea Command Discipline B Command Discipline A
Training Only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases (Days/Hours Lost) 0
3 (3 Days Lost; 4 Hours Lost) 32 (3 Days Lost; 5 Hours Deducted) 50 1 14 0 9 8 120

Penalties for Substantiated Cases Sent to NYPD in 2017. Through September

2017, the NYPD received from the CCRB substantiated allegations involving 55

members of the service. Of those, 53 remain active and only two cases have been closed,

both because the member of the service resigned.

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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 60 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
2. Reconsideration As noted above, the CCRB and the NYPD agreed on a “reconsideration” process for cases in which the DAO disagreed with the CCRB’s substantiation of a complaint or the CCRB’s recommended discipline. Under the court’s order, the DAO must (1) give increased deference to the credibility determinations made by the CCRB, (2) use an evidentiary standard that is neutral between the claims of complainants and officers, and (3) not require that physical evidence corroborate the complaint. The monitor team undertook a review of 2014, 2015 and 2016 cases within its jurisdiction (street stops and trespass enforcement) to determine whether these requirements were being met. This work involved several inquiries and reviews. 1. The monitor sent a list of cases within his jurisdiction to the CCRB and asked whether it believed the reconsideration requests did not adhere to the court’s mandate. There were 63 such cases involving 99 officers on the list. The CCRB identified five cases (involving eight officers) as being problematic. 2. The monitor independently reviewed the reconsideration memos and the CCRB’s response in all 63 cases. In some, it was clear on the face of the memos that the DAO’s request did not violate the court order, e.g., when the facts as stated by the complainant were taken as true but the DAO differed with the CCRB as to whether those facts amounted to a violation of law or policy, or where the DAO’s reconsideration request asked the CCRB to reduce the recommended penalty based only on a member’s disciplinary history. 3. There were, however, ten cases involving 19 officers in which either the monitor team could not make a judgment or the reconsideration memos themselves
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 61 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
suggested that the DAO did not provide sufficient deference to the CCRB’s determinations. In those cases, the monitor asked for and reviewed the underlying investigative files. This was a time-consuming task because the files often consisted of hundreds of pages of witness statements or summaries, NYPD documents (such as radio runs, stop reports and memo books), and multiple video and audio recordings that needed to be reviewed. After reviewing all these files, the monitor team’s view was that the DAO did not give sufficient deference to the CCRB’s credibility determinations in five cases (involving eight officers). The monitor will be meeting with the NYPD to discuss these cases and get the Department’s views.
4. Finally, there are three additional cases (involving four officers) identified by CCRB as problematic for which the monitor team will be requesting the full investigative files in order to complete its review.
5. In sum, of the 63 cases (involving 99 officers) reviewed by the monitor team, there were five cases (involving eight officers) in which the monitor’s view was that the DAO did not give sufficient deference to CCRB’s credibility determinations. Three case reviews are not yet complete. The NYPD has recently provided the monitor with memos for an additional 40 reconsideration requests, involving 56 officers, made in 2017, which the monitor will be reviewing.
Both the CCRB and the DAO have noted that the Department is now concurring with the CCRB’s recommendations for disposition and discipline more than in prior years. There appear to be two reasons for this increase in agreement. The first is the reconsideration process; the second is a shift in the CCRB’s recommendations towards command discipline, training and instructions, and away from charges and specifications
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 62 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
for stop and frisk cases. The NYPD agreed with the CCRB’s substantiation recommendation and discipline recommendation, without a request for reconsideration in 65 percent of the CCRB cases received by NYPD in 2014, 72 percent of the cases received in 2015 and 61 percent of the cases received in 2016.
By 2016, there were almost no cases in which the NYPD took action contrary to the CCRB recommendation without first engaging in the reconsideration process. In 2014, there were some cases in which the NYPD changed the disposition or penalty before the reconsideration process had been put in place. In 2015, even after the reconsideration process had been put in place, there were 12 cases in which the NYPD changed the disposition or reduced the discipline imposed without a reconsideration request. By 2016, there was only one CCRB case in which the NYPD changed the disposition or reduced the discipline imposed without a reconsideration request. In that case, the CCRB recommended a command discipline B, but the police commissioner determined that no discipline should be imposed.
The monitor has also reviewed whether the DAO requested reconsideration of the CCRB’s substantiated disposition or the CCRB’s penalty recommendation, and the outcomes of the cases for the last three years. Two things can be noted in the tables below. First, for the 2015 and 2016 cases, the DAO challenged the CCRB’s finding that the complaint was substantiated in as many cases as the DAO requested reconsideration of the CCRB’s recommended penalties.
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Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 63 of 70
VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints

Reconsideration of Disposition or Penalty, 2014-2016

Year
2014 2015 2016

Total Number Of Reconsideration Cases
22 48 42

Number Of Cases Seeking Reconsideration Of Disposition

Number Of Cases Seeking Reconsideration Of Penalty

7

15

24

24

20

22

Second, in 2016, the CCRB maintained its recommendations (and thus disagreed with the

DAO’s reconsideration request) in a greater proportion of reconsideration requests than

in the prior years. However, even when the DAO and the CCRB disagreed after a

reconsideration request, the police commissioner sided with the CCRB in some cases and

in others imposed discipline at a level that was less than recommended by the CCRB, but

more than recommended by the DAO.

Outcome of Reconsideration Requests

2014

Reconsideration Outcome (Total)

22

CCRB agrees with DAO reconsideration request

5

CCRB reduces penalty recommendation, but not as far as

11

the DAO suggests

CCRB disagrees with the DAO reconsideration request,

0

and the Police Commissioner agrees with the CCRB

recommendation

CCRB disagrees with the DAO reconsideration request and

5

the Police Commissioner agrees with the DAO

recommendation

CCRB disagrees with the DAO reconsideration request and the

1

Police Commissioner imposes discipline between the DAO and

CCRB recommendations

57

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 64 of 70
VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints

2015

Reconsideration Outcome (Total)

48

CCRB agrees with DAO reconsideration request

15

CCRB reduces penalty recommendation, but not as far as

11

the DAO suggests

CCRB disagrees with the DAO reconsideration request,

2

and the Police Commissioner agrees with the CCRB

recommendation

CCRB disagrees with the DAO reconsideration request and

16

the Police Commissioner agrees with the DAO

recommendation

CCRB disagrees with the DAO reconsideration request and the

4

Police Commissioner imposes discipline between the DAO and

CCRB recommendations

2016

Reconsideration Outcome (Total)

42

CCRB agrees with DAO reconsideration request

10

CCRB reduces penalty recommendation, but not as far as

2

the DAO suggests

CCRB disagrees with the DAO reconsideration request,

8

and the Police Commissioner agrees with the CCRB

recommendation

CCRB disagrees with the DAO reconsideration request and

17

the Police Commissioner agrees with the DAO

recommendation

CCRB disagrees with the DAO reconsideration request and the

5

Police Commissioner imposes discipline between the DAO and

CCRB recommendations

One aspect of the reconsideration process that the CCRB has raised as problematic is the time it now takes for the DAO to decide whether to reconsider a substantiated case. When the CCRB formalized the reconsideration agreement, it did so in a board resolution stating that the DAO would make its reconsideration request within 90 days of receiving the case. In its 2016 Annual Report, the CCRB noted that the time it

58

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 65 of 70 VIII. Complaints and Discipline B. NYPD Handling of Substantiated CCRB Complaints
takes for the DAO to review cases and decide whether to request reconsideration had been increasing:
One of the most significant difficulties facing the CCRB with respect to the reconsideration process is the time it takes for the DAO to review newly substantiated allegations and decide whether or not to request reconsideration by the Board. As illustrated in the following figure, there has been a consistent increase in the amount of time it takes the DAO to request reconsideration following the Board’s decision to substantiate an allegation. In the second half of 2016, the DAO took an average of 264 days to request reconsideration following the Board’s decision.
CCRB 2016 Annual Report, p. 57.6 In the CCRB’s 2017 Semi-Annual Report, the CCRB states that the average time between the CCRB’s decision and the DAO request for reconsideration has increased to 280 days for the first six months of 2017.7

6

On October 11, 2017 the CCRB adopted a rule requiring the NYPD, absent good

cause, to make its reconsideration requests within 30 days of when it receives the

CCRB’s initial recommendation. That new rule will become effective 30 days after it is

officially published.

7

CCRB 2017 Semi-Annual Report, p. 41,

https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-

annual/20171206_semi-annual.pdf.

59

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 66 of 70 IX. Joint Remedial Process
IX. Joint Remedial Process A “Joint Remedial Process” was ordered by the court and agreed to by the parties.
This is a process guided by the court-appointed facilitator, Hon. Ariel Belen (Ret.), to solicit input from stakeholders and affected communities on possible additional reforms regarding stop and frisk and trespass enforcement beyond those already required by the court. Judge Belen and his facilitation team completed their community engagement through numerous focus groups, community forums, and meetings with policy and thought leaders in criminal justice, policing and police reform. Judge Belen canvassed a wide array of stakeholders and received their ideas for potential additional reforms. Judge Belen and his team also met with police officers, supervisors, police union officials and minority affinity group representatives, and multiple senior NYPD representatives.
Consistent with the remedial order, Judge Belen will issue a final report, which will include his findings and recommendations. Under the court order, proposed additional remedial measures must be no broader than necessary to bring the NYPD’s use of stop and frisk and trespass arrests into compliance with the Fourth and Fourteenth Amendments.
60

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 67 of 70
Appendix 1

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 68 of 70

INTERIM ORDER

SUBJECT: RISK ASSESSMENT INFORMATION LITIGATION SYSTEM (RAILS)

DATE ISSUED:
11-06-17

REFERENCE:
**A.G. 320 SERIES

NUMBER:
73

1. The Department has created the Risk Assessment Information Litigation System (RAILS), which is a network tool that allows Department executives to enhance personnel management by more effectively tracking the behavior and performance of uniformed and civilian members of the service over extended periods of time. Information is gathered from a multitude of Department resources and presented in a user-friendly fashion. RAILS also enables the ability to receive real-time alerts for triggering events.

2. Phase I of RAILS generates seventeen different alerts regarding significant performance indicators related to members of the service:

ADMINISTRATIVE a. Finalized administrative transfer b. Member of the service is suspended c. Member of the service is modified

CCRB a. Three or more CCRB complaints in twelve months b. Six or more CCRB complaints in five years c. Four or more CCRB complaints for force in two years d. Five or more CCRB complaints for force in four years

DISCIPLINE a. Penalty of ten or more days b. Guilty charges and specifications for unnecessary use of force c. Two or more guilty charges and specifications for unnecessary use of force, abuse
of authority, discourtesy or offensive language in four years d. Dismissal probation e. Substantiated allegation of bias-based policing

FORCE a. THREAT, RESISTANCE OR INJURY (T.R.I.) INCIDENT WORKSHEET
(PD370-154) indicating shots fired

PERFORMANCE a. Performance Evaluation with overall rating of a 2.5 or below b. Performance Evaluation that has below competent in “Police Ethics/Integrity” c. Performance Evaluation that has below competent in “Drive and Initiative” d. Two or more below competent ratings in a Performance Evaluation.

1 of 3

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 69 of 70

3. Therefore, effective immediately, when a commanding officer uses the Risk Assessment Information Litigation System (RAILS), the following new Administrative Guide procedure entitled, 320-49, “Risk Assessment Information Litigation System (RAILS)” will be complied with:

PURPOSE

To provide commanding officers with an effective means to track the behavior and assess the performance of uniformed and civilian members of the service.

PROCEDURE

When a commanding officer uses the Risk Assessment Information Litigation System (RAILS) to track and assess the performance of a uniformed or civilian member of the service:

COMMANDING 1.

OFFICER

2.

3.

4. 5.

Log into RAILS application on a regular basis. Once signed into RAILS, acknowledge, all unacknowledged alerts. a. Review the member of the service’s profile report. b. Verify the accuracy of the information regarding the member of
the service, including their assignment. c. Select the appropriate type of acknowledgement. d. Enter details of the acknowledgement in the “Notes” section, if
applicable. Complete plan of action within 30 days of acknowledgement for the member of the service, if appropriate. a. Describe all relevant actions taken, and plan to take, regarding the
member of the service. b. Provide further details, where appropriate (e.g., training referred
for member of the service to attend, etc.). c. Recommend, whether or not the member of the service should be
reassigned. d. Recommend, whether or not the member of the service should be
placed on performance monitoring. Forward plan of action to the Commanding Officer, Performance Analysis Section. Confer with the Performance Analysis Section for the following alerts: a. Uniformed member of the service is placed on modified assignment b. Finalized administrative transfer c. Performance Evaluation with overall rating of 2.5 or below d. Guilty charges and specifications for unnecessary use of force e. Substantiated allegation of bias-based policing f. Dismissal probation.

COMMANDING 6. OFFICER, PERFORMANCE ANALYSIS SECTION

Approve submitted plans of action or reply with revised plan within 10 business days of submission.

2 of 3

INTERIM ORDER NO. 73

Case 1:08-cv-01034-AT Document 576 Filed 12/13/17 Page 70 of 70

ADDITIONAL DATA

Commanding officers with questions regarding the submission of a plan of action should contact the Performance Analysis Section at (212) 720-4800. Commanding officers with questions regarding performance monitoring should refer to the Supervisor Monitoring and Assistance Programs Guide available via the Department Intranet.

4. Guide.

Upon publication, this Interim Order has been incorporated into the On-Line Administrative

5. Any provisions of the Department Manual or any other Department directives in conflict with the contents of this Order are suspended.

BY DIRECTION OF THE POLICE COMMISSIONER

DISTRIBUTION All Commands

3 of 3

INTERIM ORDER NO. 73

 
 Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 1 of 6

DocuSign Envelope 10: 5996B24F-0750-4FA8-89FB-20055A7F076C
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------·~---------------·-------------·X DAVID FLOYD, et. nl.,
Plaintiffs, -againstTHE CITY OF NEW YORK, et. a!.,
Defe.ndants.
-----------------------------------------------------------X

08 CV 1034 (AT)

USDC SDN\' DOCUMENT ELECTRONICALL\' FILED DOC#:_ _ _ _ __ _
DATE FILED: 2/26/201 8

STIPULATION OF SETTLEMENT OF COUNSEL FEES, COSTS, AND EXPENSES TO CLASS COUNSEL FOR TIME AND EXPENSES INCURRED IN THIS MATTER FROM NOVEMBER 1, 2014 UNTIL FEBRUARY 23,2017, AND ORDER

WHER,EAS, on January 31, 2008, Plaintiffs in the above-captioned action filed a

Complaint pursuant to 42 U.S.C. § 1983; the Fourth nnd Fourteenth Amendments to the United

Sta.tes ConstitUtion; the Constitution and laws of the State ofNew York; and

WHEREAS, on August 12, 2013 the Court imposed a final order of.....~el1llllnent
injunction and ordered several forms ofpennanent reliet; and

WHEREAS, on October 31, 2014 the United States Court of Appeals for the Second

Circuit affinned the District Court's Opinion of July 30, 2014 denying the police unions motion

to intervene, granted the City of New York's motion to withdraw the appeal of this matter with

prejudice, and·remanded this case back to the District Court for further proceedings as may be

appropriate in the circumstances; and

WHEREAS, the Parties sought to resolve the issue of counsel fees, costs and expenses,

without further litigation, on terms just and fair to aU Parties and entered into the Stipulation of

Settlement of Counsel Fees, Costs and Expenses and Order, which was extensively and

vigorously negotiated in good faith, over a period of several months, and so ordered by the Court

on January 24, 2017. {"Main Fee Stipulation"); and

Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 2 of 6
DocuSign Envelope 10: 5996B24F-0750..4FAB-B9FB-20055A7FD7BC

WHEREAS, the Defendants and the Plaintiffs agree that, having obtained the above-

described relief, pursuant to Section D of the Main Fee Stipulation, Plaintiffs nre entitled to an

award of reasonable attorneys' fees, costs and expenses to Class Counsel for time o.nd expenses

incurred

in

this

matter,

from

November

I,

2014

until

'
February

23,

2017,

and

WHEREAS, the negotiations have resulted in this fee stipulation ("First Interim Fee

Stipulation"), which is subject to Court Approval, settles the counsel fees, costs o.nd expenses in

this action, in the manner and upon the tenns set forth below, for time and expenses incurred in

this matter, from November I, 2014 until February 23,2017,

NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and

between the undersigned, as follows:

A. DEFINITIONS

I. "Main Fee Stipulation" shall mean the Stipulation of Settlement of Counsel Fees, Costs and Expenses and Order, executed by the Parties in the above-captioned action, which was so ordered by the Court on January 24, 2017.
2. "First Interim Fee Stipulation" shall ·mean this Stipulation of Settlement of
Counsel Fees, Costs and Expenses to ClllSs Counsel for Time and Expenses Incurred in This
Matter from November I, 2014 until February 23, 2017, and Order, executed by the Parties in the above-captioned action in accordance with Section D of the Main Fee Stipulation.
3. "Effective Date" shall mean (30) thirty days following the "Final Approval Date" defined below and shall also be the date upon which this Fee Stipulation enters into effect
4. "Final Approval Date" shall mean the date on which this Court endorses this Fee Stipulation and following o.ny court proceedings and/or rulings, if applicable, in connection with the approval of this Fee Stipulation.
5. "Plaintiffs" shall mean the Class Representatives and Class Members.

2

Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 3 of 6
DocuSign Envelope 10: 5996B24F-075D-4FAB·B9FB-20055A7F07BC
6. "Parties'' shall mean Plaintiffs and Defendants. 7. "Class Representatives" shall mean the Named Plaintiffs in the above captioned
action.
8. "Settlement Class" shall mean the class of Plaintiffs agreed upon by the Parties. 9. "Class Members" shall mean all members of the Settlement Class.
10. "Class Counsel" shall mean Plaintiffs' attorneys of record in the above-captioned action.
11. "Defendants" shall mean the City of New York, the New York City Police
Department, and their predecessors, successors, or assignees together with past, present and future officials, employees, representatives, and agents.
12. "City" shall mean the City ofNew York. B. INTRODUCTION
1. The Parties enter into this First Interim Fee Stipulation after ann's length good faith negotiations for the purpose of avoiding the burdens of further litigation over the payment of counsel fees, costs and expenses to Class Counsel for time and expenses incurred in this action, from November 1, 2014 until February 23, 2017.
2. 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.
C. COUNSEL FEES, COSTS AND EXPENSES FROM NOVEMBER 1, 2014 UNTIL FEBRUARY 23,2017 I. The City agrees to pay attorneys' fees, totaling two-million, six-hundred ten thousand, fifty-one dollars and twenty-two cents ($2,6 I0,051.22), and costs and expenses, totnling four-thousand six-hundred forty-nine dollars and forty-nine cents ($4,649.49), to Class Counsel for time and expenses incurred in this matter, from November I, 2014 until February 23,
3

Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 4 of 6
OocuSign Envelope 10: 5996824F-075D-4FAB-89FB-20055A7FD7BC
2017. Plaintiffs hereby agree that payment shall be made by check as follows: $1,019,398.50 to
. Beldock Levine & Hoffman, LLP, $254,849.62 to Jonathan C. Moore, Esq, on behalf of Moore
& Goodman, LLP, $1,045,891.90 to the Center for Constitutional Rights, $230,713 .50 to Demos,
The $38,086.87 to Bronx Defenders, and, $25,760.32 to Covington & Burling, LLP, and accept
said payment in full satisfaction of nil claims for attorneys' fees, costs and expenses, in, arising from, or in connection with this action, during that time period. These (6) six payments shall be made within (60) sixty days from the Effective Date of this Stipulation nnd Order. No interest shall accrue if payment is issued within 60 days from the Effective Date of this Stipulation and Order. Any payment received beyond the 60 day period shall accrue interest as provided by the Federal Rules ofCivil Procedure.
D. RELEASE 1. This First Interim Fee Stipulation resolves all claims for attorneys' fees, costs, and expenses to Class Counsel incurred for time nnd expenses in this matter from November 1, 2014 until February 23, 2017, in accordance with the provisions ··of the Main Fee Stipulation, as set forth in Section D of.the Main Fee Stipulation. 2. Plaintiffs hereby agree and represent that no other claims for attorneys' fees, expenses, or costs arising out of this action, for time and expenses incurred by Class Counsel in this matter, from November 1, 2014 until February 23, 2017, shall be made by or on behalf of Class Counsel in any application for attorneys' fees, expenses, or costs ot any time. 3. This First Interim Fee Stipulation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations outside of the above-captioned action, except to enforce the tenns of this agreement. 4. This First Interim Fee Stipulation contains all the tenns and conditions agreed upon by counsel for the Defendants and the Plaintiffs hereto, and no oral agreement entered into
4

Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 5 of 6
OocuSign Envelope 10: 5996824F·0750·4FAB·89FB·20055A7FD7BC
at any time nor any written agreement entered into prior to the execution of this First Interim Fee Stipulation regarding the subject matter of attorneys' fees, expenses, or costs to Class Counsel for time and expenses incurred in this matter, from November 1, 2017 until February 23, 2017, shall be deemed to exist, or to bind the Parties hereto, or to vary the tenns and conditions contained herein, except that this First Interim Fee Stipulation shall be interpreted in a manner consistent with the previously-executed Main Fee Stipulation.
E. NULLIFICATIQN I. In the event the Court does not approve this First Interim Fee Stipulation, the Pruties shall meet and confer in good faith to detennine whether to agree upon a modified First Interim Fee Stipulation. If they are unable to do so, this First Interim Fee Stipulation shall become null and void.
AGREED TO BY:

q

f'~ /?·2.J114 1 f~~

Center for Constituti nal Rights

I

I

666 Broadway, 7th Floor

New York, NY 10012

Tel. (212) 614-6439

charney@ccrjustice.org

'

pinyin@cov .com

5

Case 1:08-cv-01034-AT Document 587 Filed 02/26/18 Page 6 of 6
OOCUSign Envelope 10: 5996B24F-0750·4FAB-B9FB-20055A7FD7BC
Suite 1600 New York, NY 10016 Tel. (212) 490-0900 jmoo rc@ BLHNY.com
cnn Rol ick Borchetta, Esq. The Bronx Defenders 360 E. 161s1 St. Bronx, NY 10451 Tel. (718) 838-7878
jennb@bronxdetenders. org
o:;:~Y.~~~
Joseph DiNorcia, Vice President, Administration & CFO Demos 80 Broad Street, 41h Floor New York, NY 10004 Tel. (2l2) 633-1405 jdinorcia(@.demos.org
2/14/2018
/ ~:::::::-------

Dated: New York, New York February~, 2018

SO ORDERED. Dated: February 26, 2018
N ew York, New York
ANALISA TORRES United States District Judge
6

 
 Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 1 of 312
NEW YORK CITY JOINTREMEDIALPROCESS
OnNYPD'sStop,Question,andFrisk, andTrespassEnforcementPolicies
FINAL REPORT AND RECOMMENDATIONS
Hon.ArielE.Belen(Ret.) Facilitator

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 2 of 312

NEW YORK CITY STOP & FRISK JOINT REMEDIAL PROCESS

Facilitation Team

Facilitator

Hon. Ariel E. Belen (Ret.)

Senior Advisor

Reinaldo Rivera

Project Manager

Jeanene Barrett, Ph.D. Candidate

Assistant Project Manager Valerie Paul

Project Attorney

Cliff Bloomfield, Esq.

Project Assistant

Jennifer Dionicio

JAMS Administrative Team

JAMS General Manager Matthew York

JAMS Case Manager

Alicia Jantsch

JAMS Case Manager

Anne Goodwin

Cover Photo: The cover page contains a photograph of an abandoned warehouse visible from Third Street in the Gowanus section of Brooklyn. The graffiti on the parapet reads “End Stop and Frisk Hands off the Kids”

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 3 of 312
TABLE OF CONTENTS
SECTION I: EXECUTIVE SUMMARY ........................................................................................ i SECTION II: INTRODUCTION.................................................................................................... 1 SECTION III: GENERAL OVERVIEW OF THE JOINT REMEDIAL PROCESS................... 14 SECTION IV: RECENT HISTORY OF POLICE-COMMUNITY RELATIONS IN IMPACTED COMMUNITIES: ......................................................................................................................... 42 SECTION V: JOINT REMEDIAL PROCESS DESIGN AND IMPLEMENTATION ............ 125
1. Convening Phase .............................................................................................................. 125 2. Focus Group Phase ........................................................................................................... 135 3. Leadership Meeting Phase................................................................................................ 171 4. Community Forum Phase ................................................................................................. 193 SECTION VI: JOINT PROCESS REFORM RECOMMENDATIONS.................................... 218 1. Creation of Permanent Structures for Feedback Regarding Officer Conduct ‒ Feedback Loops ....................................................................................................................................... 219 2. Monthly NYPD Discipline Report ................................................................................... 222 3. Disciplinary Recommendations ....................................................................................... 223 4. Body-Worn Cameras ........................................................................................................ 225 5. Recording Level 1 and Level 2 Encounters ..................................................................... 230 6. Accessing Stop Reports.................................................................................................... 236 7. Community Engagement .................................................................................................. 236 8. Public Education Campaign ............................................................................................. 247 9. Community Surveys ......................................................................................................... 250 10. Use of Stop, Question, and Frisk to Develop Youth Informants ..................................... 251 11. Mental Health and Disability Training............................................................................. 253 12. LGBTQ-Specific Training and Community Engagement................................................ 254 13. Implementing the Use of Civil Summonses for Trespass Enforcement by Extending the Criminal Justice Reform Act of 2016. .................................................................................... 257 14. Trauma Informed Training ‒ Community Impact............................................................ 259 SECTION VII: AREAS FOR POLICY CONSIDERATION .................................................... 260 1. Need for Greater Resources to Accommodate Homeless Youth ..................................... 260

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 4 of 312
2. NYCHA/TAP Responsibility ........................................................................................... 262 3. Interactions Between NYCHA Tenants and the NYPD................................................... 264 4. NYPD Practices at Subway Stations ................................................................................ 265 5. Community Investment .................................................................................................... 266 6. Repeal of Civil Rights Law § 50-A .................................................................................. 267 7. Cultural Competency Training ......................................................................................... 272 8. Neighborhood Coordination Officers............................................................................... 274 9. Community Engagement ‒ Reconciliation....................................................................... 275 10. Police Trauma ‒ NYPD Employee Assistance Program.................................................. 276 11. Training for Plainclothes Police Officers ......................................................................... 277 12. Criminal Court Search and Seizure Inquiry at Arraignment ............................................ 277 SECTION VIII: PROCESS OBSERVATIONS AND LESSONS LEARNED ......................... 280 SECTION IX: CONCLUSION................................................................................................... 303

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 5 of 312
SECTION I: EXECUTIVE SUMMARY
Justice Ariel E. Belen (Ret.) was appointed by Judge Analisa Torres of the Southern District of New York in November 2014 to serve as the Facilitator to guide the Joint Remedial Process described in the “Remedies Opinion” in Floyd v. City of New York and Ligon v. City of New York Nos. 08 Civ. 1034 and 12 Civ. 2274. See 959 F. Supp. 2d 668 (S.D.N.Y. 2013). The Remedies Opinion highlighted community input as a “vital part of a sustainable remedy in this case,” and placed the input of those communities “most affected by [the New York City Police Department’s (“NYPD”)] use of stop and frisk” at the “center of the Joint Remedial Process.” In the Court’s view, “If the reforms to stop and frisk are not perceived as legitimate by those most affected, the reforms are unlikely to be successful.” Id. at 686. The Remedies Opinion ordered the Joint Remedial Process to provide supplemental reform ideas in addition to the “Immediate Reforms” overseen by Monitor Peter Zimroth. These supplemental reforms may be no broader than necessary to bring the NYPD into constitutional compliance.
CONVENING PHASE In his role as Facilitator, Justice Belen conducted, along with the parties and various stakeholders, a civic engagement process to build relationships with individuals and
i

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 6 of 312
organizations most directly impacted by the NYPD’s unconstitutional stop, question and frisk (“SQF”) and trespass enforcement policies. The Facilitator and his Team met with over 40 organizations to obtain input concerning proposed reforms related to the SQF and trespass enforcement practices of the NYPD and to help develop the process by which this community engagement should be conducted.
FOCUS GROUP PHASE The Facilitation Team conducted a total of 64 focus group meetings — 40 groups focused on street stops and 24 groups focused on trespass enforcement. These focus groups were done in collaboration with community organizations, advocacy groups, community centers within New York City Housing Authority (“NYCHA”) developments, and the NYPD. The Facilitation Team also participated with the Monitor in focus groups of NYPD patrol officers, sergeants, lieutenants, commanding officers, and executives. Focus Groups were conducted between October 2015 and February 2017.
LEADERSHIP MEETING PHASE The Facilitation Team conducted a total of 19 leadership meetings over the course of the Joint Remedial Process. The goal of the leadership meetings was to seek reform ideas from thought leaders at community, advocacy, clergy and policy organizations. The views shared at these meetings represented the judgement of professionals often based on their direct work with individuals and communities impacted by unconstitutional SQF and trespass enforcement practices. The formal meetings took place between July 2016 and February 2017.
ii

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 7 of 312
COMMUNITY FORUM PHASE The Facilitation Team conducted 28 community forums throughout the 5 boroughs between October and December of 2016. The Community Forum Phase produced a series of public proceedings that included collaboration with the NYPD and many grassroots, community, clergy, and police reform organizations. These organizations worked in conjunction with the Facilitation Team to bring communities most impacted by SQF to solutions-oriented conversations in the form of community forums. Nine of the forums included the attendance and active participation of NYPD officers.
FINAL REPORT PHASE From January 2017 to March 2018, the Facilitation Team met with the plaintiff teams in the Floyd, Davis, and Ligon cases, as well as the Monitor’s team and the NYPD to further develop and contextualize proposed reforms related to the NYPD’s SQF and trespass enforcement policies. Concurrently, the Facilitation Team collated reform suggestions from the Focus Group, Leadership Meeting, and Community Forum Phases to extract overarching themes for the Final Report. In total, the Joint Remedial Process was able to reach nearly 2700 civilians and police officers across New York City, and over 80 different organizations both nationally and locally, over a three-year course of proceedings (see Figure 1).
iii

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 8 of 312

Figure 1: Estimated number of participants

PHASE

ESTIMATED NUMBER OF PARTICIPANTS

Convening (Relationship Building) Phase 2401

Focus Group Phase

516

Leadership Meeting Phase

132

Community Forum Phase

1,777

TOTAL

2,665

This Final Report will provide by sections an Introduction; General Overview of the Joint Remedial Process; Recent History of Police-Community Relations in Impacted Communities with Calls for Greater Respect, Transparency, and Accountability; Joint Remedial Process Design and Development; Joint Remedial Process Findings and Recommendations; Areas for Policy Consideration; Process Observations; and an Appendix. In addition, nine white papers from community groups and the NYPD on the needs and current status of reforms are appended. The Final Report makes 14 specific reform recommendations based on the community input that we received during the Joint Remedial Process. It also contains several areas for policy consideration that although outside the scope of the Joint Remedial Process merit consideration by stakeholders and policy makers alike.

1 Estimate based on roughly 80 organizational meetings with an average of three community leaders per meeting.
iv

Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 9 of 312
SECTION II: INTRODUCTION Although many Americans may not be able to articulate the basis for their opinion, they would agree that as a general rule a police officer cannot approach, detain, question, frisk, or search someone on a mere whim. Most Americans probably believe that because we do not live in a police state, the police are not at liberty to just stop a person on the street and question them much less search them without having a good reason to do so.
The legal reason that police officers cannot do so is because of an interpretation of the Fourth Amendment prohibition against unlawful searches and seizures rendered fifty years ago by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1 (1968). In thousands of opinions issued over the past half century, state and federal courts have relied on Terry’s holding that a police officer may only stop and briefly detain a person for questioning if that officer has a reasonable suspicion, supported by articulable facts, that that person has engaged in criminal activity or is about to engage in criminal activity. And under Terry, a pat down (that is, a frisk) is only permitted when an officer reasonably suspects that the person he or she has stopped is armed or dangerous: the purpose of a frisk is only to see if the person who has been stopped has a weapon, it is not a generalized search for contraband.
Imagine then that you live in one of the tonier sections of New York City, say the Upper East Side of Manhattan, and that you are white, middle or upper class. Imagine that your teenage son tells you that he was stopped, questioned, manhandled, searched, and left standing with his book bag emptied on the sidewalk by some New York City Police Department (“NYPD”) officers who never explained why they had done this to him. Imagine further that he says that this is happening to him on his way back and forth from school, sometimes every day, sometimes
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once or twice a week, sometimes once or twice a month. Imagine further that you are satisfied that he has not been breaking the law, and in fact he has not been arrested or issued a summons during any of these encounters, and that he can’t tell you the name of any of the officers involved since the one or two times he asked for a name, the officers became extremely hostile if not violent. Imagine that you tried repeatedly to find out who was doing this to your son, and for what reason, and that you could never get any explanation from the local precinct or the NYPD. Imagine further that over the course of many months, if not years, your son was being subjected to what you can’t ever imagine happening to you because you are not a criminal, you live in a nice neighborhood, and nothing in your life experience remotely suggests that police officers can do this to you precisely because you live in New York City, in America, and pay taxes to support the very same police department that is treating your son in this unimaginable way.
At some point, you go on the Internet and find out the police can only stop you in this way if they have reasonable suspicion to believe you have committed a crime. Your research also tells you that reasonable suspicion means things like a police officer sees you take cash in exchange for a glassine envelope, or sees you at night trying to break into some closed stores, or sees you in a parking lot moving from car to car trying to jimmy the locks. Then you might think: “Well I have never done these things and my son may have some issues, but he would never do these things — what is going on here? Is this America?”
All of the above is not just the product of someone’s imagination. It happened repeatedly in New York City over the course of roughly two decades. But it happened in places that most middle class Americans neither work nor live.
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It was commonplace in neighborhoods such as Harlem, Washington Heights, and the Lower East Side in Manhattan; East New York, Bedford Stuyvesant and Red Hook in Brooklyn; Stapleton in Staten Island; and in the South Bronx; as well as in New York City Housing Authority (“NYCHA”) developments around the City. Hundreds of thousands of these stops were reported by the NYPD from 2003 to the present. The vast majority, indeed 87%, of those stopped were black or Latino youth between the ages of 14 and 24. Although the stops were nominally based on reasonable suspicion that a crime had occurred or was in progress, an average of only 12% of these stops resulted in an arrest or a summons. It is, of course, difficult to reconcile the notion of “reasonable” suspicion with a failure rate of over 80%.2
Presumably, the reason that most New Yorkers were unaware that so many fellow New Yorkers had suffered the shock and indignity of these unlawful stops was that they occurred in poor, isolated neighborhoods and housing developments that although sometimes only blocks away, were far removed from the lives and consciousness of middle and upper class New Yorkers.
The number of recorded stops went from approximately 150,000 annually in 2003 to about 684,000 in 2011. The number of recorded stops then started to drop to the point that in 2017, the NYPD reported less than 10,000. Although there is a serious concern with underreporting now, it is generally agreed that the overall number of stops has been reduced significantly. Besides the obvious concerns raised by the unlawful and widespread violation of constitutional rights, these policies also had the effect of traumatizing an entire generation of
2 It should be noted that statistics mentioned within this paragraph were based on several analyses of NYPD publicly available Stop, Question and Frisk Data retrieved from http://www1.nyc.gov/site/nypd/stats/reportsanalysis/stopfrisk.pag
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young people. Sadly and ironically, the NYPD itself now accepts that there was no correlation between these stops and public safety as crime in the City has consistently decreased through this period of time even as these unlawful stops increased and then decreased so dramatically.
The Joint Remedial Process was ordered as a result of findings after a trial by Judge Shira Scheindlin of the Southern District of New York that the NYPD had engaged in widespread violations of the civil rights of hundreds of thousands of New York City residents by conducting these stops and in the manner they enforced trespass laws in public housing. The Court issued its post-trial findings in an opinion we will refer to as the “Liability Opinion.” See 959 F. Supp. 2d 540 (S.D.N.Y. 2013). The Court found not only that these practices violated the federal and New York state constitutional right to be free from unreasonable searches and seizures, but that there had also been widespread racial profiling in the manner in which the NYPD implemented its stop, question, and frisk and trespass enforcement practices.
The NYPD polices the largest, most diverse city in the United States. New York City has a resident population of approximately 8.5 million with a daytime population including commuters and tourists that far exceeds that number. It comprises 302.6 square miles spread out over five boroughs, four of which are non-contiguous and three of which are on separate islands with only the Bronx forming part of the mainland United States. Within its borders are vast skyscrapers, two international airports, several major transportation hubs, 472 subway stations, some of the richest real estate on the planet, and some of the poorest, most crime-affected neighborhoods in the country. It is a world capital of finance and culture, and home to national landmarks and historic icons such as the Statue of Liberty, the Empire State Building, and the World Trade Center. Tragically, this made it the victim of the worst terrorist attack in U.S. history on September 11, 2001.
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All of these social, geographic, demographic, and structural elements present unique challenges to the NYPD. The NYPD must respond to and protect all of the City’s residents against a constant terrorist menace as well as the more mundane but just as potentially deadly threats of street crime, drug profiteering, and gun violence.
The NYPD is arguably the most technologically advanced and efficient police force in the world. Its crime fighting strategies are renowned and serve as a model for urban police departments worldwide. The NYPD is also the largest police force in the country with approximately 50,000 employees including 35,000 police officers, with approximately 20,000 officers on patrol on any given day. It has managed to reduce crime to unimaginably low levels lessening the incidence of homicides, for example, from 1,444 in 1970 to fewer than 300 in 2017. It has broken all previous records in crime reduction and New York City is now arguably the safest large city in America.
Policing is a dangerous activity. It entails responding to natural or manmade emergencies on a regular basis, the kinds of situations that most people avoid at all costs. The overwhelming majority of police officers do their very dangerous and often unappreciated work out of a deep sense of devotion to their fellow New Yorkers. It often requires that an officer confront violent criminals who have little if no respect for accepted norms of civilized behavior. From the date of the commencement of the Joint Remedial Process in November, 2014, to the present, seven police officers, 6 men and 1 woman, have been killed in the line of duty. These honorable public servants lost their lives by putting on a uniform and agreeing to put themselves between criminals and the residents of New York City. This commitment to serve and protect even at the risk of one’s own life must always be kept top of mind in the context of recommending reforms.
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New York City is a far different place than the City of the late 1980’s and early 1990’s when certain stop, question, and frisk policies were beginning to be implemented. Any New Yorker who has lived through these decades can remember a time when crime was the order of the day. No one would think of riding a subway train after 9:00 p.m. for fear of being mugged or assaulted. Chain snatchings, robberies, car thefts, pickpocketing, prostitution, open drug dealing, shootings, and homicides were commonplace. Entire neighborhoods would shut down at dark and people walked the streets at night at their own peril. Even though it may have seemed appropriate to adopt proactive policies and procedures in response to this epidemic, it is now recognized that crime levels consistently dropped throughout this period even as the number of unconstitutional stops, and thus the total number of stops, began to significantly decrease after 2011. In other words, even if one thought it appropriate to subject the residents of the neighborhoods most beset by high crime to wholescale violations of their constitutional rights and the indignity and trauma this inflicted in the name of reducing crime, there just wasn’t any good reason to do so since there was no correlation between the number of stops and reductions in crime.
Which is not to say that widespread unjustified stops and racial profiling means that the officers making these stops are racist or don’t care about the communities they police. Officers in New York City felt great pressure to increase the number of stops they made. This pressure came from the NYPD itself. As has been well-chronicled both in the Liability Opinion and in the Monitor’s Seventh Report dated December 13, 2017, one source of this pressure was the reliance on certain metrics in measuring performance. In essence, commanding officers felt pressure at CompStat meetings to demonstrate that the officers they supervised were very active on the job. Line officers in turn responded to this pressure by making many stops. The pressure was
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institutionalized in a performance evaluation system which tracked activity such as summonses, arrests, and stops as the basis for determining assignments, promotions, and other personnel matters. A new performance evaluation system put into place during the Monitorship specifically excludes such metrics as a measure of performance.
This report should not be read in any respect as a condemnation of the NYPD and its officers. The effort, instead, is to illustrate how these unconstitutional stop, question, and frisk and trespass enforcement policies led to widespread trauma, fear, and deep mistrust across many neighborhoods in New York City and to give a forum for these impacted communities to propose any recommendations they may have for further reforms to the NYPD.
In order to maintain civil society and democratic processes, we expect police officers to act with great restraint and proceed carefully and deliberately in their encounters with the public. The NYPD fully embraces this concept in its current leadership and has made significant reforms both as part of the pending Monitorship and on its own. These reforms include the development of one the most enlightened police training curriculums in the country and the institution of community policing through the Neighborhood Coordinating Officers Program. As set forth in the Monitor’s Seventh Report, Commissioner James O’Neill himself appears in a training video acknowledging the ongoing problems, saying the following:
There was a debate in New York City during the past several years about the NYPD’s use of stop, question, and frisk. It was a tool that was over-used and sometimes misused. And that led to widespread resentment and distrust of our department, especially in communities of color. To be clear: I’m not laying fault for this on you. You did what the leadership of the department asked, and the leadership bears responsibility for the consequences. The NYPD has since scaled back on stops dramatically. The Department is now working with a court-appointed federal monitor to ensure that stop, question, and frisk in New York City meets
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constitutional standards. The law surrounding this policing tactic can seem complicated. But it is critically important that we learn the law and work within its confines. Doing so will protect you from legal action. It will also help preserve an essential policing tool. In 1968, the U.S. Supreme Court recognized [in Terry] that – to do our job — officers must have the authority to conduct lawful stops based on reasonable suspicion of criminality. Cops know that stops help prevent and solve crimes every day. But it is also clear that their overuse, or misuse, undercuts both the legitimacy of the stops and the legitimacy of the police. As we move forward with neighborhood policing and seek greater connectivity with every community across the city, it is essential that enforcement generally — and investigative encounters in particular — are conducted with precision. Large numbers of arrests, summonses, and stops are not our goal. A safe city is our goal. And we can best achieve it by working more closely with the people in every neighborhood, and by exercising our police powers with discretion and good judgment.
The NYPD deserves great credit for these reforms. However, the communities most
adversely affected by the widespread abuse of stop, question, and frisk and trespass enforcement
policies point out that these abuses, while significantly diminished, still continue and are
underreported. There remains considerable doubt in these communities that there were less than
10,000 stops in 2017. There exists deep levels of mistrust of the NYPD, and great skepticism
remains about the NYPD’s willingness to be transparent and to hold its officers and managers
accountable, especially around the discipline of police officers engaging in misconduct. Aided by
the plaintiffs’ presentation of testimony from policing experts, the Court ordered certain
“Immediate Reforms” to be developed by the Court-appointed Monitor in consultation with the
parties. At the same time, the Court was not satisfied with only relying on the advice of policing
experts. The Court recognized that “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.” And
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that “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.”3
The Court ordered the appointment of a Facilitator to conduct a Joint Remedial Process in consultation with the parties to obtain this community input. It is important to bear in mind that much has happened since the commencement of the Joint Remedial Process more than three years ago. Cell phones and other devices have been used to record instances of excessive force and of unjustified shootings of unarmed civilians by police officers that have gone viral through social media and otherwise and have resulted in civil unrest. As a consequence, there have been federal civil rights investigations and consent decrees in cities throughout the United States. In New York City alone, there have been prosecutions and administrative disciplinary proceedings brought against police officers for the deaths of Eric Garner and Ramarley Graham.
While the Joint Remedial Process has evolved in this historical and political context, its jurisdiction is limited to reporting on recommendations for additional reforms from those communities most adversely affected by the stop, question, and frisk and trespass enforcement policies of the NYPD. At the same time, the legacy effects of stop, question, and frisk and trespass enforcement abuses are still being felt in impacted communities, as is the historical trauma caused by decades upon decades of police misconduct not limited to stop, question, and frisk and trespass enforcement abuses.
While the continuing challenges of other criminal justice issues such as unjustified police violence and mass incarceration are not within the specific scope of the Joint Remedial Process,
3 Remedies Opinion, 959 F. Supp. 2d at 686.
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it is difficult to divorce stop, question, and frisk and trespass enforcement abuses and reform from these contexts. This is because they are clearly important and contribute to worsening relations between the NYPD and impacted communities. This, in turn, has a direct impact on how the police perceive people and how they react to those they approach and question and how members of the community perceive and react both before and after being approached and questioned by the police. The legal definition of a stop, for example, is that a reasonable person approached by an officer does not feel free to leave. An individual living in a community awash with destructive police-community interactions is likely to be more apt to believe they have been stopped when an officer approaches than a well-heeled resident of the Upper East Side for whom stop and frisk, excessive force, and mass incarceration are just things they may read about in the New York Times. And for many reasons, including distrust and implicit bias, an officer approaching members of these disparate communities is more apt to find “reasonable suspicion” of criminal activity, the circumstance warranting a stop, in one community than in the other. The possibility of escalation is also heightened as these encounters are fraught with tension.

*

*

*

This Final Report provides by sections a General Overview of the Joint Remedial Process; Recent History of Police-Community Relations in Impacted Communities with Calls for Greater Respect, Transparency, and Accountability; Joint Remedial Process Design and Development, with its component phases; Joint Remedial Process Findings and Recommendations; Areas for Policy Consideration; Process Observations; and an Appendix.

The Final Report makes 14 specific reform recommendations based on the community input that we received during the Joint Remedial Process. It also contains several areas for policy

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consideration that although outside the scope of the Joint Remedial Process merit consideration by stakeholders and policy makers alike.
The overarching theme of the input received during the Joint Remedial Process, which is reflected in the recommendations in this Final Report, is that the NYPD must demonstrate greater respect, transparency, and accountability in order to gain greater trust, goodwill, and collaboration in impacted communities. There are many organizations and individuals who seek this collaboration in these communities. We hopefully have charted a course for the NYPD to pursue this collaboration.
I would like to thank Michael D. Young, who served as Deputy Facilitator, for his great interest and assistance in the development, implementation, and administration of the Joint Remedial Process. Mr. Young helped developed and participated in the Convening and Leadership Phases of the Joint Remedial Process. His guidance and insights were invaluable. Mr. Young is a nationally recognized full-time neutral at JAMS since 1989. He received an A.B. with Honors from Brown University and a J.D. cum laude from Harvard Law School.
I would like to thank the following members of the Facilitation Team for their tremendous diligence and devotion to this multi-year project.
JRP Senior Advisor Reinaldo Rivera recently retired from the United States Department of Justice Community Relations Service where he served as a National Program Manager and Regional Director for Region II which includes New York, New Jersey, Puerto Rico, and the United States Virgin Islands. Mr. Rivera completed advanced graduate study in Administration, Planning and Social Policy at the Harvard Graduate School of Education, where he received a
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Master’s Degree. He received a B.A. from Middlebury College graduating with Departmental Honors in Anthropology-Sociology.
JRP Project Manager Jeanene Barrett is a Ph.D. Candidate with The Graduate Center of the City University of New York - John Jay College of Criminal Justice. Ms. Barrett has a M.Phil. in Criminal Justice from The Graduate Center of the City University of New York, an A.M. in Social Work from the University of Chicago School of Social Service Administration, an M.S. in Human Services Administration from Spertus College, and a B.S. in Administration of Justice from Southern Illinois University, Carbondale. Ms. Barrett is an Adjunct Faculty member with appointments at John Jay College of Criminal Justice, Brooklyn College, and St. Joseph's College.
JRP Assistant Project Manager Valerie Paul holds a B.S. cum laude from the University of Central Florida. Ms. Paul completed two years of postgraduate research in Educational Psychology at The Graduate Center of the City University of New York where she served as a Research Assistant. She has also served as an Adjunct Faculty member at Hunter College. Ms. Paul is finalizing her thesis for an M.A. in Liberal Studies at The Graduate Center of the City University of New York.
JRP Project Attorney Cliff Bloomfield is associated with JAMS where he has worked on a wide range of commercial arbitrations. Mr. Bloomfield began his legal career as a litigation associate in New York where his practice focused on complex commercial litigation. Before joining JAMS, he served as a law clerk at both the United States District Court for the Southern District of New York and the United States Bankruptcy Court for the Eastern District of New
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 21 of 312 York. Mr. Bloomfield received his J.D. from the University of Pennsylvania Law School and his B.A. cum laude from the College of Arts and Sciences of Cornell University.
JRP Project Assistant Jennifer Dionicio holds a B.A. in Criminology from John Jay College of Criminal Justice where she is also a candidate for a M.A. in Criminal Justice.
Finally, I would like to thank Hon. Analisa Torres, United States District Judge for the Southern District of New York, for giving me this incredible opportunity to serve the people of the City of New York.
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SECTION III: GENERAL OVERVIEW OF THE JOINT REMEDIAL PROCESS This section will describe the genesis and mandate of the Joint Remedial Process. It will
then look at similar community engagement efforts seeking input and community collaboration in developing reforms to local police departments in the United States. Finally, we discuss the initial efforts made to develop a community input process for a city the size of New York.
The Joint Remedial Process, and the appointment of a Facilitator to lead that process, is the result of three federal class action lawsuits filed in the United States District Court for the Southern District of New York: Floyd v. City of New York, which challenged the NYPD’s “stop and frisk” policies and practices; Ligon v. City of New York, which challenged the NYPD’s criminal trespass enforcement practices in privately owned buildings in the Bronx enrolled in the Trespass Affidavit Program (“TAP”); and Davis v. City of New York, which challenged stops and arrests for criminal trespass in New York City Housing Authority (“NYCHA”) buildings.
In August 2013, after a nine-week trial in Floyd, the Court found that the NYPD’s use of stop and frisk violated the Fourth and Fourteenth Amendments of the U.S. Constitution. In the Floyd Liability Opinion, the Court held that the NYPD violated the Fourth Amendment because officers were both making stops without reasonable suspicion and conducting frisks without a reasonable belief that the person who had been stopped was armed and dangerous. The Court found that the NYPD had violated the Fourteenth Amendment by “targeting young black and Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men” — that is, the NYPD had been discriminating on the basis of race.4
4 Liability Opinion, 959 F. Supp. 2d at 664.
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In the Remedies Opinion, also issued in August 2013, the Court established a multi-stage framework to bring the NYPD’s use of stop and frisk into compliance with the law. The Court appointed a “Monitor” to oversee the reforms and, in the first instance, to work with the parties to develop and implement certain Immediate Reforms. But the Court also recognized that lasting reform was unlikely to occur without input from a broad spectrum of stakeholders. The Court explained that “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.”5 Likewise, stakeholder participation contributes to the legitimacy of the reform process because “[n]either 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.”6 The Court also determined that “‘ongoing communication and negotiation with the community about stop and frisk activities’” is important to building strong “‘police-community relations.’”7
In order to solicit stakeholder/community input, the Court appointed a “Facilitator” to engage in a “Joint Remedial Process.” This process included “work[ing] with the parties and other stakeholders to develop . . . a more thorough set of reforms to supplement, as necessary, the Immediate Reforms.”8 Justice Ariel E. Belen (Ret.) was appointed by Judge Analisa Torres of the Southern District of District of New York in November 2014 to serve as the Facilitator to
5 Remedies Opinion, 959 F. Supp. 2d at 686. 6 Id. at 686-87. 7 Id. at 687 (brackets omitted) (quoting Greg Ridgeway, RAND, Analysis of Racial Disparities in the New York Police Department’s Stop, Question, and Frisk Practices, at 44 (2007), a report commissioned by the NYPD, available at https://www.rand.org/content/dam/rand/pubs/technical_reports/2007/RAND_TR534.pdf). 8 Id. at 678.
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guide the Joint Remedial Process. In the Court’s view, the heart “of the Joint Remedial Process [is] input from those who are most affected by the NYPD’s use of stop and frisk, including but not limited to” the following stakeholders:
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 [Civilian Complaint Review Board (“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 [Department of Justice (DOJ)], Communities United for Police Reform, and the Black, Latino, and Asian Caucus of the New York City Council.9 The Court thus defined “stakeholder” broadly to include, among others, community members, police officers, and grassroots organizations.
The Court envisioned that the Joint Remedial Process would include “‘town hall’ type meetings in each of the five boroughs in order to provide a forum in which all stakeholders may be heard,” while recognizing that “[i]t may be necessary to hold multiple meetings in the larger boroughs in order to ensure that everyone will have an opportunity to participate.”10 Aside from this town hall directive, the Court granted the Facilitator, in consultation with the parties, broad discretion in developing a process to reach and solicit input from stakeholders.
9 Id. at 686, 687; see also id. at 687 (“Input from academic and other experts in police practices may also be requested.”). 10 Id. at 687.
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The Court thought that “[t]he Cincinnati Collaborative Procedure and subsequent DOJ consent decrees and letters of intent [in other police reform cases could] be used as models”11 It is clear from the record that the DOJ consent decrees and settlements the Court had considered included, at the very least, those in New Orleans, Louisiana and Seattle, Washington, in addition to Cincinnati.
“Community engagement” can take on different forms and serve different purposes. Before reviewing the stakeholder and community engagement efforts in Cincinnati, Seattle, and New Orleans, it is useful to consider:
(i) the stages at which community input can play a role in police reform, such as during an investigation, before a consent decree is entered, and as part of the relief ordered in a consent decree; (ii) the potential objectives of such engagement, such as understanding the community’s perspective, identifying reforms, reporting on progress, soliciting feedback on the implementation of the reforms, and auditing/accountability; (iii) the various types of stakeholders, including affected citizens, police officers, community leaders, community service-based organizations, and advocacy groups; (iv) the various possible forms and formats of engagement — including meetings in small groups, town hall meetings, and surveys — as well as the possible participants in any given meeting, such as whether the participants are homogenous or the forum is open to the public or is in a more controlled, confidential environment; and (v) the difficulties inherent in reaching members of certain vulnerable populations, such as homeless youth or citizens who are distrustful of authority.
11 Id.
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A review of Department of Justice practices, for instance, indicates that, as a general rule, stakeholder engagement begins during the pattern-or-practice investigation, and continues prior to the DOJ’s negotiation with the police department of the terms of a settlement (usually taking the form of a consent decree), which is typically a private, bilateral negotiation between the DOJ and the police department. Thereafter, the resulting agreement will include a framework for continued stakeholder or community input.
During the investigation stage, the DOJ begins by meeting with key stakeholders, including “law enforcement leadership, local political leadership, police labor unions and affinity groups, and local community groups[,]” and also later conducts interviews with these groups.12 It then attempts to reach members of the community through town hall meetings, and creates voice and email mailboxes to receive information from community members. Depending on community input, the DOJ also may “reach out through neighborhood listservs, community blogs, social media, and radio stations;” the DOJ “also canvasses places communities gather — places of worship, street corners, apartment complexes, parks, shopping malls, and local businesses.”13 The DOJ’s “engagement involves outreach to civic leaders, faith leaders, neighborhood groups, advocacy organizations, local business owners, and individuals.”14 Prior to negotiating reforms with the police department, the DOJ:
holds community meetings and draws on relationships built during the investigation stage to involve the community in building solutions. Often the Division will present specific briefings on its findings to community representatives and hold meetings focused on particular aspects of those findings designed to drill down on
12 The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present (January 2017), at 10. 13 Id. at 13. 14 Id.
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specific remedies. The Division always encourages community representatives to present specific proposals for reform, in writing or at a community meeting, and works to incorporate those proposals into its reform agreements.15 Reform agreements entered into with the DOJ between 2012 and 2016 include additional forms of community engagement — typically not conducted by the DOJ itself. First, the police department is required to develop and implement a plan to increase police-community engagement. Second, the court-appointed monitor is required to hold regular public meetings updating the community on the reform process. Third, reform agreements require periodic community surveys to create a baseline to track community perceptions of the department over time. Finally, many agreements call for the creation of community committees or councils made up of stakeholders, including representatives of rank and file officers. These committees hold public meetings and communicate community concerns and reform proposals to law enforcement. Unlike Civil Complaint Review Boards, they typically are not responsible for investigating or resolving civilian complaints about misconduct. Perhaps the leading example of such a committee is Seattle’s Community Police Commission, which became a permanent body through legislation enacted in 2017. As a useful comparison to community engagement efforts developed during the Joint Remedial Process, we now consider various forms of community engagement utilized during the
15 Id. at 17.
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police reform efforts in Cincinnati, Seattle, and New Orleans.16 Elements of the various forms of community engagement described in the foregoing are seen in each of these cities.
Cincinnati (2001-2008) Size of Population/ Number of Sworn Personnel 331,159 (2001)/1047 (2003)
In March 2001, the American Civil Liberties Union (“ACLU”) and the Cincinnati Black United Front (“CBUF”) brought a class action lawsuit alleging that Cincinnati’s police department had discriminated against African Americans for decades, including with respect to its use of stop and frisk and incidents of excessive force. Rather than litigate the issues raised in the complaint, the parties agreed to engage in a “collaborative procedure” to reach a settlement based on stakeholder input.17
Under the collaborative procedure, a facilitator was appointed to gather input from the community, stakeholders, and policing experts. As explained by Judge Dlott:
The . . . complaint alleges social conflicts of great public interest to the community. To the extent possible, the collaborative will include an opportunity to receive the viewpoints of all persons in the Cincinnati community regarding their goals for policecommunity relations. The participants will state their goals for police-community relations; why these goals are important; and how they would achieve these goals (What, Why, and How data). The collaborative will include an opportunity for dialogue about these responses in structured group sessions. As described below, the collaborative will also include a process for expert analysis of
16 It must also be noted that police reform consent decrees post-dating the Remedies Opinion and the initiation of the Joint Remedial Process, particularly those entered into in Newark, New Jersey and Baltimore, Maryland, have called for extensive community engagement. 17 In re Cincinnati Policing, 209 F.R.D. 395, 397 (S.D. Ohio 2002); Tyehimba v. City of Cincinnati, No. C-1-99-317, 2001 WL 1842470 (S.D. Ohio May 3, 2001).
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the current practices of the Cincinnati Police Division (CPD) and practices in other communities.18 CBUF, the ACLU, the Cincinnati City and Police Administration, and the Cincinnati Fraternal Order of Police acted as an advisory group. The advisory group organized the population into eight stakeholder groups: (1) African American citizens; (2) city employees; (3) police and their families; (4) white citizens; (5) business and education leaders; (6) religious and social service leaders; (7) youth; and (8) other minorities.19
As an initial step in gathering community input, all citizens were asked to complete a questionnaire seeking input on goals for police-community relations:
Instructions for access to the online questionnaire were broadcast and published by all of the local media outlets, hard copies were distributed through churches and social service agencies and in the police department, and, to assure participation of inner city African-American and Appalachian youth, interviewers canvassed youth clubs, street corners, and basketball courts to record responses from young residents of the city.20 Roughly 3,500 questionnaires were completed, including 750 from youth.
Next, 10 to 25% of those who had completed the questionnaire, about 800 people, participated in separate “four-hour follow-up dialogue and agenda-setting meetings within their respective identity groups.”21 These feedback sessions
consisted of carefully facilitated small-group discussions regarding people’s motivations and values. A staff of some thirty volunteer Facilitators expertly guided this process. As part of the feedback
18 Tyehimba, 2001 WL 1842470, at *1. 19 See Jay Rothman, Ph.D., Identity and Conflict: Collaboratively Addressing Police-Community Conflict in Cincinnati, Ohio, 22 Ohio St. J. on Disp. Resol. 105, 114 (2006). 20 Id. at 115-16. 21 Id. at 116.
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sessions, these facilitated dialogue groups enabled participants to have an opportunity to express deeply held feelings and find resonance with others in their group, as well as to provide an underlying value basis for constructive steps for addressing the broader issues of race and police-community relations. Following the small sessions, each group was provided with a set of shared goals compiled from [the facilitator’s] analysis of their group’s questionnaire responses. Representatives from each group then negotiated and reached agreement on their group’s goals.22 Ultimately, the facilitator sought consensus on five shared goals from representatives of the eight stakeholder groups (about 60 to 80 of the stakeholders in total). These goals were incorporated into the parties’ negotiations leading to the entry of a Collaborative Agreement in April 2002.
The Collaborative Agreement included additional opportunities for community engagement. For instance, the parties agreed to “develop and implement a plan of community engagement to prepare Cincinnati residents, business owners, non-profit agencies, community and religious organizations, and others as partners with the City in problem solving activities.”23 In addition, periodic citywide surveys were to be conducted to assess public “attitudes toward and satisfaction with the police.”24 The department also conducted district “town hall” meetings in each of the City’s five divisions.
A rather significant component of the agreement in Cincinnati was implementing a strategy of community problem oriented policing (“CPOP”).25 As Rothman explains, “The main concept of CPOP is that problem solving should become the principal policing strategy and that
22 Id. at 130. 23 Collaborative Agreement in In re Cincinnati Policing, No. C-1-99-317 (S.D. Ohio), at 4, available at https://www.cincinnati-oh.gov/police/linkservid/27A205F1-69E9-4446-BC18BD146CB73DF2/showMeta/0/ 24 Id. at 11. 25 See id. at 4-10.
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citizens and police working together provides the foundation for improving community safety.”26
One mechanism for stakeholders to play a role in CPOP was the Community-Police Partnering
Center:
The Community-Police Partnering Center at the Urban League of Greater Southwestern Ohio led the CPOP work in partnership with the police department, and it received substantial private funding ($1 million per year for five years) to do so. It also solicited individuals from throughout the community to join the Friends of the Collaborative, a loosely organized community advisory group that consulted on CPOP and [Collaborative Agreement] implementation. This group engaged in dialogue with police representatives about problem-oriented policing practices and reviewed use of force and investigation statistics of the civiliangoverned Citizen Complaint Authority established under the CA. The Friends of the Collaborative did not meet regularly, and it was never intended to exclusively review department policies, or to make formal recommendations or prepare reports. Subsequently, the City Manager’s Advisory Group (MAG) assumed responsibility for advising the city and police department informally on general police issues of concern to the community. The city manager appoints its members without specific terms and there is no defined number of members or representation. The city manager chairs MAG, which meets about three times each year, and is not responsible for preparing reports or recommendations.27
Although court supervision of the Collaborative Agreement ended in 2008, in June 2017,
City officials retained a panel of experts to examine the progress that had been made and issues
that had arisen. In January 2018, the group issued a report that began, “The November 2017
report from the City — Community Problem-Oriented Policing Strategy — strongly signals that
26 Rothman, Identity and Conflict: Collaboratively Addressing Police-Community Conflict in Cincinnati, Ohio, 22 Ohio St. J. on Disp. Resol. at 127. 27 Betsy Graef, The Seattle Community Police Commission: Lessons Learned and Considerations for Effective Community Involvement, 14 Seattle J. for Soc. Just. 1, 43-44 (2015) (based on interviews by the author).
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the City of Cincinnati has abandoned the principles of the Collaborative Agreement.”28 Among other reform proposals, the panel recommended strengthening MAG:
Strengthen the MAG so it can provide robust oversight of the Collaborative Agreement. The MAG should focus on patterns of practice and not on specific incidents (except in so far as they relate to patterns). Important decisions about major provisions of the Collaborative Agreement should not be made unilaterally. The MAG is the obvious forum for raising concerns about resources, priorities, abilities, conflicts, and commitments should any party find it difficult to live up to its obligations in the Collaborative Agreement or in any subsequent refreshed agreement. Rather than MAG members discovering changes after one party has made them, the MAG should be informed about difficulties prior to any commitment to a solution, and the MAG’s participants should undertake an exploration of what needs to be done (if anything). The City should examine Seattle’s Police Commission for ideas about collaborative problem-solving that might be applicable to Cincinnati.29 It remains to be seen whether the MAG, once further empowered, will be able to help align stakeholder interests with the goals of the Collaborative Agreement.
28 Saul A. Green, Joseph E. Brann, Jeffrey Fagan, Ph.D., John E. Eck, Ph.D., Progress Report: City of Cincinnati Collaborative Agreement, The Status of Community Problem Orientated Policing Strategy (1/4/2018), at 1, available at https://www.cincinnati-oh.gov/police/assets/File/Community%20Problem-Oriented%20Policing%20%20Progress%20Report%20-%20Saul%20Green%20et%20al%201-04-18.pdf 29 Id. at 12.
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New Orleans and Seattle The settlements in New Orleans and Seattle arose after investigations pursuant to 42 U.S.C. § 14141 by the Department of Justice. As indicated above, the DOJ seeks stakeholder and community input during the investigative process; that type of community engagement, which the DOJ has described only in general terms, is not including in the following.
New Orleans (2012-Open) Size of Population / Number of Sworn Personnel 343,829 (2010) / 1452 (2010)
In March 2011, the Department of Justice concluded an investigation into the New Orleans Police Department (“NOPD”) pursuant to section 14141. The DOJ began its report on that investigation by stating that “Basic elements of effective policing — clear policies, training, accountability, and confidence of the citizenry — have been absent for years. Far too often, officers show a lack of respect for the civil rights and dignity of the people of New Orleans.”30 The DOJ found a pattern and practice of excessive use of force, unconstitutional stops, searches, and arrests, and discriminatory policing.
Even before the DOJ issued its findings, the Mayor and the NOPD, with assistance from the DOJ, created a neighborhood participation plan known as the Police-Community Advisory Board (“PCAB”) as well as a “Community-Based Restorative Justice Project,” although this latter project never came into existence. Launched in February 2011, the PCAB is made up of seven community volunteer members for each of NOPD’s eight districts. The District Commander and district Community Coordinating Sergeant for each district also participate in
30 Investigation of the New Orleans Police Department, United States Department of Justice Civil Rights Division (3/16/2011), at v, available at https://www.justice.gov/sites/default/files/crt/legacy/2011/03/17/nopd_report.pdf
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the PCAB. The consent decree, which was signed in July 2012 and entered by the court in
January 2013, “acknowledge[d] that NOPD and community representatives have acted jointly to
create a PCAB to facilitate regular communication and cooperation between the Department, the
City, and community leaders, including youth leaders, such as through the development of a
community advisory panel and the collaborative development of policing strategies and priorities.”31 Under the consent decree, the “NOPD agree[d] to seek PCAB’s assistance, counsel,
and input to build community consensus on potential recommendations in areas” ranging from
community policing strategies to police accountability and sharing information with the community.32
The PCABs hold quarterly community meetings. According to the current PCAB manual:
As participation platforms, PCABs do not have any decisionmaking authority over NOPD finances, policies, or practices. As authorized recommendation platforms, PCAB’s have the responsibility to vet community ideas/suggestions, work with NOPD to understand operations, processes, and challenges, and build consensus on priority items important to the community before submitting recommendations to NOPD for consideration.33 Notably, criticism has been levied by some, including the extent to which the PCAB is an
effective accountability tool:
Very few meeting minutes are publicly available, but those that are show the PCAB functions as a conduit to gather and share information for law enforcement activity. Nothing suggests the PCAB has embraced its accountability function, nor does anything suggest the PCAB has a relationship with the court monitor or
31 Consent Decree, United States v. City of New Orleans, No. 12-cv-01924 (1/1/13), at 107. 32 Id. 33 New Orleans Police Department Police Community Advisory Board (PCAB) (8/9/2016), at 3, available at https://www.nola.gov/getattachment/Neighborhood-Engagement/Projects/New-Orleans-Police-CommunityAdvisory-Board-(PCAB)/PCAB-Policy-Manual-June-2016-revisions-(1).pdf/
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organized constituents working to reform the police department. Thus, the PCAB does little to foster democratic policing, but rather legitimizes law enforcement activity and a process that neither promotes self-determination nor a power shift toward impacted communities. The second independent structure referenced in the consent decree, the Community-Based Restorative Justice Project, presents a unique concept among DOJ policing consent decrees. This structure's goal is to remedy mistrust between the NOPD and the broader New Orleans community and to create an environment for successful problem-solving partnerships. To date, this body has not been created.34 The consent decree also requires the NOPD and the City of New Orleans to conduct, with
the assistance of the court-appointed monitor, a biennial community survey meant to capture the community’s “experiences and perceptions of NOPD and of public safety.”35 The first biennial
survey was completed by 425 police officers, 57 detainees within the Orleans Parish Jail, and 549 community members.36
In addition, the consent decree requires the monitor to “meet with community
stakeholders to explain the [m]onitor’s reports[,] to inform the public about the Agreement implementation process, and to hear community perspectives of police interactions.”37 The
monitor has met with various stakeholder groups, primarily at its quarterly meetings, and has
also met with and surveyed community organizations.
34 Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent Decrees, 51 Wake Forest L. Rev. 793, 835 (2016). 35 Consent Decree at 62-63. 36 See Report of the Monitoring Team for the Fourth Quarter of 2014 (4/28/2015), at 16, available at http://consentdecreemonitor.com/Media/Default/Documents/April%202015%20Report%20of%20the%20Consent% 20Decree%20Monitor.pdf 37 Consent Decree at 115.
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It should also be noted that in August 2009, well before the DOJ’s pattern-and-practice investigation, New Orleans established the Office of the Independent Police Monitor (“IPM”), after it was voted into the city charter by over 70% of New Orleans’ electorate. Among other things, this civilian police oversight agency is charged with ensuring that complaints about police misconduct are investigated and that discipline arising from such complaints is fair; monitoring NOPD investigations into use of force; reviewing complaints, investigations, and community concerns and making recommendations for reforms; listening to the community; repairing police-community relationships; and monitoring police training and supervision. Although IPM was originally tied to the Office of Inspector General, in 2016 New Orleans voters approved a charter amendment creating separate funding streams for both agencies.
Seattle (2010-Open) Size of Population/ Number of Sworn Personnel 608,660 (2010) / 1,300 (2010)
In December 2010, the ACLU of Washington along with 34 community organizations requested that the DOJ conduct a pattern-and-practice investigation into the Seattle Police Department. The DOJ’s December 2011 findings stated that the Seattle Police Department had engaged in a pattern or practice of using unnecessary or excessive force in violation of the Fourth Amendment. In July 2012, the parties entered into a settlement agreement and a separate memorandum of understanding (“MOU”).
Community organizations were active prior to the entry of these agreements. The parties received recommendations from thought leaders, notably
the Minority Executive Directors Coalition Multiracial Task Force on Police Accountability (MEDC Task Force), comprised of the ACLU of Washington, American Friends Service Committee,
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Asian Counseling & Referral Services, CAIR–WA, Columbia Legal Services, El Centro de la Raza, Fred T. Korematsu Center for Law and Equality, John T. Williams Organizing Committee, Minority Executive Directors Coalition, Mothers for Police Accountability, The May First Action Coalition, NAACP—Seattle Chapter, Red Eagle Soaring Native Youth Theater, Seattle Human Rights Commission, The Defender Association, and Tlingit & Haida of Washington.38
Furthermore, as a result of the agreements and the work of the court-appointed monitor,
community input has continued throughout the implementation of the agreed upon reforms. The
monitor has conducted community forums to update the community on implementation and to
solicit feedback.39 In 2013, the monitor hired a team to survey 900 Seattle residents by telephone
to capture community perceptions of the Seattle Police Department.40 The survey was repeated in
2015.41 In the view of the monitor, “Community surveys and community meetings are the most
objective way to judge whether greater trust and cooperation are occurring. No single individual
or group represents the entire community. There are many voices and many groups in Seattle.”42
Perhaps most significantly, the parties agreed in the Settlement Agreement and MOU to
establish the Community Police Commission (“CPC”). The CPC was designed “to leverage the
ideas, talent, experience, and expertise of the community.”43 The Ordinance officially
38 See 3/15/12 Letter to the DOJ, at 4 (recommending community involvement in overseeing the settlement). 39 See, e.g., Seattle Police Monitor, Fourth Semiannual Report, at 100 (12/2014) (“To facilitate continuous dialogue with the community in 2014, the Monitoring Team is holding an ongoing series of town hall-style community forums, which are open to all and held in community centers and other venues. During the community forums, the Monitoring Team provides a report on current progress. More importantly, it seeks feedback and discussion on the current relationship between the community and the Department, any noted changes in that relationship, and suggestions for areas of focus in 2014 and 2015.”). All reports from the Seattle Police Monitor are available at http://www.seattlemonitor.com/reports-resources/ 40 See Seattle Police Monitor, Second Semiannual Report, at 47-54 (12/2013). 41 See Seattle Police Monitor, Sixth Semiannual Report, at 5-8, (12/2015). 42 Seattle Police Monitor, Compliance Status & Seventh Semiannual Report, at 3 n.4 (9/2016). 43 Settlement Agreement ¶ 3; see id. ¶ 4 (“Certain aspects of the reform efforts embodied in the Agreements are best developed by dialogue and wide-spread input. Moreover, ongoing community input into the development of
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establishing the CPC stated that the goal of the CPC was to “institute a[n] . . . oversight system that ensures that police services are delivered to the people of Seattle in a manner that fully complies with the Constitution and laws of the United States . . ., effectively ensures public and officer safety, and promotes public confidence in SPD and the services that it delivers.”44
The CPC, which started work in March 2013, has been composed of 15 commissioners appointed by the mayor and confirmed by the City Council, including one member from the Seattle Police Officers Guild, one member from the Seattle Police Management Association, and 13 Seattle residents representative of Seattle’s diverse population; recently the CPC increased the number of commissioners to 21. The CPC also has full-time staff, and an annual budget of over $800,000 a year. CPC’s areas of concentration include community engagement, police accountability, investigatory stops and data collection, officer assistance and support, and transparency and public reporting. Under the MOU, the CPC is authorized to review recommendations and reports issued by the monitor, to provide input and make its own recommendations, to issue reports, including biannual progress reports, and to hold public meetings.
In January 2014, the CPC issued a report which described the community outreach undertaken by the CPC, much of which occurred in October 2013. The CPC contracted with 13 social service providers serving affected communities, such as low-income, minority, and nonEnglish speaking populations, who in turn worked with other organizations to coordinate outreach. Together they hosted over 150 community meetings, with attendance ranging from one
reforms, the establishment of police priorities, and mechanisms to promote community confidence in SPD will strengthen SPD and facilitate police/community relationships necessary to promote public safety.”). 44 Ordinance No. 124021 (10/22/2012) ¶ K.
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to 300, and averaging 20 per event. In all, over 3,400 individuals attended these outreach events. In addition, the CPC itself met with police department officers and advisory groups, and “with neighborhood and crime prevention councils.”45
“The CPC supplied its contracted partners and conveners with a toolkit of outreach materials, including background information on the CPC, its charge and its draft policy recommendations, as well as surveys to capture feedback.”46 Facilitators led discussions, and “[p]articipants provided feedback through paper and online surveys, and by discussing their concerns and ideas during community meetings. [F]acilitators documented the comments received in these sessions and summarized them in final reports to the CPC.”47 Feedback was kept confidential. In addition, “Meeting attendees were encouraged to spread the word about the outreach effort to their friends, family and associates and told that all materials, including an online survey, were available on the CPC’s website. The CPC also sent out e-newsletters and encouraged community members to sign up for its listserv.”48 Significantly, the CPC took into account public feedback received during its community engagement process in October 2013 before adopting final reform recommendations in November 2013.
The CPC’s work is ongoing. For instance, in January 2016, the CPC issued its assessment of the police department’s community engagement. That report was based on information gathered from diverse sources, and reflected interviews with police department officials, officers,
45 CPC, Community Outreach Report (1/2014), at 12-13, available at https://www.seattle.gov/Documents/Departments/CommunityPoliceCommission/Outreach%20Report%2001-2414.pdf 46 Id. at 13. 47 Id. 48 Id.
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and staff. The CPC contracted with community-based organizations to conduct eight listening sessions, which altogether were attended by some 230 community members. In addition, the CPC attended six police-department-organized Demographic Advisory Councils. In 2017, a law was passed making CPC permanent.
Having discussed the community engagement efforts in Cincinnati, New Orleans, and Seattle, we now provide an overview of the Joint Remedial Process.
New York Size of Population / Number of Sworn Officers Over 8.5 million / roughly 34,500
Following an appeals process during which reform work was stayed, the Joint Remedial Process began in November 2014 after the Second Circuit affirmed the denial by Judge Torres of the police unions’ motion to intervene and all stays in the Monitorship were lifted. The City withdrew its appeals and agreed to abide by the relief set out in the Remedies Opinion.
Convening Phase The first step in the Joint Remedial Process was the Convening Phase. During this time,
the Facilitation Team met with advocacy groups, community organizations, members of NYPD leadership, New York City government officials, Members of Congress, District Attorneys from each borough, the Borough Presidents, the Speaker of the City Council, Members of the City Council, the Civilian Complaint Review Board management, police union leaders, minority police fraternal and advocacy organizations, officials from the President’s Task Force for 21st Century Policing, religious leaders, and counsel for the parties, as well as with the plaintiffs in Floyd, Ligon, and Davis.
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A frequent topic of conversation as these meetings was how best to obtain input from a diverse group of stakeholders, in a city with over 8.5 million residents spread out across five boroughs. What may be appropriate in Cincinnati or Seattle, which during the relevant time period had populations of 331,159 and 608,660, respectively, was not guaranteed to work in New York. As noted by the DOJ, it is important to “seek[] out input from groups that may experience police misconduct in unique ways, such as young people, people with disabilities, LGBTQ people, people of color, and immigrant communities.”49 The Facilitation Team could not meet the Court’s mandate of soliciting input from the groups most affected by the NYPD’s use of stop and frisk without reaching these communities.
The Convening Phase not only helped the Facilitation Team devise a multi-phase process for obtaining stakeholder input, but the relationships and alliances developed during these meetings provided a broad platform for outreach. The Facilitation Team also decided to form an advisory committee through which it could continue to receive advice and input from stakeholders about the remedial process itself on a going forward basis; a Joint Remedial Process Advisory Committee composed of representatives from various stakeholders in the Joint Remedial Process was created to gather “process” input for the JRP. While the Committee was structured as an avenue to receive advice and input from stakeholders about the remedial process itself on an ongoing basis, it was purely advisory. It was explained and understood by all invitees that its deliberations were confidential and any recommendations made through the Committee were not in any manner binding on the Facilitator. Again, the Committee’s primary concern was with providing process recommendations.
49 The Civil Rights Division’s Pattern and Practice Police Reform Work: 1994-Present (January 2017), at 13.
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The Committee met monthly except for a short hiatus from August 2016 to January 2017. Although the main purpose of the Joint Remedial Process Advisory Committee was to provide, in a structured way, continued input into the process choices the Facilitation Team made, it became a vehicle for dialogue on substantive issues.
Focus Group Phase During the Focus Group Phase, the Facilitation Team organized and structured meetings
with members of the communities most affected by the NYPD’s stop and frisk practices. The Facilitation Team viewed this stage as a crucial, if not the most crucial, part of the JRP because we believed that we would gain the most input from directly affected communities through focus groups. It was therefore imperative that each aspect of this phase be planned with the utmost care.
We laid the groundwork for these meetings with the introductory meetings during the Convening Phase. During that time, various community organizations, advocacy groups, and religious figures agreed to help us engage their membership and staff in these meetings, and helped us identify other organizations that were willing to participate. Many of the community organizations and advocacy groups agreed to assist with the Focus Group Phase by populating focus groups using their member base.
Ultimately, the Facilitation Team conducted 64 focus groups, approximately 40 relating to Floyd and 24 relating to Ligon. Participation in the focus groups was both confidential and anonymous. The focus groups typically had between 8 to 10 participants, who were overwhelmingly young people of color. The interviews were transcribed and subjected to qualitative analysis. In all there were 516 participants from the following collaborative
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organizations: Broome Street Academy; Covenant House; The Door; Streetwise & Safe; Safe Horizon; Cardinal Hayes High School; Cardinal Spellman High School; Brotherhood – SisterSol; Cure Violence SOS – Bronx; Cure Violence SOS – Far Rockaway; BronxConnect; The Fortune Society; Cure Violence SOS – East Flatbush; VOCAL-NY; Police Athletic League; Picture the Homeless; Man Up, Inc.; Ali Forney Center; Malcolm X Grassroots; Exponents; Make the Road NY; and Central Family Life Center.
We gained the most input from directly affected communities through these meetings. The groundwork for these meetings was laid during the Convening Phase during the first several months of the Joint Remedial Process. Meetings were highly structured and centered around specific, well-thought-out and directed questions that were replicated across all groups. They were held in different parts of the City, as well as in public housing. The meetings gathered responses to standard sets of questions that were developed through an extensive collaboration process. This collaboration included the parties and Communities United for Police Reform, an umbrella group representing roughly 60 grassroots police reform organizations throughout the City.
While the meetings centered upon minority youth in highly policed and high crime neighborhoods, we also sought to meet with other distinct groups of people that were affected by stop and frisk such as the homeless, the LGBTQ community, and the mentally ill.
As a supplement to the rich information gathered during the Focus Group Phase, a Leadership Meeting Phase was created. The Leadership Meeting Phase included a number of structured meetings with individuals and institutions that had given much thought to these issues
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and were believed to be in a position to give substantive policy recommendations. These thought leaders included academics, criminal justice professionals, and community representatives.
To further add to the richness of the data gathered from the focus groups and leadership meetings, input from patrol officers, line supervisors, and executives were gathered during NYPD-specific focus groups. These meetings were critical to the Facilitator’s mandate. The Remedies Opinion states that “[t]he Facilitator may receive anonymous information from NYPD officers or officials, subject to procedures to be determined by the parties.”50
The data from all of the civilian focus groups were collected and a system was created whereby reports to the file were maintained after each meeting. The data was then compiled from notes and taped recordings of each meeting that were later transcribed. The transcriptions were later provided on a confidential basis to the parties and Communities United for Police Reform.
Leadership Meeting Phase While our mandate was to receive input from affected communities, as recognized by the
Court, “[i]nput from academic and other experts in police practices may also be” useful to the development of reforms.51 We therefore devised a process to solicit input from persons and organizations that have given much thought about these issues and might be in a position to give more substantive policy recommendations, such as academics, criminal justice professionals, community representatives, and other thought leaders.
Following the Focus Group Phase, the Facilitation Team conducted 18 meetings with thought leaders and community organizations, including The President’s Task Force on 21st
50 Remedies Opinion, 959 F. Supp. 2d at 688. 51 Id. at 687.
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Century Policing, the Police Executive Research Forum, Safe Horizon, National Police Accountability Project, Vera Institute of Justice, Legal Aid Society, Micah Group, Fortune Society, Osborne Association, Covenant House, National Association for Civilian Oversight of Law Enforcement (“NACOLE”), The Door, Open Society Foundations, Police Reform Organizing Project, Morris Justice Project, Trinity Wall Street, Brooklyn Defenders, Communities United for Police Reforms (“CPR”), and Citizens Union.
Community Forum Meetings In the final phase, the Facilitation Team held community forums. These forums were
attended by 1,777 participants. At the outset we recognized that these meetings were vitally important. If well planned and executed, they would give public expression to the ideas developed in the focus groups, elicit further input by providing a public forum for serious policy proposals from all stakeholders, and provide an opportunity to receive public comments on the current reforms as well as potential additional reforms. The forums could also serve as an opportunity for facilitated and structured dialogue between the NYPD, primarily rank and file officers, and members of affected communities. It bears noting that while the Joint Remedial Process was ordered mainly to seek input, it is also a remedial process that should help to improve community and police relations.
There were two sets of forums — Plaintiff Assisted (“PA”) and Joint Remedial Process (“JRP”) forums. Generally speaking, the Facilitator presented a brief introduction to the Joint Remedial Process at each forum, followed by a short presentation by a representative of the hosting community organization. Typically, at this point, a short educational video was shown at each JRP community forum. The video was developed in collaboration with the stakeholders. It was produced by grassroots community members and was intended to be a reflection of the
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history and context of the unconstitutional stop, question, and frisk and trespass enforcement policies from the perspective of impacted community members.
After this introductory phase, we then invited the attendees — comprised of, on average, from 50 to 100 or more community members and police officers seated at pre-designated tables — to engage in conversation around pre-determined questions and issues. These conversations were recorded by a note taker at each table and guided by a forum facilitator (e.g., community organization staffers or community mediators that were recruited from the Association for Conflict Resolution Greater New York Chapter). Community mediators were hired as cofacilitators for each small group discussion for the JRP forums. Notes from these conversations were taken and collected by members of the JRP Team following each community forum. The individual table facilitators then announced their results to the entire meeting. An attempt was then made to present and synthesize the results of all the table reports to the meeting participants. That is, each forum included small break-out group discussions followed by larger collective discussions stemming from the reports presented by the smaller groups. This was very constructive as commonalities developed between the police and community participants in their responses. All this data was then collected and analyzed in written reports for each forum.
Final Report Phase The Facilitation Team has now completed its three-year-long community engagement
effort. As discussed above, in order to fulfill his mandate, the Facilitator together with the Facilitation Team developed and then executed various programs for canvassing a wide array of stakeholders and held focus group sessions, community forums, and leadership meetings with civilians, police officers, and policy and thought leaders in the fields of criminal justice, policing, and police reform.
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The Remedies Opinion requires in paragraph 8 that the Facilitator attempt to draft “Joint Process Reforms” along with the parties to the various litigations. Once drafted, those Reforms would then be reviewed by the Monitor, who in turn would recommend those reforms he deems appropriate to the Court for ultimate review and approval. To this end, in March 2017 the Facilitator circulated to all of the parties a draft and confidential set of twelve Ideas for Discussion that were intended to begin the conversation among the parties as to what might be agreed to as Joint Process Reforms. The Facilitator alerted the parties at the time that this was a beginning set of ideas that could be withdrawn, amended, or supplemented as the discussion around the ideas developed. The Facilitation Team convened separate meetings with each of the parties, as well as three “All Parties Meetings,” to discuss these ideas. Communities United for Police Reform (“CPR”) was also invited to attend the last two of these All Parties Meetings. Plaintiffs’ counsel provided extensive verbal feedback during these meetings. In addition, the parties were invited to submit written responses to the Ideas for Discussion document.
On August 3, 2017, plaintiffs’ counsel in the Floyd and Davis cases circulated a “Memorandum” in which they listed four proposed JRP reforms that they asserted “should be implemented,” in addition to other reforms that they sought to have the Facilitator recommend for implementation. The NYPD circulated its own response to the Ideas for Discussion document, entitled “NYPD Change Agenda” that included, in an appendix, an item-by-item discussion of the proposed Ideas for Discussion.
After reviewing the parties’ written submissions and hearing from them during the joint and individual meetings, it was apparent that the parties would likely not be agreeing to a set of Joint Process Reforms for submission by the Facilitator to the Monitor and the Court. As paragraph 9 of the Remedies Opinion directs that, where the parties cannot reach agreement on
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Joint Process Reforms, the Facilitator is to make findings and recommendations and prepare a Final Report, the Facilitator then advised the parties that he was drafting a Final Report pursuant to paragraph 9 of the Remedies Opinion.
Following an application by the plaintiffs to the Court for a scheduling order and a status conference regarding the JRP, the Court issued an order which provided for further discussion of the Joint Process Reforms after submission to the parties of a confidential Draft Final Report, which was to occur on March 2, 2018. The effect of that order was that we were again acting pursuant to paragraph 8 of the Remedies Opinion. After receiving the confidential Draft Final Report, the parties provided comments on the proposed Joint Process Reforms and the confidential Draft Final Report. While the parties agreed to certain aspects of the proposed Joint Process Reforms, a consensus was not reached. Accordingly, we now issue this Report pursuant to paragraph 9 of the Remedies Opinion.
After receiving the confidential Draft Final Report, the parties provided comments on the proposed Joint Process Reforms and the confidential Draft Final Report. The NYPD in its written response to the Draft Final Report indicated a willingness to consider some of the reform recommendations, pending further discussion with the Facilitator.
On April 18, 2018, the New York Times published a previously submitted op-ed piece by counsel to the plaintiffs. In that op-ed, plaintiffs’ counsel stated, among other things, the following: “The problem is the police department suggested that it might oppose reforms that black and Latino New Yorkers are asking for. As much as the department wants to be seen as listening to community members, it doesn’t actually want to be responsive to their needs.”
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 49 of 312 However, as mentioned above, the NYPD in its written response to the Draft Final Report, which had been shared with plaintiffs’ counsel, had indicated a willingness to discuss and consider certain of the reform recommendations. Although the Facilitator was not confident that a consensus would be reached on all, or even most, of the reform recommendations, at no point did the NYPD ever indicate that it was not willing to discuss the recommendations. There have been no further discussions regarding the Joint Process Reforms between the parties and the Facilitator. While, as indicated above, the positions of the parties overlap with respect to certain aspects of the proposed Joint Process Reforms, a consensus was not reached, and we now issue this Final Report pursuant to paragraph 9 of the Remedies Opinion. The Facilitator considered all of the written and oral submissions from all parties, including non-party stakeholders, in preparing the Final Report.
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SECTION IV: RECENT HISTORY OF POLICE-COMMUNITY RELATIONS IN IMPACTED COMMUNITIES:
Calls for Greater Respect, Transparency and Accountability
The Monitorship and Joint Remedial Process (“JRP”) are only the latest efforts to reform the New York City Police Department (“NYPD”). A constant theme throughout all of these efforts has been the need for the NYPD to show greater respect to the communities it polices, to increase transparency, and to improve both internal and external accountability.
Part 1 Brief History, Legal Context, and the Immediate Reforms Both the U.S. and New York Constitutions prohibit unreasonable searches and seizures and discrimination based on race. Under the Fourth Amendment of the U.S. Constitution, as explained in the landmark case Terry v. Ohio, a “stop” is when an officer “briefly detain[s] a person for investigative purposes” and is permitted only “if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”52 A frisk is defined as a “limited protective search for concealed weapons.” An officer may frisk a person only when he or she is “‘justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others[.]’”53
52 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (citations omitted). 53 Adams v. Williams, 407 U.S. 143, 146 (1972) (quoting Terry, 392 U.S. at 24); id. (“The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law.”).
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In the 1990s the use of stop, question, and frisk (“SQF”) by the NYPD escalated, and
then — despite the issuance of a critical report by the New York attorney general in 1999 and the
settlement of the Daniels litigation in 2003, both of which will be described below — increased
even more dramatically over the next decade. The 1990s also ushered in increased trespass
enforcement and SQF activity in both privately-owned buildings and New York City Public
Housing Authority (“NYCHA”) developments.
This escalation of SQF and trespass enforcement was the predicate for the Floyd, Davis,
and Ligon cases, filed in 2008, 2010, and 2012, respectively. Here we consider the historical and
legal context that led to these cases, as well as reforms that have been implemented over the
years.
The Street Crime Unit, “Broken Windows” Policing, and CompStat
In 1971 the NYPD established the Street Crime Unit (“SCU”), a plain-clothes “City Wide
Anti-Crime Unit” assigned to “high-crime” neighborhoods, with the goal of recovering guns.
Members of the SCU were required to fill out a form, known as the “UF-250,” following a stop based on “reasonable suspicion.”54 As will be discussed, the UF-250 and the later-created UF-
54 The NYPD reports that use of an earlier version of UF-250 had been mandatory since 1964 and was amended in 1973. See U.S. Comm’n on Civil Rights, Police Practices and Civil Rights in New York City: Chapter 5 Stop, Quest, and Frisk, n.62 (2000), available at http://www.usccr.gov/pubs/nypolice/ch5.htm; but see Jeffrey Fagan and Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder in New York City, 28 Fordham Urb. L.J. 457, 488 n.138 (2000) (“Although initially designed as a tool for investigation, completion of the UF-250 form has been required by the NYPD Patrol Guide since 1986. In 1997, the police commissioner assigned a high priority to filing UF-250s.”). New York’s first statute relating to stop and frisk was enacted in 1964. N.Y. Code Criminal Procedure (CCP) § 180-a. In 1968, on the same day that Terry was decided, the Supreme Court heard a case that, in part, challenged that statute. See Sibron v. New York, 392 U.S. 40 (1968). The Court explained that, “New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” Id. at 60-61 (citation omitted). Two years later, in 1970, the New York State Legislature enacted replacement legislation authorizing police to use stop, question, and frisk. That law, codified as CPL § 140.50, is still in place, but has been amended several times over the years, with the last amendment in 2010. The 2010 amendment prohibited the recording in a database of “information that establishes the personal identity of an individual who has
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250 database have played a crucial role in the ability of actors outside of the NYPD, including
the public, to assess the effectiveness and constitutionality of the NYPD’s SQF practices over time.55
Although much happened in the intervening years, we shift our focus to the early 1990s.
Providing an overview of events leading to the imposition of the NYPD’s SQF policies,
Professor Jeffrey Bellin explains that:
The origins of NYC Stop and Frisk can be traced to an epic crime wave that crested in New York City in the early 1990s. In 1990, the City hosted 2,245 homicides, a “record high.” News accounts chronicled the populace’s fear. New Yorkers claimed to be afraid to wear jewelry in public, and some citizens reported sprinting to subway exits when train doors opened to avoid victimization. In 1993, nearly half of the City’s residents said they had been victimized by crime in the past year. The NYPD’s own publications reflected the public mood: “Whatever we are doing to reduce violent — especially handgun related — crime is not working.”56
It was also this climate that led to the launch in 1991 of the Trespass Affidavit Program (“TAP”),
known as Operation Clean Halls in the Bronx. Under that program, private landlords give
permission to police to enter and search their buildings for the purpose of combating criminal
activity. News reports note that TAP is “the only [program] of its kind in a major U.S. city that gives police standing permission to roam the halls of private buildings.”57 Then, in 1994, the City
been stopped, questioned and/or frisked by a police officer or peace officer, such as the name, address or social security number of such person[.]” 55 But it was not until 1999 that UF-250 data was first shared outside of the Department, when New York’s Attorney General required that the information be turned over following the shooting of Amadou Diallo by members of the SCU. And it was not until 2008, after being ordered to do so by a court, that the NYPD gave nongovernmental actors access to data from the UF-250 database. 56 Jeffrey Bellin, The Inverse Relationship Between the Constitutionality and Effectiveness of New York City “Stop and Frisk,” 94 B.U. L. Rev. 1495, 1503 (2014). 57 Colleen Long, “NYPD program patrols inside private buildings,” Associated Press, Mar. 11, 2013, available at https://www.yahoo.com/news/nypd-program-patrols-inside-private-buildings-063214226.html
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and NYCHA entered into a Memorandum of Understanding under which the NYPD enforced
both criminal laws and NYCHA-specific rules and regulations.58
The 1990s also saw the NYPD’s shift from community policing to, at least in name,
“broken windows” policing.59 Proponents of the broken windows theory believe that serious
crimes can be reduced by aggressively pursuing enforcement of petty offenses. As explained by
criminologists Jeffrey Fagan and Garth Davies:
The originators of the Broken Windows theory, James Q. Wilson and George L. Kelling, argued that police should address minor disorders to strengthen police-citizen interactions, and consequently, informal social control. For Wilson and Kelling, signs of physical and social disorder invite criminal activity. Disorder indicates to law-abiding citizens that their neighborhoods are dangerous places, leading to their withdrawal from informal social control and regulation. The theory suggests that there is a tipping point at which disorder trumps order by defeating the willingness of citizens to interact with the police and with each other to co-produce security. Accordingly, disorder invites more disorder in a contagious process that progressively breaks down community standards and also suggests to would-be criminals that crime will not be reported. Disorder ultimately invites criminal invasion.60
In 1994, “CompStat” was developed under then Police Commissioner William Bratton.
CompStat evolved from meetings Bratton and his team had with commanders to ask questions
relating to criminal activity and measures taken to address that activity within their precincts.
58 It should also be noted that the Civilian Complaint Review Board (“CCRB”) in its present, all-citizen form was established in 1993. 59 The efficacy of “broken windows” policing is difficult to measure and existing studies have yielded mixed results. The Center for Evidence-Based Crime Policy (2016), available at http://cebcp.org/evidence-based-policing/whatworks-in-policing/research-evidence-review/broken-windows-policing/, reviewed literature that looked specifically at the effect of “broken windows” policing in New York City in the 1990s, finding: “Broken windows policing alone did not bring down the crime rates (Eck & Maguire, 2000), but it is also likely that the police played some role. Estimates of the size of this role have ranged from large (Bratton & Knobler, 1998; Kelling & Sousa, 2001) to significant but smaller (Messner et al., 2007; Rosenfeld et al., 2007) to non-existent (Harcourt & Ludwig, 2006).” 60 Fagan and Davies, Street Stops and Broken Windows, 28 Fordham Urb. L.J. at 264.
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Because commanders were unable to readily provide this information, the NYPD resolved to create a database. By collecting data on criminal activity, CompStat enabled the NYPD to concentrate officers in neighborhoods where there were higher recorded incidents of criminal conduct. CompStat also permitted data-driven management. As a data-drive management tool, CompStat was used to hold “commanders accountable for addressing crime conditions and improving the quantitative measures of their performance.”61
By 1994, the NYPD was touting the effectiveness of street searches at removing guns from the streets.62 This focus on guns, reflected in “Police Strategy No. 1: Getting Guns of the Street of New York,” led to an expansion of the Street Crime Unit. It is thought that that expansion led to less effective training as well as a shortage of experienced officers to pair with the new recruits sent out on their assignments. At the same time, CompStat emphasized the number of stops officers made, leading to even greater number of stops, with UF-250 forms reflecting roughly 175,000 recorded stops around the City from January 1998 through March 1999 alone.63
Writing in 2000, Fagan and Davies described the NYPD’s approach as a form of “ordermaintenance policing” or OMP64 — “aggressive[] enforce[ment] of laws against social disorder
61 Liability Opinion, 959 F. Supp. 2d at 592. 62 See generally Clifford Krauss, New York City Crime Falls but Just Why Is a Mystery, N.Y. Times, Jan. 1, 1995. 63 While Bratton left in 1996, and new Commissioner Howard Safir instituted certain programs aimed at community relations and community engagement — e.g., the NYPD courtesy, professionalism, and respect or CPR campaign, Precinct Community Councils, the Citizens’ Police Academy, and the Model Block Program — the use of CompStat and aggressive policing continued. 64 A review by Antony A. Braga, Brandon C. Welsh, and Cory Schnell in 2015 found no significant impact of ordermaintenance policing on reducing crime. See Can Policing Disorder Reduce Crime? A Systematic Review and Metaanalysis, Journal of Research in Crime and Delinquency, Vol. 52(4), available at http://journals.sagepub.com/doi/pdf/10.1177/0022427815576576
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with ‘zero tolerance’ that requires arrest for any law infraction.”65 Consistent with this, the NYPD enforced petty offenses such as laws against graffiti, public drinking, riding a bicycle without a helmet, and aggressive panhandling. As Bellin argues, “[a] program of mass ‘stop and frisk’ is not geared toward reversing neighborhood perceptions of disorder, but instead aims to decrease actual incidents of gun-carrying and resulting violence citywide[;]” and, he argues, quoting Barnard Harcourt, “‘the primary mechanism’ of any aggressive-policing-based crime decrease in New York City ‘is probably not the broken windows theory,’ but is instead ‘a policy of aggressive stops and frisks and misdemeanor arrests’— something quite distinct”66
As a consequence of the increased interactions between officers and civilians, complaints against the Department started to rise. In 1996, the Department launched the NYPD’s CPR campaign, a program intended to bolster the mission of courtesy, professionalism, and respect within and outside of the Department. Additionally, the Department implemented several other community-based functions, such as the Precinct Community Councils, the Citizens’ Police Academy, and the Model Block Program.
In 1997, Abner Louima, a Haitian Immigrant, was beaten and sodomized with a broomstick by NYPD officers. The incident provoked outrage among Haitian and other communities across the nation. On August 29, 1997, an estimated 7,000 demonstrators marched to City Hall and to the 70th Precinct station where the attack took place. The march was dubbed
65 Fagan and Davies, Street Stops and Broken Windows, 28 Fordham Urb. L.J. at 467. 66 Bellin, The Inverse Relationship Between the Constitutionality and Effectiveness of New York City “Stop and Frisk,” 94 B.U. L. Rev. at 1505 (quoting Bernard E. Harcourt, ILLUSION OF ORDER (Harvard University Press 2001), at 10-11).
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“Day of Outrage Against Police Brutality and Harassment.”67 The incident was mentioned in the 1998 Amnesty International Report on cases of reported police brutality, torture, and abuse. Mayor Rudolph Giuliani commissioned a task force to convene on the issue of policecommunity relations, seeking recommendations to improve police-community relations.68 The task force, comprised of 33 community leaders, published a report with 91 recommendations for changes to the NYPD.69 Later that year, a dissenting report, with its own recommendations, was filed in response to the report issued by the Mayor’s Task Force.70
Although the quality of police-community relations had been in steep decline, it was the shooting of Amadou Diallo in February of 1999 that instigated a surge of protests and demonstrations calling for reforms to the NYPD. In December of 1999, New York’s Attorney General released a report analyzing the data from the 175,000 stops conducted between January 1998 and March 1999.71 In addition to finding that roughly a fourth of the UF-250 forms failed to provide information sufficient to determine if the stop was lawful, the report found that “blacks and Hispanics were significantly more likely than whites to be ‘stopped’ after controlling for race-specific precinct crime rates and precinct population composition by race.”
67 Peg Tyre and Jonathan Karl, “Demonstrators in New York protest police brutality,” CNN, Aug. 29, 1997, archived from the original Jan. 5, 2007. 68 See U.S. Comm’n on Civil Rights, Police Practices and Civil Rights in New York City: Chapter 3 PoliceCommunity Relations (2000), available at http://www.usccr.gov/pubs/nypolice/ch3.htm 69 See Task Force on Police/Community Relations, Report to the Mayor. New York, New York (1998). The recommendations included in this Report to the Mayor, as well as other reports issued between 1999 and 2015 are summarized in Part 2 of this Section. 70 See Meyers, M., Fung, M., Siegel, N, Deflecting Blame: The Dissenting Report of Mayor Rudolph W. Giuliani’s Task Force on Police/Community Relations (1998); see Part 2 of this Section. 71 Spitzer, E, The New York City Police Department’s “Stop & Frisk” Practices: A report to the People of the State of New York from the Office of the Attorney General (1999); see Part 2 of this Section. As also discussed in Part 2 of this Section, in 2000, the United States Commission on Civil Rights also issued a report critical of the NYPD’s stop and frisk practices, including, among other things that racial profiling had been practiced. See U.S. Comm’n on Civil Rights, Police Practices and Civil Rights in New York City (2000).
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Daniels, Reforms, and the End of the Street Crimes Unit
In March 1999, the Center for Constitutional Rights filed a class action lawsuit against
the NYPD challenging the Street Crime Unit’s SQF practices. Specifically, the plaintiffs alleged
that “SCU officers have been repeatedly conducting stops and frisks of individuals without the
reasonable articulable suspicion required by the Fourth Amendment. Rather, SCU officers have
improperly used racial profiling, not reasonable suspicion, as the basis for the stops and frisks.
The victims of such racial and/or national origin profiling are principally Black and Latino males.”72
The plaintiffs in Daniels sought to enjoin the continued operation of the SCU. But they
also requested alternative relief including an order:
(3) enjoining the use of formal or informal productivity standards or other de facto quotas for arrests and/or stops and frisks by SCU officers; . . . (7) requiring the City, NYPD, [Commissioner] Safir and [Mayor] Giuliani to institute and implement appropriate measures to ensure compliance with departmental directives that SCU officers complete UF-250’s on each and every stop and frisk they conduct; (8) requiring the City, NYPD, Safir and Giuliani to institute and implement appropriate measures to mandate that UF-250’s or other documentation be prepared and maintained in a computerized database for each stop conducted by an SCU officer, regardless of whether the stop is followed by the use of force, a frisk, a search or an arrest; and (9) requiring the City, NYPD, Safir and Giuliani to monitor stop and frisk practices of the SCU, including periodically and regularly reviewing form UF-250’s to determine whether reported stops and frisks have comported with constitutional requirements.73
72 Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001) (internal citations omitted). 73 Amended Complaint, Wherefore Clause, Daniels v. New York, No. 99 Civ. 1695 (S.D.N.Y.).
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In 2002, while Daniels was still pending, the NYPD disbanded the SCU. The following year, the Court approved a settlement between the parties that included certain remedial measures. Among other things, the NYPD was required to develop a written policy prohibiting the use of racial profiling, and NYPD officers and recruits were to receive training on the legal basis for SQF, as well as training in cultural diversity, integrity, and ethics. In complying with this aspect of the settlement, the NYPD developed a Racial Profiling Policy which prohibited the use of race, color, ethnicity or national origin as a determinative factor in taking law enforcement action.
Under the terms of the settlement, NYPD officers were required to track each stop, question, and frisk — defined as “[a]ny incident in which a police officer temporarily detains a person for questioning and physically runs his/her hands over the clothing of the person detained, feeling for a weapon”— on a new version of the UF-250. The NYPD was further required to continue to compile and maintain a UF-250 database, and the data collected was to be provided to counsel for the plaintiffs on a quarterly basis. The NYPD Quality Assurance Division (“QAD”) was directed to conduct internal audits to determine whether the forms were properly completed and that each SQF was based on reasonable suspicion (as reflected in the forms).74
The NYPD also agreed to conduct Joint Community Forums and 40 to 50 workshops at high schools to inform and educate about the rights of citizens when stopped, questioned, and frisked. In addition, the NYPD agreed to revise and disseminate its pamphlet entitled “Understanding Your Rights,” and to design and create a palm card providing contact information and procedures, including the telephone number of the Civilian Complaint Review
74 As the Court later found in Floyd, “[a]fter signing the settlement, however, QAD simply continued to use audit protocols that it had introduced in 2002.” Liability Opinion, 959 F. Supp. 2d at 609.
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Board (“CCRB”), to be distributed “when appropriate, as determined by the NYPD, in connection with” community engagement events.75
The settlement did not, however, call for a monitor. And as recognized by the Court nearly four years later, while the settlement did call for certain reforms, it did
not include any provisions regarding plaintiffs’ use or analysis of the UF-250 data. Nor [did it] contain any remedies or obligations regarding any trends or patterns reflected in the UF-250 database. Moreover, [the settlement did] not require any specific outcomes and ma[de] no specific assurances with respect to the supervision, monitoring and training of NYPD officers with regard to the Racial Profiling Policy.76 Notably, while the settlement required that the NYPD share the data with class counsel, it did not require that the data be shared with the general public. And it was not until March 2006 that the NYPD directed that all of the information from UF-250 forms be entered into a centralized database.
Access to UF-250 data later helped establish the allegations in Floyd. With regard to access to UF-250 data, in 2007 the New York Civil Liberties Union (“NYCLU”) submitted a Freedom of Information Law (“FOIL”) request to the NYPD for “the complete NYPD database of information entered from SQF worksheets for 2006, for the first two quarters of 2007, and for any calendar year prior to 2006 for which data exists in electronic form.” The NYPD denied the request, citing several exceptions to disclosure under FOIL. In May 2008, Justice Marylin G. Diamond of the New York County Supreme Court issued a decision requiring the NYPD to provide UF-250 database information to the NYCLU in electronic form “with the exception of
75 Stipulation of Settlement, Daniels v. New York, No. 99 Civ. 1695 (S.D.N.Y. Sept. 24, 2003). 76 Daniels v. City of New York, No. 99 Civ. 1695, 2007 WL 2077150, at *1 (S.D.N.Y. July 16, 2007).
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the names and addresses of the persons forcibly stopped and the names, addresses and tax ID numbers of the officers who made the stops and/or completed the form, which shall be redacted prior to disclosure.”77 And in September 2008, in connection with the Floyd case, the Court ordered the NYPD to produce to plaintiffs’ counsel the UF-250 data from 1998 to 2004.78
Operation Impact and Continued Litigation Ironically, while the Street Crimes Unit was disbanded in 2002, and Daniels was settled
in 2003, the use of SQF increased nearly seven-fold between 2002 and 2011, when over 685,000 stops were recorded. The Street Crimes Unit might have been defunct, but an emphasis on activity and a focus on the quantity of stops continued. In addition, in 2003, the NYPD implemented Operation Impact, where large numbers of newly minted police officers — roughly 1,500 in 2003 alone — were sent to “impact zones” with instructions to conduct stops and enforce misdemeanor laws. These impact zones, identified by CompStat as having high crime rates, were almost always in communities of color. Meanwhile, under Operation Clean Halls, the NYPD continued to regularly conduct “vertical patrols” inside of NYCHA residences, and as alleged by the Ligon plaintiffs in 2012, “[i]n some Bronx neighborhoods, virtually every private apartment building is enrolled in the program . . . [and i]n Manhattan alone, there are at least 3,895 Clean Hall Buildings.”
In 2005 and 2008, as Operation Impact continued in full force, two lawsuits were filed challenging the NYPD’s continued enforcement of loitering laws which had been invalidated by the courts years before. Despite having been struck down, roughly 22,000 people were charged
77 New York Civil Liberties Union v. New York City Police Dep’t, 20 Misc.3d 1108(A), 866 N.Y.S.2d 93 (Sup. Ct. N.Y. Co. 2008). 78 See Floyd v. City of New York, No. 08 Civ. 1034, 2008 WL 4179210 (S.D.N.Y. Sept. 10, 2008).
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under these laws from 1983 to 2012. And for a 16-month period ending in 2006, the police issued at least 10 improper summonses a week. These cases, Brown v. Kelly and Casale v. Kelly, ultimately settled in 2012, with the City agreeing to pay $15 million to the class action plaintiffs.
In 2007, Bronx Assistant District Attorney Jeannette Rucker (“ADA Rucker”), who oversaw the arrest to arraignment process in the Bronx, “started to become concerned about cases in which people were being stopped and then arrested based solely on their having entered or exited a Clean Halls building. Especially in 2009, judges began dismissing these cases frequently, sometimes saying that the police had no right to approach the arrested person in the first place.”79 In 2010, consistent with complaints coming out of the defense bar, the Legal Aid Society, and the Bronx Defenders, “[ADA Rucker’s] staff began telling her that judges were not only dismissing trespass cases, but were finding evidence that the defendant lived in the building where the trespass was said to have occurred.”80 Then, in 2011, she “investigated the law governing trespass stops based on entry to and exit from a Clean Halls building, and she determined that the [District Attorney’s] position on the prerequisites for a legal stop had been wrong. She sent memos to a number of commanders and other police officials clarifying that, contrary to previous statements, observing someone exiting a Clean Halls building is not by itself a sufficient justification for a stop.”81
Indeed, by 2010 the NYPD itself had been looking into issues concerning vertical patrols and trespass in NYCHA-owned properties and in connection with the TAP program.82 And by
79 Ligon v. City of New York, 925 F. Supp. 2d 478, 492 (S.D.N.Y. 2013). 80 Id. at 493. 81 Id. 82 In 2000 section 212-60 of the NYPD Patrol Guide stated that officers should “be alert for persons loitering within [NYCHA-owned] buildings, or suspicious conditions.” In 2010, the NYPD issued Interim Order 23 of 2010,
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May 2012, the NYPD issued Interim Order 22 of 2012 defining when stops were lawful based on suspicion of trespass within a TAP building. However, Interim Order 22 of 2012 did not address the issue of stops outside of a TAP building.83
In September 2010, the CCRB completed a systematic review of trespass-related cases in patrolled housing, including both NYCHA-owned buildings and private buildings participating in TAP. That review, which looked at data from July 1, 2008 through October 31, 2009, concluded that out of 76 criminal trespass related complaints, 32% were substantiated. This substantiation rate was far higher than other types of complaints, meaning that in the CCRB’s view there was reason for concern about how officers were enforcing trespass under TAP. In addition, in both 2010 and 2011, the CCRB issued reports stating that officers were failing to complete UF-250 forms following stops.
Both Davis and Stinson v. City of New York were filed in the Southern District of New York in 2010. The Stinson plaintiffs alleged that the NYPD had a policy of issuing unconstitutional summonses in violation of the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. The action “concern[ed] hundreds of thousands of New Yorkers who, over the course of many years, were issued summonses later dismissed after a finding of facial
revising Patrol Guide 212-60. It states that when 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.” It further states “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.).” It 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.” Davis v. City of New York, 959 F. Supp. 2d 324, 345 (S.D.N.Y. 2013) (internal quotation marks omitted). 83 See Ligon, 925 F. Supp. 2d at 519.
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insufficiency or were ticketed without probable cause.”84 The Stinson case was settled in 2017. Under the settlement, the plaintiffs received $56.5 million, and the NYPD agreed to:
undertake remedial measures related to quotas, including: sending Department-wide communications informing officers that quotas and other numeric measures of performance are improper and subject to investigation by the NYPD’s Internal Affairs Bureau; revising the training new NYPD recruits receive with regard to quotas and teaching recruits how to report observed issues without fear of reprisal; and improving public relations by simplifying the process for individuals who receive summons to identify officers responsible and for voicing complaints about summons if individuals believe the summons was issued unfairly.85 Floyd, Davis, and Ligon Floyd, filed in 2008, contests the NYPD’s SQF practices, including its disparate application to communities of color. Davis, brought in 2010, alleges that the NYPD uses unlawful stops, searches, and arrests to enforce the prohibition against trespassing in NYCHA buildings. Ligon, filed in 2012, challenges the NYPD’s SQF practices in connection with stops made on suspicion of trespass outside of privately-owned TAP buildings in the Bronx.
In January 2013, the Court found that the Ligon plaintiffs were entitled to preliminary injunctive relief based on violations of their Fourth Amendment rights. In addition to making findings with respect to the conduct alleged by named plaintiffs, the Court made findings based on ADA Rucker’s testimony and Dr. Fagan’s analysis of UF-250 forms completed in 2011 by NYPD officers in the Bronx. As to the former, the Court found that
ADA Rucker’s testimony and the supporting exhibits, including the decline to prosecute forms, contained more than enough evidence to support the conclusion that there is a clear and
84 Stinson v. City of New York, 256 F. Supp. 3d 283, 287 (S.D.N.Y. 2017). 85 Stinson, 256 F. Supp. 3d at 287-88.
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substantial likelihood that plaintiffs will be able to prove at trial that NYPD officers in the Bronx repeatedly stopped and questioned people on suspicion of trespass simply because they were observed exiting or entering and exiting a Clean Halls building.86
In August 2013, the Court held in the Floyd Liability Opinion that the NYPD’s use of
SQF violated the Fourth and Fourteenth Amendments to the U.S. Constitution. With respect to
the Fourth Amendment, the Court began by “noting the inherent difficulty in making findings
and conclusions regarding 4.4 million stops.” The Court explained:
Because it is impossible to individually analyze each of those stops, plaintiffs’ case was based on the imperfect information contained in the NYPD’s database of forms (“UF-250s”) that officers are required to prepare after each stop. The central flaws in this database all skew toward underestimating the number of unconstitutional stops that occur: the database is incomplete, in that officers do not prepare a UF-250 for every stop they make; it is one-sided, in that the UF-250 only records the officer’s version of the story; the UF-250 permits the officer to merely check a series of boxes, rather than requiring the officer to explain the basis for her suspicion; and many of the boxes on the form are inherently subjective and vague (such as “furtive movements”). Nonetheless, the analysis of the UF-250 database reveals that at least 200,000 stops were made without reasonable suspicion.
The actual number of stops lacking reasonable suspicion was likely far higher, based on the reasons stated above, and the following points: (1) Dr. Fagan was unnecessarily conservative in classifying stops as “apparently unjustified.” For example, a UF-250 on which the officer checked only Furtive Movements (used on roughly 42% of forms) and High Crime Area (used on roughly 55% of forms) is not classified as “apparently unjustified.” The same is true when only Furtive Movements and Suspicious Bulge (used on roughly 10% of forms) are checked. Finally, if an officer checked only the box marked “other” on either side of the form (used on roughly 26% of forms), Dr. Fagan categorized this as “ungeneralizable” rather than “apparently unjustified.” (2) Many UF-250s did not identify any suspected crime (36% of all UF-250s in 2009). (3) The rate of arrests arising from stops is low (roughly 6%), and the
86 Ligon, 925 F. Supp. 2d at 495.
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yield of seizures of guns or other contraband is even lower (roughly 0.1% and 1.8% respectively). (4) “Furtive Movements,” “High Crime Area,” and “Suspicious Bulge” are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.87
With respect to equal protection, the Court found that “targeting young black and Hispanic men
for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality.”88 As should be clear, the Court’s findings in Floyd would not
have been possible without the existence of, and access to, the UF-250 database.
Notably, a month after the Liability Opinion, the Vera Institute published a report, based
on a study launched in the fall of 2011, examining the question of how being stopped by police affects those who experience these stops at a young age.89 Although we will list the
recommendations made by the Vera Institute in Part 2, there is ample reason to list them first
here:
1. Continue to recalibrate stop and frisk practices to remedy the serious consequences to police-community relations and public safety that the study revealed.
2. Expand upon existing trainings to encourage respectful policing that makes people feel they are treated fairly (including informing them of the reason for the stop), and emphasize strategies aimed at reducing the number of stops that escalate to the point where officers make threats and use physical force.
3. Collaborate with the predominantly black and Hispanic/Latino communities where stop and frisk has been
87 Liability Opinion, 959 F. Supp. 2d at 559-60. 88 Id. at 664. 89 Fratello, J., Rengifo, A. F., Trone, J., Velazquez, B. Coming of Age with Stop and Frisk: Experiences, Perceptions, and Public Safety Implications, Center on Youth Justice, Vera Institute (2013), available at https://www.vera.org/publications/coming-of-age-with-stop-and-frisk-experiences-self-perceptions-and-publicsafety-implications; see Part 2 of this Section.
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concentrated to improve relationships by finding tangible strategies to put into practice. 4. Partner with researchers to better understand the costs and benefits of various proactive policing strategies as well as individual practices such as stop and frisk. Davis settled on April 28, 2015, and enforcement of the settlement was joined as related to Floyd and Ligon. In the settlement, the parties agreed 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 have a long-lasting, harmful impact on those relationships.”90
In 2015, Commissioner William Bratton announced that Operation Impact would be discontinued. In making this announcement, Bratton noted that under Operation Impact, supervision of new officers was inadequate, which led to problems in both (1) how SQF was being used and (2) with officer morale. According to the Monitor, the number of reported stops made by NYPD officers has gone from 532,911 in 2012 to 22,939 in 2015. Studies have suggested that the benefit of Operation Impact as a crime fighting tool is largely in the deployment of officers, and not in the number of stops conducted.91 Viewed differently, the unconstitutional use of SQF which has had such a detrimental and lasting impact on individuals and communities and their view of the police, has not been shown to reduce crime.
90 Settlement ¶ 2. 91 See, e.g., John MacDonald, Jeffrey Fagan, and Amanda Geller, The Effects of Local Police Surges on Crime and Arrests in New York City, 11 PLOS ONE e0157223, 10-11 (2016).
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Legal Context and Remedies
Before discussing the remedies ordered by the Court in these cases, is useful to consider some New York law relating to stop, question, and frisk and trespass. New Yorkers have even greater rights under New York’s constitution than the rights afforded by Supreme Court precedent under the federal constitution. In People v. De Bour, New York’s highest court articulated a standard of reasonableness for police encounters with the public even before a stop is permitted, such as when an officer requests information.
De Bour defined four levels of police interaction. Level 3 is a Terry stop and Level 4 is an arrest. A Level 1 encounter is “a request for information” and “involves basic, nonthreatening questions regarding, for instance, identity, address or destination.”92 While officers have “broad authority” to ask such questions, they may not do so “on whim or caprice” and must “have an articulable reason, [although that reason need] not necessarily [be] related to criminality[,] for making the approach.”93 Such encounters must be brief and cannot involve either harassment or intimidation, and it is impermissible to create the impression that the subject of questioning is suspected of a crime. Finally, an officer cannot ask the subject of a Level 1 encounter for consent to conduct a search.94
A Level 2 encounter is an interaction where an officer is permitted to ask pointed, accusatory questions, but not allowed to actually detain (or stop) the person. A Level 2 inquiry is permitted where there is a “founded suspicion” of criminality. In Hollman, New York’s highest court explained the difference between Level 1 and Level 2 this way:
92 People v. Hollman, 79 N.Y.2d 181, 185 (1992). 93 Id. at 190. 94 See id. at 191-92.
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Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is no longer merely seeking information. This has become a common-law inquiry that must be supported by a founded suspicion that criminality is afoot.95
Unlike in Level 1, the questions can focus on potential criminality. Notably, at Level 2 officers
are permitted to ask for consent to conduct a search.
The De Bour nomenclature is certainly relevant in the context of these cases. Consider,
for example, the testimony of Inspector Kerry Sweet, the executive officer of the NYPD Legal
Bureau, who by 2010 was involved in examining vertical patrols and trespass issues in NYCHA
and TAP buildings.96 After conducting focus groups with sergeants and lieutenants, Inspector
Sweet thought there was “some confusion” regarding TAP stops:
[O]fficers believe their role might have been as doorman [or] custodian, rather than a strict application of De Bour. And once again, understanding that they needed that articulate reason to approach somebody and that if you were a doorman, you could approach everybody, but that is not the case. . . . [I]n TAP buildings, you have to have a reason to approach people. . . .
I wasn’t getting the sense necessarily that they were stopping people in their tracks, but they may have been asking everybody coming into a building, what are you doing here, what is your reason for being here. And that obviously isn’t what we want them to do nor is it probably the right thing to do under the De Bour standard.97
95 Id. at 185. 96 See Ligon, 925 F. Supp. 2d at 517-18. 97 Id. at 518: With respect to trespass, the Court explained in Ligon:
Criminal trespass is defined under section 140 of the New York Penal Law. . . . : A person is guilty of criminal trespass in the second degree when, in pertinent part, he “knowingly enters or remains unlawfully in a dwelling[.]” A person “enters or remains unlawfully” in or upon premises “when he is not licensed or privileged to do so[.]” “In general, a person is ‘licensed or privileged’ to enter
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Moreover, just as police officers have had trouble understanding the distinctions under De Bour,
from the perspective of the citizen being asked pointed, accusatory questions, it is difficult to
know whether he or she is engaged in a “consensual” Level 2 encounter, and free to leave, or a
Level 3 detention (i.e., a Terry stop).
Significantly, the Court drew a connection between violations of the Fourth Amendment
and reforms related to Level 1 and Level 2 interactions in the Remedies Opinion. First, the Court
explained that:
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.98
Second, the Court posited that:
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
private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent[.]” The prosecution bears the burden of proving the absence of such license or privilege. The trespass law also states: A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public. Id. at 490-91 (citations omitted). 98 Remedies Opinion, 959 F. Supp. 2d at 679.
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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. 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.99
Likewise, with respect to the reforms in Ligon, the Court directed that Interim Order 22
of 2012 specify the circumstances in which is it permissible to interact with or stop a person
outside a TAP building on suspicion of trespass, and that it include the following language:
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.100
Finally, as another example of the relevance of Level 1 and Level 2 encounters to the issues
raised in these cases, in the Davis settlement the parties agreed that enforcement of New York
99 Id. at 679 n.38. 100 Id. at 689.
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trespass law should conform to New York law, including with respect to police-citizen encounters starting at Level 1.
Remedies Ordered in These Cases It should be recognized at the outset, that the Court’s goal in ordering reforms was not to
have “the NYPD [ ] abandon proactive policing and return to an earlier era of less effective police practices.”101 Rather, the reform process was intended to “require[] the NYPD to be even more proactive: 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.”102
In addition to appointing the Monitor and Facilitator and ordering the JRP, the Court ordered Immediate Reforms in both Floyd and Ligon. In Floyd this included:
(1) revisions to NYPD policies to make clear (a) the circumstances in which a stop can be conducted; and (b) that targeting based on race is not permitted;
(2) changes to stop and frisk documentation (required to be completed after a Level 3 stop) including
(a) revisions to the UF-250, including the addition of a narrative section, changes to the check boxes, and “a tearoff portion stating the reason for the stop, which can be given to each stopped person at the end of the encounter”; and (b) a requirement that officers provide narrative descriptions of stops in their activity logs whenever a UF250 is prepared;
101 Id. at 673. 102 Id.
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(3) changes to supervision, monitoring, and discipline, including
(a) policies requiring sergeants who witness, review, or discuss stops to address not only the effectiveness but also the constitutionality of those stops;
(b) policies requiring Integrity Control Officers who witness or review stops to review for constitutionality;
(c) requiring that the Department Advocate’s Office “improve its procedures for imposing discipline in response to [CCRB] findings of substantiated misconduct during stops,” including “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” and
(d) requiring the Office of the Chief of Department to track and investigate complaints of racial profiling;
(4) issuance of a FINEST message explaining the outcome of the litigation and “summariz[ing] 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.”; and (5) implementation of a Body-Worn Camera (“BWC”) pilot.103
In Ligon, Immediate Reforms included changes to written policies, such as to Interim
Order 22 of 2012. With respect to supervision, the City “was 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.”104 In addition, the City was ordered to develop a system for
reviewing the constitutionality of stops outside of TAP buildings in the Bronx. Finally, the City
was ordered to make revisions to its training materials and programs.
103 We note that neither this list of reforms nor the following descriptions of reforms related to Davis and Ligon are intended to be exhaustive. 104 Remedies Opinion, 959 F. Supp. 2d at 690.
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The Davis settlement included revisions to certain NYPD training materials and documentation requirements specific to NYPD trespass enforcement practices in or around NYCHA residences. The parties further agreed that additional reforms would be made as part of the Court-ordered Monitorship.
We next highlight the status of Immediate Reforms and additional reform measures both implemented and contemplated in Floyd, Davis, and Ligon. Changes to NYPD Policies and Documentation
Many of the Immediate Reforms ordered by the Court have been implemented, including the creation of new stop report form and the “What Is A Stop?” receipt that is required to be given to people who have been stopped (but not those who are arrested or summonsed). The NYPD has additionally revised its written policies for street stops and vertical patrols.105 Supervision: Focus on Quality Not Quantity of Stops
In the Liability Opinion, the Court found that NYPD “officers [were] routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops [were] constitutionally justified.”106 In the Court’s view, the two sources of this pressure were weekly “CompStat meetings” at which NYPD leadership urged local commanders to increase the number of stops and NYPD Operations Order 52, which the Court found “made clear that supervisors must evaluate officers based on their activity numbers, with particular
105 See NYPD Patrol Guide §§ 212-11, 212-59, & 212-60. Section 212-11 provides a description of the four De Bour levels. 106 Liability Opinion, 959 F. Supp. 2d at 602.
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emphasis on summonses, stops, and arrests, and that officers whose numbers are too low should be subjected to increasingly serious discipline if their low numbers persist.”107
In 2014, internal NYPD surveys reflected widespread dissatisfaction with legacy performance evaluation systems. This included the feeling that there was too much pressure to produce high numbers of stops without concern for the quality of the stops, echoing the Court’s findings in the Liability Opinion. After internal deliberations and based on input received from outside parties, a new system was developed for evaluating patrol officer performance which takes into account qualitative measures of performance, including both good and bad conduct.
This new performance evaluation system has four main components. The first is a monthly-generated electronic form known as the Officer Profile Report. While the Officer Profile Report does not track the number of stops conducted by each officer, it compiles the number of stops resulting in corrective action by a supervisor. The second is the Supervisory Feedback Form, which enables supervisors to note commendable conduct and areas that may need improvement. The Officer Self Report Form allows officers to document conduct which they regard as important. Finally, the new system makes use of Quarterly Evaluations during which supervisors review the three forms just described. Supervisors must then rate officers based on 12 “dimensions,” including “Application of Law and Procedures” and “Quality and Timeliness of Reports.” In the context of these two dimensions, the supervisor will also rate the officer on the lawfulness of stops and the accuracy and completeness of the officer’s stop reports.
107 Id. at 590, 592-94, 600. The Department has since developed a new version of the performance evaluation for sergeants and lieutenants which will be implemented in 2018.
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Notably, the NYPD’s Performance Evaluation Guide, which explains the systems to officers, states that “The overall message from the 12 performance dimensions is clear: it is about the quality and effectiveness of work. It’s not purely about quantitative metrics.” With respect to Terry stops, the Guide provides:
It should be noted that Terry stops (i.e., investigative stops or detentions that require the completion of a Stop Report) are no longer recognized as a quantitative performance metric in any way. However, if the member could not articulate a reasonable suspicion to justify a Terry stop, improperly prepared a Stop Report, or failed to complete stop documentation, supervisory members should take appropriate action, depending on the severity and frequency of the error, including guidance, training, preparing a feedback card, discipline or consideration in a quarterly evaluation.108 On November 6, 2017, Judge Torres issued an order requiring the Monitor to review and assess the NYPD’s performance-evaluation system to ensure that it does not reinstate pressures that result in a focus on the quantity of stops without regard to their lawfulness or that would undermine the goals of the remedial process. Furthermore, Judge Torres’ order provides that Court approval is required before the NYPD implements a proposed change that would introduce a mechanism to count the number of stops conducted by an officer or otherwise affect the manner in which the quality and lawfulness of stops are assessed. These requirements only exist during the period of Court supervision.
108 The Monitor reports that one or more members of the team have attended CompStat meetings from April 2016 through August 2017 and that there is seldom any mention of stops and never a criticism of number of stops or lack of stops. Notably, the evaluation system currently only covers officers.
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Police Stop Data On March 25, 2016, the Court approved the Monitor’s proposal regarding (1) a revised
stop report form and accompanying instructions and (2) a draft NYPD Interim Order that reconciles NYPD SQF procedures with the new stop report form.
The new form requires documentation of stops as well as any related frisk or search, but not of Level 1 or 2 encounters. The form has a narrative section in which officers are required to describe the facts that formed the basis for the stop and, if conducted, the frisk, replacing the old forms which relied heavily on checkboxes. The prior use of checkboxes, such as “furtive movement,” were thought to be susceptible to abuse in that they provided rote justifications. The form also has a section for supervisors to document that they have conducted the review required by NYPD policy and follow-up action, if any, called for by that review. In the Monitor’s view, this new form “balances well the several goals of such a form — documenting stop, question, frisk and search activity, providing some guidance about when these interventions are permissible, and facilitating their review by supervisors and others in the Department.”109
In addition, the NYPD has developed a new records management system called FORMS or “Finest Online Records Management System.” On November 22, 2016, the Court approved the electronic version of the Court-approved stop report form. Once included in FORMS, officers can access and complete the stop report form on their smartphones and tablets, and supervisors can review the report electronically for approval or correction. FORMS is able to capture the narratives, the supervisory review, and the other fields on the Court-approved stop report form.
109 3/23/16 Ltr. from Monitor to Judge Torres at 3.
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As required by section 140.50(4) of New York’s Criminal Procedure Law, the database
does not record the name and identifying information (address, date of birth and phone number)
of the person stopped. However, that information is required to be recorded in officer activity
logs, and a copy of the activity log is attached to a hard copy of the stop report and kept in a
binder at each precinct, which facilitates audits and investigations related to CCRB complaints.
Body-Worn Camera Pilot
In the Remedies Opinion, the Court required that the NYPD implement a Body-Worn
Camera pilot program over a one-year period to measure “the effectiveness of body-worn
cameras in reducing unconstitutional stops and frisks” and to evaluate “whether the benefits of the cameras outweigh their financial, administrative, and other costs.”110 In ordering this relief,
the Court explained the various purposes video recordings could serve:
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. Second, the knowledge that an exchange is being recorded will encourage lawful and respectful interactions on the part of both parties. Third, the recordings will diminish the sense on the part of those who file complaints that it is their word against the police, and that the authorities are more likely to believe the police. 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.111
110 Remedies Opinion, 959 F. Supp. 2d at 687-88. 111 Id. at 685.
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Significantly, the Remedies Opinion left the decision of whether to expand the Body-Worn Camera (“BWC”) pilot an open issue. The decision provides that “[a]t 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.”112 At this time, the Department has already begun the process of expanding the BWC program beyond the pilot, and is now beginning the process of disseminating cameras to over 17,000 patrol officers.
The BWC pilot was launched in April 2017. The goal is to have approximately 1,200 officers — including uniformed patrol officers, plainclothes officers from specialized anti-crime units, and traffic enforcement officers — in 20 precincts wear cameras for the one-year program. The comparison control group will also include uniformed and plainclothes officers.113 Notably, from December 2014 through March 2016, the NYPD instituted a trial BWC program in which 54 officers in five precincts and one housing Police Services Area volunteered to wear BWCs.
It is important to understand some of the considerations that went into the development of the BWC pilot, including what the pilot is intended to measure and the protocols for the program developed by the Monitor.
112 Id. 113 The Monitor is also developing a separate method of evaluating the use of BWCs by NYPD officers working in Public Housing Services Areas (i.e., patrolling in and around NYCHA-owned properties).
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Outcome Measures According to the Monitor, the study114 will assess four sets of outcomes measures: (1) civility of police-citizen interactions, including de-escalation (2) arrest numbers and other policing activities, (3) police lawfulness, and (4) police-community relationships. With respect to civility and de-escalation, the pre-test and post-test data will be collected to analyze outcomes compromised of: CCRB complaints, officer arrest reports listing force, officer use of force reports, officer injury reports, resisting arrest data, and Disorderly Conduct and Obstructing Government Administration arrests and summonses. It also appears that lawsuits against officers will be considered.115 The metrics considered for arrest numbers and other policing activities include the monthly number of responses to calls for service (per unit); officer initiated-calls (per unit); complaints by citizens of crime; domestic incident reports; arrests; summonses; stop reports; and interior patrols.
To assess police lawfulness, each quarter the monitor team will review stop reports to assess constitutionality and compliance with the orders in Floyd, Ligon, and Davis and to compare the extent to which stop reports in camera and non-camera precincts differ. According to the Monitor, “[t]he monitor team will be looking at whether the presence of cameras influenced the officers’ justifications for the stops, frisks and searches and also whether wearing cameras affected the demographic makeup of those stopped, such as their race, gender and age.”
114 The Monitor has provided greater detail on the design of the experiment. See, e.g., Sixth Report of the Independent Monitor, The NYPD’s Body-Worn Camera Pilot: Research and Evaluation Plan (June 29, 2017). 115 See id. (“Variables in these datasets will be analyzed to determine whether cameras influence the types of CCRB complaints filed, lawsuit settlement amounts (if data is available), the types of force used (hand strike, baton, etc.), and other relevant subcategories for camera officers and control officers over the course of the study period. The monitor team will also examine the impact of cameras on the CCRB complaint process and outcomes, looking, for example, at dispositions, time-to-disposition of complaint, and disciplinary actions taken. The aim is to gauge differences in post-complaint experiences of treatment officers relative to control officers.”).
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The Monitor will also compare trespass enforcement in NYCHA and TAP buildings between officers outfitted with cameras and those without cameras to see whether the arrests were lawful and whether officers completed the required arrest and stop reports. In its June 29, 2017 report, the Monitor cautioned that this assessment depended on “the availability of data in a readily accessible format.”
Finally, to evaluate the impact of BWCs on police-community relations, surveys will be conducted before and after the introduction of the cameras. This includes both telephonic and inperson surveys. The details of the survey methods are available in the Monitor’s June 29, 2017 report.
BWC Pilot Policies and Procedures The Court directed the Monitor to establish certain policies and procedures for the BWC pilot:
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.116 The NYPD initially developed procedures in connection with its trial BWC program, and the Monitor has accepted the recommendations of the NYPD as to the procedures to be used during the BWC pilot. In establishing these procedures, the NYPD drew upon: (i) the policy for the trial BWC program in place from December 2014 through March 2016, which had been
116 Remedies Opinion, 959 F. Supp. 2d at 685.
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developed after, among other things, consideration of model policies issued by the International Association of Chiefs of Police (“IACP”), the Police Executive Research Forum (“PERF”), and the American Civil Liberties Union (“ACLU”) and the policies in use at 20 police departments; (ii) feedback from stakeholders, including plaintiffs’ counsel in Floyd, Davis, and Ligon, police reform advocacy groups, and NYPD’s five unions; (iii) results from an NYPD-commissioned survey of police officers and the public regarding the proposed policy; and (iv) the NYPD’s feedback based on informal meetings with stakeholders. As part of the NYPD’s outreach effort described above, on April 7, 2017, the NYPD submitted revised draft procedures for approval and made public its analysis of the two surveys, including an explanation of why it had accepted or rejected certain recommendations.117
In approving the policy, the Monitor focused on four core areas: (1) when the camera is required to be activated, (2) when notice of activation is given, (3) supervisory review, and (4) documentation and retention. As a general matter, the BWC is required to be turned when responding to radio calls of a crime in progress, during interior patrols of NYCHA and TAP buildings, and prior to Level 2 encounters. For officers on patrol, apart from officers on interior patrols of NYCHA or TAP building, this means that BWCs must be activated for Level 2 encounters, but not with respect to Level 1 encounters (although officers may activate cameras at Level 1 when they deem it appropriate to do so).118 Activation of the BWC is also required for
117 See Monitor’s Memorandum Regarding Approval of Policies for NYPD Body-Worn Camera Pilot Program (April 11, 2017), Attachment 3, NYPD Response to Public and Officer Input on the Department’s Proposed BodyWorn Camera Policy, available at http://nypdmonitor.org/wp-content/uploads/2018/02/2017-04-11-Floyd-LigonDavis-Monitors-Ltr.-to-Court-Encl.-Memo-re-Approval-of-Policies-for-NYPD-BWC-Pilot-as-filed.pdf 118 As noted, the NYPD retained researchers to conduct two surveys. The researchers surveyed 5,419 uniformed officers and 25,000 members of the public (unfortunately, the survey of the public was not representative of New York City’s population in that it was disproportionately white: according to the report conducted by the Policing Project to the NYPD Summarizing Public Feedback on its proposed BWC Policy, 60% of respondents were white, even though whites make up just 33% of New York City’s population). On the issue of when an officer should be
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consent searches, inventory searches, searches incident to arrest, and searches of a person’s belongings, but not for strip searches.
The Monitor believed that it was beneficial to record Level 2 encounters because (1) it may be difficult for officers to turn on the BWC where the Level 2 encounter escalates to a Level 3 Terry stop; and (2) it would permit the Monitor to evaluate whether officers are confusing Level 2 encounters with Level 3 stops. The latter is particularly important because an officer who fails to realize that a Level 3 stop has occurred will also not submit a stop report because stop reports are not required for Level 2 encounters. In addition, the Monitor noted that he believed that because officers are required to activate their BWCs during interior patrols of NYCHA and TAP buildings and when responding to a radio call, “a sufficient number of Level 1 encounters will be recorded under the [policy] to determine whether, in practice, Level 1 encounters raise questions that need addressing by the Department or the monitor.”119
Notice of recording is required “[a]s soon as reasonably practicable” whenever the BWC is active “unless notification could compromise the safety of any person or impede an investigation.”120 Consent is not required to start or to continue recording.
Supervisors are required to review BWC video “in conformance with the self-inspection program promulgated by the [NYPD’s] Quality Assurance Division,” and also periodically to
required to inform a person that the camera is recording, the choices given were “As soon as the officer approaches the person,” “As soon as possible without compromising safety or other law enforcement interests,” “Never,” and “No opinion,” 65% of officers responded never, whereas 27% of public participants answered as soon as the officer approaches and 46% responded as soon as possible. 119 Monitor’s Memorandum on Approval of Body-Worn Camera Policies, at 7. 120 Id., Attachment 1, Step 4.
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provide feedback and address deficiencies.121 Currently, the NYPD is implementing a new selfinspection program run by the Risk Management Bureau. Changes to Local Laws
On August 3, 2016, Mayor Bill de Blasio signed into law Intro. 606, also known as the “NYPD Use of Force Encounter Reports Law.” The bill requires the NYPD to issue quarterly reports on “use of force incidents” and “their relationships to quality of life offenses.”
In addition to this bill, Intro. 539 requires the NYPD to “provide a quarterly report on the number of use of force incidents disaggregated by type of force used, precinct or unit of that officer that used force, and whether the officer was on or off duty when the force was used.” Intro. 824 requires the NYPD to “post an annual report of the total number and percentage of officers in each precinct that: have two or more substantiated [CCRB] complaints in the last three calendar years, have been the subject of an Internal Affairs Bureau Investigation that resulted in a suspension in the last five years, use of excessive force in the last three years or have been arrested in the last 10 years for police-related behaviors.”122
A version of the “Right to Know Act” has been enacted. Under this legislative package, (1) officers are required to inform individuals during Level 2 and 3 encounters that they have the right to refuse to be searched and proof of consent to search must be provided in writing or by
121 Id. at Step 26. 122 See Zaria Howell, “De Blasio Signs ‘NYPD Use of Force Encounters Reports Law,’” Amsterdam News, Aug. 11, 2016 (internal quotation marks omitted), available at http://amsterdamnews.com/news/2016/aug/11/de-blasiosigns-nypd-use-force-encounter-reports-l/
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video (Intro. 541-C); and (2) officers are required to identify themselves and provide a business card as well as the reason for questioning at the initiation of Level 2 encounters (Intro. 182-D).123

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Part 2

Calls for Greater Respect, Transparency and Accountability

The JRP has endeavored to engage the communities most affected by the NYPD’s misuse

of SQF and trespass enforcement practices in developing supplemental reforms beyond the

Immediate Reforms, additional reforms implemented during the course of the Court-ordered

Monitorship, and efforts by the New York City Council. The findings and recommendations of

this process have been underscored by three primary issues which we review in sum and

substance — respect, transparency, and accountability. These sections are organized as follows:

1. Public Investigations and Reports on Police-Community Relations in New York City from 1999 to 2015
2. Reasons to Address Police-Community Relations 3. Defining Transparency and Accountability 4. Reasons to Address Transparency and Accountability 5. Summary of Relevant Themes on Respect, Transparency, and Accountability

123 Under earlier versions of Intro. 182, officers would have also been required to identify themselves at the start of Level 1 encounters that had a law-enforcement purpose. As enacted, Intro. 182 has received some criticism: “Under prior versions, officers would need to identify themselves in any nonemergency encounter involving investigative questioning. These types of encounters represent the vast majority of police[-citizen encounters]. The new version only requires officer identification when a person is ‘suspected of criminal activity.’ The problem is that police don’t need to suspect someone of criminal activity to approach them, disrupt their daily routines, and question or harass them.” https://www.aclu.org/blog/criminal-law-reform/reforming-police-practices/backroom-deal-threatens-weakenreal-police
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Public Investigations and Reports on Police-Community Relations in New York City 1999 – 2015
The following segment of this report is a brief chronicle in memorandum form of the
various efforts in the form of public investigations and reports about the NYPD, its relationship
with impacted communities, and recommendations for reform. It lends additional context to the
necessity of reforms to address respect and police community relations, and lays the foundation
for interpreting both suggestions from community members, and the Joint Remedial Process
recommendations outlined in Section VI.
Report Name & Citation: The Task Force on Police/Community Relations. (1998). Report to the Mayor. New York, New York.
Summary of Process: Ten days after the assault of Abner Louima by two NYPD officers in August of 1997, Mayor Giuliani assembled the Task Force on Police-Community Relations. The task force was comprised of 33 members appointed by the Mayor. Among those selected were civil liberties administrators, former high-ranking New York City Police Department administrators, three City Council members, a borough president, several media representatives, as well as civic, religious, and community leaders. The task force worked for 6 months and generated 91 specific recommendations for improving police-community relations. Of those 91 recommendations, 87 were implemented in some way. Below you will find 26 recommendations directly or closely related to the most recent reform efforts to the NYPD.
Recommendations: 1. CPR (Courtesy, Professionalism, and Respect) advisory board to develop and disseminate a Code of Professional Standards; supplemented with lecture and video based roll call training briefs. 2. Institutionalize CPR training in the same way as firearms training. 3. Establish separate CPR Academies for leadership. 4. Independent body to develop and disseminate rank-specific, anonymous CPR evaluation surveys to leadership. Surveys should be complemented by open-ended, rank-specific focus groups designed to capture qualitative feedback. 5. Adopt policy/procedure manual for all Precinct Community Councils. 6. Convene and facilitate mandatory quarterly meetings, with all Precinct Commanders, and Precinct Council Executive Board Members. 7. Submit copy of monthly minutes.
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8. Mandated to establish a Membership Recruitment Sub-Committee. 9. NYPD should design and implement a Comp-Stat like strategy to continuously measure
and assess the effectiveness of all operational CPR components and the overall status of police-community relations, as well as to hold precinct and select operational unit commanders accountable for these measures. 10. Precinct Commanders should develop and implement a Citizen-Police Information Seminar Series. 11. Citizen-Police Town Hall dialogues should be instituted to address police-related issues/concerns raised by citizens and incidents of police-community tension. 12. Precinct Commanders and Community Precinct Council Presidents should receive facilitation skills training in order to more effectively and efficiently facilitate these forums. 13. Precinct Commanders should develop and implement a Citizen-Police Information Seminar Series. 14. Develop and implement a Community Affairs Response Team (CART) pilot in a precinct subject to community unrest. The mission is to de-escalate the risk of community unrest and through the strategic deployment of a team of select, specially trained police officers and community members. 15. Department should create a proactive curriculum which exposes student officers to the diverse and changing nature of the City’s communities, challenges them to become cognizant of and question the feelings, assumptions and perceptions which influence their behavior, and equips them with the necessary tools to effectively serve all communities with courtesy, professionalism and respect. 16. Include video vignettes which comprehensively explore diverse groups in New York City. 17. Recommends the creation of a Board of Visitors for the New York Police Academy to act as advisors to the Mayor and the Police Commissioner. The BoV should conduct a top to bottom review and assessment of the Police Academy curriculum and to make appropriate recommendations for improvement. 18. Elimination of the 48 hour rule. 19. Create an independent auditor/monitor board to monitor and evaluate civilian complaint processes administered by the CCRB and the NYPD. 20. Propose the designation of both a senior NYPD official and a CCRB board member to act as liaisons between their respective agencies and the auditor-monitor. 21. The creation of a screening body composed of CCRB personnel and community representatives. (This body would screen complaints to identify the less serious complaints and refer them without a full investigation for resolution by either mediation or conciliation.) 22. NYPD should make the status information known to the CCRB, and the CCRB should then be responsible for reforming the complainant. 23. The NYPD’s disciplinary choices, the reasons for making those choices and the specific disciplinary action the Police Department takes on CCRB-substantiated complaints should be public information. 24. Police disciplinary matters should be left solely in the hands of the Police Commissioner, and that the Police Commissioner’s disciplinary determinations be accorded great
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deference. Further, reviews by intermediate-level bodies should not interfere with a matter deserving of great deference to the Police Commissioner.
Report Name & Citation: Meyers, M., Fung, M., Siegel, N. (1998). Deflecting Blame: The Dissenting Report of Mayor Rudolph W. Giuliani’s Task Force on Police/Community Relations. New York, NY.
Summary of Process: Following the finalization of the Task Force Report, three members of the task force wrote a dissenting report highlighting many of the issues existing throughout the 6 month long task force convening and the writing of the final recommendations. Task force members involved in the dissenting report included Michael Meyers, Executive Director of the New York Civil Rights Coalition, Margaret Fung, Executive Director of Asian-American Legal Defense and Education Fund, and Norman Siegel, Executive Director of NYCLU. The report was published in March of 1998; the same month as the initial report.
Recommendations: 1. To effectively develop a comprehensive approach to combating police misconduct there must be a mechanism for precinct level monitoring of police activity. It was recommended that there be an elected Police Community Advisory Board in each of the city's police precincts. Each board would have five members elected from the general population living within precinct boundaries. By monitoring and reporting on local police activity, this body would make precinct commanders accountable to neighborhood concerns and provide local residents and community organizations with a channel for addressing problems. (These boards are distinctly different from Precinct Community Councils) 2. Propose a six-month weekly class given to thirty police officers from all 97 precincts. It is recommended that this training is co-instructed with a well-trained NYPD officer and community member. 3. A residency requirement tied to an affirmative action plan for police officers as a condition of employment is strongly recommended to improve police community relations and increase the effectiveness of the NYPD. 4. Recommendation that that the NYPD implement an aggressive affirmative action plan designed to create a police force more reflective of the city's population. 5. Removal of the 48-hour rule. 6. Increase Academy Training from six months to one year. 7. As part of this effort, the NYPD must undertake a serious effort to make police precinct station houses client friendly. Some of the city's station houses today are no different than liquor stores with their small bulletproof plastic vestibules. With minimal costs, station houses can be transformed into places where neighborhood residents would be welcome to ask for assistance or just some basic information about city services. 8. Police Officers should be required to undergo periodic psychological testing. 9. In addition, clear written guidelines and procedures should be established by the NYPD for the handling of police encounters and incidents in which non-English speaking individuals are involved.
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10. New York City's Human Rights Commission should develop workshops and materials for distribution directed towards young people to inform them of their rights and responsibilities in their interactions with the police.
11. The NYPD and the CCRB compile a broad range of statistics, from the number and type of arrests made, to complaints filed, to the number of bullets discharged, on a daily, weekly, monthly, and annual basis. A suggestion that as soon as this information is collected that it be posted on the NYPD and CCRB Websites for the widest available dissemination. Regular access to statistics on crime fighting and police misconduct would compel a form of accountability that does not currently exist.
12. The Police Commissioner must act on CCRB complaints within 30 days from when he receives them.
13. The Police Commissioner must act on the Administrative Law Judge’s decision within 30 days from when he receives it.
14. The CCRB must hold public town-hall meetings at least once a month. At these meetings, the community would be invited and police management would be required to attend.
15. The Mayor’s Executive Order issued on October 21, 1997 requiring the NYPD and CCRB to work more cooperatively and specifically to develop procedures to better inform complainants about the status of their complaint must be implemented. (The members did not believe that this Executive Order had been adequately implemented).
Report Name & Citation: Spitzer, E. (1999). The New York City Police Department's "Stop & Frisk" Practices: A Report to the People of the State of New York from the Office of the Attorney General. New York, New York: Civil Rights Bureau.
Summary of Process: In March of 1999, Attorney General Eliot Spitzer commissioned an investigation into the NYPD’s Stop and Frisk practices. Stop data were reviewed to compare the extent to which minorities and whites were the subject of “stop & frisk” activity for the period of January 1, 1998 through March 31, 1999. The Office of the Attorney General published the report on December 1, 1999.
Issues Identified: ● Steady deterioration in the relations between the City’s minority population and the NYPD. ● In 1999, the climate in New York’s minority neighborhoods were resentment and distrust of the NYPD. ● Relative to their percentages within the population of New York City, Blacks were stopped at a much higher rate than whites.
Recommendations:
1. That NYPD attends to the data and respond to the serious concerns set forth in the report.
Report Name & Citation:
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U.S. Commission on Civil Rights. (August, 2000). Police Practices and Civil Rights in New York City. Washington D.C.: U.S. Commission on Civil Rights.
Summary of Process: The USSCR is composed of eight Commissioners: four appointed by the President and four by Congress. At the time of the Policing Practices report, Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, and Commissioners Christopher F. Edley, Jr., Yvonne Y. Lee, Elsie M. Meeks, Victoria Wilson, Carl A. Anderson and Russell G. Redenbaugh. Anderson and Redenbaugh dissented with the findings of the commission in a statement appended to the final report. The hearing took place May 26, 1999 and the final report was published in August of 2000.
Issues Identified: 1. Racial profiling had been practiced as part of NYPD’s stop and frisk practices. 2. Cadets did not receive sufficient training time and experience - especially diversity training. 3. NYPD used materials that were offensive, and had prejudicial/racial, ethnic, religious, sexual, and gender stereotypes. 4. Sexual harassment training was inadequate. 5. The quality of instructors for the diversity and sexual harassment training, and number of instructors of color need improvement. 6. NYPD’s in-service stop and frisk training did not occur regularly and was of a questionable benefit. It failed to instill respect for adherence to constitutional procedures. 7. There was a lack of regular continuing education courses on stop and frisk procedures, thereby contributing to misunderstanding by police officers. 8. NYPD lacked clarity in their articulation to the media and public the recommendations put forth by the mayor’s Task Force on Police/Community relations and how they would be implemented and with what impact. 9. Open dialogue between NYPD and community members on a regular basis is a necessary effort toward building police community relations. When these regular dialogues do not take place on a regular basis the result is deterioration in police community relations. 10. NYPD training academy should be reformed. 11. Precinct Community Councils lacked oversight and accountability to a centralized authority, while not governed by any mission statement, with goals and a scope of responsibilities. 12. PCC lacked centralized technical support, and a mechanism for inter-council communication and idea sharing, they also like centralized accountability for membership diversity and activities. 13. NYPD had not been clear enough on articulating - both to the media and to the general public - the extent to which recommendations put forth by the mayor’s Task Force on Police/Community Relations were being implemented, and with what impact.
Recommendations:
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1. NYPD should change its diversity training and sexual harassment programs, including enhancing such training at the borough and precinct levels. Community members should be included in developing these trainings.
2. There should be more training time devoted to diversity training. 3. Negative stereotypes within training materials should be eliminated. 4. Materials should explore the meaning of racism, sexisms, bias, oppression, stereotyping,
peer pressure, and related concepts. 5. Mandates under settlement agreement with the United States should be implemented to
address the inadequate sexual harassment training. 6. Trainees should be tested on training material. 7. Continuing education courses on stop and frisk is necessary and should highlight relevant
constitutional requirements. This training should be implemented for all officers regardless of rank. 8. Officers should be prepared following their academy training to develop community relationships and partnerships; while also receiving rewards for developing these community relationships and partnerships. 9. Creation of a website that provides public access to data collected by both the NYPD and by the CCRB. 10. Public forums involving both the police and community members should occur regularly throughout the year. 11. Participation in Precinct Community Councils should be actively promoted throughout the department and communities. Community members should receive regular updates in newsletter or other communication. 12. Creation of an independent temporary commission to investigate and examine the practices and training materials which are currently in use by the academy. 13. With a focus on Courtesy, Professionalism, and Respect (CPR) - in-service CPR training should be institutionalized and mandated like the firearms training. 14. Since Precinct Community Councils were not accountable to a centralized authority, it was recommended that NYPD adopt a mandated police and procedure manual for the PCC, placing significant emphasis on defining a mission statement, goals, scope of responsibilities, and scope of activities specifically designed to ensure that councils continuously and aggressively work to maximize improvements in the areas of quality of life, police-community relations, and community assisted policing. 15. Implement Police-Community dialogues in the form of a citizen-police information seminar series to complement the Citizens Police Academy. 16. Implement “citizen-police town hall dialogues” 17. Precinct commanders and CPP presidents should receive facilitation skills training to more effectively and efficiently facilitate dialogues. 18. NYPD should work harder to include community members in planning and policy development.
Report Name & Citation: Vera Institute, Center on Youth Justice. Fratello, J., Rengifo, A. F., Trone, J., Velazquez, B. (2013). Coming of Age with Stop and Frisk: Experiences, Perceptions, and Public Safety Implications.
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Summary of Process: A study conducted by the Vera Institute, launched in the fall of 2011. This study sought to answer the unexplored question of: How does the being stopped by police, and the frequency of those stops, affect those who experience these stops at a young age? Using survey and in-depth research methods this study focused on young people (between the ages of 18-25) in highly patrolled, high-crime areas who have been stopped by police. There were approximately 500 respondents for the survey, with a smaller sample of in-depth interviews conducted with 13 to 21 year olds. The report was published September 2013.
Recommendations:
1. The NYPD should continue to recalibrate its stop and frisk practices to remedy the serious consequences to police-community relations and public safety that the study revealed.
2. Expand upon existing trainings to encourage respectful policing that makes people feel they are treated fairly (including informing them of the reason for the stop), and emphasize strategies aimed at reducing the number of stops that escalate to the point where officers make threats and use physical force.
3. Collaborate with the predominantly black and Hispanic/Latino communities where stop and frisk has been concentrated to improve relationships by finding tangible strategies to put into practice.
4. Partner with researchers to better understand the costs and benefits of various proactive policing strategies as well as individual practices such as stop and frisk.
Report Name & Citation: Adams, E. L., Brewer, G., Siegel, N. (2015). Improving Police Community Relations: A Report from a Series of Town Hall Meetings in Brooklyn and Manhattan, New York, NY.
Summary of Process: A partnership effort between the Manhattan and Brooklyn Borough Presidents Gale Brewer and Eric Adams, as well as NYCLU Executive Director, Norman Siegel, this report followed a series of community dialogues in Brooklyn and Manhattan beginning in January 2015. The final report was published in September 2015.
Recommendations:
1. Increase eligibility to take officer entrance exam. 2. Create a career ladder for auxiliary police officers into Department. 3. Assign a Special Prosecutor for cases of fatal police encounters. 4. Utilize early intervention systems to monitor officers’ performance and behavior. 5. Create an accountability-driven culture in the NYPD. 6. Create meaningful community engagement and oversight mechanisms:
a. While the department’s new Neighborhood Policing initiative emphasizes community engagement and the value of relationships, participants at their roundtables emphasized that nonconfrontational everyday interactions with police
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officers were essential to changing the culture of policing. Community members also noted that community engagement is a two-way street. b. While officers should be respectful and friendly to community members, community members should also welcome officers into their communities. As such, community engagement should be a required component of the job, and quantitative parameters should be set requiring officers to attend a number of community meetings and neighborhood events each month. Some ideas for officer-community engagement included:
i. Officers visiting schools and teaching civics classes ii. Utilizing the precinct as a community space with access to computers and
Wi-Fi for young people iii. Hosting Open Houses at precincts (in similar manner to the recent Open
Houses sponsored by the Fire Department of New York/FDNY) iv. Ensuring that officers on front desk are apprised of all events that precinct
is sponsoring (i.e. a block party or basketball game) v. Connecting constituents calling precincts to Community Affairs officers in
a user-friendly manner vi. Organizing regular sports events with the community vii. Hosting block parties 7. The Department should provide ongoing anti-racism training for the entire department that is interactive and applicable to officers’ daily duties. 8. Make de-escalation the norm as a matter of practice in NYPD encounters 9. Require the NYPD to issue quarterly public reports detailing officers’ use of force by precinct and area of deployment 10. Require the NYPD to issue quarterly public reports detailing officers’ use of force as they related to quality-of-life crimes 11. Ensure that language in the NYPD Patrol Guide and training material intended to provide guidance to officers on how to conform to the law while conducting a “stop and frisk” based on “reasonable suspicion” follows the standards established by the Supreme Court of the United States in Terry v. Ohio. 12. Establish a permanent Statewide Independent Special Prosecutor to investigate allegations of police misconduct in order to avoid possible conflicts of interest by District Attorneys who, due to the nature of their everyday work with the police, are subject to an inherent risk of such conflict or the perception of it. 13. Implement a new NYPD Diversity Plan: “Experience Equals Education.” New York City’s peace officer forces such as School Safety Agents, Traffic Enforcement Agents, and Health and Hospital Corporation Officers are more diverse than the NYPD as a whole, yet they are not allowed to take the NYPD exam unless they have two years of college. We propose to allow these and other peace officers to take the NYPD exam if they have served honorably for more than two years in their current positions. 14. All NYPD officers should receive basic training in Community Affairs policing and engage in outreach to communities for New York City programs like “Pre-K for All” and “ID-NYC.” 15. Reform “Broken Windows” policing by decriminalizing many non-threatening behaviors such as bike riding on the sidewalk, jaywalking, taking an extra seat on the train, drinking
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(moderately) from an open container, and other activities that traditionally were not summonsed or prosecuted. 16. Put body cameras on officers, developing clear guidelines for their use, before full deployment. 17. Since schools are too often left empty after school hours when community sports, arts, and civic activity space is needed the most. NYPD should partner with the Department of Education to expand school building hours to create safe spaces for community activities. 18. Community Ownership and Accountability: To improve the quality of “neighborhood policing” and make neighborhoods safer, the community should take more of a leadership role. 19. Create an “Improve Police-Community Relations Coalition” made up of communitybased and civil rights organizations, clergy, and concerned New Yorkers to monitor the progress of the city and NYPD in implementing the recommendations of this report. 20. Require the annual publication of a police-community relations status report prepared by the NYPD, to be provided to the Mayor, Comptroller, Public Advocate, City Council, the NYPD Inspector General, the Federal Monitor, the CCRB, and other appropriate agencies. 21. Create a seven-member oversight panel consisting of a City Council Member, a Borough President or designate, a civil rights lawyer, a community member, a union representative of NYPD members, a current NYPD Community Affairs officer, and a journalist of a local print news organization.
Reasons to Address Respect and Police-Community Relations
While the Department has in the past made efforts to address police-community relations,
critics have long highlighted the lack of meaningful engagement in communities of color. In
addition, the NYPD lacks an institutionalized component for community partnerships in the
pursuit of public safety. These issues have meant, in the past, that efforts at reform are often
limited to the incumbency of current elected officials who make changes that fail to become part
of the culture of the NYPD.
Early notions of law enforcement are said to be inspired by Robert Peel’s principles of policing, which were developed around 1829.124 Peel propounded some general principles of
124 See generally Keith L. Williams, Peel’s Principles and Their Acceptance by American Police: Ending 175 Years of Reinvention, The Police Journal, Volume 76 (2003); see Nick Pinto, “The Point of Order,” N.Y. Times, Jan. 13,
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police-community relations that were in his view foundational to the maintenance of public
safety. In his summary Peel highlighted the necessity for both public cooperation and public
respect as tantamount to the task of policing effectively. Peel’s principles are so central to
modern policing that former Police Commissioner William Bratton was said to have kept a copy
of them in his office during his tenure at the NYPD.125 What Peel recognized nearly two hundred
years ago was the basic need for community trust and cooperation.126 Unfortunately, generations
2015 (“Peel’s vision was highly influential in the formation of the New York City Police Department in 1845, and he is now regarded as a father of modern policing.”), available at https://www.nytimes.com/2015/01/18/magazine/the-point-of-order.html 125 See “Sir Robert Peel’s Nine Principles of Policing,” New York Region, N.Y. Times, Apr. 15, 2014, available at https://www.nytimes.com/2014/04/16/nyregion/sir-robert-peels-nine-principles-of-policing.html 126 Scholars disagree whether there are nine or 12 Peel principles. When viewed as nine, they are often listed this way:
PRINCIPLE 1 “The basic mission for which the police exist is to prevent crime and disorder.”
PRINCIPLE 2 “The ability of the police to perform their duties is dependent upon public approval of police actions.”
PRINCIPLE 3 “Police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and maintain the respect of the public.”
PRINCIPLE 4 “The degree of cooperation of the public that can be secured diminishes proportionately to the necessity of the use of physical force.”
PRINCIPLE 5 “Police seek and preserve public favor not by catering to the public opinion but by constantly demonstrating absolute impartial service to the law.”
PRINCIPLE 6 “Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient.”
PRINCIPLE 7 “Police, at all times, should maintain a relationship with the public that gives reality to the historic tradition that the police are the public and the public are the police; the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”
PRINCIPLE 8 “Police should always direct their action strictly towards their functions and never appear to usurp the powers of the judiciary.”
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of fractured relationships between police and minority communities has contributed to perceptions of the Department as a perpetrator of racism and homophobia in impacted communities. In recent years with the deaths of Eric Garner and Ramarley Graham, that schism has grown and produced a culture of fear and distrust that has, for some time now, diminished the police-community cooperation at the heart of Peel’s thesis.
Poor police-community relations have several implications for officers from both a personal and professional standpoint. Distrust between officers and community members may instill officers with a sense of apprehension when approaching suspects, increasing the likelihood of escalation, the use of excessive force, and traumatization. Officers who are confronted regularly with depictions of themselves and their profession as abusive and racist are more likely to become defensive and disillusioned with the concept of community oversight or approval.127 Such depictions can have a deleterious effect on officers whose work already exposes them to vicarious and actual trauma, with exposure to vicarious trauma occurring on a routine basis. Research shows that exposure to trauma produces hypervigilance and hypersensitivity to perceived threats for both the person being stopped and the police officer. Officers experiencing a sense of threat may, therefore, unnecessarily escalate civilian encounters, which, among other things, makes maintaining respectful relationships with the community even more difficult.128
Moreover, poor police-community relations have several implications for the direction of public safety. For example, when citizens do not trust officers they are less inclined to report
PRINCIPLE 9 “The test of police efficiency is the absence of crime and disorder, not the visible evidence of police action in dealing with it.” 127 See Susan Watt, Future of Civilian Oversight of Policing, 33 Canadian J. Criminology 347 (1991). 128 See U.S. Comm’n on Civil Rights, Police Practices and Civil Rights in New York City: Chapter 3 PoliceCommunity Relations.
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incidents129 and violence in communities may increase.130 Citizens who are distrustful of officers
are also more inclined to run from officers seeking to question them.131 While fleeing the scene
does not necessarily denote guilt,132 it increases the likelihood of escalation and arrest. A history
of racially-biased policing tactics or the perception thereof has contributed to a greater fear of
police in communities of color, and as a consequence residents of impacted communities may be
more likely than others to run in the presence of police.
Dr. Judith Lewis Herman in her revised 1992 book entitled Trauma & Recovery133
defines “psychological interpersonal trauma” as occurring when an individual has an experience
that threatens his or her life or bodily integrity, which overwhelms his or her ability to cope by
creating feelings of hopelessness or intense fear. The hopelessness and fear described by Dr.
Herman is what many community members expressed that they experienced during the varied
phases of the JRP. Since thoughts and feelings are antecedents to actions, these experiences are
129 Robert F. Kidd and Ellen F. Chayet (1984), Why Do Victims Fail to Report? The Psychology of Criminal Victimization, Journal of Social Issues 40(1) 39-50. 130 See https://thecrimereport.org/2015/01/22/2015-01-columbus-cops-session/ 131 See, e.g., Commonwealth v. Warren, 475 Mass. 530, 539 (2016) (“[W]here the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston. According to the study, based on [ ] data collected by the department, black men in the city of Boston were more likely to be targeted for police-civilian encounters such as stops, frisks, searches, observations, and interrogations. Black men were also disproportionally targeted for repeat police encounters. We do not eliminate flight as a factor in the reasonable suspicion analysis whenever a black male is the subject of an investigatory stop. However, in such circumstances, flight is not necessarily probative of a suspect’s state of mind or consciousness of guilt. Rather, the finding that black males in Boston are disproportionately and repeatedly targeted for [police-citizen] encounters suggests a reason for flight totally unrelated to consciousness of guilt. Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report's findings in weighing flight as a factor in the reasonable suspicion calculus.”) (internal citations omitted; emphasis added). 132 See, e.g., id. (“Where a suspect is under no obligation to respond to a police officer’s inquiry, we are of the view that flight to avoid that contact should be given little, if any, weight as a factor probative of reasonable suspicion. Otherwise, our long-standing jurisprudence establishing the boundary between consensual and obligatory police encounters will be seriously undermined”). 133Herman, J. L., Trauma & Recovery. New York: Basic Books (2015).
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reflected in the behaviors of both police officers and community members and often misread by both sides.
An op-ed written by Dr. Phillip Goff in January 2018, highlighted the need for continued research studying the traumatic effects to SQF in New York City.134 The article asserted that still very little has been done to either assess or address the residual trauma that continues to fester in affected communities. Although a recommendation for this type of scholarly research is beyond the scope of the JRP, it is not beyond the scope to suggest that the NYPD take some initial steps to address trauma in ongoing reform efforts.
Unfortunately, there are no quick fixes for this problem. In order to nurture community partnerships, foster meaningful engagement between civilians and their local police officers, and rebuild police legitimacy, the NYPD should make intentional strides toward reconciliation with directly affected communities. This should include but not be limited to a reconciliatory strategy with a long-term committed effort toward change.
Fostering legitimacy requires more than just the implementation of strong new programs, it also requires addressing the harms that have taken place prior to reform. Following national trends around improving legitimacy like The National Initiative for Building Community Trust and Justice,135 the NYPD can begin the necessary work of addressing past harms and reconciling its relationship with the communities most affected by years of unconstitutional SQF and trespass enforcement policies.
134 See Phillip Atiba Goff, “On Stop-and-Frisk, We Can’t Celebrate Just Yet,” N.Y. Times, Jan. 7, 2018, available at https://www.nytimes.com/2018/01/07/opinion/stop-and-frisk-celebrate.html 135 See https://trustandjustice.org/
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Defining Accountability and Transparency
Police departments, like all government entities, require citizen support and legitimacy to
function effectively.136 Social contract theorists maintain that public trust in institutions provides
institutional legitimacy. In turn, institutional legitimacy encourages compliance with the law.137
Moreover, academics, policing experts, and police departments generally agree that a mutual,
trusting relationship between the police and community members is critical to effective
policing.138
There is wide agreement and support for the proposition that when communities trust the
police, community members are more cooperative during police interactions.139 Community
members are also more likely to seek assistance when needed, provide valuable information, and
work with the police to solve community-wide problems.140 Community members who trust the
136 See generally David A Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149 (2009). 137 See generally Eileen Luna and Samuel Walker, Institutional Structure vs. Political Will: Albuquerque as a Case Study in the Effectiveness of the Civilian Oversight of the Police, CIVILIAN OVERSIGHT OF POLICING: GOVERNANCE, DEMOCRACY, AND HUMAN RIGHTS (2000); Tom R. Tyler and Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities, 6 Ohio St. J. Crim. L. 231 (2008). 138 See generally Tom R. Tyler, Jonathan Jackson, and Avital Mentovich, “The consequences of being an object of suspicion: Potential pitfalls of proactive police contact,” Journal of Empirical Legal Studies 12, no. 4 (2015) (hereafter “Tyler, Jackson & Mentovich 2015”); Samuel Walker and Morgan Macdonald, An Alternative Remedy for Police Misconduct: A Model State ‘Pattern or Practice’ Statute, 19 Geo. Mason U. Civ. Rts. L.J. 479 (2009); Anthony M. Pate, Wesley G. Skogan, Mary Ann Wycoff, and Lawrence W. Sherman, “Reducing the ‘Signs of Crime’: The Newark Experience, Executive Summary.” Washington, D.C.: Police Foundation (1985); Robert J. Sampson, Stephen W. Raudenbush, and Felton Earls. “Neighborhoods and violent crime: A multilevel study of collective efficacy.” Science 277, no. 5328 (1997): 918-924; Tom R. Tyler and Robert J. Bies. “Beyond formal procedures: The interpersonal context of procedural justice.” Applied social psychology and organizational settings 77 (1990): 98. 139 See, e.g., Kami Chavis Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 49 849, 867 (2014) (citing Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 Calif. L. Rev. 1513, 1525 (2002)); Jack R. Greene, “Community policing in America: Changing the nature, structure, and function of the police.” Criminal justice 3, no.3 (2000): 299-370; Tyler and Fagan, Legitimacy and Cooperation, 6 Ohio St. J. Crim. L. 231. 140 See Tyler, Jackson & Mentovich 2015; Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 49 at 867.
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police seek to operate within the institutional structures of the police department, reaffirming its legitimacy.
Environments of distrust, on the other hand, foster interactions that are “laden with tension, and tension can lead to regrettable behavior (often escalating) on both sides,” resulting in what Simmons calls “the perverse effect of perpetuating more violence.”141 As compared to white communities, communities of color “report lower levels of confidence in the police and the[] honesty and integrity [of the police] than white communities.”142 When communities distrust the police, they are less likely to ask for assistance or provide assistance and information,143 thus undermining police effectiveness and mission.
Policing and police departments today must build trust in an environment permeated by historic wrong-doings by police across the nation and other government institutions. Erik Luna writes:
A history of racial oppression at the hands of law enforcement provides the backdrop, while the demoralizing statistics on race, drugs, and law enforcement in the inner-cities supply an ostensible reason for community distrust. Personal experiences and popular images of police brutality or prejudice only confirm widely held suspicions, solidifying distrust on both an individual and group level.144
141 Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 49 at 867. 142 Stephens, Darrel W., Police Discipline: A Case for Change, Washington, D.C.: U.S. Department of Justice, National Institute of Justice, 2011, at 5-6, available at https://www.ncjrs.gov/pdffiles1/nij/234052.pdf 143 See Erik Luna, Transparent Policing, 85 Iowa L. Rev. 1107, 1119 (2000) (“In the end, mistrusting community members are less likely to cooperate with law enforcement, less likely to voluntarily provide information to police, and less likely to comply with legal commands.”). 144 Id. at 1163.
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Luna also argues that mistrust of and lack of confidence in the police by communities of color largely result from “perceptions of racial animus in the enforcement of drug laws . . . [in the 1990s,]” pointing out that “[o]nly a decade ago, sixty percent of blacks believed that it was or might be true that the federal government makes drugs available in minority neighborhoods in order to harm black citizens.”145 Thus, the community’s perception of police today is colored by federal decisions, historic distrust, and egregious incidents of abuse of power over which current police leadership has little or no control. That being said, Weitzer and Tuch146 found individual experiences with police officers “strongly influence citizen attitudes” often “increasing citizens’ belief that police misconduct and racially biased policing occur,” as do exposure to media reports on police abuse and misconduct. The NYPD’s values appear to recognize this, “pledg[ing] to … maintain a higher standard of integrity than is generally expected of others because so much is expected of us.”147
While trust is easily lost, it is difficult to rebuild. Moreover, as Brian Jackson notes in his testimony before the Republican Policy Committee for the United States House of Representatives, “even under the best of circumstances, the role of police means that they interact with citizens at their most vulnerable, must contend with stressful and volatile situations, and may have to take actions that every individual involved is unlikely to view positively.”148 Research on government institutions, and policing in particular, suggests that transparency and
145 Id. at 1157 (citing Jason DeParle, “Talk of Government Being Out to Get Blacks Falls on More Attentive Ears,” N.Y. Times, Oct. 29, 1990). 146 Weitzer, Ronald, and Stephen Tuch. “Rethinking Minority Attitudes Toward the Police.” Washington, D.C: George Washington University (2004). 147 http://www1.nyc.gov/site/nypd/about/about-nypd/mission.page 148 Brian A. Jackson, RAND, Testimony: Strengthening Trust Between Police and the Public in an Era of Increasing Transparency, at 2 (2015), available at https://www.rand.org/content/dam/rand/pubs/testimonies/CT400/CT440/RAND_CT440.pdf
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accountability are required to build trust, increase legitimacy, and, ultimately, improve an institution’s ability to achieve its mission.149
Accountability refers to procedures and controls requiring members of an organization “to follow established rules defining acceptable processes and outcomes, and to demonstrate that they have followed those procedures.”150 Accountability also requires that organizations ensure members are adhering to organizational standards, rules, values, and expectations.151 This may be achieved through ongoing enterprise risk management, the implementation of effective internal controls, clear ways to escalate identified risks, internal “watchdog” groups, rewards for operating within the established framework, clear directives from leadership, willingness to correct noncompliance, and a fair disciplinary process.
A fair disciplinary process is one that “help[s] address police misconduct while supporting officers who have exercised their discretion appropriately and within the framework of law and policy.”152 Police departments, as institutions, in addition to showing the public they are holding their employees accountable to departmental requirements, are also accountable to the elected officials and managers in their chain of command and to the public. Providing transparency in the accountability framework increases police legitimacy.153
149 See generally id.; Simmons, The Legacy of Stop and Frisk: Addressing the Vestiges of A Violent Police Culture, 49 Wake Forest L. Rev. 49 849; Tyler and Fagan, Legitimacy and Cooperation, 6 Ohio St. J. Crim. L. 231; Walker and Macdonald, An Alternative Remedy for Police Misconduct: A Model State ‘Pattern or Practice’ Statute, 19 Geo. Mason U. Civ. Rts. L.J. 479. 150 Johnston, Michael. Good Governance: Rule of Law, Transparency, and Accountability, at 2 (2006) (hereafter “Johnston 2006”). 151 See Stephens, Police Discipline: A Case for Change, at 3-4. 152 Id. at 2. 153 See id. at 17.
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By contrast, if “police disobey the law, the law will seem to apply only to those who do not have power. When that happens, law emerges as little more than force cloaked in legal authority, and the police, the literal embodiment of state power, teach people by their illegal actions that the law means nothing,” thus undercutting their own legitimacy.154 Ensuring individual and organizational accountability not only engenders community trust, but is required in order to maintain command, control and legitimacy, especially within a large organization.
Transparency refers to procedures and controls being understandable and available to the public.155 Greater transparency builds trust and provides information communities can use to make informed decisions, instead of “connect[ing] the dots and fill[ing] in their own theory of racial prejudice in policing.”156 Erik Luna argues that opaqueness in law enforcement policy and practice allow for “unwritten code[s] of enforcement” to flourish that often contradict statutory or constitutional law.157 Opaqueness is likely also in contradiction to official departmental policy and the understanding of departmental officials. Transparency may be achieved through the use of plain language, adherence to freedom of information requests, protection of whistleblowers, distribution of information through available technology, and publication of key performance indicators.158
154 Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 161. 155 See Johnston 2006 at 2. 156 Luna, Transparent Policing, 85 Iowa L. Rev. at 1157. 157 Id. at 1155. 158 There is, of course, no expectation of full transparency. For example, police departments do not disclose details of ongoing criminal investigations in order to not affect the integrity of the investigation. In other cases, personally identifiable information is not shared when an individual’s safety may be jeopardized by disclosure. However, these exceptions should be in “well-defined scenarios” and must balance the potential risks of disclosure with the need for transparency. Id. at 1165.
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Transparency also includes providing meaningful opportunities for both community and front-line officers to provide input, perspective, and influence in the policy formation process, explaining how community and officer input was considered, and providing a rationale and a statement of intent for all decisions. Bayley affirms this, writing that “historically, rank-and-file officers have only rarely been asked for input so that reforms can be developed based on their day-to-day experiences.”159 Bayley also recognizes that police reform is typically a result of people or events external to police organizations, making transparency particularly important to ensure pressure for needed reforms is maintained.160
Accountability and transparency together fall under “procedural justice.” Procedural justice requires that police departments demonstrate “the fairness and impartiality of their processes, . . . treat individuals during those processes with dignity and respect, and . . . give the public the opportunity to participate.”161 Tyler and Fagan write that studies “suggest that experiencing procedural justice during a personal experience increases legitimacy, irrespective of the favorability of the outcome. These results suggest that the police can generally enhance their legitimacy by using fair procedures.”162 Ultimately, building and sustaining mutual trust depends upon the interdependent pillars of accountability and transparency both internally within the organization and externally to the public.
159 Bayley, David H. “Police reform: Who done it?.” Policing & Society 18, no. 1 (2008): 7-17. 160 See id. (“In short, significant police reforms have been top-down and outside-inside.”). 161 Jackson, RAND, Testimony: Strengthening Trust Between Police and the Public in an Era of Increasing Transparency, at 3. 162 Tyler and Fagan, Legitimacy and Cooperation, 6 Ohio St. J. Crim. L. at 232.
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Best Practices Academics, researchers, and police practice experts have accumulated, through trial and
error, a number of best practices. Many of the more recent best practices make use of improved technology and data collection to help managers make data driven decisions both about individual officer performance and the performance of the department as a whole. Data driven practices have garnered support by academics, practitioners, and community members alike.163
Below, we discuss some of the most common strategies. Although not specifically addressed below a key best practice is clarity in policies, rules, and procedures, and in how those policies, rules, and procedures are taught (i.e., training).164 Describing how police departments can improve compliance, Harris writes that commitment to any policy or procedure must come from the top-down: officers will comply when “(1) the leadership of the department says so, in no uncertain terms, and (2) when the leadership act accordingly, if necessary, by punishing officers who refuse to comply.”165 Indeed, many of the immediate and subsequent reforms in Floyd, Davis, and Ligon were designed to address these issues.
Early Intervention Systems Early Intervention Systems (“EIS”) have “four basic components: performance indicators, identification and selection process, intervention, and post-intervention
163 See, e.g., Lum, Cynthia, and Daniel S. Nagin. “Reinventing American Policing.” Crime and Justice 46, no. 1 (2017): 339-393 (hereafter “Lum & Nagin 2017”); McCarthy, Garry F. “Accountability for Respectful Policing.” Police Chief (2015) (hereafter “McCarthy 2015”); Tyler, Jackson & Mentovich 2015. 164 See generally Johnston 2006. 165 Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 170.
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monitoring.”166 These components align to basic enterprise risk management systems utilized throughout the government and private sector to identify, manage, and control risks. The Police Executive Research Forum (“PERF”) report on Civil Rights Investigations of Local Police states that standard features of EIS systems are:
● The system must be maintained and used by supervisors and managers ● An EIS should have policies and protocols for data collection, inputting of historical and
current data, maintenance, retrieval, analysis, data security, and access. ● Personnel establishing or using the system must have proper training. ● Threshold criteria for flagging risk patterns must be developed. ● Follow-up actions for supervisors using EIS data analysis must be specified. ● Interventions by supervisors must be implemented in a timely manner. ● Intervention progress must be reviewed by a supervisor.167
EIS provides data on key metrics (e.g., citizen complaints, use of force, resisting arrest incidents, civil litigation, firearm-discharge, etc.) for managers to make data-driven decisions to both identify individual officers in need of intervention and to make decisions regarding what intervention tools should be used that are tailored to the specific issues identified.168 After determining the appropriate metrics, a police department would set thresholds for alerting
166 Walker, Samuel. Early Intervention Systems for Law Enforcement Agencies: A Planning and Management Guide. U.S. Department of Justice, Office of Community Oriented Policing Services, 2003, available at https://cops.usdoj.gov/html/cd_rom/inaction1/pubs/EarlyInterventionSystemsLawEnforcement.pdf 167 Police Executive Research Forum, Critical Issues in Policing Series, Civil Rights Investigations of Local Police: Lessons Learned (2003). 168 See generally Walker, Samuel, Geoffrey P. Alpert, and Dennis J. Kenney. Early Warning Systems: Responding to the Problem Police Officer. Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, 2001 (hereafter “Walker, Alpert & Kenney 2001”); Samuel Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. 57 (2012).
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supervisors for each metric, who would in turn investigate and determine what further action, if any, is required.169
Intervention tools may include “informal or formal counseling by supervisors, referral to professional counseling (e.g., family or substance abuse counseling), retraining, or other options.”170 Walker explains that “the special power of an EIS is that is has the capacity to identify an officer’s specific performance problem (e.g., use of force, rudeness, special problem with dealing with young men or people of color), and its sources (personal family problems, substance abuse), and select an intervention related to the identified problem.”171 Most interventions are non-disciplinary, and the early intervention system is designed to identify and mitigate risks before formal disciplinary action is warranted.172 In other words, police departments do not act upon data alone; instead, supervisors use data and their own analysis to determine root causes and select appropriate risk treatments. Walker asserts that “Some law enforcement experts involved with EIS talk in terms of the system’s purpose being to ‘save’ officers’ careers . . . [by] saving them from the costs of use of force or citizen complaint investigations as well as having such incidents on their performance record.”173 This type of performance evaluation represents a move from anecdotal and subjective evaluation to evaluation based on data and fact, and from generalized group-based interventions to those targeted to an officer’s specific needs.
169 See, e.g., Tyler, Jackson & Mentovich 2015; Lum & Nagin 2017; McCarthy 2015. 170 Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. at 77. 171 Id. 172 See, e.g., Walker, Alpert & Kenney 2001; Walker, Early Intervention Systems for Law Enforcement Agencies: A Planning and Management Guide at 18. 173 Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. at 82.
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EIS allows for the data metrics, threshold counts, and interventions to be passed up the chain so that departmental leadership can make better policy decisions and department-wide interventions, creating a chain of accountability.174 Initial research findings suggest that early intervention systems foster a culture of accountability and give managers better data with which to make decisions.175 For example, a National Institute of Justice study in 2001 found that EIS programs “appeared to reduce problem behaviors significantly,” as measured by the number of complaints filed and use of force incidents.176
The theory and use of early intervention systems have had a place in many police departments for decades due to the “belief that ‘10 percent of officers cause 90 percent of the problems,’”177 which has been supported by subsequent analytical research.178 However, Walker, Simmons, and Armacost, in separate reviews, argue that evidence supporting this theory is overly simplistic: misconduct occurs when police departments formally and informally support misconduct.179 In 1981, the U.S. Commission on Civil Rights first recommended the adoption of early intervention systems by all police departments, which was later endorsed in 1989 by the
174 See Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 166-67, 193-94. 175 See Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. 1343, 1382-83 (2015); see generally Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. 57. 176 Walker, Alpert & Kenney 2001. 177 Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. at 1382-83. 178 See generally Walker, Alpert & Kenney 2001; Stephens, Police Discipline: A Case for Change, at 6 (citing a 1991 study by the Independent Commission on the Los Angeles Police Department). 179 See Samuel Walker, The New World of Police Accountability (2005); Kami Chavis Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373, 395-98 (2010); Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 457-59 (2004).
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IACP and in 2001 by CALEA.180 Not surprisingly, recommendations related to early intervention
systems have been included in the majority of settlement agreements police departments have
entered into with the Department of Justice, including with departments representing Los
Angeles, Pittsburgh, Cincinnati, Steubenville, Washington, D.C., New Jersey, New Orleans, and
the Virgin Islands.181
Complaint Procedures and Investigations
Another common strategy employed in settlement agreements relates to revising
procedures for dealing with citizen complaints. Generally, the procedural changes fall into three
tranches: the intake of complaints, the investigation of complaints, and the evaluation of the data
collected.182 Harris examines the perception of complaints and feedback in police departments,
drawing an analogy to private sector businesses:
[F]orward-looking organizations will look at complaints as a vital source of information and feedback — real data that can tell them exactly what at least some of their “customers” think regarding the organization’s product or service. In the world of business, many organizations see those who complain as customers the business has failed and who the business must win back. Thus, private industry regards complaints as valuable information. Many businesses therefore go to some lengths to encourage their customers to fill out surveys or complaint cards or online versions of these; they view them as information that will give them a chance to get better.
180 See Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 166. 181 See Police Executive Research Forum, Critical Issues in Policing Series, Civil Rights Investigations of Local Police: Lessons Learned (2003); Los Angeles Consent Decree at 9-22 (describing the development of the TEAMS II system, the management and coordination of risk assessment responsibilities, and the performance evaluation system); Pittsburgh Consent Decree at 6-9; Cincinnati MOA at 57-66; Steubenville Consent Decree at 28-29 (information system meant to supervise officer behavior); Washington, D.C. MOA at 106-17 (personnel performance management system (PPMS)); New Jersey State Police Consent Decree at 40-56; New Orleans Consent Decree at 80-83 (new early warning system to be implemented as part of the consent decree); Virgin Islands Consent Decree at 12-16 (planned development of a management and risk supervision system). 182 See Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. at 1383.
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Public agencies, and perhaps especially police departments . . . see complaints as attacks on them, as attempts by people who know nothing about police work to stick their noses in where they have no business, or as harbingers of lawsuits. This dovetails well with the unfortunate “nobody understands us but us, so no one has any right to pass judgment on us” attitude that prevails in many modern police departments. Complaints against police regarding how officers stop and search may not always reflect a correct understanding of the powers police officers have to stop, search, and arrest them. [But] for police departments, learning about citizens’ lack of knowledge concerning police powers would tell the agency that it might increase public support . . . by making greater . . . effort to educate the public . . . .183 In other words, police departments should take affirmative steps to encourage individual and community feedback and make it easy to file complaints.184 Method by which individuals can
file complaints can be broadened to include means such as email and confidential hotlines or other means for receiving verbal complaints.185
Other recommendations relate to the integrity of the process. For example, the Los
Angeles consent decree “required the police department to make audio or video recordings of all complainants . . . in addition to investigating the scene of the incidents to secure evidence.”186
This measure is also an example of ensuring that evidence and testimony is not subject to
interpretation or coercion — that is, the “data” is allowed to speak for itself.
The complaint process, including time frames, should be presented to all parties. Too
often these processes take “an excessive amount of time to complete,” particularly in large
183 Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 173-74. 184 See id.; Stephens, Police Discipline: A Case for Change, at 4. 185 See Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. at 398. 186 Id.
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departments; and if the determination is appealed, can take far longer.187 During an investigation, all parties should be provided regular updates as to progress, delays, and information regarding the outcome.188
Settlement agreement requirements have generally matched those recommended or required by the IACP, the Office of Community Oriented Police Services (“COPS”), and the Commission on Accreditation for Law Enforcement (“CALEA”).189 All three organizations contend that following complaint procedure best practices results in increased accountability and awareness both internally and externally, which can lead to improved public trust.190
Body-Worn Cameras The most well-known recent response to the call for greater accountability and transparency has been the adoption of BWC programs by police departments across the country. BWCs were developed as an evidence-gathering tool and a deterrent, to complement and supplement existing recording systems, such as car-mounted video systems, CCTV, and, today, cameras on mobile telephones.191 Stephens reports that “most police agencies believe that it serves that purpose.”192
In part, whether BWC programs are effective depends on the extent to which they actually increase transparency in police interactions. For instance, PERF recommends
187 Stephens, Police Discipline: A Case for Change, at 7. 188 See, e.g., id. at 4. 189 See Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. at 1383-84. 190 See id. at 1384. 191 See Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 177. 192 Stephens, Police Discipline: A Case for Change, at 4.
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maintaining statistics on the use and outcomes of BWCs in criminal prosecutions and internal affairs and releasing that information to the public on a periodic basis.193
Another benefit of BWCs is that the information recorded, similar to the use of EIS, is a
significantly less subjective way to assess performance during a stop and frisk, which benefits
both police officers and community members. As with open data, research shows, the existence
of an objective record supports both positive and negative claims by the police department and the public, minimizing time spent investigating unfounded complaints or misconduct.194 This in turn provides a mechanism for greater accountability.195 Research further suggests that because
neither officers nor the public wish to be recorded engaging in inappropriate behavior, BWCs promote better behavior and thus impact the overall civility of police-citizen interactions.196
BWCs can also help assist supervisors provide training, evaluation, coaching, and discipline to
officers.
193 Legitimacy and Procedural Justice: A New Element of Police Leadership. Police Executive Research Forum, 2014. 194 See generally Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149. 195 But see generally Jordan M. Hyatt et. al., The Effects of A Mandatory Body-Worn Camera Policy on Officer Perceptions of Accountability, Oversight, and Departmental Culture, 62 Vill. L. Rev. 1005, 1019, 1034 (2017) (explaining that the “available evidence suggests that when officers have the discretion to activate — or not to activate — the BWCs are not only ineffective but can even backfire” but reporting their finding “that the implementation of a mandatory BWC usage policy in a large transit police department was associated with significant and overall negative changes in officer perceptions regarding accountability, oversight, and departmental culture”). 196 See generally Barak Ariel et al., The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial, 31 J. Quantitative Criminology 509 (2015). It is unclear whether the presence of BWCs will affect the overall number of police-citizen interactions. One study suggests, rather counterintuitively, that officers issued BWCs increased activity (such as issuing citations) compared to officers without cameras. See Justin Ready and Jacob Young, The Impact of On-officer Video Cameras on PoliceCitizen Contacts: Findings from a Controlled Experiment in Mesa, AZ, J. of Experimental Criminology, 11:445-458 (2015).
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Early studies of BWCs are promising. In the United Kingdom, an evaluation of a pilot program found BWCs provided significant benefits, including providing more accurate evidence, freeing up officer time spent record keeping, reducing public order offenses, and reducing adjudication times.197
Open Data Ensuring the openness and transparency of data and decision making documentation may build trust by both providing event level detail, as well as providing data which the community can use to identify trends, changes, and equity across the community.198 It is important to have open data but it is also important to identify additional data collection elements that are needed, such the key metrics for early intervention systems and overall effectiveness. Erik Luna, in his article Transparent Policing, writes that, “police might be required to record the age, race, and gender of all individuals subjected to traffic stops or Terry searches.”199 Data also helps support both positive and negative claims by the police department and the public. Particularly in an environment with eroded trust, data helps bolster arguments and provides a mechanism for greater accountability.
Inclusive and Participatory Rulemaking Similar to requirements on federal agencies promulgating new rules and policies, police departments may adopt inclusive rulemaking processes to more effectively capture the views of the public and its officers. In traditional federal rulemaking, agencies draft a proposed rule for
197 See Harris, How Accountability-Based Policing Can Reinforce ‒ or Replace ‒ the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. at 177-78. 198 See, e.g., Stephens, Police Discipline: A Case for Change, at 21. 199 85 Iowa L. Rev. at 1170.
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publication in the Federal Register. The public, including both individuals and interested organizations, are invited to submit formal written comments. Comments may be submitted by mail or online using the Federal Register website. The agency must review all the comments, analyze and evaluate each comment, and either incorporate comments into the rule or state with specificity why a comment was not incorporated. Agencies may conduct multiple rounds of solicitations of comments. The final rule is published in the Federal Register and incorporated into the Code of Federal Regulations. Responses to comments are also published in the Federal Register. Negotiated rulemaking further incorporates public input by having agencies directly engage with industry groups, academics, thought leaders, and other interested organizations at the beginning of the policy formation process. Police departments seeking to adopt a participatory rulemaking process may seek to broadly solicit and engage community members, targeting those most likely to be effected, and provide detailed responses and/or justifications to comments, improving transparency, accountability and overall legitimacy. This type of transparency helps both officers and the external community understand the values and objectives of policy changes.
Rulemaking, as described, may result in better decision making, provide accountability, promote community participation, increase organizational legitimacy, and help people to better understand rules (thus increasing compliance and reducing vagueness).200 Inclusive, open rulemaking also limits the risk of abuse and bad policy.201 Rulemaking processes are not without criticism, however. Some academics have attested that rulemaking actually moves policy
200 See generally Erik Luna, Principled Enforcement of Penal Codes, 4 Buff. Crim. L. Rev. 515 (2000). 201 See Luna, Transparent Policing, 85 Iowa L. Rev. at 1167.
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formation away from community participation.202 Critics contend that the promulgation of rules by unelected government officials result in overreach and a lack of accountability. However, many of the criticisms are based on how rulemaking plays out at the federal level, not the actual principles and processes.
This may fall into the broad rubric of the “New Governance” model that promotes “decentralized problem solving by local stakeholders, and the ongoing adjustment of rules and policies informed by on-the-ground monitoring and feedback,” as opposed to the “‘commandand-control’ governance model, which emphasizes top-down decision making and static rules.”203 Assuming that police department officials making policy-level decisions do not have the expertise of the officers who work more directly with the community, it is important that officer expertise be included in future policies. In Sabatier’s 1986 review of top-down and bottom-up policy formation, he writes that one of the primary criticisms of top-down approaches is that they “ignore, or at least underestimate, the strategies used by street level bureaucrats and target groups to get around (central) policy and/or to divert it to their own purposes.”204 In other words, officers perceive top-down policies, particularly those provided by external parties (e.g., the courts, city councils, mayors, etc.) as less legitimate.205 The key is to provide meaningful
202 See Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. at 403 (citing Philip J. Harter, Negotiating Regulations: A Cure for Malaise, 71 Geo. L.J. 1, 113 (1982)). 203 Jaime Alison Lee, Can You Hear Me Now: Making Participatory Governance Work for the Poor, 7 Harv. L. & Pol’y Rev. 405, 406 (2013). 204 Sabatier, Paul A. “Top-down and bottom-up approaches to implementation research: a critical analysis and suggested synthesis.” Journal of public policy 6, no. 1 (1986): 21-48. 205 See generally id.; Simmons, New Governance and the “New Paradigm” of Police Accountability: A Democratic Approach to Police Reform, 59 Cath. U. L. Rev. 373.
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opportunities for participation, and for the department to evaluate and incorporate the range of responses in a way that actually alters and shapes policy formation.206
Police Auditors Another best practice is the use of a police auditor. Citizen review boards have long been used as a means to provide greater accountability.207 New York City’s CCRB as an all-civilian entity has existed since 1993. It is responsible for receiving, investigating, and making findings regarding complaints of police misconduct involving use of force, abuse of authority, discourtesy, or use of offensive language.208
Luna recounts, however, that “civilian [or citizen] review boards were once viewed as an antidote for police misconduct and a means of restoring public trust in the institution of law enforcement,” but are largely seen as ineffective, due to local politics, underfunding, and lack of transparency, and not inclusive of actual community members.209 In large part, the concept of a police auditor developed in the 1990s as an alternative to citizen review boards. Police auditors are charged with auditing, monitoring, and/or reviewing the entire department with a focus on policy-related reviews and recommendations.210 Police auditors generally “have the power to
206 See generally Lee, Can You Hear Me Now: Making Participatory Governance Work for the Poor, 7 Harv. L. & Pol’y Rev. 405. 207 See James R. Hudson, Police Review Boards and Police Accountability, 36 Law & Contemp. Probs. 515, 517-18 (1971) (explaining that external oversight was viewed as necessary, as reflected in, for example, the 1968 Report of the National Advisory Commission on Civil Disorders, known as the Kerner Report, because police were “not perceived as impartial, neutral enforcers of the law, particularly by the citizens of ghetto neighborhoods”). 208 See City Charter Section 440; Rules of the Civilian Complaint Review Board, Section 1-02. 209 Luna, Transparent Policing, 85 Iowa L. Rev. at 1167-68. 210 See Walker, Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure, 32 St. Louis U. Pub. L. Rev. at 84-86.
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initiative investigations of any issue at their own discretion and are not limited to the terms of a consent decree or MOA,” like that of a monitor.211
Reasons to Address Transparency and Accountability Effective, constitutional policing depends in large part on transparency and accountability both within the NYPD and in the NYPD’s relationship with the public. As with any organization, effective performance depends on a shared understanding of organizational objectives and taskspecific requirements, the ability of supervisors to monitor performance, and the expectation that both good and bad performance will be met with the appropriate response. Morale, which is dependent on many of these same factors, will also affect performance.
As a public institution, broad notions of democracy also require that the NYPD be transparent with and accountable to the public. Transparency in this regard includes not only public education and media releases, but access to information that enables the public to assess the performance of the police, including whether officers that violate rules are held accountable. Public accountability can, of course, take many forms, including the very lawsuits that led to appointment of the Monitor and the Facilitator and to this Joint Remedial Process.
The JRP and the NYPD’s own internal surveys establish that there is a crucial link between constitutional and effective policing, and that accountability and transparency are fundamental to both. Policing experts agree that effective policing requires that the community trust and believe in the legitimacy of the police. Without trust, community members are reluctant to approach the police to share information needed for effective policing; without trust, interactions between officers and the community are ripe for conflagration.
211 Id. at 85.
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It cannot be forgotten that people want and depend on the police to help make their communities safe, to make sure the halls in their buildings are policed so that they feel comfortable in their homes. But a clear lesson of the JRP is that past stop and frisk practices in New York City have played a substantial role in eroding the historically fragile trust between members of communities of color and the police.
Because it is not just that rights were violated. Yes, the Fourth Amendment of the U.S. Constitution protects against unreasonable searches and seizures and the Fourteenth Amendment guarantees equal protection under the law, but there’s more. As recognized by Chief Justice Warren in Terry v. Ohio over 45 years ago, “it is simply fantastic to urge that [a stop and frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”212 Likewise, stops, frisks, searches, and arrests of people, particularly those later found to be innocent, in and around their homes — what ought to be a sanctuary, a place of comfort — can be humiliating, embarrassing, and traumatizing.
Excessive force and unjustified killings are not the focus of the reforms ordered in Floyd, Ligon, and Davis, but their impact on trust and legitimacy clearly cannot be ignored. While citizens felt (and feel) that their complaints about SQF were (and are) not being addressed, that officers had free reign, the even more publicized action or inaction in response to excessive force and unjustified killings has created the sense that there simply is no accountability when police officers break the rules and cause great harm. And as we describe here, a program which
212 Terry, 392 U.S. at 16-17.
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permitted hundreds of thousands of stops a year, creates an environment of fear and intimidation, a group of communities under siege, and is an indispensable part of the sense that officers who break the rules are not held accountable.
Taking measures to improve accountability and transparency alone will not solve the problems identified in these lawsuits, but are nonetheless necessary to the development of the trust and legitimacy needed to ensure the future of effective, constitutional policing in New York City in the short and long term. Educating the public on police policies, listening to the public, and being responsive to the concerns of the community are important ways in which the NYPD can be more transparent and accountable to the public. Another is ensuring that police officers who break the rules are held accountable, and making that information public.
Summary of Relevant Themes in Respect, Transparency, and Accountability In the following section, we highlight suggestions that community members offered for consideration to improve respect, transparency, and accountability. These suggestions were gathered during the Focus Group, Leadership Meeting, and Community Forum Phases. We first provide a review of feedback on respect and police-community relations, followed by suggestions around transparency and accountability. Many of these themes directly echo the best practices described by researchers and academics, adding additional credence to the promise of their application.
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Themes on Respect Floyd and Davis Focus Groups Direct and Vicarious Trauma Throughout the course of the JRP community members in the focus groups exhibited signs of direct and vicarious trauma over the perceived abuses they had suffered at the hands of officers in their community. In many cases, community members highlighted their fear and resentment toward abusive officers as underpinning a lack of trust in police.
Disrespect Focus group participants often felt disrespected by officers, a consistent theme
throughout all 64 groups. Participants did not limit this feeling of disrespect to stops by officers but also shared that they felt disrespected by officers in encounters separate from stops. Some basic solutions recommended by participants to address the issue of respect was community policing, officer assignments based on the needs of the community, customer service and implicit bias trainings, and providing civilians business cards or something similar with name, badge number, and precinct at the end of an encounter. Participants also felt that abuse of power and consistent disrespect were at the core of police interactions with community members, and expressed a need for officers to receive training on properly engaging with special populations such as the mentally ill, homeless individuals, and the LGBTQ community.
Stereotyping Participants also expressed concerns that officers interacted with them based on
stereotypes. They reasoned that these stereotypes were a result of officers’ limited exposure and engagement with people from diverse backgrounds. As a result, it was suggested that officers should be required to participate in cultural awareness and competency trainings.
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Need for Training Training was a recurrent theme during the focus groups. Participants suggested that many
of the constitutional abuses suffered by them were a result of inadequate training of officers by the NYPD. An overarching training theme was “Customer Service.” Focus group participants expressed a desire for officers to participate in “customer service” type trainings that included a community engagement component. Participants felt that this would equip officers with the basic skills to engage community members respectfully. There was a consistent theme of respect, or the lack of it, throughout the focus group transcripts. Many participants expressed that officers did not speak while patrolling their communities. This same lack of engagement was present if the interaction was initiated by the individual instead of the police officer. As a result of this, participants provided the following suggestions for community engagement trainings:
● Officers should engage and have conversations with community members before patrolling communities.
● New hires should train within the communities prior to being assigned for patrol. Said trainings should be conducted by community leaders.
● The NYPD should implement Leadership/Supervisory trainings. Supervisory and Command officers should understand how management style affects the way officers interact with community members. Leadership Meetings
During the leadership meetings there was a consistent call for improvements in the relationship between community and the police. Several organization leaders provided insights and pointed to potential initiatives which they believed might begin to repair this fractured dynamic, and make way for other improvements in public safety.
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Mistrust and Respect One of the most often cited issues raised by thought leaders on the issue of police-
community relations was the perceived lack of respect between civilians and police. Organizations with comments on the matter pointed to a lack of courtesy in law enforcement, which includes the use of intimidation and aggression toward community members, and in many cases young people. Groups also pointed out that community members may feel as if they cannot voice their rights for fear that officers may retaliate against them. Individuals suggested that this lack of respect creates a fear of officers that feeds into a lack of trust in directly impacted communities.
Many groups suggested that this mistrust means that people do not feel protected by police and are much less likely to reach out to the Department for help. Coupled with the idea that officers may not feel trusted or respected, many groups suggested that the divide has negative consequences for both police and the community. Several community groups suggested possible ways to address the divide, including the Department being open to and working with thoughtful independent community leaders to begin to address issues that the community feels are being neglected by the Department.
Community Engagement Several groups suggested that more meaningful engagement with the community could
be a way to address poor relations between the police and community. Group members cited several examples which included expanded outreach, funding community programs, developing policies to promote engagement, and meeting with community member in safe spaces to both teach and learn about public safety issues in local neighborhoods. Meeting attendees suggested
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that more familiarity and quality interactions with police in their areas could go a long way in easing the tension between groups. Public Education
Another significant concept highlighted by leadership groups was the idea of an education campaign. Several of the groups thought it would be helpful for the NYPD to develop an initiative to inform community members of their rights, and/or new reforms to the NYPD. A couple of community groups thought this endeavor would be best undertaken in partnership with community groups through the selection of a precinct liaison, and in the case of schools, a youth delegate. Community Oversight
One of the last significant themes around improving police-community relations was the call for community oversight. Group members suggested that the development of a structure for community leaders to work with the Department to review and make suggestions on additional changes to the Department could foster greater community security in the Department, which would have a more positive effect on relations on overall.
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Community Forums During the public meeting phase of the JRP, community members consistently asked for greater respect from officers, and improved relations between the police and the communities they serve. Several relevant themes have been highlighted from the forum transcripts as they relate to bridging the gap between the NYPD and impacted communities.
Collaboration with Community Stakeholders A consistent call from community members during the forum was for greater
collaboration between community leadership and the police. Community members and thought leaders alike suggested community members should have a stake in the co-construction of public safety, and that the police should take initiative to rebuild trust in communities. Concrete examples for undertaking these collaborative efforts included providing community access and input into training, the appointment of community liaisons, developing more meetings in community spaces, and the undertaking of a campaign to educate communities about their rights.
Training for Improved Relations As with the Focus Group Phase, training was a significant theme for reform. With regard
to improving police-community relations, community members often stated that officers should receive training on respectful conduct, cultural competence (i.e., learning more about the culture and customs of the communities they patrol), harm reduction in special populations (e.g., mentally ill, undocumented, LGBTQ, disabled, etc.), communication skills, empathy, deescalation, and trauma. Community leaders suggested that trainings on restorative justice might also be helpful for the Department in healing the break between the community and the Department.
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Community Engagement Broadly Defined Community policing was a popular idea among participants in the community forums.
Youth and adults alike highlighted several examples of the type of community policing they wanted to see in their communities which includes expanding the Neighborhood Coordination Officer (“NCO”) program, mentorship programs, and participation in community events. Community members also suggested that officers participate in community service, attend community meetings, and have more positive engagement with youth. The majority of community members felt it was important that there be consistent officers in their communities, that officers be placed strategically in communities and know the culture, and that officers are walking the beat and engaging with the people. In their interactions with civilians, many members emphasized the need for greater respect, and less aggressive interactions with officers. Generally, community members said they desired more communication between the precincts and neighborhoods and that the precincts should provide community members with a means for providing feedback to commanders about community concerns.
Officer Recruitment Many community members stated they believed it is extremely important for officers to
know the communities they patrol. For that reason, many people suggested that the NYPD recruit officers from impacted communities and/or mandate community service as part of field training for all officers.
Addressing Residual Trauma At several points different individuals highlighted the residual trauma that still exists in
directly-impacted communities as a result of unconstitutional SQF and trespass enforcement. Several suggested that meaningful change would require addressing this trauma in order to
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restore police legitimacy. Examples that were provided included larger restorative justice healing exercises with community, and instituting mediation for rude or aggressive officers.
Restorative Justice As restorative justice appeared to be a popular theme for community members for
improving relations, the NYPD should develop initiatives to address the residual trauma that still abounds in many of the most marginalized communities. Resources like the National Initiative for Building Community Trust and Justice are already doing considerable work in the area of rebuilding police legitimacy, and have a number of pilot sites across the nation. The NYPD should consider a pilot program in consultation with this group to address the lingering issues which still exist for many communities in New York City.
Communication Input Community members in attendance at forums also suggested that the NYPD take steps to
include community members in the planning and development of policy initiatives. They suggested that the Department make a concerted effort to collaborate with community organizations, schools, and faith-based groups toward the creation and implementation of reforms that work for community members, not against them.

Accountability

Themes on Transparency and Accountability Floyd and Davis Focus Groups

Members of both the Floyd and Davis focus groups consistently voiced disappointment

that officers were not held accountable for misconduct. The focus groups also believed

supervisors in officers’ chains of command should be held accountable for the actions of their

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staff. Accountability should include progressive discipline in order to appropriately target disciplinary actions to individual officer behavior over time.
Participants felt officers should be held accountable to a customer service or community engagement standard as part of performance reviews and promotion assessments. A customer service standard may review how an officer handles and responds to power dynamics, how an officer engages with special populations (e.g., deaf and hard of hearing, disabled, homeless, LGBTQ), and the level of professionalism (i.e., respect) afforded to community members. The Davis focus group further described specific metrics that should be included in performance reviews, including how well an officer follows NYPD procedures, the level of professionalism or respect afforded to community members, the number of complaints filed against the officer, and the officer’s level of community engagement. Both focus groups were interested in how either individual community members or an oversight committee could provide assessments on individual officer behavior, both positive and negative. Participants suggested that performance evaluations be held at both an individual and a precinct level.
The Floyd focus group expressed a need for an independent, third-party entity with which they could file misconduct complaints and which had the authority to take action based on the results of the complaints. They noted that the complaint process could be streamlined and simplified to make it easier for individuals to file complaints, and, thereby, minimize the risk of further trauma. Participants suggested using technology, such as websites or mobile applications, to make it easier to file complaints and to enhance continual feedback mechanisms. The focus group also felt the complaint investigation and determination processes should be more transparent, providing regular updates on the status of individual cases.
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Transparency The Floyd focus group members would like greater transparency regarding community
members’ rights during a stop. For example, focus group members thought that officers should advise people of their right not to consent to searches.
Both groups suggested that a precinct-level “report card” regarding effectiveness and engagement with community members be made publicly available. The “report card” would provide data-driven metrics and report on progress over time.
Participants also expressed the need for transparency in connection with NYPD policies and discipline guidelines. Some participants suggested that organizational statements, policies, operating procedures, and training materials be publicly available; while others expressed the need for transparency in terms of discipline disposition.
Community Forums Accountability
During all of the community forums, participants stated that there needs to be greater accountability. Participants felt that the current disciplinary system was obscure, flawed, and arbitrary, and needed both reform and greater transparency. Community members called for meaningful and timely consequences that escalated for repeat misconduct. Attendees at the forums requested greater accountability at the officer, precinct, and departmental level.
Like the focus groups, the community forum participants suggested a “report card” system at the precinct level. Forum participants further stated that the NYPD should analyze the results to address identified issues and trends within each precinct and in its surrounding community.
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Forum participants noted a need to protect whistleblowing officers and hold those who have knowledge of wrongdoing but do not report it as complicit in any wrongdoing. Community members also suggested the use of oversight procedures such as body-worn cameras, community oversight boards, and more stringent oversight of anti-crime detective units.
Transparency Across the City, participants in the community forums requested more transparency and
openness in data reporting and organizational structure. Participants felt that the public should have open access to data via a website or online portal. Examples of the types of information that participants thought should be made available include stop reports and officer complaints; participants also thought there should be a database of officers by precinct.
Community forum participants felt there should be greater transparency during stops. Many stated that officers should always clearly identify themselves and should ensure that community members understand the reason for a stop.
Leadership Meetings During the Leadership Meeting Phase, the Facilitation Team received reform ideas from thought leaders and advocates. The Facilitation Team also received white papers attached to this report. Many of these ideas called for measures to improve transparency and accountability.
Transparency Thought leaders recommended the development of robust early intervention systems both
internally and with respect to the ability to monitor the effectiveness of the NYPD’s supervision, training, and discipline policies, procedures, and outcomes. In addition to traditional internal mechanisms for supervisors and managers to supervise data, an external monitor was also
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proposed. Among other items to be included in the data collected was information from the courts regarding suppressions and findings of incredibility. It was recommended that any tracking system be robust enough to track patterns from officers working together, in squads, or precincts.
Continued and proactive community engagement was a constant theme. This included developing ways to make sure that the public is fully aware of all the reforms that have been implemented.
It was emphasized that the NYPD needed to engage communities in a meaningful way. This included police interaction at a more local level, as well as police interaction through the private sector and the Department of Education. It was also recommended that there be mandated community surveys to be reviewed, analyzed, and evaluated at the community level. The development of feedback mechanisms where citizens can report back to the NYPD in a consequence free atmosphere was also recommended.
The following recommendations were made with respect to open data: ● Create a searchable record on accountability. ● Create a feedback loop between the courts and the Department. When the court makes a
decision in a case, it should get back to the involved officer’s supervisor. ● Ensure that any oversight team is comprised of people living in impacted communities,
organizations representing impacted community, and representatives of police reform organizations.
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● Create a commission in the mold of the Seattle Community Police Commission (“CPC”), which, recently made permanent by the City, is a civilian commission with a mandate to develop reform recommendations and represent the community’s interests.213 Furthermore, several groups stressed the importance of documentation. This included a
recommendation for a mandate that the NYPD document “Level 1” requests for information and “Level 2” encounters and consensual searches. It also included a requirement that officers provide identifying information in the form of a card with respect to all citizen-police encounters (or on demand). And because homeless, youth of color, LGBTQ individuals, and people with substance abuse problems are very frequently the subject of unconstitutional SQF and trespass enforcement, the NYPD should record on the stop form that the individual stopped falls within one of these groups (but only when that information is provided by the person stopped). In addition, it was suggested that officers inform individuals subject to a stop or a Level 2 encounter of their right to refuse a consent search.
There was also concern with the current criminal discovery rules set forth in article 40 of the Criminal Procedure Law and their application. In that regard, because most cases result in a

213 The CPC now has 21 Commissioners with the Mayor, the City Counsel, and the CPC each appointing seven. As stated on the CPC website:

Commissioners should represent the diversity of Seattle and include individuals

from communities of color, ethnic and faith communities, immigrant

communities,

the

urban

Indian

community,

the

lesbian/gay/bisexual/transgender/queer/intersexual/asexual community, and the

business community. Commissioners also should include youth representatives,

civil rights advocates, and individuals familiar with the challenges faced by

homeless people and those with mental illness or substance abuse issues. Two

positions are designated for public defense and civil liberties lawyers, one

position is designated for a member of the Seattle Police Officers Guild, and one

position is designated for a member of the Seattle Police Management

Association. Commissioners live or work in Seattle.

http://www.seattle.gov/community-police-commission/faqs#whoisonthecommunitypolicecommission.

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plea deal, there is no discovery before trial and therefore no opportunity to discern and raise concerns before a plea is entered.
While many groups were in favor of body-worn cameras, there was a general sense that without access to the footage BWCs would not serve their purpose. At is most basic, access requires that footage be available to litigants and their counsel in civil and criminal proceedings. It was also recommended that footage be maintained by a third party government oversight agency (perhaps the CCRB or the Office of the NYPD Inspector General). There was a call for greater community involvement in developing the policies governing the BWC pilot as well as any program that is developed as a result. This included involving community members, advocates, and policing experts in the evaluation of the program.
Specific recommendations were also made regarding the BWC program, including establishing a clear process for filing complaints, a clear written policy that states the consequences for officers who fails to comply with the BWC policy, and a retention policy for video footage, and prohibiting officers from reviewing footage before a written complaint or arrest report has been submitted. Accountability
There was a sense that behavioral changes required buy-in throughout the Department, but especially by leadership, managers, and supervisors. In other words, the people entrusted to ensure accountability must understand, support, and proactively push for more accountability.
It was suggested that there be increased disciplinary severity for repeated unlawful stops and frisks, and supervisor accountability for individual officers engaging in pretextual stops.
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Likewise, it was suggested that officers who intervene when needed should be supported, and the ones who do not should be punished.
It was stressed that accountability should extend beyond the officer level, and that there should be police accountability at the precinct level. In this regard, precinct commanders should be trained on levels of sharing information with the public and public outreach, and evaluated on those grounds.
Recommendations included: ● Evaluate systems and publish reports, findings, data and any changes resulting from those
evaluations on a regular basis. ● Establish uniform guidelines for the Commissioner’s disciplinary determinations and the
CCRB’s disciplinary recommendations. ● Require the Commissioner to explain divergence from NYPD trial judge and CCRB
disciplinary recommendations via reporting to the issuing body and the public. ● Ensure that District Attorneys report suspect and irregular patterns and practices. ● Strengthen the CCRB, including by increasing its budget and giving the CCRB authority
to prosecute officers who lie under oath during the course of their investigations. ● Require officers to receive training resulting in certification; continuing training to obtain
recertification; and, if officers violate the law, decertification. ● Appoint a special prosecutor for police misconduct cases.
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SECTION V: JOINT REMEDIAL PROCESS DESIGN AND IMPLEMENTATION
1. Convening Phase In January 2015, the Facilitator and Deputy Facilitator began the process of convening a series of small group meetings for the purposes of gathering information from, and building alliances with, community organizations that have contact with or provide services to persons in impacted communities that were adversely affected by unconstitutional stop, question, and frisk and trespass enforcement practices. Organizations across a variety of fields and specialties, including clergy, social workers, local government, police unions and affinity groups, and academia, were among the first outreach efforts on the part of the Joint Remedial Process (“JRP”) administrative team. Organizations were selected for outreach based on criteria that prioritized work with affected communities and/or work on issues related to the Floyd, Davis, and Ligon cases.
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Over 40 organizations participated in the early convening stage of the process. These meetings are part of what the JRP Team called the Convening Phase (see Figure 1). Figure 1: Participating Organizations
ORGANIZATIONS 49 Strong, First Central Baptist Church Arab American Association of New York
Bronx Connect Bronx Fathers Taking Action
Brotherhood/SisterSol Brownsville Community Justice Center
Center for Court Innovation Citizens Crime Commission Communities United for Police Reform (“CPR”)
Covenant House Dominican Officers’ Society DRUM – South Asian Organizing Center
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Esperanza Exponents First Corinthian Baptist Church Fortune Society George Walker Coalition Getting Out, Staying Out Good Old Lower East Side (GOLES) High School for Law Enforcement and Public Safety InterVarsity Christian Fellowship, John Jay College John Jay College of Criminal Justice Justice Committee Law Enforcement High School Legal Aid Society – Anti Gun Violence Unit Make the Road New York Malcolm X Grassroots Movement
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Man Up, Inc. Mayor’s Office of Community Affairs Micah Group, Interfaith Center of New York NYCHA Citywide Council of Presidents
Osborne Association Picture the Homeless Police Athletic league (“PAL”)
Rock Safe Streets Safe Horizon
Save Our Streets Sikh Coalition St. Paul Community Baptist Church Streetwise and Safe Theatre for the Oppressed
The Door
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VOCAL-NY
Youth Represent
Originally conceived of as a way for “a wide array of stakeholders to be offered the opportunity to be heard in the reform process” as required by the Remedies Opinion, the JRP was a multi-phase community engagement which placed at the center of its efforts, the goal of realizing and identifying reforms beyond those already ordered. To ensure that all stakeholders were included within the JRP, the following five phases were developed:
1. Convening Phase 2. Focus Group Phase 3. Leadership Meeting Phase 4. Community Forum Phase 5. Final Report Phase
Process Development After a period of internal meetings, the Facilitator called for a series of preliminary meetings with the litigants in the Floyd, Davis, and Ligon cases. The goal of this process was to gather background information on the cases and seek out community organizations with a stake in these cases. At this time, the Facilitator and Deputy Facilitator had several internal discussions with the New York City Law Department, the NYPD, and plaintiffs’ counsel to identify key stakeholder groups, potential JRP participants, conduct an overview of available resources, and brainstorm options for the function and design of the JRP.
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Initial Assessment of Floyd, Davis and Ligon The Facilitator’s first step in the convening of the JRP was to determine the Court’s
mandate, and figure out the goals of the process. In the Remedies Opinion, a Monitor was appointed to oversee the Immediate Reforms ordered by the Court in 2013. Rather than develop a simple conflict resolution process, the Remedies Opinion required that the parties engage in a community-based remedial process to develop sustainable reforms to the SQF practices of the NYPD.214 Central to this task, the Court highlights the need for most directly affected communities to be at the center of the remedial process. These basic stipulations then made it possible for the Facilitator to devise ground rules and a basic structure for the next steps of community process.
Stakeholder Identification Following the development of an initial framework, the Facilitator had to identify a
sample of interested stakeholders to participate in the process. The Remedies Opinion provided the Facilitator with an extensive list of stakeholder groups including representatives from grassroots, religious, and advocacy organizations, the Civilian Complaint Review Board, the District Attorneys, police organizations, schools and elected officials, and naming Community United for Police Reform (“CPR”) and the Black, Latino/a, and Asian Caucus of the New York City Council as specific parties in the JRP. Using the Remedies Opinion as a template, the Facilitation Team then began the process of conducting extensive outreach to organizations with an interest in SQF and trespass enforcement. Once groups were identified, the Facilitator scheduled a series of small group meetings to determine party representatives and resource allocations for groups.
214 See Remedies Opinion, 959 F. Supp. 2d at 686-88.
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The Facilitator met with several representatives of police unions and affinity groups. They included representatives of the Sergeants Benevolent Association, Detectives’ Endowment Association, NYPD Captains’ Endowment Association, National Latino Officers Association, 100 Blacks in Law Enforcement Who Care, The NYPD Guardians Association, and the Dominican Officers Association. Additionally, the Facilitator attempted to meet with the New York City Patrolmen’s Benevolent Association and the NYPD Hispanic Officers Society. The Facilitator was advised by the Monitor that he had apprised the Patrolmen’s Benevolent Association of his interest to meet with them to discuss the Joint Remedial Process. Unfortunately, the Association declined the request.
Resource Determinations The Facilitator, in consultation with the City, then had to develop a relationship and
structure for funding the project. As required by the Court, the Joint Remedial Process would be funded by the City; funding was required to cover the expenses of acquiring staff, purchasing materials, renting venues, and other costs integral to the work of the process. Once a funding structure was determined, the Facilitation Team began the process of seeking staff and proposals for implementation of the JRP.
Design and Implementation The final step of the Convening Phase required the Facilitator to organize a strategic plan
for completion. Initially the Facilitator decided on a survey design and met with a City University of New York (“CUNY”) research team to review proposals for a community input survey. The Facilitator declined to move forward with the CUNY proposal. Instead, the Facilitator sought to develop an information gathering process that would allow the Facilitation Team to go out into impacted communities to connect with and learn from individuals.
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Joint Remedial Process Advisory Committee The Facilitation Team thought of creating an Advisory Committee to help guide the JRP.
The Advisory Committee was conceived of as a structure through which the JRP Team could receive advice and input on, primarily, the process itself. The Committee was a vehicle for us to obtain advice and counsel from stakeholders as we developed the JRP. Additionally, the JRP Advisory Committee was a sounding board for the ideas that the Facilitator would present to the Monitor and the Court. The Committee met monthly except for a short hiatus from August 2016 to January 2017. While the primary purpose of the JRP Advisory Committee was to offer in a structured way continued input into the process, it also became a vehicle for dialogue on substantive issues.
With respect to the composition of the Advisory Committee, the Facilitator decided that the committee should be composed of representatives from various stakeholders in the JRP (see Figure 2). Figure 2: Joint Remedial Process Advisory Committee Members
MEMBERS Adilka Pimentel – Make the Road New York Alyssa Aguilera – Vocal-New York Benjamin Tucker – NYPD First Deputy Commissioner Chris Bilal – Streetwise and Safe
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Ed Mullins – Sergeants Benevolent Association215 Eleanor Britt – Plaintiff for Davis Gabriel Strachota – Communities Voices Heard Jackie Yates – Plaintiff for Ligon Lalit Clarkson – Malcolm X. Grassroots Movement216 Nicholas Peart – Plaintiff for Floyd Priscilla Gonzalez – CPR Reginald Bowman – NYCHA Citywide Council of Presidents Reinaldo Rivera – U.S. Department of Justice Rev. Chloe Breyer – Interfaith Center of New York Steve Kohut – Justice Committee Steve Zeidman – CUNY Law School Susan Herman – NYPD Deputy Commissioner
It was decided that the Advisory Committee would take a purely advisory role and it was explained to all invitees that its deliberations would be confidential and any recommendations made through the Committee would not be in any manner binding on the Facilitator. The Committee’s primary concern was with providing process recommendations. During Committee
215 The Facilitator met with Sergeant Ed Mullins, President of the Sergeants Benevolent Association on two occasions. Sergeant Mullins accepted an invitation to participate on the Advisory Committee, but did not attend any meetings. 216 Some advisory members were replaced by different individuals by the representative organizations during the term of the JRP.
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 142 of 312 proceedings, major issues concerning the implementation of the civic engagement process were presented to the Committee members and members were invited to comment.
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 143 of 312 SECTION V: JOINT REMEDIAL PROCESS DESIGN AND IMPLEMENTATION
2. Focus Group Phase The aim of the Focus Group Phase of the Joint Remedial Process was to gather additional ideas for changes to the NYPD beyond those ordered in the Remedies Opinion as part of the Immediate Reform Process. People from communities most affected by SQF and trespass enforcement practices were selected as participants for the focus groups. The Facilitation Team conducted a total of 64 focus group meetings with 516 participants. Forty focus groups emphasized street stops, while 24 groups concerned trespass enforcement experiences. These groups were done in conjunction with community organizations, advocacy groups, and community centers within New York City Housing Authority (“NYCHA”) developments. We also participated in focus groups of NYPD patrol officers, sergeants, lieutenants, commanding officers, and executives.
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It is important to note that the JRP was developed as an information gathering process. Best practices of qualitative research were used to gather and analyze all the information that was collected.
Generally speaking, participants were forthcoming and excited to participate in the focus groups. It was not uncommon at the beginning and end of focus groups for participants to inquire about the legitimacy of the JRP, specifically if anything would actually come of their recommendations. Participants were informed that this was a Court-ordered process and the Court would make the final decision regarding ordering additional reforms. This concern aside, focus group participants actively discussed ways in which the NYPD could better engage communities that were impacted by unconstitutional SQF and trespass enforcement. With the exception of some focus group participants, participants expressed a desire to work with the Department toward improving relations between the police and communities.
Methodology The identification of communities most affected by SQF began with an analysis of the NYPD SQF public data for 2011, 2012, 2013, and 2014. Using these data, there were 11 variables created and organized to identify those communities with higher rates of SQF. The data were ordered based on the top 10 SQF precincts for each year and prioritized based on the presence of variable and special circumstances where applicable. These variables were defined as follows:
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Table 1. Factors used to prioritize precincts

Variable Variable

#

Name

Definition

1

SQF11

Top 10 precincts with the highest number of stops in 2011

2

SQF12

Top 10 precincts with the highest number of stops in 2012

3

SQF13

Top 10 precincts with the highest number of stops in 2013

4

SQF14

Top 10 precincts with the highest number of stops in 2014

5

SAL14

Precincts that participated in the 2014 “Summer All Out”

policing initiative

6

SAL15

Precincts that participated in the 2015 “Summer All Out”

policing initiative

7

ARR11

Precincts where in stops in 2011 did not result in an arrest 95%

of the time

8

ARR12

Precincts where stops in 2012 did not result in an arrest 95% of

the time

9

ARR13

Precincts where stops in 2013 did not result in an arrest 95% of

the time

10

ARR14

Precincts where stops in 2014 did not result in an arrest 95% of

the time

Based on our analysis, there were 25 precincts identified and of those 25, 13 precincts were prioritized as high or mid priority. Precincts were prioritized to assist with identifying
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participants for the focus groups. Participants who either lived within or frequented these precincts were given preference.

Table 2. Selection and prioritization of NYPD precincts
Pct SQ SQ SQ SQ SA SA AR AR AR AR F11 F12 F13 F14 L14 L15 R11 R12 R13 R14

23

X

X

25** **

33**

34**

X

40

X

X

X

43* X

X

X

44

X

X

X

X

60

X

67

X

X

X

X

X

X

70

X

X

X

X

73

X

X

X

X

X

X

X

X

75

X

X

X

X

X

X

X

79** **

X

X

X

X

83

X

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90

X

X

X

100*

X

*

101* *

X

X

X

X

X

X

102

X

103* X

X

X

**

105

X

106

X

X

107

X

115* X

X

**

120 X

X

X

X

X

121

X

*A top 10 precinct for at least one year and participating in SAL 2014, 2015 **Participating in the New Neighborhood Policing Model Pilot Program 2015 ***Specialized population (large percentage of South Asians and other impacted people) ****Special circumstances

High Priority Mid Priority Priority

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Using the same data, 15 variables were created and organized to identify those communities with higher rates of housing trespass enforcement. The data were ordered based on the top precincts and Police Service Areas (“PSA”) with at least 10% housing stops. The variables were defined as follows:

Table 3. Variables used to prioritize PSAs and precincts

Variable Variable

#

Name

Definition

1

HOU11

Precincts where at least 10% of stops were housing stops in 2011

2

HOU12

Precincts where at least 10% of stops were housing stops in 2012

3

HOU13

Precincts where at least 10% of stops were housing stops in 2013

4

HOU14

Precincts where at least 10% of stops were housing stops in 2014

5

DEBLASIO15 Housing developments within this precinct were on DeBlasio’s

list of 15 most dangerous developments

6

SAL2014

PSA and/or Precinct that participated in the 2014 “Summer All

Out” policing initiative

7

SAL2015

PSA and/or Precinct that participated in the 2015 “Summer All

Out” policing initiative

8

ARR2011

Precincts where in stops in 2011 did not result in an arrest 95%

of the time

9

ARR2012

Precincts where stops in 2012 did not result in an arrest 95% of

the time

10

ARR2013

Precincts where stops in 2013 did not result in an arrest 95% of

the time

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11

ARR2014

Precincts where stops in 2014 did not result in an arrest 95% of

the time

12

SQF2011

Top 10 precincts with the highest number of stops in 2011

13

SQF2012

Top 10 precincts with the highest number of stops in 2012

14

SQF2013

Top 10 precincts with the highest number of stops in 2013

15

SQF2014

Top 10 precincts with the highest number of stops in 2014

Based on our analysis, there were 29 precincts identified within the nine PSA’s, and of those 29 precincts, 22 were prioritized as high or mid priority. Precincts were prioritized to assist with identifying participants for the focus groups. Participants who either lived within or frequented these precincts and identified housing developments were given preference.

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Once all precincts and PSAs were identified and prioritized, they were then disaggregated by zip code and neighborhood. Using a combination of the high and mid-priority precincts and PSAs and an organizational list developed during the Relationship Building Phase, the Facilitation Team asked organizations to populate focus groups with people from the identified geographical neighborhoods.
Of the 64 focus groups with 516 participants, 53.3% of the people participating in the focus groups discussing street stops lived within identified areas; and 78% of the people participating in the focus groups discussing housing trespass stops lived within identified areas.
Many organizations worked in collaboration with the Facilitation Team to populate focus groups of 8 to 10 participants discussing street stops, these organizations are found in Table 5 below. Table 5: List of organizations who populated focus groups for the Floyd case
ORGANIZATIONS Ali Forney Center Arches
Bronx Clergy Criminal Justice Round Table BronxConnect
Broome Street Academy
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Brotherhood - SisterSol Cardinal Hayes High School Cardinal Spellman High School
Center for NuLeadership Central Family Life Center Community Voices Heard
Covenant House Cure Violence SOS – South Bronx
East Side Settlement House Exponents
Gangstas Making Astronomical Community Changes INC (“GMACC-Inc.”) Life Camp, Inc.
Make the Road New York Malcolm X Grassroots Movement
Man Up, Inc.
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New York Center for Interpersonal Development (“NYCID”) Osborne Association Picture the Homeless
Police Athletic League (“PAL”) Safe Horizon
Safe Space Far Rockaway Streetwise & Safe
The Anti-Violence Project The Door
The Fortune Society True 2 Life - Central Family Life Center
VOCAL-NY
People who participated in the housing trespass groups were recruited directly from NYCHA developments with the assistance of community organizations and the New York City Housing Development Department of Resident Engagement. Those developments can be found below in Table 6.
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Table 6: List of NYCHA developments in which organizations populated Davis focus groups NYCHA
DEVELOPMENTS Baisley Park Brownsville Carey Gardens Castle Hill Ingersoll Linden Mill Brook Mitchel Mott Haven Ocean Bay Patterson Red Fern
Red Hook, Hammel
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Richmond Terrace Seth Low Smith Sotomayor St. Mary Stapleton Tilden Tompkins Unity Plaza Wagner
West Brighton Wilson and East River Houses
The criteria for participation in the “street stop” groups were that the individual either lived in the prioritized area or had street stop experiences within the identified areas. The criteria for participation in the “housing stop” groups were that the individual lived in or had been stopped in NYCHA developments within identified precincts/PSAs. We did not limit participation to only people who have been stopped but also welcomed participants who may
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 156 of 312 have had vicarious experiences by way of a friend or family member or simply by being a resident within a neighborhood or development where frequent stops occur. Individuals were provided a round-trip MetroCard and a meal for participating. Figure 1. Race of focus group participants for ‘street stop’ groups
Figure 2. Gender of focus group participants for ‘street stop’ groups
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 157 of 312 Figure 3. Race of focus group participants for ‘housing stop’ groups

Figure 4. Gender of focus group participants for ‘housing stop’ groups

Focus Group Questions

Focus Group Development

The Facilitation Team developed focus group questions in collaboration with plaintiffs’ attorneys, the NYPD, and Communities United for Police Reform (“CPR”). The final list of questions for both focus groups included six open-ended questions and probes. Probes were

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created and used with some questions to ensure complete coverage of particular topics. Copies of the questionnaires are included in Appendix E.
Floyd Questions For the “street stop” groups the questions were grouped into three main themes that are
discussed in this section. The discussion began with an introductory count question (Question 1) to ensure that the participants met the general criteria for participation in the focus group. Question 1 was followed by two transition questions (Question 1A. i & Question 1A. ii) that asked participants to share their experiences with being stopped — either personal or observed experience. If participants mentioned a stop which they believe occurred because of what they look like, the way they were dressed, where they live, or who they were with, Question 2 was asked. Questions 2 – 6 were key questions, and focused on reform ideas to the NYPD. Although they were focused on specific themes such as “feeling free to walk away,” “consent to search,” “complaints,” and “supervision and evaluation,” if participants provided commentary beyond what was asked, they were allowed to continue answering. Finally, the focus group concluded with a question asking for additional thoughts around reforms to SQF and any topic not covered.
Davis & Ligon Questions For the “housing stop” groups, the questions were grouped into four main themes that are
discussed in this section. The discussion began with two introductory count questions (Questions 1 & 2) to ensure that the participants met the general criterion for participation in the focus group. Questions 1 & 2 were followed by two transition questions (Question 2A. i & Question 2A. ii) that asked participants to share their experiences with being stopped while on the property of a public housing development and suspicion of and/or arrest for trespassing. Questions 3, 4, and 6 were key questions, and focused on reform ideas to the NYPD. Question 5 was asked in an
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attempt to secure ideas for alternatives to policing in ensuring a safe neighborhood. Finally, the focus group concluded with a question asking for additional thoughts around reforms to SQF and trespass enforcement, and any topic not covered.
Participant Consent Before the start of each focus group, participants were asked to sign an informed consent
that outlined the purpose of the focus group. The consent explained that participation was voluntary and that individuals could discontinue participation at any time. When a participant was younger than 18 years of age, parental/guardian written consent was provided in advance. A copy of the informed consent is provided in Appendix E.
Once written consent was given, participants were asked to complete a demographic questionnaire seeking information about their race, age, type of residence (e.g., renting, homeless, NYCHA, owner), zip code, LGBTQ identification, and gender identification. Participants did not include their name on the questionnaire, only the hosting agency/organization, time and date of the focus group. Copies of the demographic questionnaires are provided in Appendix E.
Protecting Focus Group Participants’ Privacy To ensure anonymity, each participant was assigned a color used as their identifier during
the discussion.
Personal Prose Worksheet and Introduction Once participants completed the demographic questionnaire, consent to participate, and
“personal prose” worksheet, a short introduction was provided. Copies of the personal prose template and introduction script are provided in Appendix E.
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Focus Group Debriefs At the conclusion of each focus group, the group facilitator and assistant facilitator would
complete a recorded debrief. The focus group debrief would include a discussion of impressions, challenges presented during the focus group, and anything found to be of importance during the focus group.
Additionally, the primary role of the assistant focus group facilitator was to take typed written notes of the discussion, especially when there may have been audio issues. The assistant facilitator was also responsible for taking detailed behavioral notes. The focus group transcripts, behavioral notes, and debrief sessions were used as data during analysis.
Analysis of Focus Group Responses Atlas.ti qualitative software was used to organize, code, and analyze 64 transcripts containing approximately 1600 pages of transcription and notes from the focus groups. The purpose of the analysis was to identify reform ideas as offered by focus group participants. The analysis involved line by line coding, resulting in 24 street stops and 9 housing stops larger themes, originating from 927 codes. These codes were developed based on the participants’ responses to each focus group question. The assistant focus group facilitator reviewed and coded the transcripts as well. Copies of the larger thematic categories and suggested reforms are provided in the Appendix. In this next section, you will find a summary of the larger themes identified within the focus groups. These themes were organized into two sections — themes specific to “street stops” (Floyd) and themes specific to “housing trespass enforcement” (Davis).
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Summary of Focus Group Themes Floyd Focus Groups
Accountability There was an overarching theme throughout the focus groups centered around
accountability. Focus group participants felt that officers were not held accountable for their actions on a consistent basis. They also felt that accountability should not be limited to individual officers but should also include NYPD supervisors, executives, and in some instances, the Mayor.
Assertion of Right to Consent to a Search and the Freedom to Walk Away When asked the question about consent for searches, many participants felt that they were
often searched without consent. Participants regularly expressed that they felt that they were unable to refuse a search in appropriate instances and that the act of asserting their rights would escalate the encounter often making it worse. One participant shared, “They don’t ask permission; if you ask them they tell you don’t ask me no questions.”
When asked about feeling free to walk away, almost all participants felt that they did not feel free to walk away from police officers. This fear of walking away was grounded in the possibility that doing so could lead to some form of escalation. The fear of escalation would cause some to run instead of walk away. According to one participant, “Most of the time we ain’t walking away, we running away.” Although some participants stated that they would walk away if the officer informed them that they were free to leave, others stated they would not leave even if the officer stated that they were free to leave. It is only when the officer would decide to leave first that they would proceed to walk away. One participant explained this as, “You try to walk away from a cop, and they’re going to easily say you’re trying to resist arrest.”
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De-escalation Participants expressed concerns around escalating stops. A common theme was to “play
by the rules to avoid escalation.” Some participants expressed avoidance tactics, such as not going outside on “TNT” — on Tuesdays and Thursdays — when detectives seem to be more present, or walking in a different direction to avoid police contact. Other participants shared ways in which they minimize the potential for escalation like “going with the flow and becoming a chameleon,” running away when the officers arrived, or putting their hands up before being asked.
Participants suggested changes to policies and procedures that focused on officers informing civilians of their rights when appropriate during investigative encounters. There were also suggestions for officers to be required to attend de-escalation trainings.
Civilian Complaint Review Board (“CCRB”) and Complaints Many participants expressed concerns about filing complaints inside of their local
precinct. They suggested instead that complaints be filed with an entity and/or parties independent of the NYPD and CCRB. There were two reasons for this concern. The first reason was the fear of retaliation and the second was the impression that the CCRB was working on behalf of the NYPD, thereby lacking objectivity. In a response to a question about the CCRB a participant responded, “I ain’t gonna call the police on the police.” The latter concern was a direct correlate to participants feeling that there is no action taken against officers with complaints filed against them. As such, they expressed the need for a higher level of accountability and transparency in regard to complaints and the final determination of complaints.
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Participants also suggested that the complaint process be streamlined and simplified, making it easier for participants to file complaints, thereby minimizing trauma, while receiving proper notification of all complaints. They suggested a simple solution, follow up in the form of a written response (e.g., letter or email) and/or a telephone call.
Community Engagement Many of the focus group participants expressed a desire to engage in a community
feedback process. Participants suggested events such as community forums and conversations with police officers, precinct rating boxes, annual surveys, and other data gathering mechanisms. Some participants also expressed a desire to get to know the officers that work within their communities as well as the importance of officers getting to know the communities that they patrol.
Community Engagement Campaign Participants expressed a strong desire for community education campaigns. The
suggestions were categorized into three areas:  Community Education Programs for Officers.  Programs for Officers and the Community.  Programs for Community Members Only. The education program for officers focused on the need for officers to have a thorough
and accurate understanding of the culture and history of the respective communities that they patrol. Officer and community education campaign suggestions focused on collaborative education programs between the NYPD and community based organizations. Participants expressed a desire for the NYPD to partner with community based organizations in an effort to build an educational campaign. Additionally, community members expressed a strong desire for
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community based educational programs focused on providing “know your rights” information. Participants felt that this would empower communities in such a way that aggressive and escalating types of encounters would be minimized. There was a shared sentiment that this would help adults and young people better understand how to engage officers.
Community Evaluation and Input into Training Training was also a recurrent theme during the focus groups. Participants suggested that
many of the constitutional abuses suffered by them were a result of inadequate training of officers by the NYPD. In this regard, “Customer Service” was an overarching training theme.
Participants also felt that abuse of power and consistent disrespect were at the core of police interactions with community members. Additionally, participants expressed the need for officers to receive training to assist them with engaging with special populations such as the mentally ill, homeless individuals, youth, and the LGBTQ community.
Participants also articulated a great level of compassion for officers in terms of job related stress, fear, and trauma. There were several suggestions for therapeutic trainings that could prepare officers to manage stress, fear, and trauma associated with the job. Participants additionally expressed a desire for input into these trainings.
Community Input into Officer Performance Evaluations Focus group participants expressed an interest in community participation in the
evaluation process. Suggestions were centered around community involvement in the evaluation of individual officers and precincts, as well as the inclusion of a “community engagement” metric on annual evaluations. There were also suggestions for community members to complete some level of assessment for officers’ work, including but not limited to an oversight committee.
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Within the LGBTQ specified groups, participants suggested an oversight committee created and populated with members of the transgender community to rate officers’ overall performance.
Community Feedback Focus group participants suggested the use of web resources and applications as data
gathering mechanisms. Participants thought these were good ways to not only report and file complaints but also to provide commendations for deserving officers. Additionally, participants felt that web resources and applications were good mechanisms to allow people to make anonymous reports.
Consent Participants mentioned that officers regularly did not ask for consent and instead would
proceed with a bodily frisk and search while questioning. One participant mentioned in a focus group that they have been frisked and searched by officers while the officers sat in their vehicle. In response to these concerns, participants suggested a simple fix — that officers seek consent. Participants suggested that officers advise a person of his right to not consent to a stop, or to answer questions.
Evaluation There were several areas of discussion regarding evaluation. Participants suggested both
a precinct and individual approach to evaluations. Also suggested was a precinct report card/progress report. Participants thought precinct report boxes would be useful in determining precinct effectiveness and engagement with community members. For individual evaluations, participants suggested the use of an application or an independent review board that included
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community members. Their responses were balanced in that they also thought officers should be commended for work well done as well as criticized for unconstitutional policing.
Policing Tactics Participants shared details of stop encounters where police officers used specific tactics.
There were accounts of participants being stopped and held as a form of “inconvenience” or taken to the neighborhood precinct and later being released out of the back door. Participants also shared that they felt officers intentionally used excessive force, especially when an officer felt challenged by the person that was stopped. One example of this is when a participant said that, “Sometimes it feels like if you challenge them, they don’t like that; I’ve been brutalized when they felt I challenged them.”
Participants frequently expressed the notion that “cops go looking for trouble,” either in the manner of targeting certain individuals, stopping people just to see if they have warrants, or throwing gang signs from their car in an attempt to garner a response. One participant stated, “They’ve got targets, I’m a target, they have targeted areas where they just go fishing.”
In some focus groups, participants stated that officers use certain tactics intentionally to make certain people look like “snitches.” Participants felt that this was particularly problematic because as one participant noted, “they’re putting my life in jeopardy.”
Policy/Procedure Focus group participants often felt disrespected by officers, a consistent theme
throughout all 64 groups. Participants did not limit this feeling of disrespect to stops by officers but also shared that they felt disrespected by officers in encounters separate from stops. Some basic solutions recommended by participants to address the issue of respect was community
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policing, officer assignments based on the needs of the community, customer service and implicit bias trainings, and providing civilians business cards or something similar with the officer’s name, badge number, and precinct at the end of an encounter.
Participants suggested policy/procedural changes for officers to address the way they engage LGBTQ persons. They also suggested changes to how the NYPD audits stops, police hiring standards, engagement of pedestrians during stops to avoid escalation, and protection against retaliation for those filing a complaint.
Supervision Focus group participants consistently expressed a desire for transparency in the way that
officers are supervised, often referencing the need for body-worn cameras. As additional methods of supervision, participants suggested the following:
● Supervisory Training. ● Ensuring Supervisory Accountability. ● Coaching by experienced officers and supervisors and a “trigger system” that will help
identify officers who are at risk for mental health stressors. In addition to the mental health trigger system, participants suggested that supervisors be well trained to identify mental health stressors of their officers. Lastly, participants suggested the creation of a promotion metric that would include professionalism and respect for supervisors to consider.
Trauma Informed Trainings for Police Officers In some instances, focus group participants were understanding of the stress, fear, and
trauma associated with being a police officer. Participants suggested trauma-informed trainings
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and other therapeutic trainings and support as a way to manage the stress, fear, and trauma associated with the role of police officer. LGBTQ Specific Trainings
LGBTQ focus group participants suggested officer trainings focused on engaging transgender people that are led by transgender people. Assistance from advocacy groups focused on issues relevant to transgender people should be consulted. Cultural Awareness/Cultural Competency Trainings
Focus group participants expressed concerns that officers are not culturally competent to serve many of the communities they work within. According to them, this lack of cultural competence leads officers to misunderstand people who live within these communities, often resulting in targeting of community members. Participants suggested cultural competency trainings that would help officers better understand the communities they work in. Specialized Trauma Training for Vulnerable Populations
The trauma experienced by participants heavily affected by unconstitutional policing is deep and profound. Many participants expressed experiencing it directly, while others’ experiences were vicarious in nature. We also learned during the focus groups that participants would run, even when not engaged in illegal activity, to avoid contact with police. This almost automatic response is often perceived as guilt. Participants articulated that they either feared for their lives, were avoiding the indignity or potential escalation that could result as consequences of the stop, or were fatigued from what they termed “harassment.”
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Transparency Focus group participants expressed the need for transparency with respect to NYPD
policies and discipline guidelines. Some participants suggested that the Commissioner become more transparent in statements, policies, and training materials; while others expressed the need for transparency in terms of the imposition of discipline. Additionally, participants suggested progressive discipline as a means of holding officers accountable.
General Procedural Suggestions Many focus group participants expressed that they did not know the names and badge
numbers of officers that they have encountered and in some instances officers would not provide this information when requested. As a solution to this problem, participants suggested that all officers provide a business card as a closing gesture at the end of an encounter. According to focus group participants, these cards should provide, at minimum, the officer’s name and badge number.
Issues Directly Affecting Homeless Individuals There were eight focus groups populated with participants who identified as being
homeless, six were youth groups and two were adult groups. Participants within these groups expressed that they felt targeted, resulting in frequent encounters with police. Many participants expressed that these encounters were often unavoidable by virtue of their homeless status. As an example, one participant shared how the police would often become frustrated, exclaiming “I just saw you, just picked you up yesterday, why are you back here?” With the participant responding, “Well, I’m homeless, this is the only place I can stay.” As stated by a staff person who participated in a focus group and who provides care to homeless people, “[t]here’s a
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[systemic] issue around homelessness in our city — that it’s [disproportionately] impacting people who have no resources to do anything different.”
Davis Focus Group Themes Accountability
Similar to participants in the Floyd focus groups, participants from NYCHA developments expressed a concern about a lack of accountability within the NYPD. When asked about accountability, one participant stated, “Police are never going to change unless you change the repercussions.” Generally speaking, participants suggested an NYPD cultural change with regard to accountability and an officer accountability sliding scale with progressively more harsh penalties.
Community Engagement Although many NYCHA participants expressed concern with being heavily policed, they
also expressed the desire to partner with the NYPD. Some participants suggested NYPD partnerships with community organizations and more activities involving community members and precinct officers. Some participants were actively engaged in Police Athletic League (“PAL”) programming and suggested increased programming similar to PAL. A predominant theme was that community members should know who their officers are, and it was believed that increased community and NYPD collaborations would help in that regard.
Issues Related to Confidential Informants In many of the focus groups, younger and older participants alike expressed concern with
the way the NYPD identifies and cultivates their confidential informants. Younger male participants shared that they were often targeted and harassed by officers in an effort to make them confidential informants. Older participants shared that officers would strong-arm youth into
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becoming confidential informants. One participant said that he was often harassed by officers and on one occasion he was taken to the precinct when an officer could have given him a ticket instead. This participant stated the following:
Yeah. That’s what they were going to give me [a ticket]. They brung me to two different investigation rooms: the first investigation room, where I said I know my rights, and then they brung me to the detective’s room. The detective’s room’s got pictures of everybody and everything. He said, “You see who you’ve got beef with this on this wall? They’re already telling us what y’all doing. Just give me information, and you’ll be home tonight, man. I’ll give you the ticket.” I said, “Can I get a lawyer?” They said, “Oh, so you know how to play this game?” They brung me downstairs and put me through the system. It was in this same group that participants shared a concern that the officers in their area take pictures of them with their cellular phones — this is how many of them find themselves on the wall mentioned above.
Participants suggested policy changes that would prohibit officers from harassing and targeting young people for the purpose of making them confidential informants. Additionally, it was suggested that officers should be prohibited from using their electronic devices as a form of intimidation by, for example, taking pictures of young people.
Evaluation and Supervision Reforms For the NYCHA focus groups the evaluation and supervision questions were combined.
Participants suggested some level of community input into the evaluation of individual officers — this input could be in the form of an application or website or an evaluative panel with the following metrics to be included on individual evaluations:
● Procedural metric. ● Respect metric. ● Number of complaints metric.
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● Performance metric. ● Community involvement/community engagement accolades metric. Participants also suggested a precinct report card/progress report and precinct boxes. Some participants suggested social media to commend officers and an annual awards ceremony for good officers.
General Procedural Suggestions ‒ Interior and Vertical Patrols Focus group participants expressed concerns with interior and vertical patrols within
NYCHA. Some participants, understanding the need for such patrols, suggested that officers be accompanied by a community member or resident of the development during patrols. Additionally, participants suggested that officers should seek confirmation that the person is a visitor by knocking on the person’s door when they are visiting.
Public Safety NYPD light towers made most participants feel like they were under constant
surveillance within their homes. Many of them expressed difficulty sleeping because the lights would shine brightly into their bedrooms. Participants also expressed concern about officers driving on sidewalks within NYCHA developments. Apart from the NYPD, participants felt that the scaffolding present on many properties covered security cameras making it difficult to solve crimes.
Participants suggested the following ideas for policy changes: ● NYPD will use light towers to a limited extent within NYCHA developments. ● Officers will not drive on sidewalks of NYCHA developments. ● Changes in the manner in which vertical patrols are conducted.
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And additional areas for consideration: ● NYCHA should immediately remove scaffolding on properties where there is no
construction. ● NYCHA will ensure that properties are well lit. ● New York City Department of Transportation will ensure that NYCHA developments
have working street lights and install new lights were necessary. ● NYCHA will ensure that installed cameras are working. Training
Focus group participants expressed a desire for officers to participate in “customer service” type trainings that included a community engagement component. Participants felt that this would equip officers with at least the basic skills to engage community members respectfully. There was a consistent theme of respect, or the lack of it, throughout the housing focus group sessions. Many participants stated that officers did not speak while patrolling their communities. This same lack of engagement was present if the interaction was initiated by the individual instead of the police officer. As a result of this participants provided the following suggestions for community engagement trainings:
● Officers should engage and have conversations with community members before patrolling communities.
● New hires should train within the communities prior to being assigned for patrol. These trainings should be conducted by advocates and community leadership.
● NYPD Leadership/Supervisory trainings. Supervisory and command officers should understand how their management style affects the way officers interact with community members. Participants also expressed concern that officers interacted with them based on
stereotypes. They reasoned that these stereotypes were a result of officers’ limited exposure and
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engagement with people from diverse backgrounds. As a result, it was suggested that officers be required to participate in cultural awareness and competency trainings.
Trauma-Related Reforms Participants expressed varied levels of trauma within the focus groups. Some participants
discussed past physical encounters with police officers, while others expressed concerns around harassment and being taunted by officers. As a result of these encounters, participants shared some of the ways they attempt to mitigate these traumatic experiences. Many participants shared that they would run when stopped by the police, while others avoided contact by taking alternative routes home.
Participants suggested the following as reform ideas to address issues around trauma: ● NYPD should implement ongoing training to assist NYPD officers and recruits with
understanding the depth of trauma associated with historical overuse of SQF and trespass enforcement. Additionally, officers should understand the physical reactions that result from these interactions. ● NYPD should implement trainings for supervisors and command officers and should understand how management styles affect the way officers interact with community members. ● NYPD should implement policy changes around harassment and targeting, including accountability measures for officers found to harass and target people from communities of color.
Police Focus Groups The following are several themes from the three separate police focus groups with NYPD patrol and special units, sergeants and lieutenants, and commanding officers. Below we categorize themes into several areas based on the responses of these officers.
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Accountability and Discipline Officers, sergeants and lieutenants, and commanding officers called for improvements to
fair and timely discipline and the development of protections for officers exonerated under the CCRB. Police officers pointed to issues with supervision, citing CompStat, Vision Zero, and “activity” expectations as putting pressure on officers to act in an overly aggressive manner. Patrol officers and special unit officers pointed to these pressures as creating and perpetuating the need for the “harassment” of confidential informants and individuals with a criminal record, deemed as “quality touches,” and suggested such performance pressures should be eliminated or de-emphasized. Additionally, many patrol officers cited limited and ineffective follow-up by supervisors on SQF policy, documentation, and training and an over-reliance on training as major accountability concerns.
Officers also stressed that policies such as CompStat, Vision Zero, and SQF effectively force them into over policing as a way of both inflating statistics and creating revenue for the City by overzealous summons enforcement. They also said that when these policies lead to wide public discontent, the Department has not owned these policies and as a consequence officers are left to bear the brunt of public resentment and animosity.
NYPD personnel also spoke to a need for greater accountability for civilians who file complaints, suggesting they should be required to submit an affidavit to support their complaint, as any other civil litigant. Officers also raised concerns about the lack of knowledge, inexperience, and background of CCRB investigators who review complaints, and recommended that CCRB hire better trained and more seasoned investigators.
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Auditing During the focus group meetings, NYPD sergeants and lieutenants pointed to a concern
that stops were being conducted, but not documented. Many patrol officers pointed to a fear of personal liability as a reason not to document stops. Others were concerned that there was a lack of clarity about the status of SQF as a legal policing tactic following the Floyd litigation. Many patrol officers indicated that detectives (“DTs”) or plain clothes units accounted for the majority of stops.
Sergeants and lieutenants called for increased narration on UF-250s, command-run audits, improvements to the Integrity Control Officer (“ICO”) protocol, and a standardized format for conducting audits of stop reports at the precinct level. All of the groups supported the Body-Worn Camera program, suggesting that it would be helpful for officers in understanding the validity of complaints. Community Education
Officers also suggested it would be a good idea to implement a community education program. Patrol officers suggested going to schools and making presentations to highlight for civilians the importance of compliance and proper police procedure. Officers also suggested going to schools to share more about the NCO program. Community Engagement and Policing
Officers, supervisors, and commanding officers highlighted a desire for increased community engagement, citing a need for greater attendance at Community Council meetings, and a desire to go to public spaces like churches, synagogues, and community centers.
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Officers also suggested the need for more community centers, after-school programs such as PAL, and the need for greater community investment on the part of the NYPD and other city agencies.
Officers were largely in favor of a community policing model, often citing the need for more NCOs and steady sector officers, and increasing the emphasis on community affairs and problem-solving. The officers also indicated that the NCO program is often hampered because NCOs are more frequently pulled for special assignments such as parades and protests.
Changes to Officer Evaluation Officers and supervisors suggested several changes to the performance evaluation
system, including the following:  Evaluation of supervisors by subordinates.  Including attendance on evaluations.  Including a commendation section for career points.  Including a metric for communication, empathy, and overall good relations on the performance evaluation.
Additionally, a supervisor suggested the inclusion of activity on evaluation for accountability purposes.
NYPD Structure and Staffing Officers, sergeants, lieutenants, and command officers all spoke to concerns with the
current workforce and division of labor, as well as the breaks in communication between the precinct commands, Borough commands, and 1 Police Plaza. In all of the focus groups, members stated a belief that precinct commands have little power to make the changes necessary in their communities, citing a lack of adequate staffing on patrol and the over-specialization of units.
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An overall theme was the suggestion that the Department significantly increase the number of civilian staff to cover administrative functions throughout the Department and at the precincts. There was a sense that instead of being on patrol there were too many well-trained police officers doing tasks that could be handled by civilians. Overall, officers called for a more streamlined Department staff structure and the need to centralize key positions to improve communications in and outside of the precinct.
Additional suggestions around staffing included:  Eliminating or merging the specialized units.  Utilizing “precision enforcement” and only conducting TAP patrols in response to a
complaint. Training
Officers highlighted a need for more training around the following issues:  Increased in-service/on-the-job training for improved officer understanding and retention
of SQF and trespass enforcement policies.  More hands-on and scenario-based training.  Improved field training officer program.  Re-instruction training for improper UF-250s.  Training on data integrity.217 It should be noted that the Department has implemented many of these suggestions since these focus groups were held in February of 2017.
217According to a report regarding CompStat Auditing, “Data Integrity” is part of the Data Integrity Unit (DIU) that is responsible for reviewing complaint-reporting data inconsistencies and identifying errors in all mis-classifications. https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/crime_reporting_review_committee_final_rep ort_2013.pdf
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SECTION V: JOINT REMEDIAL PROCESS DESIGN AND IMPLEMENTATION
3. Leadership Meeting Phase During the Leadership Meeting Phase, the Facilitator received reform ideas from thought leaders at community, advocacy, clergy, and policy organizations (see Figure 1). The views shared at these meetings represented the judgement of professionals often based on their direct work with individuals and communities impacted by unconstitutional stop, question, and frisk and trespass enforcement practices. The Facilitation Team convened a number of discussions with law enforcement related organizations and agencies around the country. The Facilitator hosted conference calls with the Police Executive Research Forum to discuss the Joint Remedial Process design and our initial findings. The Team also met with Laurie Robinson, Co-Chair of the President’s Task Force on 21st Century Policing, as well as with Darrel Stephens, Executive Director of the Major Cities Chiefs' Association. We also met with civil rights organizations from around the country. Figure 1: List of Participant Organizations
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ORGANIZATIONS Brooklyn Defenders
Citizens Union Community United for Police Reform (“CPR”)
Covenant House Fortune Society Legal Aid Society Major Cities Chiefs’ Association Micah Group Morris Justice Project National Association for Civilian Oversight of Law Enforcement (“NACOLE”) National Police Accountability Project (“NPAP”) Open Society Foundations Osborne Association Police Executive Research Forum (“PERF”) Police Reform Organizing Project (“PROP”)
Safe Horizon The Door
The President’s Task Force on 21st Century Policing Trinity Wall Street
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Process Development At the onset of the Leadership Meeting Phase, the Facilitation Team generated a list of previously engaged and newly referred community organizations. Previously engaged organizations were groups that we had interacted with during the Convening and Focus Group Phases of the Joint Remedial Process. Plaintiffs’ counsel in the Floyd, Davis, and Ligon cases as well as the NYPD, provided additional referrals and guidance for outreach to organizations. Next, the Facilitation Team developed a strategic outreach plan by sending emails to each organization’s executive staff requesting their participation in this Phase. If and when staff confirmed their interest in doing so, an introductory conference call would then be scheduled. During this call the JRP Team would provide the organization’s staff members with additional background and context on the JRP and the goals of the Leadership Meeting Phase. If the organization agreed to attend a leadership meeting, they would then be provided with potential scheduling dates. After the meeting date, location, and attendees were confirmed by the organization, an introductory packet was sent to all of the attendees. This packet included a brief overview of the JRP, an abridged list of focus group themes, and an open agenda to assist in guiding the group discussion. Leadership meetings usually lasted two hours. During these meetings, notes were taken and synopses were then developed. This Phase of the process took place between July 2016 and January 2017. A total of 19 leadership meetings took place.
Summary of Leadership Themes The repeated themes raised during these meetings included overaggressive policing, targeted policing, a perceived lack of accountability for misconduct at the NYPD, mistrust between communities and the Department, lack of respect by the police, the need to build policecommunity trust and address residual trauma, and the need for enhanced community
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engagement, training, accountability, and transparency. Consistent with the findings of the Liability Opinion, leadership meeting participants reinforced the view that African Americans and Latinos bore the brunt of unconstitutional SQF and trespass enforcement.
Leadership meetings with service provider organizations underscored specific issues confronting vulnerable populations such as homeless youth, victims of domestic violence, parolees, probationers, youth involved in court diversion programs, people receiving drug treatment, and members of the LGBTQ community. What follows are participant thoughts, experiences, and recommendations with regard to community engagement, police-community interactions, training, accountability, oversight, and the monitoring and evaluation of officers.
Community Engagement Addressing Harms and Mistrust
Attendees voiced concerns about the harms caused to individuals and communities by overaggressive policing and the NYPD’s SQF and trespass enforcement policies. These harms included fear, trauma, and over-criminalization; they also included the trauma caused to police officers by both the pressure to perform under CompStat and the difficulty of policing neighborhoods that resent and feel besieged by the police.
Referring to individual and community harms, one group noted from their research that participants were generally fearful of police and felt a level of harassment and victimization by the police in their communities. This fear was caused by the aggressive nature in which police were interacting with people. A member of this group further stated that people in certain neighborhoods felt that, in general, encounters tended to immediately escalate from an initial approach.
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Referring to police reform strategies, an attendee asserted that reforms viewed as an attack on officers were unlikely to be successful. Recognizing that part of the problem was an “us vs. them” mentality, the thought expressed was that until officers understood that they are part of the communities they police, and we reach a point where communities accept them as such, they will be viewed as just an occupying force. Indeed, at each of the meetings held, participants thought that one result of the NYPD’s SQF and trespass enforcement policies was that it had caused a lack of trust between community members and police officers. Either expressly or implicitly, it was also recognized that one of the main goals of the reform process is to shape policing in a way that allows these wounds to heal and trust to be restored.
Participants felt that officers often approached members of the community without either courtesy, professionalism, or respect — one attendee went so far as to suggest that the abbreviation “CPR” on police cars stood for “curse, punch, and restrain.” There was also a sense of lack of basic courtesies that indicated that the police did not view themselves as part of the community or as public servants. In this regard, attendees mentioned that phones are not answered regularly at the precincts and that upon entering a precinct, police were often unprofessional, dismissive, and demeaning to members of the community.
Several organizations shared their views on the existing harm and mistrust in impacted communities. Issues raised by participants included:
● There exists a systemic cultural barrier between police officers and the community. The community considers the police untrustworthy and the police consider the community to be rivals. Further, the militarization of police officers and their equipment is very intimidating and fosters a sense of mistrust.
● Communities are afraid of the officers in their neighborhoods.
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● Civilians are carrying emotional scars from past police conduct that are hard to heal. ● Citizens who are abused would prefer to go elsewhere than to the police for help. ● Communities feel afraid to call the police when needed. ● The community does not feel a significant investment coming from the NYPD. ● Community members are scared to speak up because they want to avoid retaliation by the
police. ● Surveys commissioned on public perceptions of the NYPD reflected that participants did
not feel as if they were protected by the police. ● Concerns that officers are engaging in racist or otherwise prejudicial practices, and that
this is harming communities. ● The dynamic between community and police is deeply adversarial.
Enhancing Community-Police Interactions Officer Trauma
It was recognized that police officers are exposed to various forms of vicarious trauma, in addition to any trauma they may experience in the course of their duties. Participants believed that the NYPD needed to have mechanisms in place to assist officers in coping with such trauma and receive training in understanding all aspects of trauma. There was a sense that officers were reluctant to seek counseling because of cultural reasons at the Department that made officers wary of admitting vulnerability. It was further explained that just as implicit biases affect how officers interact with the public, trauma can play an important role.218
Youth
218 It was posited that trauma causes hypervigilance and feelings of being threatened during an investigative encounter, which could therefore result in escalation of conflicts.
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Further concerns were raised with regard to officer interaction with vulnerable groups. Community leaders felt that officers often use fear and intimidation to get information from vulnerable individuals. With regard to youth, organizations suggested that it was particularly important for the police to approach young people respectfully and receive training on how to do so. Significantly, attendees raised concerns that young people are being stopped on their way to and from school; and that police officers in and near the schools disperse students with commands more appropriate “to cattle,” not people.
As reflected in the comments, there was a sense that policing of youth conduct was often unnecessary and unfair and further resulted in unnecessary and unfair entries into “the system.” One such example, raised by community groups, is over-policing in subway stations.
Attendees believed that there needed to be youth programs to divert kids from the criminal justice system, and that police should be invested in seeing a community flourish, not in criminalizing youth. It was further discussed, that by engaging in unnecessary SQFs, the Department had created criminal records where not necessary and that one consequence could be deportation based on an individual’s immigration status. Recognizing the importance of youth programs as a means to keep young people off the streets and engaged in positive activities, participants advocated for increasing the funding for and the number of available community programs.
In addition to these concerns, community groups raised several specific issues for consideration relating to young minority, LGBTQ, and homeless populations including issues with respect to:
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● Over-policing in subways in predominantly poor, underprivileged, minority neighborhoods.219
● Arresting people for being homeless and charging them with disorderly conduct or trespassing.220
● Targeting people and stopping them before and after going to needle exchange programs.221
● Conducting warrant sweeps, predominantly by special units, on the street, in shelters, programs, and clinics.222
● Utilizing questionable policing tactics at NYCHA and, in particular, addressed the need for locks on NYCHA doors.
LGBTQ Individuals
Several groups thought that the LGBTQ community was particularly vulnerable. As
examples, members of the community are allegedly approached or arrested “just for standing on corners,” and transgender individuals are subject to frequent and intentional misgendering.223 As
a result, community groups emphasized that members of the LGBTQ community had a strong
sense that they were consistently treated differently and inappropriately by the police.
Community and advocacy groups at several junctures raised concerns that individuals on
the street were, and are currently, being arrested for being transgender and officers are claiming
219 Participants raised concerns that transit and precinct officers team up after school and take kids to precincts or issue desk appearance tickets instead of calling the school and confirming identification. 220 Participants cited, in addition, that there is a lack of services available to those charged in such a manner because the majority of stops occur at night or on weekends. Clients are being screened before being arraigned, put in sealed envelope and only being given to plaintiff’s counsel. 221 Participants felt officers were using the heroin epidemic as an excuse for stop, question, and frisk. 222 Participants felt these sweeps are not, but should be, subject to scrutiny. Generally, it was presented that warrant searches were being used to justify illegal stops. 223 “Misgendering” was an often repeated issue. One example was that stop or arrest forms are intentionally recorded with the sex at birth, which is not only disrespectful and hurtful but means that the data on stops are not being accurately recorded.
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they were loitering and or soliciting prostitution. Attendees claimed that transgender people typically get arrested just for standing on corners, and suggested that loitering laws be carefully scrutinized.224 Participants suggested that stops depend on factors like how you are dressed, and that for transgender people interactions with officers often escalate from a bad stop to an arrest. Participants brought up several additional issues related to transgender individuals:
● Transgender individuals suffer the worst level of verbal abuse and body language from inmates, civilians, and officers.225 Participants suggested that police ask individuals what gender pronoun they prefer and whether they prefer a male or female to pat them down.
● Members of the transgender community are often stopped by police officers and prosecuted for loitering with the intent of prostitution. This leads to a phobia in the nature of the stop, wherein individuals feel like they are being targeted because they do not fit the “gender norm.”
● Officers use derogatory and condescending language toward LGBTQ individuals and do not respect their personal space. It was recommended that a program be established where advocates are based inside of
the precincts. Those advocates could inform individuals from vulnerable populations about what is going to happen with a case and assess safety concerns. Further, because the advocates would be at the precincts, this would give officers a firsthand look at how to work with these groups, engendering a different perspective that would improve police officer interactions with vulnerable groups.
Building Trust
224 One issue raised was that waiting lists in shelters for transgender individuals leaves them with few options. 225 It was stated that if someone’s identification, such as a driver’s license, did not match the individual due to him/her/they being transgender, officers would commonly use the pronoun adequate for the person in the identification picture. For example, “Where are you going Bob?” to a person who now identifies as a female. This, of course, is another example of misgendering.
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Engagement clearly means more than education. In this regard, many groups viewed community engagement as a means to build trust between officers and the community. Several groups made specific suggestions for officer engagement with impacted communities. Among these ideas were suggestions for officers to visit churches and community organizations. Participants felt such involvement would help officers become stakeholders in the community. Groups suggested that officers go to the community that they will patrol for the purpose of cultural adaptation; helping them to understand the difference between normal and adversarial interactions in the area. Likewise, many groups believed that police officers should work to become better known by community members. In fact, participants discussed an initiative in which five community officers each choose a youth from the community to build a relationship with him/her. They believed such a process humanizes youth from the community, and officers develop pride in the youth and their development.
Most critically, participants stressed the need for continued and proactive community engagement directed at restoring trust between the citizens and the police. Many emphasized that the public was not fully aware of the mandated reforms or the status thereof.226 One issue of particular importance was that there was confusion over whether stop and frisk was still legal after settlement in Floyd. With this confusion, attendees noted, the approach of an officer is viewed with even greater suspicion and fear. As a result, there was a call for greater community outreach and education; including school based outreach and education on citizen rights. Some thought that information should be disseminated on a precinct level, including at community meetings. Others recommended community surveys to be reviewed, analyzed, and evaluated at
226 Participants stated that precinct-level information is not being disseminated and that there is insufficient information being provided at the community meetings
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the community level. It was additionally recommended that feedback mechanisms be developed
where citizens can report back to the people policing them.
Additional community education and engagement recommendations included the need to:
● Collaborate with community organizations in the development of public education efforts.
● Educate the community about their rights when engaged or stopped by a police officer.227
● Include the Department of Education and the private sector as part of the education process.
● Establish a precinct-level liaison so that there can be shared learning between officers and communities.
● Establish a community-police commission. Such commissions are less threatening to police officers because they do not have the ability to look into allegations of misconduct.
● Increase funding for community programs and efforts toward community engagement.
● Make community outreach/engagement mandatory for every police officer.
● Require the Commissioner to go into communities and listen to stories in a controlled, neutral environment.
● Require commanding officers to meet on a regular basis with people who are critical of them.
● Send police officers to schools and after school programs to engage with youth so that first interactions with police officers are more positive.
● Improve participation by young people by (1) making sure that they are informed about community meetings and (2) holding independent community meetings that cater to youth.228
● Improve advertisement of Community Council meetings.229
227 A youth participant of a drop in center believed that fear in these interactions can be lowered by providing community members information about their rights. It was stressed that if youth understood their rights better there would be greater calm during police-youth interactions. 228 Participants explained that even when young people are aware of meetings they are scared to attend and speak about their experiences. Accordingly, CPR recommended independent community meetings scheduled for times when young people could attend; at places young people feel comfortable; that provide multiple ways to have a voice; and that include a youth delegate as the voice of the community.
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● Improve the relationship between 1 Police Plaza and the local Community Boards; a representative of each organization should attend the Community Council meetings.
● Establish a clergy advisory council in each precinct that would be able to meet with the commander and discuss issues occurring in the community and any policing practices. Inclusive Community Training Concepts Participants believed that lasting change would only be possible with cultural change
within the NYPD. Consistent with academic scholarship, many participants stressed that cultural changes require buy-in throughout the organization, including leadership, managers, and supervisors. Many thought that training was a means to accomplish that goal. However, as a participant put it, without organizational buy-in, “culture eats training for lunch.”
De-escalation The need for de-escalation training was raised by participants from a number of
community groups. Participants felt that officers need to receive training on how to reduce stress in encounters by using less intimidating tactics and interacting more positively. Participants also recognized the need for specialized training to deal with youth, members of the homeless population, people with substance abuse issues, members of the LGBTQ community, and people with mental illnesses. Such training, they asserted, would provide officers with various strategies to employ greater compassion and restraint, which likely would have the effect of making interactions with community members more positive.
Cultural Competence As noted in the context of community engagement, there was a recognized need for
officers to learn more about the communities they serve by becoming more engaged in those
229 It was also suggested that the precincts ensure exact information about the meetings and that the precinct website include updated information.
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communities. For instance, it was suggested that officers should receive training specific to the communities they serve.230 Dovetailing with these ideas, community service organizations that cater to particularly vulnerable groups believed officers should receive field training at these types of organizations — whether through internships, meetings, or otherwise — to learn more about the constituents and the positive ways in which professionals interact with them.231 Participants from several organizations suggested that the NYPD train officers on how to interact with diverse groups, including vulnerable people and people who have experienced different types of trauma, people with disabilities, and people with mental illnesses.
Insight into Youth Behaviors Several groups shared specific suggestions for officer training with respect to youth and
their behavior. Participants believed that officers were not sufficiently trained to recognize the body language of young people. In addition, there was an overall concern that officers lacked sensitivity when they approached traumatized teens. Participants suggested that officers should be more aware of how they are perceived by teens, they should be more aware of the impact their uniforms has on community members, and, generally speaking, something should be done to change the perception youth have about officers.232
230 Participants highlighted the need for the Department and officers to communicate more with the staff of community organizations with the intention of building a relationship that could assist officers with techniques/strategies for how to approach individuals with, for example, mental health issues. 231 This will allow officers to meet community members experiencing particular difficulties and see how experts interact with them. Officers will then get a sense of what it is like to interact with victims and communities in less threatening and intimidating ways. Based on past experiences with such programs on a small-scale, participants reported that officers and recruits were more likely to be empathetic with community members. 232 One recommendation was to require empowerment workshops in which youth talk to police officers: Members of the community organizations would first need to make sure that the youths are ready or able to share their stories, and thus it was advised that a small group be tested first and, only if ready, taken to the academy or a neutral space for the empowerment workshop. It was suggested that in this context, police officers could work with youth and play theatrical games.
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Participants felt it was imperative that officers learn how to “read” youth, and asserted that trainings should assist officers in cultivating effective trauma response techniques and strategies.233
Additional recommendations for training included the need to:
● Increase training on inclusion, diversity, and cultural competence. ● Provide training on implicit bias. ● Link bias training to accountability measures. ● Require recruits to attend a Community Council meeting while in the academy. ● Mandate continued education while in the field after the academy. ● Test for competency.234 ● Require retraining for current officers. ● Train officers in the law. ● Require prospective officers to have taken a set curriculum of courses. ● Create a task force of community groups to provide input on police training.
Accountability and Oversight Clear Rules and Consequences
Thought leaders discussed the need for clear standards and/or a code of conduct, as well as a system to ensure that officers are held to those standards. They raised the need for meaningful consequences for misconduct. This included increased disciplinary severity for repeated unlawful stops and frisks, and supervisor accountability for individual officers engaging
233 At this point, one participant stated, youth are in survival mode — “police officers are not our friends, they are our enemies.” 234 Citizens Union recommended evaluations after six months.
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in pretextual stops. In addition, participants thought that there should be police accountability at the precinct level.
Participants also thought that outside of litigation there was a lack of effective mechanisms for the public to hold the police accountable. Community groups suggested that people need a better way to make complaints about police misconduct because the Civilian Complaint Review Board (“CCRB”) and the Office of the NYPD Inspector General are not trusted by community members. Groups suggested that rather than going through the CCRB, community members should be permitted to lodge complaints directly at the precinct. Likewise for public housing residents, there should be a complaint process through NYCHA to ensure that appropriate changes or discipline is imposed on officers who work in public housing.
As reflected in the above comments, while the CCRB is meant to provide an avenue for the public to hold the police accountable, attendees reported community reservations about the CCRB based on several cited issues. For example, participants stated the following concerns: the CCRB has a bad reputation in certain communities; information from the courts and the CCRB is not shared with complainants; there is a lack of independence and transparency at the CCRB; the CCRB does not adequately pursue complaints and that when pressed the CCRB states they are understaffed and the NYPD says the same; and constituents fear that officers would retaliate when a complaint has been filed.
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Citizen Union has proposed various reforms to the CCRB in its white papers.235 In addition, participants said that the community should have input into how the CCRB functions and that the entire process should be public, from the smallest to the most severe violation.
Recommendations included: ● Develop a code of conduct and hold everyone to those standards. ● Ensure meaningful, timely consequences for violations of the patrol guide, policies, and
rules. ● Impose discipline on officers who fail to take required trainings. ● Ensure consistent and fair discipline.236 ● Require accountability to the public at the precinct level.237 ● Hold officers personally accountable for pretextual stops. ● Ensure officers complete paperwork in each instance in which it is required and address
when it is not completed. ● Support officers who intervene when needed and discipline those who do not. ● Appoint a special prosecutor for police misconduct cases.
Performance Tracking and Evaluation Several organizations recognized the need for more robust performance evaluation and early intervention systems. Participants thought it was important that any feedback loop include, among other things, information from the courts regarding suppression and credibility rulings. It
235 See Appendix A. 236 Participants stated that concrete consequences should include loss of pay, loss of vacation days, and demotion, and that command discipline should go on an officer’s record. 237 If officer misconduct is ignored in the precinct, supervisors, managers, and the commanding officer should be penalized.
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was also recommended that any tracking system be robust enough to track patterns, from officers working together, to squads and precincts.
In addition to traditional internal mechanisms for supervision, an external monitor and/or independent oversight structures were also recommended. Participants suggested a permanent structure in which civilians from directly impacted communities, support and advocacy organizations, and police reform organizations, develop metrics to review whether the NYPD is in compliance with mandated reforms based on those metrics. Likewise, a member of a police reform organization suggested that there be an early intervention system which is independent of the NYPD and is tasked with monitoring alerts and outcomes. Participants further suggested random audits of the Department to ensure compliance.
Recommendations for NYPD monitoring and evaluation included: ● Develop early intervention systems to detect officers engaging in problematic conduct. ● Create a feedback loop between the courts and the Department. When the court makes a
decision in a case, it should get back to the involved officer’s supervisor.238 ● Track patterns, such as officers that are working together and engaging in misconduct
and/or being sued, as well as within squads and platoons. ● Develop new performance metrics and measures of evaluating police officers that include
a system of dynamic accountability for ranking officers and methods to evaluate them
238 A member of a police reform organization pointed out that the District Attorney had a considerable amount of records about poor policing that do not end up at the Department or in the officer’s file. In this regard, it was suggested that a number of declinations of prosecutions should trigger an investigation.
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based on deference to the law, procedural justice, de-escalation, and community engagement.239 ● Develop metrics that address an officer’s problem-solving abilities. ● Include community feedback in the evaluation and promotion process. ● Include efforts to engage the community in evaluations of precincts. ● Use neighborhood surveys to assess levels of community safety and satisfaction, and hold local commanders accountable for being responsive to community concerns.
Open Data and Documentation Open data and documentation were seen as vital to educating the public and ensuring that the NYPD was accountable to the community. Several groups emphasized the vital role that data plays for studying trends in police behavior. Furthermore, participants stressed the importance of documenting stops. Participants from these groups thought that the NYPD should be required to record Level 1 requests for information and Level 2 encounters and consensual searches. One reason for this was the sense that members of the public did not feel free to leave at Level 1 or Level 2 and/or because intimidation and harassment can occur at Level 1 and Level 2 even if a person has not been officially stopped. Furthermore, such records would permit future study on how and with whom police officers are interacting. And because homeless individuals, youth of color, LGBTQ individuals, and people with substance abuse problems are very frequently the subject of stop, question, and frisk, police should record on the stop form that the individual stopped falls within one of these groups.240
239 Participants suggested that officers do not receive credit for doing good things and that performance assessments should not be based only on punitive interactions (such as number of stops). Likewise, participants thought that if an officer’s positive conduct was rewarded, other officers would follow suit. 240 Participants suggested recording this type of demographic information on /in whatever form(s) of documentation the NYPD employs.
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Leadership executives highlighted that for oversight functions to be productive, it is critical that all police-citizen encounters be documented. Participants suggested that, in reality, neither police officers nor community members can fully distinguish between Level 1 and Level 2 encounters and Level 3 stops. Further, participants suggested that many Level 1 and Level 2 encounters quickly escalate to Level 3 stops and searches, and to the extent an encounter rises to a Level 3 but is categorized as Level 1 or Level 2, these encounters would be unaccounted for (because only Level 3 stops currently require documentation). Participants also suggested that documenting all encounters would bring to light targeted harassment, which show patterns of officers engaging with people who do not have a criminal record and who are not doing anything illegal.
In addition, some participants posited that under the current criminal procedure law in New York,241 as applied, there is no discovery process for ascertaining the issues connected with a stop until the beginning of a trial. The absence of such discovery creates challenges to determining a police officer’s credibility, and in cases of an unconstitutional stop there is no way for this information to be shared with the court. Because of this lack of information there are no opportunities for defense attorneys to present issues to the court in advance of a trial; and while these issues could be presented at trial, trial only occurs in a small percentage of cases as most cases result in a plea agreement.
Thought leaders provided several additional considerations for documentation and access to data. Community groups recommended that the NYPD:
241 See CPL Article 240.
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● Record accurate data for encounters and stops for gender and race. With respect to LGBTQ status, permit individuals to self-identify in order to have more accurate statistics.
● Provide “stop” receipts. Receipts can be helpful for ensuring geographical accountability at the precinct level and increasing transparency about Level 1 and 2 encounters.
● Require officers to provide identifying information in the form of a business card with respect to all citizen-police encounters.
● Develop a smartphone application that allows individuals to anonymously report police interactions. It was thought that an application could serve as a platform to track trends, as well as to provide a voice for individuals who have been stopped. Further, it was believed that the app could serve as a basis for partnerships between communities and precincts.
With regard to open data, thought leaders recommended that the NYPD: ● Make the patrol guide, training manuals, and rules governing officer conduct free and accessible to the public. ● Improve the NYPD’s website to consolidate and clearly organize information for the public. Make quantitative data dynamic and enable it to be compared and searched with consistent categories and not only in pdf form. Also, ensure that narrative data is well organized. ● Publish stop and frisk data online. ● Make officer disciplinary records public, at least in cases where complaints are substantiated or where there are multiple instances of misconduct by the same officer.242 Create a searchable record on accountability.
242 The Legal Aid Society has submitted a white paper contending that the City should change the way it interprets Civil Rights Law 50-a to permit disclosure of summaries of misconduct that have been substantiated through investigations by the Internal Affairs Bureau or the CCRB. This white paper can be found in Appendix A.
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● Require the CCRB to provide the public with aggregate information about both the police officers and complainants involved in complaints, which include race, ethnicity, age, gender, and for officers, years on the force.
● Require the CCRB to issue a report listing precincts or specialized units with the highest numbers of CCRB complaints, substantiated complaints, and incidents of being named defendants in civil lawsuits alleging police brutality.
● Publish a public report regarding lawsuits and rulings regarding suppression of evidence and findings that officer testimony is not credible.
● Enhance data sharing by requiring the New York City Law Department to issue quarterly reports to the City Council, Comptroller, and CCRB detailing the number and disposition of civil actions filed against the NYPD, and requiring the comptroller to submit information regarding civil legal settlements in all cases to relevant agencies.
● Support the passage of the Right to Know Act: inform individuals subject to a stop or a Level 2 encounter of their right to refuse a consent search.
● Create a permanent structure in which directly impacted communities are able to see that the NYPD has complied with independent oversight. This structure should be comprised of people living in impacted communities, organizations representing impacted communities, and representatives of police reform organizations.
● Require police to turn over stop reports to defense counsel. Body-Worn Cameras
While many groups were in favor of body-worn cameras (“BWCs”), some were skeptical that BWCs would necessarily be effective tools to ensure transparency and accountability. There was also concern that without transparency and accountability, BWCs could be used as a surveillance tool.
Some participants believed that access to BWC footage should be maintained by a third party government oversight agency (perhaps the CCRB or the Office of the Inspector General).
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There was also a call for greater community involvement in developing the policies governing the BWC pilot as well as any program that is implemented as a result. This included involving community members, advocates, and policing experts in the evaluation of the program.
Specific recommendations were also made regarding the BWC program, including a clear process for filing complaints, a clear written policy that states the consequences for officers who fail to comply with the BWC policy, establishing a retention policy for video footage, and prohibiting officers from reviewing footage before a written complaint or arrest report has been submitted. Additional suggestions by thought leaders included that the NYPD:
● Require BWCs to be activated at all times. ● Make BWC footage accessible to lawyers and civilians. ● Limit preservation of footage to that which is associated with some degree of misconduct. ● Ensure footage be used for accountability, supervision, and training — i.e., officers can
look at the footage of an encounter and see how they did and how they could do better — and not for accusations or as a “gotcha” tool. ● Notify civilians whether cameras are on or off. ● Require District Attorneys to review videos to determine if arrests are done correctly. ● Ensure that, in cases of alleged misconduct, officers are required to give a written and signed statement before being granted access to video footage. ● Maintain videos for a lengthy, but specified time period before purging.
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 201 of 312 SECTION V: JOINT REMEDIAL PROCESS DESIGN AND IMPLEMENTATION
4. Community Forum Phase The Community Forum Phase of the Joint Remedial Process was established to solicit additional feedback from impacted community members regarding changes to the NYPD’s practices of stop, question, and frisk and trespass enforcement. Guided by the Remedies Opinion, the Facilitation Team was charged with conducting a series of “town-hall type meetings” with the mission of providing a broad-based platform for community members to participate and provide suggestions for reform. The aim of the forums was two-pronged — to bring greater awareness to the public about the litigation and the Immediate Reform effort, as well as to solicit additional suggestions concerning the types of remedial measures that the public deemed necessary for meaningful change. In order to build out the forums, the JRP convened a number of meetings with community-based organizations from the Relationship Building Phase to assemble the
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Community Forum Planning Committee (“CFPC”). The mission of the CFPC was to ensure that communities most directly impacted by the NYPD’s unconstitutional SQF and trespass enforcement practices were provided an opportunity to share their perspectives on potential reform measures which may be mandated by the Court to bring the NYPD into compliance with the Fourth and Fourteenth Amendments of the U.S. Constitution and New York law. These reforms, however, must be no broader than necessary to bring the NYPD into constitutional compliance.
Forum outreach was direct and intentional, targeting those community members most affected and at-risk of being stopped by police without reasonable suspicion, both in the street and in public housing. Conversations with several stakeholders, including the JRP Advisory Committee, plaintiffs’ counsel, community organizations, clergy, and the New York City Law Department, informed the JRP Team’s creation of the introductory packet to provide host organizations with a basic structure for program development.
In collaboration with the community anchor organizations, the Facilitation Team successfully conducted a total of 28 forums during the Community Forum Phase, reaching almost 1,800 impacted community members throughout New York City (see Figure 1). Of the 28 forums, nine took place in Brooklyn, eight in Manhattan, six in the Bronx, four in Queens, and one in Staten Island. Several overarching themes were extracted around transparency, accountability, evaluation, and police-community relations through a qualitative analysis of forum data and observations.
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Figure 1. List of Joint Remedial Process Forums

Date and Time
Thursday, October 13, 2016 6:00 PM to 9:00 PM
Saturday, October 15, 2016 1:00 PM to 4:00 PM
Monday, October 17, 2016 6:00 PM - 9:00 PM
Thursday, October 20, 2016 6:30 PM - 8:30 PM
Wednesday, November 2, 2016 4:30 PM - 7:00 PM
Thursday, November 3, 2016 6:00 PM - 8:00 PM
Wednesday, November 9, 2016 6:30 PM - 9:30 PM
Saturday, November 12, 2016 2:00 PM - 4:30 PM
Monday, November 14, 2016 5:00 PM - 7:00 PM
Tuesday, November 15, 2016 7:00 PM - 9:00 PM
Wednesday, November 16, 2016 6:00 PM - 9:00 PM
Thursday, November 17, 2016 6:00 PM - 9:00 PM
Friday, November 18, 2016 7:30 PM - 9:30 PM

Anchor Organization
West Harlem Perfect Peace Ministry
West New Brighton True 2 Life - Cure Violence
East Harlem Perfect Peace Ministry
Red Hook Red Hook Initiative
Sunset Park Atlas DIY
Richmond Hill DRUM
Bedford-Stuyvesant MXGM
West African Yankasa Mosque
Black, Latino, & At-Risk VOCAL-NY
South Bronx Morris Justice Project
Southeast Bronx BCCJR
Public Housing Residents FUREE
South Jamaica Life Camp
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Attendees 62 39 69 50 44 55 40 70 35 65 80 25 75

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Saturday, November 19, 2016

North Bronx

26

11:30 AM - 2:00 PM

BCCJR

Monday, November 21, 2016

LGBTQ

130

6:00 PM - 9:00 PM

The Anti-Violence Project

Tuesday, November 22, 2016

Latino/a

35

5:30 PM - 8:30 PM

NMCIR, LatinoJustice

Wednesday, November 23, 2016

South Bronx

68

6:00 PM - 8:00 PM

Lead By Example & Reverse the Trend

Saturday, November 26, 2016

Jackson Heights

40

2:00 PM - 4:30 PM

Yankasa Mosque

Monday, November 28, 2016

East New York

99

6:00 PM - 8:00 PM

Man Up, Inc.

Tuesday, November 29, 2016

Bedford-Stuyvesant

60

6:00 PM - 9:00 PM

Center for NuLeadership

Wednesday, November 30, 2016

East Flatbush

115

6:30 PM - 9:30 PM

Flatbush Village

Thursday, December 1, 2016

Washington Heights

177

4:00 PM - 7:00 PM

Police Athletic League

Friday, December 2, 2016 6:00 PM - 8:00 PM

Far Rockaway

50

Rock Safe Streets

Saturday, December 3, 2016

Bushwick

67

1:00 PM - 4:00 PM

El Puente

Monday, December 5, 2016 5:00 PM - 7:00 PM

Coney Island

16

Brooklyn Community Services

Tuesday, December 6, 2016 5:00 PM - 7:00 PM

Youth

85

MRNY , Urban Youth Collective, etc.

Thursday, December 8, 2016

Lower East Side

14

6:00 PM - 8:30 PM

Joint Remedial Process

Friday, December 16, 2016 5:00 PM - 7:30 PM

Southeast Bronx

77

Lead by Example & Reverse the Trend

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Community Forum Process Development In June 2016, the Facilitation Team began preparations for the Community Forum Phase of the Joint Remedial Process. As part of the multi-phase design of the JRP, our intention was to gather community input for potential reforms at a broader scale than had been conducted in the focus groups. Our purpose was to develop large public events, providing direct access to impacted community members in order to glean additional reforms and expand upon ideas suggested to us in other phases of the project. As such, the community forums were undertaken not merely as listening exercises, but as opportunities for community members to directly engage with the City and justice system in a candid and constructive way.
In advance of the planning and implementation of the forums, the Facilitation Team undertook several critical steps to ensure that the design and development of forums would be relevant for the target audience. In doing so, we decided that consultation with many of the city officials and grassroots organizations that had assisted us with populating focus groups would be crucial to the perceived legitimacy of the process. In advance of the coordination of such meetings, several preliminary discussions about the forums were held with the Advisory Committee. We collaborated with the Committee, which was comprised of both police and community representatives, to discuss key process considerations and ensure the success of the forums.
In January and February of 2016, two steering meetings were held with the Advisory Committee to discuss the process and design of the Community Forum Phase. In said meetings, we worked to flesh out critical components of a forum for gathering feedback from the community perspective, as well as thoughtful considerations and suggestions from NYPD
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representatives. These baseline ideas assisted us in brainstorming the development of forums, including outreach to organizations, neighborhoods, and specialized communities.
These discussions were followed by a series of internal meetings to discuss the goals and objectives necessary to reach a desired end result. Therefore we began by exploring the following five questions:
1. How do we ensure that it is a community process? 2. How can we ensure that we are tailoring forums to the issues of distinct communities? 3. How do we ensure that we get the input we need? 4. How can we foster meaningful dialogue between and among attendees? 5. Should police officers be invited or otherwise involved?
First among these considerations was the formal style of the meetings. It was critical, for the enhancement of public interest and involvement, that the meetings be both engaging and productive, and thus the Facilitation Team placed considerable thought into how the events should take place. Given the historical distrust in many of the communities we were seeking to engage, we understood that the forums could be met with skepticism and apprehension.243 So then the question became, how do we ensure that communities would feel safe, heard, and that they were contributing to meaningful change?
The proposed answer to these questions was to allow natural leaders in affected communities drive the focus and direction of the forums. Our plan was to consult organizations and advocates about best practices for recruiting and engaging traumatized communities, while also collaborating with the Department to ensure that organizations who would engage and challenge the Department were represented in that sample. Through a purposive design along
243 The apprehension mentioned above had been evidenced by the legacy effects our team encountered with individuals and activists in the focus groups and advisory meetings.
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with feedback from the organizations and advocates, we decided to create a model to guide the development of forums that would be led by the community with guidance from the Facilitation Team. Our next process question became, how do we ensure that forums are tailored to the issues of distinct communities? We discussed among stakeholders the option to customize forums through the steering and coordination of anchor organizations.244 As we wanted to acknowledge the unique concerns of different communities, we decided to conduct diverse forums, which would grant anchor organizations flexibility to develop the engagement strategies most suitable for their respective community. We believed these strategies would be reflective of the varied circumstances of the hosting community, and as such were paramount to the task of ensuring everyone an opportunity to participate.245
A primary issue with developing a universal format for community forums is that communities are diverse, with unique issues and concerns. In fact, even how the term community is defined is distinct among different groups.246 In order to create forums that would resonate with participants and speak directly to their concerns, it was decided that forums should be customized to the unique issues of each group and community. We decided that in order to make these discussions more open and cooperative, it would be best to forgo pre-set questions as used in the Focus Group Phase, and instead develop an open discussion format to broaden the possibilities for suggestions. We created basic parameters to guide organizations in developing forums most befitting the goals of the JRP.
244 “Anchor” was the label used to address and refer to organizations that partnered with the Facilitation Team in the development and hosting of community forums. 245 See Remedies Opinion, 959 F. Supp. 2d at 686. 246 See Section VIII: Process Observations for additional thoughts under Finding a Common Language for Discourse.
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The next question to address was how to best foster dialogue between and among attendees of the forums. In the Remedies Opinion, the Court appointed a Facilitator to conduct a series of “town hall type meetings.” While town halls are a traditional format for community feedback, the Facilitation Team decided that such a format would not be most effective for engaging community members in providing suggestions for change. Instead, we opted for a dialogue based model, leaning toward the use of small group breakout sessions to gather more robust ideas for the Facilitation Team’s consideration. These discussions were designed to be confidential, inclusive, and to provide expanded opportunities for feedback.
The most challenging concept to contend with was the question of police involvement. It was at this point that the Team reached a significant fork in the road. Would it be appropriate to attempt to foster dialogue between civilians and police? At the time, it was believed to be in the best interest of the JRP to field such a question with stakeholders from both the community and the Department. The decision to field questions with community groups ultimately lead to the decision to develop a forum planning group.
In March of 2016, the Facilitation Team began the process of collaborating with several community-based organizations to promote and design forums citywide.
Cultivation and Design of Community Forums Beginning in April 2016, the first of a series of planning meetings was convened to formulate strategies for the development of public forums. In collaboration with the Advisory Committee, as well as referrals from the Mayor’s Office of Criminal Justice, the Mayor’s Office of Community Affairs, the Black, Latino/a, and Asian Caucus of the New York City Council, and Communities United for Police Reform (“CPR”), the planning committee was developed in
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an effort to gain stakeholder consensus on the design and implementation of the forums. The key questions for the Community Forum Planning Committee (“CFPC”) were; what should the forums look like, who should be there, and what other purposes could or should these events serve? The questions were of great significance for building out what would become a number of events occurring in each of the five boroughs.
Employing Community Expertise
During the CFPC, it was decided that the JRP would collaborate with several organizations to “anchor” community forums. We sought to work with groups that were both critical of and cooperative with the NYPD to ensure a fair and balanced representation of ideas from community members. These organizations would ultimately take the lead in the overall coordination and implementation of forums for each specific community, with the JRP Team providing resources and support. In order to cultivate anchors for the forums, we began coordinated outreach efforts to organizations who had participated in the Convening and Focus Group Phases, as well as through the networks of CPR, the Mayor’s Office of Criminal Justice, the Mayor’s Office of Community Affairs, and Center for Court Innovation.
As part of the Facilitation Team project management efforts, extensive outreach to grassroots and community-based organizations was conducted. These are organizations that had for many years worked at garnering the trust and confidence of directly impacted community members. Recognizing the essential influence and advocacy of these representative organizations provided the Team a tacit level of confidence that the forums would be planned thoughtfully. It would also ensure that those directly affected by unconstitutional SQF practices and trespass enforcement would be present to participate in the forums.
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Setting Basic Standards In consultation with the CFPC, it was decided that a set of guidelines for the forums
would ensure that the public discussions netted constructive input. First among these parameters, was a commitment to neutrality. We believed it was important to maintain a reasonable level of impartiality in the promotion of the forums. As well, each forum was to include facilitated breakout sessions. These sessions were facilitated through the organization or with the assistance of trained facilitators working with the JRP Team. Facilitators were required to develop a written report of small group findings. Ultimately, the organizers of each community forum were asked to provide a record of the event which included the location, date and time, number of attendees, and a copy of the program.
It was very important to the community groups, plaintiffs, and the Facilitation Team alike that these events were culturally responsive, relevant, and community based. Having agreed with the idea of small group breakout sessions, community groups felt it was important that anchors prime the conversation by acknowledging the local history and context of SQF and trespass enforcement for the distinct communities we were to engage.
The agreement was that the forums should provide a brief history and context of historical grassroots organizing efforts to address police reform in New York City that took place before the Floyd litigation. As such, the CFPC agreed on the development of an educational segment at forums that would precede small group dialogue. In order to foster a level of consistent discourse, it was decided that the educational segment should include a short video presentation and accompanying infographic. The video and infographic provided a historical overview of the litigation including a framing of the problem, current efforts, and a call to action. After suggestions from participants, it was decided that the video and infographic would be
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produced in collaboration with community organizations and the Black, Latino/a, and Asian Caucus of the New York City Council and provided to attendees at each forum.
Areas of Non-Agreement The CFPC was divided on two key issues: police participation in the forums and
uniformity across the forums. During early discussions with community stakeholders, the question of police presence was fraught with controversy. While some community groups were open to the idea or saw the necessity for police involvement, other groups strongly opposed it. Those organizations interested in collaboration would become critical in opening up discussions about how to engage community members with police present.
Rather than challenge any group’s positioning on how best to engage its community, it was decided that the best course of action would be to extend police participation as an option. Though we knew police involvement would not be a viable solution for all communities, there was a healthy minority of organizations and activists who not only thought it would be constructive to engage police, but thought it was necessary. The ultimate decision on inclusion would be left to the discretion of the anchor organization.
The Remedies Opinion states that part of the Facilitator’s mandate is to gather input from those who are most affected by the NYPD’s use of stop and frisk . . . . 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.247
247 959 F. Supp. 2d at 687.
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As such, the JRP Team developed an agenda for each community forum in consultation with CPR and other groups interested in hosting such forums. It is true that at the first community forum some youth left because of the overwhelming number of police officers who were present. Following that forum, a request for fewer officers at future forums was made. This request only applied to host organizations that were interested in having police present at their community forums.
In order to facilitate forums involving organizations who did not want police to be present, the Facilitator supported a proposal by plaintiffs’ counsel to allow CPR to have the City fund the hiring of a consultant to coordinate what would be termed “Plaintiff Assisted Forums.” The Facilitation Team coordinated with the consultant in the implementation of these Plaintiff Assisted Forums sponsored by CPR affiliated organizations, without a police presence.
There were, however, several organizations under the CPR umbrella, whose forums were uniform in nature. The purpose of uniformity, as discussed, was to ensure that a consistent message was captured. Seemingly as a direct retort to the question of police involvement, many of these groups rejected the notion of diverse forums and called for a halt to the forum development process. Considering the time constraints placed upon the JRP by the Court, halting the forum development process was not feasible. As the feedback process was designed to be broad and rich, we were unable to reach consensus on such issues.
As discussed, the Facilitation Team felt it was important that individual anchor organizations have the right to decide whether including the NYPD in their community forums would be right for their community. As also discussed, after a series of negotiations with plaintiffs’ counsel in the Floyd, Davis, and Ligon cases, a mutual agreement was reached that the
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forums would be developed along two tracks — one set spearheaded by groups identified by plaintiffs’ counsel, known as “Plaintiff Assisted Forums,” and the other set coordinated by the Facilitation Team.
Criteria and Methodology One of the objectives of the community forums was to create safe spaces for dialogue, where different community stakeholders could engage in problem-solving and sharing ideas. The intention was to gather concrete suggestions for reforms, build partnerships, increase local participation, and support the community in contributing to the content of the Final Report. The intended audience for the forums included directly and indirectly-impacted community members, advocates, clergy, the NYPD, and local leaders. In order to ensure that we received input from impacted community members, we emphasized the development of forums within priority geographic areas. Though we were not beholden to our target areas, it was important that forums were held in neighborhoods representative of the individuals most affected by unconstitutional SQF and trespass enforcement policies.
Neighborhoods were purposively sampled based on multi-modal criteria which included focus group data, areas designated as priorities during earlier Phases of the JRP, and communities that lacked sufficient participation/responses during our Focus Group Phase. In order to select target areas, the Facilitation Team developed a logic model which compared priority precincts from the NYPD’s SQF and trespass enforcement data for the Floyd and Davis cases, which were then prioritized for forums (see Figure 2).
In addition to priorities based on NYPD sampling data, the JRP Team fielded additional suggestions for targets in consultation with plaintiffs’ counsel. Utilizing their understanding of
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 214 of 312 areas in which their clients had experienced a number of stops, we garnered three additional priority areas. In total, the priority matrix highlighted 14 geographic areas for forums — East Harlem, South Bronx, Southeast Bronx, East Flatbush, East New York, Brownsville, Bedford Stuyvesant, Rockaway Beach, Far Rockaway, South Jamaica, West New Brighton, Lower East Side, Jackson Heights, and Washington Heights. Of the 14 neighborhoods, nine were labeled as top priority target areas — i.e., the Team would make the greatest push at developing public events in these top priority areas.248 Figure 2. Community Forum Logic Model
248 In the early part of the Community Forum Phase it was presumed that there would be a maximum of 10 forums to take place throughout the City. With the massive amount of interest we received from organizations, we expanded the number of forums to fit as many affected neighborhoods as would be needed to get a broad representation of communities.
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A multi-layered geographic model of priority precincts was developed in conjunction with the logic model to guide the Team in tracking forums and saturation levels of distinct communities around the City.249 The graph included layers for the Davis and Floyd priority precincts as identified during the Focus Group Phase, as well as NYPD Neighborhood Policing precincts where recent Neighborhood Coordination Officer (“NCO”) programs had been rolled out (see Figure 3). We were interested in determining whether affected communities in NCO precincts were both aware of the NCO program and had a vested interest in collaborating for the forums. Figure 3. Priority Precincts by Stakeholder Group
In order to expand access to affected communities, the Facilitation Team made a concerted effort to prioritize geographical target areas which we had not been able to access, or achieve saturation in, during the Focus Group Phase. These areas were prioritized for the forums, though organizations were not required to conduct forums only in these areas. Over time it became clear that geographic areas could not be the only basis for community forum sampling.
249 See Figure 4 for completed composite map.
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So in consultation with plaintiffs’ counsel, it was agreed that forums should also be developed for specialized populations, based on demographics not necessarily concentrated in a geographic location. These specialized populations included youth, at-risk adults, Indo-Caribbean communities, LGBTQ communities, public housing residents, and the West African Islamic immigrant community.
Community Engagement Strategy Involving community stakeholders in the development of community forums was a
resource intensive process, which required a great deal of planning on the part of the JRP Team. As we knew the cultivation of anchor organizations and participants for the forums was critically significant to the design and outcomes of the forums, we then developed a clear strategy for engaging such affected groups. Utilizing the social capital of community-based organizations, methods were developed to foster participatory decision-making to mobilize communities.
To effectively gather input from community members, several considerations were incorporated for organizations interested in hosting JRP forums. To facilitate community organizations in the process of developing forums, we created an introductory packet containing pertinent materials to provide guidance in planning and budgeting, along with promotional materials.250
Critical to the strategy for engaging community members was the cultivation of support staff that were experienced with translating residents’ priorities, managing group dynamics and conflict, while also developing authentic relationships. For this reason, we recruited facilitators from the community mediation field who would lead these small group discussions. These
250 See Introductory Packet Materials in Appendix F.
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facilitators were required to attend an orientation session where they were provided concise guidelines and expectations for engaging community members in a solution-oriented discussion about potential reforms.251
Along the Plaintiff Assisted Forum track, a planning consultant assisted the organizations and individuals tapped for involvement within the CPR network. The CPR organizations developed and promoted a digital campaign titled “Our Communities, Our Solutions.” This campaign targeted special interest groups and highlighted the history of organizing behind several significant police-related litigations. Forums under this track engaged participants who were primarily from CPR’s constituent groups, using predetermined talking points, and a universal engagement design.
Planning and Program Development We next embarked on the cultivation and design of the plenary sessions and working
groups for forums. As the intention of the forums was to define main problems, and suggest actionable steps for the Department, a clear understanding of how each organization was planning to execute forums was necessary. As such, a planning worksheet was developed providing details to the JRP Team as to the steps that organizations were taking to develop forums, as well as any coordinating efforts that would be needed on behalf of the Facilitation Team. Those coordinating efforts included, but were not be limited to, basic logistical support, ordering food and materials, and ensuring participant recruitment.
A general discussion of ideas for each forum was reviewed in collaboration with the Facilitation Team to ensure that organizations maintained freedom of design and expression,
251 See Facilitation Guide in Appendix F.
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while also maintaining the integrity of the process. The simplified document was developed to give the Facilitation Team an idea of what outreach efforts would be needed, as well as to address tools, spokespersons, and other access issues necessary to ensure effective implementation.
All anchor organizations were asked to develop a program template, which included several basic elements for the forums. This template was reviewed by the Facilitator. At each event, the Facilitator provided a brief welcome, which was followed by an educational segment, breakout sessions, a large group share out, and closing remarks by the Facilitator. Implementation
When forums commenced in October 2016, the JRP Team was present for every event. Over the course of three months, the Team attended meetings providing logistical support, taking observational notes, and completing a debrief of every event. Designed as a reflexive process, the forums were individually refined as overarching limitations and considerations became apparent.
By December 16, 2016, the Facilitation Team, in collaboration with over 20 different anchor organizations, completed the last of 28 forums executed throughout New York City. In collaboration with anchor organizations, the Facilitation Team successfully conducted forums in seven out of the nine top priority geographic neighborhoods, and four out of five mid-priority geographic neighborhoods. At the precinct-level, the forums were implemented in 10 out of 11 top priority precincts and four out of six mid-priority precincts.
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 219 of 312 Figure 4. Community Forum Map
Throughout the five boroughs, nine forums were held in Brooklyn, four in Queens, one in Staten Island, eight in Manhattan, and six in the Bronx. The Facilitation Team conducted a total of eight specialized community forums targeting specific demographic groups which included: youth, at-risk adults in drug treatment, African-American community, Latino community, IndoCaribbean community, LGBTQ community, public housing residents, and the West African Islamic immigrant community. Of the total number of forums, nine were held in collaboration with CPR, under their “Our Communities, Our Solutions” banner. Additionally, nine forums
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 220 of 312 were conducted that included the participation of NYPD officers and executives (see Figures 5 and 6 for more detail).
Summary of Relevant Themes After extensive review, our analysis of the community forum data sheets and the
facilitators’ reports highlighted several overarching themes. Community members shared ideas around appropriate encounters, accountability and oversight, transparency, training, community education, and so on.252 These inputs have been distilled into five thematic areas. As a matter of policy, the themes below include suggestions from the narratives which should be helpful in guiding the Department toward constitutional practices and improved relations with the communities it serves.
252 A compendium of these recommendations is included in the report appendices. See Appendix G ‒ Suggested Areas for Reforms by Participants.
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Community-Police Relations While the NYPD has acknowledged that it had embarked upon a failed strategy in the
application of its SQF and trespass enforcement policies, it has yet to put forth a solution that addresses the residual trauma that exists in impacted communities across the City. On numerous occasions, the Facilitation Team met with many individuals who had both been directly and indirectly impacted by these controversial enforcement policies. Whether the individuals themselves had personally experienced a stop encounter or not, what was evident was a general sense that community members felt victimized by an institution designed to protect them.253
Community forum participants overwhelming agreed that there is crisis in the relationship between NYPD and impacted communities. Citing examples of the trauma and distrust at the forefront of their discussions, impacted community members nonetheless supported the notion of an improved relationship between communities and police. That being said, participants felt that having too many officers who were unfamiliar with their neighborhoods and the people who live there, perpetuates the strained relations between those policed and those who do the policing. Participants suggested that a good way to bridge the gap between community and police, would be to require that officers are embedded within community life in positive ways. While some community members acknowledged their precincts’ efforts at engagement, many groups felt the Department and its officers should make greater efforts not only to repair their damaged reputation with impacted communities, but to also practice more responsive policing through fostering partnerships in maintaining public safety.
253 See also generally Bellin, The Inverse Relationship Between the Constitutionality and Effectiveness of New York City “Stop and Frisk,” 94 B.U. L. Rev. 1495.
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Participants agreed that there was a need for both healing and education between the Department and civilians. While community members were open to the idea of a more positive relationship with police, they agreed that there needed to be an earnest gesture from the Department to acknowledge the trauma inflicted upon communities of color, and the provision of resources to begin to repair said trauma. Community members suggested mediation with officers, community meetings and know your rights events, investment in community programs and spaces, and opportunities for police-community problem solving and collaboration as potential ways to begin to repair the trust between both parties.
Community members agreed that outreach efforts, including via social media, newspapers, radio, and television are important for them to find meaningful ways to engage. Doing so would give the civilians a greater sense of awareness of not only the changes to the Department, but opportunities for involvement at the local level. Particularly in regard to public housing, residents felt that it was important for officers to have greater communication and rapport with tenants, and to provide opportunities for them to partner in the development of public safety in their neighborhoods.254
Protocols for Encounters Community members also highlighted areas for reform that stem from the most critical
element of the Floyd Litigation — the Terry stop, as well as other police-citizen encounters. An overarching theme of the forums was respect — a word cited very frequently throughout the JRP. For many community members in the forums, negative and/or abusive encounters with officers were paramount to the conversation on police reform. “Officers should stop being so
254 Many public housing residents called for more hiring opportunities and decision making rights for tenants.
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aggressive,” “Officers should be respectful,” and “It’s all about the approach,” were oft-repeated phrases over the course of the three months in which forums took place.
The expectation of a negative encounter has broad implications for the types of interactions that officers have with community members. Coupled with media coverage of police misconduct, civilians and officers alike are being subjected to both direct and vicarious trauma which has yet to be sufficiently addressed in the field of law enforcement. Negative transactions have parallel outcomes for officers who have become the subject of widespread media and public scrutiny. Such negative portrayals may contribute to a deep resentment and disillusionment with community members, creating an even greater rift between the two groups.255
Beyond training and documentation, community members stated that officers should, as a matter of practice, ensure a greater amount of respect and civility in their initial approach, and for the duration of the encounter. Officers should always clearly identify themselves and should ensure that community members understand the reason for the stop and implications for compliance.
Efforts at addressing police reform often highlight the significance of public perception that a police department’s practices are fair and unbiased.256 Research demonstrates that these principles lead to relationships in which the community trusts that officers are honest, unbiased, benevolent, and lawful.257 Community members also made reference to the assembly of a community commission comprised of a core group of volunteers from diverse disciplines —law,
255 This idea was inferenced from officer statements in the JRP Police Focus Groups. 256 See, e.g., Tyler, Tom R. “Enhancing Police Legitimacy.” The Annals of the American Academy of Political and Social Science 593, no. 1 (2004): 84-99. 257 See President’s Task Force on 21st Century Policing. 2015. Final Report of the President’s Task Force on 21st Century Policing. Washington, D.C.: Office of Community Oriented Policing Services.
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faith leaders, mental health, and so on — that are able to discuss and shape the patterns and practices within the NYPD. Training and Evaluation
Training emerged as a prominent theme in the community forums. Both community members and officers who participated in the forums stressed the need for improvements to officer training. Many of the training ideas centered on a recurring theme of cultural competence.258 Sub-themes included cultural sensitivity, customer service, communication, deescalation, and implicit bias. In the scope of training, community members called for efforts centered on restorative justice and trauma-informed trainings.
Furthermore, many of the community-based organizations involved in the community forums emphasized a desire to be involved in the development and evaluation of training, particularly for special populations.259 Community organizations stated that members should be engaged in NYPD’s assessment of the needs and best practices of impacted communities, as well as the coordination of reports and statistical analyses on policing disparities in affected neighborhoods. Several other suggestions for evaluation included the development of early warning systems, effective feedback loops between New York City agencies, and needs assessments for officer placement within communities of color.
258 “Cultural competence” is loosely defined as the ability to understand and interact with cultures and belief systems that are different from our own. Extensive information on cultural competence exists in the social psychology literature. 259 The specialized populations in this example included members of LGBTQ, Immigrant, and at-risk communities.
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Oversight and Accountability Throughout the forums, accountability was a frequently cited area for reform.
Community members called for meaningful and timely consequences for abusive policing practices, often highlighting the public perception of an obscure, flawed, and arbitrary disciplinary system. Attendees at the forums suggested that the implementation of stricter discipline for officers with repeated violations and greater accountability for the Department overall in addressing rights violations were critical elements of meaningful police reform. Community members also promoted the use of oversight procedures such as body-worn cameras, community oversight boards, and more stringent oversight of anti-crime detective units, as supplements to implementation of departmental change. Transparency
Last, but certainly one of the most significant suggestions for reform in the forums, was the assurance of NYPD transparency. Throughout New York City, there was a general consensus among participants that the Department should take measures to provide the public with access to NYPD data on stop reports, as well as officer complaints for community oversight and information.
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SECTION VI: JOINT PROCESS REFORM RECOMMENDATIONS
The Monitorship and Joint Remedial Process came about as the result of decades-long policing policies that resulted in wide scale violations of constitutional rights. Some of the repeated themes raised during the JRP included overaggressive policing, a perceived lack of accountability for misconduct at the NYPD, mistrust between communities and the Department, lack of respect by police officers, the need to build police-community trust, and the need for enhanced community engagement, training, accountability, and transparency.
The Facilitator sees the overarching mission of the Joint Remedial Process as both reporting the many reform proposals that the Facilitation Team heard during our engagement as well as making findings and recommendations for Court-ordered reforms. The Facilitator was charged with working 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 Joint Process Reforms must be no broader than necessary to bring the NYPD’s use of stop and frisk into compliance.
The Facilitator had previously reported the following set of reform recommendations as potential Joint Process Reforms to be agreed upon by the parties. The parties were unable to agree on any Joint Process Reforms, and, as such, the Facilitator now submits the following findings and reform recommendations so that the Court may consider them for additional reform orders. This is a summary of our recommendations for further Court-ordered reforms. We take no position with respect to the process by which the Court decides which of these proposed reforms it will order.
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It is the understanding of the Facilitation Team that without meaningful accountability and transparency reforms, any attempts at restoring good police-community relations in the most affected communities will be ineffectual. While we credit the efforts of the NYPD, Commissioner O’Neill, and the new Neighborhood Policing program to rebuild relationship and foster community-oriented policing, we must emphasize the critical importance of accountability and transparency reforms which will simultaneously support the Department’s mission toward improved police legitimacy, while at the same time being responsive to the concerns of affected civilians. To stress the importance of reforms relating to transparency and accountability we list them first.
Transparency and Accountability
1. Creation of Permanent Structures for Feedback Regarding Officer Conduct ‒ Feedback Loops
Although the NYPD clearly has begun to change its policies, it is important that the Court order that the Department develop 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. This information includes: (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. The NYPD should develop a formal process to systematically collect such information, and to consider this information, along with substantiated CCRB civilian
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complaints, in evaluations of officers, transfer requests, disciplinary processes, and in
discretionary promotional decisions.
We note that the NYPD Office of the Inspector General ("OIG") conducted a
comprehensive review of data from litigation proceedings, and published its findings in its
Annual Report of 2015. In support of the notion of accessing and utilizing information from
litigations for the monitoring and improvement of police conduct, the OIG's office stated, as
follows:
The proper collection and analysis of police litigation data has the potential to reduce police misconduct, improve public safety, control costs, identify training opportunities, strengthen public confidence, and advance law enforcement oversight.260 The NYPD responded to the Facilitator’s Ideas for Discussion regarding the feedback
loop. In its response, it asserted with respect to declinations of prosecutions by the District
Attorneys’ offices in New York City the following:
There is a system in place for tracking and reviewing declinations of prosecution (DPs) from prosecutors. The Criminal Justice Bureau of the NYPD has five court sections (one in each Borough) which are responsible for collecting the DPs and entering them into the Online Prisoner Arraignment Database (“ZOLPA”). The DP’s are classified by category related to the reason why the case was declined. That data is compiled into a report in order to make the data available for future analysis. This data can be sorted by category of DP, or police officer, in order to observe trends and determine whether additional training is needed. In addition, the DP’s themselves are ultimately sent to the arresting officer’s commanding officer for review and determination whether further action including training is required.
260 See New York City Department of Investigation, The Office of the Inspector General for the NYPD (OIGNYPD), Using Data from Lawsuits and Legal Claims Involving the NYPD to Improve Policing (April 2015).
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It is recommended that this process for the review of declinations be more robustly structured in a more integrated, systematic manner. The current process as outlined in the quotation above ostensibly creates a “report in order to make the data available for future analysis.” There is no specification within this current protocol with regard to whether and how data will be analyzed and what if any corrective actions will be taken. In addition, the NYPD’s stated process references a transmittal of declinations to commanding officers for review. It is recommended that a more structured and well-articulated policy be developed for this internal review by commanding officers and immediate supervisors It is further recommended that the policy be expanded to allow for wider analyses of the data to ascertain any patterns of misconduct within units, squads, platoons, commands, and Patrol Boroughs. A higher level of accountability is equally as important, therefore the policy should include accountability measures for commanding officers and immediate supervisors based on the level of misconduct occurring under their supervision.
In order to ensure that declinations of prosecutions are more fully captured and analyzed, it is also recommended that they be formally integrated into the Risk Analytics and Information Liability System (“RAILS”) network. This will allow declinations to be reviewed systematically and analyzed by supervisors and officers as a matter of course, fostering greater accountability.
Similarly, the NYPD should create a more discernible and concrete system, in conjunction with the various New York City District Attorneys and the New York City Law Department, to address adverse credibility findings by courts with respect to officer testimony. The NYPD should collaborate with these agencies to create a working group that will develop protocols by which adverse credibility findings are reported to the NYPD. The NYPD should
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then set forth a written policy for the evaluation of these reports and any necessary remedial measures including reassignment, retraining, or referral for discipline and investigation.
A written policy with specific protocols also should be developed for the entry into the RAILS network of adverse civil litigation results in section 1983 and tort actions arising from unconstitutional stops and trespass enforcements. A denial of indemnification by the New York City Law Department after consultation with the NYPD is an event that should be entered into RAILS absent extraordinary circumstances. Similarly, a careful analysis should be done with respect to any adverse verdicts or settlements to ensure that a police officer who is engaging in malfeasance or serial misconduct during stops and trespass enforcements is being adequately monitored and supervised. After such an analysis, adverse verdicts or settlements should be considered for entry into the RAILS network.
Finally, we note that the value of this approach may be, as recommended by the Monitor, to identify patterns and practices within commands, precincts, squads, and individual units.
2. Monthly NYPD Discipline Report It is recommended that the Court order the NYPD to prepare and publish a monthly report — without disclosing personal identifying information — chronicling findings of misconduct and the resultant disciplinary outcomes as they relate to unlawful stops and trespass arrests. This monthly report should include all unlawful stop and trespass arrest incidents that are reported as substantiated by the Civilian Complaint Review Board and referred to the NYPD Department Advocate’s Office for disciplinary action. These monthly reports should be disaggregated by geographic and precinct locations, and collated into an Annual Report.
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This report should be modeled after the Standard Operating Procedure Annual Report that is created by the NYPD and documents all officer-involved shooting incidents. While these monthly reports should not disclose an officer’s identity, they should accurately chronicle the particulars of the incident and the actual discipline that was imposed upon an officer.
This recommendation is consistent with the NYPD’s recent decision to publish anonymized summaries of allegations against officers and the disciplinary actions taken in response by the Department. The NYPD’s decision to publish this information is consistent with the need for greater transparency and accountability stressed in this Report. The NYPD’s effort has received stiff opposition from the Patrolmen’s Benevolent Association, which, citing Public Law 50-a, has sued to enjoin the publication of this data and has obtained a temporary restraining order.261
3. Disciplinary Recommendations During the course of the Joint Remedial Process, members of affected communities expressed distrust of both police officers and the NYPD itself. Distrust of the NYPD as an institution is in large part due to the perception that the Department fails to hold officers accountable for misconduct.
These problems must be addressed. Academics, policing experts, and police departments generally agree that a mutual, trusting relationship between the police and community members is critical to effective policing. Likewise, it is recognized that institutional legitimacy encourages compliance with the law and furthers positive community-police interaction, whereas lack of
261 See Stephen Rex Brown, “PBA Wins Court Order to Block NYPD from Releasing Police Disciplinary Records,” Daily News, Apr. 18, 2018, available at http://www.nydailynews.com/new-york/pba-temporarily-blocknypdreleasing-disciplinary-records-article-1.3928178
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trust can lead to police-citizen encounters steeped with tension, resulting in ill-advised conduct by both police and citizens during these encounters.
The NYPD should increase transparency around police disciplinary processes while ensuring that those processes are fair. We therefore recommend that the NYPD be ordered to develop and publish progressive disciplinary standards to be used in cases arising from unconstitutional stops and trespass enforcement regarding excessive force, abuse of authority, discourtesy or offensive language, and racial profiling allegations. The development of such standards is consistent with national trends in policing, such as the adoption of the Chicago Police Department Disciplinary Guidelines.262 A fair disciplinary process is a process “that help[s] address police misconduct while supporting officers who have exercised their discretion appropriately and within the framework of law and policy.”263 While we recognize the Department’s tremendous effort to make reforms, provide greater due process for officers, and to rebuild its fractured relationship with impacted communities, we believe it important that the Department develop greater structure and formalization around its discipline process.
Although such a large Department should not be run by exceedingly strict protocols which cast aside the particular facts of a case and the history of an officer’s public service, it has become increasingly evident that the Department should consider making revisions to its current discipline paradigm that ensure that disciplinary processes are fair and timely. While the Facilitation Team does not feel it appropriate to dictate the structure or format of such a disciplinary system, we feel it is of critical importance that “a good disciplinary system make
262 Given the administrative law judge’s ruling on behalf of the Fraternal Order of Police opposing the disciplinary guidelines in Chicago, we recognize that there are potential issues with collective bargaining. See http://www.chicagotribune.com/news/local/breaking/ct-met-chicago-police-discipline-fop-20171114-story.html 263 Stephens, Police Discipline: A Case for Change, at 2.
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decisions and impose discipline, where appropriate, in a timely manner,” as noted in the Monitor’s Seventh Report. These standard disciplinary recommendations should be developed and published to increase public understanding of how officers are disciplined and to ensure external accountability.
4. Body-Worn Cameras The NYPD has, to its great credit, gone well beyond the requirement of the Body-Worn Camera (“BWC”) pilot program mandated by the Remedies Opinion by committing to the issuance of BWCs to all patrol officers by the end of 2019. This is a highly commendable initiative by the NYPD and places it at the forefront of national efforts to improve policecommunity relations.
By implementing this policy, the Department has shown that it takes seriously the need to document and record police-citizen encounters in order to ensure public safety, officer safety, transparency, and accountability, quite apart from the apparent utility of these cameras for law enforcement.
Under the Remedies Opinion, the future of body-worn cameras is a matter to be determined after the one-year pilot has concluded. However, as the NYPD has already committed to the issuance of BWCs to all patrol officers, the question is not whether BWCs will be used in the future but what policies the NYPD will adopt with respect to their use. Because the pilot has not yet concluded, we recommend that there be significant community input into that final design, particularly from organizations and individuals with significant insight and knowledge into such programs, as well as input from police officers who have had significant street-level experience with the use of such cameras.
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While it may be premature to comment on the final design of the BWC program before the pilot is concluded, several areas of concern have been raised by stakeholders, including with respect to video access and internal video review. For purposes of this Report, however, we highlight one area for consideration. Under the Draft Operations Order governing the pilot (Draft 16 issued March 22, 2017), officers must activate their BWCs in certain situations, including prior to service calls and “interactions with persons suspected of criminal activity,” a reference to De Bour Level 2 encounters based on a founded suspicion of criminal activity. But officers are not required to activate BWCs prior to De Bour Level 1 encounters — that is, where an officer requests information based on an “objective credible reason . . . which is not necessarily indicative of criminality.”264
We recommend that that the Court order that the NYPD require its officers to activate BWCs at the inception of Level 1 encounters with civilians. There are several reasons for this.
First, and foremost, our community engagement has shown that civilians overwhelmingly feel that they are not free to leave even during a Level 1 encounter; and we heard repeatedly that many investigative encounters quickly escalate into full blown Terry stops. Consequently, it would likely be beneficial for both the NYPD and civilians to have Level 1 encounters recorded by BWCs in order to understand when and how these encounters are actually occurring and in order to maximize compliance with the Immediate Reforms. Furthermore, recording Level 1 encounters will likely serve as a comfort to citizens fearful of interactions with the police, even
264 While the Draft Operations Order does not mandate that officers record Level 1 encounters, the Monitor noted in his April 11, 2017 Memorandum on the Approval of Body-Worn Camera Policies, that some Level 1 encounters will nevertheless be recorded because activation is required during interior patrols of NYCHA and TAP buildings and when responding to radio calls.
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at what is deemed to be Level 1, while at the same time increasing the overall transparency of police-citizen encounters, and, potentially, providing a basis for training and accountability.
Second, activating at the initiation of Level 1 encounters would better align the NYPD’s practices with the model policies of the International Association of Chiefs of Police (“IACP”), the Police Executive Research Forum (“PERF”), and the American Civil Liberties Union (“ACLU”). While none of these policies reference De Bour’s taxonomy, it is clear that many, if not all, Level 1 encounters would be recorded under each: The IACP policy mandates that officers “activate the BWC to record all contacts with citizens in the performance of official duties;” and PERF recommends that officers activate BWCs during “all law enforcement-related encounters.” The ACLU states that “an officer [should be required] to activate his or her camera when responding to a call for service or at the initiation of any other law enforcement or investigative encounter between a police officer and a member of the public.”
While the NYPD considered each of the above policies when developing the pilot,265 it ultimately declined to mandate activation of BWCs during Level 1 encounters, leaving it to officer discretion as to when to record at Level 1.266 Specifically, the NYPD reasoned that because some Level 1 encounters — such as rendering aid to sick a person — may not have an investigative or law enforcement purpose, officers should not be required to record at Level 1. To support this conclusion the NYPD cited, among other things, the NYCLU’s concern that the policy should “limit recording to interactions with the public that have an investigative or law
265 See New York City Department of Investigation, The Office of the Inspector General for the NYPD (OIGNYPD), Body-Worn Cameras in NYC: An Assessment of NYPD’s Pilot Program and Recommendations to Promote Accountability (July 2015). 266 See NYPD Response to Public and officer Input on the Department’s Proposed Body-Worn Camera Policy (April 2017).
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enforcement purpose” because “community members need to be able to trust that they can speak with officers privately and not have every casual interaction or mere observation by officers be recorded.”
We agree that witnesses and crime victims must be protected and feel comfortable in their interaction with the police. Unfortunately, based on the concerns expressed during our community engagement, in the current atmosphere many victims and witnesses already distrust the police to the extent that they are unwilling or reluctant to come forward with information even in the absence of any cameras. Given this legacy, the decision to make the recording of Level 1 encounters discretionary just because some Level 1 encounters will involve a public service function rather than a law enforcement or investigatory purpose cannot be justified. Indeed, if the goal is to restore trust, the NYPD is better served by requiring activation at Level 1, while empowering officers to exercise discretion to turn off the camera when they are recording witnesses, victims, or have other concerns.
Finally, a review of the policies of police departments across the country suggests that many require activation at the equivalent of Level 1 and/or have policies that are more in line with the model policies of IACP, PERF, or the ACLU than is the NYPD policy. One researcher, examining the available policies of the 100 largest cities in the U.S. as of December 2015, found that:
Recording consensual encounters267 is an important step toward illuminating a controversial and opaque domain. Given the unregulated and controversial nature of consensual encounters, perhaps what is more remarkable is that nearly half of the
267 Law enforcement or investigative encounters that do not qualify as a stop are sometimes referred to as consensual encounters; consensual because the civilian, having not been detained, is free to leave.
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departments with policies coded mandate the recording of consensual encounters. Well over half either provide for discretionary or mandatory recording of such encounters. While a good step forward, wider-spread mandating that consensual encounters be recorded would better serve the goals of increasing trust and transparency that are oft-stated in body camera policies.268 Our review of more recent policies indicates that this trend has continued.269 In
Philadelphia, where stop and frisk practices, including racial disparities in the application of
those policies, has been litigated, the BWC policy states that “Authorized Body-Worn Cameras
will be activated prior to responding to all calls for service and during all law enforcement related encounters and activities involving the general public.”270 In Washington, D.C.,
activation is required at the initiation of a service call, and in connection with certain listed
activities, including “all contacts initiated pursuant to a law enforcement investigation, whether criminal or civil.”271 In Chicago, another city where stop and frisk practices, including racial

268 Mary D. Fan, Justice Visualized: Courts and the Body Camera Revolution, 50 U.C. Davis L. Rev. 897, 933-34 (2017); see also Mary D. Fan, Privacy, Public Disclosure, Police Body Cameras: Policy Splits, 68 Ala. L. Rev. 395, 444, n.220 (2016) (citing Charlotte-Mecklenburg Police Dep’t, Directive 400-006 (Apr. 29, 2015) (“While on duty, BWCs shall be turned on and activated to record responses to calls for service and interactions with citizens.”); Phila. Police Dep’t, Directive 4.21 § 4 (Apr. 20, 2015) (“Body-Worn Cameras shall be activated when responding to all calls for service and during all law enforcement related encounters and activities involving the general public.”); Phx. Police Dep’t, Operations Order 4.49, at 2 (Apr. 2013) (“The VIEVU PVR-LE2 camera must be activated during all investigative or enforcement contacts.”)).

269 See, e.g., Spokane Police Dep’t, Policy Manual § 703.4(D)(1)(a) (“Officers shall activate the body camera upon

encountering any situation that could be construed as a law enforcement activity. Law enforcement activity may

include traffic stops, arrests, searches, interrogations, pursuits and community caretaking functions. For self-initiated

law enforcement activity, the officer should activate the camera upon making the decision to contact a citizen for

any

purpose

related

to

law

enforcement

activity.”),

available

at

https://static.spokanecity.org/documents/police/accountability/bodycamera/spd-body-camera-policy.pdf

270 Phila. Police Dep’t, Directive 4.21 § 4.A (1/27/17), available at https//www.phillypolice.com/assets/directives/D4.21-BodyWornCameras.pdf

271 D.C. Metro. Police Dep’t, Gen. Order SPT-302.13 § V.A.4.b (3/11/16) (stating that “Members are not required to record non-investigatory contacts (e.g., business checks)”), available at https://www.bwcscorecard.org/static/policies/2016-03-11%20Washington%20DC%20-%20BWC%20Policy.pdf

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disparities in the application of those policies, has been litigated; activation is required for all law-enforcement-related encounters.272
We recognize that one could quibble with whether each of the policies studied by Fan and described above are broad enough to include all Level 1 encounters. At a minimum, however, most would include Level 1 encounters that serve a law enforcement purpose, and thus the NYPD’s decision to exclude even those Level 1 encounters is inconsistent with these policies. That decision is also inconsistent with the findings in the Liability Opinion, the heightened need for transparency and accountability, and the acute importance of repairing the relationship between the police and the communities that bore the brunt of the NYPD’s past unconstitutional practices.273
5. Recording Level 1 and Level 2 Encounters A constant message from the focus groups and community forums was that people in affected communities generally did not feel free to leave a police encounter, even if it was their right to leave. To a civilian in these communities and probably to any average resident of New York City, it does not matter whether an officer believes he is conducting a Level 1 or Level 2 encounter or a Level 3 stop under the De Bour paradigm. They feel apprehensive at all levels.
272 See Chi. Police Dep’t, Special Order S03-14 § II.A (6/9/17), available at https://www.bwcscorecard.org/static/policies/2017-06-09%20Chicago%20BWC%20Policy.pdf 273 See, e.g., D.C. Mun. Regs. tit. 24, § 3900.2 (2016) (“The intent of the BWC is to promote accountability and transparency, foster improved police-community relations, and ensure the safety of both MPD members ... and the public.”); Phila. Police Dep’t, Directive 4.21, § 1.A.2 (4/20/15) (“Cameras provide additional documentation of police/public encounters and may be an important tool for collecting evidence and maintaining public trust.”); S.F. Police Dep’t, Department General Order 10.11, at 1 (June 1, 2016) (“The use of Body Worn Cameras (BWC) is an effective tool a law enforcement agency can use to demonstrate its commitment to transparency, ensure the accountability of its members, increase the public’s trust in officers, and protect its members from unjustified complaints of misconduct.”).
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These impacted community members consistently expressed a need to quantify these encounters so that appropriate monitoring and supervision of them can occur.
The Facilitation Team does not want to prevent police officers from legitimately engaging civilians in the course of law enforcement by placing upon them the overwhelmingly burdensome task of documenting Level 1 or 2 encounters in the same manner as they are required to document Level 3 stops. Similarly, we do not want to recommend a policy that would interfere with a police officer’s ability to assess and respond to an emergency.
Over the course of the Monitorship and the Joint Remedial Process, however, we recognized that technology has evolved to the point where the recording of Level 1 or Level 2 encounters may not be very difficult or time consuming. All patrol officers now have iPhones and all patrol cars are equipped with iPads; and officers are now required to enter their Level 3 stop reports on these devices.
It is recommended, therefore, that the Court order that an application be developed for installation into these communication devices that would allow a police officer to click and enter the approximate age, gender, race, and ethnicity of any person they approach at either Level 1 or Level 2 and then click if the encounter escalates to a Level 3. The location services in these devices can record the time and location of the encounter and there would be no additional paperwork or electronic entries required unless there is a full blown stop in which case a stop report is already mandated.
We believe that the simple expedient of recording basic data about all encounters by a few clicks on a device would be highly beneficial. To the extent that there is a perception that this requirement would be overly-burdensome for officers trying to canvas for witnesses at a
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crime scene, we disagree. The entry of these data points on a pre-programed application could be accomplished in a matter of seconds, either at the time or closely following an investigation of a crime scene. This type of record would help the public, the NYPD, and the Monitor gain a better grasp of the extent and nature of actual police encounters. This information, as with the stop data the NYPD already publishes, should be made publicly available. This data should be published quarterly and annually, disaggregated by demographic and geographic and precinct/command information. It would allow both the NYPD and the public to observe and study trends in policing and enhance transparency and accountability around the current state of SQF policy. There would be actual numbers to consider and analyze.
Under the U.S. Constitution, only Terry stops receive scrutiny, and what are known as “consensual encounters” — that is, “the initiation of an encounter by an officer, typically in situations where there is either no articulable basis yet for reasonable suspicion or it is unclear if there is a sufficient basis” — are “unregulated.”274 But in New York, under De Bour, Level 1 and Level 2 encounters are supposed to be “regulated.” We do not see a basis, at a time where data collection and analysis is the norm in public institutions and private companies alike, for not tracking regulated police-citizen encounters. After all, these are encounters which, if done improperly, are unlawful and have the potential to stymie the restoration of police-community trust and/or create deeper distrust.
Even without a description of why a citizen has been approached, or the nature of the encounter, the number of police-citizen encounters and documentation of who is being engaged by the police is directly relevant to the issues in these lawsuits. In the Liability Opinion, the
274 Fan, Justice Visualized: Courts and the Body Camera Revolution, 50 U.C. Davis L. Rev. at 933.
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Court found that the plaintiffs had shown both that “the City, through the NYPD, ha[d] a policy of indirect racial profiling based on local criminal suspect data” and that “senior officials in the City and at the NYPD have been deliberately indifferent to the intentionally discriminatory application of stop and frisk at the managerial and officer levels.” 959 F. Supp. 2d at 600. Collecting data on the subjects of Level 1 and Level 2 encounters is essential to understanding, after controlling for crime and other social factors, the extent to which police are initiating encounters on the basis of race. Outside of New York, “[b]ecause the selection of persons for consensual encounters is unregulated[;] the risk of targeting due to hunches based on a person’s race, gender, age and socioeconomic background is heightened.”275 In New York, while Level 1 and Level 2 encounters are supposed to be regulated, it is unclear how responsible regulation can occur in practice if data on these police-citizen encounters is not collected. The JRP indicates that despite a reported decrease in the number of Level 3 stops there continues to be a perception of targeting based on race; it is therefore vital to take all necessary steps to determine why this is so.
In its white paper, the Legal Aid Society explains that “Requiring documentation and supervisory review (as in Level 3 stops) will create a record of stops that can be analyzed for patterns and discrepancies.” Unlike with Level 3 stops, there is no record of how many Level 1 and Level 2 encounters occur and who the police are choosing to engage. This must be changed
275 Fan, Justice Visualized: Courts and the Body Camera Revolution, 50 U.C. Davis L. Rev. at 933 (citing Margaret Raymond, The Right to Refuse and the Obligation to Comply: Challenging the Gamesmanship Model of Criminal Procedure, 54 Buff. L. Rev. 1483, 1486 (2007) (“Police are free to initiate a consensual encounter with an individual for any reason or no reason, perhaps based on a whim or a “hunch” that cannot be supported by specific and articulable facts.”); Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L. Rev. 507, 509 (2001) (“Requiring no objective indication of criminality, a consensual encounter can be initiated for no reason or for any reason at all, including the kind of inchoate hunches and suspicions disallowed even for stops, the least intrusive form of seizure.”)).
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given that the practice likely occurs regularly and unquestionably affects the same communities with which the NYPD has committed to rebuild trust.
As recognized by the Court, even where the police are required to record stops, that does not mean “that officers . . . prepare a UF-250 for every stop they make.” Liability Opinion, 959 F. Supp. 2d at 559. Indeed, as stated by the Monitor in his Seventh Report dated December 13, 2017, “there continues to be an issue of underreporting [Level 3 stops]. Some officers making stops do not file the required stop forms documenting them . . . .” While officers may also underreport Level 1 and Level 2 encounters, requiring reporting on each will provide a more complete picture of police conduct in impacted communities. Significantly, recording Level 1 and Level 2 encounters may act as a bulwark against underreporting of Level 3 stops and will likely help the NYPD and outside groups understand whether there is underreporting. The information also is relevant to officer training, as well as supervision. In sum, as argued by the Legal Aid Society in its white paper: “Although total stops are down, officers may be incentivized to improperly categorize their reasons for the stop in order to justify unconstitutional interactions. Officers may also be genuinely confused about the lawfulness of their interactions. Greater documentation will help clarify this confusion while also increasing accountability.”
We recognize that insofar as the justification for the Level 1 or Level 2 interaction will not be recorded by narrative description, this proposal may have less than optimal utility for conducting a Fourth Amendment analysis of these encounters. But, for the reasons already stated, we believe that requiring a narrative description would be overly burdensome and that recording these encounters in the way here recommended is highly beneficial. Furthermore, under the proposed paradigm, officers will indicate electronically that they have initiated a Level
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1 or Level 2 encounter, and, if that encounter escalates into a Level 3 stop, there will then also be a record of how many Level 1 or Level 2 encounters so escalate. Because a stop form will be completed at Level 3, there also will be a record of why the officer initially believed there was, for example, a “founded suspicion” of criminality sufficient to approach, but not to detain, and the circumstances under which this founded suspicion became reasonable suspicion.
This information is crucial for a number of purposes. As noted in the context of BWCs, the Monitor has recognized that there is a need to better understand whether officers are confusing Level 1 and Level 2 encounters with Level 3 stops. The Monitor recommended activation of BWCs prior to Level 3 stops in part because it would “allow the NYPD and the monitor to evaluate whether officers are confusing Level 2 encounters with Level 3 stops. Officers may believe that an encounter did not rise to the level of a Terry stop when it actually did (that is, when a reasonable person would conclude that he or she had been detained and was not free to go). In that situation, an officer would not have submitted a stop report, under the mistaken belief that the interaction was a Level 2 encounter and not a Terry stop.”276 Just as activating BWCs at Level 2 is useful for this purpose, so too is creating a database of Level 1 and Level 2 encounters and reviewing narrative descriptions of Level 3 stops that began at Level 1 or Level 2 in determining whether officers are confusing the De Bour levels and/or improperly escalating Level 1 and Level 2 encounters into Terry stops. Finally, quantifying the number of Level 1 and Level 2 encounters is necessary to determine whether changes in policy might be necessary to repair distrust between citizens and the police. As recounted elsewhere in this Final Report, there is little dispute that rebuilding trust is necessary. In the context of this
276 Monitor’s Memorandum on Approval of Body-Worn Camera Policies (April 11, 2017), at 6-7.
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recommendation, we highlight that lack of trust can lead to officer or citizen conduct that results in unnecessary escalation of investigatory encounters into Terry stops.
6. Accessing Stop Reports It is recommended that the Court order the NYPD to create a protocol to expedite the provision of stop reports upon request. Under the current system, as understood by the Facilitation Team, an individual seeking access to their stop report would have to file a FOIL request. While it is completely understandable that the NYPD should carefully review requests for stop reports in the interest of protecting crime victims and its policing strategies, a common complaint that was heard during the JRP is that requesting a stop report through FOIL takes an inordinately long amount of time. It is our understanding that the NYPD is currently engaged within the Immediate Reform Process in developing a protocol for citizens to more easily access their stop reports and body-worn camera footage.
7. Community Engagement To ensure continued input from affected communities on the impact of Court-ordered reforms and current NYPD policies and practices, it is recommended that (1) the Court order that the NYPD establish a mechanism for regular meetings with those organizations and individuals with whom there has not been such formal and frequent engagement in the past, including youth, special populations such as the LGBTQ community, and critical reform voices; and (2) the Court order the establishment of a “Community Collaborative Board” to provide feedback from affected communities on the Court-ordered reforms as they are being implemented and to make recommendations to the Court and the Monitor during the course of the Monitorship. After summarizing the Department’s history of community outreach, as well as the alternative models
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for community outreach and oversight used outside of New York, we address both of these recommendations below.
Historically, the Department has attempted to engage community members through its Office of Community Affairs. Its efforts have not succeeded, however, in engaging the community members most severely impacted by SQF policies or those who are critical of the Department. It is commendable that the Department has shifted toward more effective community engagement through its Neighborhood Policing Program. In addition, during the Joint Remedial Process, the Department has fostered ad hoc contacts between police executives, up to and including the Commissioner, and community groups and leaders from mainly affected communities. These contacts, however positive, have not resulted in the sort of sustained community engagement and input necessary to develop greater trust and confidence in the NYPD on the part of affected communities.
One longstanding effort by the NYPD toward community trust building is the Community Council program managed through the Office of Community Affairs. For instance, there were 86 Community Councils in 2014 according to the NYPD Community Council Guidelines published that year. The Facilitator attended several Community Council meetings in Brooklyn and Staten Island. Although the Facilitator’s experience in attending these meetings may not be representative of all Council meetings throughout the City, the NYPD has not contradicted the assessment by the Facilitation Team that Community Council meetings are mainly attended by community residents who, as a general matter, support the Department’s policies and tend not to question or criticize those policies.
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The Commanding Officers at these meetings were experienced and highly professional police executives who were well liked by the community members in attendance. They had established a rapport with community members and offered ready answers to their questions and concerns. Nonetheless, the issues raised and discussed during these meetings chiefly concerned local policing and safety issues, such as traffic problems, nuisance complaints, and upcoming community events. There was no discussion of the SQF practices of the Department or any other controversial police issues at the Community Council meetings attended by the Facilitator.
A more recent community engagement initiative by NYPD is Build the Block, an extension of the Neighborhood Policing Program. The new Neighborhood Policing Program is a targeted engagement of Neighborhood Coordination Officers (NCOs) within communities participating in the program. The NCOs work daily in specific neighborhoods instead of being deployed to different locations throughout the city. NCOs are responsible for hosting Build the Block safety meetings within their identified neighborhoods. Although commendable, it is too early to assess the efficacy of this initiative.
Community Council meetings, as well as other Office of Community Affairs programs such as forums and street fairs, while well intentioned, planned, and executed, did not address matters such as unconstitutional policing. Absent specific outreach effort by the Department or to community leaders and groups that were critical of NYPD, these programs and meetings are not likely to create the environment for meaningful, structured, and prolonged dialogue between the communities most adversely affected by unconstitutional policing and the NYPD.
During the Joint Remedial Process, community participants recommended different mechanisms for the solicitation of community input into needed reforms and community-based
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oversight of the NYPD. As previously discussed in this Report and reflected in the community outreach efforts of other cities like Cincinnati, New Orleans, and Seattle, there is no standard approach. The community engagement models of these cities are summarized below.
In Cincinnati, the Community-Police Partnering Center at the Urban League of Greater Southwestern Ohio partnered with the police department to discuss problematic policing practices and to review uses of force. The group did not meet regularly, and it did not review department policies or make formal recommendations. Afterwards, the City Manager’s Advisory Group (MAG) assumed responsibility for advising the city and police department informally on general police issues of concern to the community. The city manager appoints its members and chairs the advisory group, which meets about three times each year, but does not prepare reports or recommendations.277
In New Orleans, the Police-Community Advisory Board (“PCAB”) in each of the NOPD’s eight districts hold quarterly community meetings, but, do not have decision-making authority over NOPD finances, policies, or practices. Rather, they vet community suggestions, works with NOPD to understand its operations, processes, and challenges, and build consensus on priority items important to the community before submitting recommendations to NOPD for consideration.278
Recently, cities under consent decrees have favored greater civil oversight. In Newark, the Newark Police Department was ordered to “[f]und and maintain a civilian a civilian oversight entity for NPD.” The goal of the Newark oversight board was to address the “needs and concerns
277 See Betsy Graef, The Seattle Community Police Commission: Lessons Learned and Considerations for Effective Community Involvement, 14 Seattle J. for Soc. Just. at 43-44. 278 See New Orleans Police Department Police Community Advisory Board (PCAB) (8/9/2016), at 3.
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of Newark’s residents and increase confidence in the NPD.”279 After, Newark established a Civil Complaint Review Board with responsibilities including “reviewing internal investigations, monitoring trends in complaints, and reviewing and recommending changes to NPD’s policies or procedures.”280
In Baltimore, a consent decree mandated the creation of a Community Oversight Task Force with adequate funding and with members appointed by the mayor. Its task is considering whether to restructure Baltimore’s current Civilian Review Board (CRB), including whether the CRB should be independent of the police department, whether it should have the authority to recommend discipline, and ensuring that there is sufficient access to relevant information by community members.281
One option considered by the Facilitation Team is a commission consisting of appointed community members and police representatives in the mold of Seattle’s CPC. Established by consent decree with the Department of Justice, the CPC has, as of 2017, become permanent. The CPC is “mandated to . . . provide ongoing, community-based oversight of SPD and the police accountability system.” It is responsible for tracking the adoption of police reform recommendations and reviewing reports issued by the Seattle’s monitor. CPC also holds public meetings, makes biannual progress reports and annual reports to Seattle city officials and community members regarding the “implementation status of these recommendations and the
279 United States v. City of Newark, No. 16-1731 (Consent Decree ¶ 13). 280 Independent Monitor – Fourth Quarterly Report, May 4, 2018, available at https://www.newarkpdmonitor.com/wp-content/uploads/2018/05/4QR-FINAL-with-appendices.pdf 281 See United States v. Police Department of Baltimore City, No. 17 Civ. 00099 (Consent Decree ¶ 10). Additional examples of community entity models are provided in Graef’s The Seattle Community Police Commission: Lessons Learned and Considerations for Effective Community Involvement, 14 Seattle J. for Soc. Just. 1.
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overall performance of SPD and the police accountability system.”282 Unlike New York’s CCRB, the CPC does not investigate police misconduct complaints.
While the CPC has been recognized as an important component of Seattle’s police reforms, the Facilitator believes that it is premature to recommend the creation of a permanent community police commission in New York City. A number of auditing, oversight, and accountability systems are already in place, including the Office of the NYPD Inspector General/New York City Department of Investigation, the Monitor, the City Council (itself a representative body), the CCRB (itself an all-citizen entity), the Court, as well as the Office of the Mayor and the Office of the Corporation Counsel. Adding another permanent structure would be counterproductive to the extent that it creates confusion as to the roles and responsibilities of the existing structures. The Joint Remedial Process was itself a massive undertaking in soliciting community input on reforms. Furthermore, certain of the Immediate Reforms and many of these Joint Process Reforms are designed to enhance the ability of the public to monitor the NYPD and provide input. While these measures may prove ineffective, we believe that they should be given a chance to succeed before undertaking the complex project of creating a community police commission. Should the need for greater transparency and citizen participation arise, then the institution of a community police commission model should be revisited.283
282 FAQs, Seattle Community Police Commission, available at https://www.seattle.gov/community-policecommission/faqs#whatdoesthecommunitypolicecommissiondo 283 Another example is the Chicago Police Board, which dates back to 2004. It is an independent civilian body of nine members who are annually appointed by the mayor with advice and consent of the City Council. The Police Board’s primary powers and responsibilities are set forth in the Municipal Code of Chicago, and include deciding disciplinary cases of misconduct, holding monthly public meetings, nominating candidates for the position of Superintendent of Police to the Mayor, and adopting rules and regulations for governance of the Department. See https://www.cityofchicago.org/content/dam/city/depts/cpb/supp_info/MCC.pdf and https://www.cityofchicago.org/city/en/depts/cpb.html for more details on the Chicago Police Board
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Although it is premature to institute a permanent oversight structure, community input remains critical, as recognized both by police284 and policymakers.285 Accordingly, in light of the need for better engagement with communities most adversely affected by unconstitutional policing in New York, and having considered the community engagement models summarized above, the Facilitator recommends two reforms for the Court’s consideration.
First, the Court should order the NYPD to meet on a regular basis at the Borough Command level with those individuals and organizations in their communities with whom there has not been such formal and frequent engagement in the past, including youth, special populations such as the LGBTQ community, and critical reform voices. The goal of such meetings would be to provide community members the opportunity to speak directly to the NYPD and receive formal responses to their questions, comments, and proposals. During the course of the Joint Remedial Process, the Facilitation Team spoke with various organizations who could help facilitate outreach to community members. Recommended organizations are listed below:
 Center for NuLeadership  Make the Road New York  The Door
284 See John G. Reece and Judy Macy, “Citizen Advisory Boards in Contemporary Practice: A Practical Approach in Policing,” The Police Chief 82, October 2015, available at http://www.policechiefmagazine.org/citizen-advisoryboards-in-contemporary-practice-a-practical-approach-in-policing/ 285 See President’s Task Force on 21st Century Policing. 2015. Final Report of the President’s Task Force on 21st Century Policing. Washington, D.C.: Office of Community Oriented Policing Services (“Law enforcement agencies should establish formal community/citizen advisory committees to assist in developing crime prevention strategies and agency policies as well as provide input on policing issues. Larger agencies should establish multiple committees to ensure they inform all levels of the organization. The makeup of these committees should reflect the demographics of the community or neighborhood being served”).
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 Brotherhood-Sister Sol  Police Athletic League  The Fortune Society  BronxConnect We also had the opportunity to work with organizations that assist especially vulnerable populations such as the homeless, the mentally ill, and the LGBTQ community. In this regard, we recommend the following organizations:
 Picture the Homeless  The Anti-Violence Project  The Ali Forney Center  Exponents In terms of critical reform voices, we recommend that the NYPD contact Communities United for Police Reform, as well as organizations from the Crisis Management System of the Department of Health and Mental Hygiene. We reference some of them below:
 LIFE Camp, Inc.  Man Up!, Inc.  Central Family Life Center  Save Our Streets The NYPD should reach out to these individual groups to schedule meetings that would be open to the public. The Borough Commands should be required to create agendas for these meetings in collaboration with the involved community organizations. Additionally, the NYPD should be required to post on its website and social media accounts details of each public
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meeting. These details should include the location, time, and proper procedure for having concerns addressed and questions answered.286 NYPD should provide a proposed timeline for these meetings for the Court’s approval.
At these meetings, input about why certain police practices are working or not working for the community and suggestions for new policies and practices or modifications of old ones should be solicited and received. The NYPD would then publish the minutes of the meetings, a summary of the recommendations made at the meetings, and its response to those recommendations to their website.287 A copy should be provided to the Corporation Counsel, the NYPD Commissioner, the Director of the Mayor’s Office for Criminal Justice, the relevant City Council members and committees, and the Community Collaborative Board. While the NYPD would not have to adopt any suggestions, it would have to articulate why it does not believe it appropriate to do so.
The second proposed reform is a Community Collaborative Board (CCB). The CCB would be an advisor to the City, the Court, and the Monitor, but without an express oversight function. We recommend that the CCB be comprised of 10 members appointed by the Court including a part-time Executive Director. These representatives should come from community groups and organizations active in police reform. The membership should reflect the diversity of New York City, not just race and ethnicity but geography as well. It should also address the concerns of NYCHA and TAP residents. The Facilitator recommends representatives of the following organizations:
286 Please see the following link for a posting example: https://www.cityofchicago.org/city/en/depts/cpb/provdrs/public_meetings.html 287 See id.
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 1 representative each from LIFE Camp, Inc., Save Our Streets, and the Central
Family Life Center, who are member organizations of the Crisis Management
System of the New York City Department of Health and Mental Hygiene,288
 2 representatives from the leadership of Communities United for Police Reform
(CPR)289
 2 housing representatives: 1 from Community Voices Heard as a representative
for NYCHA, and 1 for TAP buildings as recommended by Ligon plaintiffs’
counsel
 1 representative from the Micah Faith Table of the Interfaith Center of New
York290
288 The Facilitation Team found the violence interrupters of the Crisis Management System of the New York City Department of Health and Mental Hygiene were well connected to their communities while also maintaining meaningful relationships with the NYPD, both at the precinct and executive levels. These groups work on the ground mediating crises, especially those involving gun violence, in concert with the NYPD. They follow the Cure Violence Model. The Cure Violence Model is an approach to violence prevention from a public health perspective. The prevention model understands violence as a learned behavior that can be prevented using disease control methods. In the United States alone there has been a 73% reduction in shootings and killings as a result of cure violence programs in 20+ cities. In New York specifically, an independent evaluation of the program in Crown Heights, Brooklyn showed a 20% lower rate of shootings, and a year without a shooting or killing in East New York Brooklyn. Additionally, LIFE Camp, Inc.’s Violence Intervention and Prevention System (VIP) has resulted in an 80% reduction in the amount of shootings, with over 550 days of no shootings in their focus area. Over the course of the JRP proceedings, many of these groups hosted focus groups and community forums and were among the leading voices for collaboration with the Department. Crisis Management System members also provided the team with keen insight on the efficacy of NYPD policies and practices based on the input they receive from citizens who are affected by these policies and practices. To learn more about the Crisis Management System visit http://www1.nyc.gov/site/peacenyc/interventions/crisis-management.page. 289 Communities United for Police Reform (“CPR”), a coalition of over 60 member organizations, is actively engaged in reform efforts of the NYPD. CPR participated in the implementation of the various phases of the JRP. CPR was able to use its expansive network to populate 9 of the 28 forums that took place throughout the City, several of the focus groups, as well participating in the JRP Advisory Committee To learn more about the Communities United for Police Reform campaign and a list of voting member organizations please visit http://changethenypd.org/campaign/intro-members. 290 During the Convening Phase of the JRP the Facilitation Team met with representatives of the Micah Faith Table of the Interfaith Table of New York. The Micah Table is a coalition of faith leaders from a multitude of religious
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 1 representative from an academic institution who is familiar with the issues outlined in the Remedies Opinion, with experience engaging communities in reform efforts
The Community Collaborative Board will meet quarterly to receive updates from the NYPD with respect to the status of any Court-ordered reforms, and discuss the impact that they are having on affected communities. This Board is not intended to serve as a substitute for or as an overseer of the Monitor. Rather, its goal is to allow representatives who work with the affected communities to offer their input to the Monitor and the Court. The CCB will develop the agenda for these meetings in consultation with the NYPD. The CCB will also publish an annual report with its recommendations for the improved implementation of Court-ordered reforms. Funding resources in the form of stipends for members and a salary for a part-time Executive Director should be provided. After the CCB publishes its annual report, the NYPD should publicly disclose a response to any of the CCB’s findings and recommendations. Both the CCB’s report and the NYPD’s response should be published on the NYPD’s website and a copy should be provided to the Corporation Counsel, the NYPD Commissioner, the Director of the Mayor’s Office for Criminal Justice, the relevant City Council members and committees, and the Court. The CCB would exist until such time as the Court determines that the NYPD is in “substantial compliance” within the meaning of the Court’s July 30, 2014 Order Modifying Remedial Order.
affiliations that work collaboratively to end poverty and injustice in New York City. The Facilitation Team met with several member organizations over the course of the Joint Remedial Process, gathering meaningful community insights into the issues of SQF and trespass enforcement. For more information on the Micah Faith Table, please visit http://interfaithcenter.org/welcome-micah-institute/.
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During the JRP, community members have asked for a formal mechanism to offer feedback on the Court-ordered reforms during the course of the Monitorship. The Facilitator agrees that such a mechanism, here the CCB, is important. In the absence of the CCB, the facilitation and outreach efforts of the Joint Reform Process will come to an abrupt stop, depriving individuals most affected by these reforms from having their voices heard. As the Court highlighted in the Remedial Opinion, “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.”291
Trust, Legitimacy and Police-Community Relations
8. Public Education Campaign Throughout the Joint Remedial Process, the Facilitation Team has been confronted by a widespread and troubling public misconception that stop, question, and frisk (“SQF”) was declared illegal by the Court as opposed to the Court finding that an otherwise legal practice had been unconstitutionally implemented. Concurrently, the Facilitation Team found that police officers may not be properly documenting stops for fear of personal civil liability or administrative discipline. While both findings were true we also heard community members express the desire for public education campaigns.
We identify these two findings as critically detrimental to the NYPD’s mission to build community trust, as well as to improve its community policing and precision policing practices. Though it is difficult to discern with complete confidence the source of such misinformation, it is important to address the seemingly systemic lack of information or misinformation which
291 Remedies Opinion, 959 F. Supp. 2d at 686.
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continues to drive the divide between officers and the communities they serve. Equally important is the desire for public education campaigns by community members for community members.292
Consistent with research on cognition and bias discussing the ways in which “consensus” can transform a rumor into the status of “common knowledge” — including that perceived familiarity of information influences the likelihood that the information is accepted as true293 — several years of misleading headlines and word of mouth seem to have further entrenched the idea that officers who conduct lawful SQF procedures are illegally harassing civilians. This only reinforces the rift between community and police. Similarly, tabloid news and rumor has fed into the belief by many officers that they will be punished unfairly by the NYPD through unjust discipline and/or be left exposed to frivolous lawsuits if they conduct and document Terry stops.
Social science theory purports that a statement is more likely to be deemed true the more often it is repeated. Indeed, studies have shown that attempts to inform people that a given claim is false may inadvertently drive acceptance of said claim.294 Care must therefore be given to how the NYPD addresses public misinformation about SQF. A reactionary model which neglects to address the issue of SQF directly or endeavors only to dispel the myth of SQF’s illegality, serves to further entrench a misguided interpretation of the law, and opens officers up to continued scrutiny and complaint.
292 A recommendation for community members to develop and implement a public education campaign would be ill placed as a recommendation for the NYPD, therefore such a suggestion can be found under areas for policy consideration. 293 See Schwarz, N., Sanna, L. J., Skurnik, I., & Yoon, C. (2007). “Metacognitive Experiences and the Intricacies of Setting People Straight: Implications for Debiasing and Public Information Campaigns.” Advances in Experimental Social Psychology, Volume 39, 127-161, available at https://pdfs.semanticscholar.org/41cc/3eeed553e733f7378446ee6205fcea420cac.pdf 294 See Allport, F. H., & Lepkin, M. (1945). “Wartime Rumors of Waste and Special Privilege: Why Some People Believe Them.” Journal of Abnormal and Social Psychology, 40, 3-36; McQuail, D. (2000). “McQuail’s Mass Communication Theory.” Newbury Park, CA: Sage; Rice, R. & Atkin, C. (Eds.) (2001). Public communication campaigns (3rd ed.). Newbury Park, CA: Sage.
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It is recommended that the Court order that the NYPD develop a broad-based public education campaign, in consultation with community partners, to correct for these misunderstandings, inform citizens about the rights and obligations of both citizens and police officers during all levels of encounters, and, most importantly, to inform community members about changes to NYPD policing policies. In an effort to ensure that the messages are impactful and long lasting, it is suggested that the Department seek out social psychology experts to assist in developing an effective public education campaign. Social psychology has been at the center of public education and awareness campaigns since the 1950s. These experts study conditions that affect certain behaviors and actions, and are primarily concerned with thoughts, beliefs, and intentions and how they influence interactions between individuals. An example of a policing public education campaign created with the support of a social psychologist is the Crime Prevention Publicity Campaign developed by COPS with renowned psychologist Ronald V. Clarke.295
It is recommended that the NYPD conduct this campaign through social media, traditional radio and television public service announcement advertising, and through community meetings. It should collaborate with community organizations to help develop this campaign. While the public education campaign would be a citywide undertaking, it is also recommended that community meetings take place in settings where community members have the opportunity to interact with officers. These community meetings can take place in places such as New York City Public Housing (“NYCHA”) developments, schools, and drop-in centers in impacted communities.
295 See Barthe, E. (2006). Crime Prevention Campaigns: Problem-Oriented Guides for Police ‒ Response Guides Series No. 5. Department of Justice, available at https://ric-zai-inc.com/Publications/cops-p099-pub.pdf
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This campaign would serve at least three purposes. It would serve to correct the misconception that was often encountered during our community engagement that SQF is illegal and no longer allowed. It would help to foster greater trust in those communities that were most affected by the unconstitutional abuse of police authority. It would also reduce the incidence of complaints and lawsuits based on the misconception that SQF is illegal, which would help to alleviate the fear of personal civil liability or administrative discipline on the part of police officers.
9. Community Surveys It is recommended that the Court order that the NYPD implement annual community surveys to be conducted at precinct/PSA levels that track police-community relations broadly, including public perception of police-community relations and of police-civilian street encounters, and to assess the public’s experience with Court-ordered reforms. During the length of the Monitorship, the survey should be designed and conducted by an outside entity in collaboration with the NYPD and in consultation with community stakeholders with significant insight on policing issues. The survey process should also be institutionalized beyond the Monitorship, allowing for the ongoing assessment of police practices.
These survey results should factor into the performance evaluations of the senior leadership of the precinct. This recommendation is vital to the effective implementation of the Immediate Reforms and to improving community-police relations. The surveys will ensure that local precinct commanders will be directly responsive to the communities they patrol. It is further recommended that as a complement to the surveys, that a qualitative assessment (i.e., focus groups, in-depth interviews) occurs within those precincts where survey results are
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unfavorable. This complementary assessment allows for a comprehensive understanding of the issues present within those communities.
The NYPD’s use of the ELUCD group to conduct surveys may be beneficial in this regard. However, we do not know the findings of the survey and, more importantly, it appears to be based upon aggregate citywide data. While such aggregation of data, from across New York City, does serve some purposes, it has little utility when it comes to assessing the quality of community-police relations at a local geographic level.
10. Use of Stop, Question, and Frisk to Develop Youth Informants The Facilitation Team heard at several community forums and at some focus groups that young people were often stopped and subsequently released in order to coerce them into becoming confidential informants. It was reported that police officers, and, in particular, plainclothes officers, would detain youth on minor violations and bring them to the precinct where they would be photographed and then released if they agreed to become informants. If they refused, they would be processed for minor violations or ridden around in police vehicles in their neighborhood so that an inference could be drawn that they were cooperating with the NYPD as informants. Examples of these experiences were expressed by older focus group participants (examples 1 & 2) and youth participants (examples 3 & 4) during separate focus groups:
Example 1: “They don’t even think they did anything, but just the fact that they be outside, they might know something about another crime. So they scare them, they bring them to the precinct, like, ‘You were trespassing. Yo, do you know who was shooting last night? You was out there.’ And then, if you’re scared enough you’ll say, ‘Oh, I heard it was [Tashawn] that was shooting,’ or something, any name out there. So what they do ‒ they scaring the young guys. You know what I mean? They did something wrong
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and they don’t want to get in trouble for nothing else, so that way you just make them tell on somebody else, and then that’s a whole another thing. They do it all the time.”
Example 2: “They muscle the younger guys, tell on somebody else about shooting, drug dealing or whatever, or… and, say, if they found, like, a bag of marijuana on one of the young guys or something like that, and then just use that. It’s a cat and mouse game, and [they] put other people in jeopardy by just… And then, pick these guys up, take them in the car and drive them around, so they could be seen in their car, you know. And that will be, ‘Are you snitching? But for the cops it’s tell us what we want to know. Who was shooting last night? We know you was out there, we’ve seen you by the store.’ And it’s like a strong-arm game.”
Example 3: “He said, ‘You see who you’ve got beef with this on this wall? They’re already telling us what y’all doing. Just give me information, and you’ll be home tonight, man. I’ll give you the ticket.’ I said, ‘Can I get a lawyer?’ They said, ‘Oh, so you know how to play this game?’ They brung me downstairs and put me through the system.”
Example 4: “‘Yo, come on, you all really just doing this for what? I have nothing on me. You all just doing this because you all know me and my hood. I’m out, I’m leaving my hood. Why are you all bothering me?’” They was like, ‘Oh, because we know you got this on you. Come on, where is that? Where is that? Can you just give it to us? If you don’t got it on you, just give us a name.’ I’m like, ‘What? Just leave me alone. I don’t want nothing to do with you all.’ They searched me, they went all through my pockets, they felt on my private parts and all of that. . . .”
Although there is currently a policy in place that is intended to prevent abusive soliciting
of young people as informants, the policy is either not being strictly adhered to or there are no
enforced accountability measures for such interactions. According to Patrol Guide 212-68,
individuals under the age of 18 are to be registered with a parent or guardian present to give
written permission; however, this is not what is happening according to many focus group
participants. Although this issue, on the surface can be viewed as unrelated to stop, question, and
frisk, and trespass enforcement, it is important to note that community members participating in
focus groups and forums expressed the “stop” as being the initial contact in the development of
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some youth as informants. Essentially, it was reported that stops were used as excuses to engage youth. Therefore, it is recommended that the Court order that the NYPD include a disclaimer in its SQF trainings, at the Academy and in-service, about the Department’s policies with respect to the cultivation of confidential informants. It is also recommended that the NYPD create an auditing protocol for the review of youth-involved interactions and measures to address issues related to a violation of the Department’s confidential informant policies.
11. Mental Health and Disability Training It is recommended that the Court order that the NYPD develop SQF training that includes specific units on engaging with people with mental, physical, or developmental disabilities, including different types of scenarios that officers may encounter in serving such individuals. Individuals with mental illness, who have physical disabilities, or who are developmentally disabled are at risk of being subjected to heightened police scrutiny and force based on completely mistaken assumptions.
There are a number of community-based organizations as well as experts in New York City working on issues concerning police treatment of people with disabilities that could serve to help develop these trainings. This training is critical since the behaviors of mentally ill or disabled individual who are being questioned by police officers may be misinterpreted as furtive movements or noncompliance which can then escalate these encounters.
We are not recommending a wholesale revision or a delay of the SQF training, which we acknowledge has been developed with much deliberation and care. We do, however, recommend that the Court order the inclusion of this disability training as a discrete unit within the SQF curriculum.
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12. LGBTQ-Specific Training and Community Engagement The Facilitation Team convened three community forums specific to the LGBTQ community. In addition, there was significant representation of LGBTQ community members at two other community forums. Moreover, the Facilitation Team held focus groups geared toward the LGBTQ community. A consistent theme that was raised during these sessions was the sense that this community was being targeted by the NYPD for unconstitutional stops often ostensibly for the offense of loitering with the intent to commit prostitution. Furthermore, it was widely reported to us that the police would frequently demean LGBTQ persons during encounters and stops by questioning their preferred gender identification, taunting them, making inappropriate use of gender pronouns, and speaking derisively about their preferred gender identification. During these encounters, officers would use aggressive/derogatory terms and body language as well as condescending tones. Not surprisingly, LGBTQ community members also reported that they are reluctant to report crimes committed against them because they fear further victimization by the police. These concerns were also documented by the Office of the Inspector General for the NYPD in a report that it issued in November 2017 entitled “Review of NYPD’s Implementation of Patrol Guide Procedures Concerning Transgender and Gender Nonconforming People.” The report concluded that there were gaps in the Department’s implementation and training on Patrol Guide revisions that were issued in 2012. These revisions were intended to address substantially the same issues and concerns encountered during the JRP.
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The Office of the Inspector General for the NYPD released its Fourth Annual Report noting the NYPD’s responses to the November 2017 report. Of the nine recommendations from the DOI, five were accepted in principle, one was partially accepted, and three were rejected. Below we note the DOI recommendations that were rejected and the NYPD’s response:296

DOI’s RECOMMENDATION

NYPD RESPONSE

1 NYPD should create a memo book insert for officers with a summary of the revised LGBTQ protocols. Officers can use this for reference as needed.

NYPD asserts DOI’s recommendation is unnecessary, pointing out that NYPD personnel are required to review all Patrol Guide revisions, which are accessible though Department-issued smartphones and tablets. NYPD also states that, as a matter of routine, the Department does not create a memo book insert for all Patrol Guide revisions, as they would become unwieldy. In the future, the Department is planning to transition to electronic memo books.

2 On a periodic basis, NYPD should make sure NYPD states that ongoing compliance

that police stations are using updated forms, checks are not needed because the precincts

particularly those documents that are intended discussed in DOI’s Report now use the

to comply with the 2012 revisions.

updated forms. NYPD further notes that

officers were already instructed to use the

updated forms, all of which NYPD is

endeavoring to make electronically.

296Taken directly from the NYPD IG Fourth Annual Report retrieved from http://www1.nyc.gov/assets/doi/reports/pdf/2018/Mar/15_NYPD_IG_Fourth_Annual_Report_w_report%203.29.18. pdf
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3 NYPD Internal Affairs Bureau’s complaint NYPD asserts IAB is presently capable of

system should be configured to categorize and tracking profiling complaints, including

track all LGBTQ‐related allegations that

allegations based on sexual orientation,

implicate biased conduct, and not just

gender, and gender identity. NYPD has not

“profiling.” LGBTQ‐related allegations

committed to tracking LGBTQ-related

involving bias would include violations of the allegations implicating biased conduct that

2012 Patrol Guide revisions and “offensive fall outside of “profiling,” noting that a

language.”

category of "LGBTQ-related allegations,"

beyond profiling, cannot be effectively

implemented.

It is recommended that the Court order there be more training around LGBTQ communities and de-escalation. There should also be further and continued community engagement specific to this community. It is also recommended that the Court order that the Department monitor adherence to the 2012 Patrol Guide Revisions and take steps to ensure implementation. We note below those DOI recommendations that were partially and fully accepted in principle. These recommendations are fully aligned with the JRP recommendation.

DOI’s RECOMMENDATION

NYPD RESPONSE

1 NYPD should provide mandatory in‐ service training and accompanying resource materials on the 2012 Patrol Guide revisions to all uniformed members through the NYPD‐U webinar

NYPD agreed to conduct a refresher course on the 2012 Patrol Guide revisions for members of service via its online platform, NYPD-U. NYPD, however, has not committed to the six-month timeframe recommended by DOI, reporting that

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platform. Training attendance and completion should be tracked to ensure that all member of the police force have received this training. NYPD should conduct this training within the next six months.

the Department will conduct this training by the end of 2018.

2 Community input should be carefully considered and incorporated as appropriate into the curriculum of officer training on LGBTQ issues.

NYPD reports that historically the Department's LGBTQ- related training has been developed with input from representatives of organizations from the LBGTQ community. These discussions are ongoing.

13. Implementing the Use of Civil Summonses for Trespass Enforcement by Extending the Criminal Justice Reform Act of 2016.
One of the police practices that the Monitorship and JRP are tasked with addressing is trespass enforcement in and around public housing and buildings enrolled in the Trespass Affidavit Program (“TAP”). During the course of the JRP, some residents of and visitors to public housing and TAP buildings expressed frustration at the volume of arrests for the crime of trespass. At the same time, some visitors and residents were concerned with the presence of intruders in the public spaces inside and outside of their buildings, which residents considered to be an extension of their homes.
The Facilitator recommends that the Court order the NYPD to adopt a new policy which encourages officers to issue a civil summons for trespass, rather than issuing a criminal summons or making an arrest for trespass. In effect, this recommendation calls on the City to extend the Criminal Justice Reform Act of 2016 (the “CJRA”) and its accompanying rules and establish a

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civil violation for trespass in the administrative code, thus allowing a civil summons to be the primary enforcement tool for trespass in and around NYCHA and TAP buildings.
Separate and apart from the Monitorship and the JRP — and to its great credit — the City enacted the CJRA, which enabled the NYPD to issue summonses with civil penalties for lowlevel quality-of-life crimes, such as carrying an open container of alcohol, littering, unreasonable noise, or public urination. Prior to the CJRA, the NYPD frequently issued criminal summonses for such offenses, approximately 300,000 in 2015.297 The Criminal Court dismissed the majority of these low-level violations. For example, from 2003 to 2013, almost two-thirds of these cases were dismissed. Id. Nevertheless, because of the criminal character of the summonses, a disposition of guilty resulted in a permanent record. Additionally, if a person missed his or her summons’ court date, a judge would issue a warrant for their arrest.
Now, by contrast, these low-level offenses may be treated as civil violations to be adjudicated in the City’s Office of Administrative Trials and Hearings (“OATH”). The CJRA did not eliminate criminal penalties for these infractions, but rather, instituted the civil summons as the primary enforcement tool for them. One year after it came into effect, the CJRA has resulted in a 90 percent drop in criminal summonses, while crime continues to decline citywide. See CJRA One Year Later, New York City Council, https://council.nyc.gov/the-criminal-justicereform-act-one-year-later.
As the law stands now, persons arrested or issued a criminal summons for trespass in or around TAP or NYCHA buildings can be charged with a violation of N.Y. Penal Law § 140.05 or § 140.10. Even the least punitive form of trespass, N.Y. Penal Law § 140.05, is categorized as
297 CJRA Fact Sheet, New York City Council, https://council.nyc.gov/legislation/criminal-justice-reform.
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a “violation,” meaning that it is punishable by a term of imprisonment of up to 15 days, N.Y. Penal Law § 10, and it can result in a permanent record.
Accordingly, it is the Facilitator’s recommendation that the Court order the City to extend the CJRA to create a civil trespass violation in the City’s administrative code, and to adjudicate these cases in OATH. Such an approach would help address the concerns of some residents and minimize the issuance of arrest warrants and permanent records.
14. Trauma Informed Training ‒ Community Impact Consistent with the growing number of institutions adopting trauma-informed care and resiliency models nationally, we recommend that the Court order that the NYPD implement a program for training officers on trauma and the implications of trauma for public safety. The NYPD should seek to work with social service practitioners to teach officers more about the debilitating effects of trauma, and its manifestations for both officers and community members. One such model that could be used as an example is the Cambridge Police Department’s traumainformed care training program.298 Several different organizations also have resources on trauma-informed care ranging from directly addressing police trauma to techniques for interactions with traumatized individuals.299 Having an awareness of trauma and its behavioral consequences can provide officers with context on issues of agitation, furtive movement, and even flight, which can be useful cues for officers to dispatch de-escalation techniques during interactions with the public.
298 Accessible at the City of Cambridge website: https://www.cambridgema.gov/news/2016/09/cpdtraumatraining 299 See, e.g., SAMHSA, Philadelphia Police Department, Vera Institute of Justice, and NACOLE.
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This recommendation for trauma-informed training will lead to better and more constitutional policing.
SECTION VII: AREAS FOR POLICY CONSIDERATION Beyond the 14 Joint Remedial Process recommendations, some suggestions were offered for policy changes that fell beyond the scope of the Joint Remedial Process. These suggestions will be discussed here and labeled “Areas for Policy Consideration.”
1. Need for Greater Resources to Accommodate Homeless Youth After having met with numerous homeless advocacy groups and organizations during the Convening Phase of the JRP, it became clear that there was a lack of resources available to homeless youth in New York City. Officials at Covenant House, an organization that participated in two convening meetings, six focus groups, one leadership meeting, and one community forum, expressed that homeless youth were often turned away as a result of the limited number of short term shelter beds available. Many of the youth who were turned away tended to have more frequent contact with the NYPD simply because they are homeless. It is commonsensical that youth who are unaccompanied, transient, and sleeping on the street are more likely to come into contact with law enforcement. And for some, if they were without shelter, they are more likely to resort to prostitution and drug dealing as a means to
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survive. Beyond the typical risks facing homeless youth, contact with police greatly increases when a young person is homeless and living on the streets.300
According to the Coalition for the Homeless, “in recent years, homelessness in New York City has reached the highest levels since the Great Depression,” with a continued increase in the number of homeless youth.301 Runaway and homeless youth in New York City are generally defined as unaccompanied youth. These youth are young people who have run away or were forced to leave their homes and are currently residing in temporary living situations.302 The 2017 Youth Count Report noted that there were a total of 2,003 unaccompanied youth, up from 1,805 in 2016, and 1,706 in 2015.303 However, many homeless service providers and advocates would argue that the numbers are much larger, reaching higher than 3,500. It is well noted that the New York City Point in Time (“PIT”) count tends to miss large portions of runaway and homeless youth as the count does not include youth who couch-surf or may be engaged in survival sex work.304
300 See Youth Justice Board Center for Court Innovation, Homeless Not Hopeless: A Report on Homeless Youth and the Justice System in New York City, June, 2017, available at http://www.coalitionforthehomeless.org/wpcontent/uploads/2018/02/RHY_Testimony_02132018.pdf
301 New York City Homelessness: The Basic Facts, available at http://www.coalitionforthehomeless.org/basic-factsabout-homelessness-new-york-city/ 302 See Hofmeister, B., & Routhier, G. (2018, February 13). Testimony of The Legal Aid Society and Coalition for the Homeless. New York City, New York. 303 These numbers include both sheltered and unsheltered unaccompanied youth for the years 2015-2017, per the youth count report for these years. The youth count report is a report written by the Center for Innovation through Data Intelligence, a research/policy center located in the Office of the Mayor of the City of New York. Each year in an effort to identify areas of service need homeless youth are counted as part of the point-in-time (PIT) count of sheltered and unsheltered homeless adults, families, and youth is conducted. Please visit http://www1.nyc.gov/site/cidi/projects/homeless-youth-count.page for more information about the NYC Youth Count. 304 See id. at 2.
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The number of available beds in New York City is well documented. According to the Runaway and Homeless Youth testimony presented to the New York City Council Committee on Youth Services, the Department of Youth and Community Development (“DYCD”) has contracted 751 beds to be open through 2019, with another 309 beds for transitional independent living, and 236 beds for crisis.305 Although the number of funded beds have increased, the beds available for short term crisis placement only increased by 20, speaking to an immediate need for more short term crisis beds.306
An increase in the number of short term crisis beds available to homeless youth will not only provide short term housing, but more importantly provide access to services that can help stabilize these young people, decreasing the likelihood that they will engage in risk taking behavior. This suggestion is not intended to be a cure all, but it could definitely be a step in the right direction, creating an opportunity for reducing the rate at which homeless youth are involved in investigative encounters with the NYPD.
2. NYCHA/TAP Responsibility The following recommendations arise from community input that was received during the Davis and Ligon portions of the JRP.
A major concern raised by residents of Trespass Affidavit Program (“TAP”) buildings and NYCHA developments who participated in our process is the lack of basic security at those facilities. The NYPD’s Trespass Affidavit Program, also known as the “Operation Clean Halls” program in the Bronx, allows private property owners to register their buildings with the NYPD
305 See http://www.coalitionforthehomeless.org/wpcontent/uploads/2018/02/RHY_Testimony_02132018.pdf 306 See id.
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providing the NYPD access to the property to stop, question, search, and, if necessary, arrest individuals who are suspected of trespassing. Landlords are required to sign a document renewing their participation in the program every six months. A similar agreement exist between the NYPD and NYCHA, allowing police officers to conduct vertical patrols throughout public housing developments in search of trespassers and other criminal actors.
In addition to the training and policy recommendations by the Monitor, it is suggested that the NYPD impose a minimal investment in security by building owners as a condition of enrollment in the TAP program. A landlord should be required to install working locks at every entrance within six months of a building’s enrollment into TAP. The TAP program is a voluntary program offered by the NYPD in an effort to provide greater safety for TAP residents. Therefore, landlords who are receiving the benefits of this program should be required at a minimum to maintain working locks on their buildings.
This recommendation extends to NYCHA housing developments. Broken locks, intercoms, and doors were reported to be commonplace in NYCHA developments. NYCHA residents repeatedly expressed the view that better building security could significantly reduce the need for the NYPD to heavily patrol the developments.
NYCHA itself attempted to address these security problems by engaging with the Citywide Council of Presidents, the public housing resident leadership, and the NYPD to discuss how to improve security. Ultimately, this collaboration resulted in a Safety and Security Task Force Report that was jointly issued by NYCHA and the Citywide Council of Presidents in 2011.
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The Task Force Report listed some basic improvements to building security in a section of the Task Force Report called Access Control Recommendations. It is recommended that NYCHA adhere to its own recommendations which were listed as follows:
NYCHA has identified the need to secure building entrances as a priority that is essential to improving the security of the developments. To correct the above conditions, NYCHA plans to install “multi-layered” access control, consisting of mechanical door locking hardware, electronic access control and direct call intercoms. This design will provide a higher level of security by eliminating the need for keys (residents will be issued electronic key tags), adding intercoms that do not rely on telephone company infrastructure and providing more durable components to withstand the traffic and reduce the effects of vandalism that building entrances encounter.
3. Interactions Between NYCHA Tenants and the NYPD Focus group participants from NYCHA housing developments often felt overly surveilled and heavily policed. Participants expressed that the presence of NYPD floodlights and towers often felt like an “occupation by militaristic forces.” NYCHA residents in both the focus groups and community forums complained that the floodlights installed throughout many of the developments were unnecessary and highly intrusive. Along with the recommendation that the Task Force improvements to the security of the buildings be ordered, community residents asked that the NYPD be required to remove floodlighting that is harshly illuminating or that NYCHA install and/or maintain conventional street lamps on the sidewalks and inner courtyards of the developments to provide enhanced security in a less intrusive manner.
Additionally, there remains concerns around scaffolding within housing developments. What is being dubbed as “zombie scaffolding” continues to create numerous concerns and
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complaints by NYCHA residents.307 Focus group and community forum participants cited fear of victimization in these scaffolded areas. In addition, many expressed a concern that officers would be limited in their case solving attempts because scaffolding tended to cover cameras.
Lastly, participants from both focus groups and community forums expressed concerns related to police vehicles being driven on sidewalks and recreational areas (e.g., basketball courts, playgrounds, etc.) within housing developments. They urged that the NYPD consider developing a policy that prohibits officers from driving on sidewalks in housing developments, particularly near common spaces, absent exigent circumstances.
4. NYPD Practices at Subway Stations In the wake of the recent decision by the Manhattan’s District Attorney’s office to become more discriminant in its prosecution of turnstile jumping, there continues to be a call for a more proactive and less reactive law enforcement approach to this problem. According to a recent report written by the Community Service Society, entitled “The Crime of Being Short $2.75: Policing Communities of Color at the Turnstile,” communities of color are disproportionately affected by fare evasion arrests.308 The Facilitation Team heard at some community forums, leadership meetings, and focus groups that the NYPD positions officers hidden behind turnstiles and gates to apprehend fare beaters. Community members voiced deep frustration at this policy, questioning the intent behind it. People repeatedly urged for a more
307 Zombie scaffolding is a termed used to describe the presence of scaffolding (sometimes for years) without any work being done. NYCHA has received numerous complaints regarding tenants’ safety concerns. Some of these concerns were addressed in a notice from NYCHA General Manager, Michael Kelly dated August, 5, 2017, available at https://medium.com/@NYCMayorsOffice/addressing-scaffolding-concerns-at-nycha-developments92b4089bcd31 308 See http://www.cssny.org/news/entry/css-report-details-targeting-of-high-poverty-black-communities-for-fareeva
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commonsense policy of positioning officers in front of turnstiles and gates to act as a deterrent. As in the finding contained within the Community Service Society report, community members voiced deep frustration about how these practices were seemingly focused on subway stations in minority neighborhoods.
The collateral consequences of these practices are far reaching, leading to criminalization of youth and the poor. It is recommended that the NYPD give serious consideration to revisiting these policing practices in the interest of, among other things, mitigating the sense of distrust that members of affected communities have of the Department and improving police-community relations.
5. Community Investment As of 2017, there were 176,066 public housing apartments in 2,462 buildings, in 326 developments throughout the five boroughs; however, there were only 145 community centers and youth programs funded by NYCHA or otherwise.309 During recent years, community programming for young people living in and around NYCHA developments has taken a sharp decline, with 61 community centers closing. During the Davis focus groups, participants were asked “What role would you like community groups or government agencies to play in supporting a safe neighborhood?” Most, if not all, participants expressed a desire for more community centers, after school programs, and Police Athletic League programs. Research has long addressed the effect of decreased programming in community centers and after school programs and its correlation to delinquency and/or increased contact with police.
309 See https://www1.nyc.gov/assets/nycha/downloads/pdf/factsheet.pdf and https://data.cityofnewyork.us/browse?tags=nycha
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Policymakers should also seriously consider a large investment in programs that promote crime prevention as part of public safety. The Cure Violence programs associated with the Crisis Management System of the New York City Department of Health and Mental Hygiene have collaborated extensively with the JRP. They have vast experience in successfully mediating gun violence incidents in cooperation with the NYPD. As we indicated earlier, in footnote 288 of the Community Engagement recommendation, “the Facilitation Team found the violence interrupters were well connected to their communities while also maintaining meaningful relationships with the NYPD” The violence interruption programs should be more fully funded and supported by the City of New York. They are reducing shootings by as high as 80% in some of their target areas through intensive, on the ground, mediation efforts. The NYPD should foster even closer relationships with these programs, as they are effective collaborators in reducing gun violence and all of its tragic consequences. The City of New York should seek to expand and provide greater support and resources to these programs.
6. Repeal of Civil Rights Law § 50-A The Mayor and the State of New York should reevaluate their interpretation of Civil Rights Law § 50-a, which prohibits the Department from sharing information which has historically been open to the public. Many groups agree that the current interpretation of Civil Rights Law § 50-a is overbroad.
Access to public records is presumed under New York’s Freedom of Information Law (“FOIL”). However, under New York City’s current interpretation of Civil Rights Law § 50-a, access to police disciplinary records is not generally available. This interpretation undervalues public access to information relating to officer accountability for misconduct in the name of officer privacy and safety concerns.
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Under section 87 of FOIL, “[a]ll records of a public agency are presumptively open to
public inspection, without regard to need or purpose of the applicant.”310 As explained in the
Legislative declaration to FOIL:
a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions. The more open a government is with its citizenry, the greater the understanding and participation of the public in government.
The people’s right to know the process of governmental decision making and to review the documents and statistics leading to determinations is basic to our society. Access to such information should not be thwarted by shrouding it with the cloak of secrecy or confidentiality. The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.311
Notably, under FOIL the presumptive right to public inspection extends to a government
employee’s disciplinary records.312 For decades “personnel orders,” which among other things,
included information regarding disciplinary actions taken with respect to police officers, were
publicly posted in the offices of the Deputy Commissioner for Public Information. On May 27,
2016, after the Legal Aid Society filed a FOIL request seeking disciplinary summaries published
in the personnel orders dating back to 2011, the City denied Legal Aid’s FOIL request and
stopped the practice of posting personnel orders. The stated reason was Civil Rights Law § 50-a,
which provides that “personnel records [of a police officer] used to evaluate performance toward
continued employment or promotion . . . [are] considered confidential . . . .” In this way, Section
310 Buffalo News, Inc. v. Buffalo Enter. Dev. Corp., 84 N.Y.2d 488, 492 (1994). 311 N.Y. Pub. Off. Law § 84. Under FOIL, an agency “may deny access to records” that “are specifically exempted from disclosure by state . . . statute.” Id. § 87(a)(2) (emphasis added). 312 See Mulgrew v. Board of Educ. of City Sch. Dist. of City of N.Y., 31 Misc. 3d 296, 302 (Sup. Ct. N.Y. Co.), aff’d, 87 A.D.3d 506 (1st Dep’t 2011) (explaining that courts have “repeatedly” ordered the “release of job-performance related information, even negative information such as that involving misconduct”).
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50-a is invoked by the City to prevent public access to discipline information — even summaries of substantiated misconduct — including information that had been publicly available to journalists for decades.
But nothing in the law compels this result. The City chose to interpret “personnel records” broadly, so that they include summaries of misconduct determinations, and has chosen not to produce the records despite the authority to do so under FOIL. In 2018, however, the NYPD decided to publish anonymized summaries of allegations against officers and the disciplinary actions taken in response by the Department. The NYPD’s decision to publish this information is consistent with the need for greater transparency and accountability stressed in this Report and with historical interpretation of Public Law 50-a. The NYPD’s effort has received stiff opposition from the Patrolmen’s Benevolent Association, which, citing Public Law 50-a, has sued to enjoin the publication of this data and has obtained a temporary restraining order.313
Traditionally, section 50-a has been invoked in two contexts — when information is sought by the public or public interest groups under FOIL or in response to subpoenas in civil and criminal proceedings. Not surprisingly, section 50-a has been widely criticized.
New York is one of only three states that grant police officers special confidentiality protections.314 As explained by New York State’s Committee on Open Government, which is charged with overseeing FOIL:
313 See Patrolmen’s Benevolent Society v. De Blasio, No. 0153231/2018. Earlier in 2018, the PBA sued the City to prevent publication of BWC footage. See Patrolmen’s Benevolent Society v. De Blasio, No. 0150181/2018. 314 See Robert Lewis, Noah Veltman & Xander Landen, “Is Police Misconduct a Secret in Your State?”, WNYC News, Oct. 15, 2015 (hereafter “Lewis, Veltman & Landen 2015”). To be more precise, under New York,
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New York is virtually unique among the states in its refusal to apply the same transparency to police and other uniformed services as applies to all other public employees. Our study of the laws of all fifty states reveals that the great majority treat records pertaining to police officers in exactly the same manner as the treatment of records pertaining to other public employees. No other state provides the unique protection afforded in Civil Rights Law § 50-a.315 As a general matter, police disciplinary records are available to the public in Alabama,
Arizona, Connecticut, Georgia, Florida, Ohio, Maine, Minnesota, North Dakota, Utah, and
Washington, although records of active or unsubstantiated complaints are often not made public.
Minnesota law permits public access to “the existence and status of any complaints or charges
against the employee, regardless of whether the complaint or charge resulted in a disciplinary action.”316 Information is also available on a more limited basis in Arkansas, Hawaii, Illinois,
Indiana, Kentucky, Louisiana, Massachusetts, Michigan, New Mexico, Oklahoma, South
Carolina, Tennessee, Texas, Vermont, and West Virginia. For instance, the Hawaii statute makes public employee misconduct that results in suspension or discharge.317
Even before the City’s decision to stop posting personnel orders, the Committee on Open
Government had called for the amendment or repeal of Civil Rights Law § 50-a, arguing that
“the public needs and deserves transparency surrounding these government officials [i.e., police
officers] who exercise vast power over peoples’ lives.” Following the City’s recent refusal to
California, and Delaware law, police officer personnel records are deemed confidential. Likewise, in Alaska, Colorado, Washington, D.C., Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, Oregon, Pennsylvania, Rhode Island, South Dakota, Virginia, and Wyoming, a public records request for a police officer’s disciplinary history is unlikely to be successful. The WNYC report is available at https://www.wnyc.org/story/police-misconduct-records/ 315 2014 Annual Report; see also Lewis, Veltman & Landen 2015. 316 22 Minn. Stat. Ann. § 13.43 (2016). 317 See 24 Haw. Rev. Stat. Ann. § 92F-14 (2016).
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release discipline information, community groups and politicians, including Governor Cuomo, had criticized the law and called for its repeal or reform.
New York’s appellate courts have thus far upheld the NYPD’s restrictive application of Civil Rights Law § 50-a. In the view of these courts, the answer for proponents of greater transparency can only be found by legislative action or a ruling by the Court of Appeals.318 While legislation has been introduced, as of the date of this writing, none has passed.
The City has taken the position that Civil Rights Law § 50-a itself bars access to disciplinary records.319 However, neither legislation nor court victories are needed for the Department to produce the basic information it has always produced, including summaries of misconduct substantiated by investigations conducted by the IAB or the CCRB. No court has required the City to interpret personnel records broadly; indeed, no court has ever held that the City is required to withhold information by Civil Rights Law § 50-a. Furthermore, “[n]othing in the Freedom of Information Law [ ] restricts the right of the agency if it so chooses to grant access to records within any of the statutory exceptions, with or without deletion of identifying
318 See New York Civil Liberties Union v. N.Y. City Police Dep’t, 148 A.D.3d 642, 642 (1st Dep’t 2017) (“We appreciate the various policy arguments made by petitioner and amici curiae, and agree that the public has a compelling interest in ensuring that respondents take effective steps to monitor and discipline police officers. Likewise, we recognize that the principles of confidentiality that underlie section 50-a may very well be protected by the redaction of identifying details from the disciplinary decisions sought here. However, as an intermediate appellate court, we cannot overrule the Court of Appeals . . . . The remedy requested by petitioner must come not from this Court, but from the legislature or the Court of Appeals.”); Luongo v. Records Access Officer, Civilian Complaint Review Bd., 150 A.D.3d 13, 13 (1st Dep’t 2017) (“Petitioner’s remedies, under our tripartite system of government, rest with the Legislature as the policy making branch of government, not the courts, which are tasked with interpretation of the laws.”). 319 See, e.g., Greg B. Smith, Kenneth Lovett, Graham Rayman, “De Blasio calls on Albany to nix law that hides NYPD officers’ disciplinary records; cop unions protest,” New York Daily News, Sept. 1, 2016 (quoting de Blasio as stating, “I believe we should change the state law and make these records public . . . The current state law that we have to honor — that does not allow for transparency”).
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details.”320 Finally, “FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”321
In short, the City’s position that it is compelled to deny access to records may not be supported by the law.322 While legislation is favored to remove the shield provided by Civil Rights Law §50-a, none is required for the City to restore transparency. The City’s restrictive application of section 50-a undercuts transparency and accountability, which in turns threatens the long-term impact of the reforms implemented to remedy the Department’s unconstitutional stop-and-frisk practices, not to mention the public’s trust of the Department. Civil Rights Law § 50-a and the City’s interpretation of it effectively prevents the public from performing its traditional watchdog function and the critical oversight needed once the Monitor’s term ends. The New York state legislature should pass legislation remedying this gap in transparency and accountability by repealing Civil Rights Law § 50-a.
7. Cultural Competency Training Community members in attendance at community forums and those who participated in focus group discussions often expressed concerns around police officers’ lack of cultural competence. Cultural competency is loosely defined as the ability to understand and interact with cultures and belief systems that are different from one’s own. Community members felt that the
320 Short v. Bd. of Managers of Nassau Cty. Med. Ctr., 57 N.Y.2d 399, 404 (1982). 321 Buffalo News, Inc., 84 N.Y.2d at 492 (internal quotation marks omitted). 322 In point of fact, “The NYPD provided the monitor team with the CCRB complaint counts per officer for the length of their careers” in connection with the BWC pilot program. The Monitor has published in part the result of analysis of some of this data, including that “Treatment officers had a total mean of 1.31 CCRB complaints with a range of 0-17 complaints. Control officers had a total mean of 1.54 CCRB complaints with a range of 0-25 complaints. Since career lengths vary . . . , the number of complaints was divided by time of service to estimate each individual officer’s CCRB complaint rate per year of service.” Sixth Report of the Independent Monitor, The NYPD’s Body-Worn Camera Pilot: Research and Evaluation Plan (June 29, 2017).
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absence of cultural competency training for police officers combined with any previously held stereotypical notions about these communities often resulted in misinterpretation of behaviors and or otherwise targeting community members. The collateral damage of this void often resulted in severely damaged police-community relations.
As a result of these concerns, participants suggested cultural competency trainings that would help officers better understand the communities that they work within. This training should be an extension of, but not be mistaken for, Fair and Impartial Policing training workshops. As written by Dr. Mitchell Rice in his 2008 primer, “cultural competency is not affirmative action, multiculturalism, diversity training, equal employment opportunity, or political correctness, but instead, it is an integration and transformation of knowledge about groups into specific policies, practices, and attitudes used in appropriate cultural settings to increase the quality of services, thereby producing better outcomes.”323 Such trainings will enable officers to develop a level of cultural awareness that helps them better understand the communities that they work in, thereby exhibiting actions that take into account the cultural context of the encounters. An earlier suggestion by the 1998 Mayor’s Taskforce on Police Community Relations suggested such a curriculum. The Taskforce stated that “the Department should create a proactive curriculum which exposes student officers to the diverse and changing nature of the City’s communities, that challenges them to become cognizant of and question the feelings, assumptions and perceptions which influence their behavior, and equips them with the
323 Rice, M.F. (2008). A Primer for Developing a Public Agency Service Ethos of Cultural Competency in Public Services Programming and Public Services Delivery. Journal of Public Affairs Education and Administration.
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necessary tools to effectively serve all communities with courtesy, professionalism and respect.”324
8. Neighborhood Coordination Officers During the course of the JRP and specifically in the community forums, we had the pleasure of encountering several Neighborhood Coordinating Officers (“NCO”) who were genuinely interested in improving community relations and developing problem solving strategies in their precincts. This model, along with the use of sector officers to engage community members, is long overdue and the NYPD deserves great credit for its implementation.
We recommend that this program be improved. Improved simply means that the quality of such policing extends beyond the few NCO officers assigned and that these officers are not the first to be pulled away for other assignments. There are a limited number of officers currently assigned to this role, and when those assigned officers are regularly pulled away this affects the NCO program as whole. A consistent message from community members was that NCOs were often the first officers pulled away for special events and assignments and that there are simply not enough of them. Many members of impacted communities want expanded opportunities for meaningful interactions with their NCO officers.325 To be clear, this is not a recommendation for increased funding to improve or expand the NCO program, but instead to improve it within the budgetary bounds already allotted.
324 Task Force on New York City Police/Community Relations: Report to the Mayor, March 1998. 325 The NYPD has since expanded their NCO program into a leadership philosophy central to their internal reform process. Program expansion is underway, and by the publishing of this report, should be implemented in over 60 commands throughout the City.
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 283 of 312 9. Community Engagement ‒ Reconciliation
The NYPD should begin to infuse restorative justice efforts into its neighborhood policing strategy. The National Initiative for Building Trust and Justice houses a great number of toolkits and resources on reconciliation for police departments which may prove helpful to the NYPD. Greater emphasis should be put toward this effort through command officer training, Community Council meetings, public education campaigns, and Office of Community Affairs forums and fairs. The NYPD should develop effective techniques and strategies to foster community partnerships, support restorative justice initiatives, and ensure precinct-level accountability for improving public legitimacy. It is important that such efforts come from the top down, and more importantly that such a message is reinforced at every level of operations. While reconciliation is an undertaking which is as broadly defined as it can be far reaching, a strategy of incorporating reconciliation into the NYPD’s current programs and trainings has the potential to inculcate systemic change, including with respect to the issue of mistrust.
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10. Police Trauma ‒ NYPD Employee Assistance Program During the Leadership Meeting Phase, community service organizations recommended that the NYPD further develop, augment and support its existing programs that assist officers in coping with trauma. Policing is a high stress, trauma-oriented job, so seeking support should be normalized for police officers.
It was recognized that police officers are exposed to various forms of vicarious trauma by constantly responding to traumatic situations in addition to any trauma they may personally experience in the course of their duties. It was further explained that just as implicit biases affect how officers interact with the public, trauma can play an important role because it causes hypervigilance and feelings of being threatened, which it turn may result in escalation of conflicts.
A critical aspect of addressing the mistrust between civilians and police is addressing the stress, trauma, and at times, disillusionment that officers carry, and take with them into the field. NYPD should ensure that support programs for officers are easily accessible, solution-oriented, and provide officers with strategies to manage trauma in a way that does not diminish their experiences or their competence in the field. It is recommended that the Court order that the NYPD enhance its current officer support functions, and incorporate workshops in collaboration with outside agencies, to assist officers in developing tools to identify and manage their own trauma, and better recognize how it affects their work in the community. The NYPD should also find ways to further encourage officer participation in these programs, as officers may be reluctant to seek counseling because of cultural reasons at the Department that make officers wary of admitting vulnerability.
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11. Training for Plainclothes Police Officers Community participants of focus groups and community forums often cited plainclothes units as the worst offenders of unconstitutional SQF and trespass enforcement. Focus group participants shared experiences of plain clothes officers “rolling up” on them for no apparent reason. These officers were also labeled by community members as “D’s”. Participants expressed that these officers engaged in regular and frequent stops without justification. They further expressed that plain clothes police often targeted certain individuals for repeated stops. This issue was frequently raised throughout the JRP, with the experience of contact with plainclothes officers described as being fraught with tension, fear, and conflict.
It is our understanding that the SQF and trespass enforcement training for plainclothes units is being developed. We urge that in the interest of promoting safe, respectful, and constitutional interactions with the public, that the SQF and trespass enforcement training for plainclothes units be consistent with the comprehensive curriculum used to train uniformed officers, including the implicit bias and procedural justice elements.
12. Criminal Court Search and Seizure Inquiry at Arraignment In a city that at one point had over 685,000 stops-and-frisks in a year,326 it is surprising that there was not a commensurate increase in the number of suppression hearings with police officers called to testify about the bases for these stops. Under the exclusionary rule for Fourth Amendment violations,327 the Supreme Court determined that suppression of tainted evidence
326 There were 685,724 reported stops-and-frisks in 2011. See NEW YORK CIVIL LIBERTIES UNION, Stop and Frisk Data, available at http://www.nyclu.org/content/stop-and-frisk-data. As noted elsewhere in this Report, officers were not preparing UF-250 for every stop they made, meaning the actual number of stops made in 2011 exceeds 685,724. 327 See Weeks v. United States, 232 U.S. 383 (1914); Mapp v. Ohio, 367 U.S. 643, 656 (1961).
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was necessary to deter police officers from violating constitutional rights.328 But suppression hearings in the Criminal Court are few and far between.329
While the Supreme Court recognized the limitations of suppression as a means to control police behavior,330 it nevertheless stated that “[u]nder our decision, courts still retain their
traditional responsibility to guard against police conduct which is overbearing or harassing, or
which trenches upon personal security without the objective evidentiary justification which the Constitution requires.”331 As Federal Court Judge Jack Weinstein wrote regarding Terry, “Active policing of the police by trial courts was noted as serving a ‘vital function.’”332 The idea that
courts can promote constitutional policing by conducting suppression hearings is not limited to
Terry. As then-Chief Justice Burger stated almost fifty years ago, “suppression of evidence in
these cases [is] imperative to deter law enforcement authorities from using improper methods to obtain evidence,”333 and that law enforcement would indeed be deterred if evidence was “suppressed often enough.”334
328 See Mapp, 367 U.S. at 656. 329 In fact, there is no readily available data kept by any state agency regarding the number of suppression hearings held or the outcomes of those hearings. See Steven Zeidman, Policing the Police: The Role of the Courts and Prosecution, 32 Fordham Urb. L.J. 315, 321 (2005). The Criminal Court of the City of New York Annual Report lists the number of “pre-trial hearings commenced,” but does not delineate the type of pre-trial hearing, whether the hearing was actually completed, and, most important, the outcome. See OFFICE OF THE CHIEF CLERK OF THE N.Y. CITY CRIM. CT., CRIMINAL COURT OF THE CITY OF NEW YORK ANNUAL REPORT 2011 6 (Justin Barry ed. 2012), available at http://www.courts.state.ny.us/courts/nyc/criminal/AnnualReport2011.pdf 330 See Terry, 392 U.S. at 14-15. 331 Id. at 15. Similarly, prosecutors have a special duty to do justice; a requirement that emphasis procedural validity over obtaining convictions. 332 Jack B. Weinstein & Mae C. Quinn, Terry, Race and Judicial Integrity, 72 St. John’s L. Rev. 1323, 1328 (1998) (quoting Terry, 392 U.S. at 12). 333 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 413 (1971) (Burger, C.J., dissenting). 334 Id. at 415.
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In addition, during the Leadership Meeting Phase, we received feedback that under the current criminal procedure law in New York,335 as applied, there is no discovery process for ascertaining the issues connected with a stop until the beginning of a trial. The practical result is that because most cases result in a plea deal, there is no opportunity to obtain discovery about stops in most cases.
For these reasons, we believe that judges should be encouraged to ask the prosecutor, early in the proceedings, for the factual predicate of the search and seizure in each case they hear. Instead of asking “What’s the offer?” or “Is there a disposition?” at the start of each arraignment, judges should ask “What is the basis for the stop and arrest?” This inquiry need not be particularly time-consuming, but would at least allow the Criminal Court to on some level monitor police/citizen interactions on a regular basis. In addition, Criminal Court judges should consider, where appropriate, holding more suppression hearings that would test the validity of stops in light of the unconstitutional policing that resulted in the Floyd, Davis, and Ligon litigations.
335 See CPL Article 240; People v. Rosario, 9 N.Y.2d 286 (1961).
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SECTION VIII: PROCESS OBSERVATIONS AND LESSONS LEARNED
Introduction The Joint Remedial Process (“JRP”) was an opportunity to better understand the issues and experiences of impacted individuals, based on qualitative feedback from communities affected by the New York City Police Department’s (“NYPD”) stop, question, and frisk and trespass enforcement policies (“SQF”), and to cultivate meaningful engagement between these communities and the NYPD. Relying on national trends supporting community input in reform efforts, the Facilitation Team sought to design a process which could be used as a model for continued collaboration between police departments and the communities they serve. As such, it became increasingly important that as the process was developed and executed, careful attention was paid to assessing the effectiveness of our methods for possible reproduction. This section provides a review of the Facilitation Team’s observations at each Phase of the JRP, and provides some additional suggestions on how some of these methods could be implemented or revised to accommodate other jurisdictions and cities of varying sizes. We also
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share this information in the hope that it might assist organizations and law enforcement agencies seeking to replicate this process. Each section provides a brief summary of the topline issues and ideas that presented themselves during the planning and implementation of the process. These ideas can be used as a guidepost for future discussion and planning.
Convening Phase As the initial step in the development of the remedies process it was critical that the Facilitation Team developed a strong base that included individuals and organizations that would be willing to assist in the development and implementation of the JRP. In order to do that, it was important to take a step back and review the goals of the JRP — namely to get meaningful feedback on reforms from impacted community members and to provide a framework for addressing police-community relations in New York City. The convening stage was developed as a means to develop relationships with community organizations and other New York City actors. This in turn created opportunities for these organizations and individuals to actively engage in this community engagement process by, among other things, populating focus groups, co-hosting community forums, participating in leadership meetings, and/or providing white papers. In review, we raise several themes in the development of this Phase and the JRP overall, including:
● Identifying Issues and Outreach ● Figuring Out the Goal ● Issues of Process Design ● Roles and Responsibilities of the Facilitation Team ● Effects of Changes in Political Climate
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Identifying Issues and Outreach in the Convening of the JRP In order to develop a robust process the Facilitation Team needed to better understand the
scope of the issues at hand beyond the SQF statistics that have been publicly available. In addition to developing a greater understanding of the scope of the problem, it was important to understand how this process aligns with prior community engagement processes in other jurisdictions. Using the community engagement efforts in Cincinnati, Seattle, and elsewhere as a guide, the Facilitation Team placed seeking several inputs into the structure of the process a priority. Stakeholder groups would be the impetus for this input. It was therefore important that the Facilitation Team identify entities and representatives who were familiar with the SQF and trespass enforcement, either by their mission or their connection to communities impacted by these policies. In consultation with plaintiffs’ counsel and the NYPD, a list was generated that included several elected officials and community groups for initial outreach, with the option of expanding outreach as necessary. In order to cultivate these working relationships, the Facilitation Team set up a series of internal meetings to discuss the development of the JRP.
These early meetings helped the Facilitation Team sift through ambiguities and challenges. The following questions, generated during early planning meetings, helped develop a focused process:
● What does a Joint Remedial Process look like? ● Who are the communities most affected? ● How do we define community? ● How do we penetrate these communities? ● How do you conduct outreach? ● How broad or narrow should the outreach be?
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Given the mandate of the Joint Remedial Process, it was critical to identify the communities most affected by SQF practices. We determined that the best way to identify these communities was through the use of publicly available SQF and trespass enforcement data.
We further determined the best way to gather robust data from these communities was through multiple phases and varied means of soliciting community input. This would allow the Facilitation Team to gather varied input from a diverse set of perspectives that included both individual and collective voices.
Having had early conversations on the issues from different community groups, the Facilitator thought it important that communities most impacted feel as if their concerns were heard and carefully considered rather than just quantified. With this in mind, the JRP Team developed a streamlined process with a simplified series of phases aimed at gathering a wealth of information, giving community members a space for catharsis, and collective brainstorming, while also providing opportunities for interactions between police officers and community members. This allowed the Facilitation Team to receive direct input from police officers while at the same time fostering better police-community relations. Figuring Out the Goal of the Process
Contending with the potential for wide and varied input meant that the Facilitation Team would need to navigate a relatively neutral path toward the final recommendations and reforms. This presented two issues, whether inputs should be regarded based solely upon consensus, or whether the goal of the process was to recommend mandated reforms and suggested ideas for
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change.336 Moving forward, it was decided that information from a wider audience would be ideal, rather than to restrict input based upon the development of an arbitrary structure. The Team decided to cast a wide net for information gathering.
Issues of Process Design There were several options available for the initial information gathering phase — these
included a traditional survey, a participatory action research survey or a focus group process. There are distinct differences between these research methodologies. Due to the magnitude of information gathering the JRP would require, the Team had to contend with how best to move forward with developing the process structure. Initially, the Team considered a survey for gathering such extensive input. The Facilitator initially sought out entities to assist in the development of this survey. After learning more about participatory action surveys, the Team considered a proposal from the City University of New York (“CUNY”) for gathering community feedback. The NYPD, however, was not amenable to the use of a participatory action survey approach.337
Facilitation Roles & Responsibilities As a result of our consideration of various methodologies for community engagement and
information gathering, the Team developed a better understanding of the role of the Facilitator and Facilitation Team in relation to community groups. Given the unique nature of this process, the Team had to make determinations about the responsibilities of the Facilitator after several
336 These issues were recurring throughout the varying phases of the JRP before resolving in the Final Report all feasible recommendations, and reporting upon those outside of the scope of the JRP. 337 One of the other issues we found with the survey model was that it lacked a component for the discussion of issues between community members, limited the information we could receive based on response options, and the complexity of information we received which might be helpful for generating additional recommendations.
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conflicting discussions with the New York City Law Department, NYPD, plaintiffs’ counsel and other stakeholder groups. For example, plaintiffs’ counsel and CPR argued that the JRP should function as a community-driven process, instead of as a process supervised by an independent and impartial Court-appointed Facilitator. Clearly, this might affect the outcomes of the information gathering process. This issue was recurring throughout the course of the JRP.
For the purposes of providing community centered guidance, the Facilitator decided to convene an Advisory Committee. Given the Facilitator’s position that the JRP serve in some capacity as a healing exercise, the Advisory Committee was convened to create opportunities for community members including the class action plaintiffs, clergy, academic leaders, police union representatives, as well as NYPD and NYCHA, to play a significant role in steering the Joint Remedial Process toward a cooperative end for all parties involved. While the mission of the Advisory Committee was noble, it was problematic in its execution. Representation among the constituent groups was inconsistent. Due to this inconsistency, discussions were often repetitive. Member fatigue soon set in consequently affecting the discussions and attendance. As an alternative, the Team decided to collapse meetings into smaller working groups, invite community-based members to attend All-Parties meetings,338 and agree to convene fewer, more topic-specific, meetings moving forward (these changes are discussed in further detail in the ‘Overarching Observations’ section below).
338 All-Parties meetings were usually attended by only plaintiffs’ counsel and NYPD executive leadership, but over time and under advisement of plaintiffs’ counsel, CPR members of the Advisory Committee were invited to attend which allowed us to collapse the Advisory Committee schedule to an “as-needed” basis.
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Changes in Political Climate One additional process observation in this section was navigating the changes in the
political climate since 2014. At the time the JRP was unfolding, several high profile incidents in which allegedly excessive force was used or there was an unjustified shooting by a police officer occurred locally and nationally. The JRP Team was faced with the challenge of navigating the existing tensions in communities not just based upon SQF and trespass enforcement in New York City, but based upon events and news media surrounding similar tensions across the nation. The Facilitation Team sought to develop a local community engagement process which was in many ways related and yet separate and apart from the events that were taking place at that time. The Facilitation Team recognized the importance of addressing allegations of excessive force or unjustified shootings. While it was also understood that investigative encounters are often the antecedent to these types of incidents, the JRP was limited in its jurisdiction to unconstitutional SQF, and trespass enforcement.
Because it was important to the Facilitation Team that community members provide direct and meaningful input into the JRP, it became increasingly important that care be given not to stifle input or displace SQF from the context in which it arose. Instead greater care and attention was placed on meaningful engagement, skillful facilitation of focus groups and community discussions, and conscientious redirection during all of these input sessions to the central jurisdictional issues of SQF and trespass enforcement in New York City.
Focus Group Phase The Focus Group Phase presented the Facilitation Team with its own unique set of opportunities and challenges. Below, we highlight some of the topline concepts which could be useful as a catalyst for continued inquiry and discussion.
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Focus Group Questions As covered in the Focus Group Phase section of the Final Report, a list of questions was
generated in consultation with plaintiffs’ counsel, NYPD executives, and CPR for community feedback. Questions were carefully drafted and negotiated to be as neutral and open ended as possible. This was not without its challenges, however. There were challenges negotiating the types of questions that were asked, and in striking a balance between the stakeholders for input into the development of questions.339 After using the agreed upon questions during the initial set of focus groups, the focus group facilitator and co-facilitator determined that questions should be revised as need to meeting the nuanced requirements of an individual focus group. While great care was taken to standardize as much as possible, in some groups questions had to be reframed to ensure context and understanding by the participants. The Facilitation Team was able to garner information through the use of questions, ideas, and formats which were as similar as possible, while creating space for the type of group variance which could yield different outcomes in responses. For example, the question “Do you feel safe in your neighborhood?” often yielded disparate responses depending upon the group. Many community members responded in context to their feelings of safety with regard to their neighbors and their community, while the majority responded in regard to police officers. These responses laid the groundwork, at times, for varying sets of probing questions which helped the focus group facilitators to develop more meaningful inferences about the nature of police-community relations in these groups.
339 The Facilitation Team initially developed a series of open-ended questions which were agreed upon by plaintiffs’ counsel, but the NYPD hadn’t provided input until the focus groups were about to commence. Additionally, questions had to be re-drafted, and the focus group facilitator had to take great care to inform all of the stakeholders about the nature of focus group questions which should not be leading or result in simple yes/no responses.
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Focus Group Facilitator and Co-facilitator Another important observation was in regard to the assigned focus group facilitator and
co-facilitator. In line with research and tool kits on hosting focus groups, the Facilitation Team took great care to create a safe and neutral environment for participants. In addition to utilizing community spaces, the focus group facilitator and co-facilitator also took several measures to ensure that community members would feel safe to speak freely. For each forum, the facilitator and co-facilitator dressed in casual attire, the meeting space was organized into a circle, and the co-facilitator observed and took notes outside of the circle so as not to distract participants.
The focus group facilitators also took time to foster relationships with hosting organizations and participants to cultivate a culture of trust among participants. During meetings, the facilitator and focus group facilitator would start with an ice breaking activity which we called “Personal Prose”. This activity allowed participants to write details about themselves into a poem which could optionally be shared with the group. As part of making participants feel comfortable, the facilitator and focus group facilitator would participate in sharing their own personal prose with the group. After meetings participants could choose to participate in a small debriefing activity, and were free to ask questions of the Facilitation Team within the context of the focus groups. Some suggestions for focus group facilitators included:
● Cultivating a culture of trust between the organization and Facilitation Team. ● Utilizing ice breaker activities and initiating discussion. ● Engaging in casual conversation before and after group meetings. ● Providing closing debriefs or activities to re-center participants. ● When possible, utilizing facilitators from the same or similar background as
participants.
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Group Size and Dynamics Since focus group participants were intentionally selected from a sample of individuals
with direct and indirect SQF and trespass enforcement experiences, many participants would become consumed with recounting their own experiences which made it challenging to discuss solutions. During the early phases of the focus group process, the Facilitation Team realized that we would have to limit group size and dynamics in order to preserve the integrity of the discussion. Having smaller, more manageable groups of individuals with similar ages and circumstances made for much more streamlined conversation and greater opportunities for the facilitator to probe, where needed, within the allotted meeting time. Cutting Through Direct and Vicarious Trauma
One of the clearest and most visceral issues the Facilitation Team was confronted with during the process was the severe apprehension most participants would bring into the focus groups. Many community members did not/could not distinguish the JRP from the NYPD, feared being recorded, or feared retaliation by the NYPD for their participation in such meetings. For this reason and beyond, great care was taken to assure the confidentiality and anonymity of focus group participants so as to relieve their fears of exposure, and create a safe space for continued open and honest discussion among participants. Developing a clear “what happens here, stays here” primer is just one method of relieving the concerns of apprehensive civilians. Other methods utilized included the use of relatable facilitators, building in space for catharsis and group-sharing, and the employment of trust-building and debriefing exercises.
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Experience of Trauma and the Inconceivability of Change Aside from issues of fear and mistrust, the Facilitation Team was often met with a degree
of community cynicism toward the possibility of reforms. In what the Team has labeled the “Inconceivability of Change” paradox, community members would often highlight the perceived inevitability that “nothing is going to change,” while at the same time highlighting the desire for change. Through continued internal dialogue, the Team came to understand these statements not as a symptom of sheer pessimism but as a result of the traumatic experiences of SQF and trespass enforcement. We found that while community members earnestly wanted change, they also struggled to envision what change would look like. Community members, we perceived, had begun to lose hope that anything could change, let alone that they could have any part in such change.
Part of unpacking this helplessness required that the focus group facilitator utilize the tools of empowerment and imagination to get community members to push past barriers and articulate conceivable solutions. By asking community members to “pretend for a moment,” “act as if” or “picture in your ideal world,” the focus group facilitator was able to coax community members toward a solution orientation rather than a problem orientation.
Emerging Areas for Reform Part of conducting an exploratory review or analysis of any kind is the understanding that
one may end up discovering concepts that are entirely novel. During the Focus Group Phase participants provided great richness and depth to current paradigms about police reform. More surprising, however, was the community members conceptions of larger social issues, such as teenage homelessness and lack of after-school programming, that were relevant but beyond the scope of the Joint Remedial Process. These ideas were often powerful truths or suggestions
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which we believed deserved a platform, but which did not fit squarely within the confines of the Remedies Opinion. It was important to the Facilitation Team however not to lose the richness of this information despite our inability to make recommendations concerning these nonjurisdictional issues. That being said, the Facilitation Team felt it important that such information not be neglected on such a basis, but made available to the public for further consideration. The way we chose to navigate the use of this information was by incorporating a code in the analysis for “Extraneous Reform Ideas.” This allowed us to capture useful suggestions that could be addressed in the report as “Areas for Further Policy Consideration.”
Evaluating Outliers In every group there is an outlier — an entity that strays far enough from the larger group
to be noticeable. The focus groups were no exception. Though relatively few in number, there were instances in which participants had suggestions or made remarks that were far removed, or in direct contrast to the ideas of the larger group. In many cases, the focus group facilitator would give context to outlying statements by asking probing questions. We found that while some participants had similar experiences to other members of the focus group, they held vastly different attitudes and opinions. Understanding how other mitigating factors such as age, race, gender, and sexual orientation might factor in, gave the focus group facilitator context to infer the reasoning behind the participants assertions. Even outlying information was recorded and analyzed. Data was not quantified based on the frequency of assertions. These outlying assertions often provided additional context for the Facilitation Team to consider.
Cultural Competence It is important to be able to interpret meaning through the use of various accents, slang or
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process, cultural competency was an underlying concern for the Facilitation Team. During the Focus Group Phase, the Facilitation Team had to switch transcription companies after reviewing transcripts that inadvertently pulled participants’ language out of context, misattributed remarks or misstated participant responses based on the apparent inability on the part of transcriptionists to understand common street vernacular. In groups with LGBTQ individuals, it was similarly of great importance that the focus group facilitators have some basic knowledge of within-group labels and vocabulary. In the Community Forum Phase, it was critical for us to provide language and physical access, as well as access for the deaf and hard of hearing, in order to best fit the needs of the communities in which we conducted our outreach processes. All of these minor shifts allowed us, in some respects, to bridge the gap between the JRP and the community, and gather more meaningful feedback from the individuals who participated in the overall process.
Leadership Meeting Phase Continued Calls for Collaboration
Since leadership meetings were largely held with community organizations and advocates nationally and across the City, the Facilitation Team determined that there are distinctive elements to engagement with this groups that differ from engagement with community stakeholders. As subject matter experts and advocates, many groups were wary of goals and intentions of the Joint Remedial Process. The Facilitation Team tried to assuage this skepticism by providing organizations with an introductory packet which included an abridged list of some of the topics presented to us in the Focus Group Phase and an open agenda for the general format of the meeting. Providing these resources allowed organizational leadership the opportunity to directly address ideas that their organizations worked with most closely. These resources also assisted them in providing detailed feedback to the Team on the subject of reform. As these
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organizations are working in these areas on a daily basis, we found that most leadership expressed a strong interest in continued engagement with the outcomes and recommendations of this process. Many times, organization leadership asked for expanded opportunities for information gathering and feedback for the purpose of promoting the organization’s continued work in the field.
For our purposes, the Joint Remedial Process Team provided expanded opportunities for input by requesting that organizations provide white papers addressing the concerns of their group.340 Additionally, we compiled a list of organizations interested in continued collaboration with the NYPD, which we have made open to the public in Appendix G to this report.
Community Forum Phase By conducting a review of and reflecting on the forums in debriefing sessions, we were able to identify, in real time, potential threats to the legitimacy of the forums conducted in the JRP. These include:
● “Leveling” & Empowering Marginalized Voices. ● Collaborative Planning and Understanding Process Style. ● Finding a Common Language for Discourse. ● Unpacking and Managing Group Dynamics. Empowering Marginalized Voices Throughout the Joint Remedial Process, the Team focused its efforts on seeking out the voices of directly-impacted communities and individuals, and less on institutions. Therefore, the community forums were intentionally developed as a platform to elevate the voices of
340 See Appendix A.
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community members as subject matter experts. While much of the feedback from these conversations was reflective of a reality of which the average New Yorker may not be aware, for the people that live in these neighborhoods, and are part of these demographic groups, the stories they shared reflect the experiences of certain marginalized communities.
Collaborative Planning and Process Style One of the key questions in our evaluation of the Community Forum Phase was how
could forum development have been made more efficient? Throughout the planning, design, organization, and implementation of the forums it became evident that there exists an inherent tension between community-based and governmental structures. While many grassroots organizations utilize a democratic approach to planning, this was at times difficult to reconcile with the work processes of the JRP. The JRP was conducted pursuant to timelines as directed by the Remedies Opinion. While the Team acknowledges the greater fairness in a democratic process, constraints on the time and resources made it often difficult to achieve consensus around the programming of the forums.
It is however critical to address the ongoing interplay between grassroots organizations and institutional structures. Efficient collaborations require that expectations are clear, representation is apparent, facilitation is effective, and representatives have authority to speak for and make commitments on behalf of their member base.
Finding a Common Language for Discourse At several junctions of the JRP, semantic fragmentation became an issue between groups.
Often the subtle differences in interpretation led to protracted debates about intentions and fueled distrust among groups over similar ideas. One clear example was the varying definitions of
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“Community” among the stakeholders. Whether geographic, demographic, broad or more focused, it became clear that it is imperative to develop a common language for discourse between a wide range of interest groups.
There is a need for more collaborative conversations and consensus building on ideas and their meanings. Effective collaboration within a working group requires communication so individual players are prepared to function as a cohesive team. It is critical at every juncture of a project to develop a shared vocabulary with all parties involved. Unpacking the Dynamics of Small Group Discourse
Yet another set of observations made during the Community Forum Phase was around the adherence to certain social standards in group dynamics. For example, in some groups of women and men, male participants tended to dominate the conversation while female participants provided more passive feedback. In other examples, like with the West African forum, the groups self-selected themselves into all male and all female groups. We found that with these different arrangements there was improved participation, and a noticeable increase in the amount of feedback we received from women.
Similarly, in some groups of youth and adults, youth tended to self-censor and, generally, showed greater deference to the elder members of the group. In groups that were comprised predominantly of peers, discussions were often more open as contrasted with groups that included perceived authority figures. We found this to be especially true in groups with youth and police officers. While many youth present at select forums were willing to engage in earnest dialogue with officers, we did observe a tendency of officers to engage youth more didactically.
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In general, we found that while forums that involved police officers worked well to bring community and police together to discuss the fractured relationship between the two, they were somewhat less effective as problem solving activities. In many of the groups, Neighborhood Coordination Officers participated to engage community members in conversations about changes to the Department. We found that in most of these instances the officers present were inclined to answer questions, provide feedback or rationalization for civilian anecdotes, and share information on new programs and policies the Department has undertaken to address previous abuses. As helpful and as well received as these discussions were, the type of pedagogical discourse undertaken by officers in the group had the effect of shifting the dynamics of the conversation from collaborative problem solving to public education.
Managing group dynamics is challenging, particularly when hosting public events. While one cannot predict the quality of the interactions between members in a group setting, a great deal can be learned through observation. Group interactions can be managed in many different ways. For example, the use of small group facilitators helped to manage the conversations in the JRP forums and keep the focus on a collective goal. Other tools that could have been utilized include icebreakers and team building exercises, providing alternative options for feedback or anonymous sharing, setting clear expectations for group members, and creating space for minority (i.e., outranked or outnumbered) voices by leveling the field and giving greater deference to such members.
Unpacking Fear and Mistrust One of the most significant observations made during the Joint Remedial Process as a
whole, has been the patent level of fear and mistrust of police in directly-impacted communities. During the community forums, it was evident that while many community members wanted
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better relations with police, and better policing in general, most of the individuals involved in the forum still held a level of apprehension around police involvement. With the assistance of strong community leaders, we were able to convene a series of forums both exclusive and inclusive of officers, but in each set of forums the residual trauma, and relative disillusionment of community members was pronounced. Many community members utilized community forums as cathartic exercises, sharing feelings and experiences they have around policing. At many junctures, facilitators would have to steer the conversation back toward sharing potential solutions, while giving space to community members to unpack their trauma, and highlight issues they observed or experienced in their communities. Other groups self-censored, either providing disproportionate deference to officers, or shying away from discussion all together. In these instances, facilitators attempted to coax community members to share or stay present for discussion.
In instances where police were not included in the forums, based on community objections, fear was a heavily cited argument for the lack of police presence. Many individuals highlighted worries about retaliation as a consequence of police-involvement. The decision to develop two tracks seemed to be the most compelling direction for the JRP process, but other suggestions for addressing this issue in dialogue with community are raised below:
● Priming community members for discourse through a solution-oriented framework ● Preparing officers for engagement through trauma-informed and communication-skills
workshops ● Making space for community catharsis ● Utilizing truth and reconciliation methods for dialogue and the full acknowledgement of
offenses ● Providing closing decompression exercises for both officers and civilians
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While the above suggestions are not comprehensive, we believe they lay a good foundation for successful engagement between groups in future endeavors.
Overarching Observations in the Joint Remedial Process Community Distrust of Institutional Players
Likely due to the years of direct and vicarious trauma pervasive in many of the impacted communities, there were often challenges for the Facilitation Team in garnering the trust and respect of community members, as well as leadership. Overall distrust in the police, and the potential for reform, were obstacles to navigating an information gathering process that communities felt was legitimate. Many times the Facilitation Team would have to publicly differentiate itself from the NYPD to maintain its independent and impartial role in developing reform ideas. This distrust is not without warrant.
While there have been significant strides in New York City toward greater transparency, accountability and impact in marginalized communities, it is also fair to say that there is still a long way to go. Part of ushering in a new wave of reform is acknowledging past abuses and their lingering effects, and building in methods to garner trust. Methods used by the Facilitation Team to establish trust included the use of safe and neutral spaces for focus groups, meetings and forums, providing open communication and greater transparency (as much as possible), and fostering an overall culture of respect. Many of these methods were effective, though they could have been applied more liberally. Institutional players should make efforts, as much as possible, to provide more receptive environments for communities to meaningfully engage with projects. Other ideas that could be helpful for entities looking to work with traumatized communities could include the use of team building primers, fair and timely responses to requests for
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information, full acknowledgement of missteps, and greater collaboration with stakeholders, including critics, whenever possible.
Community Empowerment and Responsibility Part and parcel of engaging and collaborating with communities is the basic need for
community empowerment. Giving voice to marginalized and directly-impacted communities requires that community members feel as if what they have to say matters. As much as possible, the Facilitation Team sought to give deference to community leaders in driving the JRP toward a successful end. That being said, the Facilitation Team also recognized a need for a more balanced sense of responsibility for community partners. We do not fault community members for not taking a more dynamic role in the promotion of reform, but we raise this point as a call to action. At Focus Groups, Leadership Meetings, and Community Forums alike, community members emphasized the need for both the NYPD and the community itself to make stronger efforts toward change and collaboration. We believe that ensuring that the NYPD uphold its mandate and commitment to change also requires that most impacted communities take on greater responsibility for public safety in their communities, and hold themselves accountable for the preservation and oversight of change.
In making these assertions, the Facilitation Team would like to acknowledge the community organizations and individuals which have been committed to continuing the mission of change from the Cure Violence movement, to the Citizens United for Police Reform, to Citizens Crime Commission and Citizen’s Union. For institutions and municipalities committed to reform in New York City we have provided a list of organizations that have enlisted to provide their knowledge, expertise and services for the purposes of perpetuating change in the policing community. This list can be found in Appendix G.
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Stakeholder Fatigue Over the course of the Joint Remedial Process the Facilitation Team observed many of
the symptoms of what we have labeled “Stakeholder Fatigue.” Individuals and entities that were once enthusiastic and inquisitive, over time became less active and generally less responsive. We understand this to be a natural consequence of the substantial duration of the Joint Remedial Process, while also acknowledging that greater efforts could have been made to maintain strong stakeholder engagement. For example, while very active and engaged in the beginning of the process, over time NYPD become less responsive to requests for timely meetings and information. Similarly, community leaders became less engaged over time. Upon review of the process overall, the Facilitation Team has come up with several suggestions for managing stakeholder engagement over a considerable duration of time.
One tenet we believe is integral to the promotion of ongoing engagement is the generation of value. Social science literature asserts that generally the value or worth that we ascribe to a thing drives our motivation to pursue it.341 We found that superfluous or didactic meetings will affect fatigue, and instead we suggest that strategic meetings with opportunities for tangible outputs as a result of such meetings will likely be much more effective. Additionally, we found the use of collective agenda setting, the provision of consistent updates, and an emphasis on relevant next steps can likely be useful to prolong engagement.
Understanding Repeated Calls for Change History and context are fundamental. During the early phases of the JRP it was
challenging for the Facilitation Team to navigate some of the effects of the residual trauma and
341 A literature review of principles in psychology, and namely Expectancy-Value theory can speak to this phenomenon more broadly.
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mistrust that existed in communities. We found over time that emphasis on police-community relations, for example, would not be sufficient to address the demands of communities which have been attempting police reform for decades. The Facilitation Team was only able to come to a clearer understanding of these points with extensive review of past reform efforts.
Unfortunately, we acknowledge that institutional memory is short, but this point underscores the need for broader attention, review and analysis of repeated calls for change. While the idea may seem obvious, it's important to note that current institutional effort may not be enough. Police departments should take into careful consideration the review past litigation, corrective initiatives and analyze their impact on communities, particularly when those initiatives are relevant to calls for action in the present.
Retooling the Advisory Committee Advisory committees are collectives of subject matter experts who assist managers in
steering the course of projects. Generally speaking, advisory committees provide a wealth of information and resources, and are a beneficial addition to any process. However, in the case of the JRP, the Advisory Committee presented a number of challenges. Committee and participant attendance was imbalanced, meetings were long and at times combative, ideas being discussed were often repetitive and messaging was at times unclear. While Advisory Committees can be a useful tool, we believe it faltered under the JRP for the following reasons:
● Representation of stakeholder groups was inconsistent ● Meetings were often simple updates rather than collective strategy sessions ● Strategic meetings were at times antagonistic due to distinctions in ideological focus ● Topics from external meetings often distracted the focus of the Advisory Committee
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Eventually, members of the Advisory Committee were invited to attend All Parties meetings, which helped to ensure that discussions were more clear and productive. Advisory Committee meetings were then pared down to an as-needed basis.
While the Facilitation Team favors the All Parties meeting model for more collaborative reform processes, we provide some plausible ideas for managing a more fruitful and engaged Advisory Committee. We list these ideas below:
● Collective determination of the Advisory Committee’s goals and objectives ● Developing protocols, conduct guidelines and a confidentiality regimen that is agreed
upon by all members ● Ensuring balanced stakeholder involvement ● Limiting the number of members to better manage group dynamics342 ● Facilitating discussions based on strategy and deference to expertise ● Developing working groups and tasks for members
342 Literature on group dynamics suggests no more than eight participants. The JRP Advisory Committee was comprised of twice as many members.
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SECTION IX: CONCLUSION The New York City Joint Remedial Process was a landmark collaborative civic engagement process that was not previously ordered or undertaken in a city as large and diverse as New York City. The Facilitation Team hopes that its recommendations for additional reforms to the NYPD as well as the areas for policy consideration that are documented in this Final Report will be given serious consideration. It was our intention to give voice to those hundreds of thousands of persons living in communities that were widely affected by sustained and wide scale policies and unconstitutional policing. We note that the NYPD has made great strides in ending these policies and has demonstrated great willingness to continue to do so by engaging in profound revisions to its future policies and training protocols. We also note that it is committed to executing community policing in the form of its Neighborhood Coordinating Officer Program. These are important and necessary first steps which we applaud. While we are cognizant that the Department has come far, we urge that there are still significant reforms to be made particularly in the areas of transparency and accountability. We also note and thank the hard work and dedication of the Monitor and his team who have implemented the Immediate Reforms through a carefully designed and executed process. The Monitor attended many of our meetings and we are grateful to him for his valuable input. I would be greatly remiss if I did not thank the outstanding work of the Facilitation Team. My Deputy Facilitator, Michael Young, Senior Advisor Reinaldo Rivera, Project Manager
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Case 1:08-cv-01034-AT Document 597 Filed 05/15/18 Page 312 of 312 Jeanene Barrett, Deputy Project Manager Valerie Paul, Project Attorney Cliff Bloomfield, and Project Assistant Jennifer Dionicio have been indispensable in executing the Joint Remedial Process.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X

DAVID FLOYD, et al.,

08 Civ. 1034

Plaintiffs,

- against -

CITY OF NEW YORK,

Defendant.

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

KELTON DAVIS, et al.,

10 Civ. 0699

Plaintiffs,

- against -

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

Defendants.

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

JAENEAN LIGON, et al.,

12 Civ. 2274

Plaintiffs,

- against -

CITY OF NEW YORK, et al.,

Defendants.

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

PLAINTIFFS’ COMMENTS ON THE JOINT REMEDIAL PROCESS REFORMS

	  

	  

Case 1:08-cv-01034-AT Document 602 Filed 06/08/18 Page 2 of 41
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i	   TABLE OF RECOMMENDATIONS AND PLAINTIFFS’ POSITIONS .................................... ii	   COMMENT .................................................................................................................................... 1	  
I.	   Executive Summary.............................................................................................................. 1	   II.	   The Court Should Exercise its Broad Authority to Order the JRP Reforms....................... 5	   III.	   The JRP Reforms are Necessary to Remedy Established Constitutional Violations ........ 9	  
1.	   Inadequate Discipline (Rec. Nos. 2, 3) ............................................................................ 9	   2.	   Inadequate Documentation and Document Review (Rec. Nos. 4, 5, 6, 8) .................... 14	  
i.	   Documentation and Recording of Level 1 and 2 Encounters. .................................... 14	   a)	   Documentation....................................................................................................... 18	   b)	   Video recording ..................................................................................................... 19	  
ii.	   Advising People of Their Rights During Encounters ................................................ 22	   3.	   Deliberate Indifference to Ongoing Constitutional Violations (Rec. Nos. 7, 9)............ 25	  
i.	   Community Board on Reform Implementation .......................................................... 25	   ii.	   Community Survey on Reform Implementation ....................................................... 29	   4.	   Inadequate Performance Monitoring Systems (Rec. No. 1) .......................................... 30	   5.	   Inadequate Training (Rec. No. 11) ................................................................................ 33	   6.	   Other Recommendations (Rec. Nos. 10, 12, 13, 14) ..................................................... 34	   IV.	   Conclusion ....................................................................................................................... 36	  

	  

	  

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Cases

TABLE OF AUTHORITIES

Berry v. School District, 515 F. Supp. 344 (W.D. Mich. 1981) ................................................... 28

Brown v. Plata, 563 U.S. 493 (2011).............................................................................................. 5

City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982).................................................... 7

Dowell v. Board of Education, 465 F.2d 1012 (10th Cir. 1972)................................................... 28

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000). 7

Hutto v. Finney, 437 U.S. 678 (1978)............................................................................................. 6

Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015)...................................................................... 6

Milliken v. Bradley, 433 U.S. 267 (1977) ....................................................................................... 6

Morgan v. Kerrigan, 530 F.2d 401, 415 (1st Cir. 1976)................................................. 6, 7, 27, 28

People v. De Bour, 352 N.E.2d 562 (1976) ...................................................................... 14, 20, 22

Singleton v. Jackson Municipal Separate School District, 426 F.2d 1364 (5th Cir. 1970) .......... 28

State v. Ashbaugh, 244 P.3d 360 (Or. 2010)................................................................................. 16

Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971) .................................... 6

United States v. Parma, 661 F.2d 562 (6th Cir. 1981) ................................................................. 28

Utah v. Strieff, 136 U.S. 2056 (2016) ........................................................................................... 16

Other Authorities

Benjamin Mueller, New York Police Challenging More of Review Board’s Findings, Study Shows, NY Times (July 19, 2017) ............................................................................................ 12

Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946 (2002) .............. 16

Erika L. Johnson,“A Menace to Society:” the Use of Criminal Profiles and Its Effects on Black Males, 38 How. L.J. 629 (1995) ............................................................................................... 16

Kendall Taggart & Michael Hayes, The NYPD’s Secret Files, BuzzFeed (Apr. 16, 2018) ......... 11

Mary Calvi, NYPD Paid Nearly $1 Billion To Settle Lawsuits, CBS News, Oct. 14, 2010 ......... 32

Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent Decrees, 51 Wake Forest L. Rev. 793 (2016).............................. 28

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TABLE OF RECOMMENDATIONS AND PLAINTIFFS’ POSITIONS

Facilitator’s Rec. No. 1. Creation of Feedback Structures 2. Monthly Discipline Report 3. Disciplinary Recs. 4. Body Worn Cameras 5. Recoding Level 1 & 2 6. Accessing Stop Report 7. Community Engagement 8. Public Education Campaign 9. Community surveys 10. Youth informants 11. Disability training 12. LGBTQ training 13. Civil summonses 14. Trauma training

Plaintiffs’ Position Support with modifications Support Support with modifications Support with modifications Support with modifications Support Support with modifications Only support as modified Support with modifications Support Support Support Support Support

Comment Page 30 9 9 14, 19 14, 18 14, n.4 25 22 29 34 32 34 34 34

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COMMENT In the Final Report and Recommendations of the Hon. Ariel Belen (Ret.), Floyd v. City of New York, 08-cv-1034, Dkt # 597, Davis v. City of New York, 10-cv-699, Dkt # 399 (“Facilitator’s Report”), the Facilitator recommends that the Court require the City to implement fourteen remedial measures. The Facilitator’s recommendations are the product of a large-scale process that elicited comprehensive input from the parties and community stakeholders, in particular the people most affected by the City’s unlawful stop-and-frisk and trespass enforcement practices. The Facilitator’s extensive outreach included partnering with over 20 organizations to conduct 64 focus groups in which more than 500 people participated (Facilitator’s Report at 34-35); convening focus groups with “patrol officers, line supervisors, and executives” from the New York City Police Department (“NYPD”) (id. at 36); holding 18 meetings with 19 community and policy organizations (id. at 36-37); and assembling 28 structured community forums attended by 1,777 people. Id. at 37 and App. H. On behalf of the three citywide plaintiff classes we represent, we respectfully ask the Court to enter an order requiring the City to implement the Facilitator’s recommendations, with certain modifications explained herein. Such an order is needed to bring the NYPD’s stop-and-frisk and trespass enforcement practices into compliance with the Constitution and to ensure continued compliance. I.   Executive Summary The Facilitator’s Report was issued pursuant to the Court’s Remedial Order. Floyd Dkt # 372 at 32 (paragraph 9) (“Remedial Or.”). In the Remedial Order, the Court directed the development of reforms through two separate avenues: (1) an “Immediate Reform Process” (the “IRP”) that would develop a set of reforms through negotiations between the Monitor and the
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attorneys for the parties, Remedial Or. at 13-28; and (2) a “Joint Remedial Process” (the “JRP”) that would develop additional reforms based on community input, and which would involve the parties and community stakeholders. Remedial Or. at 28-32. The only reforms that have thus far been implemented in the remedial process have been developed through the IRP. The Court must now determine what reforms will be so-ordered through the JRP.
Throughout the course of the IRP, which has been ongoing since the end of 2014, the parties and the Monitor have worked together to develop and implement important reforms that have moved the Department toward compliance with the Constitution. Yet the IRP has left critical categories of necessary changes unaddressed, and the recommended JRP reforms fill that void. This is by design: The Court directed the parties to develop a “more thorough set” of remedial measures through the JRP that would “supplement” the IRP reforms. Remedial Or. at 14, 30. The JRP reforms are to focus, in particular, on developing “an improved system for monitoring, supervision, and discipline.” Id. at 23.
While the IRP reforms have been developed through negotiations among lawyers, the JRP reforms have been developed based on input from and discussions with the people most affected by the NYPD’s stop-and-frisk and trespass enforcement practices. As the Court opined in ordering the parties to engage in the JRP, “[t]he communities most affected by the NYPD’s use of stop and frisk have a distinct perspective highly relevant to crafting effective reforms.” Remedial Or. at 29. “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.” Id. The Court has emphasized the “importan[ce] [of] the parties work[ing] 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.” Mem. Op. & Order, Davis
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Dkt # 340 at 4. The JRP reforms are a central component of the Floyd Remedial Order and the Davis and Ligon settlements, and they are a prerequisite to the legitimacy of the remedial process. See id.
For the last three years, the Facilitator engaged dozens of community organizations and thousands of stakeholders to obtain community input from across the City, and to develop reforms based on that input. In his report, the Facilitator recommends that the Court order the City to implement fourteen remedial measures. Facilitator’s Report at 218-260. Each measure is designed to be within the scope of the Floyd Remedial Order and the Davis and Ligon settlements. See Facilitator’s Report at 218 (explaining that the Facilitator is recommending reforms that are consistent with the Remedial Order); compare with id. at 260 (explaining that the “policy considerations,” unlike the reform recommendations, “fell beyond the scope” of the Remedial Order). Before the Facilitator issued his final report, the NYPD circulated a memorandum arguing that it was not necessary for the Court to order implementation of the JRP reforms. See NYPD Response to JRP Reform Proposals, Floyd Dkt # 598-3, Davis as Dkt # 3993 (“NYPD Response”) at 1, 13-14; see also Facilitator’s Report at 39 (explaining that the NYPD Response was circulated during the course of JRP negotiations). We anticipate that the City might maintain this position in its comment on the Facilitator’s Report. Therefore, in further support of the Facilitator’s recommendations and to assist the Court, our comment explains why an order requiring implementation is both necessary and appropriate in light of the record evidence.
We begin our comment with an explanation of the flexible standard that governs the Court’s broad authority to order injunctive remedies in a case, such as this, where the plaintiff has proven widespread and longstanding constitutional violations. See section II, infra. We then
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address the substance of the Facilitator’s recommendations, in two parts. First, we demonstrate that recommendations 1 through 9 and 11 are needed to redress the constitutional violations established at the Floyd trial and addressed by the Davis and Ligon settlements. See section III(1) to (5), infra. We believe these reforms are, collectively, the minimum necessary to bring the NYPD’s practices into compliance with the Constitution. We discuss them in order of importance to the plaintiff classes, and we have organized them according to the violation that they remedy. For example, the progressive discipline standards and monthly discipline report address the Court’s finding that the NYPD failed to adequately discipline officers, and therefore these reforms appear together under the sub-heading “Inadequate Discipline.” Second, we provide our limited feedback on Recommendations 10 and 12 through 14. See section III(6), infra. Although we support implementation of these measures, we raise some cautions, and we believe that these reforms alone would be an insufficient remedy.
In considering which reforms should be so-ordered through the JRP, it is important to recall that the JRP was created in response to the City’s demonstrated indifference to community complaints about the use of the stop-and-frisk tactic. See Liability Opinion, Floyd Dkt # 373 (“Liability Op.”) at 60-63, 111-117, 178-180. Throughout the IRP, the City has made many improvements that constitute a notable accomplishment. This recent history, however, does not lessen the need for the remedial measures that have come through the JRP. The City’s resistance to reforming its stop-and-frisk practices dates back decades and persisted in the face of sustained community outcry. Liability Op. at 60-63, 111-117, 178-180. As set forth in the Facilitator’s Report, and as shown below, the City has not yet remedied crucial problems with its stop-andfrisk and trespass enforcement practices, and these problems persist. See e.g. Facilitator’s Report
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at 8 (reporting that “the communities most adversely affected by the widespread abuse of stop, question, and frisk and trespass enforcement” continue to experience those abuses).
Further, the NYPD has continued to resist remedying its discipline and monitoring practices, as is manifested by its opposition to the JRP reforms during negotiations. See NYPD Response, at xii-xiii. Notably, in “declin[ing]” to agree to court-ordered JRP reforms at that time, id. at 1, 13-14, the NYPD argued that an order requiring implementation was not necessary because of other policies it has initiated. See NYPD Response, passim. This is the precise argument the City made following the Floyd trial in effort to avoid an injunction, and the Court rejected it. See Defendant’s Post-Trial Mem. of Law, Dkt # 364 at 24-25 (arguing that an injunction was unnecessary given systems the NYPD already had in place and suggesting that “internally created” reforms would be more effective); Remedy Op. at 7-8 (noting that “the City declined to participate” in developing remedies and instead “argued that ‘the NYPD systems already in place’ . . . would suffice to address any constitutional wrongs . . .” and entering injunction despite the City’s argument). A court order implementing the Facilitator’s recommendations, with the modifications we propose, is necessary to ensure that reforms to the systemic constitutional violations proven at trial and underpinning the settlement agreements are not vulnerable to the whims of agency officials, and to ensure enduring compliance. II.   The Court Should Exercise its Broad Authority to Order the JRP Reforms
Federal courts have expansive authority to design injunctive remedies to redress constitutional violations, and this authority necessarily permits the Court broad flexibility in ordering specific reforms. See Brown v. Plata, 563 U.S. 493, 538 (2011) (“Courts have substantial flexibility when making . . . judgments” about remedial measures). Once constitutional violations have been shown, “the scope of a district court’s equitable powers to
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remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978) (quoting Milliken v. Bradley, 433 U.S. 267, 281 (1977), in turn quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971)). See also Remedial Or. at 6 and n.12-17. A court may order any remedial measure that addresses the constitutional violations at issue or “the condition that offends the Constitution.” Milliken, 433 U.S. at 281. See also Melendres v. Arpaio, 784 F.3d 1254, 1265 (9th Cir. 2015) (opining that a district court may order relief when “such relief is necessary to remedy a constitutional violation”) (internal citations and quotations omitted), cert. denied sub nom. Maricopa Cty., Ariz. v. Melendres, 136 S. Ct. 799 (2016). Courts are therefore permitted wide latitude to design whatever reforms are needed to cure the constitutional problem. Swann, 402 U.S. at 15 (opining that the “essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case.”). As the Ninth Circuit explained in the Melendres case, “an injunction exceeds the scope of a district court’s power only if it is ‘aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation.’” Melendres, 784 F.3d at 1265 (quoting Milliken, 433 U.S. at 282).
The City previously suggested that changes in NYPD leadership since the trial and the NYPD’s recent and forthcoming extrajudicial and unilateral changes to policies relieve its obligation to fully remedy the constitutional violations the plaintiffs proved. See NYPD Response, passim. Yet the passage of time or changing of the guard since the Floyd trial does not diminish the need for this Court to order the JRP reforms. First, plaintiffs are entitled to a remedy that provides complete relief from the unlawful practices identified in the Court’s liability decision. See Morgan v. Kerrigan, 530 F.2d 401, 415, 419 (1st Cir. 1976) (rejecting, in a desegregation case, “an attempt to reopen the findings of fact made by the district court at the
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liability stage of the proceedings” because, once constitutional violations were proven and a remedial order is in effect, the “only question before the district court was how to accomplish the greatest amount of actual desegregation consistent with the practicalities of the circumstances”). Second, if a defendant’s voluntary reforms could override the need for an injunction, “courts would be compelled to leave the defendant free to return to his old ways.” 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 n.10 (1982)) (alterations adopted). The plaintiffs are entitled to complete relief, and complete relief must include the full breadth of reforms necessary to durably cure all of the proven constitutional violations and to prevent recurrence.
Additionally, the JRP remedies in the Floyd case extend entirely to Davis v. City of New York, No. 10-cv-699, and Ligon v. City of New York, No. 12-cv-2274. In the Davis settlement, it was agreed that “the Court-Ordered Monitoring related to trespass enforcement in or around NYCHA residences will be identical to the Court Ordered Monitoring in the Floyd Remedies Opinion . . . .” Stipulation of Settlement and Agreement, dated February 4, 2015, Davis Dkt # 330 at 10-11. See also id. at 4 (defining “Court-Ordered Monitoring” as “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”). The Ligon settlement similarly incorporates the terms and provisions of the monitorship in the Floyd Remedial Order—including specifically the development of reforms through the JRP that bear on the NYPD’s policies and practices regarding trespass enforcement in or around TAP buildings, including those related to training, supervision, auditing, monitoring, and discipline of officers. See Stipulation of Settlement and Order, Ligon Dkt # No. 296, at ¶¶ J(1)-(2) (providing for the development of additional reforms through “Court-Ordered
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Monitoring”), B(14) (defining “Court-Ordered Monitoring” to include development of reforms “in the Joint Remedial Process” set out in the Aug. 12, 2013 Floyd remedial order), and E(1). Therefore, the authority to order reforms in Floyd entirely extends to ordering those reforms in Davis and Ligon.
In applying these legal standards and agreements to the question of whether to order the JRP reforms, it is centrally relevant that the Court in Floyd found systemic constitutional violations based upon extensive evidence of wrongdoing throughout the ranks of the NYPD. Liability Op., passim. It is also central to this inquiry that the constitutional violations were not found to be isolated or the result of so-called “bad apples”; the violations and indifference to them constituted the City’s operating policy, and that policy persisted for over a decade. Id. It is important, too, that the NYPD’s widespread misuse of investigative tactics extended to trespass enforcement. As noted by the Court, the record evidence in Davis showed that “the NYPD’s trespass enforcement policies and practices have resulted in thousands of trespass stops that apparently lacked reasonable suspicion, as well as large numbers of apparently unjustified trespass arrests.” Decision & Order Granting Class Certification, Davis Dkt # 289 at 5 (footnotes and citations omitted). See also, Decision & Order Granting Preliminary Injunction, Ligon Dkt # 96, at 95-133.
Against this backdrop, the need for each of the specific reforms discussed below becomes a narrow question of whether the reform addresses the violations established at the Floyd trial, prevents a recurrence of those violations, or is otherwise covered by the Davis and Ligon settlements. As shown in the next section, the trial record and the JRP community input compel the implementation of the Facilitator’s Recommendations.
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III.   The JRP Reforms are Necessary to Remedy Established Constitutional Violations 1.   Inadequate Discipline (Rec. Nos. 2, 3)
The Facilitator recommends that the Court order the NYPD to develop and publish progressive disciplinary standards and publicly report, on a monthly basis, findings of misconduct and disciplinary outcomes. Facilitator’s Report at 222-25 (Rec. Nos. 2 & 3). These recommendations are tailored to addressing the NYPD’s proven and systemic failure to impose meaningful discipline, which condoned unconstitutional conduct and significantly contributed to unlawful stops and trespass arrests.
The Floyd plaintiffs established at trial that the NYPD failed to hold officers accountable for misconduct and that this failure showed deliberate indifference and acquiescence to the pattern and practice of unlawful stops. Liability Op. at 105-111, 178-180. The Court’s findings on the failure to discipline were not limited to discipline related to stops. Id. The Court instead found that systemic failures to discipline created an atmosphere that perpetuated widespread unlawful stop-and-frisk encounters. 1 Id. See also id. at 189-90 (finding the City liable based on deliberate indifference to racially discriminatory stops based in part on demonstrated discipline failures). A review of the Court’s findings shows that the fundamental discipline failures included a policy and practice of not imposing serious penalties where misconduct was found; downgrading penalty recommendations from those recommended by the Civilian Complaint Review Board (“CCRB”); and not actually imposing penalties that had been issued. For example, the Court found that:
•   “[W]hen confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the evidence, refuses to impose meaningful discipline, and
1 For this reason, we would respectfully modify the Facilitator’s recommendation so that the disciplinary standards are not limited to stops and trespass arrests.
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fails to effectively monitor the responsible officers for future misconduct.” Liability Op. at 105.	  
•   “Between 2007 and 2011, the [Department Advocate’s Office (“DAO”)] declined to pursue discipline in between 16% and 36% of the substantiated complaints forwarded by the CCRB, and in 2012 the percentage of substantiated cases resulting in no discipline rose again.” Liability Op. at 109. 	  
•   “Several officers testified that they were never disciplined even after the CCRB substantiated complaints against them.” Liability Op. at n.394 (Plaintiffs’ Findings of Fact and Conclusions of Law, Dkt # 366 (“Pls. FOF”) at ¶¶ 139 (“CCRB substantiated [plaintiff] Lino’s complaint and recommended charges against Figueroa and Leek . . . but neither officer received any discipline as a result”), 140 (“CCRB substantiated as abuse of authority [plaintiff] Acevedo’s complaint against detectives for stopping her . . . yet none were told that they did anything wrong in conducting a stop . . . [One of the officers] was thereafter the subject of an [Office of Chief of Department] stop complaint, yet no one discussed it with her or interviewed her regarding it.”); and 141 (“[Officer] Salmeron was never spoken to or disciplined for a substantiated CCRB complaint for improper stop two years before she stopped [plaintiff] Dennis.”)). 	  
•   “In addition, the NYPD consistently downgrades the discipline recommended by the CCRB, imposing only instructions—the least serious form of discipline—in the majority of cases in most years.” Liability Op. at 109 and n.395 (citing testimony of Chief Hall “that an officer who engages in stops that are not based on reasonable suspicion could be subjected to ‘incredibly severe discipline,’ up to and including termination” but he had no “personal knowledge of any officer being subjected to such discipline for a stop lacking reasonable suspicion.”). 	  
In making this last finding, the Court relied in part on evidence that the NYPD
consistently imposed mere instructions—the least serious form of discipline—in most cases of
misconduct, even though the CCRB recommended charges and specifications2 most often.
Liability Op at 109-10 and ns. 394-9. See also Pls. FOF ¶¶ 153 (“Since at least 2007, when the
CCRB finds misconduct, the NYPD averts discipline by declining to pursue discipline and
issuing instructions, the least serious form of discipline, in the majority of cases); 154 (“From
2 The CCRB defines “charges and specifications” as the most severe disciplinary outcome, and it launches an administrative proceeding against an officer. See CCRB, Police Discipline, https://www1.nyc.gov/site/ccrb/prosecution/police-discipline.page (last visited June 7, 2018) (“CCRB Discipline Definitions”).
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2007 to 2011, CCRB recommended charges and specifications most often and instructions the least often . . . In the same period, the NYPD did the reverse.”)). This pattern of disciplining officers primarily through instructions was also evident in the NYPD’s handling of unlawful trespass stops in NYCHA buildings. Davis, Dkt # 253, Ex. 3 (excerpt of Schwartz deposition explaining use of instructions for disciplining), Ex. 46 (disposition of substantiated CCRB complaints for wrongful stops in NYCHA, mostly resulting in instructions). Based on these findings and this extensive evidence of failure to discipline, the Court ordered that reforms to discipline needed to be “[a]n essential aspect of the Joint Process Reforms.” Remedial Or. at 23.
There have not yet been so-ordered reforms addressing these discipline findings, and the problem persists. The NYPD continues to either decline to pursue any discipline, or to impose instructions and formalized training—the “least severe discipline” (see CCRB Discipline Definitions)—a majority of the time, just as it did leading up to the trial. NYC Civilian Complaint Review Board, Annual Report January—December 2017, https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/annual_bi-annual/2017_annual.pdf (reporting that the NYPD pursued no discipline or instructions and formalized training in over sixty percent of substantiated cases). An investigative report recently disclosed NYPD disciplinary records that indicate officers have received minor penalties for misconduct related to stops. See Kendall Taggart & Michael Hayes, The NYPD’s Secret Files, BuzzFeed (Apr. 16, 2018), https://www.buzzfeed.com/kendalltaggart/nypd-police-misconduct-database-explainer. We have, moreover, long been concerned that the CCRB reconsideration process would undermine the discipline reforms that are required in Floyd, and time has borne this out. In 2016, the last year for which complete data on reconsideration is available, the NYPD formally sought to have CCRB rescind its decision to substantiate civilian complaints in thirty-two percent of
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substantiated cases. See CCRB 2017 Annual Report at 42. See also Benjamin Mueller, New York Police Challenging More of Review Board’s Findings, Study Shows, N.Y. Times (July 19, 2017), https://nyti.ms/2uxOFi1 (characterizing the CCRB’s report as showing that the DAO reconsideration process is “an extra avenue for police pushback” against police accountability “in a process whose final outcomes the department already controlled”). Meanwhile, since 2015, there have been at least 1,536 complaints of profiling made to the NYPD, yet the NYPD has failed to substantiate a single racial profiling allegation in the more than 700 complaints it has closed. Monitor’s Seventh Status Report, December 13, 2017, Floyd Dkt # 576 at 45-46.
The Facilitator repeatedly notes the community’s concern that police will continue violating the law unless officers face stricter and more consistent discipline for misconduct. The Facilitator found that “an overarching theme throughout the focus groups centered around accountability.” Facilitator’s Report at 153; see also id. at 162 (noting that “participants suggested an NYPD cultural change with regard to accountability and an officer accountability sliding scale with progressively more harsh penalties”); id. at 173 (stating that among the “repeated themes raised” at leadership meetings was “a perceived lack of accountability for misconduct at the NYPD”); id. at 192 (stating that community members “raised the need for meaningful consequences for misconduct,” including “increased disciplinary severity for repeated unlawful stops and frisks”).
Throughout the JRP focus groups and community forums, members of the communities most affected by unlawful stops repeatedly called for more stringent penalties to address officer misconduct. Many expressed the need for strict penalties as a response to what they experienced
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as years of no accountability. See, e.g., 10/19/15 Focus Group Tr.3 at 14:20-15:24; 10/20/15 Focus Group Tr. at 22:24, 21:13-4; 10/27/15 Focus Group at 10:13, 12:10-11; 11/3/15 Focus Group at 29; 11/17/15 at 20; 10/26/16 Community Forum (observing participants noted the need for “real consequences for rule breaking”); 11/3/16 Community Forum (need for stricter accountability for officers and protocols for penalties). As one focus group participant said, strict penalties encourage strict compliance with the Constitution:
I feel like if they were told that if there’s any instance where they’re using their power out of hand that they will be fired, I think they would fear being fired. So they would try as hard as they can not to get into instances where they’re violating somebody’s rights because they don’t want to get tired. But if they feel like they’re not going to get fired, then nothing bad’s going to happen to them, so they do it anyway. 11/17/15(10) Focus Group Tr., at 10:371-76. Discipline standards that set strict penalties when police are found to have engaged in misconduct serve the remedial goal of ensuring that unconstitutional conduct is appropriately censured. Requiring the NYPD to regularly and publicly report on its imposition of discipline, and to explain any divergence from the standards, would further serve the purpose of ensuring the NYPD is held accountable for instituting meaningful discipline. These reforms directly address the NYPD’s failure to impose serious consequences for misconduct, which the Court found led to massive numbers of unconstitutional stops and which also led to unconstitutional trespass enforcement activities. These reforms are further necessary to bring the NYPD’s practices into compliance with the Constitution and to ensure ongoing compliance.
3 Links to the focus group transcripts and community forum data are provided in Appendix H of the Facilitator’s Report, Floyd Dkt # 598-8. If there was more than one focus group on a particular date, then we provide in parenthetical the prefix number assigned to the transcript within Dropbox. For example, the October 9, 2015 focus group is ascribed “1” as the prefix. Our citations to the community reforms refer to the transcribed community forum data sheets linked to in that appendix.
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In addition to what the Facilitator recommends, we request that the discipline standards be developed with input from community stakeholders. Should the Court order a community board (see infra at III(3)(i)), then the development of the discipline standards should fall within the board’s responsibilities.
2.   Inadequate Documentation and Document Review (Rec. Nos. 4, 5, 6, 8) i.   Documentation and Recording of Level 1 and 2 Encounters.
The Facilitator recommends that the NYPD record, collect, and publicly report data on all Level 1 and 2 investigative encounters conducted by officers through both officer-generated records and body worn camera recordings. Facilitator’s Report at 225-36 (Rec. Nos. 4 & 5).4 As the Court is aware, a Level 1 encounter is a request for information that requires an “objective credible reason for that interference not necessarily indicative of criminality,” and a Level 2 encounter is an officer’s “common-law right to inquire” that requires only a “founded suspicion that criminal activity is afoot.” People v. De Bour, 352 N.E.2d 562, 572 (1976). Level 1 and 2 encounters are investigations in which an officer does not have reasonable suspicion of crime and is not permitted to constrain a person’s freedom to walk away, either by words or actions. Id. Documentation and recording of Level 1 and 2 encounters is necessary to ensure that officers fully understand and comply with the legal standards governing stops, as well as the Courtmandated requirements for documenting stops. See Remedial Or. at 15-16, 19-23.
In both its Floyd Liability and Ligon Preliminary Injunction rulings, the Court found that thousands of NYPD personnel were incorrectly trained on—and thus did not understand—the legal standard for what constitutes a stop under the Fourth Amendment, i.e., a police encounter
4 We do not specifically address the need to so-order Recommendation Number 6 (“Accessing Stop Reports”), because the NYPD is already implementing this pursuant to the Right to Know Act legislation recently passed by the New York City Council. See NYPD, Police Encounters, http://www1.nyc.gov/site/nypd/about/about-nypd/police-encounters.page.
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in which a reasonable person would not feel free to leave. Liability Op. at n.375; Ligon Dkt # 96 at 91-92, 121, 130. The Court concluded that this misunderstanding created a serious risk that officers would both engage in conduct that amounted to forcible stops without the requisite reasonable suspicion and fail to record such encounters as stops, under the mistaken belief that they had only conducted a Level 1 or 2 encounter. See Liability Op. n.375; Ligon, Dkt # 96 at 129-30 and n.422.
Indeed, several Floyd and Ligon plaintiffs were stopped and/or frisked without reasonable suspicion and NYPD officers failed to document those encounters. See, e.g., Liability Op. at 13840 (Nicholas Peart April 2011 stop), 154-56 (Lalit Clarkson January 2006 stop), 161-63 (David Floyd April 2007 stop); Ligon, Dkt # 96 at 34-35, 70 (noting that the NYPD was unable to locate a stop report for any of the eleven named plaintiffs who had been stopped). Further, officers continue to fail to document stops. The NYPD’s internal audits have found that, as recently as the second quarter of 2017, officers failed to document more than half of the stops audited by the NYPD’s Quality Assurance Division (QAD). See Monitor’s Seventh Status Report, Floyd Dkt # 576, at 40. Thus, the only way to reliably monitor whether officers are engaging in lawful stops is to record and review Level 1 and 2 encounters.
Meanwhile, a theme from community input was that the people most affected by the NYPD’s unconstitutional stop-and-frisk practices commonly do not feel free to terminate police encounters and walk away. See e.g. 10/19/15 Focus Group Tr. at 7:33-34 (“Many people don’t feel comfortable [walking away] – if they’re going to shoot me, that’s my life . . . .”); 10/20/15 Focus Group Tr. at 8:43 (“I never was able to walk away”); 11/17/15(2) Focus Group Tr. at 8:44-9:4 (“I wouldn’t really feel comfortable walking away from a police officer because I feel like they would take that to the next level . . . like taze me or something like that . . . [so I] let it
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play out.”); 12/8/15(2) Focus Group Tr. at 6:11-34 (“In black neighborhoods, there’s very little walking away;” “I know in my community, if a cop stops you and you’re telling them ‘I don’t have to stay here and talk to you,’ you’re automatically going to get a ticket and fined for being disorderly.”); 12/9/15 Focus Group Tr. at 11:41 (people do not feel free to walk away: “Those are the cases when you die.”). As one focus group participant said:
For me, I don’t actually feel comfortable walking away from a police officer . . . Police have a certain authority against you. Like they have a higher authority. So I feel like nowadays they can just do what they want and change the story later – say you did something, say you resisted arrest. So I wouldn’t just interfere. I would just cooperate to the most. 11/17/15(1) Focus Group Tr. at 6:193-199. This sentiment—repeatedly expressed throughout the JRP—suggests that the people who are most subjected to investigative encounters feel that their freedom to leave has been constrained in situations that officers might not be labeling as stops. This sentiment is most prevalent in public housing, because of the greater likelihood of Level 1 encounters occurring in those residences. NYPD officers are authorized to enforce NYCHA rules and regulations, including those rules and regulations that are not criminal in nature. Mem. of Understanding Between the New York City Housing Authority and the City of New York on the Merger of the New York City Housing Authority Police Department and the New York City Police Department, Davis Dkt # 176-1 at 8-9. Accordingly, an officer may approach and question a person found in a NYCHA residence—including residents themselves—in a Level 1 encounter if they are suspected of violating a non-criminal NYCHA rule. Status Report, Davis Dkt # 358 at Attachment 3. Many Davis focus group participants described not feeling free to leave when questioned by police in their buildings or the buildings of their friends and family. See e.g. 3/3/16 Davis Focus Group Tr. at 5:43-45 (“They stop us and make us take them where we came from and search everything in sight….we [were] just moving
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through a building that we know people in.”); 3/8/16 Davis Focus Group Tr. at 8:46-9:2 (explaining they do not feel free to leave because officers immediately start interrogating: “that’s essentially what they do, upon approaching anybody now, is that they just straight up and down interrogate you”); 6/24/16 Davis Focus Group Tr. at 7:43-45 (“I just came out my friend’s apartment and walked. An officer was like, ‘Stand right here. I heard there’s trespassing in the building.’”).
Courts and academics have recognized that the experience articulated by the focus group participants is a widespread phenomenon. See, e.g., Utah v. Strieff, 136 U.S. 2056, 2070 (2016) (Sotomayor, J., dissenting) (“[I]t is no secret that people of color are disproportionate victims of this type of scrutiny. . . For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”); State v. Ashbaugh, 244 P.3d 360, 368 n.15 (Or. 2010) (recognizing that Fourth Amendment analysis of “encounters between police and black males” should “consider how the race of the person confronted by the police might have influenced his attitude toward the encounter”); Devon W. Carbado, (E)racing the Fourth Amendment, 100 Mich. L. Rev. 946, 985 (2002) (“The interaction of black male identity with white male police authority creates a physically confining social situation every bit as real as (and operating independently from) being on a bus. Most, if not all, black people--especially black men--are apprehensive about police encounters.”); Erika L. Johnson, “A Menace to Society:” The Use of Criminal Profiles and Its Effects on Black Males, 38 How. L.J. 629, 663 (1995) (“Given the history of police brutality against blacks in this country, as well as the present climate of fear and distrust toward police officers, very few black citizens would feel free to ignore an officer. Further, black males,
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often targets of police harassment and brutality, will not feel free to leave a police officer without considering the possible repercussions -- bodily injury or death.”).
With these factual findings and considerations in mind, we turn next to addressing how documentation and video recording of Level 1 and 2 encounters will help to bring the NYPD’s practices into compliance with the Constitution.
a)   Documentation Documentation of Level 1 and 2 encounters will address two of the problems described above, i.e. that officers do not fully understand the limits on their authority in investigative encounters; and that members of the plaintiff classes are likely to not feel free to leave even when the officer did not intend for the investigative encounter to rise to the level of a stop. If the NYPD’s and the Monitor’s assessment of the constitutionality of stops is limited only to what officers have actually documented as Level 3 encounters, it is a foregone conclusion that the assessment—and the monitoring of stops—will be insufficient. That analysis would omit many forcible stop encounters that lack reasonable suspicion but were misclassified by the stopping officers as Level 1 and 2 encounters, and thus were never documented on stop reports. Such an assessment leads to an inaccurate appearance of constitutional compliance. Indeed, the Court has warned that a decline in unjustified stops may be “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,” which “would not necessarily show an improvement in the NYPD’s practices.” Summary Judgment Decision, Davis Dkt # 268 at 59-60 and n.158. Capturing and assessing information about Level 1 and 2 encounters is necessary to ensure an
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accurate assessment of the constitutionality of the NYPD’s stop-and-frisk practices, which is needed to ultimately bring those practices into compliance with the Constitution.5
Accordingly, the Court should order the NYPD to collect and publicly report data on all Level 1 and 2 encounters conducted by its officers, as the Facilitator recommends. Plaintiffs respectfully ask that the Facilitator’s recommendation be modified in one respect. For Level 2 encounters, officers should be required to record a brief narrative of the facts surrounding the encounter and whether a consent search was conducted, in addition to time, date, and location. This additional data is necessary to accurately assess the extent to which officers are mistakenly classifying stops without reasonable suspicion as Level 2 encounters and, for the reasons articulated by the Facilitator, would be minimally burdensome for NYPD officers to record on their Department-issued smartphones or tablets. See Facilitator’s Report at 231.
b)   Video recording The Court found that an officer’s written documentation can only provide a limited and one-sided account of the facts surrounding a police encounter. See Liability Op. at 94 n.326; Remedial Or. at 26. The Court opined that Body Worn Cameras (“BWC’s”) “are uniquely suited to addressing that constitutional harms at issue in this case,” Remedial Or. at 27, and would, in particular, “provide an objective record of stops and frisks [to] allow[ ] for the review of officer conduct by supervisors and the courts.” Remedial Or. at 26.
5 This reform is also in line with a recent consent decree between the United States Department of Justice and Ferguson, Missouri Police Department, which includes as a remedy for addressing a pattern and practice of racially-biased and unconstitutional pedestrian stops, a requirement that the Ferguson Police Department collect and report annually data on “voluntary contacts” conducted by its officers. See Consent Decree ¶ 415, United States v. City of Ferguson, 16-cv000180, Dkt # 41 (E.D. Mo. Apr. 19, 2016). “Voluntary contacts” are defined in the Decree to include both “social contacts, which are non-investigative conversations,” and “non-custodial interviews, in which the officer seeks to investigate the person he or she questions” and in which the civilian “is free to leave.” Id. ¶ 77(b). This definition encompasses both Level 1 and 2 encounters as defined under New York law.
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The people and entities that oversee and review officer stops—including the officer’s supervisor, NYPD internal auditors, and the Independent Monitor—can use videos to better assess whether officers understand, and abide by, the distinctions between each level of De Bour investigative encounters and whether they are complying with the stop documentation requirements of the Remedial Order. Further, Level 1 encounters can and often do escalate very quickly into more intrusive encounters. One need look no further than the encounter in DeBour itself, which began as a self-initiated Level 1 request for information and, within a matter of minutes, escalated to a search and then arrest. De Bour, 352 N.E.2d at 565. The Monitor has recognized this important function of BWC video as a reason to record all Level 2 encounters, see Letter addressed to Judge Analisa Torres from Peter L. Zimroth, dated April 11, 2017, Floyd Dkt # 545 at 6-7, Davis Dkt # 372 at 6-7, and this reasoning is equally applicable to the recording of Level 1 encounters.6
As the Facilitator notes, recording of those De Bour Level 1 encounters that take place inside of public housing and privately owned apartment buildings and in response to certain calls for service are mandatory under the current NYPD BWC policy. See id. at 15. However, recording self-initiated Level 1 encounters on the street, like the one at issue in De Bour itself, is not required. In order to ensure that BWC videos enable a more effective assessment of the constitutionality of stops, it is critical that all Level 1 encounters be recorded on BWC’s. Failure to record Level 1 encounters will undermine the BWC’s ability to “provide a contemporaneous, objective record of stops and frisks,” Remedial Or. at 26, and NYPD supervisors, auditors, and the Court’s review of any Level 3 encounter that began as a Level 1 encounter will be deprived of significant information about the basis for the stopping officer’s decision to make the stop.
6 See also, Pls. Obj. re: Letter Mem. Regarding Approval of Body Worn Camera Policies, dated April 19, 2017, Dkt # 546 at 3-4.
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Further, as the Facilitator highlights, requiring BWC video recording of all Level 1
encounters would bring the NYPD in line with the BWC policies of several other large
metropolitan police departments which each require recording of all encounters conducted by
law enforcement. Facilitator’s Report at 228-30. In addition to the Facilitator’s examples, id. at
228-29, we further refer the Court to the BWC policies of the Dallas, Texas police department;7
the Cincinnati, Ohio police department;8 the Phoenix, Arizona police department;9 and the St.
Paul, Minnesota police department.10
Notably, too, the results of both the public and police officer NYU BWC surveys show
that clear majorities of both public and police officer respondents (82 and 58% respectively)
support the recording of Level 1 encounters. See Objection to Monitor’s Recommendation, dated
April 19, 2017, Floyd Dkt # 546, Ex. A at 14, Ex. B at 7; Davis Dkt # 373, Ex. A at 24, Ex. B at
7.11 Given the Court’s recognition that “no amount of legal or policing expertise can replace a
7 Dallas Police Department, General Order 332: Body Worn Cameras, at 14, https://www.bwcscorecard.org/static/policies/2015-08-31%20Dallas%20BWC%20Policy.pdf (“Officers will activate their body worn camera to record all contacts that are conducted within the scope of an official law enforcement capacity.”). 8 Cincinnati Police Department, Procedure 12.540 “Body Worn Camera System,” at 4, https://www.bwcscorecard.org/static/policies/2017-0427%20Cincinnati%20BWC%20Policy.pdf) (“Officers will use BWC equipment to record all calls for service and self-initiated activities.”) (emphasis in original). 9 Phoenix Police Department, Operations Order 4.49: Body-Worn Video technology, subsection 4.49(3)(B)(3)(a), at 2, http://kjzz.org/sites/default/files/11-14-17PhoenixPDoperations_orders.pdf (“The body-worn camera must be activated during all investigative or enforcement contacts.”). 10 St. Paul Police Department, 442.18 Body Worn Camera Policy, at Section 10(A), https://www.stpaul.gov/sites/default/files/Media%20Root/Police/442.18%20Body%20Worn%20 Camera%20Policy_revised%205%201%2018.pdf (“[O]fficers must activate their BWCs when preparing for or initiating any law enforcement action” and “when responding to any call or incident”). 11 According to the NYU public and police officer surveys, 82% of public respondents and 58% of officer respondents believe officers should be required to activate their cameras “anytime an officer approaches someone as part of investigating criminal activity,” See Floyd Dkt # 546, Ex. A, at 14; Ex. B, at 7. Encounters where police officers approach civilians to request information related to their criminal law enforcement- and not their more general public service- function
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community’s understanding of the likely practical consequences of reforms in terms of both liberty and safety,” Remedial Or. at 29, and given police officers’ on-the-ground, firsthand experience with the tactical challenges and safety risks of investigative encounters, these survey responses should be afforded significant weight.
ii.   Advising People of Their Rights During Encounters The Facilitator recommends that the NYPD conduct a campaign to educate the public about “their rights and obligations” under the law, because community members expressed a desire to better understand their rights. Facilitator’s Report at 249 (Rec. No. 8). We agree it is important to provide the community with such an education, but we respectfully submit that it would better serve the remedial goals of the JRP to require that the NYPD advise people during Level 1 and 2 encounters that they are free to walk away. This requirement would be consistent with the Facilitator’s findings and recommendations, and it is supported by input from many of the focus groups that the Facilitator coordinated. The Facilitator states that an NYPD-operated public education campaign would inform people that stop-and-frisk is not illegal, increase trust, and reduce complaints. Id. at 250. We are concerned that a mass NYPD-campaign that tells people their “obligations” during police encounters runs contrary to the remedial purpose of stemming unlawful stops. On the other hand, requiring officers to inform people of their rights during investigative encounters would serve to bring the NYPD’s practices into compliance with the Constitution. For example, as the Court recognized, one way to ensure that officers do not inadvertently transform a Level 1 or 2 encounter into a forcible stop without reasonable suspicion is to require that officers advise
were precisely the kind of encounters the Court of Appeals addressed in De Bour. 40 N.Y.2d at 218-20.
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people of the voluntary nature of the encounter—i.e., to inform people of their right to walk away. See Remedial Op. at 15 n.38.
A requirement that officers advise people of their rights during encounters would also further the goals articulated by the Facilitator in recommending a public education campaign, because it would ensure that people know when they are free to leave, which would in turn decrease the frustration that community members reported. The community input the Facilitator amassed through focus groups demonstrates that community members repeatedly called for requiring officers to tell people what their rights are during investigative encounters. In one representative example, participants in a focus group expressed that “many people don’t feel comfortable walking away” because “if they’re going to shoot me, that’s my life,” and that people would feel free to leave only if officers informed them of their rights during the encounter, similar to how people are given “Miranda Rights.” 10/19/15 Focus Group Tr. at 7:338:46. See also, e.g., 10/20/15 Focus Group Tr. at 6:25-11:24 (discussing that, ordinarily, participants do not feel free to leave unless an officer tells them they are free to go because they don’t want to be “another Trayvon Martin” and suggesting officers need to tell them their rights in that moment to make them feel free to leave); 10/22/15 Focus Group Tr. at 10:41-11:18 (participants saying that, to feel free to walk away, they would need the officer to “let me know that I can walk away,” or “you can walk away or you can deny this [search]”); 11/5/15 Focus Group Tr. at 10:13-14 (same); 12/9/15 Focus Group Tr. at 13:33-38 (same); 12/21/15 Focus Group Tr. at 6:16-31, 7:40-46 (same). Advising people of their freedom to leave will help prevent inadvertent stops where officers might believe they have conducted themselves in such a way that a reasonable person would feel free to walk away: By advising of the freedom to leave,
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officers will ensure they do not intrude further than Level 1 or 2 permit, and that they have not inadvertently raised the intrusiveness of the encounter to a Level 3.
This requirement would also be consistent with recent United States Department of Justice consent decrees. The recent consent decree with the Ferguson Police Department to reform unconstitutional stop practices requires that Ferguson police officers conducting “noncustodial interviews” (which are analogous to Level 2 encounters in New York) “[n]otify the person(s) encountered that they are free to leave and do not have to answer any questions.” Consent Decree, ¶ 77(b), United States v. City of Ferguson, 4:16-cv-00180, Dkt # 41 (E.D. Mo. Apr. 19, 2016); U.S. Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department, 17-19 (Mar. 4, 2015) (discussing the Ferguson Police Department’s pattern of unconstitutional stops). Similarly, the recent consent decree between with the Baltimore Police Department to reform the latter’s unconstitutional and racially discriminatory stop, question and frisk practices includes a provision requiring Baltimore police officers who are conducting voluntary “field interviews” (which are analogous to Level 1 and 2 encounters in New York) to “inform individuals [whom they’ve asked to provide a physical form of identification] that providing identification is voluntary.” Consent Decree, ¶¶ 34-35, United States v. Baltimore Police Dep’t, 17-cv-00099, Dkt # 2-2 ¶¶ 34- 35 (D.Md. April. 7, 2017); cf. United States Department of Justice, Investigation of the Baltimore City Police Department, at 27-30, 48-52 (Aug. 10, 2016) (discussing Baltimore Police Department’s pattern of unconstitutional and racially discriminatory stops-and-frisks).
A court order requiring officers to advise people during investigative Level 1 and 2 encounters that they are free to leave would thus help ensure compliance with the Constitution
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and this Court’s orders, and it would respond to the important community feedback that the Facilitator elicited.
3.   Deliberate Indifference to Ongoing Constitutional Violations (Rec. Nos. 7, 9) i.   Community Board on Reform Implementation
The Facilitator recommends that the Court order the NYPD to create a community board to monitor and advise the NYPD on the implementation of reforms, as well as to regularly meet with those most impacted by unlawful stop and trespass enforcement practices to obtain feedback on reforms and compliance with reforms. Facilitator’s Report at 236-47 (Rec. No. 7). This reform addresses the City’s deliberate indifference to community outcry about the stop-andfrisk practice. Plaintiffs established in the Floyd trial that the NYPD deliberately ignored community complaints and concerns about unlawful stops over an extended period of time. This deliberate indifference included ignoring individual complaints formally submitted by class members and ignoring community leaders who raised red flags. This indifference was evidenced by testimony from high-ranking NYPD officials who admitted that they knew of—yet did nothing to heed—community concerns about racial profiling in the use of stops. For example, the Court found:
•   “The NYPD has repeatedly turned a blind eye to clear evidence of unconstitutional stops and frisks.” Liability Op. at 178.	  
•   “Throughout the class period, the need for better supervision, monitoring, training, and discipline to protect against constitutional violations was obvious, but senior officials at the NYPD ‘“fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs.”’ Even if ‘deliberate indifference’ were not the standard for liability, it would still perfectly describe the attitude of senior officials at the NYPD toward the risk of officers conducting stops, frisks, and searches in violation of the Fourth Amendment.” Liability Op. at 179-80.	  
•   “The NYPD has received thorough and consistent notice of constitutional problems in its stop practices from multiple sources, including the media, community members,
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community and legal organizations, individual police officers, and the class members and attorneys in this case.” Liability Op. at 111.	  
•   “Chief Esposito is aware of media reports that the NYPD racially profiles young black and Hispanic males in its stop activities, and has personally heard complaints from community organizations, civil liberties groups, and elected officials about racial profiling in stops.” Liability Op. at 112.	  
•   “Chief Shea testified that when members of the community participate in the multicultural immersion course for newly graduated officers, community leaders have repeatedly shared complaints involving stops based on racial profiling.” Liability Op. at 112.	  
•   “Despite frequent and ongoing notice of troubling racial disparities in stops, the NYPD has long shown its lack of concern for racial profiling through the failure of NYPD officials and managers to discuss racial profiling among themselves or at Compstat meetings, and through the numerous failures of supervision, monitoring, training, and discipline discussed above.” Liability Op. at 189-90 (citing Pls. FOF ¶¶ 186, 187 (“After 4 years as Department Advocate, Schwartz never discussed with anyone in the NYPD racial profiling or how to combat it.”), 188 (racial profiling was never discussed at CompStat in violation of internal policy), 189 (commanding officers never discussed racial profiling with subordinates in violation of internal policy), 190 (collecting testimony establishing that supervisors did not in practice discuss racial profiling with subordinates)). 	  
•   The head of DAO – the division responsible for holding officers accountable on substantiated CCRB complaints – “testified that she was not concerned about allegations that the DAO is biased in favor of police officers.” Liability Op. at 108109.
The Facilitator’s Report recognized that those most harmed by the NYPD’s systemic
constitutional violations have called for increased community input and oversight. In particular,
the Facilitator reports that community groups recommended “independent oversight structures,”
such as “a permanent structure in which civilians from directly impacted communities, support
and advocacy organizations, and police reform organizations, develop metrics to review whether
the NYPD is in compliance with mandated reforms based on those metrics.” Facilitator’s Report
at 187; see also id. at 190-91 (observing that “thought leaders recommended . . . a permanent
structure in which directly impacted communities are able to see that the NYPD has complied
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with independent oversight” and that this structure “be comprised of people living in impacted communities, organizations representing impacted communities, and representatives of police reform organizations”). Similarly, community groups called for greater public input into policies, programs, training reforms, and assessment protocols needed to remedy the NYPD’s unlawful practices. See, e.g., id. at 192 (“There was also a call for greater community involvement in developing the policies governing the BWC pilot as well as any program that is implemented as a result. This included involving community members, advocates, and policing experts in the evaluation of the program.”).
In the focus groups of the people most affected by the NYPD’s stop-and-frisk practice, participants repeatedly spoke to the need to require the NYPD to meaningfully respond to community criticism and called for a committee of community stakeholders to oversee reforms to stop and frisk. See, e.g., 10/20/15 Focus Group Tr. at 31:1-32:28 (calling for a community survey and for a precinct to face consequences for failing to heed community feedback); 10/28/15 Focus Group Tr. at 7:1 (expressing a need for the police to “hear us more”); 11/5/15 Focus Group Tr. at 5:28-40 (calling for community organizations to audit NYPD performance because “if you allow [the NYPD] to do the audit, nothing’s ever going to get changed”); 12/21/15 (24) Focus Group Tr. at 20:2-3 (“they should have a committee of civilians that [supervise] the stop and frisk program”); 11/15/16 Community Forum (calling for community oversight and evaluation of NYPD compliance with reforms).
Community boards such as the one the Facilitator proposes have long been recognized as appropriate to reform systemic constitutional violations. They were commonly utilized in school and housing desegregation cases. See e.g., Morgan v. Kerrigan, 530 F.2d 401, 429 (1st Cir. 1976) (upholding district court’s order requiring community councils designed to monitor
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implementation of reforms and “identify and resolve problems” and opining that “[s]uch groups have been approved in many cases”) (citing Dowell v. Brd. of Ed., 465 F.2d 1012, 1015-16 (10th Cir. 1972); Singleton v. Jackson Municipal Separate School District, 426 F.2d 1364, 1370 (5th Cir. 1970)). See also Mem. of Law in Support of Plaintiffs’ Requested Injunctive Relief, Floyd Dkt # 268, at 12 (collecting cases, including, inter alia, United States v. Parma, 661 F.2d 562, 577 (6th Cir. 1981) (affirming and “strongly endorsing” community housing committee), and Berry v. Sch. Dist., 515 F. Supp. 344, 379-80 (W.D. Mich. 1981)). They are also often included within Department of Justice consent decrees that reform police practices. See Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent Decrees, 51 Wake Forest L. Rev. 793, 816 (2016) (collecting examples).
Community outcry over racial bias in the NYPD’s use of stop and frisk was not muted. Over more than a decade, there was a sustained and organized public protest against the NYPD’s stop-and-frisk practice, particularly among those who are now organizational community stakeholders in the JRP. Liability Op. at 61-63, 111-17. Although the NYPD’s leadership has demonstrated a willingness to change since the trial, the injury that must be remedied is the injury proven during the trial phase of this case that has not been remedied. Cf. Morgan, 530 F.2d at 419 (where fact of segregation had been established at trial, explaining that sole remaining before court was how to accomplish desegregation). The Facilitator’s recommendation of a community board—comprised of those organizations concertedly involved in stop-and-frisk reform—that is responsible for facilitating implementation of reforms in this case is necessary to remedy the NYPD’s sustained and proven deliberate indifference to racially discriminatory stops, and to ensure compliance with the reforms.
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iii.   Community Survey on Reform Implementation The Facilitator recommends that the Court order the NYPD to conduct an annual survey to assess, from the community’s perspective, the implementation of reforms. Facilitator’s Report at 250-51 (Rec. No. 9.). This reform is necessary and appropriate for the same reasons as the community board: The City allowed unlawful stops to flourish by turning a blind eye to public complaints, and input through the JRP repeatedly emphasized the need for community feedback on reform implementation. See supra at III(i). Moreover, as the Court opined in ordering the JRP, “[n]o 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.” Remedial Or. at 29. Without a community survey that elicits data on whether the NYPD has implemented in practice reforms developed on paper, the Court will lose information that is centrally relevant to determining whether the City is in compliance with the Constitution. We emphasize that there is a distinction between surveying the community about the NYPD’s compliance with reforms and surveying the community’s trust in the NYPD. Trust in the police may be a laudable goal, but the goal of the remedial process in Floyd, Davis, and Ligon is to ensure that the NYPD brings its stop-and-frisk and trespass enforcement practices into compliance with the Constitution. The community survey would need to elicit information about whether the NYPD is complying with reforms from the perspective of the community in order to serve the purposes of the injunction, agreements, and orders in Floyd, Davis, and Ligon. Further, we respectfully ask that, during the length of the Court-ordered monitorship, the survey results be incorporated into the Monitor’s periodic assessments of the NYPD’s compliance with the Court-ordered Immediate and Joint Process reforms and reported in the Monitor’s biannual status reports to the Court. Notably, for the past several years, Department of Justice police
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pattern and practice consent decrees have regularly included a community survey component in the compliance assessments conducted by court-appointed monitors.12
4.   Inadequate Performance Monitoring Systems (Rec. No. 1) The Facilitator recommends that the Court order the NYPD to improve monitoring and intervention when litigation data—including judicial and prosecutorial decisions, as well as lawsuit allegations—indicate potential officer misconduct. Facilitator’s Report at 219-22 (Rec. No. 1). The Facilitator’s recommendation would require the NYPD to collect and address information that suggests officer misconduct in stop and trespass enforcement activities, including through the creation of a centralized database on stop and trespass encounters to track, review, and respond to patterns of misconduct. Id. This reform is tailored to addressing the City’s failure to monitor and intervene in officer misconduct, and it is necessary to ensure the City employs a monitoring system that allows the NYPD to remedy and prevent unlawful enforcement activity. Specifically, the Court in Floyd found that “when confronted with evidence of unconstitutional stops, the NYPD routinely denies the accuracy of the evidence, refuses to impose meaningful discipline, and fails to effectively monitor the responsible officers for future misconduct.” Liability Op. at 105. The City’s inadequate monitoring of unlawful stops included a failure to meaningfully follow up on allegations of wrongdoing and a failure to assess available information concerning misconduct, Liability Op. at 109 n. 394 (citing Pls. FOF at ¶¶ 139-141),
12 See, e.g., Consent Decree ¶¶ 456, 459, 506, United States v. Baltimore Police Dep’t, 17-cv00099, Dkt # 2-2 (D. Md. Apr. 7, 2017); Consent Decree at 12, United States v. City of Newark, 16-cv-1731, Dkt # 5, at 12 (D.N.J. May 5, 2016); Consent Decree at 107-08, United States v. City of Ferguson, 16-cv-180, Dkt # 41, at 107-08 (E.D. Mo. Apr. 19, 2016); Consent Decree at 83-84, United States v. City of Cleveland, 15-cv-1046, Dkt # 7-1 (N.D. Ohio June 12, 2015); Consent Decree at 57, United States v. City of Seattle, 12-cv-1282, Dkt # 3-1 (W.D. Wash. July 27, 2012).
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which together undermined the NYPD’s ability to prevent and remedy problematic enforcement activity. See Liability Op. at 105-111; see also Remedial Or. at 23 (favorably citing testimony from Plaintiffs’ remedies expert Professor Samuel Walker on the need for an improved intervention system); Pls. FOF ¶ 203. The Court’s finding that the NYPD failed to effectively monitor officer misconduct arose even though the NYPD had, at the time of the trial, an extensive system for monitoring officer misconduct. See Liability Op. at 110 n. 396 (finding that the NYPD monitoring system at the time of trial was “ineffective for monitoring unjustified stops”). See also 4/29 Trial Tr. at 5374-5378; 4/30 Trial Tr. at 5392-5395, 5445-5448; 4/24 Trial Tr. at 4886 et seq. Plaintiffs demonstrated that an effective system would need to include a centralized database that tracked information about lawsuits and judicial proceedings against officers. 5/16 Trial Tr. at 7505-7509. Plaintiffs further demonstrated that a complete picture of officer conduct from a broad array of data would allow the Department to connect patterns of misbehavior and effectively intervene to prevent future misconduct. See id.
The Court recognized that an improved monitoring system was needed to prevent unlawful stops and that such a system should be designed through the JRP. Remedial Or. at 2324 (citing Professor Walker’s recommendation of “an early intervention system based on a centralized source of information regarding officer misconduct”). Though the NYPD currently has a monitoring system, that system—just as at the time of trial—is insufficient because it is not a centralized database and it does not analyze important warning indicators from lawsuits against police officers. See NYPD Response at App. A at vii.13 This lapse has persisted despite the New York City Bar Association reporting on the need to include lawsuit information in 2000, see
13 While the NYPD currently tracks whether or not an officer is a named defendant in a civil suit through their Central Personnel Index, NYPD Response at App. A at vii, this does not include important information, including, for example, whether the officer is found liable. See id.; see also 5/15/13 Trial Tr. at 7342.
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NYC Bar Association Committee on New York City Affairs, The Failure of Civil Damages to Modify Police Practices, and Recommendations for Change, 55 Rec. Ass’n B. City N.Y. 533, 539 (2000), despite successive New York City Comptrollers recommending the NYPD make this reform in 1992 and 1999, see id. at 533-34, despite the City Council pushing the NYPD to make this reform since 2009, see Mary Calvi, NYPD Paid Nearly $1 Billion To Settle Lawsuits, CBS News (Oct. 14, 2010) , http://newyork.cbslocal.com/2010/10/14/nypd-paid-nearly-1-billion-tosettle-lawsuits/, and despite the Office of Inspector General more recently reporting on the need to collect and assess that information, see New York City Department of Investigation’s Inspector General for the NYPD, Ongoing Examination of Litigation Involving NYPD, 27 (April 2018) (“OIG-NYPD Report”).14 See Facilitator’s Report at 220. This lapse has persisted even though the NYPD itself acknowledged that litigation data—when properly gathered and analyzed—can play an important role in improving police conduct. See Letter from Lawrence Byrne, NYPD Deputy Commissioner, to Bill de Blasio, Mayor, et al., dated July 17 2015, at 2.15 Instead, though the NYPD appeared at one point to be moving toward improvements, it has since backtracked. See OIG-NYPD Report at 3, 9-10.
A court order is therefore needed to ensure the NYPD creates an effective monitoring system consistent with the Facilitator’s recommendations. In addition to what the Facilitator has recommended, we respectfully ask the Court to also require the NYPD to publicly disclose the protocol that gets developed for tracking, assessing, and acting on the data collected, and we further request the development of a clear and objective protocol for determining when to include information regarding settlements.
14 http://www1.nyc.gov/assets/doi/reports/pdf/2018/April/21NYPDLitData_Report_43018.pdf.
15
http://www1.nyc.gov/assets/doi/oignypd/response/nypd_response_oig_reusing_data_from_Laws uits_legal_claims.pdf.
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5.   Inadequate Training (Rec. No. 11) The Facilitator recommends that the Court order the NYPD to develop a specific unit within the stop-and-frisk training on engaging people with disabilities, including, but not limited to, people with mental, physical, and/or developmental disabilities. Facilitator’s Report at 253 (Rec. No. 11). This reform is necessary to remedy the overbroad conception of suspicious behavior and furtive movements that drove unlawful stops because, as illustrated below, disabilities—and the movements and behaviors that may be associated with disabilities—might be mistaken for suspicious behavior. Specifically, the Court found that officers misunderstood what constituted furtive movements that might give rise to reasonable suspicion. See e.g. Liability Op. at 11-12 (reviewing the range of officer testimony at trial that suggested that officers believe almost anything could constitute a furtive movement on which to base reasonable suspicion). The risk of an erroneous perception of suspicion is perhaps even greater when an investigative encounter involves a person with a disability, because a lack of knowledge about disabilities can easily lead officers to mistake the disability for suspicious behavior. In a recent NYPD training about characteristics of armed suspects, an instructor shared with the class that he once mistook a metal rod in someone’s leg for a weapon and accidentally burst another person’s colostomy bag based on the same suspicion. Facilitator’s Report at 253, App. B at 9, n.4. If officers are not trained about or aware of disability, they may interpret a movement or behavior related to the disability as criminal or suspicious. See Pls. JRP Recs., Dkt #598-2 at 9 (relying on testimony of Michael Sullivan, nationally recognized expert on disability issues, before U.S. Senate explaining that officers need to be trained to recognize behaviors that might be associated with a disability so
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that they are equipped to make proper assessments of the situations they may face and know how to respond appropriately).
As the Facilitator documents, the issue of “NYPD interactions with people with disabilities” came up at several community forums during the JRP. See e.g., 11/17/16 Community Forum. Notes from one community forum listed “mentally ill” under a category listing groups that are “profiled” and “targeted” using SQF, and at another community forum “disability” was listed among group members that are subject to “abusive policing.” See id.; see also 12/6/16 Community Forum. In a forum dedicated to public housing residents, community members recommended “frequent and updated trainings for NYPD in regards to residents with special needs.” 11/17/16 Community Forum; see also 11/15/17 Community Forum (recommending “training/sensitivity training for people with disability [sic] and people with mental illness”).
Therefore, this reform is appropriate and necessary to bring the NYPD’s practices into compliance with the Constitution. We respectfully ask that the proposed disability portion of the training be developed, and if possible, taught by people with disabilities or community-based organizations and experts that have experience working with people with disabilities.
6.   Other Recommendations (Rec. Nos. 10, 12, 13, 14) With respect to Recommendations Number 10 and 12 through 14, we believe that these are within the scope of the Remedial Order, as explained by the Facilitator, and we generally support their implementation for the reasons the Facilitator sets forth. Facilitators Report at 25152, 254-60. Below, we raise some cautions with respect to Recommendations 12 through 14. For Recommendations 12 and 14, which are both related to improving trainings, it is important that training reforms not substitute for reforms to discipline and monitoring. The Floyd
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trial proved that unlawful stops were caused in large part by the City’s deliberate indifference to adequate supervision, discipline, and monitoring. Liability Op. at 89-99, 105-111. While the Court found deficiencies and inaccuracies in the NYPD’s trainings that contributed to unlawful stops and needed to be changed, id. at 99-105, the Court also found that “[t]he gravest problems in the NYPD’s stop and frisk practices stem not from inadequate training but from a divergence between the NYPD’s written training materials and the “operational policy” carried out on the streets.” Id. at 100. While improved trainings are generally a step in the right direction, and trainings on certain subjects are necessary to ensure lawful stops and trespass arrests, an order that requires only or mostly modifications to trainings will fail to bring the NYPD’s practices into compliance with the Constitution. The NYPD’s failure to meaningfully monitor or discipline officer misconduct caused unlawful and racially biased stops, as explained passim, and constitutional compliance cannot be achieved without meaningful monitoring and discipline systems.
Additionally, with respect to Recommendation 13, we support the effort to offer a civil alternative for incidents of trespassing in public housing and TAP buildings. Facilitator’s Report at 257. As demonstrated by the facts presented in the Davis case, the experience of getting handcuffed, arrested, transported to a police station, fingerprinted, detained in a holding cell, and all the other indignities associated with an arrest can be a traumatic and humiliating event, especially for individuals who are arrested for purportedly trespassing in their own homes or while visiting friends and family. Complaint, Davis Dkt # 1 at 12-25. Issuing a civil summons in lieu of an arrest will prevent these and other severe collateral consequences attendant to having an arrest record, such as loss of employment or housing. Moreover, during the period in which the IRP and JRP reforms bring the NYPD into compliance with the requirement of probable
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cause for any trespass arrest or summons, the alternative of issuing a civil summons may serve to mitigate the constitutional harm visited on individuals where officers otherwise would erroneously conduct full arrests without probable cause. We recognize, however, that the introduction of civil summonses for trespassing will require an act of the City Council. We also caution that civil proceedings for trespass can lead to serious consequences without having the benefit of a right to counsel, including the potential loss of public housing, so it is important to guard against the possibility that officers might come to view civil summonses as a “less harsh” option in circumstances where an officer does not have probable cause of trespass. Indeed, substituting a civil summons for an arrest does not make the enforcement action any more lawful without the requisite showing of probable cause. IV.   Conclusion
Based on the forgoing, we respectfully request that the Court enter an order requiring that the NYPD implement the Facilitator’s Recommendations, with the modifications proposed herein.
Respectfully submitted, /s/ J.R.B. Jenn Rolnick Borchetta The Bronx Defenders Darius Charney Britney Wilson The Center for Constitutional Rights Jonathan C. Moore Luna Droubi Beldock Levine & Hoffman LLP
Attorneys for the Floyd Plaintiffs Angel Harris Jin Hee Lee
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Case 1:08-cv-01034-AT Document 602 Filed 06/08/18 Page 41 of 41 NAACP Legal Defense Fund Steve Wasserman Cynthia Conti-Cook The Legal Aid Society Attorneys for the Davis Plaintiffs Jordan Wells Christopher Dunn New York Civil Liberties Union Johanna B. Steinberg Shakeer Rahman The Bronx Defenders Attorneys for the Ligon Plaintiffs
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The Way Forward
The NYPD’s Response to the Joint Remedial Process Report
June 8, 2018

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Table of Contents
Part I: Introduction ................................................................................................................................1 Part II: Responses to the Facilitator’s Recommendations ......................................................4
Recommendation #1.........................................................................................................................4 Recommendation #2.........................................................................................................................8 Recommendation #3: .......................................................................................................................9 Recommendation #4...................................................................................................................... 10 Recommendation #5...................................................................................................................... 12 Recommendation #6...................................................................................................................... 13 Recommendation #7...................................................................................................................... 13 Recommendation #8...................................................................................................................... 15 Recommendation #9...................................................................................................................... 17 Recommendation #10 ................................................................................................................... 18 Recommendation #11 ................................................................................................................... 18 Recommendation #12 ................................................................................................................... 19 Recommendation #13 ................................................................................................................... 20 Recommendation #14 ................................................................................................................... 21 Part III: The Way Forward................................................................................................................ 23 Community Engagement .............................................................................................................. 23 Respect ................................................................................................................................................ 26 Transparency.................................................................................................................................... 28 Accountability................................................................................................................................... 30 Conclusion.......................................................................................................................................... 32

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Part I: Introduction
The past five years have been transformative for the NYPD. Rejecting what were once conventional norms that placed an overreliance on enforcement metrics, the Department embarked on a journey to shift the paradigm toward a shared responsibility for public safety with the community. To accomplish this, the Department has reimagined what it means to engage the community, provide oversight, train personnel, and incentivize the Department’s workforce. The Department has also refined and focused its crime-fighting strategies. Institutionalizing precision, collaborative policing has created a crime-fighting philosophy that we believe is contributing to the New York City’s historically low crime rates.
Since 2011, when the number of stops peaked at over 680,000, and especially since 2013, when the Floyd case was decided, there is a profound sense of change within the Department. In 2017, the NYPD documented approximately 10,000 stops, an over 90% decline from 2011. Police officers are also issuing thousands of fewer summonses and making many, many fewer arrests. The immediate reform efforts around stop, question, and frisk (“SQF”) and trespass enforcement by the Department, the Monitor, his team, and the attorneys who represent the plaintiff classes, have resulted in new policies, training materials, and reporting forms that are designed to help the Department achieve substantial compliance with the Fourth and Fourteenth Amendments. The two-year process of re-training all 36,000 uniformed members of the service on the law of investigative encounters through small, interactive classes is well underway. The Department is going beyond the court-ordered body-worn camera pilot program with plans to equip all patrol officers and supervisors with body-worn cameras by the end of 2018, a full year earlier than originally planned. The court’s remedial order also created a Facilitator, Judge Belen, and directed him to engage the communities and criminal justice stakeholders most affected by the Department’s SQF practices, get their input, and then work with the parties to develop additional, appropriate reforms that would supplement the reforms already ordered by the court.1 These supplemental reforms are to be no broader than necessary to bring the NYPD’s use of SQF into compliance with the Fourth and Fourteenth Amendments.
One stark takeaway from the Facilitator’s report (the “Report”) is how the overuse of stop, question, and frisk in certain communities has left the residents with such strong, enduring negative sentiments toward the police. The level of mistrust is a serious challenge to the reforms the Department is pursuing. We owe it to the community to repair that trust, and we owe it to our police officers, who risk their lives on a daily basis and who need trusting partnerships with our communities to do their jobs safely and effectively. There are four themes that were consistently
1 Floyd Rem. Ord, Dkt # 372, at 28.
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reiterated throughout this process and reflected in the Report: respect, transparency, accountability and community engagement.
Part II of this submission addresses each of the Facilitator’s 14 recommendations. Due to the broad breadth of the Report and the more limited scope of the court’s mandate for the Joint Remedial Process, this response does not attempt to address the scores of supplemental suggestions that are, as Judge Belen notes, outside the scope of the JRP. The Department’s objection to some aspects of the 14 recommendations should not be viewed as a rejection or trivialization of the community’s perceptions. We have listened to the voice of the community and read the feedback from individuals and organizations that are in the Report. However, this process was meant to take six to nine months, and it has instead taken three years; during this period, the Department has already taken on many of the recommendations, either directly or in comparable form. Engagement with the communities most affected by stops is occurring through many of the initiatives described herein. For example, the Department is already:
 Implementing enhancements to the Risk Assessment and Information Liability System (“RAILS”) and performance evaluations to create more accountability feedback loops;
 Drafting a discipline report and requesting legislative changes to Civil Rights Law 50-a to promote transparency of discipline;
 Expediting the Department’s response time to stop report requests;  Accelerating and expanding the body-worn camera program;  Training and conducting outreach regarding special populations (i.e.
people with disabilities, the LGBTQ community, Crisis Intervention Training, and Fair and Impartial Policing training) to promote respectful interactions; and  Holding “Build the Block” meetings to increase local community engagement.
Overall, the Department is implementing or intends to implement, in whole or in part, the substance of 11 of the 14 recommendations. The three recommendations that the Department wholly objects to have considerations around concerns for public safety and privacy that are not fully explored in the Report.
The court contemplated input from the “communities most affected by the NYPD’s use of stop and frisk” and referenced a “wide array” of stakeholders representing diverse points of view (e.g. NYPD personnel, district attorneys’ offices, advocacy groups, groups concerned with public housing, etc.) and not just a single advocacy group or ideological perspective. Although the Facilitator solicited input from a broad array of stakeholders, the proposals do not reflect these diverse perspectives, and moreover, the Report itself is partial towards the organizations affiliated with the plaintiffs’ counsel with little to no regard for the feedback from officers, unions, or other law-enforcement groups. The tone of the Report implies that there is a consensus amongst all the stakeholders on these reforms; yet that is not the case. It
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fails to indicate instances in which there was disagreement or contrary points/concerns were raised. Without an analysis or balancing of the various points of view, the recommendations are not placed in the proper context. The NYPD has to balance the reforms proposed by a relatively small number of individuals with the realities of policing, privacy, officer and public safety, collective bargaining laws, and a host of other considerations. The court was explicit that 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 Some proposals raised by the Facilitator as well as various individuals and organizations can be interpreted as exceeding this threshold and are not necessary within the context of the transformation described in this response. These recommendations exceed the subject matter of the court order and the scope of the JRP. Thus, the objection of the Department is to the court ordering the recommendations; these topics are better addressed through conversations and community meetings. In the event that the court intends to order any of these recommendations, the Department respectfully requests that the terms of the order be negotiated and clearly define the reforms to be implemented by the Department, the reporting requirements by the Department and the Monitor to the court, as well as compliance metrics. Part III details some of the additional coordinated innovations that have already taken place and are taking place in the Department around the themes of community engagement, respect, transparency, and accountability.
2 Floyd Rem. Ord, Dkt # 372, at 30.
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Part II: Responses to the Facilitator’s Recommendations
Recommendation #1: The NYPD must develop a program to systematically receive,
assess, and act on information regarding adverse outcomes about the conduct of officers involving unlawful stops/trespass enforcement, to include:
a) Declinations to prosecute from District Attorney offices, and such feedback loop should include declination data being integrated into the Risk Assessment and Information Liability System (“RAILS”);
b) Judicial suppression decisions based on a failure to adhere to the law; c) Judicial adverse credibility findings, and such feedback loop should be guided
by concrete protocols in a written policy developed by a working group to include the NYPD, the District Attorneys and the Law Department; d) Denials of representation/indemnification by the Law Department due to malfeasance and such feedback loop should include the integration of this information into RAILS absent extraordinary circumstances; e) Civil judgements due to police malfeasance in the opinion of the Law Department, and such feedback loop should be guided by a written policy that directs the integration of such judgements into RAILS; f) Substantiated CCRB complaints.
The Department agrees that information that adversely reflects on the credibility of an officer is an important component of any feedback loop designed to be an early warning/intervention system for officer misconduct and can serve to enhance accountability. This information can be used to manage future risk to the Department when it is relevant and the data is available. The NYPD has had performance monitoring of employees for many years. As a result of the court’s recommendation that the NYPD consider an early intervention system as a “…centralized source of information regarding officer misconduct,”3 the Department has designed and implemented its IT solution, RAILS. RAILS is a personnel dashboard used by commanding officers as a management tool to conduct performance analysis. RAILS aggregates personnel data in one place as well as other negative performance indicators such as civilian complaints, discipline, stop reports rejected by a supervisor, and transfers for cause. Commanders can actively query an individual’s record as well as receive automatic alerts anytime one of these triggering events occurs in order to facilitate timely intervention. RAILS became operational in October 2017 but is still being further developed and enhanced.
However, some of the sources of information described in recommendation #1 are either not relevant predictors of risk or not practicable to integrate into RAILS; thus, the Department does not support a complete implementation of the recommendation. The Report makes assumptions about the feasibility of integrating different technologies without having assessed the systems to determine
3 Floyd Rem. Ord, Dkt # 372, at 23.
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their compatibility. Certain enhancements to RAILS, or external systems that may feed into RAILS, may require extensive IT engineering efforts and should only be initiated after a thorough cost/benefit analysis and an evaluation of whether the goals of the technology solution (i.e. feedback loops) can be accomplished through other means.
It is also important to note that the Report cites the New York City Department of Investigation – Office of the Inspector General for NYPD (OIG-NYPD) report on a review of data from NYPD litigation proceedings. This underscores the point that the NYPD already has oversight bodies reviewing its practices and policies regarding police conduct and any further court action would be unnecessary. Each point is discussed in more detail below.
a) Declinations to Prosecute. The NYPD’s Criminal Justice Bureau (“CJB”) currently analyzes declinations to prosecute (“DP”), reports them to commands, and requires an inquiry and response by the commanding officer. Additionally, the Department plans to integrate data regarding DPs into RAILS. Declinations for selected grounds, including failure to establish probable cause, an officer’s failure to appear to draw up charges, or an unlawful stop or search, will trigger alerts to commanding officers so that they may evaluate the declinations and act upon them, as appropriate. Naturally, this would include declinations for a much broader set of cases than those arising from Terry stops or interior patrols. Once the link between the “DP” database and RAILS is established, the NYPD will continue to maintain the inclusion of these data points, at least for the duration of the Monitor’s oversight, with notice to the parties of any changes to the data related to stops/trespass enforcement. It is anticipated that this data integration will be completed in summer 2018. Finally, the Risk Management Bureau plans to conduct periodic meetings with CJB to discuss patterns in declinations to prosecute, assess risk, and relay training needs to the Police Academy.
b) Suppression Decisions. Officers generally learn about suppression decisions, and the rationales for those decisions, from the Assistant District Attorneys who handle the suppression hearings, so, to that extent, there already is a feedback loop between the Department and our partners on the prosecution team. The prosecutorial agency is in the best position to have accurate and complete information on suppression decisions, including the basis for decisions. In order to institutionalize the agency-to-agency feedback loop, it would require that non-party agencies (either the DAs Offices or the courts) create and produce reporting mechanisms to the NYPD regarding the grounds for suppression. Compelling non-party agencies to submit reporting forms is broader than necessary to achieve substantial compliance by the NYPD and causing officers to self-report these decisions will lead to inaccurate data collection. The law of investigative encounters can be complex and factspecific. We believe we should focus our resources on feedback loops tied to clearer errors (i.e. declinations to prosecute) rather than the cases that
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prosecutors have vetted and have deemed worthy of litigation at suppression hearings. Additionally, the overall suppression numbers are not indicative of a pattern of misconduct. If the suppression is based on a finding of adverse credibility, that would be reported as discussed below.
c) Adverse Credibility Findings. The NYPD has an established procedure for reviewing adverse credibility findings by judges regarding an officer’s testimony in a court proceeding. The Department receives notice of such findings from each of the five District Attorney’s Offices in New York City, the Office of the Special Narcotics Prosecutor and the United States Attorney’s Offices for the Southern and Eastern Districts of New York.4 Once a finding is received, it is logged into a tracking system and scheduled for review by the Department’s Adverse Credibility Committee (“the Committee”). The Committee, which was formed in 2016, consists of Department executives from various Bureaus including the Legal and Risk Management Bureaus. The Committee meets as necessary depending on the number of findings received. The purpose of the Committee’s review is to determine the appropriate action to be taken by the Department with respect to a specific finding. An adverse credibility determination is not the equivalent of a judicial finding that the officer committed perjury or a related crime (cases that present reasonable inferences of perjury/criminality are referred directly to the Internal Affairs Bureau). In some of the referred cases, the officer failed to adequately review his or her notes or was unable to recollect facts. In others, prosecutors failed to make sufficient factual records. Members of the Committee closely review the materials received from the respective prosecutor’s office, including the transcript of the officer’s testimony and that of other parties in the case, as well as the judge’s decision.
As a general matter, the Committee directs that every officer and his commanding officer be notified of the finding. In appropriate situations, the Committee may also direct remedial one-on-one training for the officer and/or recommend that the officer’s commanding officer consider his or her reassignment. In rare instances where serious misconduct is suspected and only first detected by the Committee, the Committee refers the matter to the Internal Affairs Bureau (“IAB”) for investigation and possible discipline. A summary of the Committee’s action, as well as the underlying transcript and/or judicial decision is also forwarded to the Department’s Performance
4 In 2014, then-Commissioner William Bratton wrote to the city’s five District Attorneys and our two U.S. attorneys, urging that the NYPD be informed of all adverse credibility rulings. Since then, the request has been reiterated by the Deputy Commissioner of Legal Matters to those parties, as well as to the Special Narcotics Prosecutor and the Corporation Counsel’s Family Court Division, in the context of ongoing meetings and communications with those prosecutors’ offices about adverse credibility findings and related issues. In this sense, the NYPD and the prosecutors already have a working group that addresses this process. Because there are no judicial findings of adverse credibility in either federal or state civil lawsuits for money damages, there is no need to include the Law Department in the working group.
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Analysis Section for their review. This process applies to all adverse credibility findings referred to the Department by prosecutors, not just those arising out of Terry stops or interior patrols. Since its inception, the Committee has received adverse credibility findings related to only three cases arising out of an SQF street encounter and one interior patrol/Housing Bureau case. The Department is also exploring the feasibility of incorporating adverse credibility findings into RAILS. The goal is to have this integration accomplished by September 2018. Given the Department’s established process and the low number of relevant cases, court ordering an adverse credibility finding process for cases arising out of stops or interior patrols is broader than necessary for substantial compliance. However, NYPD would agree to confirm the continued use of the Committee to review information about adverse credibility findings related to stop/trespass enforcement during the period of the Monitorship. In addition, we will update the Monitor on the progress regarding integration of adverse credibility findings into RAILS.
d) Law Department’s Refusal to Indemnify/Represent for Malfeasance. The Department is in continuous communication with the Law Department about all manners of civil litigation and is made aware of any denial of indemnification. Much of that communication is subject to attorney-client privilege. However, the Law Department generally alerts the NYPD to any potential malfeasance by members of service.
e) Civil Judgments due to Malfeasance. When an officer is the named defendant in a lawsuit, the Department has in place a feedback loop to evaluate the context of the case. There is: notification to IAB, an entry placed in the officer’s personnel record, a review of the case by the Performance Analysis Section, possible entry into the civil lawsuit monitoring program, and finally, the results/impact of the monitoring program are evaluated. Placement in monitoring can result in a number of consequences against the officer such as change of assignment, restrictions on overtime, and increased supervision.
The Law Department may elect to defend or settle a lawsuit based upon a variety of factors. The NYPD confers with the Law Department regarding case strategy and outcomes. Additionally, the Department is in regular communication with the Law Department regarding settlements. The NYPD is made aware of any denial of indemnification, judgment, or verdict that occurs involving a member of the Department. Litigation history is a factor considered by the NYPD regarding the placement of a member of the Department in a monitoring program or other appropriate remedial action. The Department is having ongoing discussions with the Law Department as to whether the litigation data can be integrated into RAILS.
f) Substantiated CCRB Complaints. RAILS currently captures all CCRB complaints (upon case initiation with only named officers) and alerts on the mere complaint, regardless of findings, if an officer has three or more cases in twelve
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months and/or six or more cases in five years. The threshold for an alert is lower for CCRB complaints alleging excessive force (alerting upon four or more complaints in the prior two years or five or more force complaints in the prior four years). The Information Technology Bureau is also working on establishing alerts when a CCRB allegation is substantiated. In addition, an officer’s complete CCRB history (including allegations and outcomes) is included in his/her personnel record for the duration of the officer’s employment. The personnel record and profile activity in RAILS are consulted and considered anytime an officer is evaluated or seeks a transfer, is eligible for promotion or a scholarship, or other Department personnel action.
Recommendation #2: The NYPD must prepare a monthly report chronicling all findings of misconduct and the resultant disciplinary outcomes.
The Department is in the process of preparing a discipline report that will compile aggregate discipline data for publication to support our efforts to be more transparent surrounding the application of discipline. While the Department strives to ensure that disciplinary procedures are commenced and concluded in a timely and efficient manner, circumstances exist that may delay that process. Given the duration of time that it takes to investigate and adjudicate discipline cases, annual reporting would be more meaningful than monthly. In addition, the Department intends to release case summaries for publication regarding discipline cases including the offense, the process, and the penalty. Neither publication will disclose any personal identifying information about the complainants or officers involved. However, in April 2018 the Patrolmen’s Benevolent Association commenced litigation arguing that such summaries violate Civil Rights Law Section 50-a. They were granted a temporary restraining order preventing the release of such information pending the resolution of litigation. Historically, New York courts have broadly applied Section 50-a.
The Department has routinely provided the Monitor and his team with robust data regarding discipline related to SQF and trespass enforcement encounters over the course of the Monitorship. Such data includes the case findings, charges, recommended penalties, reconsiderations, the Department Advocate’s recommendation to the Police Commissioner, and the Police Commissioner’s final decision. The Monitor also reviews complete case files upon request.5 As an extension of the court, this exchange of data is compliant with Civil Rights Law 50-a and the Monitor does not publish identifying information in his reports. This process ensures accountability for the equitable application of discipline over the course of the Monitorship. The Department can use this data as a template to create a section in the report described above dedicated to aggregate SQF and trespass
5 In the Monitor’s Seventh Report (dated December 13, 2017), the Monitor notes that his team reviewed 63 complete cases and found only five cases in which the Monitor questioned the outcome. Upon further discussion with the NYPD, his team only disagreed with two.
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enforcement data similar to the CCRB’s reporting. 6 The Department also publishes an annual “Use of Force Report,” as mandated by Local Law 85 of 2016, which describes findings of misconduct related to uses of force. If the Department is allowed to proceed and publish the summaries, they will be public and available for inspection by the Monitor and the plaintiffs’ counsel. The Department would agree to continue to release such publications about SQF and trespass cases during the period of the Monitorship. While the Department recognizes and supports the need for transparency around the disciplinary process overall, if the Court construes recommendation #2 too broadly, it is beyond the scope of the JRP for violations other than those related to SQF and trespass arrests.
Recommendation #3: The NYPD must develop and publish progressive disciplinary standards for cases arising from unconstitutional stops and trespass enforcement regarding excessive force, abuse of authority, discourtesy or offensive language, and racial profiling allegations.
The Department understands the need for accountability and transparency in its disciplinary process and that the perceived lack thereof is a significant factor in the mistrust that the community feels towards the Department. This is why the Department supports changes to Civil Rights Law 50-a (and has endorsed the New York State Senate amended bill #2850, introduced January 17, 2017) and supports recommendation #2, with minor modifications. However, published discipline guidelines (i.e. a discipline “matrix”) are not the proper way to ensure the equitable imposition of discipline as each case is fact-specific and discipline relies on the consideration of a number of mitigating or aggravating factors. Similar matrices in other jurisdictions have faced strong legal opposition for violating collective bargaining laws and denying officers their due process rights. Furthermore, the New York City Charter and Administrative Code7 give the Police Commissioner exclusive statutory authority over discipline. To create a presumptive standard of discipline would divest him of the authority to make decisions in each case based on the totality of the circumstances and eliminate his ability to exercise discretion.
The NYPD Department Advocate prosecutes NYPD internal disciplinary cases utilizing a progressive disciplinary standard in the evaluation of the appropriate penalties for the misconduct charged. The Department Advocate applies the “preponderance of the evidence” standard of proof for internal Department disciplinary cases. Beyond applying the standard of proof for each element of an offense, each case is evaluated on its own merits with the individual officer’s past history and other factors taken into consideration when recommending discipline.
6 CCRB investigates allegations related to stops and frisks. Since 2011, the number of allegations related to stops has declined by 40%. The CCRB already publishes extensive data about allegations and disciplinary outcomes on its website and in its annual and semi-annual reports. 7 Administrative Code of the City of New York section 14-115.
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The Department Advocate also evaluates any proposed penalty with respect to established precedent for consistency with similar cases.
The breadth of recommendation #3 goes far beyond “stop and frisk” to discipline in general and if construed in this manner, it is too broad to bring the use of Terry stops into compliance with the Fourth and Fourteenth Amendments. As described above, disciplinary recommendations are complex analyses that require consideration of many variables including aggravating and mitigating factors as well as recent precedent and judicial and administrative determinations. The imposition of standards would be impracticable, raise due process concerns, and would also likely run afoul of civil service laws as well as New York’s collective bargaining agreements.
Recommendation #4: Pending the results of the Monitor’s pilot program, the NYPD should consider requiring officers to activate BWCs at the inception of all Level 1 encounters with civilians.
In developing the Department’s body-worn camera policy, the NYPD engaged in extensive research of other police department policies and solicited input from stakeholders including District Attorneys’ Offices, defense attorneys, health care providers, CCRB, privacy advocate groups, etc. In addition, the Department solicited public input on its draft policy by utilizing a comprehensive feedback process modeled on administrative notice-and-comment rulemaking that included an online questionnaire that allowed members of the public and members of the Department to participate.8 The NYPD body-worn camera policy and report describing the development of that policy have been made publicly available. The report and FAQ videos about body-worn cameras in several languages as well as sign language are available on the NYPD’s website (http://www1.nyc.gov/site/nypd/index.page).
In 2013, the court order in Floyd directed the NYPD to conduct a one year, 1,000 camera, body-worn camera pilot under the supervision of the Monitor, who was to assess whether body-worn camera videos were effective in reducing unconstitutional stops. The court’s order came at a time when the NYPD had not yet designed a body-worn camera program but had been tracking their implementation at other police departments. For the Monitor’s pilot, the Department rolled out body-worn cameras to the third platoon in 20 commands between April and November 2017. Right after the pilot was launched, the Department voluntarily began to expand the use of body-worn cameras and committed to deploy cameras to all patrol officers by the end of 2018. As of June 1, 2018, officers in 49 commands have been issued cameras – over 7,600 so far.
8 This process was achieved through a collaboration with the NYU School of Law’s Policing Project as well as the NYU Marron Institute. Over 25,000 members of the public and over 5,000 officers participated.
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The Department does not agree to change its policy to include recording De Bour Level 1 encounters nor do we agree with the characterization of other jurisdictions’ policies which were extensively researched during the drafting of the NYPD policy. Recording all Level 1 encounters would effectively mandate activating the bodyworn camera any time an officer engages with a member of the public which is not consistent with many jurisdictions’ policies. Many cities do, in fact, separate out the public safety function (i.e. Level 1 encounters) from law enforcement encounters where there is criminality suspected (i.e. Level 2 + encounters). For example, Chicago has “community caretaking functions” which are discretionary to record unless and until the officer “has reason to believe the person…has committed or is in the process of committing a crime.”9 Additionally, what works in other cities does not necessarily work for NYPD as other cities have much smaller police departments (number of officers), smaller populations, and fewer calls/citizen encounters.
Recording Level 1 encounters has serious privacy implications and may have a chilling effect on community-police interactions which is inconsistent with the NYPD’s Neighborhood Policing philosophy. The Department also has serious concerns about its technological ability (e.g. the bandwidth) to support the increase in the number of videos that would be added if this policy were to be implemented. Under the current policy, there are already close to 700,000 videos to date. The average length of video is 10 minutes. These numbers would increase exponentially if Level 1 encounters were included. The NYPD has a volume of ~4.5 million calls for service annually, with at least two responding officers to each. In addition, the Neighborhood Policing program has officers “off-radio” for a third of their tour to increase community engagement and problem solving. Potentially every one of these police-citizen interactions is a Level 1 encounter (e.g. call for service, aided care, seeking information). The number of body-worn camera videos would be immense and unmanageable.
Recording all Level 1 encounters does not further NYPD’s compliance with the Fourth and Fourteenth Amendments. The constitutional standard in Terry for a stop is objective – that a reasonable person would not feel free to leave – not a subjective standard of how certain individuals actually felt. We require activation of cameras at Level 2 encounters which, due to the “tools” of accusatory questioning and consent to search, makes it more informative footage. The NYPD policy also requires recording all interior patrols, responses to calls for crimes in progress, as well as all encounters with emotionally disturbed persons (“EDPs”). The policy also allows officers to record non-mandatory encounters at their discretion as long as they are not otherwise prohibited. These categories capture many of the Department’s Level 1 encounters, especially ones such as EDPs that are at risk for escalation or uses of force. The value of adding additional Level 1s such as a canvass for witnesses or searches for lost children is limited and the cost is enormous in terms of capacity, data management, and bandwidth as well as the privacy implications for individuals. There is also a risk that a casual encounter could be escalated into an adversarial
9 http://directives.chicagopolice.org/directives/data/a7a57b38-151f3872-56415-1f3889ce6c22d026d090.html
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interaction upon activation of the body-worn camera. As for the suggestion that the Department could, at a minimum, include Level 1 encounters that “serve a law enforcement purpose,” such a proposal is untenable. This would create an artificial distinction within Level 1 encounters that would be confusing to officers, difficult to train, and inconsistent with the law. It is also unnecessary as, again, many law enforcement-related Level 1 encounters are already captured under the mandatory and discretionary recording provisions. It is premature to propose changes to the body-worn camera policy until the conclusion of the Monitor’s pilot and issuance of his Report. The Remedial Order states that recommendations about the program must be informed by the pilot study.
Recommendation #5: The NYPD must add an application on officer iPhones/tablets that would allow an officer to input the approximate age, gender, race, and ethnicity of any person they approach at Level 1 or 2.
This recommendation is neither practical nor feasible. Documenting all encounters that do not rise to the level of reasonable suspicion would be overly burdensome, unnecessary, and potentially have a chilling effect on community engagement. Furthermore, such a practice could effectively turn every consensual encounter into a de facto Level 3 Terry stop unsupported by reasonable suspicion because, by asking for an individual’s name and/or pedigree information, the officer necessarily interferes with the individual and unnecessarily prolongs the encounter. The recommendation also implies that the officer should guess the person’s age, gender, race, and ethnicity and then record the perceived pedigree information. This would create a database based solely on an officer’s perception of the individual and thus would be of no value from an analytical standpoint.
The Department documents Terry stops and pursuant to local law (see, “Right to Know Act” in Part III), will also begin documenting encounters that involve a request for consent to conduct a search of a person or their belongings. The NYPD receives approximately 4.5 million service calls annually. Many of these involve some type of investigative encounter. Typical examples include asking a person encountered if they called the police, if they know who called the police, if they are okay, if they need an ambulance, if they know the crime victim lying on the ground, or if they saw what happened. A police officer may respond to the scene of a shooting and walk among the large crowd that has gathered to ask if anyone saw anything or knew what happened. Each of those brief encounters or conversations, amount to a Level 1 Request for Information. It’s not practical to document each of these encounters especially when time is of the essence such as when dealing with a victim or crime in progress. A review of body-worn camera footage shows it is impossible and unnecessary to document each of these interactions. State law, including CPL § 160.50, may prohibit documenting certain public encounters. Additionally, documenting these encounters does not serve any operational, public safety or quality control purpose.
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As described above, this is unrealistic and evinces a lack of understanding of most Level 1 encounters in which a police officer approaches a person seeking information. Stopping to prepare a report for each such contact could have a chilling effect on public cooperation, turn simple conversations into prolonged de facto stops and impede police service. The highly questionable value of this information cannot be considered essential to substantial compliance, particularly when weighed against the costs in community relations and resources to develop and use the applications.
Recommendation #6: The NYPD must create a protocol to expedite the processing of requests for stop reports.
In order to facilitate a quick turnaround of stop reports, the Department is in the process of implementing a procedure that will allow requestors to receive a copy of a stop report within 10 business days from receipt of the request (which can be in person, via mail or electronically). Requestors that seek to obtain a stop report will need to provide the date, time and location of the stop. Information regarding this new procedure is available at www.nyc.gov/police-encounters. Contrary to the Facilitator’s understanding, this new protocol is not a result of the immediate reform process but is a voluntary undertaking by the NYPD to streamline its document production process.
Recommendation #7: NYPD must formally engage affected communities at the Borough Command level through regular meetings. Also, the Court should order the establishment of a “Community Collaborative Board” to provide feedback on the Court-ordered reforms as they are being implemented.
Borough-Level Meetings
This past summer, in addition to the Neighborhood Coordination Officers’ (“NCO”) regular contact with local stores, schools, community organizations, and people on the street, the NYPD organized quarterly community meetings with NCOs at the sector level all across the city. The meetings, known as “Build the Block” meetings, are run by the NCOs themselves, usually without the presence of higher-ranking officers, and are conceived as working sessions in which neighbors raise concerns and challenges in the neighborhood and discuss possible solutions with the officers who are actually responsible for the sector in which they live. The NYPD promotes these community engagement initiatives through the Department’s social media platforms as well as a website (https://buildtheblock.nyc/) where people can learn more about the program, find their next local meeting, and sign up for informational emails. The NYPD also has the Community Partners Program. This program helps probationary police officers get to know the neighborhoods they will be serving by connecting newly graduated police officers with volunteer community members and
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leaders. Finally, one-third of a steady sector officer’s tour is set aside for community engagement and collaborative problem solving.
While these important programs are occurring at the sector and precinct levels, the Department agrees to the recommendation of a borough-level community engagement forum. We propose borough-level community meetings that are open to the public organizations that have not historically participated in community meetings. Participants could submit agenda items for discussion. We believe these borough meetings will be more effective when conducted every six months rather than monthly because there will likely need to be smaller interim meetings in between to address the issues raised and solve problems.
During the period of the Monitorship, NYPD can report to the Monitor and the court about such meetings and the suggestions made and issues raised. Plaintiffs’ counsel can assist by submitting a list of organizations interested in participating. The organizations can confer in order to fashion priorities and create an agenda. The agenda and meeting minutes could potentially be online for public viewing. The Department also intends to use other feedback and the Policy Considerations in the JRP Report to inform its agendas and discussions. Finally, the Department already has some specific outreach programs for special populations that are described in more detail in Part III.
Community Collaborative Board
The recommendation for the establishment of a Community Collaborative Board (“CCB”) to provide feedback from affected communities on the court-ordered reforms and make recommendations to the court and the Monitor is redundant to and undermining of the Monitorship/JRP and is not necessary to bring the use of Terry stops into compliance with the Fourth and Fourteenth Amendments. This recommendation usurps the authority of the Police Commissioner to manage and administer the Department and as such violates the New York City Charter. In addition, there are other oversight entities available such as the OIG-NYPD and the CCRB to review matters beyond the purview of the Monitorship. The court was explicit in Floyd that the order was not meant to undermine the Police Commissioner’s authority and was distinct from the role of the OIG-NYPD.10 The Facilitator admits that the CCB would only have jurisdiction to offer feedback on SQF reforms thus limiting its agenda to a very narrow set of issues when there are many other areas that are ripe for conversation with the community. Such conversations are taking place in the community meetings and between many organizations and the NYPD on a regular basis.
The cities that are cited as having consent decrees with community councils have not had the benefit of five years of a monitorship and a three-year joint remedial process to do the very outreach that the recommendation anticipates. There is
10 Floyd Rem. Ord, Dkt # 372, at 12.
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already a court-appointed Monitor in place who has frequent contact with the organizations cited in the Report, in addition to the ultimate oversight imposed by the court. This proposal is tantamount to creating a second monitor and repeating the Joint Remedial Process. Such a proposal is unnecessary, would consume valuable resources, undermine the Monitor, and actually lengthen the delay in implementing remedial measures.
Moreover, this proposal contravenes the language of the court order. Although the Facilitator did not explain his criteria for the selection of his recommended board members, the court contemplated input from a variety of stakeholders that represented diverse points of view (e.g. NYPD personnel, district attorneys’ offices advocates, etc.). The proposed members of CCB do not appear to reflect the diverse perspectives of many other stakeholders. The Department solicits input and conducts community outreach from a variety of stakeholders in many ways. Feedback and advice from community members’ perspectives are better obtained through the Borough-level community meetings as outlined above. The meetings will allow for feedback from a multitude of organizations that better “reflect the diversity of New York City” beyond the handful of specific organizations that the Facilitator recommends as members of the CCB.
The assertion that the work of the Joint Remedial Process will come to an “abrupt stop” and deprive individuals of a voice is unfair and has no basis in fact. Over the past 4 years, outside of the JRP, the NYPD has engaged with many of the organizations listed in the Report and will continue to do so on a wide variety of issues that go beyond SQF reform. Furthermore, as most of the immediate reforms are currently in the implementation phase or have already been implemented, we are about to embark on the true “monitoring” phase of the remedial process. If the goal of the CCB is to give community members a mechanism to offer feedback on the reforms during the course of the Monitorship, going directly to the Monitor and his team is the appropriate mechanism to accomplish that goal. The Monitor’s website contains a wealth of information and invites feedback. The Monitor can, and does, engage individuals and organizations and receives input into SQF reforms. If the court feels that the Monitor should receive more feedback from these organizations, the court should recommend to him that he increase his outreach efforts now that the policies are drafted and trainings are underway.
Recommendation #8: The Department must conduct a broad-based public education
campaign to correct misunderstandings (i.e. educate the public that Terry stops are legal if based on reasonable suspicion), inform citizens about the rights and obligations of citizens and officers during investigative encounters, and update citizens about the changes to NYPD policies.
It is unfortunate that the court’s finding has been misconstrued by some members of the public as declaring SQF illegal. This may be the result of media coverage and rumor; however, the NYPD has been consistent and careful in its phrasing around
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the issues of SQF and is confident that the misunderstanding is not the result of any communications originating from the Department.11 Further, it is not the Department’s responsibility to quash rumors or provide legal advice to individuals. There are numerous advocacy groups, community leaders, and legal defense organizations as well as the CCRB that can, and do, have their own public education campaigns regarding interactions with police officers. Any education campaign spearheaded by the NYPD may be viewed as suspect by certain groups and individuals. The message is better coming from the Monitor, CCRB, or other organizations. Ultimately, the public’s level of awareness and understanding of SQF—while certainly valuable—is not required for the Department to be in compliance with the Fourth and Fourteenth Amendment and some aspects of the recommendation such as radio and television public service announcements are very costly.
There are several sources of information that currently exist for individuals to learn about their rights and NYPD policies and procedures. For example, CCRB engages in broad public outreach and distributes the following information brochures: “What to Do if a Police Officer Stops You” and “What can you do if you think you’ve experienced or witnessed police misconduct.” This material is also available on their website: (http://www1.nyc.gov/site/ccrb/about/outreach/publications.page). CCRB publishes extensive information and data about complaints and their outcomes on their website as part of their data transparency initiative. This information is updated weekly in addition to aggregate reports that are published semi-annually.
The NYPD publishes its operations manual, the Patrol Guide, on the Department’s website where it is available for public inspection. The Patrol Guide includes policies related to investigative encounters, interior patrols, and profiling. All of the courtapproved materials are on the Monitor’s website: (http://nypdmonitor.org/). The NYPD also has programs available to civilians to learn about policing such as the Citizen’s Police Academy and the Citizen’s Police Academy International. These are training programs open to any interested community member that meet once a week for ten weeks twice a year. The Academy takes civilians through an experiential training curriculum similar to the NYPD recruit training experience. Attendees participate in hands-on and classroom instruction in various law enforcement and policing topics, such as Investigative Encounters, Crisis Intervention, driver training, officer safety, and use of firearms. The International variation is language and neighborhood specific and includes matters such as immigration issues. These are done in collaboration with the local precinct and other providers, such as the local District Attorney’s Office.
11 Please note the irony that the Facilitator is seeking to correct the misconception that stopping and frisking is illegal yet used a picture for the cover of his Report that says “End Stop & Frisk Hands Off The Kids.” Disseminating photos like this is precisely what the Department is trying to communicate against and the NYPD repeatedly asked the Facilitator to remove this photo for that reason.
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Notwithstanding all that is being done, the Department is open to drafting, with input from the parties, a plain language guide to police services/interactions in the model of the Toronto Police Department.12 We can disseminate this information via social media and at community meetings. We do not believe that the services of a social psychology expert are necessary to accomplish this task nor does this require ongoing court involvement.
Recommendation #9: The NYPD must implement annual community surveys at the precinct/PSA level that track police-community relations broadly and public perceptions of street encounters, specifically.
The NYPD is committed to receiving feedback from the public regarding policecommunity relations and we do so in many ways, as described herein. The Department pays close attention to media coverage and meets regularly with a number of community groups and elected officials who are elected to speak on behalf of their constituents. We hold community meetings and encourage individuals to leave comments on our website and through 3-1-1. These are very productive ways to determine public sentiment and gain valuable feedback.
The Department has been working with ELUCD, a data analytics group, to conduct surveys and analyze responses in order to measure community sentiment at the micro-neighborhood level on an ongoing basis and in real time. The Department was looking for a regular, ongoing measurement of sentiment to be used as another management metric to augment the current Compstat process. This has developed into the Sentiment Meter. The Sentiment Meter collects data around three key dimensions from residents of each sector: trust, satisfaction, and perception of safety. ELUCD has developed a multi-modal data collection model that allows them to reach all segments of the population and collect data based on a representative sample for a specific neighborhood’s demographics. These survey responses are used to develop indexes around those three key dimensions which are similar to FICO credit scores for each neighborhood. This information is not intended to predict an outcome (such as a specific percentage of people who are satisfied with NYPD); rather, it is intended to be utilized as a means to observe trends over time and what drives those dimensions of sentiment up or down. This data will be analyzed in relation to other data such as the crime data that the Department already collects to see what factors may affect sentiment. This analysis is meant to be used as a tool for police executives and commanding officers to understand what is going on in their sectors, commands, and the city overall.
While the Department acknowledges that the questions for the Sentiment Meter are not specifically SQF-related, they do get at police-community relations broadly and are tracked over time. The Sentiment Meter data is designed to be used by precinct commanders to better deploy their resources. The fact that the data is not public,
12 See, http://www.torontopolice.on.ca/d13/20131023-d13_guide_on_calling_police.pdf.
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and not known to the Facilitator, does not negate its important effect on assisting NYPD to assess community-police relations at a local geographic level. Thus, ordering the NYPD to conduct additional community surveys on an ongoing basis would be at great expense to city taxpayers with little benefit beyond the feedback we already receive; further, it does not appear to be essential to bring the Department’s SQF and trespass enforcement practices into compliance with the Fourth and Fourteenth Amendments.
Recommendation #10: The NYPD must review and audit its policies and practices with regard to the cultivation of youth confidential informants.
The development of confidential informants, of all ages, is a necessary component in gathering criminal intelligence and is an important tool for the NYPD. Thus, there are specific protocols in place to govern this process and there is no policy that condones the practices described in the Report on pages 219-220. In fact, Patrol Guide 212-68 specifically states that if a prospective confidential informant is less than 18 years of age, in order to register the contact, a parent or guardian must be present and the NYPD must obtain written permission by co-signing the registration form. Any issues with the cultivation of youth confidential informants should be addressed through training. We can reference the Report when finalizing the training for plainclothes officers in an effort to integrate instruction on appropriate and inappropriate practices; however, the Report is vague on the scope of this issue and the feedback appears to be anecdotal and not indicative of a widespread pattern. Additionally, the Department reiterates the legal issues with this recommendation that the Law Department elaborates on in its response.
Recommendation #11: The Department’s SQF training must include specific units on engaging with people with mental, developmental or physical disabilities, and utilize scenarios.
The parties have been working on drafting SQF training for more than two years. The plaintiffs’ counsel and Monitor’s team have collaborated with NYPD on and allowed for the filing of several SQF courses (including scenarios) without objection. The SQF curricula for both newly-promoted and incumbent sergeants and lieutenants have been approved by the court and thousands of supervisors have already been trained. The main remedial SQF in-service training day is jam-packed with law, videos, scenarios, and report-writing exercises. To add additional topics would do a disservice to both the existing content and any newly proposed subject. In general, the course already reinforces de-escalation techniques. The Department has other trainings that address officer awareness and understanding of interacting with individuals with a variety of disabilities. Furthermore, as the Law Department explained in its response to the JRP, the court did not undertake any fact-finding with regards to NYPD’s interactions with disabled individuals in the context of SQF. The concerns noted by the plaintiffs’ counsel are anecdotal and not indicative of a
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pattern and practice of abuse. Therefore, ordering that this content be included in the SQF training (or as a separate training related to this litigation) is outside of the scope of the JRP.
Specifically regarding mental health issues, the Department has had extensive collaboration with mental health professionals, mentally disabled individuals, and others to develop policies and training to increase officer awareness and understanding of mental health issues and to implement de-escalation techniques for interacting with such individuals. Last year, the NYPD responded to over 169,000 calls regarding emotionally disturbed individuals, so it is critical that its officers are better equipped to contend with these situations and increase the likelihood of bringing them to successful and safe conclusions. Specifically, a fourday class, Crisis Intervention Training (“CIT”), that teaches active listening skills, among other techniques, is being provided to all members of the service. Officers learn how to demonstrate empathy and build rapport with subjects, slowing down situations and de-escalating the subject’s negative emotions. The training is supported by interactive scenarios and role-play situations to impart a better understanding of mental illnesses that will help officers assist a person in crisis and gain voluntary compliance. The Department launched its first wave of CIT in June 2015. Since its inception, more than 9,200 police officers have received this training; every patrol lieutenant has taken the course; and all sergeants will be trained by September 2018. Training for officers is ongoing at a rate of three sessions per week.
In addition, the Behavioral Health Diversion Program has launched in all four precincts on Staten Island. This program is designed to improve access to community-based behavioral health treatment and reduce demands on police and emergency medical services. Under this program, calls to 9-1-1 involving nonviolent EDPs will be diverted from a conventional NYPD/EMS response to NYC Well, the city’s crisis intervention and referral service. This service offers free confidential support for anyone seeking help for mental health or substance abuse concerns. Anyone who is determined to be at imminent risk of danger to themselves or others will continue to receive a direct NYPD/EMS response.
To enhance the Department’s services to the hearing impaired, the Police Academy has partnered with the National Action Network Deaf Club to develop scenariobased training and to review the curriculum for recruits in dealing with the deaf community. Finally, the Department has also drafted an ADA compliance plan that includes updates to training to provide guidance on the requirements of the ADA as well as appropriate ways to serve people with disabilities.
Recommendation #12: There should be more training and community engagement with regard to the LGBTQ community, with a particular focus on deescalation. The Department should monitor adherence to the 2012 Patrol Guide revisions and take steps to ensure their implementation.
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The Department currently has a designated LGBTQ liaison assigned to the Police Commissioner’s Office who is responsible for addressing issues specifically related to the LGBTQ community. The liaison is familiar with Department policy regarding LGBTQ issues, as well as with recent federal, state, and local laws affecting the LGBTQ community’s interactions with the Department. The liaison maintains regular contact with local leaders, community groups, advocacy groups and service providers that represent and serve the LGBTQ community in New York City. In 2012, the Police Commissioner assembled an LGBTQ Advisory Board which developed new patrol guide procedures regarding engaging with the LGBTQ public. Community advocates were brought in to train police officers at the Police Academy on the new procedures. This Advisory Board is still active.
The Department has promulgated policies and conducted training for incumbent officers and recruits on such issues as respecting gender identity and recognizing preferred gender when it comes to certain enforcement decisions (e.g. recording identity, searching and lodging of prisoners). The Department conducts outreach to encourage LGBTQ crime victims to report abuse and hate crimes, and promotes LGBTQ services at specified Department of Homeless Services’ shelters. The Department’s Community Affairs Bureau also has a LGBTQ Outreach Unit. Additionally, since 1982, the NYPD has had an official fraternal organization for LGBTQ law enforcement members, the Gay Officers Action League, that assists on addressing LGBTQ matters for employees in the workplace and serves as a bridge between the law enforcement community and the LGBTQ community at large.
While we agree these efforts are crucial and are committed to ongoing efforts to engage the LGBTQ community, this recommendation is outside the scope of this for the reasons that the Law Department stated in its response. The Report incorporates some aspects of the OIG-NYPD report entitled “Review of NYPD’s Implementation of Patrol Guide Procedures Concerning Transgender and Gender Nonconforming People.” Again, the OIG-NYPD report and NYPD response demonstrate that oversight and communication on matters not related to SQF reform are ongoing outside of the Monitorship and JRP. Thus, additional action by the court is unnecessary.
Recommendation #13: The NYPD must implement the use of civil summons for trespass enforcement by extending the Criminal Justice Reform Act of 2016.
The characterization of trespass as a low-level crime that should be decriminalized and subject only to a civil summons is an unsafe and untrue assertion and the recommendation to do so is irresponsible. In addition to the legal concerns raised in the Law Department’s response, enforcement of trespass violations can prevent more serious crimes such as burglary, rape, and narcotics sales. Taking away the tool of criminal enforcement of trespass crimes most adversely affects the safety of residents in public housing developments and other distressed apartment buildings.
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There are 400,000 residents living in NYCHA buildings; the Facilitator received feedback from a very limited number of residents and the transcripts of focus groups do not indicate that they want a decrease in enforcement against actual trespassers. This recommendation implies a mischaracterization of the plaintiffs’ classes in Ligon and Davis. The classes were comprised of residents and guests who were improperly stopped and arrested – NOT actual trespassers. To de-criminalize trespass broadly would diminish the Department’s ability to preserve public safety, particularly in NYCHA developments.
As a result of the Ligon and Davis settlements, the Department has already implemented, or is currently working on, a number of reforms regarding its interior patrol policies, training, administration, and management. Compliance with these reforms is being closely tracked by the Monitor and plaintiffs’ counsel. Officers already have discretion to use options to resolve situations in ways that do not always involve criminal enforcement such as a trespass summons or ejection from the building.13 Between 2011 and 2017, the number of trespass arrests in Housing Bureau public service areas has decreased by 56% due to the application of precision policing, but when enforcement is necessary, officers need to know they have the tools available to arrest individuals and force their removal from buildings. Also, Criminal Trespass is an essential element to, and lesser-included offense of, Burglary under the Penal Law.
The areas that were the target of the Criminal Justice Reform Act of 2016 were lowlevel, quality-of-life offenses that are not inherently dangerous or injurious to society (e.g. public urination, littering, unreasonable noise, etc.). Conversely, trespass is criminalized in order to ensure the safety and security of individuals in their homes and property. Further, the Criminal Justice Reform Act of 2016 clearly gives officers discretion to arrest or summons in these cases – it is not a requirement to summons in lieu of arrest. Unlike CJRA offenses, trespass is a crime under the New York State Penal law. The law specifically includes trespass in a public housing development in order to provide residents of NYCHA with the same type of safety protections afforded residents of private buildings. The Department needs criminal trespass enforcement as a tool to ensure that residents and guests of these buildings have a safe and secure environment.
Recommendation #14: The NYPD must implement a program for training officers on trauma and the implications of trauma for public safety. The NYPD should seek to work with social service practitioners to teach officers more about the debilitating effects of trauma and its manifestations for both officers and community members.
13 Patrol Guide sections 212-59 and 212-60 both state: “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.”
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The Department acknowledges the importance of understanding trauma and training officers to interact with people in crisis; that is why the NYPD has committed to Department-wide CIT training, expanded homeless outreach, and enhanced victim services. The Fair and Impartial Policing training that is being conducted also addresses these issues (see, Part III). However, the NYPD does not support court action on this recommendation as part of the JRP. We are already providing officers with Crisis Intervention Training (as mentioned above) and have established a co-response team including members of the NYPD and the New York City Department of Health and Mental Hygiene (“DOHMH”) in an effort to improve the city’s response to individuals with mental illnesses. The co-response team uses real-time information and data analyses to identify individuals who are suffering from mental illness and provide assistance to those who have an elevated risk of violence to themselves or others. Each response team deployment consists of two police officers and one DOHMH clinician who are specially trained to recognize and respond to behaviors and symptoms of mental illnesses. The co-response team commenced operations in March 2016 and is staffed with one lieutenant, two sergeants, nine police officers, and one director, one supervisor and eight clinicians from the DOHMH. Based on the success of this program, the Department has received funding to hire an additional sergeant and 26 additional police officers to expand the unit in FY 19.
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Part III: The Way Forward
The Report focuses on four main themes of community-police relations: community engagement, respect, transparency, and accountability. Thus, we would like to take this opportunity to use this response to share with the court and the community that many reforms related to these themes are already being/have been implemented. The initiatives discussed were conceived as parts of an overarching plan with each component supporting the others and should be read with the understanding that, while the separate initiatives appear to stand on their own, they are a collection of parts in a comprehensive approach to operational, organizational, and cultural change. The Department pursued these new initiatives to increase and enhance the Department’s engagement in local communities while pushing crime down to historic lows, even as the gross number of enforcement actions – arrests, summonses, and stops – have declined sharply. With the close of 2017, New York City marks three new crime reduction benchmarks: the first time the total number of major felony crimes has fallen below 100,000; the first time the number of shooting incidents has fallen below 800; and the first time the total number of murders has fallen below 300.14 This reduction in murders has resulted in the lowest per-capita murder rate in nearly 70 years. However, there is still more work to be done. And by partnering with all the people that the Department serves and embracing the themes described herein, we can continue to make lasting change in our society.
Community Engagement
In addition to the specific community engagement reforms that have been discussed elsewhere in this response, such as “Build the Block” community meetings, we would like highlight some additional efforts below.
Neighborhood Policing Philosophy
The NYPD has achieved remarkable public safety successes in recent decades, and as Commissioner James P. O’Neill has said, the police have a moral obligation to maintain and improve on those successes. Keeping people safe is what police officers do, but they don’t, and can’t, do it alone. Public safety is a shared responsibility. Neighborhood Policing acknowledges that fact and builds upon it and, therefore, community engagement is the cornerstone of Neighborhood Policing.
14 For 2017, there were 96,517 major felony crimes reported, compared with 102,052 in 2016 (5.4%); 290 murders reported, compared with 335 in 2016 (-13.4%); and 789 shooting incidents reported, compared with 997 in 2016 (-20.9%). By contrast, in 1990, New York City recorded 2,245 murders and over 5,000 shootings.
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Neighborhood Policing is a fully-developed policing philosophy that is ingrained in every aspect of the Department. It is designed to provide sector15 or neighborhoodcentric policing in New York City. Each precinct has been realigned internally to establish three to five sectors within the precinct, and the borders of each sector have been selected to conform as much as possible to the boundaries of actual neighborhoods as they have developed organically. Groups of police officers have been identified and assigned to provide police service exclusively within each sector and spend one-third of their tour “off-radio” to engage with the community. Supporting the sector officers and filling out each sector team are two officers designated as the neighborhood coordination officers (“NCOs”). The NCOs are liaisons between the police and the community, and also key crime-fighters and problem-solvers in the sector. The NCOs immerse themselves in the community by attending meetings with community leaders and clergy, visiting schools and businesses, following up on previous incidents, and using creative techniques and adaptive skills to fight crime and address quality-of-life conditions unique to their particular sectors. To date, 63 of our 77 Patrol precincts are NCO commands plus all 9 of our Housing Bureau police service areas. This year we will finish converting all precincts and expand into all 12 Transit Districts by the beginning of 2019.
Engagement with Special Populations
The feedback from the focus groups and forums revealed a concern within the community about how the NYPD deals with special populations. We’ve already discussed engagement with the LGBTQ community as well as individuals with disabilities. Here we would like to focus on some other categories of special populations, particularly ones where NYPD policy has been created and implemented through coordination with a variety of external collaborators.
 The Homeless Population: the NYPD has created a new Homeless Outreach Unit under the direction of an NYPD chief. This Unit works closely with the Department of Homeless Services’ to enhance its outreach and ability to provide essential services to homeless people. The Unit has conducted training for DHS peace officers to ensure safe environments for homeless shelter residents. In addition, the NYPD has worked with other city agencies and community organizations to put in place policies for addressing important issues related to the homeless population such as encampments, extreme weather situations, and available services. Working with these city agencies, community organizations and other non-governmental organizations (“NGOs”), the NYPD supports intervention in order to facilitate the appropriate services at the precinct level.
 Domestic Violence Victims: the Department works with Safe Horizon and the Family Justice Centers in each county to address domestic violence issues
15 A sector is a geographically defined subdivision within a precinct boundary. Sectors are delineated in order to organize precinct resources and manage workflow more efficiently.
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and ensure that victims are receiving appropriate services. Additionally, the Department conducts “DV-Stat” meetings to examine patterns of domestic violence, troubleshoot concerns, and hold police commanders accountable for the domestic violence service and intervention programs under their stewardship.
 Sex Trafficking Victims: the NYPD partners with several NGOs to rescue victims of sex trafficking. The NYPD Vice Enforcement Division focuses enforcement on the criminality of pimps and “Johns” rather than routinely arresting sex workers. Through a coordinated response after an enforcement action, the partner NGO provides education and services to potential sex trafficking victims. The Department has also promulgated a policy whereby condoms possessed by prostitutes are no longer invoiced as arrest evidence. The Department is developing public and internal guidelines for the submission and review process for “T-visa” declarations submitted by victims of trafficking. Additionally, the NYPD has established a 24/7 telephone hotline so that victims of human trafficking can now report incidents directly to the Department’s Human Trafficking Unit. This hotline allows victims to contact seasoned investigators directly, and lessens the burden faced by victims hesitant to engage with law enforcement.
Performance Evaluations
The NYPD has reformed its performance evaluations to include community engagement as a metric. This ensures that officers are held accountable for their interactions with the community and reinforces the importance of community engagement as a job function. The Department began to research possible revisions to its officer evaluation system more than two years ago. Plaintiffs’ counsel and the Monitor’s team provided input and recommendations during that process. The new system stresses problem solving over quantity and measures an officer for performance in a manner that is much more aligned with the goals of Neighborhood Policing. Specifically, the new system has mechanisms to evaluate officers’ community engagement. As discussed in more detail below under “Accountability,” the system is based on 12 rating dimensions. One of the 12 dimensions, Community Interaction, is specifically designed to measure the nature of an officer’s community engagement, such as whether the officer engages the community in a proactive and positive manner, treats others with courtesy and professionalism, is an active listener, and refers community members to appropriate services when needed. Other dimensions support the goal of community engagement as well. One example is the “Problem Identification/Solving” dimension which evaluates an officer’s initiative and innovative thinking with respect to appropriately identifying and addressing the needs of the command and community effectively and efficiently. The system includes officer self-report entries, enabling officers to report acts of meaningful community interaction. It also includes the ability for supervisors to submit feedback forms regarding a subordinate’s positive or negative community
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interaction. These self-reports and supervisory feedback forms feed into an officer’s monthly profile report and are considered during the officer’s quarterly evaluation.
Deputy Commissioner Collaborative Policing
Finally, the NYPD Office of Collaborative Policing, which was established in 2014, has been actively pursuing opportunities for cross-agency collaboration in city government and collaboration with public interest and service organizations such as non-profits, community-based organizations, the faith community, and other community stakeholders on a wide variety of public safety initiatives. Over the last five years, the Office of Collaborative Policing has focused on several key areas including: victims of crime, creative crime reduction efforts, diversion programs to keep people out of the criminal justice system when their interests and society’s interests would be better served in other ways, and public safety initiatives that highlight collaboration with other city agencies, advocates and non-profits. The result is coming up with better solutions as part of a shared responsibility with outside partners engaging with the NYPD on problem-solving and improving public safety. This is a major departure from the past practice of the Department working largely on its own.
Respect
Implicit Bias and Police Legitimacy
Beginning in February 2018, the NYPD commenced a training program, Fair and Impartial Policing (“FIP”), addressing fairness and due process in policing as well as the potential effects of unconscious bias for all members of the Department. FIP’s client list includes dozens of local, state, federal, and international law enforcement agencies including the U.S. Department of Justice, Office of Community Oriented Policing Services.16 Social psychologists have shown that “implicit” or “unconscious” bias can impact what people perceive and do, even in people who consciously hold non-prejudiced attitudes. Well-intentioned humans may manifest biases at the subconscious level that can impact their perceptions and behavior. This full-day training program will raise officer awareness and provide some tools to deal with this phenomenon. There are specific training curricula that are individually tailored towards patrol officers, direct supervisors, mid-managers, and executives. In addition, the training session for borough commanders is a day and a half and includes members of the community so they can work through these issues together. The Department estimates that it will take two years to complete the training for all uniformed members of the service.
Between 2014 and 2015, the Department also provided training called “Blue Courage” to all uniformed members of the service on procedural justice and police legitimacy. Procedural Justice is an approach to policing that emphasizes the
16 For more information on Fair and Impartial Policing, see www.fairimpartialpolicing.com.
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importance of policing in a fair, respectful, and transparent way. By following the tenets of Procedural Justice, a police force enhances its legitimacy and gains trust and cooperation from the community it services. Starting in Spring 2018, the Department began delivering Blue Courage to civilian members of the service. Police Academy instructors are also working to develop a recruit curriculum on implicit bias and procedural justice and to infuse the concepts into all Department trainings, where possible, to reinforce respectful interactions.
Diversity and Inclusion
In 2018, the Police Commissioner formed the Office of the Deputy Commissioner, Equity and Inclusion to oversee the Department’s equity and inclusion strategies. Working with other bureaus such as Personnel and Training, the Office of Equity and Inclusion will work to implement changes in policy, training, and recruitment to ensure a comfortable, inclusive, and accommodating work environment for all employees who come from a variety of backgrounds. We are a majority-minority police department and are constantly working towards furthering diversity and inclusiveness at every rank.
Recognizing that the traditional methods of outreach are of limited effectiveness in this digital age, the Department is utilizing additional outreach methods such as social media (e.g. Twitter, Facebook, Instagram, YouTube, and SnapChat) to reach broader groups of people. This has been effective in making contact with portions of the population who have historically not participated in NYPD activities such as community meetings. Using a targeted social media outreach approach, we are able to direct information to certain demographics. For example, a recent recruitment campaign has demonstrated that NYPD has the ability to reach a large groups of individuals – in one week, our social media advertising resulted in a combined ~64,000 clicks from Facebook, Instagram, Twitter, SnapChat, Google, and YouTube to the Department’s Recruitment landing page.
Precision Policing
Prior to 2014, NYPD placed too great an emphasis on general enforcement activity – arrests, summonses, and stops – and not enough on the targeted enforcement strategies that the NYPD has come to call “precision policing.” Precision policing focuses resources on the individuals responsible for a significant amount of crime as opposed to concentrating enforcement activity geographically. The NYPD is preventing crime and disorder with greater interagency and community collaboration, employing less intrusive tactics, and fostering a renewed sense that public safety means pursuing security and public approval in tandem. By connecting with the community, information flows from the community residents to the NYPD and over the past 4 years, these relationships have led to the acquisition of valuable information that has been integral to our investigations. This method of crimefighting focuses on the real drivers of crime by listening to and respecting the members of our communities and assigning our resources towards the small
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percentage of the city’s population responsible for the most violence. The Neighborhood Policing structure facilitates this information flow and teamwork; as officers learn more about their sectors, they are developing a substantial quantity of good information about local crime and local criminals.
Done right, NYPD’s Compstat tool is a precision instrument that helps precincts and the various support commands coordinate and focus their efforts on important cases, patterns, and conditions while simultaneously promoting best practices and a high level of professional policing skill. Today, the emphasis on general enforcement activity has been entirely removed from Compstat, replaced by a focus on addressing specific problems in effective ways. When arrests and summonses are discussed at Compstat, the focus is whether such enforcement was necessary and effective in addressing a particular crime problem. The Monitor has observed Compstat and noted that the emphasis on enforcement numbers has been eliminated. 17 Partly as a consequence, arrests are down 30 percent compared with five years ago, and summonses are down 63 percent. Significantly, reported stops are down in excess of 90 percent from their high in 2011.
Transparency
“Right to Know Act”
In 2016, the Department and the New York City Council Speaker reached an agreement to revise the Patrol Guide to add requirements regarding officer identification and consent to search. Officers are required to identify themselves to individuals who are the subjects of law enforcement activity by providing their name, rank, and command. They must also explain the purpose of the interaction in certain circumstances including investigative encounters. In addition, officers are required to ask for consent to search “in a manner that elicits a clear ‘yes’ or ‘no’ response,” state explicitly that he or she can only conduct the search if the individual consents and inquire as to whether the person understands.
This agreement was further codified in 2018 in two laws, Local Law 54 and Local Law 56, which are together known as the “Right to Know Act.” Beginning on October 19, 2018, police officers will be required to provide individuals with a business card when the officer is conducting certain law enforcement activities. These business cards will include the officer’s name, rank, shield number, and a space for the officer to write their command. They also direct individuals to a website where they can learn more about their interaction and how to obtain their body-worn camera
17 In his recent recommendation to the court regarding the Department’s new evaluation system, the Court-appointed Monitor reported that the pressure on officers to make stops irrespective of their lawfulness has been removed from Compstat. The Monitor’s recommendation noted that, “[o]ne or more members of the Monitor team have watched almost all the Compstat meetings from April 2016 through mid-July 2017. There is seldom any mention of stops, and never criticism of the number of stops or lack of stops.”
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footage and/or stop report. The consent to search procedure was also expanded to include a requirement that the officer document all requests for consent to search, including the time, location, and date of the search or refusal, and the apparent race/ethnicity, gender and age of the person from whom the officer sought consent to search. Finally, the officer must record the consent to search with a body-worn camera, if available. The Department supports these new procedures as a way to increase transparency regarding police-community interactions by giving subjects of these interactions information about the officer they are interacting with and their right to refuse a request for consent to search.
Body-Worn Camera Footage of Officer Shootings
One of the areas where the Department received significant feedback in the bodyworn policy report mentioned in recommendation #4 was regarding the release of body-worn camera footage of officer shootings with over half the participants wanting release of footage as soon as possible. Given the complexities of internal and external investigations in these cases, the Department declined to implement a specific policy regarding release of officer-involved shootings and chose to address them on a case by case basis after consultation with the prosecuting authority and other stakeholders. However, since the report was issued, there have been four officer involved shootings in which the Department has released the body-worn camera footage. The Department has rethought its position and has determined that it should have a defined policy regarding the release of such footage. A policy is currently pending within the Department and is expected to be finalized shortly. Unfortunately, as with other reforms the Department is attempting to implement, publishing the policy will be on hold due to a lawsuit initiated by the Patrolmen’s Benevolent Association. A New York State judge had dismissed the case and ruled against the police union on May 4, 2018 on procedural grounds; however, the union exercised their right to appeal and the appellate court has issued a temporary ruling blocking the NYPD from releasing body-worn camera footage pending a ruling on the merits. The Department believes that allowing the public to see footage of officer shootings is an important way to demonstrate our commitment to transparency and will continue to advocate for such a policy.
Published Policy and Data
The success of our public safety mission depends on creating a relationship of trust with the community. We need the knowledge and assistance of the community and acknowledge that information must flow both ways. One way to do so is through transparency and insight into our data reporting and policies. Since January 2017, the Department has published the Patrol Guide on its website. In addition, the Department has made a vast array of other data available to the public via the city’s OpenData website (https://opendata.cityofnewyork.us). Historical incident-level crime data is available from 2000 to the present and the incorporation of additional datasets is set to be included this calendar year including victim and suspect demographics, arrest incidents, shooting incidents, and criminal court summonses.
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Additionally, the Department makes more than 30 statistical reports available on its website including domestic violence, hate crimes, uses of force, school safety incidents, and traffic collisions, among others. The Department is also working with the New York City Comptroller’s office to include more information regarding procurements on its CheckBook site (www.checkbooknyc.com) so the public can see and understand how the NYPD spends its budget with outside vendors and contractors.
Accountability
Use of Force Policy and Review Board
The NYPD has long had effective policies governing officer use of firearms, including clear rules on when firearms can be used, full reporting about firearms use, and recurring semi-annual training with the firearm itself. These policies have had a highly positive impact, reducing the number of firearm discharges, the number of people shot, and the number of people killed all by about 90 percent since 1971. It is the goal of the new NYPD use of force policy to bring the same degree of oversight, reporting, and training that has been characteristic in NYPD firearms discharges to all uses of force. In the past three years, the NYPD has made significant progress toward achieving this goal, improving both training and oversight and establishing a clear operational framework for reporting and investigating uses for force including firearms discharges. Starting in 2016, the NYPD began publishing its use of force data in an annual, public “Use of Force Report,” available on its website.
The NYPD introduced a new use of force policy in June 2016 that clarifies definitions, establishes levels of appropriate force, and mandates reporting and review procedures for each level of force used while emphasizing the sanctity of life and the grave responsibilities vested in police officers. This policy established the Threat, Resistance or Injury Incident Worksheet (“T.R.I”) for documenting uses of force by and against members of the service. The policy does not change what officers are legally empowered to do in force situations, but it does ensure that officers, and the NYPD as a whole, take responsibility for and justify police actions in every case. The new policy requires the application of de-escalation techniques when feasible, rendering aid to persons subjected to force, if necessary, and intervention in the event of unnecessary or excessive force.
T.R.I.s are prepared by the members of the service involved in any reportable use of force incident, any time unnecessary force is suspected or alleged, incidents in which any person sustains an injury relating to police action or in police custody, and when prisoners commit or attempt suicide. The T.R.I. is also prepared when force is used against officers. The responsible supervisor makes a determination as to whether further investigation is needed (e.g. by a Department executive, IAB, or FID). To ensure compliance with the policy and overall quality of the reporting and investigation of force incidents, there are various levels of organizational review and oversight. The Department convenes monthly oversight meetings during which
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T.R.I.s are reviewed, the quality of the supervisors’ investigations is evaluated, and commanders are held accountable for compliance with the process.
In July 2015, the NYPD established a new Force Investigation Division (“FID”) to investigate all officer-involved shootings, all deaths in custody, and all deaths related to police activity. In past practice, these reviews were decentralized and performed at the borough level in each of eight patrol boroughs. Borough personnel would handle policy issues, the Detective Bureau handled the criminal aspects of the cases, and the Internal Affairs Bureau evaluated police misconduct. The new FID, with citywide jurisdiction, reports to the office of the First Deputy Commissioner and handles all aspects of each firearm discharge incident, including building cases against armed criminals who have fired on police officers as well as investigating possible police misconduct. The division’s experienced detectives and supervisors conduct high-quality investigations with an eye toward extracting tactical lessons from each incident that can be used to strengthen training and prevent future tactical errors.
Evaluation System: Quality over Quantity
As part of the NYPD’s efforts to reduce its emphasis on the sheer number of enforcement activities, the Department has developed a reformed police officer performance evaluation system that evaluates officers on a range of skills, placing less emphasis on quantitative measures and more on abilities and accomplishments.
One procedural component of the former system included the use of performance objectives for police officers based upon quantifiable enforcement activity and stated that supervisors “can and must set performance goals for proactive enforcement.” The court noted that this provision “made clear that supervisors must evaluate officers based on their activity numbers, with particular emphasis on summonses, stops, and arrests, and that officers whose numbers are too low should be subjected to increasingly serious discipline if their low numbers persist.”18 The NYPD has revoked the policies that placed this emphasis on enforcement activity.
The new evaluation system considers 12 dimensions that are essential to quality policing including: problem identification/solving, adaptability and responsiveness, judgment, integrity, application of law and procedures, community interaction, departmental interaction, professional image and maintenance of equipment, quality and timeliness of written reports, initiative, leadership, and implementation of proactive policing strategies/competence in supporting unit’s/squad’s mission. Only one dimension – implementation of proactive policing strategies – considers enforcement. The NYPD supervisor’s guidebook for preparing the evaluations unequivocally states, “[t]he overall message from the 12 performance dimensions is clear: it is about the quality and effectiveness of our work. It’s not purely about quantitative metrics.”
18 Floyd Liab. Ord, Dkt # 373, at 78.
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In the past, important aspects of police service, like problem-solving and community engagement, were not captured in an organized way and generally not considered during the evaluation process. The new system provides officers with the opportunity to self-report their problem-solving work, their community interaction and engagement, and their notable accomplishments. A notable accomplishment might be an exceptional enforcement action, a medical intervention, a missing person found, a conflict de-escalation, or innovative use of technology.
The system also provides supervisors with the opportunity to prepare positive or corrective Feedback Forms for tasks performed by their subordinates in the 12 different dimensions or categories of skills and activities upon which officers are evaluated. The supervisor’s Feedback Form replaces the Minor Violations Log, where supervisors could only record misconduct by officers but could not enter commendations. The Self-Report and Feedback Forms appear in an officer’s monthly Profile Report along with other data points about the officer’s work providing a more complete picture of the officer. Supervisors then evaluate their subordinates in the same 12 categories or dimensions on a quarterly basis.
As the NYPD expands Neighborhood Policing, it is essential that the Department evaluate its officers on the kinds of skills necessary to make this approach work effectively. The Department has new expectations for patrol officers to reflect its prioritization of Neighborhood Policing, and the reformed performance evaluation system is designed to measure the success of officers in meeting those expectations.
Conclusion
The last five years have been a transformative time at the NYPD during which the Department has holistically reimagined the way police services are provided to the city. Beginning in 2014, the NYPD has moved forward with a series of complementary initiatives that have touched virtually every aspect of its operations, including its patrol model; its operational oversight; its accountability through Compstat and Risk Management; its investigative strategies; its recruit and inservice training, and executive development; its use-of-force policy; its evaluation system for police officers; and its community outreach and assistance to victims of crime. The result is a model of police service for the 21st century that has been institutionalized throughout the Department. While many of the suggestions offered by the Facilitator are thoughtful and meritorious, the Department believes that formal, “court-ordered Joint Remedial reforms,” are unnecessary because the majority of them – in some form – are already underway in the Department. By continuing to implement these reforms, the Department and the community will make our way forward together.
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ZACHARY W. CARTER Corporation Counsel

THE CITY OF NEW YORK
LAW DEPARTMENT
100 CHURCH STREET NEW YORK, NY 10007

VIA ECF The Honorable Analisa Torres United States District Court Southern District of New York 500 Pearl Street New York, NY 10007

June 8, 2018

DAVID COOPER Assistant Corporation Counsel
phone: (212) 356-2579 fax: (212) 356-3509
email: dcooper@law.nyc.gov

Re: David Floyd, et al. v. City of New York, 08 Civ. 1034 (AT); Kelton Davis, et al. v. City of New York, et al., 10 Civ. 669 (AT); Jaenean Ligon, et al. v. City of New York, et al., 12 Civ. 2274 (AT)
Your Honor:
I am an Assistant Corporation Counsel in the Office of Zachary W. Carter, Corporation Counsel of the City of New York, and the attorney assigned to the above-referenced matter on behalf of defendant City of New York (“City”). The New York City Law Department (“Law Department”) respectfully submits comments on the Facilitator’s Final Report and Recommendations (“Final Report”) with respect to the Joint Remedial Process. The City’s comments will focus on procedural and jurisdictional concerns with specific recommendations. Under separate cover, the New York City Police Department (“NYPD”) will submit comments on internal policies as they relate to stop and frisk and trespass enforcement.
The Final Report recommends a number of proposals for the Court to consider when fashioning additional equitable relief in the above-captioned cases. The Law Department has not commented on all of the recommendations because they are not in the form of a final order at this time. The Monitorship of the NYPD involves a great number of complex, interconnected policies and practices. Whether an order implementing one or more of the recommendations might run afoul of the proper limits in this case would have to be evaluated in the context within which it was attempted to be deployed. Therefore, it would be premature to analyze the legality of many of these recommendations without more specifics.
However, several recommendations appear to be categorically outside of the scope of the proper exercise of the Court’s power to order equitable relief in these cases. The

Case 1:08-cv-01034-AT Document 604 Filed 06/08/18 Page 2 of 6
below remarks serve to provide the Court with the Law Department’s observations as to: (1) Recommendation No. 10 (“Use of Stop, Question, and Frisk to Develop Youth Informants”); (2) Recommendation No. 11 (“Mental Health and Disability Training”); (3) Recommendation No. 12 (“LGBTQ-Specific Training and Community Engagement”); and (4) Recommendation No. 13 (“Implementing the Use of Civil Summonses for Trespass Enforcement by Extending the Criminal Justice Reform Act of 2016”).
I. Procedural Background
The Joint Remedial Process was one of several forms of injunctive relief ordered by the Court in Floyd. The Court provided detailed findings of fact before entering injunctive relief in accordance with the Federal Rules of Civil Procedure. See Floyd v. City of New York [hereinafter “Floyd I”], 959 F. Supp. 2d 540, 572 (S.D.N.Y. 2013); see also Knox v. Salinas, 193 F.3d 123, 129 (2d Cir. 1999) (“Pursuant to Fed. R. Civ. P. 65(d), an order entering an injunction ‘shall set forth the reasons for its issuance.’ Similarly, Fed. R. Civ. P. 52(a) requires special findings of fact and conclusions of law in support of a permanent injunction.”); SEC v. Mgmt. Dynamics, Inc., 515 F.2d 801, 814 (2d Cir. 1975) (“We find it plain that the entry of a permanent injunction without appropriate findings violates the command of Fed. R. Civ. P. 52(a).”). After analyzing an array of evidence, including statistical analyses of the NYPD’s UF-250 database and witness testimony, the Court found that the evidence demonstrated that the City’s prior stop and frisk policies ran afoul of both: (1) the Fourth Amendment’s command that reasonable suspicion requires an individualized suspicion of wrongdoing for stops and frisks, see Floyd I, 959 F. Supp. 2d at 660; and (2) the Fourteenth Amendment’s prohibition against “selective enforcement of the law based on considerations such as race.” See Floyd I, 959 F. Supp. 2d at 660-61 (quoting Whren v. United States, 517 U.S. 806, 813 (1996)).
When entering the injunction in Floyd, the Court affirmed that “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.” See Floyd v. City of New York [hereinafter “Floyd II”], 959 F. Supp. 2d 668, 674 (S.D.N.Y. 2013) (quoting City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011)). Accordingly, the Floyd/Ligon Remedial Order requires that “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.” See Floyd II, 959 at 687. Therefore, any remedial measure proposed in the Final Report must remedy a harm that lies at the intersection of lack of individualized suspicion (the Fourth Amendment violation) and racial profiling (the Fourteenth Amendment violation). For the following reasons, the Law Department believes that several recommendations are broader than necessary to cure the harm found in Floyd I.
II. Recommendation 10: Use of Stop, Question, and Frisk to Develop Youth Informants
During the Joint Remedial Process, several participants in the focus groups remarked that stop and frisk had been used as a pretext for recruiting people to become confidential informants for the NYPD. See Final Report, at 251. The Facilitator noted:

Case 1:08-cv-01034-AT Document 604 Filed 06/08/18 Page 3 of 6
Although this issue, on the surface can be viewed as unrelated to stop, question, and frisk, and trespass enforcement, it is important to note that community members participating in focus groups and forums expressed the “stop” as being the initial contact in the development of some youth as informants. Essentially, it was reported that stops were used as excuses to engage youth. See Final Report, at 252-53. In order to remedy this reported pretextual use of stop and frisk, the Facilitator recommended that “the NYPD create an auditing protocol for the review of youth-involved interactions and measures to address issues related to a violation of the Department’s confidential informant policies.” See Final Report, at 253.
The Law Department respectfully submits that the Court’s findings of fact and conclusions of law pursuant to Rule 52(a)(1) never addressed the substance or application of the NYPD’s confidential informant policy. As the Final Report acknowledged, stop and frisk is only tangential to the reported conduct at issue—namely, recruitment of confidential informants under the age of eighteen. Therefore, the Law Department believes that an order to audit the NYPD’s compliance with its confidential informant policies would exceed the scope of the harm found in Floyd I, and such an order would exceed the proper scope of equitable remedies available in these cases.
III. Recommendation 11: Mental Health and Disability Training
The Facilitator recommended that “the Court order that the NYPD develop SQF training that includes specific units on engaging with people with mental, physical, or developmental disabilities, including different types of scenarios that officers may encounter in serving such individuals,” and observed in support of this recommendation that “the behaviors of mentally ill or disabled individual[s] who are being questioned by police officers may be misinterpreted as furtive movements . . . .” See Final Report, at 253. Although furtive movements were addressed in Floyd I, this recommendation is not tailored to the particularities of the NYPD’s stop and frisk policies that were laid out in detail in Floyd I.1 See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 144 (2d Cir. 2011) (“We have instructed that injunctive relief should be narrowly tailored to fit specific legal violations, and that the court must mould each decree to the necessities of the particular case.”) (internal citations omitted) (internal quotation marks omitted).
The Court’s findings of fact and conclusions of law pursuant to Rule 52(a)(1) did not identify any issues relating to the NYPD’s interactions with people with mental, physical, or developmental disabilities. Whatever the overall merits of the Facilitator’s recommendation, in
1 For example, the Court analyzed how often furtive movements were checked off on UF-250s and linked this to racial profiling, observing that “[u]nconscious bias could help explain the otherwise puzzling fact that NYPD officers check[ed] ‘Furtive Movements’ in 48% of the stops of blacks and 45% of the stops of Hispanics, but only 40% of the stops of whites.” See Floyd I, 959 F. Supp. 2d at 581.

Case 1:08-cv-01034-AT Document 604 Filed 06/08/18 Page 4 of 6
this case, injunctive relief that orders these trainings does not satisfy Federal Rules 52(a)(1) and 65(d).
IV. Recommendation 12: LGBTQ-Specific Training and Community Engagement
After engaging with members of the LGBTQ community, the Facilitator recommended that the Court order: (1) “more training around LGBTQ communities and deescalation”; and (2) “that the [NYPD] monitor adherence to the 2012 Patrol Guide Revisions and take steps to ensure implementation.” See Final Report, at 254-56. These recommendations were designed in part to address “the sense that this community was being targeted by the NYPD for unconstitutional stops often ostensibly for the offense of loitering with the intent to commit prostitution.” See Final Report, at 254. There is no basis to support this type of injunctive relief. Addressing these community concerns and advancing these policy goals does not address a harm at the intersection of the Fourth and Fourteenth Amendments, as identified by the court in Floyd.
V. Recommendation 13: Implementing the Use of Civil Summonses for Trespass Enforcement by Extending the Criminal Justice Reform Act of 2016
The Facilitator recommended that “the Court order the City to extend the CJRA to create a civil trespass violation in the City’s administrative code, and to adjudicate these cases in OATH.” See Final Report, at 259. This recommendation is not narrowly tailored to address unconstitutional stops and frisks in New York City Housing Authority (“NYCHA”) or Trespass Affidavit Program (“TAP”) buildings, but is instead targeted at the collateral consequences of trespass arrests regardless of their legality: “Such an approach would help address the concerns of some residents and minimize the issuance of arrest warrants and permanent records.” See Final Report, at 258.
The City believes that minimizing collateral consequences of arrests is a laudable policy goal and has taken steps to reduce them in other areas.2 However, the issue of collateral consequences was not at issue in any of the prior proceedings, or prior remedial orders. Therefore, there is no evidentiary basis to support injunctive relief for this remedy.
Moreover, even if this were an appropriate subject of injunctive relief, the Second Circuit has cautioned against needlessly interfering with local government institutions when crafting injunctive relief. See Disabled in Action v. Bd. of Elections, 752 F.3d 189, 198 (2d Cir.
2 See, e.g., The Criminal Justice Reform Act: One Year Later, N.Y.C. COUNCIL (2017), https://council.nyc.gov/the-criminal-justice-reform-act-one-year-later/ (recounting a ninety percent drop in criminal court summonses over a yearlong period and noting reduced collateral consequences); NYC Commission on Human Rights Legal Enforcement Guidance on the Fair Chance Act, Local Law No. 63 (2015), N.Y.C. COMM’N ON HUMAN RIGHTS (June 24, 2016), https://www1.nyc.gov/assets/cchr/downloads/pdf/FCA-InterpretiveGuide-112015.pdf (discussing the Fair Chance Act which helped to reduce collateral consequences relating to arrest history).

Case 1:08-cv-01034-AT Document 604 Filed 06/08/18 Page 5 of 6
2014) (“[O]ne of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions.”) (quoting Missouri v. Jenkins, 495 U.S. 33, 51 (1990)); see also Schwartz v. Dolan, 86 F.3d 315, 319 (2d Cir. 1996) (remarking that a district court’s “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.”). This caution highlights significant difficulties with this recommendation.
The Law Department notes that the City’s “Criminal Justice Reform Act” (CJRA) refers to a package of local laws that generally affected and amended unclassified offenses, contained in the City’s Charter and Administrative Code. The Facilitator’s recommendation goes further in that it seeks to extend CJRA to classified offenses established by the New York State Penal Law.
Although the City has recently taken limited legislative action related only to a single offense (in Local Law 229 of 2017 related to “disorderly behavior”), the legal and policy merits of a further extension of CJRA to the hierarchy of offenses in Article 140 of the Penal Law concerning burglary and trespass would require careful review by governmental actors, including the Law Department, the City Council and the Office of the Mayor. Moreover, the recommendation implies that the Court would order the City, acting through its City Council and Mayor, to take a legislative action that would ordinarily be within the exclusive policy discretion of the Council and Mayor. Involving the Court in the details and process of compelled legislation in furtherance of a remedy that goes beyond the core issues at stake would raise serious questions of both federalism and separation of powers.

Case 1:08-cv-01034-AT Document 604 Filed 06/08/18 Page 6 of 6
VI. Conclusion The City recognizes the valuable service the Facilitator and his colleagues have
provided in creating one of the largest police-focused surveys of residents in the country. Gathering and organizing community members’ input on their perceptions of the City’s policing policies was a time-intensive, worthwhile effort. The Final Report highlighted community concerns about a wide range of police-related topics, and although the City believes that some recommendations cannot be converted into an order in this case, the Final Report memorializes these concerns, and can serve as a useful common point of reference for dialogue among all stakeholders going forward. As to those recommendations within the proper scope of this case, the City anticipates working productively with the Monitor to develop and implement appropriate measures to achieve the goals shared by everyone involved—a safe city, policed constitutionally.
Sincerely,
/s/ DAVID COOPER Assistant Corporation Counsel Special Federal Litigation Division
cc: VIA ECF All Parties on Record

 
 Case 1:08-cv-01034-AT Document 624 Filed 07/27/18 Page 1 of 2
Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@arnoldporter.com
July 27, 2018
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Eighth Report of the Independent Monitor
Dear Judge Torres, I am pleased to attach the monitor’s eighth report, which describes the methodology used
in the evaluation of the New York City Police Department’s (NYPD) body-worn camera (BWC) implementation in New York City Housing Authority (NYCHA) housing developments. Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Public Housing Police Service Areas (PSAs) were not included in the BWC randomized control trial because PSAs overlap with the 40 precincts in the randomized control trial. Professor Anthony Braga and other members of the monitor team have developed a separate research and evaluation plan for the use of cameras by Housing Bureau officers working in PSAs.
This Eighth Report describes the monitor’s research plan for evaluating BWCs for Housing Bureau officers. The report explains the rationale and design for the evaluation as well as its limitations. This report includes technical language describing the PSA BWC quasiexperiment. It is important to include the technical details of the research design so that outside
Arnold & Porter Kaye Scholer LLP
250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

Case 1:08-cv-01034-AT Document 624 Filed 07/27/18 Page 2 of 2
experts can examine the design and, if they wish, run their own analyses with data to be made available at a later date.
Thank you for the court’s time and attention. Respectfully submitted, /s/ Peter L. Zimroth Peter L. Zimroth Monitor
Enclosure

Arnold & Porter Kaye Scholer LLP

2

250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 1 of 19
Eighth Report of the Independent Monitor Evaluation of NYPD Body Worn Camera
Implementation in NYCHA Housing Developments
Peter L. Zimroth
July 27, 2018
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 2 of 19
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long
John MacDonald James McCabe
Jane Perlov James Yates

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 3 of 19
Monitor’s Eighth Report
I. Introduction
In August 2016, the monitor filed its Third Report: Interim Briefing on Body-Worn Camera Pilot Program. That report described the research design for a randomized control trial of body-worn cameras (BWCs) in the New York City Police Department (NYPD), to be implemented pursuant to the requirements of the amended remedial order in Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (Remedial Order at Floyd Dkt. No. 372, Amended Remedial Order at Floyd Dkt. No. 522)
In June 2017, the monitor filed its Sixth Report, The NYPD’s Body-Worn Camera Pilot: Research and Evaluation Plan. That report described the monitor’s research and evaluation design for the BWC pilot, providing details about how the camera and control precincts were selected and matched and how the results of the camera experiment would be judged. The NYPD launched the BWC pilot program in April 2017 and by November 2017 the pilot was fully implemented, with approximately 1,200 officers in 20 precincts wearing cameras for a oneyear period. Those 20 precincts were matched with 20 precincts where officers were not wearing cameras. The goal of the pilot program is to assess the costs and benefits of deploying cameras and whether deployment results in reducing unconstitutional stops and frisks.
Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Police Service Areas (PSA) were not included in the randomized control trial. This Eighth Report describes the monitor’s research plan for evaluating BWCs for Housing Bureau officers. The report explains the rationale and design for the evaluation as well as its limitations. This report includes technical language describing the PSA BWC quasi-experiment. It is important to
1

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 4 of 19
include the technical details of the research design so that outside experts can examine the design and, if they wish, run their own analyses with data to be made available at a later date. II. Randomized Control Trial of Body Worn Cameras
The remedial opinion in Floyd v. City of New York and Ligon v. City of New York noted the potential benefits of outfitting NYPD officers with body-worn cameras. These potential benefits included the creation of objective records of stop-and-frisk encounters, encouraging lawful and respectful police-citizen interaction when both parties know exchanges are recorded, alleviating mistrust between the NYPD and the public, and offering a way to substantiate whether NYPD officers are wrongly or rightly accused of misconduct. The court order required the federal monitor to establish procedures for the review of stop recordings by supervisors and senior managers, the preservation of stop recordings, and the measurement of effectiveness of BWCs in reducing unconstitutional stops and frisks. The court order also mandated the NYPD to work with the federal monitor to conduct a one-year pilot BWC program to determine whether the benefits of the cameras outweigh their financial, administrative, and other costs and whether the program should be expanded or terminated.
The federal monitor team developed a cluster-randomized controlled trial to evaluate the implementation of BWCs in the Patrol Services Bureau (PSB).1 Briefly, 40 NYPD precincts with the highest number of Civilian Complaint Review Board (CCRB) complaints were matched into 20 similar pairs based on policing, crime, and neighborhood characteristics. All NYPD patrol officers working in the third platoon (3 PM – 11 AM shift) and anti-crime unit assignments in these 20 matched pairs were eligible to participate in the cluster randomized
1 The Patrol Services Bureau is the bureau in the NYPD that includes patrol officers and other NYPD members assigned to the 77 precincts in New York City. The Housing Bureau is the bureau within the Department that includes patrol officers and other NYPD members who work in the nine PSAs in New York City. The details of the cluster-randomized controlled trial design are available at http://nypdmonitor.org/wp-content/uploads/2017/10/201706-29-MonitorsSixthReport.pdf (accessed 2/25/2018).
2

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 5 of 19
experiment. One precinct of each matched precinct pair was randomly designated the treatment precinct and assigned BWCs for a one-year study time period. The other precinct in the matched pair was designated the control precinct and did not receive cameras. The implementation of the BWC cluster randomized experiment began on April 24, 2017 in the 34 Precinct. The remaining treatment precincts received the BWC technology in a staggered manner with the final treatment precinct, Precinct 121, receiving BWCs on November 14, 2017.
NYPD Housing Bureau officers working in the nine PSAs were scheduled to receive BWCs as part of a citywide rollout plan launched after the implementation of the PSB cluster randomized controlled trial. Given the small number of PSAs and the complexities associated with citywide BWC implementation, it was not possible to design a randomized experimental evaluation of the placement of BWCs on NYPD PSA officers. As detailed in Section V below, the federal monitor team will be using two separate quasi-experimental designs to evaluate BWC impacts on the provision of police services at the PSA command level and the individual officer level. Quasi-experimental designs seek to approximate characteristics of a true experiment without the benefit of random allocation of units to treatment and control conditions.2 As such, quasi-experiments do not have the same high degree of internal validity as randomized controlled trials. Nonetheless, well-designed quasi-experiments can sometimes produce results that are of similar quality to randomized controlled trials.3 III. NYPD Provision of Policing Services to NYCHA Housing Developments
Figure 1 presents the NYPD organizational chart for the provision of policing services to NYCHA housing developments by Patrol Borough, PSA, and Precinct. The NYPD is responsible for providing policing services to residents in NYCHA housing developments in 58
2 Campbell, Donald and Julian Stanley. 1966. Experimental and Quasi-Experimental Designs for Research. Chicago: Rand McNally. 3 Lipsey, M., & Wilson, D. (1993). Practical Meta-Analysis. Thousand Oaks, CA: Sage Publications.
3

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 6 of 19 Precincts (75.3% of 77 total precincts). There are 19 precincts without NYCHA housing developments (24.7% of 77 total precincts). In the 58 Precincts with NYCHA housing developments, the NYPD Housing Bureau provides policing services to housing developments in 33 Precincts (56.9% of 58) while the remaining 25 Precincts are served by the PSB. Figure 1.
Source: New York City Police Department There are 343 NYCHA housing developments4 spread throughout New York City’s five
boroughs, covering 3.794 total square miles of land area (Table 1). The NYPD Housing Bureau
4 Following the structure of the data file provided to the monitor team by the NYPD (12/27/2017), the development counts were based on unique Tenant Data System (TDS) numbers that NYCHA uses to distinguish tenant applications to specific housing developments. As such, these counts included housing developments with related
4

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 7 of 19

provides policing services to residents in 258 NYCHA housing developments (75% of 343) in 33

precincts through nine PSAs in four boroughs: Brooklyn, Bronx, Manhattan, and Queens. This

includes some 333,977 residents in 149,684 apartments. The NYPD PSB provides policing

services to residents in 85 NYCHA housing developments (25% of 343) in 25 precincts in the

five boroughs (including the Staten Island Housing Unit). This includes some 59,401 residents

in 28,385 apartments.

The 85 NYCHA housing developments that receive policing services from the PSB

through 25 precincts are part of the cluster randomized controlled trial evaluating the

implementation of BWCs on patrol officers. Since the NYPD Housing Bureau does not provide

patrol services through the PSAs in these precincts, these 85 housing developments will not be

included in the PSA evaluation plan.

Table 1. Developments, Buildings, Land Areas, Total Apartments, and Total Residents by PSA

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9

Total Developments
20 43 28 32 29 26 49 19 12

Total Buildings
35 92 56 46 49 52 75 35 27

Land Area (sq. mi.)
.483 .458 .379 .227 .257 .183 .307 .445 .334

Total Apartments
17,219 19,537 19,420 16,399 17,176 13,953 20,128 14,133 11,719

Total Residents
36,764 43,906 45,186 35,243 37,834 29,185 49,248 31,278 25,333

PSA total

258

467

3.073

149,684

333,977

PSB total

85

158

.721

28,385

59,401

NYPD total

343

625

3.794

178,069

393,378

names as distinct developments. For instance, in PSA 6, the Douglass I (TDS 082), Douglass II (TDS 582), and Douglass Addition (TDS 148) represented three distinct housing developments in Table 1 rather than being aggregated as one larger housing development that shared the “Douglass” name attribution. We supplemented the NYPD data with the “NYCHA Data Development Book File,” publicly available at https://data.cityofnewyork.us/Housing-Development/NYCHA-Development-Data-Book/evjd-dqpz (downloaded 12/28/2017).
5

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 8 of 19

Table 2 presents summary data for the mean number of NYPD officers assigned, mean number of 911 emergency calls for service dispatched, mean number of major crime complaints (murder, rape, robbery, felony assault, burglary, grand larceny, and grand larceny auto), mean number of arrests (including arrests for felonies, misdemeanors, violations, and infractions), mean number of arrests where force was used by the officer(s) making the arrest(s), and mean number of stop reports in the nine PSAs between 2015 and 2017. There are notable variations in these six measures across the nine PSAs. For instance, PSA 6 had the smallest mean number of officers assigned (158.3) while PSA 2 had the largest number of officers assigned (328.0).

Table 2. NYPD Officer Staffing and Work Activities in Nine PSAs, 2015 – 20175

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9 PSA total

Mean Officers
246.3 328.0 262.0 166.3 245.7 158.3 241.3 193.0 217.3 2058.3

Mean 911

Mean

Calls Major Crimes

Mean Arrests

29,280.3 17,979.3 22,117.0 12,284.0 21,489.3 14,743.0 22,109.7 16,803.7 21,037.7 177,844.0

512.0 696.0 638.7 388.0 567.7 432.3 677.3 605.0 284.3 4,801.3

1,790.7 2,350.7 2,089.3 1,759.7 3,125.0 1,497.0 3,651.7 2,046.0 1,264.0 19,574.0

Mean Arrests w/force
8.3 65.0 53.7 22.0 51.3 15.3 43.7 27.3 16.3 333.0

Mean SQF reports
241.7 121.7 124.3 204.7 204.3 153.0 313.7 178.7 65.7 1,607.7

Table 3 presents descriptive characteristics and CCRB complaint histories of 1,916

NYPD patrol officers assigned to the PSA commands as of December 31, 2017. The vast

majority of NYPD patrol officers held the police officer rank (88.7%), while a much smaller

share held the sergeant rank (11.3%). NYPD patrol officers in the PSA commands were

primarily male (81.9%), had an average age of 33.6 years, and averaged 6.8 years on the job.

5 The NYPD provided the aggregate PSA data and individual PSA patrol officer data to the monitor team (on 3/27/2018 and 4/24/2018, respectively).

6

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 9 of 19

PSA patrol officers were racially diverse: 36.2% were Hispanic, 34.3% were white, 19.2% were black, and 10.3% were Asian/Pacific Islander. PSA patrol officers rarely generated CCRB complaints. Indeed, some 51% of PSA patrol officers had not generated a single CCRB complaint over the course of their career as of December 31, 2017. PSA patrol officers generated, on average, .175 CCRB complaints per year on the job (or less than one complaint every five years).

Table 3. Descriptive Characteristics and CCRB Complaint History of NYPD Patrol Officers Assigned to PSA Commands (December 31, 2017 snapshot), N = 1,916

Officers Assigned
Rank Gender Race Age Years on job

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9
Police Officer Sergeant

Number
236 311 243 150 215 147 218 178 218
1,700 216

Male Female
Hispanic White Black Asian / Pacific Islander
Mean Standard deviation Range

1,569 347
693 658 367 198
33.6 6.8 21 – 59

Mean Standard deviation Range

6.8 5.5 <1 – 31

Percent 12.3 16.2 12.7 7.8 11.2 7.7 11.4 9.3 11.4
88.7 11.3
81.9 18.1
36.2 34.3 19.2 10.3

7

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 10 of 19

CCRB complaint rate

Mean Standard deviation Range

No complaints

978

One or more

938

complaints

.175 .273 0 – 3.2
51.0 49.0

IV. Timing of the Body-Worn Camera Treament in PSAs The NYPD placed BWCs on patrol officers working the third platoon (3 PM – 11 PM
shift) and anti-crime units in 20 treatment precincts6 during their “Phase 1” implementation to satisfy the requirements of the randomized experimental evaluation. Phase 1 implementation started on April 24, 2017 and ended November 14, 2017. During the “Phase 2” implementation, the NYPD will place BWCs on all officers (including the first and second platoons) in the remaining commands. Officers in the 20 control precincts matched to the 20 treatment precincts will not receive BWCs until at least one full year after the implementation of BWCs in the treatment precinct within their matched pairs. Phase 2 implementation started the week of December 4, 2017 and will continue through the week of December 30, 2018.
NYPD Housing Bureau officers in the nine PSAs will be equipped with BWCs over the course of a nearly 11-month time period (Table 4). The PSA implementation began the week of February 12, 2018 (PSA 8) and will end the week of December 16, 2018 (PSA 9). The implementation date of BWCs in each PSA represents the initiation of the direct treatment on officers within each of these Housing Bureau commands. As shown in Figure 1, PSA officers deliver policing services to housing developments within precincts. As such, NYPD Housing Bureau officers can also receive indirect treatment via their presence within a precinct that has

6 These 20 treatment precincts are the 13, 18 (MTN), 25, 30, 34, 42, 43, 44, 47, 48, 60, 63, 67, 71, 72, 79, 102, 105, 115, and 120.
8

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 11 of 19

already adopted BWCs on its officers as part of the Phase 1 and 2 implementations. The

presence of precinct officers with BWCs at calls for service in housing developments (e.g.,

providing back-up to PSA officers) may influence PSA officer and citizen behavior during these

encounters. The evaluation plan needs to consider both direct and indirect effects of BWCs on

selected outcomes.

Table 4. Implementation of Direct and Indirect Treatment in PSAs

PSA Precinct Direct Treatment

1

60

Phase 2 - week of 6/18/2018 (PSA)

Indirect Treatment Phase 1 - 6/7/2017, Phase 2 - 9/24/2018 (Pct)

1

61

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 4/16/2018 (Pct)

1

63

Phase 2 - week of 6/18/2018 (PSA

Phase 1 - 9/13/2017, Phase 2 - 7/19/2018 (Pct)

1

69

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 7/15/2018 (Pct)

1

76

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 7/15/2018 (Pct)

1

78

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 8/26/2018 (Pct)

2

73

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 10/14/2018 (Pct)

2

75

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 1/22/2018 (Pct)

2

77

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 9/24/2018 (Pct)

3

79

Phase 2 - week of 3/5/2018 (PSA)

Phase 1 - 8/8/2017, Phase 2 - 5/29/2018 (Pct)

3

81

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 9/17/2018 (Pct)

3

84

Phase 2 - week of 3/5/2018 (PSA)

Phase 1 - 5/1/2018 (Pct)

3

88

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 3/5/2018 (Pct)

3

90

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 3/12/2018 (Pct)

4

5

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 8/26/2018 (Pct)

4

7

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 7/8/2018 (Pct)

4

9

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 6/11/2018 (Pct)

4

10

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 8/19/2018 (Pct)

5

23

Phase 2 - week of 12/2/2018 (PSA) Phase 2 - 12/4/2017 (Pct)

5

25

Phase 2 - week of 12/2/2018 (PSA) Phase 1 - 8/24/2017, Phase 2 - 7/22/2018 (Pct)

5

28

Phase 2 - week of 12/2/2018 (PSA) Phase 2 - 10/7/2018 (Pct)

6

24

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 6/4/2018 (Pct)

6

26

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 4/16/2018 (Pct)

6

32

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 11/18/2018 (Pct)

7

40

Phase 2 - week of 7/1/2018 (PSA)

Phase 2 - 1/8/2018 (Pct)

7

42

Phase 2 - week of 7/1/2018 (PSA)

Phase 1 - 7/17/2017, Phase 2 - 5/1/2018 (Pct)

8

43

Phase 2 - week of 2/12/2018 (PSA) Phase 1 - 8/28/2017, Phase 2 - 4/9/2018 (Pct)

8

45

Phase 2 - week of 2/12/2018 (PSA) Phase 2 - 2/22/2018 (Pct)

8

47

Phase 2 - week of 2/12/2018 (PSA) Phase 1 - 7/24/2017, Phase 2 - 4/16/2018 (Pct)

9

103

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 1/15/2018 (Pct)

9

107

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 5/15/2018 (Pct)

9

113

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 11/25/2018 (Pct)

9

114

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 10/28/2018 (Pct)

9

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 12 of 19
V. Quasi-Experimental Designs to Estimate BWC Impacts The implementation of the BWC treatment for PSAs faciliates the use of a non-
randomized cluster stepped-wedge evaluation design.7 Figure 2 illustrates the basic structure of a stepped-wedge design where all clusters eventually move from the no-treatment control group to the treatment group.8 In the PSA BWC evaluation, the design will include a pre-intervention period in which no PSA commands (“clusters” of officers) are exposed to the BWC treatment. Subsequently, at regular intervals (the “steps”), one PSA command will cross from the notreatment control group to the BWC intervention group under evaluation. This process will continue until all nine PSAs have crossed over to be exposed to the BWC intervention. At the end of the study, there will be a period when all PSA commands are exposed to the BWC intervention. Data collection will continue throughout the evaluation, so that each PSA will contribute observations under both control and treatment periods.
The evaluation will rely on the timing of BWC treatment in PSAs and will control for differences between areas that are fixed during the study interval, such as size of housing developments and surrounding neighborhood poverty. Two complementary quasi-experimental analyses will be used to estimate the impact of the placement of BWCs on NYPD officers assigned to PSAs on selected outcome measures. The first analysis estimates BWC impacts at the PSA command level by using panel regression models to analyze direct effects associated with the implementation of BWCs in PSAs and indirect effects associated with the adoption of PSAs in surrounding precincts. The second analysis also uses panel regression models to estimate BWC impacts at the PSA officer level by exploiting the natural variation in the
7 Hu, Y., & Hoover, D.R. (2018). “Non-Randomized and Randomized Stepped-Wedge Designs Using an Orthogonal Least Squares Framework.” Statistical Methods in Medical Research, 27 (4): 1202 – 1218. 8 Figure 2 was adapted from Hemming, K. et al. (2015). “The Stepped Wedge Cluster Randomized Trial: Rationale, Design, Analysis, and Reporting.” British Medical Journal (Clinical Research ed.), 350: h391.
10

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 13 of 19
implementation of BWCs in PSAs over time. We use CCRB complaints as an exemplar outcome measure in the description of our quasi-experimental designs below in subsections V.A and V.B.9 The full range of outcome measures to be analyzed in the BWC PSA evaluation is described in the final section. Figure 2.
A. PSA Command-Level Analysis Quasi-experimental interrupted time series analysis, involving before and after measurements for a particular dependent variable, represents a common type of evaluation research found in criminology and criminal justice. One of the intended purposes for doing this type of quasi-experimental research is to capture longer time periods and a sufficient number of
9 CCRB complaints are rare events and, as such, count regression models will be used to estimate the impact of the treatment. See Berk, R. and MacDonald, J. 2008. “Overdispersion and Poisson Regression.” Journal of Quantitative Criminology, 24 (3): 269 – 284. The models described below serve as examples to illustrate the logic of our analytical approach. We will adjust the analyses as appropriate given the distributions of the various outcome variables (e.g., we may use ordinary least squares panel regressions for normally distributed outcome measures or we may decide to change monthly counts to quarterly counts if zero counts prove to be extensive in the officer data).
11

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 14 of 19

different events to control for various threats to validity and reliability.10 The established before-

treatment trend allows evaluators to predict what might have happened without the intervention.

The difference between what actually happened after the intervention and the predicted outcome

based on the before-treatment trend helps to determine the actual treatment effect. However, the

estimation of BWC impacts will be limited by the absence of a no-treatment control group to

account for confounding factors not specified in the models below.

The units of analysis in this quasi-experimental evaluation are “PSA-months” over a four

year period. Monthly counts of CCRB complaints will be collected for three pre-intervention

years and one intervention year (N = 9 PSAs * 12 months * 4 years = 432 PSA-months). We

will then use panel regression models to analyze the monthly change in complaint counts for

each PSA command before and after the BWCs are adopted in the PSA command and in the

surrounding precincts, controlling for other covariates. As such, a simplified version of the

proposed panel regression model is as follows:

(1) = +

+

+ +++

where i= 1… 9 PSA commands, with PSA i consisting of t = 1, …, ni monthly observations, and Yit is the outcome variable indicating the monthly count of CCRB complaints in a specific PSA i during month-year t. The regressor PSABWC is a dummy variable identifying whether a PSA

command adopted BWCs (1) or not (0), while PrecinctBWC is a dummy variable identifying

whether a precinct that intersects or contains the PSA adopted BWCs (1) or not (0). The

coefficients β1 and β2 are the estimates of direct and indirect BWC treatment, respectively, on CCRB complaints. The model will also control for factors that change each month within PSAs

that may be correlated with CCRB complaints, such as calls for service and crime, and β

10 Shadish, W., Cook, T., & Campbell, D. (1979). Experimental and quasi-experimental designs for generalized causal inference. Boston: Houghton Mifflin Company.
12

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 15 of 19

represents the vector of estimates of these attributes (Xit). Fixed effects for PSA (αi) and year-

month (δt) are included to control for common trends to all PSAs in a given month-year and unmeasured differences between PSAs that are stable over the four-year time period. Robust

standard errors clustered by PSA-month-year will be used to assure that estimates are robust to

heteroscedasticity and unmeasured dependence at the PSA level over time.

B. PSA Officer-Level Analysis

The units of analysis in this quasi-experimental evaluation are “officer-quarters” over a

four year period. Quarterly counts of CCRB complaints will be collected for three pre-

intervention years and one intervention year (N = ~2,000 PSA officers * 4 quarters * 4 years =

96,000 officer-months). We will then use panel regression models to analyze the quarterly

change in complaint counts for each PSA officer before and after the BWCs are adopted in their

respective PSA commands and in the surrounding precincts, controlling for other covariates. As

such, a simplified version of the proposed panel regression model is as follows:

(2)

=+

+

+ +μ + + +

Where i= 1… ni officers in j=1…9 PSA commands, t = 1, …, nt quarterly observations, and Yijt is the outcome variable indicating the count of CCRB complaints for an individual officer in a

specific PSA i during quarter t. The regressor PSABWC is a dummy variable identifying whether

a PSA command adopted BWCs (1) or not (0), while PrecinctBWC is a dummy variable

identifying whether a precinct that intersects or contains the PSA adopted BWCs (1) or not (0).

The coefficient β1 and β2 are the officer-specific effect of BWC and the indirect BWC treatment effect, respectively, on CCRB complaints. In this model β represents the vector of estimates

representing the vector of covariates that change each quarter for each officer (X), such as shift

and area assignment. Fixed effects for officer (µi), PSA (αj), and year-quarter (δt) are included to

13

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 16 of 19
control for common trends to individual officers, PSAs, and time. Robust standard errors clustered by officer-PSA-quarter-year will be used.
We recognize that officers assigned to the nine PSAs during the one-year intervention period may have had varying assignments and service times during the three-year preintervention period. For instance, officers may have had previous assignments that make them more or less likely to use force in the execution of their duties or generate citizen complaints. Some officers may not have three full years of NYPD service before assignment to the PSAs. The NYPD will provide the monitor team with pre-PSA service length and assignment duty data so we can adjust our individual-level panel regression models (e.g., including pre-intervention averages for each officer) as appropriate to consider these varying pre-intervention experiences.
C. Outcome Measures The PSA quasi-experimental designs will measure the impact of BWCs on three sets of outcome measures: the civility of police-citizen interactions, police activity, and police lawfulness. The data for the study’s outcome measures will be available through official data systems of the NYPD and the CCRB. As described above, the primary analyses of these outcomes will involve the collection of data from 36-month pre-implementation (pre-test) and 12-month implementation (post-test) time periods.
1. Impact of BWCs on the Civility of Police-Citizen Interactions The available research suggests that putting BWCs on officers will improve the civility of police-citizen interactions by deterring undesirable behaviors (i.e., not wanting to be recorded on video doing something inappropriate or illegal) and stimulating desirable behaviors (i.e.,
14

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 17 of 19
remembering to treat others with respect).11 Pre-test and post-test data will be collected and
analyzed for the following “civility/de-escalation” outcomes:
• CCRB complaints • Officer arrests with force reports • Officer injury reports • Resisting arrest data • Disorderly Conduct and Obstructing Government Administration arrests and summonses
Specific variables in these datasets will be analyzed to determine whether BWCs influence the
types of CCRB complaints, the types of force (hand strike, baton, etc.), and other relevant
subcategories for treatment officers and control officers over the course of the study time period.
2. Impact of BWCs on Police Activity
Some observers have suggested that BWCs might cause officers to be less active or more
reluctant to initiate contacts with citizens, instead focusing most of their time on dispatched
calls.12 Police officers in treatment and comparison groups will be compared over pre-test and
post-test time periods to determine whether BWCs impact their policing activity. Police activity
metrics will include:
• Monthly number of responses to citizen calls for service (data available by unit only rather than by individual officer)
• Monthly number of officer-initiated calls (data available by unit only rather than by individual officer)
• Monthly number of complaints by citizens of crime (61 reports) • Monthly number of domestic incident reports • Monthly number of arrests • Monthly number of summons
11 Barak Ariel, William Farrar, and Alex Sutherland. 2015. The effect of police body-worn cameras on use of force and citizens’ complaints against the police: A randomized controlled trial. Journal of Quantitative Criminology, 31: 509–535. 12 For instance, one recent evaluation suggests BWC officers are more likely to initiate encounters and issue citations than their non-BWC counterparts. Justin Ready and Jacob Young. 2015. The impact of on-officer video cameras on police–citizen contacts: findings from a controlled experiment in Mesa, AZ. Journal of Experimental Criminology, 11: 445–458. Another randomized controlled trial found increases in arrests and citations for BWC treatment officers relative to non-BWC control officers. Anthony A. Braga, William H. Sousa, James R. Coldren, and Denise Rodriguez. 2018. The effects of body worn cameras on police activity and police-citizen encounters: A randomized controlled trial. Journal of Criminal Law and Criminology, 108: 511–538.
15

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 18 of 19
• Monthly number of SQF reports • Monthly number of interior patrols (data available at PSA levels only) The data will be analyzed to determine whether the monthly number of activity events changes over time. The monitor team will also examine whether the BWCs influence the likelihood of an arrest or summons in situations where a crime complaint report has been made, comparing treatment officers to control officers.
3. Impact of BWCs on Police Lawfulness Stop reports provide an opportunity to examine whether BWCs impact the lawfulness of police interactions with citizens. The monitor team will be auditing stop reports to ensure NYPD compliance with the Constitution and provisions of the Floyd., Ligon, and Davis orders. The monitor team will use cluster random sampling techniques to select stop reports each quarter to ensure a representative sample of stop reports from the annual citywide population of stop reports. In order to assess the impact of BWCs on police lawfulness in the PSAs, it will be essential to include stop reports prepared in the PSAs during one-year pre-intervention and oneyear intervention periods. The monitor team will select random samples of 300 pre-interventionperiod and 300 intervention-period stop reports that are representative of overall PSA stop reports during these two periods. The monitor team will analyze the results of reviews of PSA stop reports completed in pre-intervention and intervention periods to determine whether BWCs influence the justifications provided for the stops, frisks, and searches of subjects in these interactions (examining potential Fourth Amendment issues). The monitor team will also use stop report data to examine patterns in the racial composition of stopped subjects to determine whether the presence of BWCs influences the share of minority residents stopped by officers in the PSAs during the intervention period
16

Case 1:08-cv-01034-AT Document 624-1 Filed 07/27/18 Page 19 of 19
relative to the pre-intervention period (examining potential Fourteenth Amendment issues). We will examine other subject characteristics, such as gender, age, and stop justification. Our BWC impact analyses will build upon models and methods used in prior research appraising racial disparities in NYPD stop reports in PSAs and immediately surrounding neighborhoods.13
With respect to trespass enforcement, the monitor team will be examining trespass enforcement in the PSAs during the pre-intervention and intervention periods. This examination will depend in part on the availability of data in a readily available format. Accounting for this caveat, the monitor team is planning to look at the percentage of trespass arrests for which there was a completed Trespass Crimes Fact Sheet; counts of declined prosecutions for trespass arrests; trespass arrests identified by QAD as starting as a stop, but for which a stop report was not completed; trespass arrest reports identified by QAD as not containing prima facie evidence of probable cause; and reports of stops for trespass in TAP and NYCHA buildings. The monitor team will also analyze the results of QAD audits of police-initiated enforcement arrests to determine whether there are any differences in the number of unrecorded stops in the PSAs during the pre-intervention and intervention periods.
13 See Jeffrey Fagan, Garth Davies, and Adam Carlis. 2012. Race and selective enforcement in public housing. Journal of Empirical Legal Studies, 9: 697-728.
17

 
 Case 1:08-cv-01034-AT Document 662 Filed 11/20/18 Page 1 of 2

Case 1:08-cv-01034-AT Document 662 Filed 11/20/18 Page 2 of 2
On May 15, 2018, the Facilitator issued his Final Report and Recommendations (the “Final Report”). Final Report, ECF No. 597. The Final Report is a 304-page document detailing the recent history of police-community relations in New York City, explaining the different stages of the Joint Remedial Process, and propounding fourteen recommendations for reform. Id. The Facilitator’s first recommendation (“Recommendation No. 1”) is that the Court order the NYPD “to develop 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.” Id. at 219. The Facilitator explains that “the value of this approach may be . . . to identify patterns and practices within commands, precincts, squads, and individual units.” Id. at 222. He further states that such a program will allow the information “to be reviewed systematically and analyzed by supervisors and officers as a matter of course, fostering greater accountability.” Id. at 221. The Facilitator also notes that the NYPD Office of the Inspector General has stated that “[t]he proper collection and analysis of police litigation data has the potential to reduce police misconduct, improve public safety, control costs, identify training opportunities, strengthen public confidence, and advance law enforcement oversight.” Id. at 220 (citation omitted).
The Court has reviewed the parties’ comments concerning Recommendation No. 1, including Plaintiffs’ comments dated June 8, 2018, ECF No. 602, and July 16, 2018, ECF No. 616; the City of New York’s comments dated June 8, 2018, ECF No. 603, and July 16, 2018, ECF No. 617; and the Patrolmen’s Benevolent Association of the City of New York’s comments dated July 9, 2018, ECF No. 613.
Accordingly, 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 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.
Dated: November 20, 2018 New York, New York
2

 
 Case 1:08-cv-01034-AT Document 680 Filed 01/11/19 Page 1 of 2
Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@arnoldporter.com
January 11, 2019
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Ninth Report of the Independent Monitor
Dear Judge Torres, I am pleased to submit the Ninth Report of the Independent Monitor. This report
looks back at what has been done so far and forward to what still needs to be done. In the last four years, much has been accomplished, although there are still
challenges ahead and areas of reform that need work. In sum, a substantial amount of training material has been developed and approved; body-worn cameras (BWC) will soon be deployed throughout the city and the evaluation of the monitor’s pilot will soon begin; the Department has instituted a new performance evaluation system for patrol officers; and the Department has tested and instituted some improved auditing methods that better address the court-ordered reforms.
Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

Case 1:08-cv-01034-AT Document 680 Filed 01/11/19 Page 2 of 2
These and other positive developments are described in more detail in the report. At the same time, the report describes the persistent problem of underreporting of stops and the failure of supervisors to deal with that underreporting and the quality of the stop reports that are filed. The monitor has been in discussion with the Department about these problems and about steps that can be taken to address and hopefully solve them. These steps are described in the report.
Respectfully submitted, /s/ Peter L. Zimroth_____________ Peter L. Zimroth Monitor
Attachment: Ninth Report of the Independent Monitor

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 1 of 67
Ninth Report of the Independent Monitor Peter L. Zimroth
January 11, 2019
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 2 of 67
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long
John MacDonald James McCabe
Jane Perlov James Yates

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 3 of 67
TABLE OF CONTENTS Page
I. Introduction .....................................................................................................................1 II. Policies............................................................................................................................2
a. Stop and Frisk ......................................................................................................2 b. Stop Report Form.................................................................................................4
1. RISKS Reviews........................................................................................6 c. Racial Profiling Policies.......................................................................................8 d. TAP Policies ........................................................................................................9 e. Patrol of NYCHA Properties..............................................................................10 f. Trespass Crimes Fact Sheet (TCFS) ...................................................................11 III. Supervision....................................................................................................................11 IV. Training.........................................................................................................................14 a. In-Service SQF and Racial Profiling Training ....................................................14
1. Content of the Training Materials ...........................................................15 2. Rollout of Training .................................................................................16 3. Observations of Training ........................................................................17 b. Training for Newly Promoted Supervisors .........................................................19 c. Basic Plainclothes Course ..................................................................................19 d. Recruit Training .................................................................................................20 e. Housing One-Day Training ................................................................................21 f. Implicit Bias/Procedural Justice .........................................................................21 g. FTO Training .....................................................................................................24 h. Training for 911 Operators.................................................................................24 V. BWC .............................................................................................................................25 a. Court-Ordered Pilot Program .............................................................................25 b. Expansion of BWCs to Other Commands...........................................................26

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 4 of 67
c. PSA Quasi-Experiment for Housing Officers .....................................................27 d. Court-Ordered Pilot for Electronic Documentation of Level 1 and Level 2
Encounters and BWC Activation at Level 1 .......................................................29 VI. Performance-Evaluation System ....................................................................................29
a. Description of New Performance-Evaluation System .........................................29 b. Assessment of the Performance-Evaluation System............................................32 VII. Auditing ........................................................................................................................34 a. Quality Assurance Division Audits ....................................................................34
1. Stop Report Audits .................................................................................35 i. QAD Results...............................................................................35 ii. Monitor Review of QAD Results ................................................37
2. QAD Audits of BWCs Videos Associated with Stop Reports .................39 3. Undocumented Stops..............................................................................40
i. RAND Audits .............................................................................40 ii. Audits of “Police-Initiated” Encounters.......................................42 iii. TCFS Audits ...............................................................................43 b. RAILS/Early Identification System....................................................................43 VIII. Complaints and Discipline .............................................................................................46 a. Investigation of Profiling Allegations.................................................................46 1. Outcomes of Profiling Investigations ......................................................47 b. NYPD Handling of Substantiated CCRB Cases..................................................49 1. DAO Request for Reconsideration of CCRB Recommendation ..............53 2. Reconsideration Request Data ................................................................54 3. NYPD Discipline and Penalties Imposed ................................................57 4. Other Misconduct Noted (OMN) ............................................................61 IX. Joint Remedial Process ..................................................................................................62 X. Conclusion ....................................................................................................................62
ii

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 5 of 67
Ninth Report of the Independent Monitor I. Introduction
This is the ninth report of the Independent Monitor overseeing implementation of the court orders in the cases Floyd v. City of New York, Ligon v. City of New York and Davis v. City of New York. The orders in the three cases require reforms related to stop and frisk, trespass enforcement (i.e., stops and arrests for trespass), and bias-free policing. In these areas, the orders require changes in the New York City Police Department’s (NYPD) policies, supervision, training, auditing, performance measurement, and handling of complaints and discipline.
In the last four years, much has been accomplished, although there are still challenges ahead and areas of reform that need work. In sum, a substantial amount of training material has been developed and approved; body-worn cameras (BWC) will soon be deployed throughout the city and the evaluation of the monitor’s pilot will soon begin; the Department has instituted a new performance evaluation system for patrol officers; and the Department has tested and instituted some improved auditing methods that better address the court-ordered reforms.
These and other positive developments will be described in more detail in the body of this report. At the same time, the report will describe the persistent problem of underreporting of stops and the failure of supervisors to deal with that underreporting and the quality of the stop reports that are filed. The monitor has been in discussion with the Department about these problems and about steps that can be taken to address and hopefully solve them. These steps will be described in more detail below.
1

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 6 of 67
II. Policies a. Stop and Frisk The court’s orders required that the NYPD Patrol Guide state what constitutes a stop,
when a stop may be conducted, when a frisk may be conducted, and when a search may be conducted.
In August 2015, the court approved a new Patrol Guide section that included the NYPD’s procedures on stop and frisk, P.G. 212-11, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops. The Patrol Guide also addresses investigative encounters between officers and civilians that are less intrusive than stops or arrests. These encounters are governed by the New York State Court of Appeals decision in People v. DeBour,1 which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures, P.G. 212-11, describe the standards that govern each level.
Since 2015, there have been several changes in P.G. 212-11. In March 2016, the court approved changes to P.G. 212-11 to reconcile the procedures with the new stop report form. Additional changes were made when the stop report became electronic. These were approved by the monitor and did not require further action by the court.
More recently, the Department proposed new changes to Patrol Guide 212-11 to comply with the recently enacted Right to Know Law (Local Law 54 of 2018 and Local Law 56 of 2018). These laws require officers in certain nonemergency encounters to identify themselves by name, rank and command, explain the reason for the stop, and hand out business cards if no one is arrested or issued a summons. They also require officers to inform people of their right not to 1 40 N.Y.2d 210 (1976).
2

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 7 of 67
consent to a search if consent would be necessary to perform the search. Officers must also document any consent to a search, either through a body camera, by writing, or both. On October 19, 2018, the monitor submitted the revised P.G. 212-11 for review, which the court approved on October 26.
To meet the requirements of the Right to Know Law, the Department has designed a business card that officers are required to offer to individuals at the end of most Level 2 and 3 encounters, as well as following other specified interactions. These pre-printed business cards contain the officer’s name, rank, and shield number and a place for officers to write in their commands. On the back of the card is the URL for a new website (www.nyc.gov/policeencounters) that provides information on how to obtain body-worn camera footage, how to request a copy of a stop report, and how to make a complaint or comment regarding the encounter. This website has a link to an electronic form that allows a person to request a copy of a stop report by providing the date, time, and location of the stop.
The business card replaces two handouts the Department had been using: (1) the “What Is a Stop?” tear-off information card, required by the court order to be offered to persons who were stopped but not arrested or summonsed, and (2) the Contact Card, required to be provided to civilians who consented to a search after a Level 2 encounter. Plaintiffs’ counsel agreed that the business card would be sufficient to meet the court’s requirements, assuming that the NYPD responds timely to Freedom of Information Law (FOIL) requests. The NYPD has changed its procedures under FOIL, committing itself to a response within 10 business days. As stated on the website:
Within 10 business days of receipt of your request, the NYPD will send out a copy of your Stop Report or a response indicating that there was no record found or insufficient information to find the Stop Report via US mail or email. In the alternative, you may go to One Police Plaza, room 110C, to obtain your Stop Report or a response that same day.
3

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Along with the submission of the new P.G. 212-11, the monitor included a copy of the new business card for the court’s information. The business card is now being used in lieu of the “What Is a Stop” tear-off and the Contact Card.
b. Stop Report Form The court orders require that the NYPD develop and implement a stop report form to be used by officers every time a person is stopped. In March 2016, the court approved the NYPD’s stop report form and in January 2017, the Department began using an electronic form that officers can fill out on their phones, on tablets, or on a computer at the command. The stop report has two narrative sections: one in which the officer states the reasons for the stop and a second in which the officer states the reasons for the frisk and the search, if conducted. The stop report also has a section in which supervisors document the review required by NYPD policy (P.G. 212-11) and any follow-up action. An officer’s supervisor must confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the corresponding activity log entry was reviewed; (4) the supervisor was present on the scene; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken. The Department proposed several changes to the stop report to comply with the Right to Know Law. The proposed changes will require officers to state whether they asked the civilian for consent to be searched and whether consent was given. Also, the officer will have to state whether the radio run was based on an anonymous source, an important factor in determining the level of authority an officer is legally allowed to exercise. On October 19, 2018, the monitor
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recommended to the court that it approve these changes, which recommendation was approved on October 26, 2018.
Although the stop report itself meets the requirements of the court order, there are two areas in which there are serious concerns regarding the Department’s compliance with the court’s requirements. The first is an issue that the monitor has identified in several prior reports but has not yet been resolved: the underreporting of stops. In 2017, there were only 11,629 reported stops, while there are more than 22,000 patrol officers and sergeants. The underreporting of stops has been acknowledged by the Department and by officers and supervisors in focus groups conducted by the monitor, and explicitly identified in audits discussed in Section VII below. Any assessment of compliance with the court’s remedial orders will be undermined if the NYPD’s data are not accurate and complete.
Second, for reform to take hold, supervisors must take seriously their responsibility to review the constitutionality of stops. At trial, the court found there to be pro forma approval of stops, meaning that there was no substantive supervisory review of the constitutionality of stops. Although the forms and the policies for supervisory review are now in place, it is not clear that supervisors are meeting their responsibilities. For the fourth quarter of 2017, out of 1,909 recorded stops reviewed by the Quality Assurance Division (QAD), only eight supervisors noted on the stop reports that the report failed to articulate reasonable suspicion. For these same stop reports, QAD found that 496 (26%) did not articulate reasonable suspicion for the stop and 191 (10%) did not articulate reasonable suspicion for the frisk. Similarly, in the first quarter of 2018, QAD evaluated 1,838 stop reports and found that 423 did not articulate reasonable suspicion for the stop, but only eight reviewing supervisors indicated on the stop reports that the reports failed to articulate reasonable suspicion. In the second quarter of 2018, QAD determined that 326 stop reports of the 1,850 stop reports evaluated did not articulate reasonable suspicion, but reviewing
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supervisors noted this same determination on only 10 reports. This issue is discussed further in Supervision, Section III below.
It is clear that officers who do not submit stop reports after a stop and supervisors who do not adequately review those that are submitted are violating the Department’s own stated policies. It is equally clear that those statements of policy are not getting the job done. The monitor has urged the Department to emphasize the need for compliance by instituting a process similar to Compstat in which commanding officers and other senior command officials are questioned about compliance, a light is shined on both poor performance and superior implementation, and those senior officers are expected to discuss ways to improve the performance of their subordinates. The Department agreed to put such a process in place. The NYPD’s ideas for such a program are described in more detail below.
1. RISKS Reviews The NYPD has developed a plan that they label “RISKS (Remediation of Identified Situations Key to Success) Reviews” based on the monitor’s suggestion. Senior Department officials initially expressed some concern that a meeting focusing on underreporting might be misinterpreted to suggest that the NYPD wanted more stops. At the same time, there was a belief that a regular periodic meeting on command-level compliance issues could be extremely beneficial. As the plan for the meeting began to take shape, the Department decided that the meeting could also serve as a forum in which other identified issues of risk (those issues or situations which might be interfering with success) might be brought to light for evaluation. One such issue is compliance with policies regarding the use of BWCs, including topics such as proper activation and deactivation and categorization and tagging of videos. As this meeting becomes
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part of the regular business of the Department, each command will designate a liaison with the Risk Management Bureau (RMB) to facilitate communications regarding issues of risk.
With respect to the protocols for the RISKS review meetings, each command will be brought in for a RISKS review at least twice a year. Underperforming commands will be brought in on a more frequent basis. At least three commands from the same borough will engage in the Review on a single day. During the period between meetings, relevant statistics (including those generated through self-inspections) will be generated for all commands, with rankings of boroughs and commands included. The first RISKS Review meeting occured in mid-December 2018. The meeting was convened by the First Deputy Commissioner, and he will be in attendance for at least a few of the early meetings as his schedule permits. RMB will review the results of that first meeting, make necessary changes, and then begin weekly meetings beginning in January 2019.
The meetings will be chaired by the Deputy Commissioner for Risk Management and cochaired by the Chief of Strategic Initiatives. Required attendees from each command will include the Commanding Officer, the Executive Officer, the Integrity Control Officer, and the Training Sergeant. Members from the appropriate Patrol Borough will attend, as will representatives from both the Chief of Department’s Office and the operational bureau under review (Patrol, Housing, or Transit).
With regards to Level 3 stops and BWC usage, the purpose of the RISKS review is to ensure compliance with the requirements pertaining to the preparation and supervisory review of stop reports and the activation of BWCs, not to seek an increase in police activity or stops. That message will be emphasized throughout the meeting itself, as well as during the preparation for the meeting. The review will be interactive in nature, with the chairs of the meeting eager to
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hear from the attendees about potential barriers to full compliance in the areas of stops, trespass enforcement and BWC usage, as well as other risk issues faced by the command being reviewed.
The meeting will focus on statistics to be drawn from several Department sources, including specific self-inspection assignments drawn from events within the preceding month. It will also include an invitation to Commanding Officers to bring BWC examples of exemplary behavior by officers within the command.
Before a precinct has its first RISKS review meeting, RMB will undertake RISKS training for the attendees. This training will include an explanation of the RISKS reviews that will be held, a review of Patrol Guide requirements relative to stops, trespass enforcement and BWC recording, a discussion of possible strategies to gain further compliance with applicable Patrol Guide requirements, an explanation of the upcoming pilots, and a discussion of additional risks that may need to be addressed.
In addition to data relating to stops and BWCs, there are many other data points important to assess at the command level. These are currently being tracked and assessed in a piecemeal fashion. The RISKS Review has the potential to bring all this disparate data together to present a picture of the overall health of an individual command. A command report card will be completed and maintained, which will, at a high level, give an overview of current and past compliance, as well as compliance trends. The report card will call out the degree of compliance in designated areas and will compare compliance in a command with other commands in the borough and citywide. Aggregate data will be presented to the relevant operational bureaus as well as to the Chief of Department and Police Commissioner.
c. Racial Profiling Policies The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the court on August 24, 2015. As with the Department’s stop and frisk policy,
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substantial compliance regarding the racial profiling policy also requires that Department personnel be trained on the policy and that the Patrol Guide section be followed in practice. Training on the Department’s racial profiling policies is part of the in-service training on stops and frisks. See Section IV.a below. The monitor will also be assessing the Department’s compliance with its racial profiling policies and the Fourteenth Amendment through statistical analyses of NYPD’s stop and frisk data.
d. TAP Policies In June 2016, the court approved the new NYPD procedures for interior patrols in buildings enrolled in the Trespass Affidavit Program (TAP), P.G. 212-59, a program in which police officers conduct interior patrols in certain private apartment buildings. The NYPD published a new P.G. 212-59 in April 2017 and conducted roll call training on interior patrols in TAP buildings in June and July 2017. Stops inside and outside TAP buildings must comply with the NYPD’s stop and frisk policies, P.G. 212-11. In addition, P.G. 212-59 states that “mere presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information, nor does it constitute reasonable suspicion for a Level 3 Terry stop. The Department also revised Administrative Guide 303-27, setting out the requirements and procedures for entry into the TAP program. In order for a building to be enrolled in the program, the owner must certify concerns regarding criminal activity or community complaints in the building, such as trespassing or drug activity within the last year. Crime prevention officers in each precinct are responsible for enrolling the buildings in the TAP program and then must assess every six months whether the buildings still meet the criteria for renewing enrollment.
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In May 2018, the Department briefed the monitor team and counsel in Ligon on efforts to implement the new administrative procedures for the TAP program. The Risk Management Bureau met with the crime prevention officers in each Patrol Borough to review the new criteria for enrolling and renewing buildings in the TAP program. Each precinct then determined whether buildings already enrolled should remain in the program. As of the first quarter of 2017, 3,591 buildings were enrolled in the TAP program; by the first quarter of 2018, only 1,174 buildings remained in the TAP program.
The monitor also met with the NYPD and Ligon plaintiffs in 2018 regarding what steps the monitor will take and what data the monitor should review in monitoring and reporting on the Ligon settlement agreement, filed in July 2017. Attached as Appendix 1 is the Ligon Monitoring Plan, which sets forth the steps needed, including monitoring and reporting, to ensure compliance with the Ligon settlement. The monitoring plan is still being finalized and the attachment is the current draft. Future reports will include assessments of the Department’s efforts to comply with the provisions of the Ligon settlement agreement.
e. Patrol of NYCHA Properties The settlement in Davis v. City of New York required a new Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60). As with the procedures for TAP buildings, the procedures for NYCHA buildings state that “mere presence” in a NYCHA building is not an “objective credible reason” for a Level 1 request for information, nor does it establish reasonable suspicion for a Level 3 Terry stop. P.G. 212-60 also states that arrests for trespass in restricted areas, such as roofs or roof landings, must be made with appropriate notice (e.g., through a conspicuously posted sign). The revised policy for interior patrols of NYCHA buildings became effective on April 25, 2017. NYPD officers viewed videos explaining the revised policies at roll calls in July, August, and September 2017. In addition to roll call
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training, the NYPD and the Davis plaintiffs are working to develop a one-day training for Housing officers, discussed in Section IV.e below.
f. Trespass Crimes Fact Sheet (TCFS) The settlements in Davis and Ligon require officers making trespass arrests in NYCHA and TAP buildings to document the arrests on a new form-the Trespass Crimes Fact Sheet (TCFS). Officers must provide information about what led them to approach the person and what led them to believe that the person was a trespasser. Since May 2017, the NYPD has used the court-approved TCFS for all trespass arrests in both NYCHA buildings and TAP buildings. III. Supervision As we have stated in past reports, for the changes required by the court to take hold, supervisors of officers on the street must embrace the changes and be responsible for the officers in their charge. Sergeants and lieutenants must oversee and coach their officers and precinct and unit commanders must set the right direction and tone. These supervisors must ensure that the stops, frisks, and trespass arrests made by their officers are legal and proper and that these activities are properly documented. This means they must take an active role in supervision, oversight, teaching, and, when appropriate, discipline. The changes to NYPD policy and reporting requirements set out these responsibilities. Patrol Guide 212-11 requires documentation of all stops and establishes the responsibilities of supervising officers up the chain of command. Supervisors are required to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk, or an appropriate basis for the search,
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the supervisor must document that and specify an appropriate follow-up: instruction, additional training, or, when warranted, discipline.
The new responsibilities of supervisors to ensure that their officers’ actions are constitutional are among the most significant changes in the daily operations of the NYPD relating to this monitorship. For this reason, and because it made sense to train supervisors before their officers were trained, sergeants and lieutenants were the first to have the comprehensive one-day stop and frisk training, discussed in Section IV.a below, which included several sections on the responsibilities of supervisors. Although the NYPD has put in place the right policies and training, it appears that many supervisors have not yet embraced their leadership roles.
When the new stop report was first implemented, many supervisors signed the reports but failed to complete the supervisory review section of the form. Even when the form was filled out, it was often apparent that the review was perfunctory and done by rote. When the stop report went electronic, the new system prevented supervisors from completing and submitting the stop report without answering the supervisory review questions.
However, to date, there are still very few instances in which supervisors are noting on stop reports an insufficient basis for the stop, frisk, or search and identifying corrective action. Chart 1 below shows the following for the fourth quarter of 2017 and the first and second quarters of 2018: the number of stop reports that QAD audited; the number of stop reports in those audits that QAD determined did not articulate reasonable suspicion (RS) for the stop; and the number of those same stop reports that the reviewing supervisor determined did not articulate reasonable suspicion for the stop. The chart also compares the number of stop reports that QAD determined did not articulate reasonable suspicion for the frisk, if conducted, with the number of reports for which the supervisors found no reasonable suspicion for the frisk, and a similar
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comparison of QAD’s and the supervisors’ determinations regarding the number of stops reports

that did not articulate a basis for the search, if conducted.

Chart 1. Supervisory Actions on Stop Reports

Quarter

# Stop Reports Audited by QAD

# QAD Determined No RS for Stop

# Reviewing Supervisor Determined No RS for Stop

# QAD Determined No RS for Frisk

# Reviewing # QAD Supervisor Determined Determined Search Not No RS for Justified Frisk

# Reviewing Supervisor Determined Search Not Justified

4Q2017 1909

496

8

108

3

27

0

1Q2108 1838

423

8

102

4

29

0

2Q2018 1850

326

10

87

4

60

3

Although very few supervisors identifyied deficiencies on the completed stop reports, the NYPD has noted that supervisors have sent a significant number of stop reports back to the officers for corrections before they signed off on the reports. Of the 4,176 stop reports audited by QAD in the first three quarters of 2018, the NYPD reports that 1,574 (38%) were initially rejected by a supervisor and sent back to the officer for revision. Of the 9,324 reports completed in the first three quarters of 2018, 2,410 (26%) were sent back to the officers for correction. However, the NYPD has not yet reported how many of those corrections related to the officers’ articulation of reasonable suspicion for the stop or frisk or basis for the search, or instead were corrections for other reasons (e.g., typos or failure to complete other unrelated fields in the report). The monitor team will continue its examination of supervisors’ actions on stop reports to see whether there are improvements.
The Department has created a protocol to correct supervisors who repeatedly approve deficient stop reports. Supervisors who have approved multiple stop reports that QAD determined to be deficient will be scheduled to take the in-service investigative encounters training if they have not already attended that training. Those who have already received the training will be sent to a smaller refresher class. Supervisors who have approved more than a

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certain number of deficient stop reports will have their stop reports and other paperwork reviewed with a greater level of scrutiny. They also will receive one-on-one training from an attorney in the Department’s RMB aimed at the specific deficiencies that have been identified. IV. Training
In the four years of the monitorship, the Department, the plaintiffs’ counsel, and the monitor team devoted countless hours developing training materials required by the court orders and stop and frisk policies. To date, the following training courses have been approved by the court:
In-Service Stop and Frisk and Racial Profiling Training for Police Officers In-Service Stop and Frisk and Racial Profiling Training for Supervisors (Sergeants and
Lieutenants) Training for Newly Promoted Supervisors Basic Plainclothes Training Recruit Training – Policing Legally Recruit Training – Policing Impartially Recruit Training – Interior Patrol (NYCHA and TAP buildings) Several other training courses are being developed. These, as well as the ones already approved by the court are discussed below. The current version of the approved training materials may be found at http://nypdmonitor.org/training/. a. In-Service SQF and Racial Profiling Training Patrol officers and supervisors are required to attend training annually to refresh their knowledge about important policing issues, to teach them about new developments in law, policy or police procedure, to impart specialized knowledge about particular areas of concern (e.g., dealing with emotionally disturbed people), to keep skills sharp (e.g., the use of weapons or other uses of force), and to talk about policies and practices that the Department thinks need emphasis. In the court’s remedial order, the court identified certain incorrect statements in training materials that needed to be changed. 959 F. Supp. 2d 668, 679-680 (S.D.N.Y. 2013).
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When the parties examined the Department’s in-service training, however, it became apparent that there needed to be a significant overhaul beyond making the corrections noted in the court order. If the Department was going to spend the considerable resources needed to retrain roughly 22,000 patrol officers and supervisors, it was advisable to take a deeper look at not just the legal content of the materials, but whether they were best designed to engage the officers and convey the desired lessons.
1. Content of the Training Materials The training materials cover the fundamental principles of stop, question, and frisk, trespass enforcement, and bias-free policing. Opportunities for discussion about the role of race in investigative encounters are included in several places. The materials describe the difference between the constitutionally permissible use of race based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops. The materials also effectively convey the changes in NYPD procedures governing investigative encounters and interior patrols, as well as what is expected of officers and supervisors regarding the documentation and supervision of stops and trespass arrests. In sum, the training materials meet the requirements of the court orders. The class begins with a short written quiz (taken anonymously) about the law of stop, question and frisk. In pilot classes, the quiz served its purpose of showing the class that there are misunderstandings about the law and NYPD procedures. Attendees then see an important statement by the Police Commissioner that explains how the training grew out of the stop and frisk litigation, how the overuse and misuse of stop and frisk harmed both the Department and some of the communities it serves, that the responsibility for this misuse rests with the leadership of the Department, and that the Department now owes its members a comprehensive training
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course so they understand what, under the law and Department procedure, they can and cannot do. The video can be seen at http://nypdmonitor.org/resourcesreports/training.
An attorney from the Department’s RMB or from a local District Attorney’s office and uniformed members of the service then co-teach an interactive class on the law and procedures regarding investigative encounters. The NYPD has added additional material covering the new Right to Know Law. Just before the meal break, there is a SurveyMonkey quiz that officers complete anonymously on their smartphones to examine whether the content of the class was absorbed by those in attendance.
For the supervisors’ course, the content of the post-meal session includes discussions of video footage from NYPD BWCs with a focus on sergeants’ and lieutenants’ role as supervisors, particularly with regard to how to supervise stops and how to discuss stop reports with their subordinates, and the need to ensure proper documentation of all stops. For the officers’ training, the post-meal session includes reviews of BWC footage involving investigative encounters, after which the instructors discuss both good and bad examples of stop reports for those encounters. The Department has included two BWC videos of self-initiated stops to use during the post-meal session. The NYPD also added a section on procedural justice in the postmeal session.
2. Rollout of Training The Department determined that supervisors would be trained first so the training can cover additional material on supervisory responsibilities. On December 5, 2017, the court approved training materials for NYPD’s in-service training on Investigative Encounters for NYPD supervisors (sergeants and lieutenants). The Department began training its patrol officers in February 2018 to pilot proposed changes to the training materials. After the training materials were revised to address Right to
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Know Law issues, the stop and frisk course for patrol officers was submitted for court approval on June 25, 2018 and was approved by the court on July 10, 2018. More than 22,000 members of the service will go through the training, which is being held at the Tactical Village at Rodman’s Neck. To increase the effectiveness of the training, each class is limited to 30-35 officers or supervisors. The training is taught every weekday and is taught on both the day (7x3) and evening (3x11) tours. As of November 28, 2018, approximately 11,000 police officers and detectives and 4,100 sergeants and lieutenants have gone through the training. The NYPD estimates that it will take up to 18 months for the bulk of its patrol officers and supervisors to take the training.
3. Observations of Training Since January 2018, the monitor team has observed numerous classes of both supervisors and patrol officers. Plaintiffs’ counsel also have attended training classes. The monitor team and plaintiffs’ counsel have shared with the Department observations and views about the course materials, the way the materials have been presented, and the course instructors. The monitor team discussed with the Department particular aspects of the training observed in individual classes attended. Time management was one issue raised, as the legal refresher before the meal often went over the time allotted, which meant that the time available for discussion of scenarios, BWCs, documentation, and supervision was shortchanged. As a result, Police Academy instructors are monitoring the classes to keep them on time, ensuring that scheduled breaks and meals end on time and that there are time limits to cover each section of the materials. Based on suggestions from the monitor team, the SurveyMonkey questions also were reviewed by the NYPD and modified to make them clearer. The goal was to make sure that if there continue to be problems with officers getting the correct answers, that would not be due
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to confusing wording of the questions. The instructors could then be more confident that they know what issues need more focus in the training.
The monitor team also raised more general concerns. Standards for evaluation of instructors and for the effectiveness of the classes needed to be established. Clear standards and expectations for instructors would ensure that the course’s themes are consistently addressed in the same manner. The NYPD had not been tabulating the results of class evaluations of the effectiveness of the classes and of the instructors to spot trends and monitor the success or failure of the course, and to identify areas or instructors that require additional focus or improvements. After meeting with the monitor team, the Department developed a plan for evaluation of the training. Items that the Department is considering in its evaluation of the training include:
• Class attendees now complete an “Investigative Encounters–Training Evaluation” form at the end of the class. Feedback from these evaluation forms is assessed and incorporated into quarterly reports. Results from these forms can be used to identify topic areas where the training can be improved. In addition, comments from class attendees can provide insight into instructors who may require additional coaching. Questions regarding an overall assessment of the course and any weaknesses can be a guide for areas requiring additional attention.
• The NYPD will be preparing periodic reports of an analysis of the results of the Training Evaluations, especially noting those instructors receiving above-average comments or out-of-norm positive/negative scores, as well as other reccurring themes that may be indicative of the need for training improvements.
• The results of the SurveyMonkey quiz at the end of the class, which tests attendees’ knowledge of the material, will be tabulated as a means of monitoring training impact. These results will be incorporated into quarterly reporting and scores in those question areas that are below average will be specifically noted.
The NYPD began implementing its training evaluation system in September 2018 and the first quarterly report will be available to the monitor in January 2019.
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b. Training for Newly Promoted Supervisors Training materials for newly promoted sergeants and lieutenants were submitted to the court by the monitor on February 22, 2018 and approved by the court on March 27, 2018. A principle focus of this training is the expanded responsibilities of supervisors, particularly sergeants, under the new Patrol Guide procedure for investigative encounters and specifically with regard to the stop report. The format of the training has been changed to encourage class participation and is similar to the in-service training described above for incumbent sergeants and lieutenants. c. Basic Plainclothes Course The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers, including officers who will be joining a precinct-based anti-crime or conditions unit, or any other unit that works in plainclothes. It is important to ensure that these officers get training on stop and frisk policies, because their work often involves actively seeking to detect and apprehend suspects and because they are making a significant proportion of the NYPD’s reported stops. The basic plainclothes course deals with tactical mindset, knowledge of the law and defensive tactics, among other necessary skills. The monitor team conveyed to the Department the view that there should be greater emphasis on integrating the teaching of these skills. Officers in plainclothes assignments must have a good knowledge of the law and how to use this knowledge and understanding of interpersonal dynamics to do their jobs more effectively and more safely, while at the same time protecting the rights of those encountered. Together with the monitor team and the plaintiffs, the Department worked on revisions to sections of the training dealing with investigative encounters. Among other things, the materials were revised to be consistent with the training on investigative encounters being taught to the patrol force. BWC videos involving plainclothes officers were added to the training to
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demonstrate some of the main teaching points. The parties agreed to these changes, and the monitor recommended approval by the court. The court approved the training on August 14, 2018.
d. Recruit Training Training materials for Police Academy recruit classes on stop and frisk, racial profiling and interior patrols for TAP and NYCHA buildings were rewritten and approved by the court in April 2015. The materials for these courses were revised when new NYPD policies were approved (e.g., P.G. 212-11, Investigative Encounters), and in response to continued review by the parties and the monitor team. The course on investigative encounters (titled Policing Legally) was updated to reflect the electronic stop report form. The course on interior patrols of TAP and NYCHA buildings was updated to reflect the new procedures governing those topics, P.G. 212-59 and P.G. 212-60. In 2018, the parties agreed on additional changes to the Policing Legally recruit materials. The primary purpose of these changes was to ensure consistency with the in-service investigative encounters training that is currently being taught at Rodman’s Neck to incumbent officers. One significant change was the addition of BWC videos as a tool to review each level of investigative encounter. Information regarding the requirements of the Right to Know Law was also added to this curriculum. The revised Policing Legally training materials were submitted to the court on July 25, 2018 and approved on August 14, 2018. In May and July 2018, the monitor team and plaintiffs’ counsel observed recruit classes and provided feedback to the NYPD. All of the instructors observed by the monitor team did a very good job presenting the material. There was a common theme of “community partnership” across many of the recruit training classes observed. Each instructor, regardless of the class topic, focused the discussions on a few policing themes:
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• Watchman–We police to make people be and feel safe. • Law–We police legally. • Service–We police to help people solve problems–We use discretion when
determining to arrest (“If you find somebody having a bad day, make it better”). These expectations were interwoven in classes on Interior Patrols, Policing Legally, Policing Impartially, and Policing in a Multicultural Society.
e. Housing One-Day Training The Department is working on an additional day of in-service training that will be provided to all Housing officers. This training will be in addition to the roll call training on the revised Patrol Guide section 212-60 and the in-service stop and frisk training. The additional one-day training for Housing officers will include instruction on P.G. 212-60 (interior patrols) and on NYCHA house rules, and officers will role-play scenarios designed to illustrate how the law of investigative encounters applies when the officers are engaging in interior patrols in NYCHA buildings. Many of the questions raised by the training materials issues have been resolved. The monitor has scheduled a series of meetings with the parties and the monitor team to discuss the remaining issues. f. Implicit Bias/Procedural Justice In February 2018, the Department began a one-day training program addressing implicit bias and procedural justice that over the course of the next two years will be taught to all 36,000 uniformed members of the service, including those at the highest levels of the Department (e.g., the Commissioner, the First Deputy Commissioner, and all the commanding officers of the precincts and other commands). This is an ambitious and worthwhile effort. “Implicit bias” is the concept that describes the automatic, unconscious association people make between groups of people and stereotypes about those groups, which are beyond
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their control and arise from the environment (neighborhood, family, friends, media, etc.) in which they grew up, live, and work. “Procedural justice” is a phrase used to describe the necessity of treating civilians and other members of the service with respect, listening to them and explaining officers’ actions. The training will include discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. The point of the training is to make officers more aware of what those biases are so that they do not interfere with the officers’ law enforcement functions.
The NYPD contracted with an outside vendor, Fair and Impartial Policing (FIP), http://www.fairimpartialpolicing.com/, to create the training materials and teach the course. Specific sessions of the training are tailored to particular audiences depending on whether they are senior executives, mid-level managers, supervisors, or police officers. The NYPD also conducted train-the-trainer sessions for instructors at the Police Academy who began presenting the training for recruit officers in August 2018. Members of the monitor team observed the material being taught by FIP instructors to senior executives of the Department. Jennifer Eberhardt, a member of the monitor team and one of the leading experts in the country on implicit bias in the law enforcement context, reviewed the training materials and provided feedback and suggestions for edits to the NYPD and FIP. Based on that input, the training materials were revised and improved. The monitor team and plaintiffs’ counsel also observed FIP instructors presenting the full day of training and provided feedback.
In an email to all NYPD members in February 2018, as the training was getting rolled out, Commissioner O’Neill laid out the goals of the training:
Beginning this week and continuing through 2019, all uniformed members will take part in training that raises awareness and teaches the science behind implicit bias. It’s a topic
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that’s been widely discussed for decades, and training like this is happening at law enforcement agencies across the nation. While this training highlights the implications of bias-free policing for us in New York City, I want you to know: The lessons you’ll learn are not unique to the NYPD or even to the broader policing profession. Understanding how perceptions can impact performance has relevance to a wide range of vocations, including the business world, the legal and medical professions, and more. But we’re cops, and we owe it to ourselves and to the people we serve to keep current with the latest training available. The goal of this training is to help us understand our attitudes, and how to best use our judgment, experience, and intelligence to be as effective and safe as possible. And that’s what it’s all about: fighting crime and keeping people safe–including ourselves. In the last few years, we’ve made unprecedented gains in how we safeguard New York City. Now, your challenge is to build on those accomplishments, because there’s still more work to be done for us to achieve true legitimacy in the eyes of every New Yorker. A significant area of discussion between the monitor team and the NYPD has been the issue of an evaluation of the FIP training. Although implicit bias training for police officers, and the FIP training in particular, has been conducted throughout the country, there have not yet been any systematic scientific evaluations of the training. The NYPD has been working with the IACP-University of Cincinnati Center on Police Research and Policy and with the Finn Institute for Public Safety at SUNY Albany to evaluate NYPD’s implicit bias training of patrol officers. The evaluation is designed to determine the effectiveness of the training in raising officers’ awareness of and knowledge about unconscious bias and providing officers the skills to manage their own unconscious biases, and thus, it is hoped, reducing the disparities in enforcement actions against various racial and ethnic groups. Several members of the monitor team (Anthony Braga, John MacDonald, Jennifer Eberhardt, and James McCabe) have assisted the IACP-UC Center and the Finn Institute researchers in developing the evaluation plan, including by helping develop the research design for the evaluation and helping identify the metrics to be used in evaluating the training.
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One part of the evaluation design is a pre-training survey to be taken by officers on the day of their FIP training, and a similar post-training survey taken by other officers to be administered at the end of the day of FIP training. Both versions include a common set of items designed to measure officers’ knowledge of and attitudes toward implicit bias. The post-training survey includes, in addition, questions on the trainees’ assessment of the value of the training and the likelihood that they would apply the FIP skills. The researchers will assess the immediate impacts of FIP training on officers’ knowledge and attitudes through direct comparisons of pre- and post-training survey responses. The researchers also plan a follow-up survey in 2019 to assess officers’ knowledge of and attitudes toward implicit bias, just as the training-day survey does, so that they can assess decay in training effects.
g. FTO Training The training for Field Training Officers (FTOs) has been revised to reflect similar changes to the in-service investigative encounters training. In addition, BWC videos have been added to the training and the PowerPoint presentation has been made more engaging. h. Training for 911 Operators Training materials instructing 911 operators how to handle calls from anonymous callers were developed by the NYPD in 2018, were circulated to the parties, and are in the course of being delivered. Under Florida v. J.L.,2 information from an anonymous caller generally does not provide reasonable suspicion for an officer to stop someone. The main purpose of this training is to ensure that 911 operators are able to gather and provide officers with sufficient information that the officers know whether or not they have the authority to make a Level 3 stop.
2 529 U.S. 266 (2000).
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V. BWC

a. Court-Ordered Pilot Program

The NYPD launched the BWC pilot program in April 2017; by November 2017, there

were approximately 1,200 officers in 20 pilot precincts wearing cameras for a one-year period

(see the table below). Those 20 precincts were matched with 20 precincts where officers were

not wearing cameras in a randomized control trial. The goal of the pilot program is to assess the

costs and benefits of deploying cameras and whether deployment would result in reducing

unconstitutional stops and frisks. Beginning in November 2018, the monitor team began

working with the NYPD to collect the data for the outcome measures.

Table 1. BWC Intervention Periods for 20 Treatment Precincts

Treatment Precinct

Intervention Period

Precinct 34

Begin – April 24, 2017

End – April 24, 2018

Precinct 60

Begin – June 7, 2017

End – June 7, 2018

Precinct 72

Begin – June 20, 2017

End – June 20, 2018

Precinct 48

Begin – July 13, 2017

End – July 13, 2018

Precinct 42

Begin – July 17, 2017

End – July 17, 2018

Precinct 47

Begin – July 24, 2017

End – July 24, 2018

Precinct 79

Begin – August 8, 2017

End – August 8, 2018

Precinct 71

Begin – August 14, 2017

End – August 14, 2018

Precinct 25

Begin – August 24, 2017

End – August 24, 2018

Precinct 43

Begin – August 28, 2017

End – August 28, 2018

Precinct 63

Begin – September 13, 2017

End – September 13, 2018

Precinct 44

Begin – September 25, 2017

End – September 25, 2018

Precinct 115

Begin – October 3, 2017

End – October 3, 2018

Precinct 102

Begin – October 10, 2017

End – October 10, 2018

Precinct 30

Begin – October 16, 2017

End – October 16, 2018

Precinct 13

Begin – October 18, 2017

End – October 18, 2018

Precinct 105

Begin – October 23, 2017

End – October 23, 2018

Precinct 18

Begin – October 31, 2017

End – October 31, 2018

Precinct 67

Begin – November 6, 2017

End – November 6, 2018

Precinct 121

Begin – November 14, 2017

End – November 14, 2018

On October 21, 2018, an officer noticed that smoke was coming out of his BWC, a Vievu

LE5 model; he took the camera off his uniform and the camera exploded. The NYPD has

removed 2,900 LE5 cameras from service, including the cameras in Precinct 121. However, the

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lack of BWCs in Precinct 121 for the last two and one-half weeks of the one-year intervention period should not have a meaningful impact on the results of the randomized experiment. The monitor team will run the experimental analysis with and without outcome events that occurred during this two and one-half week period to determine whether the brief withdrawal of treatment in Precinct 121 had a significant impact on the overall results.
b. Expansion of BWCs to Other Commands In January 2018, the Department announced that it was accelerating its rollout of BWCs to all patrol officers and detectives so they would have the cameras by the end of 2018 rather than the end of 2019, as previously projected. A public website detailed the timeline of the expedited rollout and contained an FAQ about the program as well as the underlying policy and information on how to make a FOIL request for BWC footage, https://www1.nyc.gov/site/nypd/about/about-nypd/equipment-tech/body-worn-cameras.page. The NYPD coordinated with Professor Anthony Braga of the monitor team to ensure that the accelerated rollout of BWCs would not interfere with the court-ordered BWC pilot. In April 2018, the Department began issuing BWCs to sergeants and lieutenants in the patrol force. On January 8, 2018, the Department published Patrol Guide 212-123, governing the use of BWCs citywide. This policy replaced Operations Order 21 (2017), which applied only to the BWC pilot precincts and had been previously approved by the monitor. Minor changes were made to clarify when officers should activate and deactivate their cameras, how videos should be tagged and when and how videos should be shared within the Department and with District Attorneys’ offices. Additionally, training sergeants and integrity control officers are now required periodically to review BWC footage to give feedback and address any performance deficiencies they see. Because of the increased deployment of BWCs, the number of videos
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being captured is growing exponentially. As of September 1, 2018, more than 1 million videos have been recorded.
c. PSA Quasi-Experiment for Housing Officers Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Police Service Areas (PSAs) were not included in the BWC randomized control trial. PSAs overlap with the 40 precincts in the randomized control trial, and if a PSA were selected to have cameras, the randomized control trial could include areas that also might have been selected as part of a control precinct without cameras. Professor Braga and other members of the monitor team developed a separate research plan to evaluate the use of cameras by Housing Bureau officers working in PSAs. NYPD Housing Bureau officers working in the nine PSAs are receiving BWCs as part of the citywide rollout plan launched after the court-ordered pilot began. It was not possible to design a randomized experimental evaluation of the placement of BWCs on NYPD PSA officers for two reasons: first, there are only nine PSAs, too few for a randomized experimental design to work effectively; and second, because the NYPD was implementing BWCs citywide and PSAs and precincts overlap, there would be precincts with BWCs in areas that also were in PSAs designated as control precincts without cameras. Instead, the monitor team will be using two separate quasi-experimental designs to evaluate BWC impacts on the provision of police services at the PSA command level and the PSA officer level, respectively. NYPD Housing Bureau officers in the nine PSAs were equipped with BWCs over the course of a nearly 11-month time period. The PSA implementation began the week of February 12, 2018 (PSA 8) and ended the week of December 16, 2018 (PSA 9). The evaluation relies on the timing of BWC treatment in PSAs. The staggered implementation of the BWCs in PSAs
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Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 32 of 67 enables the use of a “stepped-wedge” evaluation design.3 Figure 1 illustrates how the steppedwedge design works. Each of the clusters (in this case, officers in a PSA) starts out without BWCs–in other words, as part of the no-treatment control group. Each cluster (officers within a PSA) will, over time, move from the control group to the treatment group (in this case, as each PSA gets BWCs).4 In the PSA BWC evaluation, the design will include a pre-intervention period in which none of the PSA commands (“clusters” of officers) are exposed to the BWC treatment. Subsequently, at regular intervals (the “steps”), one PSA command will cross from the no-treatment control group to the BWC intervention group under evaluation. This process will continue until all nine PSAs have crossed over to be part of the BWC intervention. At the end of the study, there will be a period when all PSA commands are using BWCs. Data collection will continue throughout the evaluation. Figure 1. Cluster Design
3 Hu, Y., & Hoover, D.R. (2018). “Non-Randomized and Randomized Stepped-Wedge Designs Using an Orthogonal Least Squares Framework.” Statistical Methods in Medical Research, 27 (4): 1202 – 1218. 4 Figure 1 was adapted from Hemming, K. et al. (2015). “The Stepped Wedge Cluster Randomized Trial: Rationale, Design, Analysis, and Reporting.” British Medical Journal (Clinical Research ed.), 350: h391.
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d. Court-Ordered Pilot for Electronic Documentation of Level 1 and Level 2 Encounters and BWC Activation at Level 1
On July 19 and August 9, 2018, the court issued orders requiring the parties to develop pilots designed to provide the court with information to assist it in deciding how to address two recommendations from the Joint Remedial Process: (1) to require officers to electronically document Level 1 and Level 2 encounters; and (2) to require activation of BWCs for encounters at Level 1. The parties asked the monitor to undertake the task of providing a draft proposal for the pilots that could then be discussed by the parties. Professor Stephen Mastrofski, a consultant for the monitor, worked with other members of the monitor team to produce a draft proposal on September 12, 2018. The proposal combined the two pilots into a single pilot study. After accommodating comments by counsel and experts for the parties, the monitor team circulated a new draft on October 16, 2018. The monitor team made further revisions to the proposal based on additional comments from the parties. On November 8, 2018, the monitor submitted his recommendation for a pilot program to the court for approval. ECF No. 660-1.5 The proposal is attached as Appendix 2. On November 21, 2018, the plaintiffs filed with the court a partial objection to the proposal and requested the court to make certain modification. ECF No. 669. The matter is currently pending before the court. VI. Performance-Evaluation System
a. Description of New Performance-Evaluation System On November 6, 2017, the court approved the monitor’s recommendation regarding a new performance-evaluation system that the Department began earlier that year for patrol officers. In the court’s order, the court referenced its liability opinion, finding that NYPD “officers [were] routinely subjected to significant pressure to increase their stop numbers,
5 All ECF cites refer to documents as numbered in the Floyd docket.
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without corresponding pressure to ensure that stops [were] constitutionally justified.” Floyd, 959 F. Supp. 2d at 602. The NYPD’s performance-evaluation system was one source of this pressure and Compstat meetings a second source. Id. at 590, 592-94.
The monitor’s recommendation noted that the NYPD had taken steps to eliminate these two sources of pressure, including instituting a new performance-evaluation system. In the new system, the lawfulness of stops and the accuracy of stop reports play a role, but the number of stops does not. The court reviewed and approved the monitor’s recommendation and ordered that the monitor review and assess certain aspects of the system. The review is to ensure that, in practice, the new system does not “reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness” or undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments.6
The new system is a significant improvement from the prior evaluation system. There are four main components of the new evaluation system. The first is the Officer Profile Report, an electronic form that is automatically generated monthly. This report compiles data from numerous Department databases and compares the officer to other officers in his or her precinct, their borough, and citywide. It does not count the number of stops conducted by the officer. The second component is the Supervisor Feedback Form, which allows supervisors to highlight commendable actions by an officer or note areas that may need improvement. A third
6 Pursuant to the court order, “the Monitor shall, in his bi-annual reports, review and assess the NYPD’s performance-evaluation system to ensure that, on paper and in practice, it does not (a) reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness or (b) undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedies Opinion. During the period of Court supervision, Court approval is required before the NYPD implements any proposed change to the performance-evaluation system that may (a) introduce a mechanism to count the number of stops conducted by an officer or (b) affect the manner in which the quality and lawfulness of stops are assessed. The NYPD shall notify the Monitor and the parties of any such proposed change so that the Monitor—in consultation with the parties—may seek Court approval.”
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component is the Officer Self-Report Form, which allows officers to document notable actions
they consider to be positive, such as community engagement, problem-solving, or achievements
in crime prevention.
The final component of the new evaluation system of officers is the Quarterly Evaluation,
which took effect on April 1, 2017, for the first quarter of 2017. Supervisors are instructed to
review the Officer Profile Report as well as any Supervisor Feedback Forms and Officer Self-
Report Forms from the relevant period prior to completing the Quarterly Evaluation.
Supervisors must now use the Quarterly Evaluation to rate officers in 12 different dimensions on
a scale from one to four. The fourth quarter evaluation will provide the supervisor with a
summary box to recap the officer’s performance over the entire year.
The NYPD now uses 12 performance categories or “dimensions” to evaluate its
members. These are:
1. Problem Identification/Solving 2. Adaptability and Responsiveness 3. Judgment 4. Integrity 5. Application of Law and Procedures 6. Community Interaction 7. Departmental Interaction 8. Professional Image and Maintenance of Equipment 9. Quality and Timeliness of Reports 10. Initiative 11. Leadership 12. Implementation of Proactive Policing Strategies (for members who perform
administrative functions, a different dimension, Competence in Unit’s Mission, replaces this dimension).
It should be noted that the new evaluation system covers the evaluation of officers only,
and does not change the evaluation system for sergeants, lieutenants, captains and other
supervisors. In April of 2019, sergeants and lieutenants are expected to begin being evaluated
under the new performance-evaluation system.
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b. Assessment of the Performance-Evaluation System The first question is whether the system is working as designed. Are the various types of data that are supposed to be feeding into the Officer Profile Report being incorporated into the system? Are supervisors filling out Supervisor Feedback Forms? Are officers completing Officer Self-report Forms? And, importantly, are supervisors completing the evaluations of their officers? The monitor team asked the NYPD to determine whether information from officers’ stop reports was being fed into the performance evaluation system–in particular, if a supervisor found that there was an insufficient basis for the stop, frisk, or search, did that information show up in the Officer Profile Report? In June 2018, the Risk Management Bureau identified a sample of six stop reports on which supervisors noted an insufficient basis for the stop, frisk, or search and noted whether or not any follow-up actions (instructions, training, or discipline) were appropriate. It then examined whether that data was, in fact, automatically populating the given member’s Officer Profile Report. Of those six instances, data from only three was included in the Officer Profile Reports in the performance evaluation system. The NYPD reports that its developer fixed the logic for the data feeding into the Officer Profile Reports in the performance evaluation system, and data from stop reports are now automatically being included in members’ monthly Officer Profile Reports. The monitor team also conducted a focus group with supervisors to get their views of the performance-evaluation system. They expressed the view that in past years there had been significant pressure on officers to make stops, but that the Department is no longer pressuring officers to submit a certain number of stop reports and the performance-evaluation system does not put pressure on officers to make stops.
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There was some confusion about how the performance evaluation system is supposed to work, what types of conduct fit in the different dimensions, and how the composite scores of the performance evaluation system operate. The sergeants also expressed a need for more training on the system. It was evident that additional training would be helpful because some supervisors were unsure how an officer who is an “effective crime fighter” could be rated better than the officer who “looks good in his uniform but just stands around every day.” Another issue raised in the focus group was the extent to which supervisors use the “needs improvement” rating. In fact, very few of the supervisors have used that rating. The sergeants also noted that the Supervisors Feedback Form, which is on the member’s phones through the CRAFT system, would be much easier to use if it were on the computer and not just on members’ phones.
The monitor team’s review of the NYPD’s performance evaluation system, as it is being implemented in practice, indicates that it is not undermining the goals of the remedial process, and, in particular, it does not lead supervisors to pressure officers to make more stops without regard to the lawfulness of those stops.
In addition to the primary issue identified by the remedial order, the Department may wish to consider other issues identified by the monitor team in its review of the performance evaluation system. The review raised questions about whether supervisors are using the evaluation system to achieve one of its stated purposes–to identify NYPD high-achievers and those who need improvement. All the evaluations from a sample precinct for the fourth quarter of 2017 were reviewed. Those evaluations showed what is known as a halo effect in performance evaluation systems. No officer in the precinct was rated “needs improvement” in any of the 12 dimensions. It is possible that the precinct reviewed was an exemplary precinct that did not have any officers who needed any improvement. More likely, however, is that the
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supervisors did not wish to use the performance evaluation as a tool to identify problematic behavior. VII. Auditing
a. Quality Assurance Division Audits The Quality Assurance Division (QAD) monitors compliance with Department policies and the law, including those relating to stop and frisk and trespass enforcement. QAD evaluates all precincts, transit districts, and housing commands, as well as several specialty units. The audit procedures address both the quality of the documentation (i.e., whether the paperwork was properly prepared) and the quality of the information contained therein (e.g., whether the stop met constitutional standards). The Department also performs audits to assess the extent to which stops and frisks are being conducted but not documented. Because the stop report is now electronic and many of the data fields on the stop report form must be completed in order for officers to submit the report, much of the administrative review to determine if the fields were complete and legible is no longer necessary. Also, the data from electronic stop reports can be aggregated and analyzed to allow for more meaningful and actionable information to be provided to commanding officers and Integrity Control Officers (ICOs) in the commands. As a result of these changes, the NYPD is in the process of making additional changes to its audit procedures, some of which (discussed below) are being implemented. QAD is currently conducting four types of audits relevant to the remedial measures: (1) audits of stop reports; (2) RAND audits to identify undocumented stops; (3) audits of policeinitiated enforcement (called PIE audits), also to identify undocumented stops; and (4) audits of trespass arrests. Each is described more fully below, along with the results of these audits from the third quarter of 2016 through the first quarter of 2018. In addition to these audits by QAD,
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the monitor team has reviewed a sample of stop reports that were also reviewed by QAD. Below at Section VII.a.1.ii is a report on whether the monitor’s conclusions differed from QAD’s.
QAD also periodically requires commands to do self-inspections to monitor their compliance. Commanding officers oversee self-inspections in their commands. Concerning stop, question, and frisk, the ICO in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for the month reviewed, the ICO must evaluate all of them. The results of these “self-inspections” are reported up the chain of command in the precinct and the borough and then QAD reviews a subset of the results.
1. Stop Report Audits i. QAD Results
Commands are evaluated quarterly to ensure that (i) activity logs are complete and accurate, (ii) officers are sufficiently articulating reasonable suspicion for stops, (iii) officers are sufficiently articulating the legal basis for frisks and searches, and (iv) supervisors are correctly reviewing the stop reports and related paperwork and correctly identifying illegality and taking appropriate follow-up actions.
QAD audit findings suggest that officers’ compliance has shown some improvement. The chart below shows the results of QAD’s audits for the last six quarters. For each quarter, the chart shows the number of stop reports audited and the number and percentage of stop reports that QAD determined articulated reasonable suspicion for the stop. That percentage increased from 74 percent in the fourth quarter of 2016 to 77 percent in the first quarter of 2018. The chart also shows the number of stop reports in which the officer reported a frisk, and, for those reports, the number and percentage of stop reports that QAD determined articulated reasonable suspicion that the person was armed and dangerous. That percentage increased from 83 percent for the
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fourth quarter of 2016 to 91 percent in the first quarter of 2018. Similarly, the chart shows the

number of stop reports in which the officer reported a search, and QAD’s assessment of whether

the stop reports articulated a justification for the searches. As determined by QAD, the

percentage of appropriate searches rose from 89 percent in the first quarter of 2016 to 96 percent

in the fourth quarter of 2018.

Chart 2. QAD Stop Report Audits 4Q 2016 Through 1Q 2018

Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018

# Stop Reports Audited
1495 1627 2015 1975 1909 1838

# Stop Reports Articulate RS for the Stop
1106 1161 1438 1436 1413 1417

% Stop Reports Articulate RS for the Stop
74% 71% 71% 73% 74% 77%

# Stop Reports Where Suspect Was Frisked
918 959 1237 1176 1108 1116

# Stop Reports Articulate RS for the Frisk
760 765 1090 1074 1000 1014

% Stop Reports Articulate RS for the Frisk
83% 80% 88% 91% 90% 91%

# Stop Reports Where Suspect Was Searched
454 509 673 640 636 662

# Stop Reports Articulate Justification for the Search
402 445 600 602 609 633

% Stop

Reports

Articulate

Justification

for

the

Search

89%

87%

89%

94%

96%

96%

In the second quarter of 2018, QAD began piloting a procedure in Patrol Borough

Queens North for its audits of stop reports to focus more on substantive review of the reports and

make the audits more helpful to the commands. The Department expanded the pilot in the third

quarter of 2018 to include Patrol Boroughs Queens South and Staten Island. For the fourth

quarter of 2018 the entire department will be under the new auditing process. Under this new

process, auditors review stop reports weekly for the commands in the pilot. This allows a shorter

feedback loop between the commands and QAD to identify and correct issues more quickly.

Auditors are increasing their review of ICAD reports (Intergraph Computer Aided Dispatching)

to determine whether a stop was proper and focusing more on whether supervisors sufficiently

reviewed the underlying constitutionality of a stop. When these audits are conducted, QAD is

providing commands with more information on specific areas that require improvement and

specific officers and supervisors who need to do better. Commands are provided with a detailed

assessment of their performance in the most recent quarter as compared to prior quarters.

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ii. Monitor Review of QAD Results Starting with the audits from the fourth quarter of 2016, the monitor team has obtained a sample of the stop reports audited by QAD, along with the QAD audits of those reports. The goal was to evaluate the auditors’ work and also review a sufficient number of stops to be able to make meaningful statements about citywide compliance. The stop reports are evaluated by three members of the monitor team. When they disagree, the stop reports are reviewed by the monitor and deputy monitor. Below is a chart that reports the monitor’s assessments. For each quarter, the chart shows the number of stop reports that the monitor team reviewed and the number and percentage of stop reports that the monitor team determined articulated reasonable suspicion for the stop. That percentage increased from 46 percent in the fourth quarter of 2016 to 64 percnet in the first quarter of 2018. The chart also shows the number of stop reports in which the officer reported a frisk and, for those stop reports, the number and percentage of reports that the monitor team determined articulated reasonable suspicion that the person was armed and dangerous. That percentage increased from 76 percent for the fourth quarter of 2016 to 87 percent in the first quarter of 2018. Similarly, the chart shows the number of stop reports in which the officer reported a search, and the monitor team’s assessment of whether the stop reports articulated a justification for the searches. As determined by monitor team, the percentage of appropriate searches rose from 84 percent in the first quarter of 2016 to 92 percent in the fourth quarter of 2018. Like the results from QAD’s audits of stop reports, the results from the monitor team’s assessments show an increase in the level of compliance over time.
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Chart 3. Monitor Team Review of Stop Reports 4Q 2016 through 1Q 2018

Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018

# Stop Reports Reviewed by Monitor Team
261 256 302 304 305 309

# Stop Reports Articulate RS for the Stop
121 131 180 165 211 198

% Stop Reports Articulate RS for the Stop
46% 51% 60% 54% 69% 64%

# Stop Reports Where Suspect Was Frisked
146 143 178 180 172 212

# Stop Reports Articulate RS for the Frisk
111 111 140 126 154 184

% Stop Reports Articulate RS for the Frisk
76% 78% 79% 70% 90% 87%

# Stop Reports Where Suspect Was Searched
67 76 90 88 108 93

# Stop Reports Articulate Justification for the Search
56 65 81 71 102 86

% Stop

Reports

Articulate

Justification

for

the

Search

84% 86% 90% 81% 94% 92%

As noted above, there are two purposes of the monitor’s stop report assessments: first, to

measure officers’ compliance with Department policies and constitutional standards, and second,

to evaluate the work of QAD in auditing Department efforts. The monitor team’s results in

Chart 3 above show lower compliance results than the QAD audits shown in Chart 2. In the

fourth quarter of 2016, for example, QAD determined that 66 percent of the stop reports

articulated reasonable suspicion for the stop, while the monitor team determined that only 46

percent of the stop reports sampled articulated reasonable suspicion. In the first quarter of 2018,

QAD determined that 77 percent of the stop reports articulated reasonable suspicion, while the

monitor team determined that 64 percent of the reports articulated reasonable suspicion.

After each quarter, the monitor team meets with QAD to review the stop reports when

there are differences between the monitor team’s and QAD’s evaluation. In part as a result of

these meetings, the differences between the QAD results and the monitor team results are

decreasing over time. Further analysis of the level of agreement between QAD and the monitor

team can quantify the inter-rater reliability (IRR). In statistics, IRR is the degree of agreement

among raters. It is a score from 0 to 1 that reports the consistency in ratings among various

evaluators, in this case regarding whether or not a stop report articulated the appropriate level of

suspicion.

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The IRR between the monitor team’s and QAD’s assessment for the last five quarters

(1Q2017 thru 1Q2018) on the determination (yes or no) if the report articulated reasonable

suspicion for the stop is 0.707 with a confidence interval of +/- 0.0372. This means that there is

a 95 percent probability that the agreement is between 3.72 percent higher or lower than 70.7

percent. This could be described as moderate agreement between the monitor team and

QAD. An IRR greater than 0.8 is considered strong.

2. QAD Audits of BWCs Videos Associated with Stop Reports In the fourth quarter of 2017, QAD began auditing videos associated with the five most recent stop reports that indicate there is a corresponding BWC video. These videos and their corresponding stop reports are reviewed for completeness, professionalism, consistency with the narratives, and whether the “What Is a Stop?” information card was handed out. A similar analysis is performed for the five most recent arrest reports that indicate they have corresponding BWC videos. In the case of arrests, the videos and arrest reports are reviewed for completeness and whether a stop report was prepared if the arrest arose out of a stop. In the majority of cases, QAD found that the video was either consistent with the narratives in the stop report or inconclusive. Chart 4. QAD Audits of Stop Reports with Associated BWC Video

Number of Videos Reviewed

Video Consistent with Stop Narrative

Video Inconsistent with Stop Narrative

Video Inconclusive Regard to Narrative

with Stop

4Q2017

64

58%

0%

42%

1Q2018

84

68%

3%

30%

4Q2017 1Q2018

Number of Videos Reviewed
40 59

Video Consistent with Frisk Narrative
60% 61%

Video Inconsistent with Frisk Narrative
0%
3%

Video Inconclusive with Regard to Frisk Narrative
40%
36%

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3. Undocumented Stops The NYPD has acknowledged that undocumented Level 3 Terry stops are a serious issue that needs to be addressed. QAD performs two types of audits to determine whether stops are being properly documented: RAND audits, reviewing NYPD radio transmissions; and policeinitiated enforcement audits, reviewing arrests that started as Level 3 Terry stops, including trespass arrests that started as Level 3 Terry stops.
i. RAND Audits As discussed in prior reports, the RAND audit program is designed to identify stop encounters using radio transmissions to discover instances in which stop reports should have been prepared. The audit begins with keyword searches of ICADs to identify events that may have involved stop encounters. These keywords are “Stopped,” “Show-up,” “Holding,” and “Warrant Check.” QAD then reviews the ICADs and/or listens to the corresponding radio transmissions to winnow the list to identify events more likely to be encounters requiring stop reports. NYPD records are then reviewed to determine if a corresponding stop report was prepared. If there is BWC video of the event, QAD reviews the video. If the auditor determines that a stop report may have been required, the matter is referred to the command for further investigation. The command then reports back to QAD whether the encounter did, in fact, require a stop report and whether one was filed. Commands are required to submit a response through Department channels within six weeks of when the matter was referred. The data below summarize the RAND audits conducted from the fourth quarter of 2016 through the first quarter of 2018, and command responses to those audits. The number of stops that did not have the required stop reports declined over this period and the percentage of compliance, based on the RAND audits, increased.
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Chart 5. RAND Audits with Command Responses

Total RAND Audits

Indicating a Stop

Stop Reports on File During

QAD Audit

ICAD Events Requiring

Investigation

Stop Made by Another

Command and Report on File

Deemed Not Necessary After

Command

Investigation

(False Positive)

Stop Report Prepared at the

Time of the Event, But Not in

System

Stop Made by Another

Command and No Report on

File

Terry Stops Without Stop

Report

Total Terry Stops

Compliance Rate (%)

4Q2016 28 4 24 0
8
4
0
12 20 40.0%

1Q2017 28 2 26 1
10
3
1
11 17 35.3%

2Q2017 31 4 27 0
9
2
0
16 22 27.3%

3Q2017 21 5 16 0
4
7
0
5 17 70.6%

4Q2017 23 12 11 0
6
0
0
5 17 70.6%

1Q2018 21 10 11 0
7
2
0
2 14 85.7%

Below are the follow-up actions taken by the commands for members who did not document stops.7

Chart 6. Command Follow-Up Action

Terry Stops Without Stop Report Command Discipline
Instructions/Training Minor Violations Log or Supervisory Report Stop Without Report, but No Disciplinary Action

4Q2016 12 2 3 5
2

1Q2017 2Q2017 3Q2017

11

16

5

0

0

0

6

8

3

5

5

1

0

3

1

4Q2017 1Q2018

5

2

4

1

1

0

0

1

0

0

7 The minor violations log was a logbook kept at each command that recorded minor violations of Department rules by members of the service. The information in these logs was not tracked centrally, it did not become part of a member’s personnel record, and there were no penalties or additional consequences for being listed in the log. The NYPD has replaced the minor violations log with a Supervisor’s Comment Form.

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ii. Audits of “Police-Initiated” Encounters These audits look at the last 25 arrests in each command from the audit period that result

from police-initiated enforcement. These are defined as arrests where the People of the State of

New York are the complainants on the Complaint Report, such as criminal possession of a

controlled substance or criminal possession of a weapon. These 25 arrest reports are reviewed to

determine whether a stop report should have been filed. When an auditor determines that a stop

report was likely required but not filed, the matter is referred to the command for further

investigation. Below in Chart 7 are the results of these audits from the fourth quarter of 2016 to

the first quarter of 2018. The “Arrests Audited” column is not always a multiple of 25 because

in some commands there may not have been 25 police-initiated enforcement arrests. The next

column represents arrests that the auditors or the command determined did not start as a Terry

stop, and so a stop report was not required. If a command did not respond to QAD’s inquiry

about an arrest, the stop report is included in the “Command Response Missing.” The chart then

reports the number of arrests for which a stop report was required, the number of stop reports

filed, and the percentage of compliance.

Chart 7. PIE Audits with Command Responses

Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 Total

Arrests Audited
103 161 154 194 225 120 957

Stop Report Not Required
50
95 104
122 171 74 616

FalsePositive
48.5% 59.0% 67.5% 62.9% 76.0% 61.7% 64.4%

Command Response Missing
7 23 6 26
0 4 66

Stop Report Required
46 43 44 46 54 42 275

Stop Report on File

% Compliance

20

43.5%

19

44.2%

13

29.5%

12

26.1%

20

37.0%

18

42.9%

102

37.1%

These findings indicate that officers still are not completing stop reports when required.

If the source of the failure to document stops is an erroneous belief that completing an arrest

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report obviates the need for a stop report, then the in-service training being conducted as well as

review by supervisors should remedy these errors. However, it appears that other measures

emphasizing the importance of documenting stops are necessary. See, e.g., Section II.b.1 above.

iii. TCFS Audits In the fourth quarter of 2017, QAD began auditing Trespass Crime Fact Sheets (TCFSs).

Officers are required to fill out TCFSs for all trespass arrests in and around NYCHA buildings

and buildings enrolled in the Trespass Affidavit Program (TAP). QAD auditors review both

whether or not a TCFS was prepared when required and whether or not the officer articulated a

proper basis for the approach of the person arrested. QAD found that all trespass arrests at TAP

and NYHA buildings had an accompanying TCFS. Thus far, QAD has found sufficient

articulation of a proper basis to approach someone in the large majority of TCFS it has reviewed.

Chart 8. TCFS Audit Results

4Q2017 1Q2018

Number of TAP Trespass Arrests Audited

TAP

TCFS

Articulating

Proper Basis for

Approach

Number of NYCHA Trespass Arrests Audited

NYCHA

TCFS

Articulating

Proper Basis for

Approach

44

93%

136

94%

57

98%

189

97%

b. RAILS/Early Identification System The Department created the Risk Assessment Information Liability System (RAILS) to aggregate personnel data and negative performance indicators such as civilian complaints, discipline, stop reports rejected by supervisors, and transfers for cause. Commanders receive automatic alerts for a number of triggering events and can query the records of their subordinates at any time. Following a pilot, RAILS became operational Department-wide in October 2017. Data regarding declinations to prosecute were integrated into RAILS in June 2018. The NYPD receives its information about declinations directly from the District Attorneys’

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offices. Based on the information received, the Department sorts those declinations into categories to fit into the RAILS system. The categories of declinations that are included in RAILS are:
• Incorrect/missing paperwork • Insufficient evidence • Arresting officer refuses to cooperate • Arresting officer unavailable • Defendant merely present • Lacks element of crime • Lacks jurisdiction • No ID by complainant/witness • No nexus between defendant and crime • No nexus/drugs • No valid basis for stop or frisk • Unlawful search • Violation not observed All such declinations trigger an alert to the commanding officer. The NYPD is currently planning to expand RAILS to include more indicators. One such indicator of risk is a judicial finding of adverse credibility. Adverse credibility findings are not currently included in RAILS. However, the Legal Bureau is coordinating with NYPD’s IT Bureau (ITB) to add such findings to the system, including addressing technology issues. ITB has to create a mechanism for the Legal Bureau to enter the adverse credibility findings into the Central Personnel Index (CPI). The CPI is the database at the NYPD that aggregates all personnel information about NYPD members. RAILS is designed so that data must be in the CPI before it can be imported into RAILS. Once the adverse credibility findings are in the CPI, they can then be added to RAILS. ITB is creating an electronic worksheet for the program that enters data into the CPI so that adverse credibility findings can be included. Once the electronic worksheet is created, it will be used to enter adverse credibility decisions into RAILS.
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In addition to adding adverse credibility findings to RAILS, the Department currently has a process for addressing adverse credibility findings. The Department receives notices of adverse credibility determinations from the District Attorneys’ and United States Attorneys’ offices. In 2016, it created an Adverse Credibility Committee to review these findings to determine what follow-up actions are appropriate. The Committee meets periodically and can vote to direct training, recommend that the officer’s commanding officer consider reassignment, or refer the matter to the Internal Affairs Bureau (IAB) for further investigation.
Similar to adverse credibility findings, civil judgments due to members’ malfeasance are not currently included in RAILS. The Department has informed the monitor that it plans to add this data to RAILS. There are two issues the Department is addressing. First, it wants to curate the litigation data to distinguish between judgments resulting from malfeasance and judgments settled by the Law Department for nuisance value or judgments in lawsuits in which the member was named but he or she did not participate in any misconduct. Second, similar to adverse credibility determinations, certain IT steps need to be taken to incorporate the litigation data into the RAILS system.
The NYPD has informed the monitor that it intends to use the RAILS system as part of its efforts to respond to the court’s order issued on November 20, 2018. The court ordered the NYPD “after consultation with the Monitor, [to] submit for approval a plan 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.” ECF No. 662 at 2.8
8 The court order states that the information to be included in the program must 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
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VIII. Complaints and Discipline The court’s remedial order required the NYPD to change its policies and practices with
respect to investigations of racial profiling and other bias-based profiling allegations as well as its handling of civilian complaints that have been substantiated by the Civilian Complaint Review Board (CCRB).
a. Investigation of Profiling Allegations The NYPD investigates all profiling allegations related to race and biased-based policing, no matter how the allegation is made to the NYPD (e.g., in writing, in a 311 or 911 call, by a call or visit to a precinct, directly to the IAB, or directly to the CCRB, which refers these cases to the NYPD). When it receives a complaint, IAB logs the matter into the Internal Case Management System and the complaint is reviewed and assigned for investigation. In the Seventh Monitor Report, we began reporting on these investigations. On January 3, 2019, the court approved the monitor’s recommendation regarding IAB’s guide for investigating complaints of racial profiling and IAB’s internal investigators’ course on profiling and biased-based policing. The IAB guide sets forth the procedures for the intake, classification, and investigation of complaints related to profiling and bias-based policing. The guide formalizes procedures that have been in place since 2015. IAB collects all available documents, as well as audio and video recordings, including recordings of BWCs, if any. IAB then decides which allegations fall within the definition of profiling and assigns those matters for investigation. The investigator must take all appropriate investigative steps, including obtaining and reviewing all documents related to the incident, such as audio and video recordings, canvassing involved locations, and interviewing the complainant, subject officers, and witnesses.
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. ECF No. 662 at 2.
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When an investigation is complete, the investigator submits an Allegation Finding
Worksheet that contains the results of the investigation and recommended findings. Each
allegation must have a finding reflecting one of four determinations:
1. Substantiated–Credible evidence exists that the accused officer committed the alleged act of misconduct and such credible evidence outweighs the evidence that the accused officer did not commit the alleged misconduct.

2. Unsubstantiated–There is insufficient credible evidence to prove or disprove the allegation.

3. Unfounded–Credible evidence exists that the alleged act of misconduct did not occur or that the accused officer did not commit the alleged act of misconduct and such credible evidence outweighs the evidence that the officer did commit the alleged misconduct.

4. Exonerated–Credible evidence exists that the alleged conduct occurred but the subject officer’s actions were determined to be lawful.

1. Outcomes of Profiling Investigations

In 2017, the NYPD opened 817 cases, consisting of 1,175 allegations of profiling or bias-

based policing, alleged against 748 officers. From January 1, 2018, through May 30, 2018, 378

profiling cases were opened, with 547 allegations made against 350 officers. The status of these

cases, along with cases opened in 2014–2016, is outlined in the chart below.

Chart 9. Profiling Allegations by Year, 2014 – May 30, 2018

Total Profiling Allegations Unfounded Exonerated Unsubstantiated Partially Substantiated*** Substantiated Open or Active

2014 15 4 2 9 0 0 0

2015 339 154
11 105 27
0 42

2016 556 156 201
0 22 0 177

2017 1175*
242 0
363 44 0 526

2018 547**
56 2
75 10 0 404

* These allegations were made in 817 cases. ** These allegations were made in 378 cases. *** These are cases in which other allegations in a profiling complaint were
substantiated, but not profiling allegations.

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Proving bias against an individual officer is difficult because it requires a conclusion

about that officer’s state of mind. The NYPD, like other major police departments around the

country, has not substantiated any. It is therefore very important to ensure that the Department’s

profiling investigations are thorough. The monitor team has been reviewing samples of profiling

investigations to make this evaluation. Special attention is paid to cases involving officers

against whom there are multiple allegations made or commands in which there is a high

incidence of claims. When the monitor team completes its review of a sufficient number of these

cases, the results will be reported.

In January 2016, the NYPD combined four categories of allegations (race, color,

ethnicity, and nationality) into one category–“Race/Color/Ethnicity/National Origin.” This

category continues to have the largest percentage of profiling allegations investigated in 2017.

Other categories included age, gender, religion, disability, gender identity, sexual orientation,

and housing status.

Chart 10. Profiling Allegations by Outcome

Profiling Allegations
Profiling – Age Profiling – Citizenship Status Profiling – Color* Profiling – Disability Profiling – Ethnicity* Profiling – Gender Profiling – Gender Identity Profiling – Gender, Gender Identity Profiling – Housing Status Profiling – National Origin* Profiling – Other Profiling – Race* Profiling – Race, Color, Ethnicity, National Origin Profiling – Religion

Open Exonerated Unfounded Unsubstantiated Total

10

0

6

6

0

3

19

3

85

22

0

14

7

3

48

0

0

11

2

0

2

1

17

1

10

51

158

4

40

18

76

1

12

0

4

34

0

18

11

0

4

1

0

21

259

0

122

7

2

31

11

63

3

18

7

29

67

448

16

56

628

1

277

45

1

39

197

1103

21

106

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Profiling Allegations
Profiling – Sexual Orientation Total

Open Exonerated Unfounded Unsubstantiated Total

53

0

18

1104

10

699

13

84

411

2224

*These four allegation types were combined into one category effective January 1, 2016. The allegations listed in these separate categories were made in 2014 and 2015.

Among the profiling cases investigated by the NYPD, there were several individual

officers named in more than one case. Twenty-eight officers were the subject of three or more

profiling cases. In addition, 10 precincts had 20 or more profiling cases investigated against

officers in their command. Two Traffic commands had 40 or more profiling cases investigated

against officers in their command.

Chart 11. Member of Service and Precinct Overview in Profiling Allegations

Number of Officers Named in More than Two Profiling Cases (2014 – May 2018)

28

Number of Officers Named in More than Four Profiling Cases (2014 – May 2018)

4

Number of Precincts with 20 or more Profiling Cases

10

Number of Traffic Commands with 20 or More Profiling Cases

4

Number of Traffic Commands with 40 or More Profiling Cases

2

b. NYPD Handling of Substantiated CCRB Cases At trial, the court found that the NYPD failed to impose meaningful discipline when the CCRB determined that officers engaged in unconstitutional stops and frisks. The court’s order requires the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the Department Advocate’s Office (DAO) must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint. The CCRB handles four types of complaints: (1) Excessive or Unnecessary Force, (2) Abuse of Authority (such as an improper stop, question, frisk, search, strip search, vehicle

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stop and search, and refusal to provide name and shield), (3) Discourtesy (for example cursing or using foul language), and (4) Offensive Language (e.g., using slurs about a person’s race, ethnicity, religion, sex, sexual orientation, or physical disability). These types of matters are referred to as FADO allegations (Force, Abuse of Authority, Discourtesy, and Offensive Language). Non-FADO cases are referred by CCRB to IAB or the Office of the Chief of Department (OCD). FADO cases involving more serious or criminal allegations are investigated by both the CCRB and IAB. All complaints against NYPD members of service reported to the CCRB are entered into the CCRB’s complaint tracking system, but only those with a FADO allegation are investigated.
Prior to conducting a full investigation, the CCRB determines if a complaint is suitable for mediation. If it is and both the complainant and subject officer agree to mediate, a mediation session is held to resolve allegations of misconduct. Professionally trained mediators not affiliated with either the NYPD or the CCRB are used. The sessions are confidential and the parties hear each other’s explanations for what occurred. In 2017, there were 417 cases in which both the complainant and officer agreed to mediation. In slightly more than half those cases (213 cases), mediation was attempted, but the complainant did not appear for the mediation session or failed to respond to requests for scheduling. When both parties attended mediation sessions, there was a high success rate. In 2017, the CCRB conducted 226 mediation sessions with 204 cases being successfully mediated (a 90 percent success rate).9
When a case is not suitable for mediation, or if the complainant who initially agreed to mediation is not satisfied with that process and requests an investigation, the case is returned to the Investigations Division. At the conclusion of the investigation, the investigator prepares an
9 The number of cases mediated includes all mediated FADO complaints, not just complaints involving stop and frisk and trespass enforcement.
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investigation report and refers the case findings and disposition recommendations to the CCRB Board. A panel of three board members or the full board reviews cases and makes a finding as to each complaint allegation of misconduct (e.g. substantiated, unfounded, exonerated, unsubstantiated) and, for substantiated findings, makes discipline recommendations to the Police Commissioner, who has the sole authority to impose discipline.
The CCRB can “truncate” and close a case when an investigation could not be completed because there is pending litigation or the complainant is unavailable, is uncooperative, or requests that his or her case be withdrawn. Prior to truncating a case based on unavailable or uncooperative complainants, the CCRB has protocols for delineating steps that should be attempted to try to contact and locate a complainant. If there is video evidence clear enough to make a determination on the merits, the CCRB will not truncate the case when the complainant is unavailable or uncooperative. In 2017, the CCRB received 4,487 cases within its jurisdiction and 2,256 (55%) were truncated. CCRB can also close a case as “Officer Unidentified” if the investigation was unable to identify any of the officers accused of the alleged misconduct. Cases that are fully investigated by the CCRB are closed with one of the following dispositions for each FADO allegation: Substantiated, Unsubstantiated, Unfounded, or Exonerated. The definitions for these dispositions are the same definitions as used by the NYPD. See Section VIII.a above. If the CCRB investigation determines there was other misconduct outside the CCRB’s jurisdiction, the CCRB refers the case to the NYPD for additional action as Other Misconduct Noted (OMN).
Approximately 33 percent of the complaints closed by the CCRB in 2017 were fully investigated (1,349 complaints). Among the complaints received, the number of allegations involving stop, question, frisk and search of persons rose slightly from 871 in 2016 to 903 in 2017. Although the number of these allegations increased, the number of substantiated
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allegations overall declined. The NYPD has provided the monitor team with data regarding substantiated CCRB
complaints from 2014 to August 31, 2018, involving stop, question, frisk and/or search allegations, and the final disposition of those cases by the NYPD. Chart 12 below sets out the complaints from 2014 to August 31, 2018. Among the 102 stop and frisk complaints that the CCRB substantiated and sent to the NYPD in 2017, 32 were substantiated for misconduct that involved only unlawful stop allegations; 25 for only unlawful frisks; six for misconduct in questioning; five for only unlawful searches; and 33 for a combination of stop, question, frisk, and/or search allegations. One 2017 complaint involved only trespass enforcement. Chart 12. Types of Allegations Identified in Substantiated Cases

Allegation Type
Combined SQF and/or Search Stop Only Question Only Frisk Only Search Only Trespass Total

2014
59 50 11 40 19
0 179

2015
94 83 10 59 21
1 268

2016
65 73
8 49 17
0 212

2017
33 32
6 25 5
1 102

2018 – Aug. 31
12 15
2 21
8 0 58

Total
263 253
37 194
70 2
819

When the CCRB substantiates an allegation, the Board makes discipline recommendations that fall within the following categories:

• Charges and Specifications. The subject officer is prosecuted by the CCRB Administrative Prosecution Unit and the discipline recommendation can include termination.
• Command Discipline B. The commanding officer can impose discipline ranging from a reprimand up to ten days loss of vacation.

• Command Discipline A. The commanding officer can impose discipline ranging from a reprimand up to five days loss of vacation.

• Training. The required training will depend on the circumstances of the violation and the history of the officer.

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• Instruction. The officer receives counseling and direction. 1. DAO Request for Reconsideration of CCRB Recommendation
The Department Advocate’s Office (DAO) is the division within the NYPD that receives CCRB findings and recommendations for discipline. In 2014, the NYPD and the CCRB established a new “reconsideration process” in which the DAO can ask the CCRB to reconsider its decision to substantiate an allegation or its recommended discipline. The DAO must state in writing why it is making the reconsideration request. In response, the CCRB can modify its substantiated finding and/or discipline recommendation, or it can decide to maintain the original finding and recommendation. In either situation, the police commissioner makes the final decision on what discipline to impose, if any, after reviewing both the DAO’s and the CCRB’s findings and recommendations.
The monitor team undertook a review of DAO reconsideration requests made in 2017 and in the first six months of 2018 (for substantiated CCRB cases decided in 2015, 2016, and 2017) to determine whether the court’s requirements, set forth above at Section VIII.b, were being met. The monitor team reviewed 51 cases containing stop, question, frisk, or search allegations, involving 88 officers.
The monitor team reviewed the DAO’s reconsideration memoranda and the CCRB’s responses in all 51 cases. Many of the cases involved the DAO’s request that the CCRB reduce its discipline recommendation. Because the DAO was not challenging the disposition, it was clear on the face of the DAO memos that its requests did not present an issue with regard to credibility. However, in eight cases, involving 11 officers, it was necessary to review not only the DAO memo to the CCRB but also the underlying investigative files consisting of witness statements and summaries, NYPD documents (such as radio runs, stop reports, and memo books), and multiple video and audio recordings.
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After reviewing these files and discussing these cases with the NYPD, the monitor

team’s view was that the DAO did not give sufficient deference to the CCRB’s credibility

findings in three cases (involving four officers) out of the eight given additional review.

2. Reconsideration Request Data The NYPD provided the monitor with data regarding substantiated CCRB cases

involving stop, question, frisk, or search allegations, the DAO reconsideration requests, and the

outcomes of those reconsideration requests. The DAO agreed with CCRB’s findings and

recommendations in a majority of the cases in which allegations were substantiated by the

CCRB. However, the rate of agreement decreased from 2014 to 2017. In 2014, the DAO agreed

with the CCRB findings and recommendations in 82 percent of cases. In 2015, the DAO agreed

with 64 percent of the substantiated CCRB cases. In 2016, the rate of agreement was 52 percent;

in 2017, it was 54 percent.

Chart 13. DAO Agreement with CCRB Recommendations, 2014-2017

Year 2014 2015 2016
2017

Substantiated SQF CCRB Cases Sent to NYPD
193
355
222 79
(closed cases)

Cases in Which NYPD Agrees with CCRB Discipline Recommendation (%)
159 (82%)
226 (64%)
115 (52%)
43 (54%)

Cases in Which DAO Requested Reconsideration
20 47 88
11

Cases in Which NYPD Changed Disposition or Discipline Recommendation Without Reconsideration
14
82
19
25

Chart 14. Reconsideration Cases

Year 2014 2015 2016 2017

Total Number of Reconsideration Cases
20 47 88 11

Number of Cases Seeking Reconsideration of Disposition
2 (1 partial)* 22 (7 partial) 48 (9 partial) 10 (4 partial)

Number of Cases Seeking Reconsideration of Discipline Recommendation 19 (1 partial) 32 (7 partial) 49 (9 partial) 5 (4 partial)

* Cases are listed as “partial” if there are multiple allegations and the DAO requests a different reconsideration (disposition or discipline recommendation) for each

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allegation, or if one or more allegations are reconsidered while other allegations in the case are not.

When the DAO requested the CCRB to reconsider its disposition or discipline

recommendation, it agreed with the reconsideration request (on either the findings, the discipline

recommendation, or both) in four cases in 2014, 13 cases in 2015, 13 cases in 2016 and one case

in 2017. When the DAO requested reconsideration but the CCRB maintained its

recommendation and did not change its disposition or discipline recommendation, the DAO

forwarded to the Police Commissioner both the CCRB findings and recommendation and the

DAO recommendation.

In 2014, the Police Commissioner agreed with the DAO in 15 cases in which the DAO

and CCRB disagreed; agreed with the CCRB in one case; and imposed a penalty that was in

between the CCRB’s and the DAO’s recommendations in one case. In 2015, the Police

Commissioner agreed with the DAO recommendation in 27 cases, agreed with the CCRB in

three cases, and disagreed with both recommendations in five cases. In 2016, the Police

Commissioner agreed with the DAO in 46 cases, agreed with the CCRB in 14 cases, and

disagreed with both in 13 cases.

Chart 15. Outcome of Reconsideration Requests 2014

Reconsideration Outcome

CCRB agreed with DAO reconsideration request

CCRB reduced discipline recommendation, but not as far as DAO suggested

CCRB disagreed with DAO reconsideration request, and Police Commissioner

agreed with the CCRB recommendation

CCRB disagreed with DAO reconsideration request and Police Commissioner

agreed with DAO recommendation

Police Commissioner disagreed with both CCRB and DAO recommendations

*

Partial

** 5 Partials

4 11 1*
15** 1

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Chart 16. Outcome of Reconsideration Requests 2015

Reconsideration Outcome CCRB agreed with DAO reconsideration request CCRB reduced discipline recommendation, but not as far as DAO suggested CCRB disagreed with the DAO reconsideration request, and Police Commissioner agreed with the CCRB recommendation CCRB disagreed with DAO reconsideration request and the Police Commissioner agreed with DAO recommendation Police Commissioner disagreed with both CCRB and DAO recommendations

*

2 Partials

** 6 Partials

Chart 17. Outcome of Reconsideration Request 2016

13* 14 3
27** 5

Reconsideration Outcome CCRB agreed with DAO reconsideration request CCRB reduced discipline recommendation, but not as far as DAO suggested CCRB disagreed with DAO reconsideration request, and Police Commissioner agreed with CCRB recommendation CCRB disagreed with DAO reconsideration request and Police Commissioner agreed with DAO recommendation Police Commissioner disagreed with both CCRB and DAO recommendations

13* 4
14**
46*** 13

*

1 Partial

** 5 Partials

*** 13 Partials

In 2017, among 79 cases closed, there were 11 requests from the DAO seeking

reconsideration of CCRB’s disposition or recommended discipline. Of the 11 cases in which the

DAO requested reconsideration, the CCRB agreed to change its discipline recommendation in

one case, agreed to reduce its discipline recommendation but not as far as the DAO requested in

a second, and either declined to reconsider or maintained its recommendation in the other nine

cases. After reviewing both the CCRB recommendations and the DAO’s recommendation, the

Police Commissioner agreed with the DAO in seven of the ten matters and agreed with the

CCRB in one case. In two matters, the Police Commissioner disagreed with both the DAO and

the CCRB regarding the final disposition of the case.

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Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 61 of 67

Chart 18. Outcome of Reconsideration Request 2017

Reconsideration Outcome

CCRB agreed with DAO reconsideration request

1

CCRB reduced discipline recommendation, but not as far as the DAO suggested

1

CCRB disagreed with the DAO reconsideration request, and the Police Commissioner agreed 1

with the CCRB recommendation

CCRB disagreed with the DAO reconsideration request and the Police Commissioner agreed 7

with the DAO recommendation

Police Commissioner disagreed with both the CCRB and the DAO recommendations

2

3. NYPD Discipline and Penalties Imposed The graphs and charts below illustrate the final discipline and penalties imposed for substantiated CCRB cases sent to the NYPD in 2014 through 2017. The data show that the final discipline and penalties imposed have declined over these years. This decline resulted from (1) changes in the initial CCRB recommendations made to the NYPD and (2) the final disposition and penalties imposed by the NYPD. The monitor will be evaluating the appropriateness of these outcomes in a future report. Figure 2. Discipline and Penalties for Substantiated Cases Sent to NYPD in 2014

NYPD Penalties 2014

2%

4% 7%

2% 7%

28%

17%

3%

10%

20%

Days Lost After Trial Or Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty Case Dismissed No Disciplinary Action Case Closed Administratively

57

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 62 of 67

Discipline
Losing Vacation Days After Trial or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty Case Dismissed No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases Days or Hours Lost

51

270 Days Lost

6

25 Days Lost

17

1 Day Lost, 1 Hour Lost

35

31

4

12

3

13

7

179

Figure 3. Discipline and Penalties for Substantiated Cases Sent to NYPD in 2015

NYPD Penalties 2015
0% 4% 4% 12%
4% 6%
10%
9% 25%
26%

Days Lost After Trial Or Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty Case Dismissed No Disciplinary Action Case Closed Administratively

Discipline
Losing Vacation Days After Trial or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty

Number of Cases
31
17 67 70 23 27 11

Days or Hours Lost
239 Days Lost 6 Days Lost; 1 Hour Lost 25 Hours Lost

58

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 63 of 67

Discipline
Case Dismissed No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases
1 10 11 268

Days or Hours Lost

Figure 4. Discipline and Penalties for Substantiated Cases Sent to NYPD in 2016

NYPD Penalties 2016

4%

0%

4% 7% 8%

11% 24%
3%

39%

Days Lost After Trial Or Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty Case Dismissed No Disciplinary Action

Discipline
Losing Vacation Days After Trial or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases
14
8 49 82
7 23 0 17 9 212

Days or Hours Lost
121 Days Lost 4 Days Lost; 10 Hours Lost 4 Days Lost; 6 Hours Lost

59

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 64 of 67

Figure 5. Discipline and Penalties for Substantiated Cases Sent to NYPD in 2017

NYPD Penalties 2017
1% 2% 10% 0% 8%
24% 9% 4%
42%

Days Lost After Trial Or Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty Case Dismissed No Disciplinary Action

Discipline
Losing Vacation Days After Trial Or Through Negotiated Plea Command Discipline B Command Discipline A Training Only Instructions Only Training and Instructions Member Found Not Guilty No Disciplinary Action Case Closed Administratively Total Closed Cases

Number of Cases
1
2 19 33
3 7 0 6 8 79

Days or Hours Lost
7 Days Lost
No Days or Hours Lost 1 Day Lost; 8 Hours Lost

Chart 19. Comparison of Recommended Penalties to Final Disposition

CCRB Recommended

Penalty Type in 2017 Closed Cases Discipline

Command Discipline B

15

Command Discipline A

35

Training

20

Instructions

3

Charges and Specifications

4

Final Penalty 2 (2 resigned before penalty imposed) 19 (1 resigned before penalty imposed) 33 3 1 (2 retired before penalty imposed)

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Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 65 of 67

Penalty Type in 2017 Closed Cases No Disciplinary Action Case Closed Administratively Total

CCRB Recommended Discipline
0 2* 79

Final Penalty 6 8 (6 retired/resigned) 79

*CCRB changed its recommended disposition before reconsideration request.

4. Other Misconduct Noted (OMN) If the CCRB, in the course of its complaint investigation, identifies misconduct outside of

its jurisdiction, the Board refers the misconduct to the NYPD for investigation and any additional

action. These cases are referred to as Other Misconduct Noted, or OMN, cases. For example, if

the CCRB investigates a complaint involving a stop, frisk, or search, and determines that the

subject member or members made a Terry stop but did not complete a stop report for the

encounter, the CCRB refers the case to the NYPD as OMN. The CCRB would also make an

OMN referral where the investigation determines that a member of service may have made a

false official statement in a case involving stop, frisk, or search allegations. The Internal Affairs

Bureau logs these cases, assigns them to the command for investigation, and tracks the

outcomes. Below are the outcomes of the NYPD’s investigations of CCRB’s OMN referrals for

completed CCRB cases from 2015 through July 2018.

Chart 20. Outcomes for Failure to Complete Stop Report (OMN Cases)

Command Discipline Training Instructions Minor Procedural Violation Substantiated* Sub-NDA NDA-DUP Exonerated Unfounded

2015 16 0 31
0
0 0 0 2 0

2016 29% 18
0% 15 56% 56

0%

3

0%

0

0%

1

0% 10

4%

4

0%

2

2017

16% 10

13%

1

48% 24

3%

3

0%

1

1%

7

9%

3

3%

2

2%

4

2018 13% 0
1% 0 32% 0
4% 0
1% 13 9% 0 4% 0 3% 6 5% 0

Total 0% 44 14% 0% 16 5% 0% 111 36%

0%

6 2%

22% 14 5%

0%

8 3%

0% 13 4%

10% 14 5%

0%

6 2%

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Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 66 of 67

Unsubstantiated Other** Still Open

2015 0 2 4
55

0% 4% 7% 100%

2016 3 1 3
116

3% 1% 3% 100%

2017 3 1
17 76

4% 1% 22% 100%

2018 10 12 19 60

17% 20% 32% 100%

Total 16 16 43 307

5% 5% 14% 100%

Filed

1

1

0

0

2

Info/Intel

0

0

0

8

8

No Disposition

0

0

0

2

2

No Record Found

1

0

1

2

4

* Substantiated disposition, but no penalty listed. ** Includes the following dispositions: Filed (2), Info/Intel (8), No Disposition (2),
No Record Found (4).

IX. Joint Remedial Process

On May 15, 2018, the court-appointed facilitator, Hon. Ariel Belen, filed his Final Report

and Recommendations on the Joint Remedial Process with the court. ECF No. 597. Judge Belen

recommended that the court order 14 specific reforms. As noted in Section V.d, the court

ordered pilot programs to assess the advisability of ordering two of the facilitator’s

recommendations: (1) electronic documention of Level 1 and 2 investigative encounters; and (2)

BWC activation to record Level 1 encounters. ECF Nos. 619 and 634. As noted in Section

VII.b, the court issued an order relating to a third recommendation, directing the NYPD to

develop and 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.” ECF No. 662.

X. Conclusion

During the course of this monitorship, the NYPD has made many required changes to its

policies, supervision, training, auditing, performance measurement, and handling of complaints

and discipline. Most of the court-ordered policy changes have been made and the training

62

Case 1:08-cv-01034-AT Document 680-1 Filed 01/11/19 Page 67 of 67 courses and materials related to those policies have been developed and approved by the court. Body-worn cameras have been launched in the majority of commands. And the Department has instituted improved auditing methods that better address the court-ordered reforms. A significant portion of the monitor’s task is now to assess whether these changes are being implemented in the field so that the instances of unconstitutional stops and frisks are reduced, and, when such events occur, they are identified and the members corrected. Addressing the persistent problem of underreporting of stops and the failure of supervisors to deal with that underreporting and the quality of the stop reports that are filed must be part of that effort, and the monitor is hopeful that the Department’s RISKS review program will move the NYPD toward that goal. Much work has been done in the course of this monitorship, and the Department is planning more, such as the RISKS review discussed in Section II.b.1. Going forward, the monitor will have to determine how those efforts translate into constitutional and respectful policing in the street and submit his conclusions to the court.
63

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 1 of 17
APPENDIX 1

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 2 of 17

Ligon Monitoring Plan

Draft 10/2/18

Stipulation Para. No. E.1.a

Stipulation Para. - Full Text
NYPD officers must have at least an “objective credible reason” to approach a person in or around a TAP building to initiate a Level 1 encounter, as defined in People v. DeBour, 40 N.Y.2d 210 (1976), and its progeny. A person’s mere presence in or near, entry into, or exit out of a TAP Building does not constitute an objective credible reason to approach;

Stipulation Para. Short Summary OCR for Level 1 encounters

Data/Documents
BWC videos of Interior Patrol; TCFS

E.1.b

NYPD officers who request information from any person in or around a TAP Building, during a Level 1 encounter, must not question that person in an accusatory manner, or create a situation (either by words or actions) that would cause a reasonable person to believe that s/he cannot terminate the encounter and walk away;

No pointed questions or stops during Level 1 encounter

BWC videos of Interior Patrols; TCFS

Monitor Action Status/Timeline

Review of sample videos: monitor team to conduct “saturation sample” of 217 BWC videos of interior patrolsTAP from 2Q2018 to develop sampling methodology. Review of TCFS.
Review of sample videos, TCFS

Team to develop sampling methodology by Jan. 1, 2019; review next sample by April 1, 2019.
Team to develop methodology to sample TCFS by Nov. 1, 2018; obtain and review of TCFS sample by Feb. 1 Same as above

1

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 3 of 17

Stipulation Para. No. E.1.c
E.1.d

Stipulation Para. - Full Text
NYPD officers must have a “founded suspicion” to approach a person in or around a TAP Building to engage in a Level 2 encounter, as defined in People v. DeBour, 40 N.Y.2d 210 (1976), and its progeny. A person’s mere presence in or near, entry into, or exit out of a TAP Building does not constitute founded suspicion of criminality; NYPD officers engaged in a Level 2 encounter may ask a person in or around a TAP Building pointed or accusatory questions, but officers may not detain a person or otherwise create a situation (by words or actions) where a reasonable person would believe that s/he cannot terminate the encounter and walk away ;

Stipulation Para. Short Summary Founded suspicion for Level 2 encounters
No detention at Level 2 encounters

Data/Documents
BWC videos of Interior Patrols and investigative encounters at TAP buildings; TCFS
Same as above

Monitor Action Review of sample videos, TCFS
Same as above

Status/Timeline Same
Same

2

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 4 of 17

Stipulation Para. No. E.1.e

Stipulation Para. - Full Text
NYPD officers must have “reasonable suspicion” of a felony or Penal Law misdemeanor to conduct a Level 3 stop within the meaning of People v. DeBour, 40 N.Y.2d 210 (1976), and its progeny, or a stop within the meaning of Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, in or around a TAP Building;

Stipulation Para. Short Summary RS for Level 3 stops

Data/Documents
BWC videos; Stop Reports at TAP locations; QAD audits; memo book entries; arrest reports at TAP locations; TCFS; DPs at TAP locations

Monitor Action
Review of sample BWC videos; audits of TAP Stop Reports; review of QAD audits.
Review of TAP DPs and NYPD follow-up;

Review of TCFS

Status/Timeline
Same as above for BWC review.
Review of stop reports at TAP locations by April 1
Review of TAP DP’s by April 1

Monitor team to work with NYPD to identify stops outside TAP buildings

TCFS review by Feb 1

E.1.f

The following circumstances, or any

items not reaching Same as above

Same as above

Same

combinations thereof, are insufficient to

RS

constitute “reasonable suspicion:”

i. a person’s mere presence in or near, entry into, or exit out of a TAP Building;
ii. a person’s silence or refusal to provide information or identification when questioned by the police; or
iii. a person’s passing through a door of a TAP Building that has a broken lock or that has been propped open;

3

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 5 of 17

Stipulation Para. No. E.1.g
E.1.h

Stipulation Para. - Full Text
NYPD officers must complete a standardized form to document every Level 3 stop conducted in or around a TAP Building. For as long as the NYPD requires officers to complete the Stop Report, PD 383-151 (0316), under Docket Entry No. 247, attached as Exhibit A, or its electronic equivalent, to document the circumstances of stops, NYPD officers must complete that form for every Level 3 stop conducted in or around a TAP Building; If the NYPD adopts a different written report documenting the circumstances of stops, NYPD officers must complete a report for every Level 3 stop conducted in or around a TAP building, or its electronic equivalent, that records basic information, including the following: whether the stop occurred inside or outside the TAP building; the crime suspected by the officer when the stop was initiated; the stop location; the time and duration of the stop; the length of any prior observation of the stopped individual, if any; the factors that contributed to suspicion of the stopped person; actions taken to stop and/or detain the person prior to arrest; whether the stopped individual was ultimately

Stipulation Para. Short Summary Stop Reports for stops

Data/Documents
BWC videos of interior patrols; QAD PIE audits; QAD Rand Audits

If new stop report NYPD policies adopted

Monitor Action Review of videos; QAD audits
Monitor review of new stop report

Status/Timeline Review of QAD PIE and RAND audits each quarter BWC video review as above
NA

4

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 6 of 17

Stipulation Para. No. E.1.h (continued)

Stipulation Para. - Full Text
frisked, searched, summonsed or arrested; whether other individuals were stopped during the same investigative encounter; whether the reason for the stop was explained to the stopped individual; demographic information about the individual stopped, including race, sex, and age; the identification produced by the stopped individual, if any was provided; information about any contraband or weapons recovered during the stop; and identifying information regarding the officer who conducted the stop. This report must also include a narrative section where the officer must record, in sum and substance, in his/her own words, the basis for the stop, and separately explain in sum and substance, why a pat down, frisk or search was performed, if those actions occurred, and the basis for believing the person was armed and dangerous.

Stipulation Para. - Data/Documents Short Summary

Monitor Action

Status/Timeline

5

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 7 of 17

Stipulation Para. No. E.1.i

Stipulation Para. - Full Text
NYPD officers must have “probable cause” of criminal activity in order to make an arrest of any person in or around a TAP Building and NYPD officers must have -probable cause” of non-criminal violations committed in their presence or of criminal activity in order to issue a summons to any person in or around a TAP Building;

Stipulation Para. Short Summary Probable cause required for arrests and summonses at TAP buildings

Data/Documents
BWC videos of arrests at TAP buildings, interior patrols; arrest reports, affidavits, TCFS and possibly a sample of associated 61s; DPs of arrests at TAP buildings; summonses database

Monitor Action
Review of videos of arrests at TAP buildings; review of arrest reports and TCFS; review of DPs
Possibly review a sample of 61s;
Review of sample of C summonses at TAP locations

Status/Timeline
Develop methodology for BWC sample of arrests at TAP buildings by Jan. 1
Timeline for review of TCFS and DPs as above in E.1.e
Request C Summons from NYPD by 10/10/18; review by April 1.

6

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 8 of 17

Stipulation Para. No. E.1.j
E.1.k
E.1.l

Stipulation Para. - Full Text
NYPD officers must complete a Trespass Crimes Fact Sheet (PD 351-144), under Docket Entry No. 249, attached as Exhibit B, or its electronic equivalent, for every trespass arrest made in or around a TAP Building prior to the arraignment of the defendant in the criminal case in order to document the circumstances leading to the officer’s encounter with the defendant, the officer’s investigation into the defendant’s authority to be present in the building, any statements made by the defendant, the basis of the officer’s belief that the defendant did not have authority to be present in the building, and any arrest evidence or contraband recovered by the officer; With the exception of consent frisks, no NYPD officer shall conduct a frisk of a person encountered in or around a TAP Building, unless the officer reasonably suspects that the person encountered is armed and dangerous, and such frisk extends no further than is necessary for the discovery of suspected weapons; With the exception of consent searches, no NYPD officer shall conduct a search extending beyond a frisk of a person, encountered in or around a TAP Building, unless the officer is conducting a search incident to arrest, or a search of an area that was frisked by an officer, and that frisk revealed an object that the officer reasonably believed to be a weapon;

Stipulation Para. Short Summary TCFS
Frisk only with RS person is armed and dangerous
Searches

Data/Documents TCFS; trespass arrests at TAP locations
BWC videos; stop reports; memo book entries; arrest reports; DPs
Same as above

Monitor Action Review sample of TCFS, trespass arrests Review QAD audits of trespass arrests to determine if arrests had associated TCFS
Review of videos and stop reports, arrest reports, DPs (same as E.1.e)
Same as above

Status/Timeline Timeline for TCFS review as above in E.1.e
Same as E.1.e
Same

7

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 9 of 17

Stipulation Para. No. E.1.m
F.1
F.2

Stipulation Para. - Full Text
If NYPD officers establish posts inside or near the entrances of TAP buildings, they may conduct investigative encounters of the vast majority of the persons who enter or exit such buildings only if the officers have an objective credible reason for each person the officer engages in a Level 1 encounter, or founded suspicion for each person the officer engages in a Level 2 encounter, or reasonable suspicion for each person the officer engages in a Level 3 encounter. Plaintiffs and the City have extensively negotiated the terms of Section 212-59 of the NYPD’s Patrol Guide and have agreed to revisions that will promote constitutional interactions between NYPD officers and persons encountered during interior patrols in TAP Buildings. The revised provisions are as specified in the 5-20-16 PG 212-59 AND PG 208-03 Draft Interim Order approved by the Court, under Docket Entry No. 249, and attached as Exhibit C to this Stipulation. If it has not already done so, the NYPD shall promulgate the revised version of PG 212-59 within 30 days of the Final Approval Date. The revised version of PG 212-59 shall take effect upon promulgation.

Stipulation Para. Short Summary If officers establish posts in or near TAP buildings, must comply with DeBour
Preamble re P.G. 212.59
P.G. 212-59 to be promulgated

Data/Documents Same data as E.1.a.
NA
NYPD policies; Finest Message

Monitor Action Same as E.1.a
NA
Complete

Status/Timeline

8

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 10 of 17

Stipulation Para. No. F.3
F.3 (continued)
G.1

Stipulation Para. - Full Text
With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend PG 212-59 or to replace it entirely with a different written policy during the CourtOrdered Monitoring period, it shall first submit any such revision or alternative policy to Class Counsel and the Monitor, and provide them 14 days to comment. After the CourtOrdered Monitoring period concludes, but before this Court’s jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend PG 212-59 or to replace it entirely with a different written policy, it shall first submit any such revision or alternative policy to Class Counsel and provide them 14 days to comment. If the NYPD makes formatting changes that are nonsubstantive to PG 212-59, it must provide a copy of the revised version of PG 212-59 to Class Counsel within 14 days. Any amended policy or substitute policy must comply with the principles and standards set forth in Section E of this Stipulation. When NYPD officers effect an arrest for trespass in or around a TAP building, the officers shall complete NYPD’s Trespass Crimes Fact Sheet, or its electronic equivalent, prior to the arraignment of the defendant in the criminal case.

Stipulation Para. Short Summary Changes to P.G. 212.59 must go through monitor process
TCFS required for trespass arrest

Data/Documents NYPD notice, procedures
TCFS; QAD audits of TCFS; arrest data

Monitor Action Review of notice if any further changes are made
Review of TCFS, QAD audits; sample of trespass arrests at TAP buildings

Status/Timeline
Same as E.1.i and j

9

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 11 of 17

Stipulation Para. No. G.2
G.3
G.4

Stipulation Para. - Full Text
The revised version of the Trespass Crimes Fact Sheet, to which both Plaintiffs and the City agree, is attached to this Stipulation as Exhibit B. If it has not already done so, the NYPD shall promulgate and begin using the Trespass Crimes Fact Sheet within 30 days of the Final Approval Date. With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the Trespass Crimes Fact Sheet or to replace it entirely with a different form during the Court-Ordered Monitoring period, it shall first submit any such revisions or alternative form to Class Counsel and the Monitor and provide them 14 days to comment. After the Court-Ordered Monitoring period concludes, but before this Court’s jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the Trespass Crimes Fact Sheet or to replace it entirely with a different form, it shall first submit any such revision or alternative form to Class Counsel and provide them 14 days to comment. If the NYPD makes formatting changes that are nonsubstantive to the Trespass Crimes Fact Sheet, it must provide a copy of the revised version of the Trespass Crimes Fact Sheet to Class Counsel within 14 days. Any amended form must comply with the principles and standards set forth in Paragraph E(1)(j) of this Stipulation.

Stipulation Para. Short Summary TCFS attached
TCFS promulgated
TCFS changes must go through monitor process

Data/Documents NA
TCFS; NYPD procedures
NYPD notice, procedures

Monitor Action NA
Complete
Review of notice

10

Status/Timeline

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 12 of 17

Stipulation Para. No. G.5

Stipulation Para. - Full Text
With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the Stop, Question and Frisk Worksheet, which may also be referred to as a Stop Report or “UF 250,” or replace it entirely with a different form during the Court-Ordered Monitoring period, it shall first submit any such revision or alternative form to the Class Counsel and the Monitor and provide them with 14 days to comment. After the CourtOrdered Monitoring period concludes, but before this Court’s jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the report used to document stops in or around TAP Buildings with a different form, it shall first submit any such revision or alternative form to Class Counsel and provide them with 14 days to comment. If the NYPD makes formatting changes that are non-substantive to the report used to document stops, it must provide a copy of the revised version of such report to Class Counsel within 14 days. Any amended or substitute form must satisfy the requirements of Paragraph E (1)(g).

Stipulation Para. Short Summary Changes to Stop Report must go through monitor process

Data/Documents
NYPD notice, procedures

Monitor Action Review of notice

Status/Timeline

11

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 13 of 17

Stipulation Para. No. H.1
H.2.a

Stipulation Para. - Full Text
Plaintiffs and the City have extensively negotiated the terms of the NYPD Administrative Guide Procedure 303-27, entitled “Trespass Affidavit Program” and have agreed to revisions to ensure proper administration of TAP. The revised version of the NYPD Administrative Guide Procedure 303-27 entitled “Trespass Affidavit Program”, to which both Plaintiffs and the City agree, is as specified in the 8-4-16 Draft Interim Order attached as Exhibit D to this Stipulation. The NYPD shall not initially enroll a building in TAP, unless there have been recent incidents, including but not limited to, criminal activity and/or complaints at or near a residential multiple dwelling building in the preceding 12 months, and the building’s owner or owner’s authorized agent indicates in substance, the following: that he or she will conspicuously post signs indicating that trespassing is prohibited and that only residents and invited guests are authorized to be inside the building, and that the building’s owner or owner’s authorized agent will communicate to all tenants and management personnel that police officers will be periodically entering and patrolling the building;

Stipulation Para. Short Summary Admin Guide Procedures 303-27 attached
Recent incidents in 12 months and owner’s pledges needed to enroll building in TAP

Data/Documents NA
Owner’s Affidavits; NYPD TAP enrollment forms; TAP database

Monitor Action NA

Status/Timeline

Review sample of enrollment forms, Owner’s affidavits for new TAP buildings

NYPD to provide enrollment forms by 10/12/18

Review of TAP database, NYPD cleanout of old TAP locations

Team review of enrollment forms by Jan. 1, 2019

12

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 14 of 17

Stipulation Para. No. H.2.b
H.2.c
H.2.d

Stipulation Para. - Full Text
Before the expiration of a building’s first six months in TAP, the precinct Crime Prevention Officer, or another Member of Service designated by the Commanding Officer, will evaluate whether to renew a building’s participation in the program for another six months, based on recent incidents, including but not limited to criminal activity and complaints in the preceding six months; Before the expiration of a building’s second consecutive six months in TAP, the precinct Commanding Officer will determine whether to renew a building’s participation in the program for another six months, based on recent incidents, including but not limited to criminal activity and complaints in the preceding six months. The Office of the Borough Commander must be notified when it has been determined that there is a need for a building to remain in TAP beyond one year. If the Borough Commander determines that a building should remain in TAP beyond one year, the Borough Commander shall make a recommendation to the Office of the Chief of Patrol, which will issue final approval for the renewal.

Stipulation Para. Short Summary Crime Prevention Officer to evaluate TAP renewal within 6 months
CO to determine renewal at 12 months
Office of Borough Commander to be notified if building renewed for TAP over 12 months; Borough Commander to recommend to Office of Chief of Patrol, which issues final approval

Data/Documents
P.G. 303-27; NYPD enrollment/renewal forms; TAP database
P.G. 303-27; TAP enrollment/renewal forms; TAP database
P.G. 303-27; TAP database; enrollment, renewal forms

Monitor Action
Identify sample of buildings just over first 6 months, review enrollment forms for CPO’s renewal. Focus group of CPO’s
Identify sample of buildings over 12 months, review enrollment forms for CO’s renewal.
Identify TAP renewals after 1 year, ensure Chief of Patrol signoff

Status/Timeline
Review of reenrollment by April 1.
Review enrollment forms for 12 month buildings by April 1
Same as above

13

Case 1:08-cv-01034-AT Document 680-2 Filed 01/11/19 Page 15 of 17

Stipulation Para. No. H.3
H.4

Stipulation Para. - Full Text
The NYPD shall promulgate the revised version of the NYPD Administrative Guide Procedure 303-27 entitled “Trespass Affidavit Program” within 30 days of the Final Approval Date. With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend NYPD Administrative Guide Procedure 303-27 or the TAP Owner’s Affidavit Form 651-51 or to replace either document entirely with a different written policy or form, during the Court-Ordered Monitoring period, it shall first submit any such revision or alternative policy to Class Counsel and the Monitor and provide them with 14 days to comment. After the CourtOrdered Monitoring period concludes, but before this Court’s jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend NYPD Administrative Guide Procedure 303-27 or the TAP Owner’s Affidavit, or replace either document entirely, it shall first submit any such revision or alternative policy or form to Class Counsel and provide them 14 days to comment. If the NYPD makes

Stipulation Para. Short Summary A.G. 303-27 to be promulgated

Data/Documents
NYPD procedures, Finest message

Monitor Action Complete

Changes to A.G. 303-27 to go through monitor process

NYPD notice, procedures

Review of notice if there are further changes

Status/Timeline

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Stipulation Para. No. H.4 (continued)
I.1

Stipulation Para. - Full Text
formatting changes that are non-substantive to NYPD Administrative Guide Procedure 30327 or the TAP Owner’s Affidavit Form 65151, it must provide a copy of the revised version of the document to Class Counsel within 14 days. Any amended policy, substitute policy, or form must comply with the standards identified in Paragraphs 2(a) – (d) of this section. The NYPD will ensure that every member of the NYPD who engages in enforcement activity in or around TAP Buildings receives training in the standards identified in Section E of this Stipulation. This training and a timeline for its implementation will be developed through the Court-Ordered Monitoring process and will incorporate various forms of training content into the NYPD’s recruit, in-service, and promotional training programs. Such training may include written material, role play scenarios, video programs, and other appropriate methods that reflect the standards identified in Section E of this Stipulation.

Stipulation Para. Short Summary
NYPD members to be trained on E.1 standards

Data/Documents
NYPD training videos; SQF inservice training materials; NYPD training records

Monitor Action
Monitor review of training materials, observations of training. Meet with focus group of CPOs

Status/Timeline
Ongoing review of training along with Floyd monitoring

15

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Stipulation Para. No. I.2

Stipulation Para. - Full Text
The NYPD will ensure that every member of the NYPD who is involved in the administration of TAP is trained on the standards identified in Section H of this Stipulation. This training, and a timeline for its implementation, will be developed through the Court-Ordered Monitoring process.

Stipulation Para. Short Summary NYPD members involved in TAP administration trained on Section H standards

Data/Documents
Information regarding NYPD training, forms, records of meetings or trainings

I.3

Following promulgation of the revised training Changes in training NYPD notice,

materials discussed in Paragraphs I(1) and (2), must go through revised training

if the NYPD wishes to amend the training or monitor process materials

to replace it entirely during the Court-Ordered

Monitoring period, it shall first submit any

such revisions or alternative materials to Class

Counsel and the Monitor, and provide them 14

days to comment. After the Court-Ordered

Monitoring period concludes, but before this

Court’s jurisdiction in this matter terminates, if

the NYPD wishes to amend or to replace

entirely, any of the revised training materials

discussed in Paragraphs 1(1) and (2), it shall

first submit any such revision or alternative

materials to Class Counsel and provide them

14 days to comment. Any such revised

training materials must reflect the standards

identified in Section E of this Stipulation.

Monitor Action Status/Timeline

Monitor review of information on training, focus groups of CPOs
Review of notice if any further changes

Focus group of CPOs by April 1.
Obtain calendar dates from NYPD of RMB’s meetings with Patrol Boroughs and CPOs

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APPENDIX 2

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OUTLINE OF PROPOSED PILOT STUDY FOR COURT-ORDERED PILOTS ON DOCUMENTING POLICE-CITIZEN LEVEL 1 AND LEVEL 2 ENCOUNTERS AND
ACTIVATION OF BWCs FOR LEVEL-1 ENCOUNTERS November 9, 2018
This document outlines a design for a pilot program that would address the court’s orders for an evaluation of the Facilitator’s recommendations to (a) document police encounters at DeBour Level 1 and Level 2, and (b) require officers to activate BWCs during Level 1 encounters. The proposed pilot would use systematic social observations–in other words, trained observers would ride along with officers and collect data. It is anticipated that the pilot would begin in April 2019. Overall, the proposed pilot is intended to inform the court on the impact of implementing one or both of these changes.
This pilot will be conducted in a limited number of precincts and PSAs. It will provide information that can help guide the court’s decisions about what a department-wide set of policies regarding documentation and mandatory BWC activation should be. The information generated by this study should increase the chances that the department-wide policies, when implemented, will be most effective, feasible, and well-executed.
The study would examine four major impacts:
1. Inappropriately initiated police encounters. To what extent are police initiating L1, L2, and L3 encounters without appropriate levels of knowledge or suspicion? How does this vary according to whether documentation is required for all levels of police encounters–condition (a) above, or whether officers are required to activate BWCs during L1 encounters–condition (b) above?
2. Undocumented L3 encounters. To what extent are police not documenting L3 encounters? How does this vary according to conditions a and b above?
3. Police administrative workload. What is the police administrative workload? How does this vary according to conditions (a) and (b) above? An assessment of workload would also examine any opportunity costs in terms of potential impact upon public safety.
4. Fourth and Fourteenth Amendment assessment. Would documentation or BWC recording provide useful data in assessing Fourth and Fourteenth Amendment violations?
In addition to the above impacts, the following questions raised by the court orders will be considered:
5. How frequently do encounters occur at each level? 6. How frequently do L1 and L2 encounters escalate to higher levels? 7. Are there encounters for which recording would not provide benefits (e.g., encounters not
involving an investigative or law enforcement purpose), such that privacy concerns might outweigh any justification for recording? 8. How, if at all, does the video recording of citizens in L1 encounters affect citizens’ orientation toward the police?
To make for a manageable study that can be conducted in a reasonable time frame with reasonable resources, the monitor’s team proposes an evaluation design that considers four possible conditions, which are summarized below and in the following table.

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Condition #1 o Follow Patrol Guide procedures; no changes in policy o Observer ride-along with members of the service
Condition #2 o Follow Patrol Guide procedures EXCEPT members of the service will activate BWCs for Level 1 DeBour encounters in addition to the situations where BWC activation is currently required o Observer ride-along with members of the service
Condition #3 o Follow Patrol Guide procedures EXCEPT members of the service will document Level 1 and Level 2 encounters electronically by preparing an Investigative Encounters Worksheet and submitting it at the end of each tour. Negative reports are required o Observer ride-along with members of the service
Condition #4 o Follow Patrol Guide procedures EXCEPT members of the service will activate BWCs for Level 1 DeBour encounters in addition to the situations where BWC activation is currently required o Members of service will document Level 1 and Level 2 encounters electronically by preparing an Investigative Encounters Worksheet and submitting it at the end of each tour. Negative reports are required o Observer ride-along with members of the service

No BWC change 1

No Documentation
Change

Follow current Patrol Guide Procedures; no changes in policy.

Observer ride-alongs with members of the service.

3

Change in Documentation

Follow Patrol Guide procedures for BWC activation.

Members of the service will document L1 and L2 encounters electronically.

Change in BWC 2
Follow Patrol Guide procedures except members of the service will activate BWCs for L1 DeBour encounters in addition to situations when BWC activation is currently required.
Observer ride-alongs with members of the service.
4
Follow BWC Patrol Guide procedures except members of the service will activate BWCs for L1 DeBour encounters in addition to the situations in which BWC activation is currently required; and

2

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Members of the service prepare an Investigative Encounters Worksheet to submit at end of each tour. Negative reports required.
Observer ride-alongs with members of the service.

members of the service will document L1 and L2 encounters electronically.
Members of the service prepare an Investigative Encounters Worksheet to submit at the end of each tour. Negative reports required.

Observer ride-alongs with members of the service.

The proposed pilot study would observe officers operating under the four different conditions identified in the above table and measure outcomes under each condition. Comparison of the four conditions would enable the formation of judgments about the likely consequences of adopting each possible combination of documentation/BWC option under consideration.

Observations of the police encounters with the public would occur in a range of police units that frequently engage with the public, the same set of units for each of the four conditions:
• Precinct officers assigned to RMP duties • Precinct anti-crime teams (plainclothes) • Police Service Area (PSA) Housing officers performing interior vertical patrols
Precincts will be stratified by level of activity and randomly assigned to each of the four conditions.
Precinct two-officer uniformed patrol. Three precincts would be assigned to each condition outlined in the above table: one precinct with a lower than average level of police-citizen contact, one with an average level of police-citizen contact, and one with a high level of police-citizen contact.1 In each of the three selected precincts, field observers would conduct eight-hour shift observations with a randomly selected two-officer uniformed patrol unit on each of three work shifts (first, second, and third platoons). There would be two observation sessions per work shift. Thus, for each of the four conditions, 18 uniformed patrol-unit observation sessions would be conducted, for a total of 72 sessions across all four treatment conditions
Precinct anti-crime teams. These plainclothes units typically operate during two shift periods: 10am–6pm and 6pm–2am. They are expected to engage in more frequent Level 2 and 3 encounters than would officers on uniformed patrol. Observations of anti-crime officers would be conducted in the same precincts selected for observation of uniformed patrol units (three precincts per treatment condition). In each precinct, field observers would conduct two eighthour shift observations on each of the two work shifts. In the event that more than one anti-crime team is operating (separately), the observed team will be randomly selected. Thus, for each of the

1 This could be determined from department tallies of workload indicators, such as calls for service and staffing levels (i.e., calls for service per full-time patrol officer).
3

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four conditions, 12 full-shift anti-crime unit observations would be conducted, for a total of 48 sessions across all four treatment conditions.
PSA officers performing interior patrols. These units operate under nine Police Service Area commands, not precinct commands. Each PSA covers multiple precincts. Given the greater similarity of Public Housing patrol in terms of workload and service conditions for interior patrol, PSAs will not be stratified by workload. One PSA will be selected and assigned to each of the four service conditions. The housing units selected for observation will be matched as closely as possible for level of workload and then randomly assigned to treatment conditions (probably mid-range in workload level). Because conditions may vary according to work shift, units assigned to perform vertical patrols will be observed on each work shift (first, second, and third platoons). To observe a sufficient number of citizen encounters, observers will conduct four observation sessions per shift (three shifts) in each of the four PSAs selected. Thus, for each of the four conditions, 12 full observation sessions will be conducted in each of the selected PSAs, a total of 48 sessions across all four treatment conditions.
The total number of field observation sessions conducted is thus broken down as follows:
• Precinct two-officer uniformed patrol: three precincts (by low, medium, and high levels of activity) x six work shifts (two observations per platoon) x four treatment conditions = 72 observation sessions
• Precinct anti-crime teams: three precincts (same as uniformed patrol) x four work shifts (two shifts observed twice) x four treatment conditions = 48 observation sessions
• Public Service Area interior patrols: three work shifts x four observations per shift x four treatment conditions (one PSA for each condition) = 48 observation sessions
• Total number of observation sessions: 1682
Numbers of Encounters Observed
It is difficult to predict how many police-citizen contacts of interest (all levels) will be generated. Based on consultation with NYPD, experience suggests that the numbers fluctuate considerably by geographic area and time of day, the average ranging perhaps from as many as 10-20 contacts per eight-hour shift. Based on prior systematic observational studies in other police departments (Parks et al. 1998:2-25), the average across all eight-hour shifts may be around 12-14 contacts (excluding on-scene, citizen-initiated contacts). A reasonable estimate would predict an average of 12 citizen contacts per shift, but to be even more conservative, we will assume only nine contacts per shift across all observed police units. A rate of nine citizen contacts per shift across all observed units means that 168 eight-hour shifts would yield 1,512 observed contacts. On average there would be 378 citizen contacts per treatment condition, although this could vary, especially if the treatment condition affected the proclivity of officers to initiate encounters.
Based on a sample size of 1,512 (378 per treatment condition), the study would have 80% power with a significance level of 0.05 to detect small effect-size differences between the four conditions (differences of 0.08 standard deviations) based on Cohen’s effect-size measure F
2 The distribution of the 168 observation sessions across these department units does not reflect the actual distribution of officers in the department. Statistical weighting can be used in the analysis to make appropriate adjustments where department-wide estimates are desired.
4

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(Cohen, 1988). Power calculations were conducted using STATA version 15.0.3.3 The power will increase to detect smaller effect sizes by including adjustments for clustering observations within the same precincts and shifts.
If an extraordinary event were to affect significantly the unit selected for observation on a given date/shift (e.g., building explosion, chemical spill, large traffic accident, weather catastrophe, etc.), then that observation session would need to be redone. In the event that the 168 observation sessions generate significantly fewer encounters for analysis than the target 1,512, the project will increase the number of observation sessions until the target number of encounters is achieved.
ELECTRONIC DOCUMENTATION
For conditions 3 and 4, officers will need to document Level 1 and Level 2 encounters in some way. The NYPD has agreed to create a new “app” or electronic form on officers’ phones to gather this information. The new form could include a few key pieces of information: event type, ICAD number, call type, location, initial level of suspicion (L1-L4), final level of suspicion (L1-L4), civilian gender, race, ethnicity, age, and whether there is BWC footage of the encounter. In addition, the form could have a field where the officer states the reason for initiating the encounter. NYPD could provide these data to the research team for the observation sessions conducted by observers in the field, and the two data sets could be merged. A draft worksheet that illustrates the type of data that an officer could record after encounters on a tour is attached as Appendix 2. This worksheet would not be handwritten by the officers, but would aggregate the data they recorded electronically. The final list of fields in the L1/L2 form on the officers’ phones will be subject to preliminary field testing and discussions with the parties as the phone “app” is being developed.
MEASUREMENT ISSUES
This section describes important measurement issues. Refer to Appendix 1 for an overview of Systematic Social Observation (SSO) as a methodology and key data items to be gathered through this method.
Some of the study efforts will yield data from which statistically significant conclusions might be drawn. Such conclusions may not be possible for other data because there may be too few observations, because the sample size may be too small to detect statistically meaningful differences between conditions, or because the data will be too difficult (perhaps impossible or too onerous) to collect. That is why some aspects of the proposed pilot will yield descriptive information only. However, such descriptive information – a not uncommon aspect of pilots – will provide useful information about whether and how to implement proposed changes, or perhaps whether to continue the pilot or continue it in an altered form.
Inappropriately initiated police encounters
3 Power calculation from G Power 3.1 (with fixed effects for five precincts and two covariates and an N of 1,512) yields .98 power to detect a small effect size of .10.
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The central question here is whether more documentation of police activity and more BWC filming of that activity will lead to lower levels of inappropriate police-initiated activity – in particular, unconstitutional Terry stops, but also inappropriately conducted L1 and L2 encounters. Making judgments about whether more documentation or BWC recording will reduce unconstitutional stops requires observing events that are not now being documented, either because NYPD policy does not require documentation or because officers are failing to document or record encounters that policy requires to be documented or recorded. Systematic observation of police-citizen encounters (assigning trained field observers to accompany and observe police interaction with the public) can generate data that are independent of the functioning of the police documentation system.
Different types of information are needed to make judgments about the appropriateness of police-initiated encounters at all levels: (a) the circumstances of the encounter (e.g., a radio run to a shots fired incident); (b) the observed behavior or condition of the citizen (e.g., bulge in jacket, consent to search given); (c) behavior of the officer (how the citizen was approached, whether the questioning was accusatory, whether consent to search was requested, whether the officer detained the citizen, etc.); and (d) the knowledge possessed by the police that would justify initiating an encounter of the sort the officer engaged in (e.g., officer knows of specific crime patterns in the precinct; citizen known by officer to be a drug dealer; officer knows an area is a drug dealing hotspot). Items (a), (b), and (c) can be observed directly by the observer as well as the officer. Item (d) can be known to the observer only if the officer volunteers it in the course of the event or following it.
But the only way to capture item (d) reliably in the field is by the observer soliciting this information. Asking officers repeatedly to justify their actions could stimulate changes in the officer’s behavior in the presence of the observer that would otherwise not have occurred. Asking these questions repeatedly could be particularly problematic for maintaining the integrity of the control condition (no changes in documentation from the current condition), because that in effect is an informal way of documenting the events.
One solution would be for observers to routinely “debrief” officers more generally after each encounter about factors that affected their decision-making. The officer is asked to recount his/her thought processes about what was going on as the situation unfolded. This has reasonable prospects of making clear the officers’ perceptions and reasoning for whatever actions were taken – with the advantage of not focusing narrowly on legal matters.4 However, this sort of debriefing also could impact the officers’ activities and change the control conditions (see comments in Appendix 1 about “Concerns regarding reactivity”).
The field observers will generate the data that describe the observed encounter. A separate team of experts will evaluate the propriety of police actions during these encounters. The monitor team’s experts will review observers’ narratives of the encounters and post-encounter debriefings.
4 This “debriefing” approach has been used in generating information to make judgments about the constitutionality of searches based on accounts of those events and the debriefings that followed (Gould and Mastrofski 2004).
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Failure to document L3 encounters
The level of an encounter is readily observable by field researchers, as it does not require a judgment as to the appropriateness of the officer’s actions. The observer must merely note whether the conditions defining an L3 encounter occurred. The research team can independently compare the observer’s description of the encounter and notation of an L3 encounter with what the officer reported (e.g., whether a stop report was filed). If the Department can provide this in a timely manner (within eight hours of the end of the shift), then the observer can identify and enter a code for all observed L3 stops that were/were not properly documented at the time he/she coded the observational data for the shift. Otherwise this must be done separately.
Police administrative workload
The question here is: What is the additional burden placed upon the police by requiring additional documentation of the citizen encounters? It is difficult to measure this using systematic field observation because police officers may document these events in bits and pieces throughout the shift (a minute here, a minute there). It may be difficult for an observer sitting in the back seat of a sector car to know when one of the officers is doing this. Further, officers may not do all of their data entry documenting the events during the same shift that field observers are assigned to be in the field observing the officers. Officers may perform this task at the end of the tour (after the observer has left), or at the beginning of the next shift that the officer works (and not observed by the researchers).
Given the challenges of directly observing documentation and timing it, an alternative is for the Department to have officers at the end of each shift report (on a paper report form or electronically) how much time they spent documenting encounters on that shift.
There is also another aspect of the administrative workload that may be difficult to measure. Requiring additional documentation of encounters may discourage officers from engaging in encounters that they might otherwise undertake. In addition, taking the time to document an encounter may mean that an officer will not be back “in service” (i.e., available for an assignment) until he or she has completed the documentation, and thus will not be available to respond to a radio call. Alternatively, an officer may elect to report back in service before completing his or her documentation. While these circumstances are difficult to measure quantitatively, the debriefings and the observers’ notes can provide a descriptive analysis that will be useful for the court.
Fourteenth Amendment assessment
As noted at the beginning of this document, one question the pilot would attempt to answer is whether documentation of Level 1 and 2 encounters provides useful data in assessing Fourteenth Amendment violations. Aggregate racial data on such encounters would be collected. Some benchmark would need to be used, however, to determine whether there are racial disparities and whether those disparities might reflect Fourteenth Amendment violations. The challenge of
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getting meaningful benchmark data (for traffic and pedestrian stops) is covered in the recent National Academies report, Proactive Policing: Effects on Crime and Communities (Weisburd and Majmundar, 2017, Ch. 7).
Other measurement issues
In addition to the major measurement issues described above, the court orders raise other questions to address.
How frequently do encounters occur at each level?
The NYPD currently has no reliable indicator of the frequency of all L1 and L2 encounters, and the low number of L3s documented seems to suggest that current Terry stop documentation undercounts the actual number of such stops. Systematic field observation can note the frequency of these events, the nature of the police service/law enforcement issue at hand (e.g., investigating a specific offense, checking out a suspicious situation, or providing non-enforcement assistance to a citizen), and whether/when certain actions were taken (e.g., police request for consent to search, frisk, etc.). In addition, researchers can review and code a sample of BWC videos (under conditions 2 and 4 only as presented in the table), permitting a more focused examination of these events.
How frequently do L1 and L2 encounters escalate to higher levels?
Knowing how frequently these lower-level encounters escalate will help to decide whether to require them to be included in a documentation system, and if required, whether to include all of them or only some types of lower-level encounters in the ultimate post-pilot policy that is established for documentation and BWC recording. For example, data gathered by systematic field observation will enable researchers to estimate the “yield” of L3 encounters that escalated from lower level encounters. The higher the yield, the stronger the case for documentation of L1 and L2 encounters. And it may be useful to identify the features of encounters that are most likely to escalate. The analysis of SSO data to address this issue can also be supplemented by the coding of BWC footage (see prior section).
How, if at all, does the video recording of citizens in L1 encounters affect citizens’ orientation toward the police?
The prospects of conducting a feasible survey of respondents who have had recent Level 1 contacts with an acceptable response rate are not good. However, the second-wave surveys for the current BWC pilot being conducted after the BWCs have been in place for a year, ask those who have been stopped in a car or on the street whether the officer was wearing a camera. If yes, the survey asks whether the fact that police officers were wearing video cameras to record the interaction made the experience more satisfactory, less satisfactory, or did not really affect the person’s satisfaction with the experience either way. This survey will not provide data on any potential BWC chilling effect in Level 1 encounters, as opposed to Level 3 encounters, but it may provide some general information on how citizens view BWCs.
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Other privacy questions
The NYPD determined that the current BWC policy should not mandate officers to record all witness interviews. In its response to public and officer input gathered by the NYU Policing Project, the NYPD stated that “[c]ertain witnesses may feel uncomfortable being recorded, such as sex crimes victims, confidential informants, child victims, or witnesses who simply feel too fearful to have their statements recorded and ultimately available to the accused as required by criminal law procedures.” NYPD Response, p. 12. The pilot can collect data on the volume of victims and witnesses encountered.
Coding BWC footage
BWC footage for L1, L2, and L3 encounters will be gathered under conditions 2 and 4 to enable analysis of three questions (only under conditions 2 and 4 will the BWC recording of L1 encounters be required):
• How frequently do encounters occur at each level? • How frequently do L1 and L2 encounters escalate to higher levels? • What impact does the presence of SSO observers have on officers’ initiation of
encounters?
Coding a sample of BWC footage offers an alternative methodology to in-person SSO for addressing the first two questions, which call for a descriptive analysis. BWCs record more focused information than is typical of a field researcher, but they can be replayed multiple times to capture information that is difficult to gather when the field researcher is observing and capturing features of the encounter in real time. In addition, sampling of BWC videos may be done to make possible a comparison of officer behavior and performance when accompanied by an SSO observer and when not accompanied.
The sampling plan will have the following features. The study will draw a random sample of BWC videos during SSO observation sessions that have been completed under conditions 2 and 4. The study will also review a set of “matching” videos from the same officer for the nearest previous same-day-of-the-week. So, if Officer X is observed on third platoon on June 1 (a Saturday), Officer X’s BWC footage for that shift will be reviewed along with footage from the first prior Saturday that the officer worked the third platoon (for example, May 25). The coding of BWC footage will be conducted after the conclusion of SSO field observations.5 Inasmuch as possible, the same coding protocols will be used as with field observations. The study anticipates using a cadre of SSO observers who would switch to this work upon completion of their SSO duties – after a short training period for adjustments required for coding BWC footage.
5 It will be important for NYPD to preserve the videos for all SSO observation sessions and the matching rides associated with those sessions.
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STAFFING SYSTEMATIC OBSERVATION6
Systematic observation requires two types of tasks: (a) conducting the observational ride-along while gathering data in the field, and (b) entering the coded data into an electronic format that can be analyzed. In addition, field observers will be required to provide a narrative account of each police-citizen encounter, which assists with quality control of coding and often helps with interpreting the quantitative coded data, making it possible to render judgments about the appropriateness of police actions. The post-ride-along data entry task (performed after the ridealong observation session has concluded) requires care and usually consumes as much time as the actual observation does.
This sort of systematic observation research will yield the highest quality observations and coding by assigning the work to a small team of well-trained, well-paid, and motivated research staff. A full-time observer could average two ride-alongs per week (including observation time in the field, coding time after field work, and time correcting coding errors). This would require 11 weeks for data collection and data entry by eight full-time observers (168 ride-alongs divided by two/week divided by eight observers). Add an additional 15% time for unforeseen problems (illness, family emergencies, problems with ride-along), and a staff of eight full-time observers could be expected to complete the 168 rides in 13 weeks.
Full-time observational staff is ideal, but it may be difficult to find good people who are available on a full-time basis for a relatively short data collection project. Alternatively, systematic observation research has relied heavily on the use of currently enrolled university students, whose schedules make it possible for them to do part-time work when not attending classes (especially advanced graduate students who may have completed their course-work). Twelve such students, each completing one ride-along per week could complete 168 ride-alongs in 14 weeks. However, part-time workers attending school do not have as much schedule flexibility to meet the sampling requirements, so it is reasonable to add 25% time, totaling 18 weeks.
In addition to the observers, two full-time quality-control supervisors need to review the observers’ work and give timely feedback to correct errors. Someone also needs to perform liaison with the NYPD, explaining the study to key people in the chain of command in selected precincts/units, coordinating ride schedules, and dealing with issues as they arise. Another staff position to be filled is a person to create a data entry system for the field observers. Qualtrics, https://www.qualtrics.com/, has been used in recent studies employing systematic social observation. This person would also need to format the data to be used for data analysis (e.g., SPSS, SAS, R). Data management staffing may be required to integrate department-supplied data (e.g., official department reports of L3 stops) with SSO data.
TIMELINE FOR DEVELOPING AND EXECUTING SSO AND BWC CODING FOR PROPOSED PILOT STUDY
6 The staffing estimate here does not include research staff required for other research activities that might be used, including any coding of BWC footage and comparing Department documents to field observations.
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Research instrument development and field testing: 4.0 months
This involves conducting preliminary ride-alongs with each type of unit to be observed, developing an observation protocol and instruments, putting the instruments into a computercompatible data entry format (e.g., Qualtrics), field testing and modifying the instruments. This also includes developing protocols for the monitor team’s experts to judge the propriety of police actions during police-initiated encounters, and obtaining any necessary Institutional Review Board clearance for conducting research on human subjects.
Recruitment and hiring of observation staff: 2.0 months [will occur during period of instrument development and field testing above]
SSO staff can be recruited from graduate programs in criminal justice, law schools, and other disciplines in NYC and nearby universities. This staff includes observers and team leaders for quality control. Ideally, the team leaders would have prior experience with SSO, but the prospects of this seem uncertain. Applicants should be individually interviewed. Hiring a number of multilingual field observers (especially those fluent in Spanish) will be desirable. Also during this period, the monitor’s team should work closely with key NYPD staff to ensure appropriate commanders and staff are well-informed about the project and ready to receive it.
More observers should be hired to train than are required to do the work, to allow for the likelihood that some will prove unsatisfactory during the training session or will elect not to continue after training.
Training SSO observers: 2.0 months*
On-site training will not only involve some classroom time, but also a significant amount of time in the field practicing SSO and then coding results, checking the work of the observers, and correcting errors. The training delivered to field observers would come from several sources, including people experienced in SSO (prior projects) and the monitor team. It is essential that the trainers include people who are familiar with NYPD procedures. Both the NYPD and the plaintiffs will be able to observe the training. Note that training will include instruction by key Department staff, prosecutors, and monitor team members on standards for proper conduct of L1-L4 encounters. Conduct SSO field observations: 3.25-4.5 months*
During this period the data will be collected, coded, and edited. Amount of time depends upon full/part-time staffing of SSO positions. *NOTE: These are the months when field researchers would actually be in the field observing members of the service in ride-along sessions (training and data collection).
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Train for and conduct BWC video coding: 1.5-2.5 months During this period training will be given for coding BWC videos (.25 months). BWC videos are selected and coded (1.25-2.25 months). The amount of time required will depend upon full/parttime staffing of BWC video coding. Data analysis and report writing: 4.0 months During this period, the data will be analyzed and a report will be written. Progress reports will be made during the course of the pilot study as part of the periodic reports by the monitor. Total time for SSO: 14.75-17 months Timeline for NYPD Tasks Drafting Operations Order for Pilot Precincts and PSAs, specifying the four conditions Training Officers in the Pilot Precincts and PSAs Developing Level 1 and 2 Documentation Form Adjustment period for officers and system to correct problems and officers to become familiar with new procedures.
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APPENDIX 1. OVERVIEW OF SYSTEMATIC SOCIAL OBSERVATION OF POLICE
Since the mid-1960s systematic social observation (SSO) of police has proven to be a useful alternative to other forms of observation and data collection. SSO combines features of ethnographic field observation and survey research. Like an ethnography, it places observers in the “natural setting” where police interact with the public, but like survey research, it requires those observers to follow a set of detailed protocols about what specifically is to be recorded and how to record it. This makes it possible to classify observations into standardized and quantifiable categories. For example, SSO protocols could direct field researchers to determine whether an officer acted disrespectfully towards a citizen she encountered, in what ways, and for how long (momentarily or repeatedly). Detailed instructions establish what constitutes officer disrespect and how to apply the classification codes provided. This standardization of field work and coding makes it possible to replicate these results across different observers, different officers, and different situations. It allows researchers to perform quantitative analyses of field work. In contrast to survey research, the informant about the officer’s degree of disrespect might be the citizen encountered by the officer, whose impressions and opinions would be solicited after the fact. The criteria used by citizens to make these judgments may vary greatly, but SSO yields observations according to criteria that are standardized a priori. As with survey research, the selection of specific officers for observation can be performed according to probability sampling, allowing statistical inferences to be made (Mastrofski et al. 1998:vii; Reiss 1971; Worden and McLean 2014:471).
SSO studies of policing have focused primarily on patrol officers. A recent review of this methodology counted five large-scale SSO data collection projects, beginning with the President’s Commission study by Albert J. Reiss in 1966 and five smaller projects (Worden and Mclean 2014). Each project has generated numerous publications, and additional projects have been conducted since the overview (e.g., Mastrofski et al. 2016; Worden and McLean 2017). The scope of topics has been broad, but SSO’s contributions to knowledge have been most frequently used to describe and explain variations in the exercise of police discretion, especially the use and abuse of authority (Mastrofski et al. 2010; Worden and McLean 2014).
Concerns regarding reactivity
The most frequently mentioned concern about SSO as a methodology is that officers react to the presence of an observer or the characteristics/behavior of the observer – thus rendering a distorted picture of how the officer would have behaved if not accompanied by an observer. The common concern is that in the presence of an observer, officers will be more professional, lawabiding, and more considerate of citizens than they otherwise would have been.
The threat of reactivity with SSO cannot be dismissed out of hand, but several things are worth noting. First, it may not be as great as many skeptics anticipate (Mastrofski and Parks 1990; Worden 1989). Reiss (1971) noted that it is naïve to presume that many circumstances and aspects of police behavior readily lend themselves to police manipulation motivated by awareness of being observed. Officers are more influenced by the particulars of the circumstances, as well as their own skills and habits, even with regard to the use of physical force. One of the more consistent findings is that the presence of an observer tends to increase
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the likelihood of officer proactivity, especially if the observer is female, and that the more “helpful” the observer is to the officer, the greater the officer’s tendency to use force. Notably, however, levels of reactivity diminish over the passage of time during field work (Worden and McLean 2014:485). Ultimately, it is important to keep in mind that data collection alternatives to SSO are not without their own reactivity issues. Survey respondents are susceptible to the desire to respond in ways that present themselves in the best light. Department records that rely upon officers to self-report events in which they were engaged are clearly highly reactive, since officers know that this information is used to hold them to account (Mastrofski et al. 2010:236). A police agency’s use of body-worn cameras (BWC) may well dwarf any reactivity effects of a ride-along observer, since video footage offers what, for many, constitutes a detailed and reliable (if not necessarily complete) record of events. And for many, a fundamental function of the BWC is in fact to deter police from engaging in inappropriate behavior.
Ways to minimize the reactivity of SSO include: (a) observers avoiding the expression of opinions to officers about what they observe, (b) training observers in ways to establish rapport with officers, and (c) making and following pledges of confidentiality. After the fact, researchers can conduct analyses to detect the nature and extent of reactivity, as well as perform sensitivity analyses to determine its effect on findings (Mastrofski et al. 2010; Worden and McLean 2014).
To assess the extent to which the presence of observers may change the behavior of the officers being observed, the pilot will compare data on the activity of officers during their ride-alongs with data on the activity of those same officers when they do not have an observer with them. This will be done in two ways. First, BWC footage will be compared for a sample of officers with SSO observers and a matching set of BWC videos for the same officers but without observers (see section of this proposal on coding BWC footage). Second, officer behavior will be tracked based on records already maintained by the department on officer activity. For example, if an officer is being observed on the third platoon on a Thursday, data can be collected on the officer’s activities during the four prior third platoon Thursdays and the four subsequent third platoon Thursdays that the officer works. This analysis will be limited to activities that the NYPD routinely gathers (encounters initiated by the officer, citations issued, arrests made), but it will enable researchers to determine whether there is a distinct difference in officers’ proactivity and enforcement levels when they are observed from when they are not observed. Ideally the data will be conducted at the unit level (that is, the actions of all officers observed in the selected unit). The pilot will also compare data on the activities of officers who have been observed with officers in the same unit who were not observed.
From a practical perspective, SSO presents several challenges. It is time-consuming to set up research instruments and observational protocols, hire and train observers, and maintain data quality control. It is not a cost-effective way to gather data on rare events (e.g., police use of lethal force).7 Most importantly, its success relies on police officers in the field allowing observers to be sufficiently close to police-citizen encounters so that they can see and hear what is happening. Also important is the willingness of officers to participate in the debriefings
7 In 7,200 hours of observation in one large SSO study, a police firearm was drawn in only 53 encounters, and only once was it discharged (at a snake) (Worden and McLean 2014:486).
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following the completion of encounters. Under these circumstances, it would be ideal for researchers to be able to provide officers assurances of confidentiality that are backed by assurances from the court and the monitor that they would not be subject to legal process.
Key SSO items for this study
Below is an outline of the sorts of data that SSO field observers will be collecting. It is not exhaustive and is subject to change/refinement as the study develops. It is also anticipated that with respect to legal questions, the narrative accounts and information collected and coded by the observers would be reviewed by a panel of experts drawn from members of the monitor team, and that these experts would make the determinations regarding police legal compliance.
Identifying information
• Precinct/PSA • Type of unit (patrol, plainclothes anticrime, housing) • Officer IDs (both officers in two-officer units) • Observer ID • Date and start time of shift • Time observation began
Encounter characteristics
• How officer was mobilized for this encounter (e.g., dispatched, citizen on-scene, officerinitiated without citizen request or department direction)
• Time dispatch received, encounter began, encounter ended • Location (type of location, GPS coordinates) • Department record number (e.g., ICAD number, stop report number) – obtained from
officers • Type of problem (most serious) police expected to deal with (taken from an extensive list
of hundreds of problems, each with a unique code) o As described by dispatch (if relevant) o As it appears initially at scene o As it appears at end of encounter
Citizen-contact characteristics and actions
In two-officer units, the observer will report actions of both officers when it is possible for the observer to see/hear both. When not possible, the observer will select the officer likely to be engaged the most with citizens and focus observations on that officer.
• How police-citizen contact was initiated at scene (officer, citizen, unable to determine) • Length of police-citizen interaction • BWC activated for this citizen? (none of it, part of it, all of it) • Citizen characteristics: gender, race/ethnicity, age • Actions by officer(s)
o How police approached/spoke to citizen initially (general/nonthreatening, command, or threat-focused)
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o Citizen response to initial approach (acceded, ignored/declined, left scene) o Police communicated citizen not free to leave? o Police requested consent to search citizen/property? o Police searched citizen/property
 Evidence available to justify search (e.g., bulge under coat) o Police made arrest? • Was this encounter documented electronically? (yes, no, officer indicated intention to file report in future, unable to determine) • Was a stop report filed for this encounter (yes, no, officer indicated intention to file report in future, unable to determine) • Encounter level at beginning of contact with this citizen (Levels 1-4) • Encounter escalated to higher level after initial contact? (what level) • Police force used toward citizen (if any)? (type of force) • Citizen resistance/demeanor toward police • Citizen demeanor toward other citizens (if present) Supervisor oversight • Was a police supervisor present during this encounter? (not at all, part of encounter, all of encounter) • Did supervisor have a discussion with the officers involved in the encounter? Post-encounter debriefing of officer Following the completion of an encounter, the observer will as soon as feasible debrief the officers on the prior encounter, asking the officers to describe what they had observed or knew about the situation and the people involved as they were deciding what to do. This information will be documented by the observer in a narrative account and be used to make judgments about the legality of the encounter and actions taken during the encounter. “We’re interested in getting your reading of this situation so we can better understand the decisions that were made. Could you please talk us through this encounter, focusing on the things that influenced your decisions about what to do and how to do it? To start off, what led you to initiate contact with the citizen(s) in this situation? And what were the key factors that led you to handle the situation as you did?”
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APPENDIX 2. INVESTIGATIVE ENCOUNTERS WORKSHEET

Officer Name Officer Tax Officer Command Assignment Day Date Platoon

Smith 959026
13 Pct Sector A Monday 20-Aug
3rd

Event

Event ICAD Call # Type # Type

1

RR 12345 10-10

2

PU 12346 10-54

Location
221 E23 street 235 E20 street

Initial Level
of Susp

Final Level
of Susp

Stop Report Prep? Y/N

2

3

Y

1

1

N

Reason for the Encounter
Unverified RR man w/gun EDP

Gender Race Age

M

H 27

M W 53

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REFERENCES
Cohen, Jacob. 1988. Statistical Power Analysis for the Behavioral Sciences. 2nd ed. Hillsdale, NJ: Erlbaum.
Gould, Jon B. and Mastrofski, Stephen D. 2004. Suspect searches: Assessing police behavior under the U.S. Constitution. Criminology & public policy 3(3):315-362.
Mastrofski, Stephen D., Tal Jonathan-Zamir, Shomron Moyal, and James J. Willis. 2016. “Predicting Procedural Justice in Police-Citizen Encounters.” Criminal Justice and Behavior.43(1):119-139.
Mastrofski, Stephen D. and Roger B. Parks. 1990. Improving observational studies of police. Criminology 28(3):475-496.
Mastrofski, S. D., Parks, R. B., and McCluskey, J. D. 2010. Systematic Social Observation in Criminology. In A. Piquero and D. Weisburd (eds.), Handbook of Quantitative Criminology, pp. 225-247. New York: Springer-Verlag, pp. 225-247.
Mastrofski, S., R. B. Parks, A. J. Reiss, Jr., R. E. Worden, C. DeJong, J. B. Snipes, and W. Terrill. 1998. Systematic Observation of Public Police: Applying Field Research Methods to Policy Issues. NCJ 172859. Washington, DC: National Institute of Justice.
Parks, Roger B., Mastrofski, Stephen D., Reiss, Albert J., Jr., et al. 1998. St. Petersburg Project on Policing Neighborhoods: A study of the Police and the Community. East Lansing, MI: Michigan State University.
Reiss A. J., Jr. 1971. Systematic observation of natural social phenomena. In Costner, H. L. (ed.), Sociological methodology. San Francisco: Jossey-Bass, Inc., pp. 3-33.
Weisburd, D. and Majmundar, M. K. 2017. Proactive Policing: Effects on Crime and Communities. Washington, DC: The National Academies Press.
Worden, R. E. 1989. Situational and attitudinal explanations of police behavior: A theoretical reappraisal and empirical assessment. Law and Society Review 23:667-711.
Worden, R. E. and McLean, S. J. 2014. Systematic social observation of the police. In Reisig, M. D. and Kane, R. J. (eds.), The Oxford Handbook of Police and Policing. New York: Oxford University Press, pp. 471-496.
Worden, R. E. and McLean, S. J. 2017. Mirage of Police Reform: Procedural Justice and Police Legitimacy. Oakland, CA: University of California Press.

 
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study the electronic recording of police-citizen Level 1 and 2 encounters and the use of bodyworn cameras for Level 1 encounters, under the four-level framework established in People v. De Bour, 40 N.Y.2d 210 (1976). ECF No. 736. The Floyd Plaintiffs now move for reconsideration of that order pursuant to Local Civil Rule 6.3. ECF No. 740. For the reasons stated below, the motion is DENIED.
BACKGROUND In an opinion and order issued on August 12, 2013, the Court held that the New York City Police Department’s (the “NYPD”) stop-and-frisk practices violated Plaintiffs’ Fourth and Fourteenth Amendment rights. See Floyd v. City of New York, 959 F. Supp. 2d 540, 661 (S.D.N.Y. 2013). In a separate opinion issued the same day, the Court directed the NYPD to institute certain reforms to remedy its unconstitutional practices and appointed an independent monitor (the “Monitor”) to oversee those reforms. See Floyd v. City of New York, 959 F. Supp. 2d 668, 676–78 (S.D.N.Y. 2013). The Court also directed the parties to participate in a community-input process (the “Joint Remedial Process”) under the guidance of a facilitator (the “Facilitator”) to develop additional reforms. Id. at 686–88. On May 15, 2018, the Facilitator issued his Final Report and Recommendations. Final Report, ECF No. 597. The Final Report is a 304-page document detailing the recent history of police-community relations in New York City, explaining the different stages of the Joint Remedial Process, and propounding fourteen recommendations for reform. Id. at 10–11. Among the reforms, the Facilitator recommends that the NYPD document all police-initiated encounters. Id. at 230–36. In other words, the Facilitator recommends requiring the NYPD to document encounters at the first and second levels of the four-level De Bour framework, not only at the third and fourth levels as is currently required. Id. The Facilitator explains that
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documenting at all levels is essential to understanding “the extent to which police are initiating encounters on the basis of race.” Id. at 233.
On July 19, 2018, the Court directed the parties to submit a proposal for a pilot program to study the electronic recording of Level 1 and 2 police-citizen encounters. ECF No. 619. On August 9, 2018, the Court further ordered the parties to submit a proposal for a pilot program to study the use of body-worn cameras (“BWCs”) in Level 1 encounters. ECF No. 634. Despite these directives, the parties requested that the Monitor develop a plan for a combined pilot program. ECF No. 660 at 1. The Monitor submitted a proposal on November 9, 2018. ECF No. 660-1. On January 29, 2019, after the parties and CPR had filed comments and objections, the Monitor, through his counsel, requested that the Court adopt a revised version of the proposal. Combined Pilot Study, ECF No. 687-1; see also Monitor’s January 29 Letter, ECF No. 687. On February 7, 2019, recognizing that the parties “have had an extensive opportunity to participate in the formulation of the proposed pilot program,” the Court approved the Monitor’s revised plan. ECF No. 691 at 2.
The pilot program is designed to study how electronic documentation and the use of BWCs affect the legality of police-citizen encounters. Combined Pilot Study at 1. Trained observers will ride along with a sample of randomly selected officers and record the actions of the officers and the circumstances of each encounter. Id. at 2–3. The pilot program will study the effects of observer presence by comparing the behavior of officers while under observation with their behavior while unobserved. Id. at 13–14; see also Monitor’s January 29 Letter at 3.
The observers’ reports will go to the Monitor team, which will assess the legality of the encounters. Combined Pilot Study at 15; see also Monitor’s January 29 Letter at 4. Once the Monitor team assesses the observers’ reports, “the team’s experts will use those assessments to
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determine whether electronic documentation and BWCs had statistically significant positive impacts on the legality of encounters.” Monitor’s January 29 Letter at 5.
On June 14, 2019, the Monitor, through his counsel, requested that the Court enter a confidentiality order, ECF No. 712-1, that would “protect the information that is obtained and created by trained observers studying officer behavior in the NYPD pilot study from disclosure to anyone other than the Monitor and his team.” Monitor’s June 14 Letter at 1, ECF No. 712. The Monitor explained that the confidentiality order is justified “because it will foster officer consent to observation, officer candor under observation, and observer candor in notetaking—all while protecting from discovery only information that the study itself creates.” Id. at 1–2. Because the study involves sending trained observers into the field to note the behaviors, and solicit the thought processes, of officers when they engage citizens, the Monitor contends that the “success of that work depends on protecting observer information, including the identity of observed officers.” Id. at 2. Officers expressed significant concern that the information collected by observers could be used against them by their NYPD supervisors or by Plaintiffs. Id. at 2–3. As the Monitor explained, officer apprehension could lead to low participation, prohibiting the study from proceeding, or limiting the study’s utility if it includes only the participation of “officers who are most confident about the propriety of their conduct.” Id. at 3.
The parties, CPR, and City Prosecutors filed letters expressing their views on the confidentiality order. See ECF Nos. 717 (Floyd and Davis Plaintiffs), 723 (City of New York), 730 (same), 724 (City Prosecutors), 725 (CPR); see also Ligon v. City of New York, No. 12 Civ. 2274, ECF Nos. 385, 388 (Ligon Plaintiffs). On August 6, 2019, the Monitor responded to these concerns and requested that the Court approve the confidentiality order, ECF No. 733-1. Monitor’s August 6 Letter at 2, ECF No. 733. On August 12, 2019, the Monitor submitted an
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amended version of the confidentiality order (the “Pilot Confidentiality Order”), ECF No. 734-1, that clarifies that the order shall survive the termination of the monitorship. ECF No. 734. After reviewing the submissions of the Monitor, the parties, and amici, the Court approved the Pilot Confidentiality Order. ECF No. 736. Before the Court is the Floyd Plaintiffs’ motion for reconsideration of the Pilot Confidentiality Order. ECF No. 740.
DISCUSSION I. Legal Standard
Local Civil Rule 6.3 provides that a “notice of motion for reconsideration or reargument of a court order determining a motion . . . shall be served with . . . a memorandum setting forth concisely the matters or controlling decisions which counsel believes the Court has overlooked.” The standard governing Local Rule 6.3 is the same as that governing Federal Rule of Civil Procedure 59(e). NEM Re Receivables, LLC v. Fortress Re, Inc., 187 F. Supp. 3d 390, 394 n.2 (S.D.N.Y. 2016); see also Jowers v. Family Dollar Stores, Inc., 455 F. App’x 100, 101 (2d Cir. 2012) (concluding that the circuit court applies the same abuse of discretion standard to the review of a motion brought under Local Rule 6.3, that it applies to the review of a motion brought under Federal Rule of Civil Procedure 59(e)).
“Local Rule 6.3 permits a party to move for reconsideration based on matters or controlling decisions which counsel believes the court has overlooked.” Space Hunters, Inc. v. United States, 500 F. App’x 76, 81 (2d Cir. 2012) (internal quotation marks and citation omitted); see also Dietrich v. Bauer, 198 F.R.D. 397, 399 (S.D.N.Y. 2001). Local Rule 6.3 is to be “narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court.” Dietrich, 198 F.R.D. at 399.
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“Federal Rule of Civil Procedure 59(e) permits a party to file a motion to alter or amend a judgment.” Space Hunters, 500 F. App’x at 81 (internal quotation marks and citation omitted). Under this rule, the standard is “strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked—matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “[A] court may grant reconsideration where the party . . . demonstrates an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” In re Facebook, Inc., IPO Sec. & Derivative Litig., 43 F. Supp. 3d 369, 373 (S.D.N.Y. 2014) (internal quotation marks and citation omitted).
“It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (internal quotation marks, alteration, and citation omitted). It is “not intended as a vehicle for a party dissatisfied with the Court’s ruling to advance new theories that the movant failed to advance in connection with the underlying motion.” WestLB AG v. BAC Fla. Bank, 912 F. Supp. 2d 86, 95 (S.D.N.Y. 2012) (internal quotation marks and citation omitted). Instead, motions for reconsideration are narrowly construed in order “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.” Henderson v. Metro. Bank & Tr. Co., 502 F. Supp. 2d 372, 376 (S.D.N.Y. 2007) (internal quotation marks and citation omitted).
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II. Analysis The Floyd Plaintiffs contend that reconsideration of the Pilot Confidentiality Order is
proper on three grounds: (1) the Court overlooked controlling law, (2) the Court overlooked relevant facts, and (3) reconsideration is necessary to prevent manifest injustice. Pl. Mem. at 5, 10, 13, ECF No. 741. The Floyd Plaintiffs’ motion fails in all respects.
A. Consideration of Controlling Law 1. Federal Constitutional and New York Law
The Floyd Plaintiffs argue, in general and conclusory fashion, that the Court overlooked “key controlling law, namely, Fourth, Fifth, and Sixth Amendment rights under the U.S. Constitution, statutory rights set forth under the New York Criminal Procedure Law, and key federal constitutional law, including the right to exculpatory information under Brady [v. Maryland, 373 U.S. 83 (1963)].” Pl. Mem. at 5.
Specifically, the Floyd Plaintiffs contend, as Plaintiffs and amici had argued in their prior submissions, that the Pilot Confidentiality Order will violate the constitutional rights of criminal defendants because it will prevent them from discovering “potentially exculpatory information” under Brady. Pl. Mem. at 6; see also Floyd and Davis Letter at 3 n.4, 4, ECF No. 717; City Prosecutors’ Letter at 4, ECF No. 724; Ligon Letter at 1–2, No. 12 Civ. 2274, ECF No. 385. The Floyd Plaintiffs also claim that the Court overlooked controlling state law, including “recent reforms to Article 245 of [New York Criminal Procedure Law], to ensure greater justice in the discovery process,” Pl. Mem. at 6, an argument previously raised by Plaintiffs and City Prosecutors. See, e.g., Ligon Letter at 1–2 & n.1; City Prosecutors’ Letter at 3–4.
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The Court did not overlook the law. After reviewing the submissions filed by the parties and amici, the Court considered and rejected the Brady and state law arguments, and adopted the legal analysis articulated by the Monitor. See Monitor’s August 6 Letter at 11–15.
2. Law of the Case The law of the case doctrine holds that “when a court has ruled on an issue, that decision should generally be adhered to by that court in subsequent stages in the same case, unless cogent and compelling reasons militate otherwise.” United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002) (internal quotation marks and citation omitted). The Floyd Plaintiffs contend that “[i]t is the law of this case that community expertise must be central to – not excluded from – key analyses related to remediation.” Pl. Mem. at 8. A motion for reconsideration is “not intended as a vehicle for a party dissatisfied with the Court’s ruling to advance new theories that the movant failed to advance in connection with the underlying motion.” WestLB AG, 912 F. Supp. 2d at 95 (internal quotation marks and citation omitted). The Floyd Plaintiffs did not raise the law of the case doctrine in their prior submission, see generally Floyd and Davis Letter, and their motion for reconsideration should be denied on that ground alone. However, even if the Floyd Plaintiffs had raised this argument earlier, the Court would have rejected it. Throughout the course of the remedial phase of this litigation, the Court has welcomed and considered the input of non-parties. See, e.g., ECF Nos. 498 (granting police unions’ request to participate in the reform process in advance of the Monitor submitting his final recommendations), 598-1 (white papers from community groups, including the Interfaith Center of New York, the Legal Aid Society, the Citizens Union of the City of New York, and CPR, discussed in and appended to the Facilitator’s Final Report), 670 (granting CPR leave to
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submit comments on the Monitor’s proposed pilot study), 715 (granting City Prosecutors leave to submit comments on the Monitor’s proposed confidentiality order). Moreover, it was only after a thorough consideration of concerns raised by the Monitor, the parties, and amici, that the Court determined that the Pilot Confidentiality Order is critical to the success of the pilot study, a decision that falls squarely within the Court’s equitable powers. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 35 (1984) (“[W]e have no question as to the court’s jurisdiction to [enter protective orders] under the inherent equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices.” (internal quotation marks and citation omitted)); Hunt v. Enzo Biochem, Inc., 904 F. Supp. 2d 337, 343 (S.D.N.Y. 2012) (“[P]rotective order[s] serve essential functions in civil adjudications.” (internal quotation marks and citation omitted)); Dorsett v. Cty. of Nassau, 762 F. Supp. 2d 500, 514 (E.D.N.Y. 2011) (“It is well established that courts have an inherent equitable power to grant confidentiality orders.”), aff’d, 800 F. Supp. 2d 453 (E.D.N.Y. 2011), aff’d in relevant part sub nom. Newsday LLC v. Cty. of Nassau, 730 F.3d 156 (2d Cir. 2013).
3. Public Access Law The Court also rejects the Floyd Plaintiffs’ rehashed argument that the Court disregarded controlling public access law, Pl. Mem. at 9; see also Floyd and Davis Letter at 7 n.14; ECF No. 728, because, as the Monitor explained, the Pilot Confidentiality Order does not contravene public access law, Monitor’s August 6 Letter at 22. Accordingly, the Floyd Plaintiffs have failed to “demonstrate that the Court overlooked controlling decisions . . . that were put before it.” Dietrich, 198 F.R.D. at 399.
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B. Consideration of Relevant Facts The Floyd Plaintiffs next argue that the Court overlooked certain factual matters, including the “overwhelmingly public nature of the encounters and the scientific standards of reliability that mandate open access and data disclosure as a reliability requirement.” Pl. Mem. at 10–11. They concede, however, that these “factual matters [were] put before the Court.” Id. at 10. The Floyd Plaintiffs also contend that the Pilot Confidentiality Order will “obscure an already public activity” and “abrogat[e] the rights of Plaintiff Classes.” Pl. Mem. at 11–12; see also Floyd and Davis Letter at 2 (“There is no aspect of a Level 1 encounter that should be offlimits to Plaintiffs, including anonymous officers’ debriefing sessions. In fact, this information is largely publicly available.”). The Pilot Confidentiality Order will do neither because it does not “render confidential any information that is already available to officers, investigators and those subject to the observed encounters.” Monitor’s June 14 Letter at 6. In addition, the Floyd Plaintiffs argue that the Court has ignored scientific norms. Pl. Mem. at 11. They contend that “providing de-identified data and open access are not restrictions, they are scientific norms, and research subjects routinely consent to these conditions.” Id. Again, these same arguments were already raised in previous submissions to the Court. See, e.g., Floyd and Davis Letter at 6–7; CPR Letter at 2, ECF No. 725. In any event, the Court agrees with the Monitor that providing de-identified data is not workable because “many officers are unlikely to consent if they believe that observations about their conduct could be used against them in disciplinary or legal proceedings, or end up in the possession of anyone associated with the NYPD or Plaintiffs.” Monitor’s June 14 Letter at 2–3; see also Monitor’s August 6 Letter at 9–11. “[N]othing narrower than an order preventing anyone associated with
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the parties from getting that information would be likely to assuage [officers’] concerns.” Monitor’s June 14 Letter at 3.
Moreover, there is a fail-safe mechanism built into the Pilot Confidentiality Order; the order provides a process by which a person or entity may petition the Court for the release of confidential information. Pilot Confidentiality Order ¶ 4. The Court may disclose such information upon a showing of “extraordinary circumstance or compelling need.” Id. Once disclosed, the information ceases to be confidential. Id.
Accordingly, the Floyd Plaintiffs have failed to meet their burden to “demonstrate that the Court overlooked . . . factual matters that were put before it.” Davis v. Gap, Inc., 186 F.R.D. 322, 324 (S.D.N.Y. 1999) (alteration omitted).
C. Manifest Injustice Finally, the Floyd Plaintiffs “ask this Court to reconsider [the Pilot Confidentiality Order] to prevent manifest injustice.” Pl. Mem. at 13. “A party can generally establish . . . manifest injustice by pointing to controlling decisions or data that the court overlooked.” U.S. Commodity Futures Trading Comm’n v. Wilson, No. 13 Civ. 7884, 2016 WL 9632961, at *1 (S.D.N.Y. Nov. 2, 2016) (citing Shrader, 70 F.3d at 257) (internal quotation marks and alterations omitted). Having failed to do so, however, the Floyd Plaintiffs cannot make a showing of manifest injustice. Notwithstanding the above, the Floyd Plaintiffs’ arguments also fail on the merits. They contend that “confidentiality must not be wielded to mask or facilitate racial profiling or other constitutional violations.” Id. (capitalization omitted). They also argue that “no legal precedent authorizes the Court to limit a prevailing party’s access to data in its own case.” Id. at 18 (capitalization omitted). The Court is not persuaded.
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First, the Floyd Plaintiffs attempt to draw a parallel between the Pilot Confidentiality Order and the NYPD’s “unwritten rules,” which the Court found “hid illegality and injustice.” Id. at 13 (citing Floyd, 959 F. Supp. 2d at 603). As the Floyd Plaintiffs concede, however, it is the Monitor, not the NYPD, who will oversee the pilot program. See id. at 13–14. The concerns over “secrecy” and “unwritten policies” are, therefore, misplaced. This is especially true in light of Plaintiffs’ ability “to review and comment on the protocols and instruments used by the observers and the legal experts to code police-citizen encounters.” Monitor’s August 6 Letter at 10.
The Floyd Plaintiffs’ claim that no legal precedent authorizes the Court to limit a prevailing party’s access to data fares no better. The Court has held that the pilot program is essential to the remedial process and that the Pilot Confidentiality Order is essential to the pilot program. Given the “complexity of the reforms that will be required to bring the NYPD’s stop and frisk practices into compliance with the Constitution,” Floyd, 959 F. Supp. 2d at 676, the Court has determined that the issuance of the Pilot Confidentiality Order is a necessary exercise of its inherent equitable powers in furtherance of the remedial process. See Hunt, 904 F. Supp. 2d at 343.
III. The NYPD’s Advice to Officers The City of New York (the “City”) repeats its request that the Court exempt from
confidentiality observer information that relates to an arrest or the issuance of a desk appearance ticket. City’s September 24 Letter at 1–2, ECF No. 743; see also ECF No. 730 at 1–2. The Court previously considered the City’s proposed carve-out provision, however, and declined to adopt it for the reasons set forth in the Monitor’s letter. Monitor’s August 6 Letter at 1–11.
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The City also states that if the Pilot Confidentiality Order does not contain such a “carveout provision,” the NYPD might advise officers of the risk that the Pilot Confidentiality Order may be “overturned as improvidently granted.” City’s September 24 Letter at 2. The Court is confident that the law supports the Pilot Confidentiality Order and believes that the risk of reversal is remote. The Court is, however, concerned that the proposed warning will chill officer participation in the pilot program “such that the results of the study would not be scientifically valid and thus of limited value.” Monitor’s August 6 Letter at 1–2. Although the Court shall not instruct the NYPD on how to advise its officers, it reaffirms that the NYPD’s full support and encouragement of officer participation is critical to the study’s success.
CONCLUSION For the reasons stated above, the Floyd Plaintiffs’ motion for reconsideration of the Pilot Confidentiality Order is DENIED. SO ORDERED. Dated: October 25, 2019 New York, New York
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Arnold&Porter

Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@arnoldporter.com

December 16, 2019
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Tenth Report of the Independent Monitor
Dear Judge Torres, I am pleased to submit the Tenth Report of the Independent Monitor. The Report discusses the substantial accomplishments by the NYPD during the past
five years of the monitorship, but also what is still to be done before the Department is in compliance with the court’s orders. To guide the Department and inform the public, the Report sets out in the text and in Appendix 1 how the monitor will go about deciding whether to recommend to the court that its mandates have been met. In summary form, Appendix 1 divides the court’s orders into 90 discrete tasks, states where in the court’s orders the requirement may be found and describes what sources of information the
I Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 2 of 100
Arnold&Porter
monitor will use, what types of analyses will be done and what standards will be applied. More detail and discussion are in the body of the Report.
Respectfully submitted, /s/ Peter Zimroth
Peter L. Zimroth Monitor Attachment: Tenth Report of the Independent Monitor

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 3 of 100
Tenth Report of the Independent Monitor Peter L. Zimroth
December 16, 2019
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

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MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long John MacDonald James McCabe
Jane Perlov James Yates

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TABLE OF CONTENTS

Page

I. INTRODUCTION ................................................................................................................... 1 II. GUIDANCE FOR SUBSTANTIAL COMPLIANCE ..................................................................... 4 III. WRITTEN POLICIES .............................................................................................................. 6
A. Stop and Frisk Policies..................................................................................................... 6 B. Stop Report Form............................................................................................................ 9 C. Racial Profiling Policies ................................................................................................. 14 D. Davis/NYCHA Interior Patrol Policies ............................................................................ 17 E. Trespass Affidavit Program (TAP) Policies .................................................................... 22 F. Trespass Crimes Fact Sheet (TCFS) ............................................................................... 29 IV. SUPERVISION..................................................................................................................... 30 V. TRAINING .......................................................................................................................... 36 A. In-Service Stop and Frisk and Racial Profiling Training ................................................. 37 B. Recruit Training ............................................................................................................. 40 C. Training for Newly Promoted Supervisors.................................................................... 43 D. Basic Plainclothes Course.............................................................................................. 44 E. Housing One-Day Training ............................................................................................ 44 F. Training for Investigating Profiling and Biased-Based Policing Complaints ................. 45 G. Field Training Officer (FTO) Guide and Training ........................................................... 46 H. Training on Fair and Impartial Policing Training ........................................................... 46 I. Refresher Training Course for Investigative Encounters .............................................. 48 VI. BODY-WORN CAMERAS .................................................................................................... 49 A. Precinct-Level BWC Pilot............................................................................................... 49 B. PSA BWC Pilot ............................................................................................................... 51 C. Citywide Expansion of BWCs ........................................................................................ 52 D. Guidance for Compliance—Body-Worn Cameras ........................................................ 52 VII. AUDITING .......................................................................................................................... 53 A. Auditing of Stop Reports and Activity Logs................................................................... 53 B. QAD Audits for Undocumented Stops .......................................................................... 64 C. QAD Auditing of Trespass Crimes Fact Sheets.............................................................. 66 D. Guidance for Compliance—Auditing ............................................................................ 67 VIII. PERFORMANCE EVALUATIONS ......................................................................................... 68
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Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 6 of 100 A. Performance-Evaluation System for Officers and Detectives ...................................... 68 B. Guidance for Compliance—Performance Evaluations ................................................. 71 IX. COMPLAINTS AND DISCIPLINE .......................................................................................... 73 A. NYPD Investigations of Profiling Allegations ................................................................ 73 B. NYPD Handling of Substantiated CCRB Cases ............................................................... 79 X. COMBINED PILOT .............................................................................................................. 86 XI. EARLY INTERVENTION PROGRAM..................................................................................... 89
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TENTH REPORT OF THE INDEPENDENT MONITOR I. INTRODUCTION
In 2008, a class action lawsuit was brought challenging the stop, question and frisk practices of the NYPD (Floyd v. City of New York). A second lawsuit, Ligon v. City of New York, challenged stops and trespass arrests at private buildings that were enrolled in the Trespass Affidavit Program (TAP), whereby owners allowed the NYPD to patrol their buildings. In a third case, Davis v. New York, plaintiffs challenged stops and trespass arrests and other trespass enforcement efforts in public housing developments.
After a nine-week trial in Floyd, the federal district court ruled that the NYPD’s stop and frisk practices violated the Fourth Amendment protections against unreasonable search and seizure, and, because of the discriminatory nature of the stops, the Fourteenth Amendment’s promise of equal protection under the law. 959 F. Supp. 2d 540 (2013). The court found that officers were making stops without reasonable suspicion and were targeting persons of color. Id. As a result, the court ordered the NYPD to implement reforms to ensure compliance with state and federal law. 959 F. Supp. 2d 668 (2013).
The court order, issued on August 12, 2013, required NYPD to make changes to its policies, training, supervision, auditing, performance evaluation system and discipline. The court also directed NYPD to institute a pilot of police officer body-worn cameras (BWCs). The court appointed a monitor, Peter Zimroth, to assist the parties in developing and implementing reforms, and to report to the court and the public on the Department’s progress in complying with the court’s requirements. The court also directed the parties to participate in a community engagement process called the Joint Remedial Process overseen by a facilitator to determine whether additional remedial measures should be recommended and ordered. In April 2015, the parties settled the
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Davis case, involving policing at New York City Housing Authority (NYCHA) properties. In July 2017, the parties in Ligon settled their case. The court appointed Peter Zimroth monitor in those matters. The Ligon and Davis settlements are each incorporated by court order into the monitorship.
The monitor’s efforts started in November 2014 and is now entering its sixth year. This report describes the compliance efforts made by the City and NYPD and what is left to do. It also lays out guidance regarding how the monitor will decide whether to recommend to the court a finding that the NYPD is in substantial compliance with the court’s orders.
There have been significant changes in the five years of the monitorship. • Policies. The Department has revised its policies on stop and frisk, interior patrol of TAP and NYCHA locations, and racial profiling, among others. • Training. The Department has developed and is implementing revised training on investigative encounters, racial profiling, interior patrol of NYCHA and TAP buildings, basic plainclothes training, promotional training, and training for Police Academy recruits. • Revisions to Auditing. The Department has instituted improved auditing methods and a new auditing plan will be submitted for court review. • Body-Worn Cameras. BWCs were initially launched for the pilot study required by the court, but are now being used by all patrol officers and sergeants citywide. • Performance Evaluation. The Department eliminated methods of evaluation that required officers to count their stops daily and monthly, which in turn had induced officers to increase these activities regardless of their legality.
At the same time these changes were being made, “neighborhood policing” was instituted in almost all commands; a program titled “Operation Impact” was eliminated, so the most inexperienced officers, just out of the Police Academy, were no longer assigned to “hot spots” in neighborhoods with the most crime. Also, the New York City Council enacted new laws encouraging civil summonses instead of criminal summonses for low-level quality of life
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violations (Criminal Justice Reform Act of 2016, https://council.nyc.gov/legislation/criminaljustice-reform/) and the Right to Know Law which require officers to provide more information to members of the public with whom they interact, and to get consent for many searches. The Department and city prosecutors also shifted marijuana enforcement from arrests to criminal summonses (https://www1.nyc.gov/site/nypd/about/about-nypd/policy/marijuana-law.page).
Reported stops made by NYPD members have decreased dramatically since the apex of stops in 2011. Reported stops went from 685,000 in 2011 to 11,238 in 2018. The monitor has consistently raised concerns about stops not being reported, and the NYPD agrees that there are more stops than are being reported. But the reality is that there has been a striking decrease in stops, even if the numbers of stops reported in recent years are undercounted. This decrease occurred while violent crime in New York City continue to decline. Concerns about changing the Department’s prior stop and frisk approach and going “back to the bad old days” of high crime in the City were misplaced.
This report is organized in the following fashion. Section II describes what is meant by “substantial compliance” and the approach that the monitor will take in making his assessment of substantial compliance. In Section III, the report describes the court-ordered requirements for written policy changes pursuant to the Floyd remedial order and the Ligon and Davis settlements and then, for each policy requirement, reviews the efforts made by the Department to implement the policies in practice, and the monitor’s assessment of those efforts. After written policies, the report covers the requirements for compliance, the efforts made by NYPD to comply, and the monitor’s assessment of those efforts for the following topics: Supervision (IV), Training (V), Body-Worn Cameras (VI), Auditing (VII), Performance Evaluations (VIII), and Complaints and Discipline (IX). Section X describes a pilot study that the monitor has proposed and the court
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approved to test the impact of two policy changes that the facilitator recommended. Section XI reviews the court orders requiring 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 trespass enforcement,” and the Department’s efforts in doing so.
The NYPD has made many important changes in the five years of this monitorship. Plaintiffs’ counsel have also contributed in a collaborative effort to advance the reforms required by the court orders. The monitor’s mandate is to focus on what has not yet been done in order for the Department to come into “substantial compliance”; and that mainly is what is discussed in this report. But focusing on what is left to do should not be taken as a diminution of the significant achievements in the past five years or the hard work it took to get here. II. GUIDANCE FOR SUBSTANTIAL COMPLIANCE
In its July 30, 2014, Order Modifying Remedial Order, the court included the following two provisions regarding substantial compliance:
c. “Substantial compliance” in Floyd shall be defined as compliance with material aspects of the Immediate and Joint Process Reforms to be approved and so-ordered by the Court. “Substantial compliance” in Ligon shall be defined as compliance with all material aspects of the Ligon Preliminary Injunction Relief. In either case, 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. d. Substantial compliance shall be measured using the milestones to be set by the Monitor …. The Ligon settlement stipulation and the Davis settlement have similar provisions regarding substantial compliance. Pursuant to the court’s order, the monitor and his team have undertaken the task of setting forth in detail how he will determine whether the NYPD is in substantial compliance and thus whether he will forward that recommendation to the court for approval. The NYPD, the New York
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City Law Department and plaintiffs’ counsel met with the monitor team for many hours over the course of months to discuss these issues. The attempt was to come to mutual understandings of: (1) what the specific requirements of the remedial order were; (2) what sources of information the monitor would use to determine compliance; and (3) what sorts of analyses and metrics the monitor would use to evaluate compliance. Ultimately, although consensus might be desirable, it is the monitor’s responsibility to make these determinations, subject of course to review by the court. As a result of this process, the monitor set out his views on more than 90 separate required tasks. Attached as Appendix 1 is an Excel spreadsheet listing each task, the text from which the requirement is derived, the definition of compliance, the methodology for assessing compliance, and the data needed for the monitor’s compliance review.
The individual requirements are part of a broader assessment of whether the NYPD is in substantial compliance with the overriding requirements of the remedial order—to wit, whether there is lawful policing under the Fourth and Fourteenth Amendments. If there are individual incidents of non-compliance, the monitor will assess whether they have been identified and corrected through instruction, retraining and, when appropriate, discipline. As stated in the Monitor’s Seventh Report, “[t]he question at the end of the day will be whether each of the remedial measures, working together, provides a system of constitutional, respectful policing.”
For a few tasks, an assessment of compliance is simple. For example, the court ordered the NYPD to modify its stop report in specified ways. The NYPD made those changes and the court approved the revised stop report. However, for most tasks, the evaluation of compliance is more complicated. For the policy changes that are required, the monitor evaluates both the revisions or creation of the required policy and the implementation of that policy in practice.
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“Changing written policy is not meaningful unless the change is implemented and sustained in the field. That requires that officers be appropriately trained and supervised, that the NYPD’s systems of rewards and discipline support the requirements, and that the Department have in place auditing and review mechanisms to detect when officers are not following the policies, and effective processes to correct violations and minimize future violations. It is the monitor team’s job to assess each of these areas.” Monitor’s Seventh Report, p. 1.
For some requirements, there are specific quantitative targets that need to be met. For others, the monitor will use a combination of quantitative measures and qualitative assessments of the NYPD’s efforts. In addition, if the NYPD achieves substantial compliance with regard to a specific task, the monitor’s responsibility will be to assess whether compliance has been maintained and whether it is having the desired effect of meeting the fundamental goals of the court-ordered reforms. For example, even though the court has approved basic stop and frisk training, if it turns out that certain aspects of that training are not being implemented on the street, the monitor and ultimately the court would have to consider whether changes are required in that training.
In the following sections, the report discusses each requirement for substantial compliance. III. WRITTEN POLICIES
A. Stop and Frisk Policies The NYPD’s written policy regarding stop, question and frisk is in Section 212-11 of the Patrol Guide. This Patrol Guide section describes the procedure to be followed when an officer stops a person based on reasonable suspicion that the person has committed, is committing, or is about to commit a felony or Penal Law misdemeanor. The court in Floyd recognized that the practice, known as “stop and frisk” or “stop, question and frisk,” can be an important tool to further public safety. The court ruled, however,
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that to comply with the Constitution, the Department needed to make the following changes to the Patrol Guide:
• The Patrol Guide must state what constitutes a stop; when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted.
• The Patrol Guide must include a definition of “reasonable suspicion,” the standard needed for a stop.
• The Patrol Guide must state clearly that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person.
• The Patrol Guide must require officers to document the stop and articulate reasonable suspicion for the stop, and, if conducted, for the frisk.
• The Patrol Guide must require supervisory review of stops, including review of the constitutionality of the stop, and not just that a stop report form was filled out. In August 2015, the court approved a new Patrol Guide section on stop and frisk, P.G. 212-
11, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops. The Patrol Guide also addresses investigative encounters between officers and civilians that are less intrusive than stops or arrests. These encounters are governed by People v. DeBour, which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures, P.G. 212-11, describe the standards that govern each level.
Since 2015, there have been several changes to P.G. 212-11; some were approved by the court, and those not requiring court approval were approved by the monitor. In March 2016, the court approved changes to P.G. 212-11 to reconcile the procedures with the new stop report form. Additional changes were made when the stop report became electronic. In October 2018, the Department proposed and the court approved changes to P.G. 212-11 to comply with the Right to Know Law enacted by the City Council. These laws require officers in certain nonemergency
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encounters to identify themselves by name, rank and command, explain the reason for the stop, and hand out business cards if no one is arrested or issued a summons. They also require officers to inform people of their right not to consent to a search if consent would be necessary to perform the search.
1. Guidance for Compliance—Written Stop and Frisk Policies and Implementation
As noted above, the NYPD has revised its policies to comply with the court’s orders and the court has approved those changes. It is now the role of the monitor to assess whether the policies are being implemented in practice. Compliance with the court’s requirements on stop and frisk policies will be achieved when:
1. Stops made by NYPD officers comply with NYPD’s new policies and with federal and state standards.
2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors, who then take appropriate action to deal with what they found.
3. Stop reports that do not articulate reasonable suspicion are identified by the Department’s auditing arm, the Quality Assurance Division (QAD), and corrective action is taken with respect to the relevant officers and supervisors.
4. QAD evaluates BWC footage of stop encounters described in audited stop reports and identifies stops when the BWC footage is contrary to the reasonable suspicion articulated in the stop report, and corrective action is taken with respect to the relevant officers and supervisors.
5. NYPD officers offer a business card to persons stopped but not arrested or issued summonses.
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Substantial compliance will be assessed by a combination of quantitative measures (the percentage of compliant stops, frisks and searches) and a qualitative assessment of the Department's efforts to ensure that stops are constitutional, including an assessment of the Department’s corrective measures mentioned in items 2 and 3 above. The monitor team is also reviewing BWC footage and associated stop reports to assess whether the BWC footage and the stop reports are consistent, in order to evaluate whether officers are accurately reporting the encounters on their stop reports.
B. Stop Report Form The court orders require that the NYPD develop and implement a stop report form to be used by officers every time a person is stopped. In March 2016, the court approved the NYPD’s stop report form, and in January 2017, the Department began using an electronic form that officers can fill out on their phones, on tablets, or on a computer at the command. The stop report has two narrative sections: one in which the officer states the reasons for the stop and a second in which the officer states the reasons for the frisk and the search, if conducted. The stop report also has a section in which supervisors document the review required by NYPD policy (P.G. 212-11) and any follow-up action. An officer’s supervisor must confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the corresponding activity log entry was reviewed; (4) the supervisor was present on the scene; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken. The Department has made several changes to the stop report. When a stop is based on a radio run (a communication from a dispatcher over the radio, often based on a call for service),
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officers are now required to indicate if the call was based on an anonymous or verified caller, since that information can determine the level of authority an officer is legally allowed to exercise. To comply with the Right to Know Law, the new stop report requires officers to indicate if they sought consent to search and whether it was given. The court approved these changes to the stop report form on October 26, 2018.
1. Guidance for Compliance—Stop Report Form and Implementation Although the stop report itself meets the requirements of the court order, the monitor must evaluate whether the court’s requirements are being met in practice. Compliance with this provision will be achieved when: 1. Level 3 Terry stops made by NYPD officers are documented on stop reports. 2. In stop reports, officers articulate reasonable suspicion for the stop and frisk, if conducted, and the basis for a search, if conducted. 3. BWC footage of stops are not contrary to the reasonable suspicion articulated in stop reports of the same encounters. 4. Officers who make stops and do not document them are instructed or disciplined as appropriate. 5. Supervisors are reviewing the constitutionality of their officers’ stops and documenting their reviews on stop reports. The monitor has raised two areas of serious concern in prior reports. The first is the underreporting of stops. In 2018, although there were approximately 16,000 patrol officers, there were only 11,238 reported stops. This underreporting of stops has been acknowledged by the Department and by officers and supervisors in focus groups conducted by the monitor, and explicitly identified in NYPD audits (discussed in Section VII below). Any assessment of
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compliance with the court’s remedial orders will be impossible unless the Department finds ways to ensure that to a large extent unreported stops are no longer an issue.
The second area of concern is whether supervisors are taking seriously their responsibility to review the constitutionality of stops. At trial, the court found there had been pro forma approval of stops, meaning that there was no substantive supervisory review of the constitutionality of stops. The policies for supervisory review are now in place, and supervisors must state on the stop report form their views as to whether there was a sufficient basis for the stop and a sufficient basis for the frisk or search, if one was conducted. In 2018, out of 11,238 recorded stops, only 58 supervisors noted on the stop reports that the report failed to articulate reasonable suspicion. In the 58 cases in which the reviewing supervisor checked “No” under the caption “Sufficient Basis for Stop,” the following follow-up actions were taken: five were given discipline; 40 were given training, instructions, or both training and instructions; and supervisors listed no follow-up for 13 officers. For the 6,659 stops in which a frisk was conducted, 65 supervisors checked “No” under the caption “Sufficient Basis for Frisk.” In those 65 cases, the following actions were taken: four officers were given discipline; 46 were given training, instructions, or both training and instructions; and in 15 cases no follow-up action was reported. In 3,742 stops, a search was reported. In 45 cases, the supervisor checked “No” under the caption “Sufficient Basis for Search.” The following actions were taken in those cases: 21 officers were given training, instructions, or training and instructions; and in 24 cases, no follow-up action was reported. This issue is discussed further in Supervision, Section IV below.
Officers who do not submit stop reports after a stop and supervisors who do not adequately review those that are submitted are violating the Department’s policies and the court’s orders. The monitor is evaluating how the Department is addressing these significant concerns. The monitor
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has requested data from the NYPD regarding actions taken for the failure to complete a stop report, and will report on that data in a future report. The monitor also pressed the Department to emphasize the need for compliance by instituting a process similar to Compstat.1 The suggestion was that this new process would bring commanding officers and other senior command officials to a meeting at which they would be questioned about compliance, a light would be shone on both poor performance and superior implementation, and those senior officers would be expected to discuss ways to improve the performance of their subordinates. The Department has now put such a program in place—the RISKS Reviews discussed next.
2. RISKS Reviews The NYPD has developed a process it has labeled “RISKS Reviews” (Remediation of Identified Situations Key to Success) based on the monitor’s suggestion. Beginning in December 2018, the Department has held meetings with commands to serve as a forum in which identified issues of risk are brought to light for evaluation. These issues include the underreporting of stops, constitutionality of stops, legality of trespass enforcement, and compliance with policies regarding the use of BWCs, including proper activation, deactivation and categorization, tagging and supervisory reviews of videos. Each command will be brought in for a RISKS Review approximately twice a year. During the period between meetings, relevant statistics (including those generated through audits and selfinspections) are generated for all commands, with rankings of boroughs and commands included. The RISKS Review relies on a two-part process. The first part is a “roll-out,” where commands from an entire patrol borough are assembled together to get a presentation from the Risk
1 Compstat is a management tool used by the NYPD involving weekly meetings at which commanders are brought to police headquarters to respond to questions and data from NYPD executives.
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Management Bureau (RMB) about the key performance indicators being tracked and, therefore, the expectation for the commands. The Chief of Department has attended these roll-outs and begun the sessions with a statement on the importance of conducting Level 3 stops constitutionally and documenting every stop. RMB then provides an explanation of the RISKS Reviews, a review of Patrol Guide requirements for stops, trespass enforcement and BWC recording, a discussion of possible strategies to gain further compliance with applicable Patrol Guide requirements, and a discussion of additional risks that may need to be addressed.
The second part of the process is the “review.” The review involves 30-minute meetings at RMB with supervisory officers from each command in the Patrol Borough. The meetings are chaired by the Deputy Commissioner for Risk Management and co-chaired by the Chief of Strategic Initiatives. Required attendees from each command include the Commanding Officer, the Executive Officer, the Integrity Control Officer, the Special Operations Lieutenant and the Training Sergeant. Members from the appropriate Patrol Borough attend, as well as representatives from both the Chief of Department’s Office and the operational bureau under review (Patrol, Housing or Transit).
The first RISKS Review meeting occurred in mid-December 2018. All commands went through their first RISKS Reviews by October 2019. Members of the monitor team have attended most of these sessions.
With regard to Level 3 stops and BWC usage, the purpose of the RISKS Review is to ensure compliance with the requirements pertaining to the preparation and supervisory review of stop reports and the activation of BWCs, not to seek an increase in police activity or stops. That message has been emphasized consistently at the RISKS Review meetings. These reviews are
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interactive and attendees discuss potential barriers as well as proactive efforts to overcome barriers to full compliance in the areas of stops, trespass enforcement and BWC usage.
Failure of documentation is one of the issues discussed. Several of the commands have started doing their own RAND reviews (labeled as such because these were initially conducted by the RAND Corporation). The command does a search of ICAD dispatches to identify encounters in which the words “Stopped,” Warrant Check,” “Holding” or “Show-up “are used.2 The Integrity Control Officer (ICO) (or other member doing the RAND audit) will evaluate the encounter to see if it appears that a stop occurred and, if so, check to see whether a stop report was prepared. In addition, the Special Operations Lieutenants, who oversee the plainclothes anti-crime team at the command, have been queried about the team’s activities and what efforts the command is making to identify stops that are not documented. There has also been a consistent focus on the command’s self-inspections of stop reports, with the Chief from Patrol Services noting that if deficiencies are missed in the self-inspections, that means there are failings at several levels: the officer making the stop and writing the stop report; the supervisor who missed the deficiency in reviewing the stop report; the ICO who missed it in the self-inspection; and the Commanding Officer or Executive Officer who signed off on the self-inspection.
C. Racial Profiling Policies The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the court on August 24, 2015. The patrol guide defines racial profiling as police action, including stops, frisks, arrests or other law enforcement actions, or the failure to perform a police action, motivated, even in part, by the actual or perceived race, color, ethnicity or national origin of an individual. Race may be considered only if it is part of a reliable and specific suspect
2 ICAD is the Intergraph Computer-Aided Dispatch. 14

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description that includes not just race, gender and age, but other identifying characteristics or information. The policy also includes a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
1. Guidance for Compliance—Racial Profiling Policy As with the Department’s stop and frisk policy, substantial compliance regarding the racial profiling policy also requires that Department personnel be trained on the policy and that the Patrol Guide section be followed in practice. Training on the Department’s racial profiling policies is part of the in-service training on stops and frisks. See Section V below. Compliance with the Department’s racial profiling policies will be achieved when: 1. Stops made by NYPD officers comply with NYPD’s new policies and with federal and state standards regarding racial profiling. 2. Data on stops, frisks and searches made by NYPD officers do not show racial disparities that are not explained by legally justified reasons, and that are practically significant in magnitude and are unlikely to be due to chance. 3. Communications from NYPD leadership (executives, commanding officers and others) and in stop report narratives do not indicate a targeting of defined racial or ethnic groups for stops because of their prevalence in local crime suspect data. The monitor will assess the Department’s compliance with its racial profiling policies and the Fourteenth Amendment by using statistical analyses of NYPD’s stop and frisk data conducted by experts on the monitor team. The monitor team has examined whether rates of compliance with legal standards for stops, frisks and searches differed by race, and if so, whether those differences were due to chance or not. The analysis also examined whether there were changes to racial
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disparity over time. A summary of the data and conclusions of this analysis is included in Section VII, Auditing, below.
The monitor team is considering other analyses of stop and frisk data to assess whether there are statistically and practically significant racial disparities and whether these racial disparities are declining over time. However, significant underreporting would undermine the conclusions of these analyses. For this reason, the analyses listed below will need to wait until the Department has sufficiently addressed the lack of documentation.
1. An analysis of outcomes from stops (frisks, searches, summonses and arrests, force) for Blacks and Hispanics compared to similarly situated non-Hispanics; and
2. An analysis of the recovery rate of contraband and weapons for stops of Blacks and Hispanics compared to similarly situated non-Hispanics.
The monitor team will also conduct analyses for assessing compliance with the Davis orders. The monitor team is currently considering the following types of analyses:
1. Comparison of trespass stops, arrests and summonses over time in and around NYCHA developments;
2. Comparison of outcomes (frisk, searches, use of force, and enforcement activity) from stops in NYCHA developments and around NYCHA developments over time;
3. Examination of whether outcomes vary by whether an officer is assigned to the Housing Bureau or other NYPD units;
4. Examination of racial disparities in outcomes from stops in NYCHA developments compared to outcomes from stops of persons stopped in similar contexts;
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5. Assessment of enforcement activity (stops, arrests and summonses) at various distances from NYCHA (inside, immediate surroundings and further away) and whether the enforcement activities vary by race;
6. Assessment of relative racial disparity in enforcement activity (stops, arrests and summonses) in NYCHA properties compared to disparities in areas with otherwise similar crime rates;
7. Assessment of whether the rate of each outcome (e.g., level of enforcement activity) per block in and around NYCHA housing is similar to what one would expect from other blocks with comparable levels of crime; and
8. Assessment of whether NYCHA developments with comparable levels of crime but different racial distributions of residents have different levels of enforcement activity (stops, arrests and summonses).
The monitor’s assessment of compliance with the Department’s racial profiling policies will also include qualitative analyses. Among other things, the qualitative analysis will include: (1) how the NYPD addresses and investigates racial profiling complaints; (2) how it incorporates race issues in its training; and (3) communications from NYPD leadership (executives, commanding officers and others) to ensure that they do not target defined groups for stops because of their prevalence in local crime suspect data. Compliance or non-compliance with other requirements, such as ensuring documentation of stops, will also inform the monitor’s assessment.
D. Davis/NYCHA Interior Patrol Policies The Davis settlement, incorporated in a court order, requires that the Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) promote constitutional interactions between NYPD officers and persons encountered during interior patrols. Among other things, the Patrol Guide states that, without more, entering, being in or exiting a NYCHA building is not an
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“objective credible reason” justifying an officer’s approach and request for information, nor does it establish reasonable suspicion for a Level 3 Terry stop. P.G. 212-60 also states that arrests for trespass in restricted areas, such as roofs or roof landings, must be made with appropriate notice (e.g., through a conspicuously posted sign). The policy for interior patrols of NYCHA buildings was approved by the court and became effective on April 25, 2017.
The Patrol Guide also requires officers to complete a form documenting all trespass arrests in NYCHA buildings (the Trespass Crimes Fact Sheet (TCFS)). Officers must provide information about what led them to approach the person and what led them to believe that the person was a trespasser. Since May 2017, the NYPD has used the court-approved TCFS for all trespass arrests in both NYCHA buildings and TAP buildings.
1. Guidance for Compliance—NYCHA Interior Patrol Policy Trespass enforcement at NYCHA properties has declined significantly. From 2014 to 2018, trespass arrests in NYCHA developments declined by more than 70 percent. Trespass summonses have declined similarly. Stops at NYCHA properties have declined by more than 50 percent from 2015 to 2018. Moreover, trespass arrests at NYCHA properties have declined for Blacks in a greater proportion than for Whites (see Appendix 2). Even though fewer, the stops, summonses and arrests that are made must be legal and must meet the court’s requirements. Compliance with this provision will be achieved when: 1. Stops made by NYPD officers at NYCHA properties comply with NYPD’s new policies and with federal and state standards. 2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors and appropriate corrective action is taken.
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3. Stop reports that do not articulate reasonable suspicion are identified by QAD, and corrective action is taken with respect to the relevant officers and supervisors.
4. Trespass arrests made at NYCHA properties comply with the NYPD’s policies and with federal and state standards.
The monitor team reviewed a sample of BWC videos tagged as Interior Patrols of NYCHA locations. In 2018, there were 44,208 videos uploaded to the BWC data management system using the tag “Interior Patrol–NYCHA.” A sample of videos was selected to identify encounters in which it appeared likely that enforcement actions were taken, as well as to evaluate routine interior patrols. The monitor team reviewed a sample of 180 videos tagged as including an enforcement action and 180 uncategorized videos.3
In only 101 of the 360 videos (28.1%), the recording officer had significant public contact with a person during the Interior Patrol.4 Even though 180 videos were tagged as involving an enforcement encounter, more than 80 of those videos did not include a significant public encounter. There were 141 persons encountered in these 101 interior patrols. The charts below identify the race and gender of the persons encountered, where the persons were first encountered and the level of the first encounter.
3 Of the 44,208 videos recorded, 42,797 were labeled as “Uncategorized,” and 1,411 videos were labeled as “Arrest,” “Summons” or “Investigative Encounter.” A random sample of 180 “Uncategorized” videos and 180 videos tagged as including an enforcement action (stops, arrests or summonses) were selected. Using a confidence level of 95 percent, a sample of 360 videos from a population of 44,208 results in a confidence interval of 5 percent. 4 Significant public contact is defined as any encounter between the officer and a member of the public that lasts longer than 30 seconds. Routine interactions with staff members of the building, other officers or persons in their official capacity (FDNY, EMS, Postal Service, etc.) were not considered.
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Chart 1. NYCHA BWC Videos

Gender
Male Female Total

Frequency 104 37 141

Percent 73.8 26.2 100

Race
White Black Hispanic Asian Total

Frequency 12 95 33 1 141

Percent 8.5 67.4 23.4 .7 100

Level at First Encounter

Frequency Percent

Level 1

31

22.0

Level 2

7

5.0

Level 3

22

15.6

Level 4

81

57.4

Total

141

100

Location of Encounter_

Frequency

Stairway

48

Hallway

42

Lobby

9

Roof Landing/Stairs

18

Roof

6

Inside Apartment

7

Street/Front of Bldg.

11

Total

141

Percent 34.0 29.8 6.4 12.8 4.3 5.0 7.8 100

The monitor team’s review of the BWC videos determined that the officers’ actions

appeared to meet the Terry and DeBour standards and Department policies in 94 of the 101

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interactions (93%), involving 127 of the 141 persons (90%) encountered. However, the monitor team did note that officers approached and questioned four people, in three encounters, when it did not appear that the officers had an objective credible reason to approach them. Three of the four were detained without reasonable suspicion and one was asked accusatory questions without founded suspicion. In four other encounters, officers stopped nine people when it did not appear that officers had reasonable suspicion to stop them. In one of those encounters, a person was given a summons without the requisite probable cause. For 22 others stopped, the officers appeared to have the appropriate legal justification for the stop. For 81 people, the officers had probable cause to arrest when they were first encountered, mostly because they were on the roof or roof landing or were observed smoking marijuana or other drugs. Of these 81 people, 48 (59%) were arrested and 11 (13%) were issued a summons; for 22 people (27%) engaged at Level 4, no enforcement action was taken.
The monitor team also reviewed a sample of criminal trespass arrests at NYCHA properties. The Monitor requested the Trespass Crimes Fact Sheet (TCFS) and the Online Booking Sheets (OLBS) for 300 randomly selected trespass arrests at NYCHA locations. The NYPD provided the OLBS for the 300 arrests, but provided the TCFS for only 67 arrests. These were the TCFS that were audited by QAD; the Department will be collecting the other TCFS from PSAs and providing them to the monitor team. In reviewing the 67 TCFS, the monitor team determined that eight (12%) did not articulate an objective credible reason for the approach. In two of the 67 arrests (3%), the monitor team determined that the TCFS did not articulate probable cause for the trespass arrest. The monitor team will revisit this data when the Department provides the other 233 TCFS.
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E. Trespass Affidavit Program (TAP) Policies In 2013, in the Ligon case, the court issued an injunction requiring changes to the NYPD’s procedures for stops and frisks at TAP locations. TAP is a program in which police officers conduct interior patrols in certain private apartment buildings. The injunction applied only to Bronx locations. There followed a citywide settlement agreement, filed in July 2017, which spelled out the requirements for DeBour encounters at TAP locations. In June 2016, the court approved P.G. 212-59, the NYPD procedures for interior patrols in buildings enrolled in TAP, a program in which police officers conduct interior patrols in certain private apartment buildings. The NYPD published P.G. 212-59 in April 2017 and conducted roll call training on interior patrols in TAP buildings in June and July 2017. Stops inside and outside TAP buildings must comply with the NYPD’s stop and frisk policies, P.G. 212-11. In addition, P.G. 212-59 states that “mere presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information, nor does it constitute reasonable suspicion for a Level 3 Terry stop. The Department has also revised its administrative guide governing the requirements and procedures for entry into and continued enrollment in the TAP program, A.G. 303-27. For a building to be enrolled in the program, the owner must certify concerns regarding criminal activity or community complaints in the building, such as trespassing or drug activity within the last year. Crime prevention officers in each precinct are responsible for enrolling the buildings in the TAP program and then must assess every six months whether the buildings still meet the criteria for renewing enrollment.
1. Guidance for Compliance—TAP Policies In 2017, the Risk Management Bureau (RMB) met with the crime prevention officers in each Patrol Borough to review the new criteria for enrolling and renewing buildings in the TAP
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program. Each precinct then determined whether buildings already enrolled should remain in the program. As of the first quarter of 2017, 3,591 buildings were enrolled in the TAP program. As of the second quarter of 2019, only 354 buildings remained in the TAP program. With the reduction in buildings enrolled in TAP, there has also been a reduction in the use of trespass arrests and summonses at TAP locations. In 2018, there were 145 stop reports at or within 300 feet of a TAP building, 47 trespass arrests at or within 300 feet of a TAP building and 31 Criminal Court trespass summonses at or within 300 feet of a TAP building. As with Davis, the decline in enforcement does not obviate the need for NYPD to meet its constitutional obligations for the stops, arrests and summonses it does make at TAP buildings. NYPD officers must follow the agreed-upon standards for investigative encounters and trespass enforcement activities in and around TAP buildings.
Compliance with these requirements will be achieved when: 1. Stops made by NYPD officers at TAP locations comply with NYPD’s policies and with federal and state standards. 2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors, who then take appropriate action to deal with what they found. 3. Stop reports that do not articulate reasonable suspicion are identified by QAD, and corrective action is taken with respect to the relevant officers and supervisors. 4. NYPD officers follow the agreed-upon standards for investigative encounters and trespass enforcement activities in and around TAP buildings.
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The Ligon Monitoring Workplan, a draft of which was included as an appendix to the Monitor’s Ninth Report, describes each requirement in the Ligon settlement and the data and analyses needed to assess compliance. The Ligon Monitoring Workplan has not yet been finalized.
The monitor team reviewed a sample of BWC videos tagged as “Interior Patrol–TAP.” In 2018, there were 1,126 videos uploaded to the BWC data management system using the tag “Interior Patrol–TAP.” A sample of 160 of these videos was selected from that population for review.5
In just 26 of these videos (16.25%), the recording officer had significant public contact with a person during the Interior Patrol.6 There were 46 persons encountered in these 26 interior patrols. In 134 of the 160 Interior Patrols sampled (83.8%), there were no significant public encounters. The charts below identify the race and gender of the persons encountered, where the person was first encountered, and the monitor team’s assessment of the level of the first encounter. Chart 2. TAP BWC Videos

GENDER

Frequency

MALE 32

FEMALE 14

Total

46

Percent 69.6 30.4 100

5 Using a confidence level of 95%, a sample of 160 from a population of 1,126 results in a 7.18% confidence interval. 6 Significant public contact is defined as any encounter between the officer and a member of the public that lasts longer than 30 seconds. Routine interactions with staff members of the building, other officers, or persons in their official capacity (FDNY, EMS, Postal Service, etc.) were not considered.
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RACE

WHITE BLACK HISPANIC Total

Frequency 4 24 18 46

Percent 8.7 52.2 39.1 100

FIRST ENCOUNTERED

Frequency

STAIRWAY

14

HALLWAY

7

LOBBY

4

ROOF LANDING 15

ROOF

1

INSIDE APT

3

STREET

2

Total

46

Percent 30.4 15.2 8.7 32.6 2.2 6.5 4.3 100

LEVEL AT FIRST ENCOUNTER

Frequency Percent

1

18

39.1

2

1

2.2

3

2

4.3

4

25

54.3

Total 46

100

The monitor team’s review of the TAP BWC videos determined that the officers’ actions appeared to meet the Terry and DeBour standards and Department policies in 24 of the 26 interactions (92%), involving 42 of the 46 persons (91%) encountered. In one BWC video, the sergeant was observed asking two people in the lobby of the building if they lived in the building without any basis for the approach. Both persons were arrested for trespass. In a second video,
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the officer encountered two people in the stairway of the building, who then ran when they saw the officer. The officer then called out for the individuals to stop. Although the officer did have an objective credible reason to approach the persons, at Level 1, they were free to leave and even run from the officer, so the officer’s command for them to stop was not lawful. Both individuals were released after an investigation determined they lived in the building.
The monitor team also requested the TCFS and the OLBS for 47 randomly selected trespass arrests occurring within 300 feet from a TAP location. It was determined, however, that most of the arrests were at buildings not part of the TAP program at the time of the arrest; several of the arrests were at NYCHA buildings located next to buildings in TAP. The NYPD provided documents for three trespass arrests made at TAP locations. In two of the three cases, the NYPD provided a TCFS, and both articulated an objective credible reason for the approach.
The monitor team also reviewed 30 trespass arrests at TAP locations audited by QAD. Of the 30 arrests, a TCFS was prepared for 28 of the 30 arrests. The monitor team determined that the TCFS articulated an objective credible reason to approach in 25 of the 28 (89%) trespass arrests. For each of the trespass arrests, the arrest documents articulated probable cause for the arrest.
2. TAP Administration To assess the NYPD’s compliance with NYPD Administrative Guide 303-27, Trespass Affidavit Program (the revised TAP guidelines), each quarter the monitor will review the TAP enrollment and renewal forms and supporting documents for a different NYPD Patrol Borough. Compliance with the TAP administrative requirements will be achieved when: 1. Crime Prevention Officers (CPOs) obtain appropriate Trespass Crimes—Owner’s Affidavit and complete TAP enrollment forms for buildings entering the program.
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2. CPOs review and evaluate whether to renew a building’s participation in the program before the expiration of six months.
3. Commanding Officers review and evaluate whether to renew a building's participation in the program before the expiration of one year.
4. Borough Commanders are notified if there is a need for a building to remain in TAP beyond one year, and will recommend approval to the Office of the Chief of Patrol if they determine that the building should remain in the program. The Office of the Chief of Patrol will issue the final approval for renewal.
The monitor reviewed the TAP enrollment and renewal forms for Patrol Borough Brooklyn North for the renewal period ending September 2018 and for Patrol Borough Queens South for the renewal periods ending December 2018 and June 2019. The monitor team also conducted a focus group with crime prevention officers (CPOs) in May 2019.
The CPOs described their efforts to administer the TAP program. If a building owner or manager asks to be in the program, the CPOs evaluate whether the building should be enrolled in the program. For example, the CPOs will check to see if there are calls for service at the building concerning the problem(s) stated and will confer with the precinct’s field investigation officer (FIO) and neighborhood community officers (NCOs). The types of problems that are considered for inclusion in TAP include drug use in stairwells, unauthorized people in building/stairwells and quality of life offenses.7 If there are no records, the CPOs stated that they go to the building and speak with residents to verify the owner’s complaint. Before the Department revised its TAP procedures in 2017, building owners felt they had a right to be enrolled in TAP and renewals were
7 Quality of life offenses would include drinking, gambling, graffiti, loitering and noise, as well as other violations deemed a nuisance by the building owner or manager and the NYPD.
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pro forma. Building owners also viewed the NYPD as their private security force. Now, buildings are vetted to determine eligibility for enrollment. To remain in TAP, building owners and managers must attempt to implement security measures, if recommended by the CPO. If owners do not make good faith efforts to implement the recommended improvements, their buildings are unlikely to remain in TAP upon renewal.
As noted above, the monitor team requested from the NYPD and then reviewed the TAP enrollment and renewal forms and the owner’s affidavits for two patrol boroughs to assess whether the Department was complying with the new TAP administrative procedures guide. The documents thus far provided by the NYPD from Patrol Boroughs Brooklyn North and Queens South were not sufficient for the monitor to conclude that there had been compliance with TAP procedures. For Brooklyn North, TAP enrollment/renewal forms were provided for only two precincts. Consistent with TAP procedures, each form was prepared by the CPO and approved by the precinct commander. However, the Trespass Crimes—Owner’s Affidavits for the buildings in these precincts were not provided. In four precincts, the Trespass Crimes—Owner’s Affidavit for each building was provided, but the TAP enrollment/renewal forms were not.8
For Patrol Borough Queens South (PBQS), the NYPD provided TAP Renewal Forms for the renewal periods ending December 2018 and June 2019, Trespass Crimes—Owner’s Affidavits, eight arrest reports and/or arrest-related documents, and data relating to criminal trespass arrests and criminal court summonses in PBQS for 2018. The 101 Precinct is the sole command in PBQS with buildings enrolled in TAP during the renewal periods ending December 2018 and June 2019. TAP enrollment declined from 22 buildings in the first quarter 2018 to eight buildings in the second quarter of 2019. Four TAP renewal forms were submitted for the eight buildings in both the fourth
8 There were no TAP buildings in the 75, 84, 90 and 94 Precincts in the third quarter 2018. 28

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quarter 2018 and the second quarter 2019. The 2018 renewal forms were approved by both the CPO and the precinct commander; the 2019 forms were approved by the CPO, but were not signed or dated by the precinct commander. It is unclear from the documents provided by the NYPD whether any of the eight buildings, each of which has been enrolled in TAP for more than one year, required approval from the office of the Chief of Patrol.
Based on the monitor’s review of the documents provided for these two patrol boroughs, it appears that in some situations, the precincts have not documented the steps required by the TAP Administrative Guide. In other situations, the steps may have been taken, but the NYPD did not provide sufficient documentation to the monitor team. In only a few buildings were the correct enrollment forms completed, showing that the CPO made the appropriate assessments of the building and the commanding officer approved of the building’s enrollment or renewal. Without enrollment/renewal forms, Trespass Crimes—Owner’s Affidavits and documentation supporting enrollment or renewal for each building, it is not possible for the monitor to make a determination concerning the NYPD’s compliance with its TAP procedures.
F. Trespass Crimes Fact Sheet (TCFS) The settlements in Davis and Ligon require officers making trespass arrests in NYCHA and TAP buildings to document the arrests on a new form—the TCFS.
1. Guidance for Compliance—TCFS Compliance with this requirement will be achieved when:
1. NYPD officers complete a TCFS form (PD 351-144) prior to arraignment any time they effect an arrest for trespass in or around a NYCHA residence or TAP location.
2. The TCFS articulates a proper basis for the approach and probable cause for the trespass arrest.
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The monitor team reviewed a sample of trespass arrest reports and TCFSs for 2018 trespass arrests at TAP and NYCHA locations. The monitor team’s assessment of compliance with the TCFS requirements is described above in Sections III.D and III.E, above. IV. SUPERVISION
From the beginning of this monitorship, the monitor has recognized that significant change in the NYPD depends on first-line supervisors. Sergeants on the street must embrace the changes and be responsible for the officers in their charge. Sergeants and lieutenants must oversee, mentor and educate their officers, and precinct and unit commanders must set the right direction and tone. If supervisors do not take an active role in supervision, oversight, teaching and, when appropriate, discipline, the reforms necessary to achieve compliance will not take hold. Supervisors must ensure that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented.
NYPD policies set out supervisors’ responsibilities. Patrol Guide 212-11 requires documentation of all stops and establishes the responsibilities of supervising officers up the chain of command. Supervisors are required to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk or an appropriate basis for the search, the supervisor must document that and specify an appropriate follow-up: instruction, additional training or, when warranted, discipline. These supervisory responsibilities have been emphasized in the Department’s training, but putting in place the right policies and training is not the same as having those policies and that training applied in practice.
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1. Guidance for Compliance—Supervision

Compliance with this provision will be achieved when:

1. Supervisors review stops for constitutionality in a comprehensive manner and take

appropriate corrective action when they identify improper stops, frisks or searches.

2. Supervisors who observe or learn of officers who make a stop but do not document

the stop with a stop report take appropriate corrective action.

3. ICOs complete self-inspections of stop reports and review the reports for

constitutionality.

The monitor team has examined a sample of stop reports audited by QAD, as well as ICO

self-inspections and QAD’s audit of supervisory review. The monitor team also assesses NYPD’s

efforts through RISKS Reviews and follow-up training conducted for supervisors who do not

identify deficient stop reports or trespass arrests.

To date, there are still very few instances in which supervisors are noting on stop reports

an insufficient basis for the stop, frisk or search and identifying corrective action. Chart 3 below

shows that supervisors: identified an insufficient basis for the stop in 58 of 11,239 stop reports;

identified an insufficient basis for a frisk in 65 of 6,659 stops in which a frisk was conducted; and

identified an insufficient basis for a search in 45 of 3,742 stops in which a search was conducted.

Chart 3. Supervisory Actions on Stop Reports

# Stop Reports

Full Year 2018

11,239

# Reviewing Supervisor Determined No RS for Stop 58

# Stop Reports with Frisks
6,659

# Reviewing Supervisor Determined No RS for Frisk 65

# Stop Reports with Searches
3,742

# Reviewing Supervisor Determined Search Not Justified 45

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Chart 4 below shows the following for each quarter of 2018: the number of stop reports

that QAD audited; the number of stop reports in those audits that QAD determined did not

articulate reasonable suspicion (RS) for the stop; and the number of those same stop reports that

the reviewing supervisor determined did not articulate reasonable suspicion for the stop. The chart

also compares the number of stop reports that QAD determined did not articulate reasonable

suspicion for the frisk, if conducted, with the number of reports for which the supervisors found

no reasonable suspicion for the frisk, and a similar comparison of QAD’s and the supervisors’

determinations regarding the number of stop reports that did not articulate a basis for the search,

if conducted.

Chart 4. Supervisory Actions on Stop Reports Compared to QAD Assessments

Quarter
1Q2108 2Q2018

# Stop Report s Audite d by QAD
1,838
1,850

# QAD Determine d No RS for Stop
423

# Reviewing Supervisor Determined No RS for Stop
8

# QAD Determined No RS for Frisk
102

#

# QAD

Reviewing Determine

Supervisor d Search

Determined Not

No RS for Justified

Frisk

4

29

# Reviewing Supervisor Determined Search Not Justified
0

326

10

87

4

60

3

3Q2018 1,503 236

20

84

4

15

4

Although very few supervisors identified deficiencies on the completed stop reports, the NYPD has noted that supervisors sent a significant number of stop reports back to the officers for corrections before they signed off on the reports. According to the NYPD, supervisors corrected 28 percent of the stop reports completed in 2018. The NYPD has not reported how many of those corrections related to the officers’ articulation of reasonable suspicion for the stop or frisk or basis for the search, or instead were corrections for other reasons (e.g., typos or failure to complete other

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Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 39 of 100

unrelated fields in the report). The monitor team will be reviewing supervisors’ corrections to stop reports to assess whether supervisors are taking additional appropriate actions on stop reports.
Another way the monitor assesses supervision is to examine the self-inspections of stop reports conducted by the command’s ICO. Each month, the ICO of each command must examine the most recent 25 stop reports filed by officers in the command and review whether the stop and any frisk or search, if conducted, were proper, and whether the supervisor who approved the stop report properly assessed the legality of the stop. The self-inspection is then signed off by the command’s executive officer or commanding officer. When QAD conducts its audits of each command, it also examines the command’s self-inspections. If a stop report is reviewed by both the ICO in a self-inspection and QAD in its audit, QAD reviews whether the ICO’s findings are consistent with its auditors’ findings. Inconsistencies between the self-inspections and QAD’s audits are identified in the command’s RISKS Review profile. If the ICO determined that the stop or frisk narrative in the stop report was sufficient, but QAD determined that the stop report did not articulate reasonable suspicion, the ICO’s self-inspection is discussed at the RISKS Review meeting. Chart 5 below show the results of QAD’s assessments of the ICO self-inspections for 2018. Chart 5. QAD Audit v. Command Self-Inspections of 2018 Stop Reports

Quarter

# Stop Reports Audited by QAD

# Stop Reports Audited by QAD in Command SelfInspection

% Stop Reports Audited by QAD in Command SelfInspection

# QAD/Cmd Consistent

% QAD/Cmd Consistent

1Q2018 2Q2018 3Q2018 4Q2018
Total

1,838 1,850 1,809 1,696 7,193

1,396 1,386 1,181 865 4,828

76%

858

62%

75%

896

65%

65%

756

64%

51%

585

68%

67%

3,095

64%

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Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 40 of 100

The Department has created a protocol to give supplemental training to supervisors who

repeatedly approve deficient stop reports. Supervisors who have approved multiple stop reports

that QAD determined to be deficient are scheduled to take the in-service investigative encounters

training if they have not already attended that training. Those who have already received the

training are sent to a smaller refresher class. Supervisors who have approved more than three

deficient stop reports have their stop reports and other paperwork reviewed by attorneys in RMB.

They also receive one-on-one training from an attorney in RMB aimed at the specific deficiencies

that have been identified. The chart below lists the number of supervisors who have been retrained

based on their approval of deficient stop reports.

Chart 6. Supervisor Retraining

1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

2 Deficient Stop Reports Approved by Supervisor; Supervisor Retrained 28 5 * * *

3 or More Deficient Stop Reports Approved; Supervisor Retrained 9 3 12 3 12

* In the first six months of 2018, RMB sent supervisors for retraining who approved two deficient stop reports, but sent supervisors who approved three deficient stop reports for retraining after that, leaving it to the command to take corrective action for those who approved one or two deficient reports.

In addition to retraining, a number of commands have issued CRAFT reports for

supervisors who approve deficient stop reports.9 In the fourth quarter of 2018, 91 supervisors were

given a “Needs Improvement” CRAFT report for approving a deficient stop report.

9 CRAFT stands for Cop’s Rapid Assessment Feedback Tool. Supervisors can issue a Supervisory Comment Form in the CRAFT system for an officer’s positive actions or negative actions (Needs Improvement). The CRAFT “Needs Improvement” report is now used by NYPD instead of the Minor Violations Log, which was a logbook kept at the command but was not tracked Departmentwide.
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The Department’s RISKS Reviews are also a way for the Department leadership to emphasize the importance of supervision to achieve compliance. The monitor team has attended RISKS Reviews for all of the patrol precincts. During these meetings, Department leadership looks to the commanding officer to describe the proactive steps the command is taking to address compliance problems. The command profile provided to the command for RISKS Review meetings highlights compliance (or lack thereof) with respect to stop encounters and stop documentation and with BWC procedures. One particular area examined is whether the results of the command’s self-inspections of stop reports, generally performed by the ICO, are consistent with QAD’s audits of stop reports. Another focus of these meetings is the review by supervisors of officers’ BWC video, with the Department stressing that the reviews are not just a box checked, but an opportunity to identify positive conduct, negative conduct and training opportunities. Each command will be called back for a review roughly six months after the first review, and they are told that the Department expects to see improvement in any area in which it is needed.
The general philosophy behind the RISKS Reviews is that they are not “gotcha” meetings, but a collaborative approach to understanding barriers to full compliance. This is an appropriate strategy, but the process must create the right incentive for compliance. Expected performance must be reinforced and poor performance must be identified. Here, as elsewhere, there needs to be both positive reinforcement of expected performance and negative consequences for poor performance, so that sought-for behavior becomes habitual. The monitor has provided the NYPD with recommendations for potential ways to improve the RISKS Reviews. Additional information that could be included in a command profile and discussed at the RISKS Review meetings include:
• Stop reports identified by supervisors on the report as deficient, and any follow-up actions noted, along with stop reports determined by QAD to be deficient, but not identified by supervisors
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• Stop and frisk post-training exam scores from each command
• Discipline imposed for serious failures, such as failing to complete a stop report when one was required.
• Number of profiling complaints in the command
The monitor also recommended that RMB document any “homegrown” proactive efforts to
address compliance at the command level to share with the Department.
V. TRAINING The Department, plaintiffs’ counsel and the monitor team have worked diligently over the
five years of the monitorship to develop training materials required by the court orders and stop
and frisk and trespass enforcement policies. To date, the following training courses have been
approved by the court:
In-Service Stop and Frisk and Racial Profiling Training for Police Officers In-Service Stop and Frisk and Racial Profiling Training for Supervisors (Sergeants and
Lieutenants) Recruit Training—Policing Legally Recruit Training—Policing Impartially Recruit Training—Interior Patrol (NYCHA and TAP buildings) Recruit Training—Characteristics of Armed Suspects Training for Newly Promoted Supervisors Basic Plainclothes Training Investigating Racial Profiling and Biased Based Policing Complaints One-Day Housing Training for Housing Bureau officers
The court also approved the scripts for roll call training videos on investigative encounters and
interior patrols in NYCHA and TAP buildings after the Department developed court-approved
Patrol Guide sections on those topics. The current version of the approved training materials may
be found at http://nypdmonitor.org/training/.
Compliance with the training requirements will be achieved when:
1. NYPD training instructors provide training consistent with the court-approved
training materials.
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2. NYPD patrol officers and detectives are trained on the subjects of the courtapproved training.
3. NYPD supervisors are trained on the subjects of the court-approved training for reviewing officer stops and documentation of stops.
4. NYPD recruit officers are trained on the court-approved training.
The monitor’s assessment of substantial compliance with the court’s training requirements will also take into account whether officers are applying the training in the field, as reflected in their stop reports, trespass arrest documentation and an assessment of unreported stops.
A. In-Service Stop and Frisk and Racial Profiling Training 1. Content of the Stop and Frisk Training Materials
The training materials cover the fundamental principles of stop, question and frisk, trespass enforcement and bias-free policing. Opportunities for discussion about the role of race in investigative encounters are included in several places. The materials describe the difference between the constitutionally permissible use of race based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops. The materials also effectively convey the changes in NYPD procedures governing investigative encounters and interior patrols, as well as what is expected of officers and supervisors regarding the documentation and supervision of stops and trespass arrests. In sum, the training materials meet the requirements of the court orders.
At the beginning of the training, attendees see an important statement by the Police Commissioner that explains how the training grew out of the stop and frisk litigation, how the overuse and misuse of stop and frisk harmed both the Department and some of the communities it
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serves, that the responsibility for this misuse rests with the leadership of the Department, and that the Department now owes its members a comprehensive training course so they understand what, under the law and Department procedure, they can and cannot do. The video can be seen at http://nypdmonitor.org/resourcesreports/training.
An attorney from the Department’s RMB or from a local district attorney’s office and uniformed members of the service co-teach an interactive class on the law and procedures regarding investigative encounters. The NYPD has added additional material covering the new Right to Know Law. After this portion of the course, the class breaks for a meal.
For the supervisors’ course, the content of the post-meal session includes discussions of video footage from NYPD BWCs with a focus on sergeants’ and lieutenants’ role as supervisors, particularly with regard to how to supervise stops and how to discuss stop reports with their subordinates, and the need to ensure proper documentation of all stops. For the officers’ training, the post-meal session includes reviews of BWC footage involving investigative encounters, after which the instructors discuss both good and bad examples of stop reports for those encounters. The NYPD has added a section on procedural justice in the post-meal session for officers and supervisors and has also included BWC videos of self-initiated stops.
The court approved training materials for NYPD’s in-service training on Investigative Encounters for NYPD supervisors (sergeants and lieutenants) on December 5, 2017. After the training materials were revised to address Right to Know Law issues, the stop and frisk course for patrol officers was approved by the court on July 10, 2018.
2. Roll-out of Stop and Frisk Training The Department determined that supervisors would be trained first so the training could cover additional material on supervisory responsibilities. Training for supervisors began in December 2017. The Department began training its patrol officers in February 2018 to pilot
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proposed changes to the training materials. Training for officers continued after the training materials were revised to address Right to Know Law issues. The training is being held at the Tactical Village at Rodman’s Neck. To increase the effectiveness of the training, each class is limited to 30-35 officers or supervisors. The training is taught every weekday and is taught on both the day (7x3) and evening (3x11) tours.
According to the NYPD, as of September 5, 2019, 17,843 police officers and 592 detectives have gone through the training and 2,775 sergeants and 1,001 lieutenants have been through training. Still to be trained as of that date, according to the NYPD, were 4,222 police officers, 4,844 detectives, 1,719 sergeants and 709 lieutenants. The Department currently anticipates that all uniformed members of the service will have received this training by the summer of 2020.
3. Observations of Stop and Frisk Training Since January 2018, the monitor team has observed numerous classes of both supervisors and patrol officers. Plaintiffs’ counsel also have attended training classes on a quarterly basis. The monitor team and plaintiffs’ counsel have shared with the Department observations and views about the course materials, the way the materials have been presented and the course instructors. The monitor team observed SQF training in April, July and October 2019. The instructors observed by the monitor team were knowledgeable and followed the approved materials. Although they varied in style and in their ability to engage the officers, the instructors were quite good. One area in the morning sessions was not covered sufficiently. The material about NYCHA and TAP interior patrols was covered in approximately five minutes. Although, as noted by one of the instructors, a full day of instruction will be given to the Housing Bureau and precinct personnel who patrol public housing in their commands, this section should be discussed more
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thoroughly, as patrol officers policing TAP buildings will not be getting the Housing Bureau training.
The afternoon session included viewing and discussion of video footage and completed stop reports. The classes went through the strengths and weakness of stop reports completed in class, as well as common errors and mistakes in stop reports. There was also a new emphasis from previously observed sessions on the four elements of procedural justice: Voice (actively listening); Neutrality (ensuring fairness); Respect (treating people with dignity); and Trustworthiness (being transparent).
B. Recruit Training Recruit training was a particular focus of attention for the parties and monitor at the beginning of the remedial effort, as there was a recruit class that started in January 2015, shortly after the start of this monitorship. The monitor, the NYPD and the plaintiffs recognized that the new class of recruits could not be trained using materials that the court and the NYPD had found inadequate. The parties worked to develop new student guides, lesson plans, PowerPoint presentations and scenarios for several subjects. Training materials for Police Academy recruit classes on stop and frisk, racial profiling and interior patrols for TAP and NYCHA buildings were rewritten and approved by the court in April 2015. The materials for these courses have been revised as new NYPD policies were approved (e.g., P.G. 212-11, Investigative Encounters). The course on investigative encounters (Policing Legally) was also updated to reflect the electronic stop report form. The course on interior patrols of TAP and NYCHA buildings was updated to reflect the new procedures governing those topics, P.G. 212-59 and P.G. 212-60.
1. Recruit Training on Stop, Question and Frisk A recruit training class entitled “Policing Legally—Street Encounters” covers the legal standards governing when an officer may stop, question and frisk a person. The training
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emphasizes that the legal authority for a stop does not automatically provide the authority for a frisk. To frisk a person, the officer must have reasonable suspicion that the person stopped is armed and presently dangerous. The training materials stress that an encounter between a civilian and an officer is a “stop” when a reasonable person would not feel free to disregard the officer and walk away. Such an encounter requires the officer to have reasonable suspicion that the person was engaged in or is about to be engaged in criminal conduct. The course covers Terry v. Ohio and the four levels of DeBour encounters.
In 2018, the parties agreed on additional changes to the Policing Legally recruit materials. The primary purpose of these changes was to ensure consistency with the in-service investigative encounters training being taught at Rodman’s Neck to incumbent officers. One significant change was the addition of BWC videos as a tool to review each level of investigative encounter. Information regarding the requirements of the Right to Know Law was also added to this curriculum. The revised Policing Legally training materials were approved by the court on August 14, 2018.
The Monitor team observed Policing Legally classes early in the monitorship, and returned to the Police Academy to observe these classes in the summer of 2018 and the summer of 2019. Team members found the instruction to be consistent with the court-ordered materials and well presented, with significant recruit engagement.
2. Recruit Training—Policing Impartially The remedial order requires new training on the NYPD’s prohibition of racial profiling. Under that policy, officers may not use race as a motivating factor, even in part, for law enforcement action, unless the action is based on a reliable and specific suspect description. A general suspect description, such as “young, black male,” is not sufficient; in addition, the fact that a particular group may appear more frequently in local crime statistics is not enough information
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for there to be reasonable suspicion for a stop. The class material includes information regarding bias and police history and how knowledge of this history can help officers be more effective.
Monitor team members observed this class in 2018 and in July and October 2019. Plaintiffs’ counsel also observed two sessions. The course was presented well and followed the general course guide and approved material. The instructor for the April 2019 class opened the course describing how everyone has biases, and how the way in which officers approach individuals may be a reflection of those biases. He noted that officers must make an effort to be aware of and control their biases, and that biases are more likely in situations when officers have discretion to take law enforcement action. The instructor also reinforced the difference between criminal profiling and racial profiling several times. The instructor for the October class followed the instructor materials, but did not elaborate on the materials and engage the recruits, although there was opportunity to do so.
Monitor team members have noted that discussions of bias-based policing, profiling and community respect have been interspersed in several of the recruit training courses and the associated scenario-based training, beyond Policing Impartially. Incorporating these themes consistently throughout the training modules will support the building of a Department culture.
3. Recruit Training—Interior Patrol In 2015, the NYPD combined recruit training materials regarding patrols at TAP buildings with the training materials approved by the court in Davis governing housing patrols in and around NYCHA buildings. The training materials were approved by the monitor and meet the requirements of the court orders. The training instructs recruits that mere presence near, entry into or exit from a TAP or NYCHA building is not an “objective credible reason” to approach a person to request information. The training also includes hypothetical scenarios for both TAP and
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NYCHA buildings. Monitor team members have observed these classes and have found the instruction to be consistent with the approved materials.
4. Recruit Training—Recognizing the Characteristics of Armed Suspects
One recruit training segment identified in the Floyd liability and remedies decisions as needing revision was a training module conducted by the Firearms Training Section on the characteristics of armed suspects.10 This training teaches recruits about factors that should raise their awareness when they attempt to determine whether or not an individual they encounter is armed. A revised version of this training was approved by the court in February 2017.
Monitor team members and plaintiffs’ counsel observed this training in July 2019. The class was taught by a 27-year veteran of the NYPD who has taught similar material for more than 10 years. The instruction followed the court-approved lesson plan and covered all of the learning objectives. The instructor went to great lengths to emphasize that this was not a stand-alone lesson and that this training must be considered in the context of all other lessons/training received (e.g., investigative encounters training). He noted that none of the characteristics singularly was sufficient to show reasonable suspicion that a person was carrying a firearm.
C. Training for Newly Promoted Supervisors Training materials for newly promoted sergeants and lieutenants were approved by the court on March 27, 2018. A principal focus of this training is the expanded responsibilities of supervisors, particularly sergeants, under the new Patrol Guide procedure for investigative encounters and specifically with regard to the stop report. The format of the training has been changed to encourage class participation and add BWC video, and is similar to the in-service
10 Floyd v. City of New York, 959 F. Supp. 2d 540, 614 (S.D.N.Y. 2013) (liability decision); see Floyd v. City of New York, 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013) (remedies opinion).
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training described above for incumbent sergeants and lieutenants. The monitor team has not observed this training since 2017, and will plan to observe and report on the training in the next report.
D. Basic Plainclothes Course The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers, including officers who will be joining a precinct-based anti-crime or conditions unit, or any other unit that works in plainclothes. It is important to ensure that these officers get training on stop and frisk policies, because their work often involves actively seeking to detect and apprehend suspects and because they are making a significant proportion of the NYPD’s reported stops. On August 14, 2018, the court approved revised training materials for a module on investigative encounters that is part of a three-day course given to plainclothes officers. The revisions were done to make sure the materials were consistent with the in-service investigative encounters training. In addition, BWC videos involving plainclothes officers were added to the training to demonstrate some of the main teaching points. The monitor team plans to observe upcoming plainclothes training and report in a future report. E. Housing One-Day Training On May 29, 2019, the court approved materials for a one-day training that will be given to all Housing officers. The Davis settlement requires that the Department provide in-service training so that officers who conduct interior patrols in NYCHA buildings are familiar with the posted rules and regulations in those buildings and have guidance on how to maintain the proper balance between enforcing the law and respecting the rights of residents and their guests. After a long period of negotiations, the parties came to a consensus on language that carefully strikes this balance. The training encourages officers to use their discretion when appropriate. The NYPD
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began this training in October 2019. The monitor team and plaintiffs’ counsel observed this training in November 2019.
F. Training for Investigating Profiling and Biased-Based Policing Complaints Training for Internal Affairs Bureau (IAB) investigators and investigators from patrol borough investigative units regarding investigations of profiling allegations (Internal Investigators Course, Module Number 04, Profiling and Bias-Based Policing) was approved by the court in January 2019. The training module is designed to provide investigators with the fundamental skills to process and investigate complaints regarding the NYPD’s policy prohibiting racial profiling and bias-based policing. Upon completion of the module, class participants should understand the NYPD’s policy, the procedures for investigating racial profiling and bias-based policing allegations, and strategies for investigating those allegations. The standards for when investigators can substantiate or find a profiling allegation unfounded, even in the absence of corroborating physical or documentary evidence, are explained. The monitor team observed this training in July 2019. The instructors used the courtapproved PowerPoint slides and lesson plan, were familiar with the material and did a good job covering it, including the learning objectives stated at the beginning of the presentation. The instructors emphasized Department policy prohibiting officers from targeting members of a racial or ethnic group for police action because they appear more frequently in local crime suspect data. Although this was not part of the written training materials, the instructors addressed a number of additional issues on racial profiling investigations: • The officers should not close out a case as unfounded because the complainant was found guilty of the underlying criminal case. • The fact that the subject officer and the complainant are of the same race does not mean that there is no racial profiling; that cannot be a reason for closing the case as unfounded.
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• If the investigator has not been able to contact the complainant, the investigator should check to see if the complainant might be incarcerated. The instructors discussed investigative steps that should be taken when investigating racial
profiling allegations: contact the complainant; permit the complainant to tell the full story without interruption and ask follow-up questions after; and don’t close a case simply because the complainant is uncooperative. Investigators were encouraged to look for trends such as similar allegations against the subject officer, and to compare the officer’s activity to those of peers on similar tours. It was also suggested that investigators check the officer’s Civilian Complaint Review Board (CCRB) history for “racial slurs” or other offensive language allegations. However, there was limited description of what would constitute a pattern and how investigators should identify trends. This training was not a “how to” course for investigating racial profiling investigations; rather, the NYPD states that borough investigators receive detailed instructions on investigations in other IAB courses. The monitor recommends that the training be conducted in a more interactive manner, perhaps by reviewing prior investigations or including scenarios of good and poor interviews of complainants and subject officers.
G. Field Training Officer (FTO) Guide and Training The training for FTOs has been revised to reflect changes to the in-service investigative encounters training. In addition, BWC videos have been added to the training and the PowerPoint presentation has been made more engaging. H. Training on Fair and Impartial Policing Training The court’s Remedial Order noted that it may be appropriate for the Department to conduct training “on the effect of unconscious racial bias.” Early in the monitorship, the Department committed itself to developing training on implicit bias and procedural justice. “Implicit bias” is the concept that people make automatic, unconscious associations between groups of people and
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stereotypes about those groups, and arise from the particular environment (neighborhood, family, friends, media, etc.) in which they grew up, live and work. “Procedural justice” is a phrase used to describe the necessity of treating civilians with respect, listening to them and explaining the officer’s actions.
In 2017, the NYPD contracted with an outside vendor, Fair and Impartial Policing, LLC (FIP), http://www.fairimpartialpolicing.com/, to create the training materials and teach the course. Specific sessions of the training are tailored to particular audiences depending on whether they are senior executives, mid-level managers, supervisors or police officers. The training includes discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. The point of the training is to make officers more aware of biases so that those biases do not interfere with the officers’ law enforcement functions.
Professor Jennifer Eberhardt, a member of the monitor team and one of the leading experts in the country on implicit bias in the law enforcement context, reviewed the training materials and provided feedback and suggestions for edits to the NYPD and FIP, as did plaintiffs’ counsel and one of the plaintiffs’ experts, Professor Jack Glaser. Based on that input, some parts of the training materials were revised. FIP instructors presented the training to the monitor team and plaintiffs’ counsel, who provided feedback. In September 2019, the plaintiffs reviewed the revised FIP training materials and discussed their views with the CEO of FIP.
In February 2018, the Department began the FIP training for all 36,000 uniformed members of the service, including those at the highest levels of the Department (e.g., the Commissioner, the First Deputy Commissioner, and all the commanding officers of the precincts and other
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commands). The NYPD also conducted train-the-trainer sessions for instructors at the Police

Academy, who began presenting the training for recruit officers in August 2018.

Although the court did not require training on implicit bias or procedural justice, the

monitor believes that this training could contribute to the Department’s efforts to reach substantial

compliance. As of September 20, 2019, 30,611 members of the service have gone through the FIP

training.

PC

1st Dep.

Chief of
Staff

D.C

Chief

Asst. Chief

Deputy Chief

Insp.

DI

Capt.

Lt.

Sgt.

P.O.

1 1

1 14 14 15

45

89 163 340 1,821 4,454 20,086

Although implicit bias training for police officers, and the FIP training in particular, has been conducted throughout the country, what is less clear is what impact this training has on officers’ attitudes and behavior. There have not yet been any systematic scientific evaluations of the training. The NYPD is working with the IACP-University of Cincinnati Center on Police Research and Policy and with the Finn Institute for Public Safety at SUNY Albany to evaluate NYPD’s implicit bias training of patrol officers. The evaluation is designed to determine the effectiveness of the training in raising officers’ awareness of and knowledge about unconscious bias and providing officers the skills to manage their own unconscious biases.
I. Refresher Training Course for Investigative Encounters The NYPD and the parties recognize that the one-time training on stop and frisk at Rodman’s Neck or at the Police Academy will not be sufficient to instruct and prepare recruits and officers to properly conduct stops and frisks and supervisors to review stops and frisks. The NYPD has taken several steps beyond the Rodman’s Neck training, including: delivery of refresher training at precinct roll calls upon requests of training sergeants; placement of the investigative
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encounters lesson plan on the RMB website; creation, distribution and posting of an investigative encounters summary chart; and delivery of refresher training at RISKS roll-out meetings.
In addition, the NYPD has committed to developing “booster” or refresher training for officers and supervisors, including officers who recently graduated from the Police Academy. The supervisors’ “booster” training will include additional material regarding review of stop reports and the responsibilities of supervisors. This training will likely be in the form of an online course, and will include a post-training quiz. The training materials for this course will be reviewed by the parties and the monitor and submitted for court review.
Compliance with the requirements for refresher training will be achieved when: 1. NYPD provides training consistent with court-approved training materials. 2. NYPD incumbent and probationary officers have taken a refresher course on investigative encounters. 3. NYPD supervisors have taken a refresher course on investigative encounters and supervisory responsibilities for review of stop reports and documentation. VI. BODY-WORN CAMERAS A. Precinct-Level BWC Pilot As part of the Remedial Order, the court directed the monitor to oversee a pilot of the use of BWCs by NYPD officers. The goal of the pilot program is to assess the costs and benefits of deploying cameras and whether deployment would result in reducing unconstitutional stops and frisks. The NYPD launched the BWC pilot program in April 2017; by November 2017, there were approximately 1,200 officers in 20 pilot precincts wearing cameras for a one-year period. In a randomized control trial, those 20 precincts were matched with 20 precincts in which officers were not wearing cameras. The last of the 20 pilot precincts completed the one-year study period in
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November 2018. The monitor team is currently working with the NYPD to obtain the data necessary to complete the analysis of the study and prepare a report on the pilot. The study will examine outcome measures relating to the civility of police-civilian encounters, police activity and police lawfulness.
1. Supervisory Review of BWC Videos As part of the BWC pilot, the court directed the monitor to “establish procedures for the review of stop recording by supervisors and, as appropriate, more senior managers.” In 2017, the NYPD developed a self-inspection protocol for the review of BWC videos by sergeants in the commands with BWCs. Sergeants must review five BWC videos each month. After reviewing these videos, sergeants must complete a BWC self-inspection worksheet for each video; the sergeant’s platoon commanders or lieutenant must then review two of the videos and complete the self-inspection worksheet; and the command’s executive officer must review and approve the BWC self-inspection worksheet. In addition to the self-inspection, the NYPD’s BWC patrol guide, P.G. 212-123, directs the patrol supervisor, training sergeant and ICO to “[p]eriodically review BWC video as appropriate, to provide positive feedback and address any performance or tactical deficiencies observed.” The monitor approved the Department’s protocols for supervisory review of BWC videos in August 2017. The monitor team will be reviewing a sample of BWC selfinspections for the next report.
2. Preserving BWC Videos for Investigation of Complaints The Remedial Order also directed the monitor to “establish procedures for the preservation of stop recordings for use in verifying complaints in a manner that protects the privacy of those stopped.” When the BWC pilot was launched, the NYPD did set out a procedure for sharing BWC video with the CCRB. The BWC patrol guide, P.G. 212-123, states that “[t]he Internal Affairs Bureau will process requests from the Civilian Complaint Review Board for body-worn
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camera video as per P.G. 211-14,” but it does not provide any protocol for how those videos would be shared or any timeframe for when they would be shared. Initially, there was agreement between the NYPD and the CCRB that requested BWC videos would be provided within seven business days, but this was at a time when there were only 1,000 cameras in the pilot program.
The CCRB issued its Executive Director’s November 2019 Statistical Report, with data through October 2019, about pending requests for BWC footage. According to the CCRB, there were 574 requests for BWC footage pending in November 2019, with half of the video requests pending for more than 30 days and 28 percent of the requests pending for more than 60 days. The monitor worked with the NYPD, Law Department and CCRB to determine the extent of delays and their causes, and develop a procedure for prompt access to BWC footage by the CCRB. On November 21, 2019, the NYPD and CCRB entered into a Memorandum of Understanding (MOU) to expedite production and sharing of BWC footage. The MOU is attached as Appendix 3.
B. PSA BWC Pilot Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Public Housing Police Service Areas (PSAs) were not included in the BWC randomized control trial. PSAs overlap with the 40 precincts in the randomized control trial, and if a PSA were selected to have cameras, the randomized control trial could include areas that also might have been selected as part of a control precinct without cameras. Professor Anthony Braga and other members of the monitor team have developed a separate research and evaluation plan for the use of cameras by Housing Bureau officers working in PSAs. The Monitor’s Eighth Report describes the monitor’s research plan for evaluating BWCs for Housing Bureau officers. NYPD Housing Bureau officers in the nine PSAs were equipped with BWCs over the course of nearly 11 months, starting with PSA 8 in February 2018 and ending
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with PSA 9 in December 2018. The study will compare officer data for the 36 months before officers were equipped with BWCs to 12 months after they were equipped with BWCs.
C. Citywide Expansion of BWCs Equipping officers with body cameras continues to be a priority for the Department. In February 2019, the NYPD completed its roll-out of BWCs to all uniformed officers performing patrol functions in Patrol Services Bureau, Housing and Transit. There are now approximately 20,000 BWCs in use by those officers. In March 2019, the NYPD began equipping with BWCs approximately 4,000 members of the service assigned to specialized units such as the Emergency Services Unit, the Strategic Response Group and Critical Response Command. The roll-out to specialty units was completed in July 2019.11 NYPD continues to expand the BWC program, and will cover executives in Patrol Services, Housing and Transit commands. Lieutenants have been issued BWCs, and two-thirds of other executives (Captains through Inspectors) have also been issued BWCs. The quantity of BWC footage being captured continues to grow exponentially. As of December 1, 2019, more than seven million videos have been recorded. As noted above, BWC videos are being added to trainings to demonstrate real-world conditions and scenarios. BWC footage is being used by precinct-level supervisors as a tool to improve their ability to supervise members of the service and has also become part of the Department’s auditing efforts. D. Guidance for Compliance—Body-Worn Cameras Compliance with the BWC provisions will be achieved when: 1. The NYPD provides the monitor with all the data necessary to complete the BWC analysis and report.
11 https://www1.nyc.gov/site/nypd/about/about-nypd/equipment-tech/body-worn-cameras.page. 52

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 59 of 100
2. The NYPD implements supervisory reviews of BWCs consistent with the review protocols approved by the monitor.
3. The NYPD shares BWC videos with the CCRB consistent with procedures approved by the monitor. VII. AUDITING
The Quality Assurance Division (QAD) monitors compliance with Department policies and the law, including those relating to stop and frisk and trespass enforcement. QAD also periodically requires commands to submit self-inspections in order to monitor their compliance. The audit procedures address whether the appropriate paperwork was prepared (e.g., was a stop report completed), whether Department reports were prepared properly, and the quality of the information contained in the Department reports (e.g., whether the stop met constitutional standards). QAD is currently conducting four types of audits relevant to the remedial measures: (1) audits of stop reports, activity logs and associated BWC videos; (2) RAND audits to identify undocumented stops; (3) audits of police-initiated enforcement (called PIE audits), also to identify undocumented stops; and (4) audits of trespass arrests and Trespass Crime Fact Sheets (TCFS).
A. Auditing of Stop Reports and Activity Logs 1. QAD Stop Report Audit Results
QAD uses two auditing methodologies, one for Patrol Bureau commands and another for other commands, including Housing PSAs and Transit Districts. Since the fourth quarter of 2018, QAD has adopted a new auditing methodology for all Patrol Bureau commands. Stop reports in these commands are now evaluated weekly. Stop reports in other commands, including PSAs and Transit Districts, continue to be evaluated quarterly. QAD provides a detailed assessment of each command’s performance in the most recent quarter as compared to prior quarters.
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Chart 7. QAD Stop Report Audits

Period
2017 2018 1Q19

Stop Reports Evaluated
7,526

Stop Narrative Articulates Reasonable Suspicion for Stop 5,448 (72%)

6,902 5,272 (76%)

1,741 1,410 (81%)

Frisks Evaluated
4,480 3764 838

Frisk Narrative Articulates Reasonable Suspicion for Frisk 3,920 (88%)
3,424 (91%)
797 (95%)

Searches Evaluated
2,458 2175 533

Search Narrative Articulates Legal Basis for Search
2,256 (92%)
2,055 (95%)
501 (94%)

Note that QAD reviews only frisks and searches from stops that are lawful. If QAD determines that the stop report did not articulate reasonable suspicion, the frisk and search, if conducted, are not reviewed by QAD in its audits and not included in the calculations, in Chart 7 above, of the percentage of frisks with reasonable suspicion and searches with a legal basis.
As noted in Section IV, Supervision, commanding officers oversee self-inspections in their commands. Concerning stop, question and frisk, the ICO in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for the month reviewed, the ICO must evaluate all of them. The results of these selfinspections are reported up the chain of command in the precinct and the borough and then QAD reviews a subset of the results to assess whether the results of the command’s self-inspection of stop reports are different than the results of QAD’s audit of stop reports. Stop reports that QAD finds deficient but that the command’s self-inspection did not, are identified in the command’s RISKS profile and are raised at the command’s RISKS Review meeting.
2. Monitor Team Review of Stop Report Audits Starting with the audits from the fourth quarter of 2016, the monitor team has obtained QAD’s audits of a sample of commands, along with the audited stop reports from those commands. The goal is to evaluate the auditors’ work and also review a sufficient number of stops to be able to make meaningful statements about citywide compliance. The stop reports are evaluated by
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three members of the monitor team. When they disagree, the stop reports are reviewed by the monitor and deputy monitor. These disagreements are discussed in monitor team meetings, and then the results are sent to QAD, which meets with the monitor team to discuss those cases in which there is a disagreement between QAD’s and the monitor’s assessment.
Chart 8 below reports on the monitor’s assessment after all these steps. For each quarter, the chart shows the number of stop reports that the monitor team reviewed and, in the second column, the number and percentage of stop reports that the monitor team determined articulated reasonable suspicion for the stop. The third column is the number of stop reports reviewed in which a frisk was conducted, and the fourth column reports the number and percentage of stop reports that articulated reasonable suspicion that the person stopped was armed and dangerous. For example, in the fourth quarter of 2016, there were 146 stops that included a frisk. The monitor team determined that 111 of those 146 stops (or 76 percent) articulated reasonable suspicion for the frisk. The fifth column reports the number of stops that included a search, and the sixth column reports the number and percentage of stop reports that the monitor team determined articulated a justification for the search.
Several things can be noted based on the monitor team’s review of stop reports. First, the level of compliant stop reports has improved over time. This is particularly true for whether the officer articulates reasonable suspicion for the stop, which occurred in a little over 80 percent of stops for the second half of 2018 compared to less than 60 percent in the first half of 2017. The percentage of officers who articulate reasonable suspicion that the person stopped was armed and dangerous (necessary for a frisk), or justification for the search, has also increased over time, although the level of compliance was fairly high even in the fourth quarter of 2016.
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Chart 8. Monitor Team Review of Stop Reports 4Q 2016 through 4Q 2018

Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018

# Stop Reports Reviewed by Monitor Team
261 256 302 312 305 308 295 302 300

Stop Reports That Articulate Reasonable Suspicion for the Stop 121 (46%) 142 (55%) 178 (59%) 188 (60%) 212 (70%) 202 (66%) 211 (72%) 251 (83%) 239 (80%)

# Stop Reports in Which Suspect Was Frisked

Stop Reports That Articulate Reasonable Suspicion for the Frisk

# Stop Reports Where Suspect Was Searched

146

111 (76%)

67

145

114 (79%)

79

176

143 (81%)

91

179

146 (82%)

87

171

153 (89%)

107

213

187 (88%)

92

189

169 (89%)

81

150

134 (89%)

113

184

170 (92%)

113

Stop Reports That Articulate Justification for the Search
56 (84%) 68 (86%) 73 (80%) 76 (87%) 101 (94%) 84 (92%) 70 (87%) 98 (87%) 106 (94%)

Chart 9 below compares the number and percentage of stop reports each quarter that QAD determined articulated reasonable suspicion with the number and percentage of stop reports that the monitor team determined to be justified. Both QAD audits and those conducted by the monitor team show an improvement in the stops meeting the standard of reasonable suspicion. Chart 9 shows that although the monitor team’s assessment of compliance is lower than the NYPD’s assessment of compliance, the difference between the monitor team’s assessments and QAD’s assessments has decreased over time. This is likely due at least in part to the meetings with the monitor team and NYPD and a more thorough review of the stop reports by QAD as a result.

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Chart 9. QAD and Monitor Ratings of Justified Stop Reports

Audit Quarter QAD (No., % Yes) Monitor (No., % Yes) Total

1Q2017

197

142

77%

55%

256 100%

2Q2017

209

178

69%

59%

302 100%

3Q2017

219

188

70%

60%

312 100%

4Q2017

221

212

72%

70%

305 100%

1Q2018

222

202

72%

66%

308 100%

2Q2018

238

211

81%

72%

295 100%

3Q2018

240

230

88%

85%

272 100%

4Q2018

232

239

83%

80%

300 100%

Total

1,778 76%

1,602 68%

2,350 100%

3. Analysis of Racial Disparities in Stop Reports Deemed Not Justified

As part of the monitor’s assessment of the Department’s compliance with its racial

profiling policies, the monitor conducted an analysis of whether there are racial disparities in the

stop reports that the monitor team found deficient in articulating reasonable suspicion for stops,

frisks or searches. The race of the person being stopped was noted in 97.5 percent of the forms

that were reviewed by the monitor.12 Chart 10 below shows, for each quarter, the number of stop

12 For ease of interpretation of categories, the race of the person stopped was collapsed into three categories, representing whether the person was Black (Black, n=1,295, 56.48%, Black Hispanic,
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reports reviewed by the monitor team broken down by the race of the person stopped, and then the percentage of those stop reports that the monitor team determined articulated reasonable suspicion.13
The overall improvement in constitutionality of reported stops according to the monitor team’s review of stop reports appears to have occurred primarily among persons stopped who were identified as being Black or Hispanic. This is reflected in the fact that for Blacks and Hispanics stopped, there is a substantial improvement in the overall percentage of stops rated as meeting constitutional standards. The percentage of stop reports audited over time (1Q2017 to 4Q2018) that were judged to meet constitutional standards, however, continues to be significantly lower for stops of Blacks and Hispanics than that for stops of Whites.
n=222, 9.68%), Hispanic (White Hispanic, n=520, 22.68%), White/Other (White, n=211, 9.2%; Asian, n=42, 1.83%; Middle Eastern, n=3, 0.13%). These are the same categories used in prior analyses by the monitor and by plaintiffs’ expert. 13 Again, it should be noted that these analyses (stops, frisks and searches) are based on stops for which there was a completed stop report, and thus would not provide any information about stops that are not reported.
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Chart 10. Monitor Judgments That Stop Reports Articulate Reasonable Suspicion, by Race of Person Stopped

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race indicated

Total No., Percentage Justified Total

1Q2017

54

156

67%

49%

41

5

256

59%

100%

55%

2Q2017

38

191

74%

60%

70

3

302

51%

0%

59%

3Q2017

33

213

79%

60%

57

9

312

56%

22%

60%

4Q2017

23

181

74%

69%

91

10

305

73%

40%

70%

1Q2018

15

210

80%

67%

74

9

308

58%

67%

66%

2Q2018

21

215

71%

71%

53

6

295

72%

83%

72%

3Q2018

41

153

78%

84%

68

10

272

87%

100%

85%

4Q2018

31

198

90%

76%

66

5

300

85%

100%

80%

Total

256

76%

1,517 67%

520

57

2,350

68%

65%

68%

The monitor team’s expert, John MacDonald, examined these data to test whether the

differences between the monitor’s ratings for stops of Whites and the monitor’s ratings for stops

of Blacks or Hispanics were likely due to chance or not. The method used compared the disparities

in justified stops by race identified by the monitor team to 1,000 simulations where the ratings (the

percentages of justified stops) were not associated with a particular racial category, but were

randomly scrambled among the racial categories. The results from this test show that the lower

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percentage of justified stops for Blacks (67%) and Hispanics (68%) relative to Whites (76%) would occur by chance in only 0.1 percent and 1.8 percent of 1,000 times, respectively. Looking at the more recent stop reports for 2018, however, the difference in ratings for justified stops for Blacks (74%) and Hispanics (75%) relative to Whites/Others (81%) is smaller. Using the same test, one would expect these differences to occur by chance 17 percent and 25 percent in 1,000 times, respectively. This disparity is no longer statistically significant at the five percent level. The 2018 data indicates that there appears to be some narrowing of the racial disparity gap in the constitutionality of rated stops in the more recent quarters.
The monitor team also rated the constitutional justification for frisks if they occurred during the audited stops. The percentage of frisks that the monitor team rated as being justified has also improved over time, from a low of 79 percent in the first quarter of 2017 to a high of 92 percent in the fourth quarter of 2018. Just as interesting, the percentage of justified frisks was higher for Blacks (86%) and Hispanics (88%) compared to Whites (84%). These differences in justified frisks would occur by chance 51 percent and 18 percent in 1,000 times, respectively. These disparities are not statistically significant at the five percent level. This suggests that the racial disparities for frisks is narrow, if at all, and likely a chance occurrence due to which cases were sampled for auditing.
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Chart 11. Monitor Assessments that Frisk Is Justified, by Race of Person Frisked

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race indicated

Total No., Percentage Justified Overall

1Q2017 17 71%

108

19

1

145

80%

79%

100%

79%

2Q2017 14 79%

117

43

2

176

81%

84%

50%

81%

3Q2017 14 79%

126

36

3

179

82%

81%

100%

82%

4Q2017 12 75%

106

48

5

171

90%

92%

100%

90%

1Q2018 6

152

50

5

213

100%

86%

92%

80%

88%

2Q2018 10 80%

150

24

5

189

90%

92%

80%

90%

3Q2018 17

77

38

6

138

100%

87%

95%

100%

91%

4Q2018 22 91%

124

35

3

184

94%

89%

100%

92%

Total 112 84%

960

293

30

1,395

86%

88%

90%

87%

The monitor team also rated the constitutional justification for searches if they occurred

during the audited stops. The percentage of searches that the monitor team rated as being justified

also has improved over time, from a low of 80 percent in the second quarter of 2017 to a high of

94 percent in the fourth quarter of 2018. The results show a lower percentage of searches rated as

being justified for Blacks (88%) and Hispanics (90%) compared to Whites (96%). These

differences would occur by chance 1.5 percent and 4.6 percent in 1,000 times, respectively. This

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suggests that the racial disparity gap in justification of searches is not likely a chance occurrence,

due to cases sampled.

Chart 12. Monitor Assessments That Search Is Justified, by Race of Person Searched

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race Indicated

Total No., Percentage Justified Total

1Q2017 15

39

24

1

79

100%

77%

92%

100%

86%

2Q2017 11

53

27

91

82%

85%

70%

80%

3Q2017 11

56

20

87

100%

80%

100%

87%

4Q2017 8

64

30

2

107

100%

95%

91%

100%

94%

1Q2018 7

52

30

3

92

100%

87%

97%

100%

91%

2Q2018 2

63

16

81

50%

87%

87.5%

86%

3Q2018 12

60

32

2

106

100%

93%

91%

100%

93%

4Q2018 11

74

26

2

113

100%

93%

92%

100%

94%

Total

77

461

208

756

96.%

88%

90%

90%

4. QAD Audits of BWC Videos Associated with Stop Reports and Arrests
In the fourth quarter of 2017, QAD began auditing BWC videos associated with the five

most recent stop reports that indicate there is a corresponding BWC video. These videos and their

corresponding stop reports are reviewed for completeness, professionalism, consistency with the

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stop report narratives and whether the “What Is a Stop?” information card or, more recently, the

officer’s business card was handed out. Chart 13 below. A similar analysis is performed for the

five most recent arrest reports that indicate they have corresponding BWC videos. Chart 14 below.

In the case of arrests, the videos and arrest reports are reviewed for completeness and whether a

stop report was prepared if the arrest arose out of a stop. In the majority of cases, QAD found that

the video was either consistent with the narratives in the stop report or inconclusive.

Chart 13. QAD Audits of Stop Reports with Associated BWC Video

Number of Videos Reviewed
4Q2017 64

Video Consistent with Stop Narrative
58%

Video Inconsistent with Stop Narrative
0%

Video Inconclusive with Regard to Stop Narrative
42%

1Q2018 84 2Q2018 168

68% 124 (74%)

3% 1 (0.5%)

30% 43 (26%)

3Q2018 277 4Q2018 466 1Q2019 757

230 (83%) 367 (79%) 660 (87%)

7 (3%) 63 (13%) 96 (13%)

40 (15%) 36 (8%) 1 (0.1%)

Chart 14. QAD Audits of Arrest Reports with Associated BWC Video

2Q2018 3Q2018 4Q2018 1Q2019

Number of Videos Reviewed
38 144 418 818

Video Consistent with Arrest Report 37 (97%)
139 (96%)
410 (98%)
764 (93%)

Video Inconsistent with Arrest Report 1 (3%)
5 (4%)
8 (2%)
54 (7%)

The monitor team will be reviewing the BWC videos audited by QAD for the first quarter of 2019

and will report on those reviews in the next report.

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B. QAD Audits for Undocumented Stops The documentation of stops is essential for the Department to demonstrate substantial compliance with the remedial orders. QAD performs two types of audits to determine whether or not stops are being properly documented: RAND audits and police-initiated enforcement audits.
1. RAND Audit Results QAD continues to audit the potential underreporting of stop reports by using what has been labeled a RAND audit. As discussed above, this audit program is designed to identify stop encounters using radio transmissions to identify instances in which stop reports should have been prepared. QAD uses keyword searches of ICADs to identify events that likely involved stop encounters. These keywords are “Stopped,” “Show-up,” “Holding” and “Warrant Check.” Once a potential stop encounter is identified, through the review of ICADs and/or listening to the corresponding radio transmissions, NYPD records are reviewed to determine if a corresponding stop report was prepared. If there is BWC video of the event, QAD reviews the video as part of this analysis. If the auditor determines that a stop report may have been required, the matter is referred to the command for further investigation. The command then reports back to QAD whether the encounter did, in fact, require a stop report and whether one was filed. Chart 15 below shows that in 2018, there were 26 Terry stops without a stop report prepared.
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Chart 15. RAND Audits with Command Responses

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Total RAND Audits Indicating a Possible Stop 28 28 31 21 23 21 25 26 25 17

Stop Reports Prepared
8 6 6 12 12 12 13 6 11 11

Report Deemed Not Necessary After Command Investigation 8 10 9 4 6 7 5 12 5 6

Total Terry Stops
20 17 22 17 17 14 20 14 20 13

Terry Stop Without Stop Report
12 11 16 5 5 2 7 8 9 2

Compliance Rate (%) (Stop Reports Prepared/Total Stops)
40% 35% 27% 71% 71% 86% 65% 43% 55% 85%

Below are the follow-up actions taken by the commands for members who did not document stops.

Chart 16. Command Follow-Up Action

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Terry Stop Without Stop Report
12 11 16 5 5 2 7 8 9 2

Command Discipline
2 0 0 0 4 1 1 1 1 0

Instructions/ Training
3 6 8 3 1 0 3 4 0 0

Minor Violations Log or CRAFT Supervisory Report 14 5 5 5 1 0 1 3 3 8 2

No Disciplinary Action
2 0 3 1 0 0 0 0 0 0

14 The minor violations log was a logbook kept at each command that recorded minor violations of Department rules by members of the service. The information in these logs was not tracked centrally, it did not become part of a member’s personnel record, and there were no penalties or additional consequences for being listed in the log. The NYPD has replaced the minor violations log with a CRAFT Supervisor’s Comment Form.
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2. Results from Audits of Police-Initiated Enforcement QAD also uses police-initiated enforcement audits to detect undocumented stop

encounters. These audits look at the last 25 arrests in each command from the audit period that

result from police-initiated enforcement (PIE). These are defined as arrests in which the People

of the State of New York are the complainants on the Complaint Report, such as criminal

possession of a controlled substance and criminal possession of a weapon. Arrest reports are

reviewed to determine whether or not a stop report should have been completed for the encounter.

When an auditor determines that an arrest report possibly required a stop report and no stop report

was filled out, the arrest report is sent to the command for further investigation.

Chart 17. PIE Audits with Command Responses

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Arrests Audited
103 161 154 194 225 120 141 148 150 141

Stop Report Not Required 50 95 104 122 171 74 103 74 63 103

Command Response Missing
7 23 6 26 0 4 5 37 72 5

Stop Report Required
46 43 44 46 54 42 33 37 15 33

Stop Report on File
20 19 13 12 20 18 16 17 7 16

Percentage Compliance (SR on file/SR Required) 44% 44% 30% 26% 37% 43% 29% 46% 47% 29%

C. QAD Auditing of Trespass Crimes Fact Sheets Officers are required to fill out a TCFS for all trespass arrests in and around NYCHA

buildings and buildings enrolled in TAP. QAD auditors review whether or not a TCFS was

prepared when required, whether or not the officer articulated a proper basis for the approach, and

whether the arrest documentation articulates probable cause for the arrest. As noted in Chart 18

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below, in the first quarter of 2019, NYPD officers completed a TCFS for only 21 of 30 (70%)

trespass arrests at TAP locations, and articulated probable cause for trespass arrests at TAP

locations in only 18 of 30 arrests (60%). These levels of compliance require particular attention.

Chart 18. QAD Audits of TCFS

2018

TAP Trespass Arrest Had TCFS
82% (140/171)

TAP TCFS Articulated Proper Basis for Approach
98% (137/140)

TAP Trespass Arrests Articulated Probable Cause 75% (129/171)

NYCHA Trespass Arrest Had TCFS
85% (516/604)

NYCHA TCFS Articulated Proper Basis for Approach
97% (501/516)

NYCHA Trespass Arrests Articulated Probable Cause 94% (567/604)

1Q19 70% (21/30) 91% (19/21)

60% (18/30)

93%

99% (144/146) 92%

(146/157)

(145/157)

D. Guidance for Compliance—Auditing The NYPD has revised its auditing protocols and methodologies many times during this monitorship, often in response to suggestions from the monitor and the parties. Protocols, templates and worksheets for audits will continue to be revised in an iterative process to improve the Department’s process for identifying and correcting errors. However, the Department will need to finalize an auditing plan for the court’s review that describes the types of audits that will be conducted and the general methodology for those audits. The protocols, worksheet and templates used by the auditors can be submitted to the court for its information, without requiring changes to these documents to be approved each time there is a revision. Compliance with auditing requirements will be achieved when the NYPD establishes an auditing plan that: 1. Provides a sampling methodology for auditing stop reports and includes a review of BWC videos as part of the SQF audits.

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2. Provides audit procedures for stop reports, assessing whether: (i) officers sufficiently articulated reasonable suspicion as the basis for the stop; (ii) officers sufficiently articulated the legal basis for a frisk and/or search, if applicable; and (iii) supervisors reviewed the form and made correct determinations about the legality of the stop, frisk and search and took appropriate follow-up action.
3. Includes a review and audit of command self-inspections. 4. Includes audit procedures for trespass arrests and associated TCFS at NYCHA and TAP locations, assessing whether (i) officers sufficiently articulated a legal basis for the approach; (ii) officers sufficiently articulated probable cause for the arrest; and (iii) there was appropriate supervisory review. 5. Provides procedures for audits of police-initiated enforcement arrests. 6. Provides procedures for RAND audits. The NYPD distributed its Auditing Plan to the parties in September and the monitor team and parties met to discuss the plan. In November, the NYPD distributed a revised Auditing Plan that addressed the monitor team’s and plaintiffs’ concerns. Going forward, for example, the NYPD plans to review the BWC videos associated with each of the stop reports that it audits. The monitor and the parties will be working to finalize an auditing plan to submit to the court for review. VIII. PERFORMANCE EVALUATIONS A. Performance-Evaluation System for Officers and Detectives At trial, the court found that NYPD “officers [were] routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops [were] constitutionally justified.” Floyd, 959 F. Supp. 2d at 602. The NYPD’s performance-evaluation system was one of the sources of this pressure. Id. at 590, 592-94. In November 2017, the court
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approved the monitor’s recommendation regarding a new performance-evaluation system that the Department began earlier that year for patrol officers.
In the new system, the lawfulness of stops and the accuracy of stop reports play a role, but the number of stops does not. The court reviewed and approved the monitor’s recommendation and ordered that the monitor review and assess certain aspects of the system. The review is to ensure that, in practice, the new system does not “reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness” or undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments. ECF 564.15
There are four significant components of the new evaluation system. The first is the Officer Profile Report, an electronic form that is automatically generated monthly. This report compiles data from numerous Department databases and compares the officer to other officers in his or her precinct, borough and citywide. It does not count the number of stops made by the officer. The second component is the Supervisor Feedback Form, which allows supervisors to highlight commendable actions by an officer or note areas that may need improvement. A third component is the Officer Self-Report Form, which allows officers to document notable actions they consider
15 Pursuant to the court order, “the Monitor shall, in his bi-annual reports, review and assess the NYPD’s performance-evaluation system to ensure that, on paper and in practice, it does not (a) reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness or (b) undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedies Opinion.” “During the period of Court supervision, Court approval is required before the NYPD implements any proposed change to the performance-evaluation system that may (a) introduce a mechanism to count the number of stops conducted by an officer or (b) affect the manner in which the quality and lawfulness of stops are assessed. The NYPD shall notify the Monitor and the parties of any such proposed change so that the Monitor—in consultation with the parties—may seek Court approval.”
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to be positive, such as community engagement, problem-solving or achievements in crime
prevention.
The fourth component is the Quarterly Evaluation, which took effect in April 2017 for the
first quarter of 2017. Supervisors are instructed to review the Officer Profile Report as well as any
Supervisor Feedback Forms and Officer Self-Report Forms from the relevant period prior to
completing the Quarterly Evaluation. Supervisors use the Quarterly Evaluation to rate officers in
12 performance categories or “dimensions” on a scale from one to four. The fourth quarter
evaluation will provide the supervisor with a summary box to recap the officer’s performance over
the entire year.
The 12 performance categories are:
1. Problem Identification/Solving 2. Adaptability and Responsiveness 3. Judgment 4. Integrity 5. Application of Law and Procedures 6. Community Interaction 7. Departmental Interaction 8. Professional Image and Maintenance of Equipment 9. Quality and Timeliness of Reports 10. Initiative 11. Leadership 12. Implementation of Proactive Policing Strategies (for members who perform
administrative functions, a different dimension, Competence in Unit’s Mission, replaces this dimension)
An important question for the monitor is whether the system is working as designed. Are
the data that are supposed to be feeding into the Officer Profile Report being incorporated into the
system? And, importantly, are supervisors completing the evaluations of their officers? An initial
problem with the performance evaluation system was that when a supervisor found an insufficient
basis for a stop, frisk or search, that data from the stop reports was not showing up in the Officer
Profile Report. After the monitor raised this issue with the NYPD in 2018, a technical fix was
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instituted so that the data now automatically populates the given member’s monthly Officer Profile Report.
In June 2019, the monitor team met with the NYPD to review the operation of the performance evaluation system. The Personnel Bureau is now responsible for ensuring that supervisors are completing evaluations of their officers. For the third quarter of 2018, evaluations were completed for 16,288 officers, but 3,891 evaluations were not completed on time. For the fourth quarter of 2018, evaluations for 15,819 officers were completed, but evaluations for 4,154 were not completed on time. The Personnel Bureau states that it is focusing on the problem of late evaluations or supervisors who fail to complete evaluations of their officers, and the monitor will examine this issue going forward.
The new evaluation system covers the evaluation of officers and detectives only, and does not change the evaluation system for sergeants, lieutenants, captains and other supervisors. Expansion of this system to sergeants and lieutenants will be a topic of discussion during the next round of collective bargaining with the NYPD sergeants’ and lieutenants’ unions.
B. Guidance for Compliance—Performance Evaluations Compliance with court requirements for the Performance Evaluation system will be achieved when on paper and in practice it does not: 1. Reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness. 2. Undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedial Opinion. To evaluate whether the performance evaluation system meets these criteria, the Monitor has undertaken a number of steps. The monitor team has reviewed the evaluations for officers receiving a “Needs Improvement” rating for Application of Law and Procedures, Accuracy and
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Timeliness of Department Reports and Implementation of Proactive Policing for the fourth quarter of 2018. The monitor team also reviewed data on officers receiving a “Needs Improvement” CRAFT supervisory feedback report for those dimensions. In addition, the monitor team has conducted focus groups of supervisors regarding the performance evaluation system, and talked with officers and supervisors when making site visits to commands.
The monitor team’s review of that data and discussions with supervisors indicates that the NYPD’s performance evaluation system, as it is being implemented in practice, does not lead supervisors to pressure officers to make more stops without regard to the lawfulness of those stops. The monitor team did not find cases in which officers were given negative evaluations because of a lack of stop activity. Nor was there evidence that the system is undermining the goals of the remedial process.
In reviewing the Supervisory Feedback Forms, we noted that the largest category of negative CRAFT entries was for an officer’s failure to activate his or her BWC when NYPD policy required mandatory activation, or for turning off the BWC prematurely. There were a small number of negative CRAFT reports for officers whose stop reports did not articulate reasonable suspicion for the stop or frisk, or for failure to complete a stop report when a stop was made, and there were also some negative CRAFT entries for supervisors who approved stop reports when a self-inspection or a QAD audit determined that the stop report was deficient. These examples support the goals of the remedial process. There was one aspect of the performance evaluation system that the monitor did raise with the NYPD. According to the NYPD’s Performance Evaluation System Guide, when a supervisor rates an officer as “Needs Improvement,” “Exceeds Expectations” or “Exceptional,” the rating should be supported by official documentation. In reviewing the quarterly evaluations with a “Needs Improvement” rating, however, the monitor
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team noted that many supervisors did not comment on or document the reasons for that rating, but

instead left blank the field for comments and documentation.

IX. COMPLAINTS AND DISCIPLINE

The court’s remedial order required the NYPD to change its policies and practices with

respect to investigations of racial profiling and other bias-based profiling allegations as well as its

handling of civilian complaints that have been substantiated by the CCRB.

A. NYPD Investigations of Profiling Allegations

The NYPD investigates all profiling allegations related to race and biased-based policing,

whether the allegation is made directly to the Department or referred from the CCRB. On January

3, 2019, the court approved an IAB guide section and related training that provide detailed

guidance on how to process and investigate profiling complaints. All allegations of profiling are

included in the IAB log and investigated by the NYPD.

Complaints of biased policing are down thus far in 2019. IAB received 641 such

complaints between January 1, 2018 and October 31, 2018 and only 429 during the same period

in 2019. However, as noted in the Monitor’s Ninth Report and continuing today, there have been

no profiling allegations substantiated.

Chart 19. Profiling Case Dispositions by Year, 2014 – October 31, 2019

Unfounded Unsubstantiated Exonerated Partially Substantiated* Information and Intelligence Open or Active Substantiated
Total

2014 2 6 2 0
0
0 0 10

2015 159 109 11 30
0
34 0 343

2016 204 261 0 35
0
62 0 562

2017 310 444 2 45
1
56 0 858

2018 311 361
8 36
1
27 0 744

2019 120 132
2 23
1
151 0
429

Total 1,106 1,313
25 169
3
330 0 2,946

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* These are cases in which other allegations in a profiling complaint were substantiated, but not profiling allegations.
As noted in Section V, Training, the NYPD has revised its training for investigators of profiling complaints: investigators should not close out a case as unfounded because the complainant was found guilty of the underlying criminal case; the fact that the subject officer and the complainant are of the same race does not mean that there is not racial profiling and investigators cannot close a case for that reason; and if the investigator has not been able to contact the complainant, the investigator should check to see if the complainant might be incarcerated. In addition, the NYPD made improvements to its case management system so that investigators now cannot close a case unless they have documented at least three attempts to contact the complainant.
1. Monitor Review of Profiling Investigations The monitor team reviewed a sample of 24 racial profiling cases in 2017 and reviewed another sample of 22 cases in 2019. The sample chosen for review was of cases in which officers had multiple profiling complaints. Many of the investigations reviewed were completed before the NYPD made changes to its case management system, which now requires certain investigatory steps be taken. In September and October 2019, the NYPD provided the monitor team with an additional 43 cases for review, which the monitor team will review for a later report. The monitor team’s review included listening to the investigators’ interviews with the complainants, subject officers and other witnesses, as well as examining any video evidence or documents in the investigative file. Although some investigations were quite thorough and impartial, based on the monitor team’s review, there were others reviewed that did not meet the standards necessary for an NYPD investigation. Each deficiency listed below appeared in at least one of the cases reviewed:
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• Not interviewing the complainant, or witness, or subject and witness officers • Asking questions of the complainant or the subject and witness officers that suggested the
investigator had already reached a conclusion • Asking questions of the complainant that suggested the investigator doubted the validity of
the complaint or the credibility of the complainant • Conducting perfunctory interviews (some interviews of subject officers lasted less than
four minutes) • Not following up on leads • Taking too long to contact either the complainant or the subject officer • Not doing the appropriate investigative canvasses for video or eyewitnesses • Not connecting important pieces of evidence across cases from the same unit • Failing to note trends in the subject officer’s actions, words or behavior, including not
examining the subject officer’s Central Personnel Index (CPI) and prior complaints
The inadequacies of the investigations that the monitor team reviewed should have been
caught by the immediate supervisor or during the review process up the chain of command, but all
of the investigations were approved by supervisors without the problems being addressed. Even
in the investigations that the monitor team determined to be thorough, the investigations could
have been improved with some structural changes to the way these complaints are being
investigated. For example, in most of the cases reviewed, there was a substantial delay in
contacting and interviewing the complainant. Complaints received at the IAB Command Center
are processed and either assigned to an Investigations Unit or investigated by IAB personnel.
Pursuant to the IAB’s guide for processing and investigating profiling complaints, IAB Guide 620-
58, the commander of an Investigations Unit has up to ten days after receiving a case to assign that
case to an investigator. The assigned investigator then has up to ten days to make initial contact
with the complainant. Missed opportunities to interview potential witnesses or secure evidence
(e.g., from video recording systems) can result from a lengthy case intake and case assignment.
Although the IAB guide for processing and investigating profiling complaints was
reviewed by the parties and approved by the monitor and then by the court, the monitor team’s
review of investigations determined that this process should be modified. Profiling investigations 75

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should be pursued with the same vigor and creative thinking that NYPD investigators apply to criminal cases. Impartial and thorough investigations are imperative, even if thorough investigations of the profiling allegations reviewed by the monitor team might still have resulted in insufficient evidence to substantiate the allegations.
In order to assess how these investigations might be better handled, the monitor team met with three groups of NYPD investigators who specialize in investigations: homicide detectives, IAB investigating supervisors and EEO investigators. The monitor team identified several recommendations for improving the investigation of profiling complaints based on its review of profiling cases, the results of the focus groups with IAB case investigators, homicide detectives and EEO investigators, and discussions with the parties. The monitor shared these recommendations with the NYPD in September 2019:
1. Improve initial case assessment and assignment. IAB and the Detective Bureau have guidelines for steps that investigators need to take within the first 72 hours of being assigned a case, including contacting the complainant within 24 hours. NYPD should establish similar guidelines for profiling investigations to ensure that evidence is preserved, video is obtained, witnesses are located and complainants are interviewed while their memory is fresh. Complainants should be contacted as soon as possible to arrange a time and place to meet. When appropriate, a canvass of the area for possible witnesses and to secure video or other evidence should take place within 72 hours of the NYPD receipt of the complaint.
2. Investigative steps that should be taken. Investigators should include the following steps in their investigations: review of the public social media of both the complainant and subject officer; video canvass of the location of the incident (included in the IAB
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procedures for investigating profiling complaints, IAB Guide 620-58, step 5); BWC review; and in-person interview of complainant in a neutral or comfortable location. Also, a canvass of the scene during the same time that the incident occurred may be more likely to identify witnesses. Investigators should be granted access to the IAB Computer Crimes Unit, which has expertise in social media searches, to review the public social media of complainants and officers. Prior profiling allegations against the subject officer should be reviewed and assessed for trends and commonality with respect to the officer’s behavior or types of statements in the case being investigated. This is also set out in the IAB procedures, IAB Guide 620-58, step 11. Investigators also should permit the complainants to provide an account of the incident, uninterrupted by questions. 3. Improve case management and supervision. The Detective Bureau has timelines for investigative reports and supervisory review and feedback. An initial investigative report must be completed and reviewed by a supervisor within three days; at day seven, the case is discussed and supervisory direction is given; at 21 days, decisions are made on the status of the case (close case, make arrest, additional steps to be taken in case). A similar case review system should be set up for profiling investigations, with the 21day review perhaps extended, if appropriate, to accommodate subject officer interviews. The investigator’s immediate supervisor plays a critical role in ensuring a comprehensive investigation. Supervisors should document their analyses and conclusions. 4. Develop a mediation program for profiling complaints. Although the CCRB offers mediation as an option for complainants and officers in certain cases, the NYPD does
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not have a mediation program for complainants and officers to discuss each other’s perspective on the encounter that led to allegations of profiling. The NYPD agrees that mediation may be a beneficial way to address some of the profiling allegations. The NYPD recently informed the monitor that it is in the process of amending its procedures for profiling investigations in light of the monitor’s recommendations as follows: (1) a reduction in time to assignment of case and contact with complainant; (2) a review of public social media of both complainant and subject officer when appropriate; (3) designation of specific investigators at the borough Investigations Unit level as primary investigators for these cases; and (4) additional training for supervisors up to and including the borough adjutant regarding proper review of these cases.16 These changes will be reflected in a revised IAB investigative guide that will be reviewed by the parties and submitted for court review. The NYPD is working with the CCRB to develop a mediation pilot for profiling complaints that the Department expects to launch in January 2020. In addition to investigating the individual profiling complaints, there are other steps that the monitor discussed with the NYPD that the Department should consider in addressing concerns about racial profiling. 1. Leverage the IAB Statistical Unit to analyze racial profiling complaints. The IAB Statistical Unit or some other unit in the NYPD should analyze patterns and trends of profiling complaints, as well as examining social media. The unit can examine enforcement practices to assess whether Department or command policy or practices are contributing to the generation of profiling complaints. The NYPD should examine
16 The borough adjutant is the executive in each patrol borough who supervises the borough investigations unit and oversees the disciplinary system in the borough command. P.G. 202-02.
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whether such policies or practices are examples of selective enforcement or, alternatively, legitimate policies that still may lead to the impression that a particular group is being targeted for enforcement purposes. 2. Integrity testing. IAB does integrity testing to test a variety of policy and law violations. The monitor will be discussing with the NYPD what kind of integrity tests are currently being done and whether they can be adapted to develop integrity testing for racial profiling, as well as illegal stops and frisks and trespass arrests. 3. Include profiling complaints in the command’s RISKS Review (see Section III above). 4. Include profiling complaints, even if not substantiated, in the Department’s early intervention system (EIS). The NYPD has informed the monitor that it plans to make changes to its EIS so that there will be a review of officers with multiple profiling complaints. 5. Review BWC videos of the encounters that led to profiling complaints to examine whether there are particular aspects of the encounters that lead to complaints. This could be a particularly useful way to assess the interactions of officers who have multiple profiling complaints. The NYPD also could compare the BWC videos of officers with multiple complaints with BWC videos of officers in the same squad without complaints. Review of the BWC videos may help the Department develop a template or methodology for identifying and addressing problems leading to complaints.
B. NYPD Handling of Substantiated CCRB Cases At trial, the court found that the NYPD failed to impose meaningful discipline when the CCRB determined that officers engaged in unconstitutional stops and frisks. The court’s order
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requires the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the Department Advocate’s Office (DAO) must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint. The sections below provide updated data on the NYPD handling of substantiated CCRB cases through April 2019.
1. NYPD Discipline and Penalties Imposed The graphs and charts below show the final discipline and penalties imposed for substantiated CCRB cases sent to the NYPD in 2014 through 2018. The data illustrate the decline in the incidence and severity of the final discipline and penalties imposed. This decline resulted from both changes in the initial CCRB recommendations made to the NYPD and the final disposition and penalties imposed by the NYPD. The past several years has seen a substantial change in the frequency with which the CCRB recommends charges and specifications. The monitor examined CCRB disciplinary recommendations in cases involving allegations relating to stop and frisk cases and trespass enforcement cases specifically. Based on data provided by the NYPD to the monitor, it appears that, over time, in such cases the CCRB’s recommendations have generally decreased in severity. In particular, recommendations of charges and specifications declined sharply from 2014 to 2018, from 102 cases in 2014 (57 percent of the total) to 15 in 2018 (17 percent of the total).
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Chart 20. CCRB’s Initial Disciplinary Recommendations, 2014-2018

Instructions Training Command Discipline A Command Discipline B Charges and Specifications Other TOTAL

2014 20 1 4
51
102
119 179

2015 58 22 6517
7418
48
120 268

2016 4 69 72
44
23
0 212

2017 4 22 41
16
19
0 102

2018 15 14 15
28
15
121 88

The police commissioner makes the final determination about the discipline imposed. The chart below compares the CCRB’s initial discipline recommendations with the final discipline imposed by the NYPD for 39 closed 2018 cases involving stops, frisks and searches.
Chart 21. Comparison of Recommended Penalties to Final Disposition, 2018

2018 Penalty Type, Closed Cases Charges and Specifications Command Discipline B Command Discipline A Training Instructions No Disciplinary Action Case Closed Administratively Total

CCRB Recommended Discipline 1 15 9 7 6 0 1 39

Final Penalty
1 2 12 12 3 6 722 39

17 Includes five cases in which instructions were also recommended and three cases in which training was also recommended. 18 Includes one case in which Instructions were also recommended and four cases in which Training was also recommended. 19 In 2014, there was one case in which the CCRB’s disciplinary recommendation is listed in the data as “Command Discipline” without specifying whether level A or B was recommended. 20 In 2015, one case is listed as “NDA” in the data. The notes on the case indicate that the complaint was received after the statute of limitations had run. 21 CCRB initially recommended charges and specifications, but then reconsidered on its own and unsubstantiated the case. 22 Of the seven cases closed administratively, one was unsubstantiated by the CCRB, three were closed because the statute of limitations expired, two officers were dismissed on unrelated cases, and one case involving force had been previously adjudicated by the NYPD.
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2. DAO Reconsideration Request Data The DAO reviews the CCRB’s findings and recommendations for discipline regarding allegations the CCRB has substantiated. In 2014, the NYPD and the CCRB established a new “reconsideration process,” in which the DAO may ask the CCRB to reconsider its findings on whether allegations were substantiated or its recommendations for discipline. The CCRB may then choose to change or maintain its original conclusions. Alternatively, in certain circumstances (such as when a case is running out of time to be tried under the statute of limitations), the DAO may unilaterally recommend a different disposition or discipline to the Police Commissioner, without requesting reconsideration by the CCRB. In either case, the Police Commissioner makes the final decision on what discipline, if any, to impose after reviewing both the CCRB’s and the DAO’s findings and recommended remedy. The NYPD provided the monitor with data regarding substantiated CCRB cases involving stop, question, frisk, search or trespass allegations, the DAO reconsideration requests, and the outcomes of those reconsideration requests. The DAO agreed with CCRB’s findings and recommendations in a majority of the cases in which allegations were substantiated by the CCRB. However, the rate of agreement decreased from 2014 to 2018. In 2014, the DAO agreed with the CCRB findings and recommendations in 82 percent of cases. In 2015, the DAO agreed with 73 percent of the substantiated CCRB cases. In 2016, the rate of agreement was 52 percent; in 2017, it was 57 percent; and in 2018, it was 51 percent. The data below for 2017 and 2018 do not include 12 and 49 cases, respectively, that were substantiated by the CCRB but are still being considered for reconsideration or for which the reconsideration process has not been completed.
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Chart 22. DAO Agreement with CCRB Recommendations, 2014-2017

Year

Substantiated SQF CCRB Cases Sent to NYPD

Cases in Which NYPD Agreed with CCRB Discipline Recommendation23 (%)

2014 193 2015 355 2016 222 2017 90 2018 39

159 (82%) 260 (73%) 115 (52%) 57 (54%) 20 (51%)

Cases in Which DAO Requested Reconsideration of CCRB Discipline and/or Disposition 20
47
88 14 6

Cases in Which NYPD Changed Disposition or Discipline Recommendation Without Reconsideration 14
48
19
25 1324

In almost half of the cases in which the DAO sought reconsideration, the DAO’s disagreement was with the discipline recommended by the Board panel, rather than with the CCRB’s investigation, its credibility determinations or its substantiated findings. Additionally, in those cases where there was no reconsideration request, but the DAO recommended to the Police Commissioner a different result than recommended by the CCRB, the majority of those cases involved a disagreement about the CCRB’s discipline recommendation, not about whether the allegations should be substantiated. For example, in 2018, of the 39 closed cases, the DAO disagreed with the CCRB’s substantiation finding in six cases: three in which the DAO asked for reconsideration and three in which it did not. Chart 23 below shows the number and percentage of cases in which the DAO asked for reconsideration of CCRB’s substantiation of stop and frisk or trespass cases. The DAO has requested reconsideration of the CCRB’s findings in a relatively small portion of cases with allegations based on stop, question, frisk, searches or trespass

23 These numbers include cases where the CCRB recommended instructions but the NYPD imposed training. 24 This includes seven cases closed administratively.
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enforcement: six percent of cases substantiated in 2015, 22 percent of those substantiated in 2016,

11 percent of those substantiated in 2017, and eight percent of those substantiated in 2018.

Chart 23. DAO Reconsideration of CCRB Finding of Substantiation

Total CCRB Cases

DAO Reconsideration of CCRB Substantiated Finding (%)

2015 2016 2017 2018

355

22 (6%)

222

48 (22%)

90

10 (11%)

39

3 (8%)

The reconsideration process creates an opportunity for dialogue between the CCRB and

the DAO about particular cases. Sometimes, with the benefit of the DAO’s views or new facts or

disciplinary information the DAO provides, the CCRB will agree with the DAO’s suggested

disposition. Other times, the CCRB will modify its recommended discipline in response to a DAO

request, but not to the extent the DAO suggested. The approximate numbers of stop and frisk

cases in which either outcome has occurred are summarized in the following chart.

Chart 24. CCRB Determinations on Reconsideration Requests in Cases

Year Total Reconsideration

CCRB Agreed with DAO CCRB Reduced Discipline But

Reqs.

Request

Not as Far as DAO Suggested

2015

47

13 (2 partial)*

14

2016

88

13 (1 partial)

4

2017

14

2 (1 partial)

1 (partial)

2018

6

0

0

* “Partial” means that there was more than one substantiated allegation in a complaint, and

that the CCRB agreed with the DAO reconsideration request or reduced the discipline for

at least one of the allegations in the complaint.

3. Variance Memoranda

Currently, the MOU between the Department and CCRB provides that, in cases prosecuted

by the CCRB’s Administrative Prosecution Unit (APU), the Police Commissioner should notify

CCRB when he or she intends to impose discipline that is of a lower level than that recommended

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by CCRB or by an NYPD Trial Commissioner. The notice is to be given ten days prior to imposition of the discipline with a detailed explanation of the reasons for deviating from CCRB’s recommendation. CCRB has five days to respond before the final determination.
By reason of recently adopted changes to the NYC Charter, the Police Commissioner will now have to write a “written report” no later than 45 days after imposing a “different penalty or level of discipline than that recommended by the Board or by the deputy commissioner responsible for making disciplinary recommendations ….” The report will include a “detailed explanation of the reasons for deviating” from the recommendations. Further, if the imposed penalty or level of discipline is lower than the recommendations, the report will “also include an explanation of how the final disciplinary outcome was determined, including each factor the Police Commissioner considered in making his or her decision.” The requirement took effect immediately upon certification of the election results by the Board of Elections on December 6, 2019. It is unclear, at this time, what amendments, if any, may be made to the MOU as a result of this additional mandate.
4. Other Misconduct Noted; Failure to Complete Stop Report If the CCRB, in the course of its complaint investigation, identifies misconduct outside of its jurisdiction, the Board refers the misconduct to the NYPD for investigation and any additional action. These cases are referred to as Other Misconduct Noted, or OMN, cases. For example, if the CCRB investigates a complaint involving a stop, frisk or search, and determines that the subject member or members made a Terry stop but did not complete a stop report for the encounter, the CCRB refers the case to the NYPD as OMN. The CCRB also makes an OMN referral where the investigation determines that a member of service may have made a false official statement in a case involving a stop, frisk or search allegation. The Internal Affairs Bureau logs these cases, assigns them to the command for investigation and tracks the outcomes. Below are the outcomes
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of the NYPD’s investigations of CCRB’s OMN referrals for failure to complete a stop report for completed CCRB cases from 2015 through 2018. For the year 2019, as of September 1, 2019, the CCRB has made three OMN referrals to the Department for failure to compete a stop report; those three cases are still open and being investigated at the commands.

Chart 24. Outcomes for Failure to Complete Stop Report (OMN Cases)

A-CD B-CD C&S Training Instructions Minor Procedural Violations Substantiated NDA-DUP-None Exonerated Unfounded Unsubstantiated Other Still Open

2015 32 3 0 7 61 0
0 14 4 2 1 4 8 136

2016

2017

2018

24% 18 16% 22 31% 9

16%

2%

5

4%

0

0%

1

2%

0%

0

0%

1

1%

0

0%

5%

19 16% 8

11% 2

4%

45% 53 46% 26 36% 12 21%

0%

2

2%

1

1%

0

0%

0%

0

0%

0

10% 6

5%

8

3%

4

3%

2

2%

2

2%

1

1%

4

3%

2

3%

3

3%

1

6%

0

0%

0

100% 116 100% 72

0%

1

11% 5

3%

7

1%

0

3%

14

1%

2

0%

4

100% 57

2% 9% 12% 0% 25% 4% 7% 100%

* Substantiated disposition, but no penalty listed. ** Includes the following dispositions: Filed, Info/Intel, No Disposition, No Record
Found, Resigned.
X. COMBINED PILOT On May 15, 2018, the court-appointed facilitator, the Hon. Ariel Belen, filed his Final
Report and Recommendations on the Joint Remedial Process with the court. ECF No. 597. Judge
Belen recommended that the court order 14 specific reforms. On July 19, 2018, the court ordered
a pilot program to study one of the facilitator’s recommendations, the electronic documentation of Level 1 and 2 encounters.25 Three weeks later, the court ordered a pilot program to study another

25 Floyd ECF No. 619.
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Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 93 of 100
of the facilitator’s recommendations, the activation of BWCs during Level 1 encounters.26 On November 9, 2018, the monitor submitted a proposal combining the two court-ordered pilots into one. In response to objections from plaintiffs’ counsel, the monitor submitted a reply and revised proposal in January 2019, which was approved by the court on February 7, 2019.27
The combined pilots will be overseen by the monitor, who retained Professor Stephen Mastrofski and CUNY’s Institute for State and Local Governance (ISLG) to assist in its planning and implementation. The pilot will use systematic social observations—in other words, trained observers will ride along with officers and collect data. Results from the pilot will inform the court on the impact of implementing one or both of these proposed changes. Among the questions to be addressed by the pilot are:
1. How frequently do encounters occur at each level? 2. How frequently do Level 1 and Level 2 encounters escalate to higher levels? 3. To what extent are police initiating Level 1, Level 2 and Level 3 encounters without
appropriate levels of knowledge or suspicion? 4. Would either of the proposed changes, or both together, reduce the risk of police-
citizen encounters contrary to Terry and DeBour standards? 5. To what extent are police not documenting Level 3 stops, and would (either or both)
the proposed changes reduce undocumented stops? 6. Would additional documentation or BWC recording provide useful data in
assessing Fourth and Fourteenth Amendment violations? 7. Are there encounters for which recording would not provide benefits (e.g.,
encounters not involving an investigative or law enforcement purpose), such that privacy concerns might outweigh any justification for recording? 8. What is the additional burden placed upon the police by requiring additional documentation of the citizen encounters?
26 Floyd ECF No. 634. 27 Floyd ECF No. 691.
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Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 94 of 100
The pilot study will observe officers operating under the four different conditions: (a) control—no change in policy; (b) electronic documentation of Level 1 and Level 2 encounters; (c) mandatory activation of BWCs at Level 1 encounters; and (d) electronic documentation for Level 1 and Level 2 encounters and BWC activation at Level 1. Observations of the police encounters with the public will occur in a range of police units that frequently engage the public—precinct officers assigned to patrol cars, plainclothes anti-crime teams, and PSA Housing officers performing interior patrols. The study anticipates observing approximately 170 tours, which should yield over 1,500 observed contacts. Based on this expected sample size, the study will have sufficient statistical power to detect differences among the four conditions. The study also will include efforts to measure whether and how officers will react to having observers. It will compare the activity of officers when observers are in the car with the activity of the same officers on comparable shifts the week before and week after, when they do not have observers.
Extensive efforts are being made to prepare for the pilot program, including: developing the data collection instruments and protocols for the observers; creating a sampling frame for selection of the commands and officers to be observed; recruiting and training the observers; fieldtesting the instruments and protocols; and having the NYPD develop an operations order for the commands that will be implementing the new procedures during the pilot. The NYPD is in the process of developing a phone application for officers to record data during Level 1 and Level 2 encounters. In addition, because the officers being observed must voluntarily consent to be observed, the confidentiality of observer information is critical. The monitor submitted and the court approved a confidentiality order ensuring that the information observers obtain through participation in the study will be used only for the study’s purposes. Floyd v. City of New York,
88

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 95 of 100
ECF No. 735. The monitor team anticipates that the combined pilot, including the observations in the field, analysis of the data collected and writing the report will be completed in 18 months.
Compliance will be achieved when: 1. The NYPD participates in the pilot study and provides the monitor team the relevant data to complete its analysis and report. XI. EARLY INTERVENTION PROGRAM In response to another recommendation made in the facilitator’s report, the court, on November 20, 2018, ordered that the Department, in consultation with the monitor, submit a plan to implement a program to systematically receive, assess and act on five specific categories of information regarding officer conduct.28 The categories are: (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. The Department submitted its plan to the court on January 14, 2019.29 Plaintiffs’ counsel submitted two responses raising concerns regarding certain aspects of the plan.30 Since then, there have been ongoing discussions between the parties in an attempt to achieve consensus on the best way for the Department to take this information into account and act upon it, when appropriate. Compliance will be achieved when:
28 Floyd, ECF No. 662. 29 Floyd, ECF No. 681. 30 Floyd, ECF No. 686; Ligon, ECF No. 364.
89

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 96 of 100 1. The NYPD implements a program to receive, assess, and act on information regarding adverse findings on unlawful stops and trespass enforcements, in accordance with a plan approved by the court. 2. Data on declined prosecutions, adverse credibility findings, suppression decisions, lawsuits and denials of indemnification are included in the Department’s early intervention system. 3. Commanding officers and RMB implement and document interventions for officers identified through data on at-risk behaviors in the categories identified by the court.
90

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 97 of 100
APPENDIX 1 GUIDANCE FOR COMPLIANCE ASSESSMENTS
91

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 98 of 100
APPENDIX 2 TRESPASS ARRESTS IN NYCHA AND ELSEWHERE
92

No. Trespass Arrests

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 99 of 100

TRESPASS ARRESTS IN NYCHA LOCATIONS AND OTHER LOCATIONS

BLACK, ELSEWHERE

BLACK, NYCHA

HISPANIC, ELSEWHERE

O O _ O Cs1
O O O
t-I
O
HISPANIC, NYCHA O O
C.'")
O O O
CN1
O 0

WHITE, ELSEWHERE

WHITE, NYCHA

O —

2015 2016 2017 2018 2019 2015 2016 2017

No. Trespass Arrests in NYCHA and Elsewhere

year

2018

2019 2015

2016

2017

2018

2019

93

Case 1:08-cv-01034-AT Document 752 Filed 12/16/19 Page 100 of 100
APPENDIX 3 MEMORANDUM OF UNDERSTANDING BETWEEN THE CIVILIAN COMPLAINT REVIEW BOARD AND THE NYPD
94

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 1 of 9

MEMORANDUM OF UNDERSTANDING

MEMORANDUM OF UNDERSTANDING BETWEEN THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY CIVILIAN COMPLAINT .
REVIEW BOARD

Memorandum of Understanding ("MOU") entered into on this

day of N:::32019,

between the New York City Police Department ("NYPD"), with headquarters at One Police Plaza,

New York, New York 10038; and the New York City Civilian Complaint Review Board

("CCRB"), with offices at 100 Church Street, New York, New York 10007 (collectively the

"Parties").

WHEREAS, Section 440 of the New York City Charter gives CCRB the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language ("FADO"); and

WHEREAS, in accordance with Section 440 of the New York City Charter, CCRB's investigators collect and review all available evidence, such as documents and video and audio recordings, including footage from body worn cameras ("BWC"), and interview all available victims, witnesses, subject officers, and witness officers, among others, as part of its investigative process, and

WHEREAS, Section 1-23(e) of Title 38-A of the Rules of the City of New York states that the CCRB may obtain records and other materials from NYPD which are necessary for the investigation of complaints submitted to the CCRB, except such records and materials that cannot be disclosed by law, and the CCRB may issue subpoenas for those requests; and

WHEREAS, the CCRB's Administrative Prosecution Unit ("APU"), which was created pursuant to a separate Memorandum of Understanding between CCRB and NYPD dated April 2, 2012, is authorized to prosecute substantiated cases where the CCRB has recommended that Charges and Specifications be brought against a subject officer, except in those cases where the Police Commissioner retains jurisdiction; and

WHEREAS, Section 440 of the New York City Charter requires that NYPD provide assistance as CCRB may reasonably request, cooperate fully with CCRB investigations, and provide the CCRB, upon request, records and other materials necessary for the investigation of

1

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 2 of 9
complaints submitted to CCRB, except such records or materials that cannot be disclosed by law; and
WHEREAS, Section 434 of the New York City Charter gives the Police Commissioner cognizance and control over the disposition and discipline of the department and police force; and
WHEREAS, Section 14-115 of the New York City Administrative Code gives the Police Commissioner discretionary power to discipline members of the department for criminal offenses, neglect of duty, violation of rules, neglect or disobedience of orders, conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming of an officer, by reprimand, suspension, with or without pay, or dismissal; and
WHEREAS, while the CCRB investigates civilian complaints independent from NYPD, CCRB's Charter-mandated jurisdiction over FADO complaints brought by civilians against members of NYPD makes the CCRB an integral component of NYPD's disciplinary process;
WHEREAS, the NYPD has provided body-worn cameras ("BWC") to police officers on patrol and has begun wider deployment of BWCs to officers throughout the department, and the camera footage routinely captures interactions between police officers and members of the public whom they encounter while on patrol;
WHEREAS, the CCRB routinely requests BWC footage from the NYPD in connection with investigations it conducts and it is in both parties' interests to create an efficient process by which CCRB can request such footage from NYPD and NYPD can provide such footage to CCRB;
WHEREAS, CCRB and NYPD agree that premature submission of a search request, without information that can be obtained through a diligent investigation prior to submission of the form, is counterproductive and contrary to the intent of this agreement as it will routinely result in multiple requests in the same case causing delays in providing video footage to the CCRB by the NYPD;
WHEREAS, by signing this agreement the NYPD intends to expeditiously process requests for BWC footage it receives from CCRB and to provide relevant footage to CCRB, and CCRB intends to make diligent efforts to collect and identify relevant facts and information in connection with complaints it receives before requesting BWC footage so that requests made to
2

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the NYPD will contain as many facts as possible, making it easier for NYPD to identify relevant footage and significantly reducing the need for NYPD to conduct multiple searches for each case;
NOW THEREFORE, upon the mutual agreement of the Parties, it is agreed as follows:
I. CREATION OF BWC SEARCH AND REVIEW FACILITY 1 NYPD will set up a secure search and viewing room at 100 Church Street, 12th Floor, New York, NY, 10007, or some other mutually convenient location, with at least ten (10) computer terminals ("Secure Room"). A sufficient number of computer terminals will be staffed by an NYPD employee and a CCRB employee during all operating hours specified below, for the purpose of entering search criteria and identifying BWC video(s) responsive to search requests submitted by the CCRB. The remaining computers will be available for CCRB staff to view BWC videos that were responsive to CCRB's particular search requests. 2. The NYPD and CCRB will each make a supervisor available to address issues that may arise in the Secure Room. 3. The Secure Room will be accessible to CCRB personnel during normal business hours— Monday to Friday, specific times to be agreed upon by the NYPD and the CCRB. 4. Each CCRB investigator and staff member granted access to the secure room will sign a confidentiality and non-disclosure agreement in regard to the information observed or obtained in the Secure Room. 5. Each CCRB investigator will have their own unique user name and password for both the Vievu Solution and Axon Evidence.com systems, which can only be logged into on computers located in the Secure Room dedicated for this purpose. All logins under each user name will be recorded and subject to audit by the NYPD. Misuse of a user name and/or access privileges or improper dissemination of any information obtained from search results shall be grounds for revocation or suspension of the offender's access privileges by the NYPD. 6. CCRB investigators will obtain the same training for both the Vievu Solution and Axon Evidence.com systems, by each system's vendor, as is provided to NYPD personnel for the searching and retrieval of video evidence, including all updates and refresher courses. Costs for such training will be borne by CCRB.
II. SEARCHING AND REVIEW OF BWC FOOTAGE 1. CCRB investigators may submit search requests for BWC video in any case where the CCRB has received a complaint from a member of the public against a uniform member of the NYPD for alleged incidents of misconduct which fall under CCRB's jurisdiction.
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Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 4 of 9
2. In order to initiate a search, the CCRB investigator must complete a BWC search request form, providing as much information as is available to the investigator at the time of the request. Prior to submitting the search request, the CCRB investigator shall review all records that already have been provided by the NYPD, to determine if those records contain information needed for the search request form and shall diligently conduct as many investigatory steps as reasonable to locate additional information necessary to conduct a comprehensive search. After the request form is complete, the CCRB investigator shall email the search request form to BWC-Legal@nypd.org.
3. After receiving the BWC search request form, the NYPD, in the presence of a CCRB employee, will search both the Vievu Solutions and Axon Evidence.com software to locate any videos responsive to the search criteria.
a. The NYPD will use the search terms listed on the search form provided by the CCRB investigator. The search terms submitted by CCRB must be reasonably related to the information provided in the complaint or information obtained during CCRB's investigation. Except in exceptional circumstances, CCRB shall submit no more than ten (10) search terms in a search request.
b. If the search criteria is too broad or too narrow to reasonably identify relevant BWC video(s), the NYPD and CCRB employees shall confer to adjust the search parameters, and, if necessary, request additional information from the CCRB investigator who submitted the search request.
c. The CCRB employee will determine which BWC video(s) returned by the search are relevant and should be made available for viewing by the investigator making such request.
d. Once a video is determined to be relevant:
i. In Vievu Solutions, each video will be tagged in the event field with the corresponding CCRB number.
ii. In Axon Evidence.com, a case will be created and titled with the corresponding CCRB case number.
e. The entire NYPD BWC database shall be available for search. To the extent that certain videos are on "lockdown" and are unavailable, the search results shall reflect that the video exists, but that it is unavailable, or NYPD personnel with access to "lockdown" videos will perform an independent search of such videos and represent to CCRB that the requested video exists, but is not accessible.
4. BWC video(s) deemed relevant and responsive to a search request will be shared in its entirety by NYPD staff and accessible by CCRB via the terminals in the Secure Room designated for video review.
4

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 5 of 9
a. None of the video(s) uploaded for review purposes shall be redacted, clipped, edited, deleted or altered in any way.
b. The CCRB investigator who submitted the BWC search request shall be notified when the BWC video(s) becomes accessible in the Secure Room. The CCRB investigator will appear at the Secure Room, at a time convenient for the investigator, and review the uploaded video(s) to determine which video(s), or portion(s) thereof, is relevant and needed for the CCRB investigation.
5. CCRB investigators are strictly prohibited from making any sound or video recordings of any BWC video, or segments thereof, on cell phones or other recording devices.
6. CCRB investigators may take notes during the review of BWC video. 7. CCRB investigators shall not use any information obtained during this process that is
unrelated to the incident under investigation. a. If, while reviewing video related to a complaint, the CCRB investigator recognizes or believes that he or she has observed potential misconduct by an NYPD uniform member of the service ("UMOS") unrelated to the incident under investigation by the CCRB, the investigator shall refer the incident to the NYPD's Internal Affairs Bureau. The CCRB investigator shall not commence an investigation into the unrelated incident. b. The NYPD IAB Liaison will inform the CCRB of the actions, including dispositions, it has taken in response to any such referral.
c. If CCRB subsequently receives a complaint from a member of the public regarding the incident that was referred to Internal Affairs Bureau, the NYPD will provide the footage related to the initial referral, pursuant to a new request from CCRB, and subject to the subsequent provisions of this agreement.
III. PRODUCTION OF RESPONSIVE FOOTAGE 1. After the CCRB investigator determines which shared BWC video(s), or portion(s) thereof, is relevant to the CCRB investigation, the CCRB investigator shall send an email to BWCLegal@nypd.org requesting the specific footage to be shared with the CCRB for download purposes. a. The email shall include, the CCRB case number, the requested file name(s), name(s) of the UMOS, if known, and the time stamps for the specific portion of the BWC video(s) being requested, in those instances where the entire video is not being requested.
5

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 6 of 9
2. Absent exceptional circumstances, requested BWC video(s) not requiring redaction shall be provided to the CCRB within ten (10) business days. The NYPD shall make best efforts to provide redacted video(s) within twenty-five (25) business days.
3. The entirety of the requested footage shall be provided, subject to the following provisions and subsection (d) of subdivision (3) of this section.
a. If the BWC video request is denied or all or any portion of the requested footage is redacted, clipped, altered, or deleted in any way, the changes must be specified in writing by the NYPD along with an explanation and rationale for the denial, redaction, or clipping, including specific citation to the statute (including subdivision(s), where applicable) and/or legal provision relied upon, if applicable.
b. NYPD may redact and/or clip the provided footage according to the following considerations, as well as subsection (d) below:
i. Medical treatment being provided to any private citizen or UMOS. ii. Any NYPD computer, mobile data terminal, cell phone, or other
equipment depicting: (a)confidential databases or (b) confidential information. iii. Any UMOS cell phone depicting personal photos, phone numbers or social media accounts unrelated to the investigation. iv. Any key pad code entries for Department facilities. v. Protecting the identity of any undercover officer or confidential informant. In cases where an undercover officer's image is redacted, NYPD will inform CCRB of the individual's UC Number. c. For recordings related to cases sealed pursuant to Criminal Procedure Law §§ 160.50/160.55 or Family Court Act §§ 375.1, 375.2, recordings containing the identity of the victim of a sex crime pursuant to Civil Rights Law § 50-b, or recordings depicting a juvenile questioned or detained by the Department, if the CCRB does not have a release from the individual(s) whose case has been sealed, from the victim(s) of the sex crime, or the parent/guardian of the juvenile, the NYPD will blur the faces and redact the audio of all personally identifying information such as name, date of birth, and address, as well as the audio of any admission of a sex offense pursuant to CRL 50-b of the individual(s) from whom the CCRB has not obtained consent or a release.
d. NYPD shall not refuse to disclose or delay disclosure of footage on the ground that it is conducting a concurrent or parallel investigation, except for those investigations being conducted by the Force Investigation Division and other sensitive force investigations not being conducted by FID. Notwithstanding, upon the conclusion of the investigation, the BWC footage will be shared with CCRB.
6

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 7 of 9
e. Disputes over whether a video is relevant to a CCRB investigation will be resolved through the procedure described in Section IV, entitled "Dispute Resolution."
f. CCRB will adopt procedures to obtain valid consent, when possible, to view and use BWC footage without redaction or blurring at the start of its investigation. Informed, verbal consent shall be sufficient. CCRB investigators shall affirm in writing on their search request form that they have obtained valid consent from the proper party, including the name of the individual providing consent. (i) CCRB will endeavor to obtain written waivers/consent from depicted complainants, if possible, and will ensure that CCRB employees accepting complaints via telephone, in-person or otherwise use scripted language seeking a verbal waiver/consent from depicted complainants for recordings related to cases sealed pursuant to Criminal Procedure Law §§ 160.50/160.55 or Family Court Act §§ 375.1, 375.2, recordings containing the identity of the victim of a sex crime pursuant to Civil Rights Law § 50b, or recordings depicting a juvenile,.
4. NYPD shall share the requested footage via the Vievu Solutions or Axon Evidence.com software systems with the CCRB staff designated in both systems, which will only include members of the CCRB NYPD Liaison Unit. The footage may be downloaded by members of the CCRB NYPD Liaison Unit which has the necessary download capabilities.
IV. DISPUTE RESOLUTION 1. If the CCRB disagrees with the NYPD's denial, redaction or clipping, of requested BWC video, the Parties shall meet and confer to try to resolve the dispute. 2. If the Parties are unable to resolve the dispute, the dispute will be referred to the New York City Law Department ("Law Department") for review. Disputes will be resolved by the Corporation Counsel or his or her designee. The dispute resolution request shall include a copy of the NYPD's denial, the CCRB's explanation for why the recording should have been disclosed, and any 'other relevant information. A person designated by the NYPD's Deputy Commissioner, Legal Matters shall be copied on any dispute resolution request sent by the CCRB to the Law Department. 3. Both parties agree to timely provide the Law Department with any materials or information it requests in order to resolve the dispute. The NYPD and CCRB agree to accept the determination of the Law Department. 4. If prior to the Law Department issuing a determination, the NYPD reconsiders its denial, redaction, editing, deletion or clip, it shall immediately provide the CCRB with the
7

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 8 of 9
recording and notify the Law Department that the dispute has been resolved and no determination is necessary. If the CCRB withdraws its challenge to the NYPD's denial, redaction, or clip, prior to the Law Department issuing a determination, it shall promptly notify the NYPD and the Law Department that no determination is necessary.
V. CONFIDENTIALITY 1. The CCRB agrees that records and BWC recordings obtained from the NYPD, and any materials created therefrom, are confidential, must be kept secure and may not be disclosed or made public, except as may be mandated by lawful order of a court of competent jurisdiction or statute. 2. The Parties shall comply with all applicable laws, rules, regulations, and agreements pertaining to the confidentiality, privacy and security of the information accessed pursuant to this MOU. 3. In the event that the CCRB receives a subpoena, judicial order, or other legal process for copies of records related to a sealed case, the CCRB shall notify the NYPD, in writing as soon as practicable. The CCRB shall not release the records without first notifying the NYPD. 4. In the event that the CCRB receives a Freedom of Information Law ("FOIL") request for records that include NYPD records obtained pursuant to this MOU, the CCRB shall consult and cooperate with NYPD in responding to the FOIL request. Both NYPD and CCRB shall each designate a FOIL representative for the purpose of resolving any disagreements. If the Parties cannot agree on which, if any, records should be disclosed pursuant to FOIL, the records in dispute shall not be disclosed until the Law Department issues a determination. 5. Nothing in this Agreement shall prevent the CCRB from notifying complainants and/or victims of the findings of the CCRB's investigation.
VI. TERM AND TERMINATION 1. Termination of this Agreement requires thirty (30) days written notice to the other Party. Subdivision (1) of Section I of this MOU shall become effective immediately upon the execution of this agreement by the Parties, however, the remaining portions of this
8

Case 1:08-cv-01034-AT Document 752-1 Filed 12/16/19 Page 9 of 9

agreement shall not take effect until the satisfaction of Subdivision (1) of Section I. This agreement shall remain in effect until terminated in writing by either party.

VII. NOTICES

1. Notices to be sent pursuant to this Agreement shall be sent to:

If to CCRB: NYC Civilian Complaint Review Board General Counsel 100 Church Street, 10th Floor New York, NY 10007

If to NYPD: Deputy Commissioner, Legal Matters New York City Police Department One Police Plaza, Room 1406 New York, NY 10038

VIII.

MERGER AND MODIFICATION
1. This MOU constitutes the entire agreement among the Parties, and merges all prior discussions, agreements or understandings regarding its subject matter into it. No prior agreements, oral or otherwise, regarding the subject matter of this MOU, shall be deemed to exist or to bind either of the Parties hereto.
2. This MOU shall only be modified in a writing signed by the Parties.

IX. NO THIRD-PARTY BENEFICIARY
1. This MOU shall be binding upon and for the benefit of the Parties hereto and their respective successors and permitted assigns. The provisions of this MOU shall be for the sole benefit of the Parties hereto and no other person or entity shall be a third-party beneficiary thereof.

IN WITNESS THEREOF, the Parties have executed this MOU by the signatures of duly authorized officials.

NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD

NEW YORK CITY POLICE DEPAR

Fred Davie CHAIR, CCRB

Ja s P. O'Neill POLICE COMMISSIONER

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 1 of 14

Standard

Task No. and Source of
Requirement

Essence of Requirement

Text of Requirement

Compliance Definition

Methodology for Assessing and Achieving Compliance

Data Required for Compliance Review

Requirements for Policies and Procedures

Creation of

Task #1a,

Revise policies regarding stop

Written policies, Source: Floyd remedial and frisk to adhere to

procedures, and order, p.14

constitutional standards and

Training Materials

New York state law

...the NYPD should revise its policies ... regarding stop Compliance with this provision will be

and frisk to adhere to constitutional standards as well as achieved when NYPD develops new

New York state law. The constitutional standards include policies regarding stops which comply

the standards for: what constitutes a stop, when a stop with federal and state constitutional

may be conducted, when a frisk may be conducted, and standards and which are approved by the

when a search into clothing or into any object found

Monitor and the Court.

during a search may be conducted. 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

Revise policies for stops to comport with federal and state constitutional standards.

Revisions to PG 212-11,

Implementation

Task #1b

NYPD stops and frisks comply

Source: Floyd remedial with NYPD policies and with

order, p.14

state and federal standards

...the NYPD should revise its policies ... regarding stop Compliance with this provision will be

Percentage of compliant stops must increase over time. Reviews of BWC footage and

and frisk to adhere to constitutional standards as well as achieved when:

1. associated stop reports will be made to assess the accuracy of stop reports and whether the

New York state law. The constitutional standards include Stops made by NYPD MOS comply with BWC footage and stop reports are consistent. Compliance on this task is dependent on

the standards for: what constitutes a stop, when a stop NYPD's new policies and with federal and demonstration of compliance with documentation (Task 1c). Compliance must be consistent

may be conducted, when a frisk may be conducted, and state standards.

over time and across commands. Substantial compliance will be assessed by a combination

when a search into clothing or into any object found

2. Stop reports that do not articulate

of a quantitative measure (percentage of compliant stops) with a qualitative assessment of

during a search may be conducted. Although the

reasonable suspicion for the stop or the the Department's efforts, including RISK Reviews, correction and discipline, and EIS.

standards may sometimes require the informed use of frisk, or do not articulate the basis for the Compliance or non-compliance with other tasks/requirements will also inform the Monitor's

discretion, they are not complicated and should be stated search are identified as deficient by

qualitative assessment.

in policies and training as clearly and simply as possible supervisors and the officer is corrected.

3. Stop reports that do not articulate

reasonable suspicion are identified by

QAD, and corrective action is taken with

respect to the relevant MOS (officers and

supervisors).

4.

QAD evaluates BWC footage of stop

encounters described in audited stop

reports, identifies stops when the BWC

footage is contrary to the reasonable

suspicion articulated in the stop report, and

corrective action is taken with respect to

the relevant officers and supervisors.

QAD SQF Audits and Command Responses; Stop Reports and accompanying ICAD and memo books; BWC videos; Command self-inspections. Monitor team to attend RISKS Review; data from NYPD EIS system

Implementation

Task #1c

Stops and Frisk are

Source: Floyd remedial Documented on Stop Reports

order, p.14

...the NYPD should revise its policies ... regarding stop Compliance with this provision will be

RISKS Reviews, QAD audits. The Monitor team will review a combination of RAND audit QAD RAND Audits and

and frisk to adhere to constitutional standards as well as achieved when

1. compliance rates, PIE audit compliance rates and CCRB OMN rates for failure to complete Command Responses, PIE

New York state law. The constitutional standards include Stops made by NYPD MOS are

stop reports. The Monitor will review the Department's efforts to correct undocumented stops, Audits, CCRB OMN cases;

the standards for: what constitutes a stop, when a stop documented on Stop Reports;

2. including RISK Reviews, supervisory actions and officer instructions and discipline. The

monitor team to attend

may be conducted, when a frisk may be conducted, and In stop reports, officers articulate

Monitor also will assess NYPD efforts (by leadership and supervisors) to communicate the RISKS Review; BWC

when a search into clothing or into any object found

reasonable suspicion for the stop and frisk, importance of documenting stops. Compliance must be consistent over time and across

videos; relevant data from

during a search may be conducted. Although the

if conducted, and the basis for a search, if commands.

the Combined Pilot

standards may sometimes require the informed use of conducted.

discretion, they are not complicated and should be stated 3. BWC footage of stops are not contrary

in policies and training as clearly and simply as possible to the reasonable suspicion articulated in

stop reports of the same encounters. 4.

Officers who make stops and do not

document them are corrected through

instructions and discipline.

Creation of

Task #2a

Revise policies regarding racial ...the NYPD should revise its policies ... regarding racial Compliance with this provision will be

Written policies, Source: Floyd remedial profiling to make clear

profiling to make clear that targeting "the right people" for achieved when NYPD develops new

procedures and order, p.17

targeting “right people” for

stops, as described in the Liability Opinion, is a form of policies regarding racial profiling.

Training Materials

stops is racial profiling and racial profiling and violates the Constitution. Racially

violates Constitution

defined groups may not be targeted for stops in general

simply because they appear more frequently in the local

crime suspect data. Race may only be considered where

the stop is based on a specific and reliable suspect

description.

Revise policies to ensure race is not used improperly when officers conduct stops

Revisions to PG 203-25

1

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 2 of 14

Implementation Task #2b

Source: NYPD stops and frisks comply ...the NYPD should revise its policies ... regarding racial Compliance with this provision will be

Assessment of this task will be both quantitative and qualitative. Compliance or non-

SQF database along with

Floyd remedial order, with NYPD policies and with profiling to make clear that targeting "the right people" for achieved when:

1. compliance with other tasks/requirements, such as Task 1c (documentation of stops) and Census data and other

p.17

state and federal standards stops, as described in the Liability Opinion, is a form of Stops made by NYPD MOS comply with Task 35 (racial profiling investigations), will inform the Monitor's assessment.

appropriate NYPD

regarding racial profiling

racial profiling and violates the Constitution. Racially NYPD's new policies and with federal and Analyses will be conducted to assess whether there are racial disparities that are statistically databases (e.g., crime

defined groups may not be targeted for stops in general state standards regarding racial profiling. significant and practically significant, and whether racial disparities are declining over time. data); Monitor reviews of

simply because they appear more frequently in the local 2. Data on stops, frisks and searches

Monitor team analyses may include: (1) An analysis of outcomes from stops (frisks, searches, stop reports, Compstat

crime suspect data. Race may only be considered where made by NYPD MOS do not show racial summonses and arrests, force) for Blacks and Hispanics compared to similarly-situated non- meetings and other

the stop is based on a specific and reliable suspect

disparities that are not explained by legally Hispanics; (2) An analysis of the recovery rate of contraband and weapons for stops of Blacks Department

description.

justified reasons, and that are practically and Hispanics compared to similarly-situated non-Hispanics; (3) An analysis of whether there pronouncements on crime

significant in magnitude and statistically are racial disparities in the stop reports that the Monitor team found deficient in articulating strategies.

significant, based on analyses conducted reasonable suspicion for stops, frisks or searches, including an assessment of how MOS are

by Monitor experts.

3.

using the term "fits description." The Monitor team will also conduct an analysis that will

Communications from NYPD leadership examine racial disparity by place, over time.

(executives, CO's and others) and officers' The Monitor team will also conduct analyses for assessing compliance with the Davis case.

stop report narratives do not indicate a The Monitor team is currently considering the following types of analyses:

targeting of defined racial or ethnic groups A. Descriptive results and multivariate analyses for 2015-2018, for NYCHA: (1) Comparison

for stops because of their prevalence in of trespass stops, arrests, and summonses over time in and around NYCHA developments;

local crime suspect data.

(2) Comparison of outcomes (frisk, searches, use of force, and enforcement activity) from

stops in NYCHA developments and around NYCHA developments over time; (3) Examination

of whether outcomes vary by whether an officer is assigned to the Housing Bureau or other

NYPD units; (4) Examination of racial disparities in outcomes from stops in NYCHA

developments compared to outcomes from stops of individuals stopped under similar

contexts.

B. Spatial analysis of overall enforcement activity and disparities by race/ethnicity for Davis

case: (5) Assess enforcement activity (stops, arrests, summonses) at various distances from

NYCHA (inside, immediate surrounding, and further away) and whether the enforcement

activities vary by race; (6) Assessment of relative racial disparity in enforcement activity

(stops, arrests, summonses) in NYCHA properties compared to disparities in areas with

otherwise similar crime rates; (7) Assess whether the rate of each outcome (e.g., level of

enforcement activity) per block is similar to what one would expect from other blocks with

comparable levels of crime; (8) Assess whether NYCHA developments with comparable

levels of crime but different racial distributions of residents have different levels of

Creation of

Task #3

Source: Stop Report must include a 1. The UF-250 must be revised to include a narrative Compliance with this provision will be

enforcement activity (stops, arrest, summonses).

Revisions to Stop Report

Written policies, Floyd remedial order, narrative section to explain section where the officer must record, in her own words, achieved when:

1.

procedures and p.19

basis for the stop and a

the basis for the stop. The narrative will enable

NYPD revises its stop report form to

Training Materials

narrative section to explain meaningful supervisory oversight of the officer's decision include a narrative section for the officer to

basis for frisk or search, if

to conduct the stop, as well as create a record for a later explain the reason for the stop. 2.

applicable, and the stop report review of constitutionality.

2. The UF- NYPD revises its stop report form to

checkboxes must be simplified 250 should also be revised to require a separate

include a narrative section for the officer to

and improved.

explanation of why a pat-down, frisk, or search was

explain the reason for the frisk or search.

performed... the revised UF-250 should include a

3. NYPD prepares a stop report form

separate section requiring officers to explain why the which contains simplified and improved

stopped person was suspected of being armed and

checkboxes

dangerous.

3. 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

Creation of

Task #4

Source: NYPD must transmit FINEST The NYPD should transmit a FINEST message

Compliance with this provision will be

Written policies, Floyd remedial order, message explaining Floyd and explaining the outcome of the Floyd litigation and the achieved when NYPD prepares and

procedures and p.25

related reforms to entire

need for the reforms described above. The FINEST

distributes a FINEST message detailing

Training Materials

Department

message should summarize in simple and clear terms the Floyd litigation disposition and

the basic constitutional standards governing stop and constitutional standards NYPD personnel

frisk, the constitutional standard prohibiting racial

have to comply when conducting stops

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.

Prepare and distribute a FINEST message to all NYPD personnel summarizing the constitutional standards for conducting stops and frisks and prohibiting racial profiling

FINEST message

Creation of

Task #5a

Source: NYPD shall develop and adopt ...the NYPD is ordered to adopt a formal written policy Compliance with this provision will be

Revise policies for stops to comport with federal and state constitutional standards.

Written policies, Floyd remedial order the standards set forth in

specifying the limited circumstances in which it is legally achieved when:

procedures and (Ligon remedies

subparagraph E(1)(a) though permissible to stop a person outside a TAP building on a 1. NYPD revises its policy to specify when

Training Materials section), p.33-34; Ligon (m) of the Ligon stipulation of suspicion of trespass.

The it is legally permissible to stop a person

stipulation of

settlement regarding

NYPD shall develop, adopt and implement the standards outside a TAP building on suspicion of

settlement, p.11

enforcement activities in and regarding enforcement activities in and around TAP

trespass;

2. NYPD

around TAP buildings

Buildings set out below in Paragraphs E (1)(a-m) and develops and adopts specified standards

shall implement policies and procedures, training,

regarding enforcement activities in and

supervision, and monitoring programs sufficient to

around TAP buildings

consistently follow, apply, and use those standards.

Revision to PG 212-59

2

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 3 of 14

Implementation

Task #5b

Source: NYPD shall implement policies ...the NYPD is ordered to adopt a formal written policy Compliance with this provision will be

Percentage of compliant stops must increase over time. Compliance on this task is

Stop Reports and

Floyd remedial order and procedures, training,

specifying the limited circumstances in which it is legally achieved when:

1. dependent on demonstration of compliance with documentation (Task 1c). Compliance must accompanying ICAD and

(Ligon remedies

supervision and monitoring permissible to stop a person outside a TAP building on a Stops made by NYPD MOS at TAP

be consistent over time and across commands.

memo books; BWC video;

section), p.33-34; Ligon programs sufficient to

suspicion of trespass.

The locations comply with NYPD's new policies

QAD SQF audits; various

stipulation of

consistently follow, apply and NYPD shall develop, adopt and implement the standards and with federal and state standards.

data set out in Ligon

settlement, p.11

use the standards regarding regarding enforcement activities in and around TAP

2. Stop reports that do not articulate

Monitoring Workplan

enforcement in and around Buildings set out below in Paragraphs E (1)(a-m) and reasonable suspicion for the stop or the

TAP buildings specified in

shall implement policies and procedures, training,

frisk, or do not articulate the basis for the

Paragraph E(1)(a) through (m) supervision, and monitoring programs sufficient to

search are identified as deficient by

of the Ligon stipulation of

consistently follow, apply, and use those standards.

supervisors and the officer is corrected.

settlement.

3. Stop reports that do not articulate

reasonable suspicion are identified by

QAD, and corrective action is taken with

respect to the relevant MOS (officers and

supervisors).

4.

NYPD MOS follow the agreed-upon

standards for investigative encounters and

trespass enforcement activities in and

around TAP buildings.

Creation of

Task #6a

Source: Amend Interim Order 22 with ...the NYPD is ordered to amend Interim Order 22 of

Compliance will be achieved when

Revise and publish PG 212-59

Written policies, Floyd remedial order specified language regarding 2012 (“IO 22”) by deleting the paragraph labeled “NOTE” revisions are made to NYPD policy (P.G.

procedures and (Ligon remedies

mere presence near, entry into on page 2 of IO 22, and inserting the following

212-59) on interior patrols in buildings

Training Materials section), p.34

or exit out of TAP building

paragraphs in its place:

enrolled in the Trespass Affidavit Program

A uniformed member of the service may approach and buildings specifying that mere presence

ask questions of a person (that is, conduct a Level 1

outside of or entry into or exit from a TAP

request for information under DeBour) if the uniformed building does not constitute an objective

member has an objective credible reason to do so.

credible reason to approach an individual

However, mere presence in or outside a building enrolled under a DeBour analysis.

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.

Implementation

Task #6b

Source: NYPD MOS must have OCR to ...the NYPD is ordered to amend Interim Order 22 of

Compliance will be achieved when NYPD

Floyd remedial order approach person at TAP

2012 (“IO 22”) by deleting the paragraph labeled “NOTE” MOS have OCR for Level 1 encounters at

(Ligon remedies

locations

on page 2 of IO 22, and inserting the following

TAP locations.

section), p.34

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.

TCFS, Stop Reports for stops at TAP locations, and associated documents; BWC videos; combined pilot data

3

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 4 of 14

Creation of

Task #7

Source: Draft FINEST message

The NYPD is ordered to draft a FINEST message

Compliance with this provision will be

Draft and promulgate FINEST message explaining revisions to IO 22

Written policies, Floyd remedial order explaining revisions to Interim explaining the revisions to IO 22 and the need for those achieved when NYPD drafts and

procedures and (Ligon remedies

Order 22

revisions. The FINEST message attached as Exhibit 1 to promulgates FINEST message explaining

Training Materials section), p.34

the Ligon Plaintiffs’ Brief Concerning Defendants’

revisions to IO 22

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.

Creation of

Task #8a

Source: Develop procedures to ensure [T]he City is ordered to develop procedures for ensuring Compliance with this provision will be

NYPD needs to revise its procedures to make clear that Stop Reports are required for all

Written policies, Floyd remedial order Stop Reports are completed for that UF-250s are completed for every trespass stop

achieved when the NYPD has developed stops including stops for trespass outside of TAP buildings

procedures and (Ligon remedies

every trespass stop at TAP outside a TAP building in the Bronx. A “stop” is defined procedures to ensure that Stop Reports

Training Materials section), p.35; Ligon locations

as any police encounter in which a reasonable person are prepared for all stops in and around

stipulation of

would not feel free to terminate the encounter.

TAP buildings

settlement, p.7

Implementation Task #8b

Source: All stops at TAP locations must [T]he City is ordered to develop procedures for ensuring Compliance with this provision will be

QAD Audits, RISK Reviews. Monitor team will review a combination of RAND audit

Floyd remedial order be documented by a Stop

that UF-250s are completed for every trespass stop

achieved when MOS complete a Stop compliance rates, PIE audit compliance rates and CCRB OMN rates for failure to complete

(Ligon remedies

Report

outside a TAP building in the Bronx. A “stop” is defined Report for all stops conducted in or around stop reports. Compliance must be consistent over time and across commands.

section), p.35; Ligon

as any police encounter in which a reasonable person TAP buildings.

stipulation of

would not feel free to terminate the encounter.

settlement, p.7

Implementation Task #9

Source: Distribute revised TAP policies The revised version of IO 22 described above must be Compliance with this provision will be

Distribution of P.G. 212-59

Floyd remedial order and procedures to each NYPD distributed to each Bronx NYPD member, and then

achieved when the revised version of P.G.

(Ligon remedies

member and redistribute two redistributed two additional times at six-month intervals. 212-59 has been distributed to all MOS.

section), p.36

additional times at six-month

intervals

Creation of

Task #10a Source: Revise Patrol Guide 212-60 Plaintiffs and the City have extensively negotiated the Compliance with this provision will be

Revise PG 212-60 to promote constitutional interactions.

Written policies, Davis stipulation of

terms of PG 212-60 and have agreed to revisions that achieved when the Department revises its

procedures and settlement, p.9

will promote constitutional interactions between NYPD policy on interior patrols in NYCHA

Training Materials

officers and persons encountered during interior patrols buildings to promote constitutional

in NYCHA residences.

interactions.

FINEST message
Revisions to PG sections 212-11 and 212-59 and creation of TAP roll call training
QAD SQF, RAND and PIE Audits; Stop Reports and accompanying ICAD and memo books; BWC videos; combined pilot data Revisions to PG 212-59 which superseded IO 22
Revisions to PG 212-60

Implementation Implementation

Task #10b Source: NYPD interior patrols, stops Plaintiffs and the City have extensively negotiated the

Davis stipulation of and frisks at NYCHA properties terms of PG 212-60 and have agreed to revisions that

settlement, p.9

comply with NYPD policies and will promote constitutional interactions between NYPD

with state and federal

officers and persons encountered during interior patrols

standards

in NYCHA residences.

Task #10c Source: NYPD trespass arrests at

Plaintiffs and the City have extensively negotiated the

Davis stipulation of NYCHA properties comply with terms of PG 212-60 and have agreed to revisions that

settlement, p.9

NYPD policies and with state will promote constitutional interactions between NYPD

and federal standards

officers and persons encountered during interior patrols

in NYCHA residences.

Compliance with this provision will be

achieved when:

1.

Stops made by NYPD MOS at NYCHA

properties comply with NYPD's new

policies and with federal and state

standards.

2.

Stop reports that do not articulate

reasonable suspicion for the stop or the

frisk, or do not articulate the basis for the

search are identified as deficient by

supervisors and the officer is corrected.

3. Stop reports that do not articulate

reasonable suspicion are identified by

QAD, and corrective action is taken with

respect to the relevant MOS (officers and

supervisors).

Percentage of compliant stops must increase over time. Compliance on this task is dependent on demonstration of compliance with documentation (Task 1c#)

Compliance with this provision will be

Percentage of compliant arrest must increase over time.

achieved when:

over time and across commands.

1. Trespass arrests made at NYCHA

properties comply with the NYPD's policies

and with federal and state standards

Compliance must be consistent

Stop Reports, associated documents, BWC videos
TCFS, OLBS, Arrest Reports; arrest database; DPs

Creation of

Task #11a

Revise Trespass Crimes Fact Plaintiffs and the City agree that the NYPD's Trespass Compliance with this provision will be

Revise Trespass Crimes Fact Sheet

Written policies, Source: Davis

Sheet

Crime Fact Sheet form (PD 351-144) should be

achieved when the Department revises the

procedures and stipulation of

completed by NYPD officers, prior to arraignment, any Trespass Crimes Fact Sheet

Training Materials settlement, p.10, Ligon

time they effect an arrest for trespass in or around a

stipulation of

NYCHA residence.

settlement, p.12

The revisions to the Trespass Crime Fact Sheet, to which

both Plaintiffs and the City agree, are attached as Exhibit

F to this Stipulation.

Implementation Task #11b Source: MOS use Trespass Crime Fact Plaintiffs and the City agree that the NYPD's Trespass Compliance with this provision will be

Compliance must be consistent across commands and over time.

Davis stipulation of Sheet for Housing trespass Crime Fact Sheet form (PD 351-144) should be

achieved when:

1.

settlement, p.10, Ligon arrests

completed by NYPD officers, prior to arraignment, any NYPD MOS complete a Trespass Crime

stipulation of

time they effect an arrest for trespass in or around a

Fact Sheet form (PD 351-144) prior to

settlement, p.12

NYCHA residence.

arraignment, any time they effect an arrest

The revisions to the Trespass Crime Fact Sheet, to which for trespass in or around a NYCHA

both Plaintiffs and the City agree, are attached as Exhibit residence.

F to this Stipulation.

2. The TCFS articulates a proper basis for

the approach and probable cause for the

trespass arrest.

Revisions to Trespass Crimes Fact Sheet
Trespass arrest reports; TCFS; QAD TCFS audits

4

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 5 of 14

Creation of

Task #12a Source: NYPD officers are required to

Written policies, Ligon stipulation of complete a Trespass Crimes

procedures and settlement, p.10

Fact Sheet for every trespass

Training Materials

arrest made in or around a

TAP building

NYPD officers must complete a Trespass Crimes Fact Sheet (PD 351-144), under Docket Entry No. 249, attached as Exhibit B, or its electronic equivalent, for every trespass arrest made in or around a TAP Building prior to the arraignment of the defendant in the criminal case in order to document the circumstances leading to the officer's encounter with the defendant, the officer's investigation into the defendant's authority to be present in the building, any statements by the defendant, the basis of the officer's belief that the defendant did not have authority to be present in the building, and any arrest evidence or contraband recovered by the officer.

Compliance with this provision will be achieved when officers are required to complete a Trespass Crimes Fact Sheet for all trespass arrests made in or around TAP buildings prior to arraignment.

Require officers to complete a Trespass Crimes Fact Sheet for all trespass arrests made in or Revisions to Trespass

around TAP buildings prior to arraignment

Crimes Fact Sheet and PG

212-59

Implementation

Task #12b Source: NYPD officers complete a

NYPD officers must complete a Trespass Crimes Fact

Ligon stipulation of Trespass Crimes Fact Sheet Sheet (PD 351-144), under Docket Entry No. 249,

settlement, p.10

for every trespass arrest made attached as Exhibit B, or its electronic equivalent, for

in or around a TAP building every trespass arrest made in or around a TAP Building

prior to the arraignment of the defendant in the criminal

case in order to document the circumstances leading to

the officer's encounter with the defendant, the officer's

investigation into the defendant's authority to be present

in the building, any statements by the defendant, the

basis of the officer's belief that the defendant did not

have authority to be present in the building, and any

arrest evidence or contraband recovered by the officer.

Compliance with this provision will be

achieved when:

1. Officers complete a Trespass Crimes

Fact Sheet for all trespass arrests made in

or around TAP buildings prior to

arraignment;

2.

The TCFS articulates a proper basis for

the approach and probable cause for the

trespass arrest.

Compliance must be consistent across commands and over time.

TAP Trespass Arrest Reports, TCFS, QAD TCFS Audits

Creation of

Task #13a Source: Revise and promulgate

Written policies, Ligon stipulation of Administrative Guide 303-27

procedures and settlement, p.13-14

Training Materials

Implementation Task 13b

Source: Implement Administrative

Ligon stipulation of Guide 303-27

settlement, p.10

The NYPD shall promulgate the revised version of the NYPD Administrative Guide Procedure 303-27 entitled "Trespass Affidavit Program" within 30 days of the Final Approval Date. The NYPD shall promulgate the revised version of the NYPD Administrative Guide Procedure 303-27 entitled "Trespass Affidavit Program" within 30 days of the Final Approval Date.

Compliance with this provision will be

Promulgate the revised AG 303-27.

achieved when the NYPD promulgates the

revised AG 303-27.

Compliance with this provision will be

achieved when the NYPD implements the

revised AG 303-27:

1.

CPOs obtain appropriate Trespass Crimes

Owner's Affidavit and complete TAP

enrollment form for buildings entering the

program.

2. CPOs review

and evaluate whether to renew a building's

participation in the program before the

expiration of six months.

3. COs review and evaluate whether to

renew a building's participation in the

program before the expiration of one year.

4. Borough Commanders are notified if

there is a need for a building to remain in

TAP beyond one year, and will

recommend approval to the Officer of the

Chief of Patrol if the they determine that

the building should remain in the program.

The Office of the Chief of Patrol will issue

the final approval for renewal.

Revisions to AG 303-27.
Focus group with CPOs; Owner’s Affidavits; NYPD TAP enrollment forms and renewal forms; TAP database

Implementation

Task #14

Source: NYPD Business Card given to

Floyd remedial order, person stopped but not

p.21

arrested or summonsed,

replacing the tear-off receipt

Furthermore, both the DOJ and plaintiffs recommend that Compliance will be achieved when NYPD the UF-250 contain a tear-off portion stating the reason MOS offer a business card to persons for the stop, which can be given to each stopped person stopped but not arrested or summonsed at the end of the encounter. 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." 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.

Monitor team will review BWC videos and Stop Reports to assess whether persons stopped but not arrested or summonsed are offered a business card.

Stop Reports, BWC videos

Supervisory Review Requirements

Creation of

Task #15a Source: Sergeants and must address

Written policies, Floyd remedial order, constitutionality of stops of

procedures and p.24

their subordinates

Training Materials

"... based on the findings in the Liability Opinion, there is Compliance with this provision will be

Add Supervisor checkboxes "Sufficient Basis to Stop," "Sufficient Basis for Frisk" and

an urgent need for the NYPD to institute policies

achieved when:

1. Sufficient Basis for Search" on the Stop Report, which requires supervisor to determine

specifically requiring sergeants who witness, review, or NYPD policies and procedures require whether officer had reasonable suspicion to stop and, if applicable, frisk or search the

discuss stops to address not only the effectiveness but supervisors to review stops for

individual;

also the constitutionality of those stops, and to do so in a constitutionality in a comprehensive

thorough and comprehensive manner.

manner;

2.

NYPD requires supervisors to complete

Supervisory Review section of Stop

Stop Reports with Supervisory Review section

5

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 6 of 14

Implementation

Task #15b Source: Sergeants review and assess

Floyd remedial order, the constitutionality of stops of

p.24

their subordinates

Creation of

Task #16a Source: ICOs must address

Written policies, Floyd remedial order, constitutionality of stops of

procedures and p.24

their subordinates

Training Materials

Implementation

Task #16b Source: ICOs conduct Self-Inspections

Floyd remedial order, to assess the constitutionality

p.24

of stops

"... 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.
To the extent that Integrity Control Officers witness or review stops, they too must be instructed to review for constitutionality
To the extent that Integrity Control Officers witness or review stops, they too must be instructed to review for constitutionality

Compliance with this provision will be

achieved when:

1.

Supervisors review stops for

constitutionality in a comprehensive

manner and take appropriate corrective

action when they identify improper stops,

frisks or searches.

2. Supervisors who observe or learn of

MOS who make a stop but do not

document the stop with a stop report take

appropriate corrective action.

Compliance with this provision will be

achieved when:

1. NYPD prepares ICOs self-inspection

procedures and forms for review of Stop

Reports for constitutionality

Compliance with this provision will be

achieved when:

1. ICOs complete SQF self-inspections

and review Stop Reports for

constitutionality;

Monitor team will examine a sample of stop reports audited by QAD; as well as ICO selfinspections and QAD's audit of supervisory review. Monitor team will also assess NYPD's efforts through RISKS Reviews and follow-up training conducted for supervisors who do not identify deficient stop reports.
ICO SQF self-inspection protocols revised

Stop Reports; ICO selfinspections; QAD SQF audits identifying deficient Stop Reports; CRAFT Reports and corrective actions taken by supervisors; RISK Reviews; data on additional training for supervisors who do not identify deficient stop reports.

Monitor team will assess a sample of ICO Self-Inspections as well as reviewing the QAD audit QAD audits reviewing ICO findings of ICO self-inspections. ICO efforts to review BWC footage will also be considered. self-inspections; ICO Self
Inspections; RISK Reviews

Training Requirements

Creation of Written policies, procedures and

Task #17a Source: Revise training regarding stop ...the NYPD should revise its ... training regarding stop Compliance with this provision will be

Revise training materials for stops to comport with federal and state standards.

Floyd remedial order, and frisk to adhere to new

and frisk to adhere to constitutional standards as well as achieved when

1.

p.14

NYPD policies, constitutional New York state law. The constitutional standards include NYPD develops new In-Service training

Creation of SQF in-service training and investigative encounters roll call

Training Materials

standards and New York state the standards for: what constitutes a stop, when a stop regarding stops which comply with federal

trainings; revisions to

law

may be conducted, when a frisk may be conducted, and and state standards and which are

recruit training

when a search into clothing or into any object found during a search may be conducted. Although the standards may sometimes require the informed use of

approved by the Monitor and the Court; 2. NYPD develops new In-Service training for supervisors regarding their

discretion, they are not complicated and should be stated responsibilities for reviewing officer stops

in policies and training as clearly and simply as possible and documentation of stops.

3. NYPD develops new Recruit training regarding stops which comply with federal and state standards and which are approved by the Monitor and the Court.

Implementation Task #17b Source: NYPD has trained its members ...the NYPD should revise its ... training regarding stop Compliance with this provision will be

Patrol officers, detectives and supervisors in the Patrol Services Bureau, Housing Bureau and Monitor observation of In-

Floyd remedial order, regarding stops to comply with and frisk to adhere to constitutional standards as well as achieved when:

1. Transit Bureau must be trained regarding investigative encounters to demonstrate substantial Service and Recruit

p.14

NYPD policies and with state New York state law. The constitutional standards include NYPD training instructors provide training compliance Other MOS with enforcement responsibilities, such as those in Narcotics and training; data on number

and federal standards

the standards for: what constitutes a stop, when a stop consistent with the court approved training Gang Units and the Strategic Response Group also must be trained. The training must be and percentage of officers

may be conducted, when a frisk may be conducted, and materials.

2. NYPD patrol

effective and consistent, both in terms of consistent with the curricula and consistently

and detectives and of

when a search into clothing or into any object found

officers and detectives are trained on

provided over time, based on Monitor Team observation. Qualitative assessment of SQF supervisors who have

during a search may be conducted. Although the

investigative encounters.

3.

standards may sometimes require the informed use of NYPD supervisors are trained on

discretion, they are not complicated and should be stated investigative encounters and their

training will also take into account outcome measures, such as the level of compliance of MOS as reflected in their stop reports and an assessment of unreported stops. Sustained compliance will be assessed in conjunction with refresher training in Task 31b.

completed SQF training; NYPD reporting on training evaluation.

in policies and training as clearly and simply as possible responsibility for reviewing officer stops

and documentation of stops;

4.

NYPD recruit officers are trained on investigative encounters.

Creation of

Task #18a Source: Revise training regarding racial ...the NYPD should revise its ... training regarding racial Compliance with this provision will be

Revise training to ensure race is not used improperly when officers conduct stops

Creation of SQF in-service

Written policies, Floyd remedial order, profiling to make clear

profiling to make clear that targeting "the right people" for achieved when NYPD develops new

training; revisions to recruit

procedures and p.17

targeting “right people” for

stops, as described in the Liability Opinion, is a form of training regarding racial profiling

training

Training Materials

stops is racial profiling and racial profiling and violates the Constitution. Racially

violates Constitution

defined groups may not be targeted for stops in general

simply because they appear more frequently in the local

crime suspect data. Race may only be considered where

the stop is based on a specific and reliable suspect

description.

Implementation Task #18b Source: NYPD has trained its members

Compliance with this provision will be

Patrol officers, detectives and supervisors in the Patrol Services Bureau, Housing Bureau and Monitor observation of In-

Floyd remedial order, regarding stops to comply with

achieved when:

1. Transit Bureau must be trained regarding investigative encounters to demonstrate substantial Service and Recruit

p.17

NYPD policies and with state

NYPD training instructors provide training compliance Other MOS with enforcement responsibilities, such as those in Narcotics and training; data on number

and federal standards

consistent with the court approved training Gang Units and the Strategic Response Group also must be trained. The training must be and percentage of MOS

regarding racial profiling

materials.

2. NYPD patrol effective and consistent, both in terms of consistent with the curricula and consistently

who have completed SQF

officers, detectives and supervisors are provided over time, based on Monitor Team observation. Qualitative assessment of SQF training; NYPD reporting on

trained regarding racial profiling.

training will also take into account outcome measures, such as the level of compliance with training evaluation; FIP

3. NYPD recruit officers are trained

Task #2b. Sustained compliance will be assessed in conjunction with refresher training in training.

regarding racial profiling.

Task 31b.

6

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 7 of 14

Creation of

Task #19a Source: NYPD has developed training In addition to changing the UF-250, officers should be Compliance with this provision will be

Revise training for stops and frisk to comport with federal and state standards

Creation of SQF in-service

Written policies, Floyd remedial order, in use of new Stop Report procedures and p.21 Training Materials

further trained in its use...some officers check certain achieved when NYPD develops new boxes (or combinations of boxes) reflexively as part of training guidelines for officers to explain "scripts," including "Furtive Movements" and "Area Has reasons for stopping and frisking the

training and documentation roll call training, revisions to recruit training

High Incidence of Reported Offenses of Type Under

individual, especially why the officer had

Investigation." Officers must understand that if a stop is reasonable suspicion that individual was

based on these factors, the officer must provide

committing or about commit criminal

additional details in the narrative field - for example, what activity and was armed and dangerous.

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

Implementation Task #19b

basis for believing it has a high incidence of the Source: NYPD has trained its members sInusapdedcitieodn ctorimchea?nging the UF-250, officers should be

Compliance with this provision will be

Patrol officers, detectives and supervisors in the Patrol Services Bureau, Housing Bureau and Monitor observation of In-

Floyd remedial order, regarding the use of the new

p.21

Stop Report

further trained in its use...some officers check certain boxes (or combinations of boxes) reflexively as part of "scripts," including "Furtive Movements" and "Area Has High Incidence of Reported Offenses of Type Under

achieved when:

1. Transit Bureau must be trained regarding investigative encounters to demonstrate substantial Service and Recruit

NYPD training instructors provide training compliance Other MOS with enforcement responsibilities, such as those in Narcotics and training; data on number

consistent with the court approved training Gang Units and the Strategic Response Group also must be trained. The training must be and percentage of MOS

materials.

2. NYPD effective and consistent, both in terms of consistent with the curricula and consistently

who have completed SQF

Investigation." Officers must understand that if a stop is patrol officers, detectives and supervisors provided over time, based on Monitor Team observation.

training;

based on these factors, the officer must provide

are trained regarding the use of the new

additional details in the narrative field - for example, what Stop Report.

was the specific nature of the furtive movement, and why 3. NYPD recruit officers are trained

was it suspicious? What was the geographic scope of the regarding the use of the new Stop Report.

"high crime area," and what was the officer's specific

basis for believing it has a high incidence of the

Creation of

Task #20a

NYPD has developed

Written policies Source: Floyd

training on supervisory

procedures, and

Training Materials remedial order, p.24 responsibilities for newly

promoted supervisors

s".u..sbpaesceteddocnritmhe?findings in the Liability Opinion, there is Compliance with this provision will be

an urgent need for the NYPD to institute policies

achieved when:

1.

specifically requiring sergeants who witness, review, or NYPD has developed training, approved

discuss stops to address not only the effectiveness but by the monitor and the Court, for newly

also the constitutionality of those stops, and to do so in a promoted NYPD supervisors on

thorough and comprehensive manner. To the extent that investigative encounters and their

Integrity Control Officers witness or review stops, they responsibility for reviewing officer stops

too must be instructed to review for constitutionality"

and documentation of stops.

Implementation Task #20b Source: NYPD has trained its newly "... based on the findings in the Liability Opinion, there is Compliance with this provision will be

The training must be effective and consistent, both in terms of consistent with the curricula Monitor observation of

Floyd remedial order, promoted supervisors on

an urgent need for the NYPD to institute policies

p.24

supervisory responsibilities for specifically requiring sergeants who witness, review, or

newly promoted supervisors discuss stops to address not only the effectiveness but

achieved when:

1. and consistently provided over time, based on Monitor Team observation.

NYPD training instructors provide training

consistent with the court approved training

promotional training; data on number and percentage of newly promoted

also the constitutionality of those stops, and to do so in a materials.

2. Newly

sergeants and lieutenants

thorough and comprehensive manner. To the extent that promoted NYPD supervisors are trained

who have completed

Integrity Control Officers witness or review stops, they too must be instructed to review for constitutionality"

on investigative encounters and their responsibility for reviewing officer stops and documentation of stops.

supervisor SQF training.

Creation of Written policies, procedures and

Task #21a Source: NYPD must develop stop and The City is ordered to revise the NYPD’s training

Compliance with this provision will be

SQF in-service training needs to include instruction specifically aimed at preventing

Floyd remedial order frisk training at Rodman’s Neck materials and training programs to conform with the law achieved when the SQF in-service training unconstitutional stops outside TAP buildings.

(Ligon remedies

that incorporates instruction as set forth in the February 14 Opinion. The instruction materials at Rodman's Neck incorporates

SQF in-service training and roll call training including section regarding when it is

Training Materials section), p.36; Ligon specifically targeting the

must be sufficient to uproot the longstanding

instruction specifically aimed at the

and is not constitutional to

stipulation of

problem of unconstitutional misconceptions that have affected stops outside of TAP preventing unconstitutional stops outside

stop someone outside of a

settlement, p.16

stops outside TAP buildings

buildings in the Bronx. It must include, but need not be TAP buildings. limited to, the following reforms: ... (2) The stop and frisk refresher course at Rodman’s Neck must be altered to

TAP building

incorporate instruction specifically targeting the problem

of unconstitutional trespass stops outside TAP buildings.

Training regarding stops outside TAP buildings must also be provided to ... any officers who have already attended the Rodman’s Neck refresher course and are not

scheduled to do so again.

The NYPD will ensure

that every member of the NYPD who engages in

enforcement activity in or around TAP Buildings receives training in the standards identified in Section E of this Stipulation.

Implementation Task #21b Source: NYPD has trained its members The City is ordered to revise the NYPD’s training

Compliance with this provision will be

Patrol officers, detectives and supervisors in the Patrol Services Bureau, Housing Bureau and Monitor observation of In-

Floyd remedial order regarding stops at TAP

materials and training programs to conform with the law achieved when:

1. Transit Bureau must be trained regarding investigative encounters to demonstrate substantial Service training; data on

(Ligon remedies

locations to comply with NYPD as set forth in the February 14 Opinion. The instruction NYPD training instructors provide training compliance Other MOS with enforcement responsibilities, such as those in Narcotics and number and percentage of

section), p.36; Ligon policies and with state and must be sufficient to uproot the longstanding

consistent with the court approved training Gang Units and the Strategic Response Group also must be trained. The training must be MOS who have completed

stipulation of settlement, p.16

federal standards

misconceptions that have affected stops outside of TAP materials.

2. NYPD patrol

buildings in the Bronx. It must include, but need not be officers, detectives and supervisors are

limited to, the following reforms: ... (2) The stop and frisk trained on stops at TAP locations.

effective and consistent, both in terms of consistent with the curricula and consistently provided over time, based on Monitor Team observation.

In-service SQF training; roll call training

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 ... any officers who have already attended the Rodman’s Neck refresher course and are not

scheduled to do so again.

The NYPD will

ensure that every member of the NYPD who engages in

enforcement activity in or around TAP Buildings receives training in the standards identified in Section E of this Stipulation.

7

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 8 of 14

Creation of

Task #22a Source: NYPD must develop training Training regarding stops outside TAP buildings must also Compliance with this provision will be

Recruit training needs to include instruction specifically on when an officer may and may not Revisions to Interior Patrol

Written policies, Floyd remedial order regarding stops outside TAP be provided to new recruits

achieved when the recruit training includes stop someone outside of a TAP building

recruit training

procedures and (Ligon remedies

buildings for new recruits

the constitutional standard for when an

Training Materials section), p.36

officer may and may not stop someone

outside of a TAP building

Implementation Task #22b

NYPD has trained its recruits Training regarding stops outside TAP buildings must also Compliance with this provision will be

Interior Patrol training course must be part of Recruit Curriculum taken by each recruit class. Monitor observation of

Source: Floyd remedial regarding stops at TAP

be provided to new recruits

achieved when:

1. The training must be effective and consistent, both in terms of consistent with the curricula Recruit training

order (Ligon remedies locations to comply with NYPD

NYPD training instructors provide training and consistently provided over time, based on Monitor Team observation.

section), p.36

policies and with state and

consistent with the court approved training

federal standards

materials.

2. NYPD recruits are

trained on stops at TAP locations.

Creation of

Task #23a Source: Field Training Guide and FTO The City is ordered to revise the NYPD’s training

Compliance with this provision will be

The Field Training Guide and FTO training needs to include instruction regarding the formal Revisions to Field Training

Written policies, Floyd remedial order training materials must be

materials and training programs to conform with the law achieved when the Field Training Guide written policy governing trespass stops outside of TAP buildings.

Guide; FTO training

procedures and (Ligon remedies

revised to reflect formal written as set forth in the February 14 Opinion. The instruction and FTO training materials have been

materials

Training Materials section), p.36

policy governing trespass stops must be sufficient to uproot the longstanding

revised to reflect the formal written policy

outside TAP buildings

misconceptions that have affected stops outside of TAP governing trespass stops outside of TAP

buildings in the Bronx. It must include, but need not be buildings.

limited to, the following reforms: ... (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.

Implementation Task #23b Source: NYPD has trained its FTOs on The City is ordered to revise the NYPD’s training

Compliance with this provision will be

SQF and TAP Training module must be part of each FTO training class. The training must be Monitor Observation of

Floyd remedial order TAP policies and procedures materials and training programs to conform with the law achieved when FTOs have been trained effective and consistent, both in terms of consistent with the curricula and consistently

FTO training

(Ligon remedies

as set forth in the February 14 Opinion. The instruction on TAP policies and procedures

provided over time, based on Monitor Team observation.

section), p.36

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: ... (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.

Implementation Task #24

Source: SQF Training Video No. 5 must The City is ordered to revise the NYPD’s training

Compliance with this provision will be

Create SQF video stating that the information in the previous training video was incorrect and Investigative Encounters

Floyd remedial order be revised to state information materials and training programs to conform with the law achieved when the Department

explaining why it was incorrect.

Roll Call Video #3, Terry

(Ligon remedies

in earlier video was incorrect as set forth in the February 14 Opinion. The instruction disseminates an SQF video stating that

Stops and Reasonable

section), p.36

must be sufficient to uproot the longstanding

the information in the previous training

Suspicion; data on

misconceptions that have affected stops outside of TAP video was incorrect and explain why it was

dissemination

buildings in the Bronx. It must include, but need not be incorrect.

limited to, the following reforms: ... (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.

Creation of

Task #25a Source: Revise Interior Patrol recruit Plaintiffs and the City have extensively negotiated the Compliance with this provision will be

Revise Interior Patrol recruit training to promote constitutional interactions in and around

Revisions to Interior Patrol

Written policies, Davis stipulation of training

terms of the NYPD training materials regarding trespass achieved when the Department revises its NYCHA buildings.

recruit training.

procedures and settlement, p.9

enforcement in NYCHA residences and enforcement of recruit training on interior patrols in

Training Materials

NYCHA House Rules and have agreed to revisions that NYCHA buildings to promote constitutional

will aid in training NYPD officers to engage in

interactions.

constitutional interactions while in or around NYCHA

residences and/or while performing interior patrols in or

around NYCHA residences.

The revised versions of the "Basic Recruit Course Lesson

Plan on Patrol Operations/Interior Patrols" ... to which

both Plaintiffs and the City agree, are attached as

Exhibits D ... to this Stipulation.

Implementation Task #25b Source: Train recruits at the Academy Plaintiffs and the City have extensively negotiated the Compliance with this provision will be

Interior Patrol Training Course must be part of Recruit Curriculum taken by each recruit class. Monitor observation of

Compliance

Davis stipulation of on Interior Patrol

terms of the NYPD training materials regarding trespass achieved when the Department trains its The training must be effective and consistent, both in terms of consistent with the curricula Recruit training

settlement, p.9

enforcement in NYCHA residences and enforcement of recruits in the Police Academy on interior and consistently provided over time, based on Monitor Team observation.

NYCHA House Rules and have agreed to revisions that patrols in NYCHA buildings to promote

will aid in training NYPD officers to engage in

constitutional interactions.

constitutional interactions while in or around NYCHA

residences and/or while performing interior patrols in or

around NYCHA residences.

The revised versions of the "Basic Recruit Course Lesson

Plan on Patrol Operations/Interior Patrols" ... to which

both Plaintiffs and the City agree, are attached as

Exhibits D ... to this Stipulation.

Creation of

Task #26a

Written policies, Source: Davis

procedures and stipulation of

Training Materials settlement, p.9

Revise training regarding

Plaintiffs and the City have extensively negotiated the

NYCHA rules, regulations, and terms of the NYPD training materials regarding trespass

signage

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

Compliance with this provision will be

achieved when the Department:

1. Develops roll call training for Housing

officers on NYPD policies on interior

patrol;

2.

Create Housing one-day training that includes instruction based on Exhibit E of the stipulation, Roll call training videos

specifically including instruction on NYCHA rules, regulations, and signage

regarding interior patrols

at NYCHA developments;

curriculum and materials

constitutional interactions while in or around NYCHA

Develops training for Housing officers that

residences and/or while performing interior patrols in or includes instruction on NYCHA rules,

around NYCHA residences.

regulations, and signage utilizing material

for training incumbent Housing MOS

The revised versions of the ... "NYCHA Rules,

contained in Exhibit E (lesson plan)

Regulations, and Signage Lesson Plan," to which both contained in the Davis stipulation.

Plaintiffs and the City agree, are attached as Exhibits ...

E ... to this Stipulation.

8

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 9 of 14

Implementation Task #26b Source: Implement training regarding Plaintiffs and the City have extensively negotiated the Compliance with this provision will be

The training must be effective and consistent, both in terms of consistent with the curricula Data on Roll call training

Davis stipulation of NYCHA rules, regulations, and terms of the NYPD training materials regarding trespass achieved when:

1. and consistently provided over time, based on Monitor Team observation.

dissemination; data on

settlement, p.9

signage

enforcement in NYCHA residences and enforcement of NYPD disseminates roll call training on

Housing MOS participating

NYCHA House Rules and have agreed to revisions that NYPD interior patrol policies to Housing

in training; monitor

will aid in training NYPD officers to engage in

officers;

2.

observation of training

constitutional interactions while in or around NYCHA

NYPD training instructors provide training

residences and/or while performing interior patrols in or for Housing officers consistent with the

around NYCHA residences.

court approved training materials.

The revised versions of the ... "NYCHA Rules,

3. NYPD Housing officers and supervisors

Regulations, and Signage Lesson Plan," to which both are trained on NYCHA rules, regulations,

Plaintiffs and the City agree, are attached as Exhibits ... and signage utilizing material contained in

E ... to this Stipulation.

Exhibit E (lesson plan) of the Davis

stipulation.

Implementation Task #27 Source: Ensure every member of

The NYPD will ensure that every member of the NYPD Compliance with this provision will be

Revise TAP enrollment form and instructions and meet with relevant actors to go over how to Revised TAP enrollment

Ligon stipulation of NYPD who is involved in

who is involved in the administration of TAP is trained on achieved when TAP administrators have implement the revisions.

form and instructions; focus

settlement, p.16

administration of TAP is

the standards identified in Section H of this Stipulation. been trained on the specified standards.

group with Crime

trained on specified standards

Prevention Officers.

Creation of

Task #28a

Training on constitutional

The erroneous or misleading training materials identified Compliance with this provision will be

Revise recruit and in-service trainings to correct identified errors and clearly articulate the Revisions to Policing

Written policies, Source: Floyd remedial standard for a frisk -

in the Liability Opinion must be corrected, including the achieved when:

proper legal standards regarding stops and frisks.

Legally and Recognizing

procedures and order p.16

reasonable suspicion that a Police Student Guide's overbroad definition of "furtive 1. Errors identified in the training materials

the Characteristics of

Training Materials

stopped person is armed and behavior;" the misleading training on "unusual firearms" (furtive behavior," "unusual firearms")

Armed Suspects recruit

dangerous to correct overbroad implying that the presence of a wallet, cell phone, or pen have been corrected;

trainings and creation of

definition of furtive behavior, could justify a frisk, or search ...

2. The proper legal standards for a frisk or

SQF in-service training.

the misleading training on

search are clearly articulated in the SQF

unusual firearms

training;

Implementation Task #28b Source: Training on constitutional

The erroneous or misleading training materials identified Compliance with this provision will be

Monitor team observation of Characteristics of Armed Suspects recruit training. The training Monitor observation of

Floyd remedial order standard for a frisk -

in the Liability Opinion must be corrected, including the achieved when:

1. must be effective and consistent, both in terms of consistent with the curricula and

training

p.16

reasonable suspicion that a Police Student Guide's overbroad definition of "furtive NYPD training instructors provide training consistently provided over time, based on Monitor Team observation.

stopped person is armed and behavior;" the misleading training on "unusual firearms" consistent with the court approved training

dangerous to correct overbroad implying that the presence of a wallet, cell phone, or pen materials.

2. NYPD recruits are

definition of furtive behavior, could justify a frisk, or search ...

correctly trained on identifying

the misleading training on

characteristics of armed suspects.

unusual firearms

Creation of Written policies, procedures and

Task #29a Source: NYPD develops training for its ..the Office of the Chief of Department must begin

Compliance with this provision will be

Floyd remedial order investigators on racial profiling tracking and investigating complaints it receives related achieved when: 1. IAB develops an

p.24-25

complaint investigations

to racial profiling

Internal Investigators Course on profiling

Internal Investigators Course Module #4;

Training Materials

and bias-based policing.

Implementation

Task #29b Source: NYPD must train investigators ..the Office of the Chief of Department must begin

Floyd remedial order on racial profiling complaint tracking and investigating complaints it receives related

p.16

investigations

to racial profiling

Compliance with this provision will be achieved when: IAB intake personnel are trained on handling profiling complaints;

Monitor team observation of Internal Investigators course, Module #4. The training must be 1. effective and consistent, both in terms of consistent with the curricula and consistently
provided over time, based on Monitor Team observation. Assessment of the training will be 2. informed by the Monitor's review of profiling investigations, Task 35(b).

Data on MOS trained; monitor team observation of training

Investigators in Investigations Units who

will be undertaking profiling investigations

have been trained on investigating

profiling complaints

Creation of

Task #30a Source: NYPD must develop training ...the NYPD should revise its ... training regarding stop Compliance with this provision will be

Written policies, Floyd remedial order for officers newly assigned to and frisk to adhere to constitutional standards as well as achieved when:

1.

BPC materials

procedures and p.14

plainclothes assignments

New York state law. The constitutional standards include NYPD has developed training, approved

Training Materials

the standards for: what constitutes a stop, when a stop by the monitor and the Court, for officers

may be conducted, when a frisk may be conducted, and newly assigned to plainclothes units on

when a search into clothing or into any object found

investigative encounters and the standards

during a search may be conducted. Although the

for stops and frisks.

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

Implementation

Task #30b Source: Training is provided for officers ...the NYPD should revise its ... training regarding stop

Floyd remedial order newly assigned to plainclothes and frisk to adhere to constitutional standards as well as

p.14

assignments

New York state law. The constitutional standards include

the standards for: what constitutes a stop, when a stop

Compliance with this provision will be

SQF Training module must be part of each Basic Plainclothes training class. The training

achieved when:

1. must be effective and consistent, both in terms of consistent with the curricula and

NYPD training instructors provide training consistently provided over time, based on Monitor Team observation.

consistent with the court approved training

Data on MOS trained; monitor team observation of training

may be conducted, when a frisk may be conducted, and materials.

2. NYPD MOS

when a search into clothing or into any object found

assigned to plainclothes units are trained

during a search may be conducted. Although the

on investigative encounters.

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

Creation of

Task #31a

Written policies, Source: Floyd procedures and Training Materials remedial order p.14

NYPD develops SQF refresher training for incumbent and probationary officers, and

...the NYPD should revise its ... training regarding stop and frisk to adhere to constitutional standards as well as New York state law. The constitutional standards include the standards for: what constitutes a stop, when a stop may be conducted, when a frisk may be conducted, and

Compliance with this provision will be

achieved when:

1.

NYPD develops SQF refresher training

for incumbent and probationary

Create refresher course for incumbent and probationary officers

New training material for incumbent and probationary refresher class

for supervisors

when a search into clothing or into any object found

officers.

2. NYPD

during a search may be conducted. Although the

develops SQF refresher training for

standards may sometimes require the informed use of

discretion, they are not complicated and should be stated supervisors.

in policies and training as clearly and simply as possible

9

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 10 of 14

Implementation

Task #31b Source: Floyd remedial order p.14

NYPD conducts SQF refresher training for incumbent and probationary officers

...the NYPD should revise its ... training regarding stop Compliance with this provision will be

Conduct SQF refresher for incumbent and probationary officers.

and frisk to adhere to constitutional standards as well as achieved when:

New York state law. The constitutional standards include 1. NYPD provide training consistent with

the standards for: what constitutes a stop, when a stop court approved training materials.

may be conducted, when a frisk may be conducted, and 2. NYPD incumbent and probationary

when a search into clothing or into any object found

officers have taken a refresher course on

during a search may be conducted. Although the

investigative encounters.

3.

standards may sometimes require the informed use of Supervisors have taken a refresher course

discretion, they are not complicated and should be stated on investigative encounters and

in policies and training as clearly and simply as possible supervisory responsibilities for review of

stop reports and documentation.

Data on probationary and incumbent officers and supervisors taking SQF refresher

Body-Worn Camera Requirements Implementation Task #32a Source: NYPD must institute one-year
Floyd remedial order BWC pilot project p.27

...ordering the NYPD to institute a project in which body- Compliance with this provision will be

Acquire BWC technology; Create BWC policy PG 212-123; equip MOS in pilot commands

worn cameras will be worn for a one-year period by

achieved when:

1. with BWC for use on the third platoon; train affected MOS in proper use of BWC's. Retaining

officers... The Monitor will establish procedures for the The Monitor reports on the results of his BWC footage for use by Monitor's team.

review of stop recording by supervisors, and, as

BWC Pilot with respect to the

appropriate, more senior managers. The Monitor will also effectiveness of body-worn cameras in

establish procedures for the preservation of stop

reducing unconstitutional Stop and Frisks.

recording 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. Additional Court order

Amended the requirements on 12/08/15 "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 body-worn cameras in reducing

unconstitutional stops-and-frisks and in assessing the

costs and benefits of the body-worn cameras."

BWC videos; stop reports; outcome data from treatment and control precincts

Implementation Implementation Implementation

Task #32b Source: NYPD must develop

...ordering the NYPD to institute a project in which body- Compliance with this provision will be

Floyd remedial order procedures for supervisory worn cameras will be worn for a one-year period by

achieved when:

1.

p.27

review of BWC videos

officers... The Monitor will establish procedures for the NYPD implements supervisory reviews of

review of stop recording by supervisors, and, as

BWCs consistent with the review protocols

appropriate, more senior managers.

approved by the Monitor.

Task #32c Source: NYPD must develop

...ordering the NYPD to institute a project in which body- Compliance with this provision will be

Floyd remedial order procedures for sharing BWC worn cameras will be worn for a one-year period by

achieved when:

1.

p.27

videos with the CCRB for

officers... The Monitor will establish procedures for the NYPD shares BWC videos with CCRB

complaint investigations

preservation of stop recordings for use in verifying

consistent with procedures approved by

complaints in a manner that protects the privacy of those the Monitor.

stopped."

Task #33

Source: NYPD must implement a BWC

Compliance with this provision will be

October 2018 Court pilot for Housing officers

achieved when the Monitor reports on the

approval of stop report working in PSA

results of his PSA BWC Pilot with respect

to the effectiveness of body-worn cameras

in reducing unconstitutional Stop and

Frisks.

Supervisory reviews of BWCs; BWC footage
Supervisory reviews of BWCs; BWC footage
BWC videos; outcome data from PSAs before and after implementation of BWCs.

Complaints and Discipline Requirements

Creation of

Task #34a Source: DAO must improve procedures The Department Advocate's Office must improve its

Compliance with this provision will be

Written policies, Floyd remedial order, for imposing discipline by

procedures for imposing discipline in response to the achieved when NYPD improves its

procedures and p.24

increasing deference to CCRB Civilian Complaint Review Board's ("CCRB") findings of procedures regarding imposing discipline

Training Materials

credibility determinations,

substantiated misconduct during stops. This

in response to CCRB findings of

applying evidentiary standard improvement must include increased deference to

substantiated misconduct during stops.

that is neutral between claims credibility determinations by the CCRB, and evidentiary

of complainants and officers standard that is neutral between the claims of

and not requiring corroborating complainants and officers, and no general requirement of

physical evidence

corroborating physical evidence.

Establish Department Advocate's Office procedures relating to handling and prosecution of substantiated complaints received from the CCRB.

Revision to Administrative Guide 318; MOU creating Administrative Prosecution Unit in CCRB which allows CCRB to prosecute cases in the NYPD trial room; Creation of formal process for reconsideration of CCRB recommendations. Data collection related to these changes.

10

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 11 of 14

Implementation Task #34b Source: DAO handling of substantiated The Department Advocate's Office must improve its

Compliance with this provision will be

Monitor review of DAO handling of CCRB complaints, including case files for Reconsideration DAO SQFT Matrix; CCRB

Floyd remedial order, CCRB complaints must meet procedures for imposing discipline in response to the achieved when:

1. Requests and Provision II retention cases.

investigations and NYPD

p.24

improved procedures

Civilian Complaint Review Board's ("CCRB") findings of The DAO's handling of substantiated

handling of substantiated

substantiated misconduct during stops. This

CCRB complaints reflects:

complaints, including

improvement must include increased deference to

(a) Increased deference to CCRB's factual

Reconsideration and

credibility determinations by the CCRB, and evidentiary findings;

(b) A

Provision II cases

standard that is neutral between the claims of

neutral evidentiary standard; and

complainants and officers, and no general requirement of (c) No general requirement of

corroborating physical evidence.

corroborating physical evidence.

2. NYPD tracks and analyzes CCRB

complaints and discipline imposed.

Creation of

Task #35a Source: NYPD must begin tracking and ..the Office of the Chief of Department must begin

Compliance with this provision will be

Written policies, Floyd remedial order, investigating racial profiling tracking and investigating complaints it receives related achieved when:

1.

IAB Guide 620-58.

procedures and p.24-25

complaints

to racial profiling

IAB establishes a procedural guide for

Training Materials

processing and investigating cases of

profiling and bias-based policing

Implementation Task #35b Source: Racial Profiling complaints ..the Office of the Chief of Department must begin

Compliance with this provision will be

Any complaints that contain an allegation of profiling will be processed and inputted into the Data on profiling

Floyd remedial order, must be thoroughly and fairly tracking and investigating complaints it receives related achieved when:

1. IAB case management system, appropriately assigned to an investigator in IAB (for C cases) investigations in IAB case

p.24-25

investigated

to racial profiling

NYPD tracks and investigates profiling or in an Investigation Unit, and the results of the investigation will be tracked by IAB.

management system

investigations;

2. Investigators assigned to Investigations Units and IAB will receive training and guidance

(profiling matrix and other

NYPD investigations are thorough and regarding investigation of allegations of racial profiling. Monitor review of profiling

data); Monitor team review

impartial and consistent with the IAB

investigation files.

of a sample of racial

guide.

3.

profiling investigation files;

NYPD analyzes trends and patterns of

data regarding training of

profiling complaints.

investigators

Auditing Requirements

Creation of

Task #36a

NYPD establishes auditing "An essential aspect of the Joint Process reforms will Compliance will be achieved when the

Written policies, Source: Floyd

procedures that identify non- be the development of an improved system for

procedures and

Training Materials remedial order, p.23 compliant stops, frisks,

monitoring …"

NYPD establishes an auditing plan that: 1. Provides a sampling methodology

searches, trespass arrests

for auditing Stop Reports;

2.

and a mechanism for

Provides audit procedures for Stop

correcting them

Reports, assessing whether: (i) officers

sufficiently articulated reasonable

suspicion as the basis for the stop, (ii)

officers sufficiently articulated the

legal basis for a frisk and/or search, if

applicable; (iii) supervisors reviewed

the form and made correct

determinations about the legality of

the stop, frisk and search and took

appropriate follow-up action;

3.

Includes a review of BWC videos as

part of the SQF audits;

4.

Includes a review and audit of

Command Self-Inspections;

5.

Includes audit procedures for trespass

arrests and associated TCFS at NYCHA

and TAP locations assessing whether:

(i) officers sufficiently articulate a legal

basis for the approach; (ii) officers

sufficiently articulated probable cause

for the arrest; and (iii) there was

Implementation Task #36b

NYPD implements auditing "An essential aspect of the Joint Process reforms will be Compliance will be achieved when: 1. Monitor team will review a representative sample of stop reports, along with BWC footage,

Source: Floyd remedial procedures that identify non- the development of an improved system for monitoring The NYPD conducts auditing in

and will compare QAD audit results with Monitor audit results.

order, p.23

compliant stops, frisks,

… … to the extent that the Monitor can work with the accordance with a plan approved by the

searches, trespass arrests and parties to develop reforms that can be implemented

monitor and the Court;

2.

a mechanism for correcting immediately, the monitor is encouraged to include those QAD audits identify non-compliant stops,

them

reforms in the proposed Immediate Reforms."

frisks, searches and trespass arrests;

3. Commands take appropriate action in

response to QAD findings

Audit Plan
QAD SQF audits, RAND and PIE audits, TCFS and Trespass Arrest audits, Command Self-Inspections. Quarterly QAD audit data; QAD reports to Commands; Command responses to QAD Reports; RISK Reviews

11

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 12 of 14

Creation of

Task #37a Source: NYPD to design a program to

Written policies, Court Order Regarding receive, assess, and act on

procedures and Facilitator's

information regarding adverse

Training Materials Recommendation No. findings regarding unlawful

1

stops and trespass

enforcements

[B]y January 7, 2019, the NYPD shall, after consultation Compliance will be achieved when the

with the Monitor, submit for approval a plan to implement Department submits a plan, approved by

“a program for systematically receiving, assessing, and the Court, to receive, assess, and act on

acting on information regarding adverse findings on the information regarding adverse findings

conduct of police officers involving illegal stops or illegal regarding unlawful stops and trespass

trespass enforcements.” Final Report at 219. Such

enforcements

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."

NYPD Early Intervention System Plan

Implementation

Task #37b Source: NYPD to implement a program [B]y January 7, 2019, the NYPD shall, after consultation Compliance will be achieved when: 1. Monitor will review EIS system to ensure that appropriate data is included in system and that Data in RAILS; weights and

Court Order Regarding to receive, assess, and act on with the Monitor, submit for approval a plan to implement The NYPD implements a program to

Commanding Officers and RMB implement interventions when MOS reach threshold triggers. threshold triggers;

Facilitator's

information regarding adverse “a program for systematically receiving, assessing, and receive, assess, and act on information

information on MOS

Recommendation No. findings regarding unlawful acting on information regarding adverse findings on the regarding adverse findings regarding

interventions

1

stops and trespass

conduct of police officers involving illegal stops or illegal unlawful stops and trespass enforcements,

enforcements

trespass enforcements.” Final Report at 219. Such

in accordance to a plan approved by the

information shall include “(a) declinations of prosecutions Court;

2. Data on declined

by the District Attorneys in New York City; (b)

prosecutions, adverse credibility findings,

suppression decisions by courts precluding evidence as a suppression decisions, lawsuits and

result of unlawful stops and searches; (c) court findings of denials of indemnification are included in

incredible testimony by police officers; (d) denials of

the Department's early intervention

indemnification and/or representation of police officers by system;

3.

the New York City Law Department; and (e) judgments Commanding Officers and RMB

and settlements against police officers in civil cases

implement and document interventions for

where, in the opinion of the New York City Law

officers identified through data on at-risk

Department, there exists evidence of police

behaviors in the categories identified by

malfeasance."

the court.

Performance Evaluation

Creation of

Task #38a Source: Performance Evaluation

[I]t is unclear at this stage whether Operations Order 52 Compliance will be achieved when: 1.

Written policies, Floyd remedial order, System that does not pressure ("OO 52"), which describes the use of performance

NYPD eliminates Operation Order 52 and

procedures and p.17; Floyd Order

MOS to make stops without objectives to motivate officers requires revision in order any improper performance objectives from

Training Materials approving PERF,

regard to constitutionality

to bring the NYPD's use of stop and frisk into compliance its performance evaluation system;

11/6/2017

with the Fourth and Fourteenth Amendments.

2. NYPD establishes a performance

11/6/17 Order: The Monitor shall, in his bi-annual reports, evaluation system that does not pressure

review and assess the NYPD’s performance-evaluation MOS to make stops without regard to their

system to ensure that, on paper and in practice, it does constitutionality;

not (a) reinstitute pressures that result in a focus on the 3. NYPD establishes a performance

quantity of stops without regard to their lawfulness or (b) evaluation system that does not

undermine the goals of the remedial process, including undermine the goals of the remedial

compliance with the Fourth and Fourteenth Amendments process.

of the Constitution as required by the Remedies Opinion.

Implementation Task #38b Source: Implementation of

11/6/17 Order: The Monitor shall, in his bi-annual reports, Compliance with this provision will be

The monitor team will undertake focus groups of officers and focus groups of supervisors to Monitor focus group of

Floyd remedial order, Performance Evaluation

review and assess the NYPD’s performance-evaluation achieved when the NYPD’s performance- assess whether the PERF system pressures MOS to make stops without regard to

officers; focus group of

p.17; Floyd Order

System that does not pressure system to ensure that, on paper and in practice, it does evaluation system, on paper and in

constitutionality; monitor team will review data on MOS who receive rating of "needs

supervisors; data on MOS

approving PERF,

officers to make stops without not (a) reinstitute pressures that result in a focus on the practice, does not:

improvement" for dimensions of Application of Law and Procedure, Quality and Timeliness of who receive rating of

11/6/2017

regard to constitutionality

quantity of stops without regard to their lawfulness or (b) 1. Reinstitute pressures that result in a Written Reports, and Proactive Policing, and the documentation for those ratings, as well as "needs improvement" for

undermine the goals of the remedial process, including focus on the quantity of stops without

CRAFT Supervisory Feedback forms.

dimensions of Application

compliance with the Fourth and Fourteenth Amendments regard to their lawfulness; or

2.

of Law and Procedure,

of the Constitution as required by the Remedies Opinion. Undermine the goals of the remedial

Quality and Timeliness of

process, including compliance with the

Written Reports, and

Fourth and Fourteenth Amendments of the

Proactive Policing, and the

Constitution as required by the Remedies

documentation for those

Opinion.

ratings; CRAFT

Supervisory Feedback

forms

Joint Remedial Process

12

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 13 of 14

Implementation
Implementation Implementation

Task #39

Source: NYPD must participate in the I hereby order the following specific relief:

Compliance with this provision will be

Participate in JRP meetings and respond to Facilitator's Final Report.

Floyd remedial order, Joint Remedial Process

1. All parties shall participate in the Joint Remedial

achieved when: 1. NYPD participates in

p.30

Process for a period of six to nine months to develop the Joint Remedial Process;

proposed remedial measures (the “Joint Process

2. Facilitator submits his report and

Reforms”) that will supplement the Immediate Reforms recommendations to the parties, the

discussed above. The Joint Process Reforms must be no monitor and the Court.

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 intent may be used

as models.

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

Task #40

Source: The NYPD must conduct a

the meeting. The Monitor will also attend these meetings

[T]he parties shall submit a joint proposal for a pilot

Compliance will be achieved when 1. The

Court Order Regarding pilot to test requiring officers to program, to be overseen by the Monitor, to study

NYPD participates in the pilot study and

Body-Worn Cameras, activate BWCs at the inception requiring patrol officers to activate BWCs during Level 1 provides the Monitor Team the relevant

8/9/2018

of all Level 1 encounters with encounters under De Bour

data to complete its analysis and report; 2.

civilians

Monitor submits its report to the Court

Task #41

Source: The NYPD must conduct a [T]he parties shall submit a joint proposal for a pilot

Compliance will be achieved when 1. The Development of Level 1 and Level 2 electronic documentation app

Court Order Regarding pilot to test requiring officers to program, to be overseen by the Monitor, to study the NYPD participates in the pilot study and

Documenting and

electronically document Level electronic recording of first- and second-level police- provides the Monitor Team the relevant

Recording Police-

1 and Level 2 encounters with citizen encounters

data to complete its analysis and report; 2.

Citizen Encounters, civilians

Monitor submits its report to the Court

7/19/2018

NYPD participation in JRP meetings and response to Facilitator's Final Report

Discovery-Related Requirements

Implementation Task #42

Source: NYPD shall maintain all

The NYPD shall maintain, consistent with NYPD

Compliance with this provision will

Continue to maintain all records documenting the Department's compliance with the Davis

Davis stipulation of records that document its

procedures and, if applicable, any modifying orders by continue to be achieved so long as the settlement.

settlement, p.13

compliance with Davis

the Court, all records that document its compliance with NYPD continues to maintain all records

settlement

the remedies set forth in Sections D, E, F, G, and H of that document its compliance with the

this Stipulation.

Davis settlement.

Implementation Task #43

Source: NYPD shall maintain all files The NYPD shall maintain all files regarding any

Compliance with this provision will

Continue to maintain all records regarding investigations of misconduct relating to complaints

Davis stipulation of regarding any investigation of investigation of misconduct relating to any complaint continue to be achieved so long as the involving stops and arrests for trespass on NYCHA property

settlement, p.13

misconduct relating to

pertaining to a stop and/or arrest for suspicion of trespass NYPD continues to maintain all files

complaints pertaining to stops on NYCHA property, as well as all disciplinary files

regarding investigations of misconduct

and/or arrests for suspicion of maintained in conjunction therewith, as required by

relating to complaints pertaining to stops

trespass on NYCHA property current regulations of the City and the NYPD, and, if

and arrests for trespass on NYCHA

and all related disciplinary files applicable, any modifying orders by the Court.

property

Implementation Task #44

Source: City shall disclose to counsel in The City shall disclose to Class Counsel and the Monitor Compliance with this provision will

Continue to disclose any information related to the monitorship that the Monitor decides

Davis stipulation of Davis and to the Monitor any during the Court-Ordered Monitoring any information continue to be achieved so long as the should be disclosed to Davis counsel

settlement, p.13

information related to

related to the Court-Ordered Monitoring that the Monitor City continues to disclose any information

monitoring that the Monitor determines should be disclosed to Class Counsel, and related to the monitorship that the Monitor

determines should be disclosed such information shall be disclosed at intervals

decides should be disclosed to Davis

determined by the Monitor.

counsel

Implementation Task #45

Source: NYPD shall maintain all

During the duration of this Stipulation, including both the Compliance with this provision will

Continue to maintain all records that document the Department's compliance or non-

Ligon stipulation of records that document its

Court-Ordered Monitoring phase and the second

continue to be achieved so long as the compliance with the Ligon settlement.

settlement, p.20

compliance or non-compliance remedial phase of review (as described in Section J(3) of NYPD maintains all records that document

with all specified remedies in this Stipulation), the NYPD shall maintain all records, its compliance or non-compliance with the

Ligon

including but not limited to documents and data, that

Ligon settlement.

document its compliance or non-compliance with all

remedies specified directly by or incorporated into this

Stipulation.

13

Case 1:08-cv-01034-AT Document 752-2 Filed 12/16/19 Page 14 of 14

Implementation Implementation Implementation

Task #46

Source: NYPD shall maintain all

[F]or the duration of this Stipulation, the NYPD shall

Compliance with this provision will

Continue to maintain all records regarding investigations of misconduct that involve stops,

Ligon stipulation of records regarding any

maintain all records regarding any investigation of

continue to be achieved so long as the summonses, and arrests for trespass on TAP buildings

settlement, p.20

investigation of misconduct misconduct relating to any complaint pertaining to a stop, NYPD maintains all records regarding any

relating to complaints involving summons, and/or arrest for suspicion of trespass on TAP investigation of misconduct related to

a stop, summons, or arrest for Buildings, as well as the disciplinary files maintained in complaints pertaining to stops,

suspicion of trespass involving conjunction therewith.

summonses, and arrests for trespass that

a TAP building and any related

involve a TAP building

disciplinary files

Task #47

Source: City shall disclose to counsel in The City shall disclose to Class Counsel and the Monitor Compliance with this provision will

Continue to disclose any information related to the monitorship that the Monitor decides

Ligon stipulation of Ligon any information related during the Court-Ordered Monitoring any information continue to be achieved so long as the should be disclosed to Ligon counsel

settlement, p.20

to monitoring that the Monitor related to the Court-Ordered Monitoring that the Monitor City continues to disclose any information

determines should be disclosed determines should be disclosed to Class Counsel, and related to the monitorship that the Monitor

such information shall be disclosed at intervals

decides should be disclosed to Ligon

determined by the Monitor.

counsel

Task #48

Following monitorship, City During the second remedial phase of this action, the City Cannot be achieved until monitorship is Cannot be achieved until monitorship is over.

Source: Ligon

shall provide all NYPD

shall provide to Class Counsel, the NYPD documents, over.

stipulation of

documents, data and records data, and records described in section M(1) of this

settlement, p.18

described in tasks 41 and 42 Stipulation.

directly to Ligon counsel during

second remedial phase

Cannot be achieved until monitorship is over.

Superseded Requirements

Source: Floyd remedial Ensure that Activity Logs are

order, p.23

completed with required

specificity

Source: Floyd remedial Implement measures to

order, p.23

adequately discipline officers

who fail to properly document

stops in Activity Logs

[formerly Task #22] Develop and implement

Source: Floyd remedial system to review

order (Ligon remedies constitutionality of stops

section), p.35

outside TAP buildings

All uniformed officers are required to provide narrative Compliance with this provision will be

Addition of narrative fields in electronic Stop Report; Training regarding preparation of Stop Revisions to Stop Report

descriptions of stops in their activity logs whenever a UF- achieved when officers document the

Reports; Supervisory review of Stop Reports and Activity Logs; Audits of Stop Reports and and Patrol Guide 212-11

250 is prepared. In practice, this does not take place. factors that led to stops and frisks (if

Activity Logs

Evidence at trial showed that throughout the class period, applicable) in a narrative written in their

officers consistently failed to record stops in their logs, or own words.

provided insufficient detail for a supervisor to

meaningfully review the constitutionality of the stop. This

problem is best addressed through training, supervision,

and monitoring

The NYPD is further ordered, again with the assistance of Compliance with this provision will be

Addition of narrative fields in electronic Stop Report; Supervisory review of Stop Reports and Revisions to Stop Report

the Monitor, to ensure that activity logs are completed achieved when supervisors review whether Activity Logs; Audits of Stop Reports and Activity Logs

and Patrol Guide 212-11

with the required specificity, and to implement measures officers adequately document the factors

to adequately discipline officers who fail to comply with that led the officers to Stop and/or Frisk an

these requirements.

individual and address through training,

instruction, or discipline officers who fail to

do so.

[T]he City is ordered to develop and implement a system Compliance with this provision will be

NYPD needs to develop a tracking and monitoring system for all stops outside TAP buildings Operations Order regarding

for reviewing the constitutionality of stops outside TAP achieved when NYPD supervisors

in the Bronx for constitutionality

monthly assessment of

buildings in the Bronx. Needless to say, any system

evaluate all stops in and around TAP

stops in or around TAP

developed must not conflict with the supervisory reforms buildings in the Bronx for constitutionality

buildings in the Bronx

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.

14

 
 Case 1:08-cv-01034-AT Document 757 Filed 05/26/20 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------X DAVID FLOYD, et al.,
Plaintiffs,

08 Civ. 1034 (AT)

-against-

ORDER TO SHOW CAUSE

THE CITY OF NEW YORK, et al.,

Defendants. ------------------------------------------------------X

Upon the declaration of Dominique Day, signed May 26, 2020, exhibits accompanying said

declaration, and Plaintiffs’ memorandum of law annexed hereto, it is hereby:

ORDERED that the above-named Defendants show cause before this Court, at Room ___, United States Courthouse, 500 Pearl Street, in Manhattan, in New York County in the State of New York, or via videoconference as determined by the Court, on ______________________________ at ______ o’clock, or as soon thereafter as counsel may be heard, why an order should not be issued pursuant to Rule 37 of the Federal Rules of Civil Procedure and this Court’s inherent equitable powers to enforce its own orders and judgments:
(1) Finding Defendant City of New York to be in violation of the Court’s August 12, 2013 Opinion and Order (Dkt # 372) and Findings and Fact and Conclusions of Law (Dkt # 373), and the Court’s August 24, 2015 Order approving the New York Police Department’s (NYPD) Policy Prohibiting Racial Profiling and Bias-Based Policing (Dkt # 517);

Case 1:08-cv-01034-AT Document 757 Filed 05/26/20 Page 2 of 3
(2) Compelling the City of New York to produce all materials and information responsive to Plaintiffs’ April 22, 2020 discovery requests concerning the NYPD’s efforts to enforce the social distancing directives issued by the City and State of New York in response to the ongoing COVID-19 public health crisis;
(3) Directing the Court-appointed Independent Monitor to, within thirty (30) days, (i) conduct an investigation and evaluation of the legality and consistency with the requirements of the Court’s orders of the NYPD’s social distancing enforcement efforts, including, but not limited to, a review of all NYPD social distancing-related investigative encounter, arrest and summons activity thus far, all written and verbal guidance on social distancing enforcement provided to NYPD rank-and-file officers by NYPD senior management and command-level supervisors, and all data on NYPD efforts to investigate and discipline officers involved in allegedly improper social distancing enforcement activity; (ii) share all information, data, documents, and conclusions pursuant to this investigation with the Plaintiffs for consultation in advance of reporting; and (iii) present all of his investigative findings in a report shared with the parties and filed publicly with the Court; and
(4) Temporarily enjoining any further social distancing enforcement actions by the NYPD pending further order of this Court, following its review and consideration of the Monitor’s report and the parties’ responses and upon its determination that the NYPD is able to enforce social distancing requirements without violating the Court’s prior orders.
2

Case 1:08-cv-01034-AT Document 757 Filed 05/26/20 Page 3 of 3

ORDERED that that service by electronic mail of a copy of this order and annexed documents upon the Defendants’ counsel on or before ____ o’clock on ____________ shall be deemed good and sufficient service thereof.

Dated: New York, NY May _____, 2020

________________________________ U.S.D.J.

3

 
 Case 1:08-cv-01034-AT Document 757-1 Filed 05/26/20 Page 1 of 37

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

DAVID FLOYD, et al.,

Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al., Defendants.
--------------------------------------------------------------------- X

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

KELTON DAVIS, et al.,

Plaintiffs,

-against-

No. 10 Civ. 699 (AT)

CITY OF NEW YORK, et al., Defendants.
--------------------------------------------------------------------- X

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR EMERGENCY RELIEF

Jonathan C. Moore Dominique Day Marc Arena Beldock Levine & Hoffman LLP 99 Park Avenue, Penthouse Suite New York, NY 10016 212.490.0400
Darius Charney Baher Azmy Omar Farah Guadalupe Aguirre The Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 212.614.5475
Attorneys for Floyd Plaintiffs

Jin Hee Lee Raymond Audain Kevin Jason Ashok Chandran John Cusick Patricia Okonta NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street, 5th Floor New York, NY 10006 212.965.2200
Corey Stoughton Steve Wasserman The Legal Aid Society 199 Water Street New York, NY 10038 212.577.3300 Attorneys for Davis Plaintiffs

Case 1:08-cv-01034-AT Document 757-1 Filed 05/26/20 Page 2 of 37

Table of Contents

Table of Authorities................................................................................................................iii

PRELIMINARY STATEMENT .................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................... 2

PROCEDURAL HISTORY.......................................................................................................... 6

ARGUMENT ...............................................................................................................................10

I.

LEGAL STANDARDS GOVERNING THE POST-JUDGMENT REMEDIAL PHASE....................10

A. The Court Has Broad Equitable Authority to Issue Further Relief to Enforce and Ensure

Compliance With its Prior Orders........................................................................................................... 10

B. The Courts’ Powers to Enforce Their Prior Orders Necessarily Include the Authority to

Order Discovery Needed to Assess Defendants’ Compliance ...................................................... 12

II. NYPD SOCIAL DISTANCING ENFORCEMENT ACTIVITIES ARE SUBJECT TO THE COURT’S

PRIOR ORDERS IN FLOYD ...................................................................................................................13

III. EVIDENCE SHOWS COVID-19 POLICING MIRRORS STOP-AND-FRISK PRACTICES

FOUND TO BE UNCONSTITUTIONAL BY THE FLOYD COURT..................................................14

A. Racial Profiling in COVID-19 Policing Violates the Court’s Order in Floyd ............................ 14

1. The Lack of Reasonable Suspicion or Justification in Many COVID-19 Stops of

Black and Latinx Individuals Shows Racial Profiling Persists ............................14

2. The Court Has Already Ruled That the Use of Crime Suspect Data Cannot

Justify Racial Disparities in Stops........................................................................16

B. Selective Enforcement of the Law in COVID-19 Policing Directly Violates the Court

Order ................................................................................................................................................................... 17

C. The NYPD is Exhibiting Similar Deliberate Indifference to Racial Discrimination in its

COVID-19 Policing as in Floyd................................................................................................................... 19

D. COVID-19 Policing Reprises Fourth Amendment Violations Identified in Floyd ................ 20

IV. PLAINTIFFS ARE ENTITLED TO THE DISCOVERY THEY HAVE REQUESTED CONCERING

NYPD SOCIAL DISTANCING ENFORCEMENT.................................................................................21

V. THERE SHOULD BE A MORATORIUM ON NYPD SOCIAL DISTANCING ENFORCEMENT

PENDING THIS COURT’S REVIEW OF THE MONITOR’S INVESTIGATION AND

RESPONSES FROM ALL PARTIES ......................................................................................................23

A. The Context of NYPD Denialism with Respect to Ongoing Racial Discrimination Shows

That Only Court Intervention Can Protect Rights, Health, and Safety of the Plaintiff

Classes ................................................................................................................................................................ 24

B. Given the Heightened Risk of Infection from NYPD Interactions, Violations of the

Court’s Prior Orders Poses a Significant Threat to the Plaintiff Classes. ................................ 25

C. Public Health Officials, Elected Officials, and NYPD Rank-and-File Indicate NYPD Should

Not Enforce Social Distancing Requirements, Suggesting No Reason to Risk Ongoing

Violations of the Court’s Orders in Floyd............................................................................................. 25

D. NYPD’s Promises to Pull Back on Social Distancing Enforcement Does Not Eliminate the

Need for Court Intervention. ..................................................................................................................... 27

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Case 1:08-cv-01034-AT Document 757-1 Filed 05/26/20 Page 3 of 37 E. The Relief Requested is Narrowly Tailored to Address the City’s Violations of the
Court's Prior Orders. .................................................................................................................................... 29 CONCLUSION ............................................................................................................................31
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Cases

Table of Authorities

Abdi v. McAleenan, No. 1:17-CV-00721 EAW, 2019 WL 1915306 (W.D.N.Y. April 30, 2019)13

Aviation Consumer Action Project v. Washburn, 535 F.2d 101 (D.C. Cir. 1976)........................ 11

Baez v. N.Y.C.H.A., 13 CV 8916, 2015 WL 9809872 (S.D.N.Y. Dec. 15, 2015) .................. 11, 30

Benjamin v. Jacobson, 172 F.3d 144 (2d Cir. 1999) .................................................................... 10

Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985) ......................................................................... 11

Cal. Dep’t of Social Serv’s v. Leavitt, 523 F.3d 1025 (9th Cir. 2008).................................... 12, 13

Campaign for S. Equal. v. Bryant, 197 F. Supp. 3d 905 (S.D. Miss. 2016) ................................. 12

Damus v. Wolf, No. 18-578, 2020 WL 601629 (D.D.C. Feb. 7. 2020) .................................. 11, 30

Emmerling v. Town of Richmond, 434 F. App'x 10 (2d Cir. 2011) .............................................. 17

Floyd v. City of New York, No. 08 CV 1034 (AT) (S.D.N.Y. Nov. 20, 2018) ......................... passim

Handschu v. Police Department of the City of New York, 219 F. Supp. 2d 388 (S.D.N.Y. 2016) 11

Hutto v. Finney, 437 U.S. 678 (1979)............................................................................... 10, 12, 30

Louis v. Metro. Transit Auth., 145 F. Supp. 3d 215 (E.D.N.Y. 2015).......................................... 17

Melendres v. Arpaio, 07-CV-2513, 2013 WL 5498218 (D. Ariz. Oct. 2, 2013).......................... 22

Nat’l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin., 765 F. Supp. 1 (D.D.C. 1991) ................................................................................................................................... 11, 30

Palmer v. Rice, 231 F.R.D. 21 (D.D.C. 2005) .............................................................................. 12

Shillitani v. United States, 384 U.S. 364 (1966) ........................................................................... 11

Swann v. Chartlotte-Mecklenburg Bd of Educ, 403 U.S. 1 (1974)............................................... 10

United States v. Baltimore Police Dep’t, 17-cv-0099, Dkt # 2-2 (D. Md. Jan. 12, 2017)............ 23

United States v. City of New Orleans, 12-CV-1924, Dkt# 159-1 (E.D. La. Jan 11, 2013) .......... 22

United States v. City of Newark, 16-CV-1731, Dkt # 4-1 (D.N.J. April 29, 2016) ...................... 22

United States v. Lopez, 415 F. Supp. 3d 422 (S.D.N.Y. Nov. 13, 2019) ..................................... 17

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United States v. Visa USA, Inc., 98 Civ. 7076, 2007 WL 1741885 (S.D.N.Y. June 15, 2007)..................................................................................................................... 11, 30
Vulcan Society, Inc. et al. v. City of New York, No. 07-CV-2067, 2013 WL 4042283 (E.D.N.Y. June 6, 2013)............................................................................................................................. 22
Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) ................................................... 11 Statutes
N.Y.C. Admin. Code § 3-108 ....................................................................................................... 14 Other Authorities
AG James Calls on the NYPD to Ensure Equal Social Distancing Enforcement in NYC Communities, N.Y. STATE OFFICE OF THE ATT’Y GEN. (May 13, 2020) .................................. 26
Centers for Disease Control, COVID-19 in Correctional and Detention Facilities — United States, February–April 2020 (May 6, 2020)............................................................................. 25
Tweet: Hakeem Jeffries questioning disparate enforcement across New York neighborhoods, @RepJeffries, Twitter (May 5, 2020) ....................................................................................... 26
Jarrett Murphy, Eric Adams Says Cops Should Not Enforce Social Distancing, CityLimits (May 7, 2020) ..................................................................................................................................... 26
John Annese, Medical professionals, reform advocates ask NYPD to cool it with arrests because officers may spread coronavirus, The Daily News (Apr. 23, 2020)......................................... 26
Jonathan Shaw, COVID-19 May Be Much More Contagious Than We Thought, Harvard Magazine (May 13, 2020)......................................................................................................... 27
Josiah Bates, ‘We Cannot Police Our Way Out of a Pandemic’ Experts, Police Union Say NYPD Should Not Be Enforcing Social Distance Rules Amid COVID-19, Time ................................ 26
Legal Aid Society, Racial Disparities in NYPD’s COVID-19 Policing: Unequal Enforcement of 311 Social Distancing Calls (May 2020).............................................................................. 5, 17
Letter from Scott M. Stringer, New York City Comptroller, to Mayor Bill de Blasio, Re: Request for Information on Enforcement of Social Distancing (May 22, 2020) ..................................... 5
N.Y. Executive Order No. 202.17: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (Apr. 15, 2020)................................................................ 13
NYS Department of Health, New York State on PAUSE, (March 22, 2020)................................ 13 Office of the Inspector General, Complaints of Biased Policing (July 2019) ........................ 19, 24
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Plaintiffs respectfully submit this memorandum of law in support of their emergency motion for an Order to Show Cause directing the Defendant City of New York (the “City”) and its agency, New York City Police Department (the “NYPD”) to show why an order should not be entered (1) declaring the City in violation of the Court’s Liability Ruling (Dkt # 373), Remedial Order (Dkt # 372), and August 24, 2015 Order (Dkt # 517) in Floyd v. City of New York; (2) compelling the City to produce discovery Plaintiffs have requested concerning the NYPD enforcement of social distancing directives; (3) mandating expedited investigation of police practices relating to investigative encounters, stops, frisks, searches, summons and arrests during the COVID-19 pandemic; and (4) temporarily enjoining the NYPD from enforcing the City’s and the State’s social distancing directives.
PRELIMINARY STATEMENT In recent weeks, New York City has become a global epicenter for COVID-19, with dramatically disproportionate and devastating health and economic consequences for Black and Latinx New Yorkers. At the same time, viral social media videos have emerged showing police misconduct in the enforcement of social distancing directives against Black and Latinx people. Publicly available information also shows differing treatment along racial lines with respect to NYPD’s COVID-19 policing. This includes statistical evidence of stark racial disparities in the NYPD’s COVID-19-related policing, including 81% of social distancing summonses being issued to Black and Latinx people– a rate nearly identical to the racial disparity in stops that led to this Court’s 2013 finding that the NYPD engaged in widespread and systemic Equal Protection violations in Floyd – and for which there does not appear to be any plausible race neutral explanation Publicly available pictorial and video evidence also show NYPD officers encouraging white residents navigating COVID-19 restrictions in the City but, in contrast,
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treating Black and Latinx individuals with threats, force, and violence. Preliminary evidence also indicates that social distancing encounters of Black and Latinx people are pretexts for more invasive law enforcement conduct.
The NYPD’s social distancing enforcement practices are subject to the requirements of the Court’s orders in Floyd because COVID-19 policing falls within the De Bour framework for police investigative encounters of pedestrians, see People v. De Bour, 40 NY2d 210 (1976). As such, merely observing people gathering or individuals lacking masks is inadequate to establish probable cause, given significant exceptions embedded in the COVID-19 directives. Thus, NYPD investigative street encounters in its COVID-19 policing are paradigmatic Terry stops, see Terry v. Ohio, 361 U.S. 1 (1968), squarely within the Court’s jurisdiction.
This information raises serious and concrete concerns that, in direct violation of this Court’s Liability and Remedial Orders entered in Floyd, the NYPD’s Court-approved racial profiling policy, and the Fourth and Fourteenth Amendments, the NYPD continues to impermissibly discriminate in investigative street encounters. NYPD’s discriminatory practices expose Plaintiff Classes to daily, escalating harm. The NYPD’s refusal to share information about its policies or practices, or to respond to Plaintiffs’ requests, creates an urgent need for clarity and transparency for class members in advance of the summer season and a likely “second wave” of COVID-19 infection.
STATEMENT OF FACTS Since the beginning of this pandemic, Black and Latinx New Yorkers have experienced disproportionate NYPD social distancing enforcement,1 often involving the use of force and/or

1

As used throughout, the term, “COVID-19 Policing” or “NYPD enforcement of social distancing” are

intended to include all policing activity related to the COVID-19 pandemic, including but not limited to social

distancing directives, mask requirements, shelter in place and stay at home restrictions, as well as police encounters,

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significant restraints to their liberty Between March 16 and May 5, 2020, 81 percent of NYPD summonses for social distancing violations were issued to Black and Latinx persons. One of them was 51-year old Steven Merete, a Latinx man from the Bronx. On April 28, 2020, Mr. Merete was outside his building with two other people when the police arrived and yelled at everyone to leave pursuant to social distancing directives and then immediately started detaining, handcuffing, and using force against people. Ex. 3, Merete Decl. ¶ 3. Merete was picked up, thrown to the ground, punched in the chest, handcuffed, and detained for 24 hours before being released with a summons for disorderly conduct and resisting arrest. Id.
In addition, data recently released by the Brooklyn District Attorney’s Office revealed that more than 97% of all social distancing-related arrests made by the NYPD in Brooklyn between March 17 and May 4, 2020, were of Black and Latinx individuals. Day Decl. ¶ 15. According to media coverage, one of these people was a Black man in Brownsville. A video of his arrest went viral, showing him walking slowly up the street when the police ran up on him, grabbed him by the throat, tackled him to the ground, and handcuffed him. Day Decl. ¶ 22. Another was a 37 year-old Black woman, arrested during the last weekend of March. She and her boyfriend were in the Bedford-Stuyvesant neighborhood of Brooklyn when she was approached by a large group of officers and ordered to leave the area. Before they could leave, the officers escalated the encounter, pepper-spraying two nearby people as a crowd of onlookers gathered. Even though they were not part of the group who the officers appeared to be dispersing, they were both arrested. Day Decl. ¶ 16. Public reports reveal that, on May 13, 2020, Kaleemah Rozier was in the Atlantic Avenue subway station with her five-year-old son. Day Decl. ¶ 31. Their masks were pulled down to their chins as they climbed the stairs. Id. When stopped, she
stops, searches, and frisks arising from or implicating any restrictions to liberty or other rights because of the COVID-19 pandemic.
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expressed annoyance at the interruption and tried to walk away, but she was followed, tackled, handcuffed, and arrested in the presence of her son. Id.
It is also clear that these social distancing enforcement actions often commence as and/or otherwise involve Terry stops, frisks, and searches. On April 4, Crystal Pope saw NYPD officers dispersing a group of adolescent Black boys pursuant to social distancing directives in Hamilton Heights and thereafter saw them walking into an apartment building. Ex. 2, Pope Decl. ¶ 3. After vacating the area, two boys entered the same building. Id. A uniformed officer turned and lifted the boy by the neck, choking him, and as she entered the same apartment building, an officer immediately maced her. Id. ¶ 5. Others were stopped by police while using the public transit system and asked to prove their status as “essential workers.” Ex. 1 CPR Decl. ¶16. On May 2, 2020, Malik Harris was standing in the courtyard of his public housing complex with a mask in his hand when police approached him, referenced a social distancing violation, and arrested him. Ex. 4, Harris Decl. ¶¶ 2, 6. At central booking, he was housed with over twenty men, without masks, soap, or hand sanitizer, in the 24 hours preceding arraignment and he spent 3 weeks on Rikers in parole revocation proceedings, housed in a crowded dorm with over fifty men and only one mask. Ex. 4, Harris Decl. ¶¶ 6-9. In all cases, some or all NYPD officers involved failed to wear masks, gloves, or other personal protective equipment to protect the public from infection. Ex. 4, Harris Decl. ¶¶ 3.
The stark racial disparities in NYPD social distancing enforcement cannot be explained by plausible race-neutral factors. The Legal Aid Society issued a Report analyzing data on citizen complaints to the City’s 311 System between March 28 and May 12, 2020, concerning social distancing violations, the NYPD’s COVID-19 related summonses between March 16 and May 5, and internally-tracked COVID-19 related arrests. It found, among other things
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• NYPD responses to 311 complaints for social distancing violations in majority Black or Latinx precincts are at least 2 times more likely to result in a summons or arrest than NYPD responses to those complaints in non-Black or Latino majority precincts, most of which are majority white.
• While slightly less than half (46.2%) of the 32,293 social distancingrelated 311 complaints concerned violations in majority Black and Latino precincts, more than 78% of all known NYPD social distancing-related arrests and summonses for which the Legal Aid Society was able to identify a precinct were made in majority Black and Latino precincts.
• Conversely, while more than 53% of all social distancing-related 311 complaints came from precincts that are not majority Black or Latinx, less than 22% of all social distancing arrests and summonses for which the Legal Aid Society was able to identify a precinct took place in those precincts.
• While four of the five precincts receiving the most social distancing complaints through 311 were in precincts that are not majority Black or Latinx, four of the five precincts with the most COVID-19 related arrests and summonses—and 18 of the 20 precincts with the highest rates of such arrests and summons per 10,000 people—were in majority Black and Latinx precincts. 2
The New York City Comptroller’s office released similar findings, including that:
the NYPD is reported to have taken action, including issuing summonses, making arrests, on a larger share of 311 complaints in lower-income communities of color while being more likely to conclude that no action was needed in whiter, more affluent neighborhoods of the city.3
In stark but predictable contrast, in white neighborhoods, irrespective of affluence, the
NYPD generally chooses not to enforce social distancing, let alone issue summons, despite large
gatherings and persistently crowded parks, bars, and religious schools or ceremonies. Day Decl.

2

See the Legal Aid Society, Racial Disparities in NYPD’s COVID-19 Policing: Unequal Enforcement of 311

Social Distancing Calls, (May 2020).

3

Letter from Scott M. Stringer, New York City Comptroller, to Mayor Bill de Blasio, Re: Request for

Information on Enforcement of Social Distancing (May 22, 2020).

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¶¶ 32-39. Cf. Floyd Liab. Op., (Dkt. #373 at 183) (“Racial profiling constitutes intentional discrimination in violation of the Equal Protection Clause if it involves . . . the application of facially neutral criminal laws or law enforcement policies in an intentionally discriminatory manner.”) (citations omitted).
The NYPD’s discriminatory policing practices add insult to the catastrophic public health injury disproportionately impacting Black and Latinx communities. As predicted by experts on the social determinants of health, and as a result of structural and intersectional racism, Black and Latinx communities in New York City have experienced far greater rates of infection, greater severity of illnesses, and significantly increased fatalities. Day Decl. ¶¶ 3, 5. As “essential workers,” these communities have also consistently been asked to bear the greatest risk and sacrifice in the pandemic. Day Decl. ¶ 4. Nevertheless, in heavily impacted communities, NYPD has not employed reasonable safeguards in their enforcement of social distancing to protect the health and safety of Black and Latinx New Yorkers. Day Decl. ¶¶ 10, 13. Police officers conducting NYPD enforcement of social distancing often fail to wear masks, gloves, or other protective equipment to ensure they do not infect citizens. Day Decl. at ¶ 11.
PROCEDURAL HISTORY A. The Court’s Prior Orders On three prior occasions in this case, the Court has issued orders explaining how the NYPD’s targeting and treatment of Black and Latinx pedestrians during investigative street encounters violated the Equal Protection Clause of the Fourteenth Amendment and specifying the changes that the NYPD has to make to bring its stop-and-frisk practices into constitutional compliance. First, in its August 2013 Liability Opinion (Floyd Dkt # 373), the Court found, inter alia: (1) the NYPD carried out more investigative street encounters where there are more Black
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and Latinx residents, even when other relevant variables were held constant; (2) NYPD officers were more likely to stop Black and Latinx pedestrians, even in predominantly white neighborhoods and even after controlling for other relevant variables; (3) NYPD officers were more likely to use force against Black and Latinx pedestrians, even after controlling for other relevant variables; (4) NYPD officers stopped Black and Latinx individuals with less justification; (5) Black pedestrians were about 30% more likely than White pedestrians to be arrested (as opposed to receiving a summons) after a stop for the same suspected crime, were subject to more law enforcement action, even after controlling for other relevant variables; and (6) the de facto policy of targeting “the right people” involved disproportionately stopping members of racial groups heavily represented in the NYPD’s crime suspect data and led to stops of Black and Latinx pedestrians who would not have been stopped if they were White. (Dkt # 373 at 58-60, 81-88, 183-84).
The Court recognized that the Fourteenth Amendment prohibits law enforcement action that is motivated, in part, by race, even if race was not “the sole, predominant, or determinative factor.” Id. at 183-84. The Court also emphasized that the NYPD’s racially disparate stops violated Equal Protection even if supported by reasonable suspicion because “the Constitution prohibits selective enforcement of the law based on considerations such as race” and “the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races.” Id. at 183-84, 191-92 (emphasis included). Finally, the Court found that “senior officials in the City and at the NYPD ha[d] been deliberately indifferent to the discriminatory application of stop and frisk at the managerial and officer level,” as evidenced by those senior officials, including then-NYPD Commissioner Raymond Kelly and Mayor Michael
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Bloomberg, “adopt[ing] an attitude of willful blindness toward statistical evidence of racial disparities in stops and stop outcomes” and defending such disparities by invoking racial disparities in crime suspect data. Id. at 190 n.776.
Second, in its August 2013 Remedial Order (Dkt # 372), the Court held that eradicating selective enforcement, i.e., “eliminating the threat that Blacks and Hispanics will be targeted for stops. . . even when there is reasonable suspicion,” was “an important interest” justifying permanent injunctive relief as to the NYPD’s stop-and-frisk policies and practices. (Dkt # 372 at 4). The Court ordered the City, in consultation with the court-appointed Monitor and Floyd Plaintiffs, to develop, submit, and upon Court approval, implement a new policy on racial profiling that prohibits use of a civilian’s race as a motivation or justification for a stop except when the person fits a specific and reliable description of a criminal suspect. Id. at 14, 17.
Third, on August 24, 2015, the Court approved the NYPD’s Revised Patrol Guide Section 203-25, the Department’s new Policy Prohibiting Racial Profiling, which provides that:
Race, color, ethnicity, or national origin may not be used as a motivating factor for initiating police action. When an officer’s decision to initiate enforcement action against a person is motivated even in part by a person’s actual or perceived race, color, ethnicity or national origin, that enforcement action violates Department policy unless the officer’s decision is based on a specific and reliable suspect description that includes not just race, age, and gender, but other identifying characteristics or information. Floyd (Dkt # 517 at 5, 21). As the Monitor has acknowledged, the NYPD is required to adhere to this policy in practice. See Floyd (Dkt # 372 at 14); (Dkt # 536) (Monitor’s 4th Status Rpt) at 8; (Dkt # 576) (Monitor’s 7th Status Rpt) at 8-9; (Dkt # 680-1) (Monitor’s 9th Status Rpt) at 8-9; (Dkt # 754) (Monitor’s 10th Status Rpt) at 15-16. Moreover, pursuant to the Court-ordered settlement in Davis v. City of New York, the NYPD Patrol Guide 212-60—which governs interior patrols of New York City Housing Authority (“NYCHA”) residences—makes clear that NYPD officers must “perform[] interior
8

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patrols . . . in a manner that respects the rights of Housing Authority residents and guests.” Stipulation of Settlement and Order, endorsed by Court on Feb. 4, 2015, Ex. C, Davis, (Dkt. #329-1 at 2); see also Monitor’s Recommendation, approved by this Court on June 2, 2016, at 20, Attach. 3, Davis, #359. The related training of NYPD Housing Bureau officers, also approved by this Court, further emphasized that because officers “are in people’s homes,” they must “[t]reat [residents] with courtesy and respect. Treat people the way you would want you and your guests to be treated in your home.” Monitor’s Recommendation Regarding Training Materials for Housing Bureau Members, dated May 28, 2016, Davis, 464-1 at 16; Court Approval of Monitor’s Recommendation Regarding Training Materials for Housing Bureau Members, dated May 29. 2016, Davis, (Dkt. #465). Thus, unduly stopping, searching, frisking, issuing summons, arresting and/or using excessive force on NYCHA residents or guests, who are overwhelmingly Black or Latinx,4 would be anathema to this Court’s orders. Indeed, the NYPD’s discriminatory and illegal conduct regarding the enforcement of social distancing is even more egregious when it takes place in the homes of Black and Latinx public housing residents, where they are required to shelter in place.
B. NYPD Has Refused Plaintiffs’ Requests for Information Regarding NYPD Enforcement of Social Distancing
On April 22, 2020, Plaintiffs sent an email to NYPD Deputy Commissioner of Risk Management Jeffrey Schlanger, Counsel for the City, and the Monitor, requesting several categories of materials and information related to the NYPD’s social distancing enforcement efforts, including:
a. Any training or written guidance provided to NYPD personnel concerning enforcement of social distancing restrictions;
4 As of January 1, 206, NYCHA residents are 45.6% Black and 44.5% Latinx. NYCHA Resident Data Summary, Special Tabulation of Resident Characteristics, https://www1.nyc.gov/assets/nycha/downloads/pdf/ Resident-Data-Summaries.pdf.
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b. Information on how street encounters related to social distancing enforcement are documented and associated stop report, summonses, memo book entries and other NYPD documentation of such encounters;
c. A sampling of NYPD body camera videos of such social distancing enforcementrelated encounters;
d. Information on supervisory instruction and review of NYPD officers’ social distancing enforcement activity; and
e. Data on the number of summonses that have been issued stemming from street encounters involving any reference to social distancing enforcement.
See Day Decl. ¶¶ 52-53, Ex. 6. After receiving no response for over two weeks, Plaintiffs followed up by email to the same recipients on May 8, 2020. See id. ¶ 56, Ex. 7. This information was also verbally requested in two videoconferences hosted by the Monitor on April 29, 2020 and May 7, 2020. Id. ¶¶ 54-55. To date, Defendants have not produced any of the materials or information requested by Plaintiffs, nor has the Monitor responded to Plaintiffs’ discovery requests.
ARGUMENT
I. LEGAL STANDARDS GOVERNING THE POST-JUDGMENT REMEDIAL PHASE
A. The Court Has Broad Equitable Authority to Issue Further Relief to Enforce and Ensure Compliance With its Prior Orders.
Federal courts, by necessity, have broad equitable power and discretion to ensure compliance with their orders. Hutto v. Finney, 437 U.S. 678, 687 (1979) (“[F]ederal courts are not reduced to issuing injunctions against state officers and hoping for compliance. Once issued, an injunction may be enforced.”); Swann v. Chartlotte-Mecklenburg Bd of Educ, 403 U.S. 1, 15 (1974) (“[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.”); Benjamin v. Jacobson, 172 F.3d 144, 157 (2d Cir. 1999) (“It is well established that a federal court ordinarily has the power to enforce its own orders and judgments.”). “Ensuring compliance with a prior order is an equitable
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goal which a court is empowered to pursue even absent a finding of contempt.”5 Berger v. Heckler, 771 F.2d 1556, 1568 (2d Cir. 1985).
Accordingly, a court has the authority to issue additional orders imposing additional remedial measures to enforce a prior injunction, as “equitable authority is broad, particularly where the enjoined party has not fully complied with the court’s earlier orders.” Damus v. Wolf, No. 18-578, 2020 WL 601629, *2 (D.D.C. Feb. 7. 2020) (internal quotations omitted); Baez v. N.Y.C.H.A., 13 CV 8916, 2015 WL 9809872, at *2 (S.D.N.Y. Dec. 15, 2015) (issuing further orders to guarantee compliance with injunction); see also Nat’l Law Ctr. on Homelessness & Poverty v. U.S. Veterans Admin., 765 F. Supp. 1, 13 (D.D.C. 1991) (same). As with an initial injunction, the further relief must be “narrowly tailored to remedy the specific harm.” Aviation Consumer Action Project v. Washburn, 535 F.2d 101, 108 (D.C. Cir. 1976) see also United States v. Visa USA, Inc., 98 Civ. 7076, 2007 WL 1741885, *14 (S.D.N.Y. June 15, 2007) (additional relief imposed as remedy for defendant’s violation of original judgment was “narrowly tailored to the purpose of giving present and prospective effect to [that judgment]”).
The court’s actions to enforce its prior orders in Handschu v. Police Department of the City of New York, 219 F. Supp. 2d 388 (S.D.N.Y. 2016), is illustrative of this Court’s obligation to investigate and enforce its prior orders in this case. In Handschu, a 1971 filing where class members challenged surveillance practices of the NYPD as First Amendment violations, resulted in a court-ordered consent decree in 1985 and agreed constitutional procedures set forth in the Handschu Guidelines. Forty years after the suit began, and over 25 years after the injunction was

5

The Court’s power to enforce its orders includes the inherent power to find a party in contempt for

violations of prior orders. Shillitani v. United States, 384 U.S. 364, 370 (1966); Young v. U.S. ex rel. Vuitton et Fils

S.A., 481 U.S. 787, 793 (1987) (“It is long settled that courts possess inherent authority to initiate contempt

proceedings for disobedience to their orders”). While Plaintiffs believe a contempt finding against the City may be

warranted here, they have chosen, in light of the emergent public health crisis and in the interests of judicial

economy, to forego a contempt motion and instead ask the Court to impose other measures that are well within its

power in order to cure the City’s non-compliance with its prior orders.

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ordered, class members learned from news reports in 2011 that the NYPD appeared to be engaged in a program of suspicionless surveillance of Muslim persons in violation of the 40-year old injunction. Id. at 391 Class members sought discovery and enforcement of the injunction’s terms from the same district court. Id. at 391-93. That enforcement action resulted in a substantial modification of the injunction’s terms to ensure protection of religious association. Handschu v. Police Dep't of the City of New York, 241 F. Supp. 3d 433 (S.D.N.Y. 2017).
Similarly, in Hutto v. Finney, the district court found that its prior order failed to prevent continued Eighth Amendment violations in Arkansas’ use of punitive isolation in prisons, and issued a subsequent order categorically barring punitive isolation for more than 30 days. The Supreme Court upheld this order as a narrowly-tailored exercise of the district court’s enforcement powers, ruling that the district court “had ample authority to go beyond earlier orders and to address each element contributing to the violation” of which individuals’ lengthy stays in isolation was one. 437 U.S. at 686-87.
B. The Courts’ Powers to Enforce Their Prior Orders Necessarily Include the Authority to Order Discovery Needed to Assess Defendants’ Compliance
A federal court’s broad inherent power to enforce its prior judgments also includes the power to order discovery requested by a prevailing plaintiff “to aid the court in determining whether [the defendant] had complied with a judgment in [plaintiff’s] favor.” Cal. Dep’t of Social Serv’s v. Leavitt, 523 F.3d 1025, 1033 (9th Cir. 2008); see also Palmer v. Rice, 231 F.R.D. 21, 25 (D.D.C. 2005) (permitting “post-judgment discovery” where the “plaintiffs will not be able to determine whether the government has complied with the court's injunctions”); Campaign for S. Equal. v. Bryant, 197 F. Supp. 3d 905, 914 (S.D. Miss. 2016) (“plaintiffs are entitled to reasonable discovery to enforce an injunction against the parties bound by that injunction”). “Appropriate discovery should be granted where ‘significant questions regarding
12

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noncompliance [with a court order] have been raised.’” Abdi v. McAleenan, No. 1:17-CV-00721 EAW, 2019 WL 1915306, at *2 (W.D.N.Y. April 30, 2019) (authorizing discovery requests, including depositions regarding possible violations of the preliminary injunction) (internal citations omitted)(internal citation and quotations omitted); Leavitt, 523 F.3d at 1033-34 (applying “significant questions” standard in ordering discovery to plaintiff necessary to determine if defendant had violated permanent injunction) II. NYPD SOCIAL DISTANCING ENFORCEMENT ACTIVITIES ARE SUBJECT
TO THE COURT’S PRIOR ORDERS IN FLOYD The NYPD’s social distancing enforcement practices are subject to the requirements of the Court’s orders in Floyd because COVID-19 policing falls within the De Bour framework for police investigative encounters of pedestrians. In most cases, police officers should investigate possible non-compliance with social distancing restrictions as Level 1, 2, or 3 investigative encounters, under De Bour. Officers who merely observe what appear to be violations of the social distancing restrictions, e.g., a group of men standing within six feet of each other or unmasked on a sidewalk, do not automatically have probable cause to arrest or issue a summons. In part, this is because City and State social distancing restrictions embed important, but perhaps imperceptible, exceptions such as the exception to the mask requirement for individuals who cannot “medically tolerate a face-covering” and the exception to social distancing requirements for medical and other essential workers. See e.g., NYS Department of Health, New York State on PAUSE, (March 22, 2020), N.Y. Executive Order No. 202.17: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (Apr. 15, 2020). Thus, at most, police officers may approach, temporarily detain, and question an individual to confirm or defeat their suspicion of a violation of the executive orders, a misdemeanor under
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City law. See N.Y.C. Admin. Code § 3-108 (classifying violations of the Mayor’s emergency executive orders as Class B misdemeanors). This kind of street encounter is a paradigmatic example of a pedestrian Terry stop, or Level 3 De Bour encounter, i.e., a forcible detention by a police officer of a civilian on the street, based on the officer’s suspicion that the civilian committed a crime, the purpose of which is to confirm or defeat the officer’s suspicion. III. EVIDENCE SHOWS COVID-19 POLICING MIRRORS STOP-AND-FRISK
PRACTICES FOUND TO BE UNCONSTITUTIONAL BY THE FLOYD COURT The Court has ordered the NYPD to eradicate policies and practices that tolerate, license, and facilitate racial discrimination. NYPD’s enforcement of social distancing has involved racial profiling, selective enforcement, and pretextual stops similar to those found to have violated the Fourth and Fourteenth Amendments in the Court’s Liability Opinion, Remedial Order, and August 2015 Racial Profiling Policy Order. Having been found liable for racial discrimination in the conduct of stops, frisks, searches, and trespass investigations in communities and in public and private housing, see Floyd Liab. Op. (Dkt # 373) at 181-88, the NYPD must show that any racial disparities are unrelated to the Court findings of discriminatory practices and policies in order to be fully compliant with this Court’s orders. A. Racial Profiling in COVID-19 Policing Violates the Court’s Order in Floyd
1. The Lack of Reasonable Suspicion or Justification in Many COVID-19 Stops of Black and Latinx Individuals Shows Racial Profiling Persists
In Floyd, the Court recognized Fourteenth Amendment violations in NYPD’s greater number of stops in Black and Latinx communities, greater likelihood of stopping and/or use of force against Black and Latinx people, and practice of stopping of Black and Latinx people with less justification than for stops of whites. Floyd Liab. Op., (Dkt. #373 at 183). Today, reports of use of force in enforcement of social distancing have predominated among Black and Latinx
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persons only. See Ex. 2, Pope Decl. ¶ 4 (after NYPD dispersed a group of Black kids, Ms. Pope observed a uniformed officer choking one child and was immediately pepper sprayed when she went to enter the building); Ex. 3, Merete Decl. ¶ 3 (police approach and immediately slammed him to the ground, punched, handcuffed, and arrested him).
In several cases, people were stopped with little or no apparent justification. Day Decl. ¶¶ 22, 23, 24-25. These situations frequently started with social distancing and then escalated to stops and the use of force against bystanders. Day Decl. at ¶¶ 23, 25. At times, police seemed to target people who are intentionally video recording police stops of Black and Latinx persons and the use of force in COVID-19 policing, like Hawk Newsome, the head of Black Lives Matter Greater New York. Day Decl. ¶ 24.
Even the posture of the police toward the community is discernibly different in majority Black and Latinx communities. For example, the NYPD patrol car broadcasting COVID-19 public service announcements in Soho and Nolita offers a friendly “reminder” to maintain a safe distance in public places, and “Please help us keep you safe, thank you for your cooperation.” Day Decl. ¶ 57. In Queensbridge, however, the PSA used by the NYPD against people in the courtyard of their own homes threatens arrest: “This gathering is unlawful and you are ordered to disperse. If you fail to disperse immediately, you are subject to arrest.”” Day Decl. ¶ 27. Cf. Floyd Rem. Ord., (Dkt. #372 at 29) (“If the reforms to stop and frisk are not perceived as legitimate by those most affected, the reforms are unlikely to be successful”). Compare Court Approval of Monitor’s Recommendation Regarding Training Materials for Housing Bureau Members, dated May 29. 2016, Davis, (Dkt. #465) (NYPD Housing Bureau training, approved by the Court, which emphasizes that officers must “[t]reat [residents] with courtesy and respect,”
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and instructs officers to “Treat people the way you would want you and your guests to be treated in your home.”).
2. The Court Has Already Ruled That the Use of Crime Suspect Data Cannot Justify Racial Disparities in Stops
In the Floyd remedial process, the NYPD claimed to have curbed its practices of focusing on “the right people,” a racial dog whistle for the over-policing of Black and Latinx communities and principal rationale for racial profiling advanced by NYPD at trial, and ruled unconstitutional by the Floyd court. Yet, recently, and despite this Court’s ruling, NYPD leadership publicly invoked the race of those suspected of committing crime in the area, i.e., crime suspect data, to justify, defend, and attempt to deny racial profiling. Yet, as the court held at trial, the NYPD’s attempt to “refute the allegation of racial profiling in fact provides evidence of racial profiling.” Floyd Liab. Op., (Dkt. # 373 at 58).
During the COVID-19 crisis, public demand for data on racial disparities in NYPD enforcement of social distancing grew once viral videos of police misconduct began circulating on social media. NYPD initially delayed releasing statistics of its enforcement of social distancing, but then began promoting a statistic that 90% of those arrested for actual crime during the COVID-19 pandemic were Black or Latinx. Day Decl. at ¶ 46. Cf. Floyd Liab. Op., (Dkt. #373 at 181) (Fourteenth Amendment violated by “NYPD’s policy of conducting stops based in part on criminal suspect data, of which race is a primary factor;”), id. at 13 (“[T]he City adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data.”). NYPD leadership’s implication that the race of crime suspects justifies racially discriminatory policing and racial disparities in stops in Black and Latinx communities offers the Court direct evidence of ongoing violations of the Court’s prior orders in
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Floyd. As at trial, the City’s “defense against the charge of racial profiling… is [instead] a defense of racial profiling.” Floyd Liability Order, (Dkt. #373 at 56) (emphasis in original).
B. Selective Enforcement of the Law in COVID-19 Policing Directly Violates the Court Order
The Floyd court found selective enforcement of the law in the pervasive targeting of Black and Latinx people for stops, frisks, and searches. Today, despite widely reported persistent crowds of white New Yorkers in parks and elsewhere, Day Decl. at ¶¶ 13, the overwhelming majority of NYPD’s social distancing stops have been conducted against Black and Latinx persons. Day Decl. at ¶ 9. This is true even though the majority of citizen complaints to the police for social distancing violations have been in precincts that are not majority-Black and Latinx. See the Legal Aid Society, Racial Disparities in NYPD’s COVID-19 Policing: Unequal Enforcement of 311 Social Distancing Calls, (May 2020). Selective enforcement of the law involves (1) differential treatment from ‘similarly situated’ others; (2) based on “impermissible considerations such as race….” See Emmerling v. Town of Richmond, 434 F. App'x 10, 12 (2d Cir. 2011). This standard requires that a reasonable person would find the comparators roughly equivalent, or similarly situated to the plaintiffs in all material respects. See Louis v. Metro. Transit Auth., 145 F. Supp. 3d 215, 227 (E.D.N.Y. 2015); United States v. Lopez, 415 F. Supp. 3d 422, 427 (S.D.N.Y. Nov. 13, 2019) (“where a [party] who is a member of a protected group can show that that group has been singled out … to a statistically significant extent in comparison with other groups, this is sufficient to warrant further inquiry and discovery.”).
Critically, the possibility that officers have reasonable suspicion or probable cause to stop, issue summonses and/or arrest any of the Black and Latinx individuals targeted by their social distancing enforcement does not obviate concerns about violation of their Fourteenth Amendment rights. The Floyd court specifically emphasized that the City and the NYPD’s belief
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that reasonable suspicion somehow neutralizes concerns about racial profiling was simply wrong. “The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites.” Floyd Liab Op. (Dkt # 373 at 191-92); see also Floyd Liab. Op., (Dkt. #373 at 190) (this position is “fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference”).
Thus, even if all Black and Latinx persons stopped were failing to properly socially distance, Floyd nevertheless clearly prohibits selectively choosing Black and Latinx people for law enforcement activity. Id (“[T]he Constitution prohibits selective enforcement of the law based on considerations such as race . . . plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless.”). Selective enforcement is a significant concern in COVID-19 policing. For example, and consistent with public information showing racial disparities in COVID-19 policing, on May 3, 2020, one woman biking in Red Hook observed NYPD officers enter a park where multiple families were congregated, but dispersed the only Black family in the park. Ex. 5, Reese Decl. ¶ 3-5
Finally, the contrast between the absence of NYPD enforcement of social distancing in crowded parks, synagogues, and bars frequented by white persons, with few exceptions, adds urgency and credence to current concerns of racial profiling. A key concern of the Floyd Court was that “[i]f the reforms to stop and frisk are not perceived as legitimate by those most affected, the reforms are unlikely to be successful.” Floyd Remedial Order, (Dkt. #372 at 29).6

6

Indeed, prosecutors have declined to prosecute these social distancing cases, Day Decl. at ¶ 42, which is a

welcome development, but raises questions about the efficacy of the NYPD’s practices that leaves police

misconduct unsupervised and unregulated as NYPD has declined to provide data, reporting, and information relating

to its enforcement of social distancing. In addition, selective enforcement of the law is often apparent to Black and

Latinx people during a police encounter or stop, including during the COVID-19 pandemic. Day Decl. ¶ 25; Ex. 2,

Pope Decl. ¶ 6 .

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C. The NYPD is Exhibiting Similar Deliberate Indifference to Racial Discrimination in its COVID-19 Policing as in Floyd
The NYPD has defended the obvious racial disparities in its COVID-19 policing by denying the even the possibility of discrimination, including by referencing the racial diversity on the force. See Day Decl. at ¶ 48 (NYPD commissioner states, “I will push back strongly on any notion… that this is “racist police.” I think this could not be anything further from the truth. Let's remember, we are a minority-majority police department – fact.”); But see Office of the Inspector General, Complaints of Biased Policing, 29-30 (July 2019) (finding racial profiling complaints improperly closed based on NYPD’s erroneous belief that a police officer cannot racially profile a person of the same race).
This diversity proposition – which was similarly true during the timing of the Floyd trial – is still wholly irrelevant to evaluating the possibility of racial discrimination and only suggests continued deliberate indifference by the NYPD. Cf. Floyd Liab. Op., (Dkt. #373 at 189-90) (NYPD’s disregard of ample notice of racial discrimination reflects “an attitude of willful blindness toward statistical evidence of racial disparities in stops and stop outcomes”). In addition, Commissioner Shea suggested videos of police misconduct were taken out of context and that video evidence of racially biased policing was a myth created by the media. See Day Decl. at ¶ 43 (“I would urge caution to everyone now... before it’s turned into an agenda for a press conference.”). This, too, exhibits willful blindness. See Floyd Liab. Op., (Dkt. #373 at 190-91) (finding willful blindness by senior NYPD officials toward racial disparities and that “this indifference was further demonstrated by many officials’ apparent belief that racial profiling is a myth created by the media.”) (emphasis added); see also Day Decl. ¶ 47 (after reviewing viral video, NYPD commissioner defends officer conduct, claims punching is not excessive force).
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D. COVID-19 Policing Reprises Fourth Amendment Violations Identified in Floyd As in Floyd, the intentional and unjustified targeting of Black and Latinx individuals in COVID-19 policing also leads to violations of the Fourth Amendment, as well as dehumanization and violence. Indeed, in some cases, dispersal of groups has led to individuals being choked, slammed to the ground and punched by officers, and pepper sprayed. See e.g., Ex. 2, Pope Decl. ¶¶ 4-6; Ex. 3, Merete Decl. ¶¶ 3-4; Ex. 1, CPR Decl. ¶¶ 16, 19. In other cases, people were stopped by the police and asked to prove their status as essential workers, which is not required by law but nevertheless indicates to the person they are not free to leave. Ex. 1 CPR Decl. ¶ 16. In one viral video, Kaleemah Rozier tried to leave police seeking to enforce a mask violation, and was subject to a violent takedown and arrest, in front of her five-year old son. Day Decl. ¶ 31. In many cases, NYPD officers, engaged in a stop of one person or group, ultimately redirect the enforcement of social distancing toward a person recording the stop. Day Decl. ¶¶ 25. In other cases, people experienced excessive restraints on their liberty during police stops that did not originate with individualized reasonable suspicion. Ex. 3, Merete Decl. ¶ 2; Ex. 1, CPR Decl. ¶ 15. Several people reported COVID-19 policing experiences that were similar to those labeled unconstitutional by the trial court. Ms. Pope’s experience of an illegal stop, escalation to force, including pepper spray, Ex. 2, Pope Decl. ¶¶4-5, mirrors that of Plaintiff Almonor at the Floyd trial, who was stopped by plainclothes officers and immediately frisked and handcuffed in what the court deemed was a violation of Almonor’s rights under the Fourth Amendment. See Floyd Liab. Op., Dkt. #373 at 127-28 (“The circumstances did not justify any restraint of Almonor’s liberty, much less immediate physical restraint and the use of handcuffs”).
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Similarly, on April 28, 2020, Steven Merete was sitting in front of his apartment building when officers ordered people to disperse and then immediately began detaining people and using force. “They forcefully picked me up and slammed me in the ground. I was punched in the chest.” Ex. 3, Merete Decl. ¶ 3. This fact pattern is similar to one in the Floyd trial, held to violate the Fourth Amendment. See Floyd Liab. Op., (Dkt. #373 at 122-23) (officers who exited unmarked police car, pushed Plaintiff Downs to the ground lacked adequate grounds for the stop and frisk)
In addition, as in Floyd, the use of social distancing enforcement as a pretext for racialized independent law enforcement action is illegal. See Floyd Liab Op at 181-82. As set forth in the declarations accompanying this motion, individual declarants experienced street encounters with NYPD officers that began under the auspices of social distancing enforcement but proceeded to temporary forcible detentions, see Ex. 2, Pope Decl. ¶¶ 3-5 (describing escalation of social distancing encounter into violent Terry stop unrelated to social distancing), Ex. 4, Harris Decl. ¶ 6, for criminal law enforcement purposes unrelated to social distancing enforcement. These encounters closely resemble those experienced by the named Plaintiffs and testifying Plaintiff class members at the Floyd trial. IV. PLAINTIFFS ARE ENTITLED TO THE DISCOVERY THEY HAVE
REQUESTED CONCERING NYPD SOCIAL DISTANCING ENFORCEMENT At minimum, Plaintiffs have raised significant questions about whether the NYPD’s social distancing enforcement efforts run afoul of the Court’s prior rulings and injunctive directives regarding the use of race in law enforcement decision making, and the documents, data, and other materials Plaintiffs requested will provide information needed to resolve those questions. Specifically, NYPD officers’ written reports, body-worn camera video recordings, and data on summonses and arrests issued as a result of social distancing enforcement-related
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street encounters will provide: (a) important information on officers’ reasons for initiating these encounters, (b) the racial breakdown of who is being subjected to the encounters, and (c) other relevant details about the encounters (e.g., time, date, and location, whether a frisk, search or use of force occurred, and the final outcomes of the encounter) relevant to assessing whether and how NYPD officers’ social distancing enforcement activities run afoul of the Court’s orders. Similarly, the requested NYPD written guidance, training materials, and supervisory review information will help Plaintiffs and the Court determine what steps, if any, the Department has taken to ensure that its officers conduct social distancing enforcement in a manner consistent with the requirements of the Court’s prior orders and the Constitution.
The Court-appointed Monitor’s ongoing role in overseeing and assessing the City’s efforts to comply with the Court’s Liability Opinion and Remedial Order in no way diminishes Plaintiffs’ rights to the requested discovery. As representatives of the prevailing Plaintiff class, Plaintiffs and their counsel have an independent right and duty to monitor the City’s compliance efforts to ensure that the injunctive relief awarded to the Class and court-ordered settlement benefiting is fully implemented. Recognizing this principle, federal courts have repeatedly afforded plaintiffs broad access to remedial-phase discovery notwithstanding the presence of a court-appointed monitor overseeing reforms to unconstitutional policies and practices of police departments and other municipal government agencies. See, e.g., United States v. City of New Orleans, 12-CV-1924, Dkt# 159-1 ¶ 473 (E.D. La. Jan 11, 2013); Vulcan Society, Inc. et al. v. City of New York, No. 07-CV-2067, 2013 WL 4042283, *11 (E.D.N.Y. June 6, 2013); Melendres v. Arpaio, 07-CV-2513, 2013 WL 5498218, *36 (D. Ariz. Oct. 2, 2013), aff’d and vacated in part on other grounds, 784 F.3d 1254 (9th Cir. 2015); United States v. City of Newark, 16-CV-
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1731, Dkt # 4-1, ¶ 202 (D.N.J. April 29, 2016); United States v. Baltimore Police Dep’t, 17-cv0099, Dkt # 2-2, ¶ 485 (D. Md. Jan. 12, 2017).
Accordingly, Plaintiffs are entitled to the discovery they have requested. V. THERE SHOULD BE A MORATORIUM ON NYPD SOCIAL DISTANCING
ENFORCEMENT PENDING THIS COURT’S REVIEW OF THE MONITOR’S INVESTIGATION AND RESPONSES FROM ALL PARTIES This Court can, and should, intervene immediately to protect the plaintiff classes in this case and to ensure compliance with its prior orders by (1) directing the monitor to conduct an expedited investigation and evaluation of the NYPD’s social distancing enforcement practices with consultation with all parties, including Plaintiffs (2) impose a temporary moratorium on NYPD social distancing enforcement pending the completion of that investigation and a determination by the Court about whether and under what circumstances the NYPD can conduct that enforcement constitutionally going forward. The likelihood of serious, ongoing violations of class members’ Fourth and Fourteenth Amendment rights counsels the Court to temporarily suspend the NYPD’s social distancing enforcement (in favor of that role being undertaken by ready-and-able community and non-NYPD City agencies) until an investigation and the protection of class members’ rights can be assured. Because of the NYPD’s persistent denialism and deflection class members have no avenue to protect their rights other than the Court’s intervention. The risks associated with these constitutional violations are heightened, given the devastating, disproportionate impacts this public health crisis is having on Black and Latinx communities.
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A. The Context of NYPD Denialism with Respect to Ongoing Racial Discrimination Shows That Only Court Intervention Can Protect Rights, Health, and Safety of the Plaintiff Classes
Plaintiffs’ application is falls within the scope of the monitorship, but the urgency and the necessity of this Court’s intervention is bolstered by a climate of denial and disregard of ongoing racial discrimination. The systemic failure to take racial discrimination seriously is evident in NYPD’s denialism and self-exonerating excuses for racial profiling,7 rapid escalation to use of force with Black and Latinx individuals, Day Decl. ¶ 24-25; Ex. 3, Merete Decl. ¶ 3, Ex. 2, Pope Decl. ¶ 5, and the ongoing public denials by NYPD leadership in the face of video evidence. These positions reflect not only the longstanding approach to racial discrimination at NYPD, but the barriers within NYPD to dismantling systemic discrimination. Compare Floyd Liab. Op., (Dkt. #373, at 178) (“Further evidence of deliberate indifference is found in the City’s current positions as expressed at trial. The City continues to argue that no plaintiff or class member was subjected to an unconstitutional stop or frisk”). Absent judicial investigation and intervention Plaintiffs are held captive to NYPD’s willful blindness.
Notably, this cavalier attitude toward ongoing racial discrimination is also consistent with persistent racial disparities and racial profiling in NYPD’s low-level stops, summonses, and arrests. Recent data and reporting, indicating that 90% of arrests for jaywalking, fare evasion, and possession of small amounts of marijuana were of Black and Latinx people, demonstrates how selective enforcement of the law continues to drive discretionary stops and arrests. Day Decl. at ¶ 12. 91% of discretionary criminal summons were also issued to Black and Latinx people. Id. Acting consistently with misconduct already deemed unlawful at trial, and

7

See Office of the Inspector General, Complaints of Biased Policing (July 2019) (noting investigative

inadequacies and that NYPD has not sustained a single instance of racial profiling since the Floyd trial, despite

thousands of complaints filed)

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evidencing nearly the exact same racial disparities, the NYPD and the City offer powerful evidence that the NYPD continues its selective enforcement and racial profiling since trial.
B. Given the Heightened Risk of Infection from NYPD Interactions, Violations of the Court’s Prior Orders Poses a Significant Threat to the Plaintiff Classes.
Allowing the NYPD’s discriminatory and abusive social distancing enforcement to continue poses grave risks to the Plaintiff Classes’ health and safety. NYPD itself has experienced high COVID-19 rates among its personnel and is a source entity for transmission of infection. See Centers for Disease Control, COVID-19 in Correctional and Detention Facilities — United States, February–April 2020 (May 6, 2020) (“Because staff members move between correctional facilities and their communities daily, they might be an important source of virus introduction into facilities.”). Considerable evidence indicates that NYPD enforcement of social distancing has already led to widespread unprotected contact with officers lacking masks or gloves, Ex. 4, Harris Decl. ¶¶ 3 (some officers not wearing masks or gloves), transfers to the precinct and/or hospital, Ex. 3, Merete Decl. ¶¶ 5-6; Ex. 4, Harris Decl. ¶¶ 8-9 (transfer to COVID-19 epicenter, Rikers Island, for parole revocation proceedings), Day Decl. ¶ 24 (Hawk Newsome, head of BLMNY transferred to precinct and released with summons), or potential contact with ACS or child welfare authorities, Day Decl. ¶¶ 31. Those arrested for violations can then be sent to crowded jails which are festering hotbeds of COVID-19 outbreak and suffering. Thus, the attendant risk to these increased contacts can be fatal.
C. Public Health Officials, Elected Officials, and NYPD Rank-and-File Indicate NYPD Should Not Enforce Social Distancing Requirements, Suggesting No Reason to Risk Ongoing Violations of the Court’s Orders in Floyd
Increasingly, because of mounting evidence of racial discrimination, a broad base of support exists to remove NYPD from enforcement of social distancing. Public health experts, public officials and the police rank-and-file acknowledge the harm in continued NYPD
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enforcement of social distancing. Community stakeholders and public officials8 have called for any enforcement of social distancing to come from public health officials and community-based organizations, rather than police. Ex. 1, CPR Decl. ¶¶ 22-23. Notably, police officers themselves have decried the vague guidelines, mixed messages, and officer uncertainty that is pervasive in COVID-19 policing,9 implicitly acknowledging the impact of the deliberate indifference of the City and NYPD leadership to the rights of the Plaintiff Classes and the Court’s prior orders.
In April 2020, 200 medical professionals noted the significant COVID-19 infection rate among NYPD personnel and asked the police to reduce unnecessary interactions with the public in order to mitigate the risk of infection.10 The medical professionals stated, “we are alarmed at the high rate of infection among NYPD officers and fear that unnecessary interactions between the NYPD and the public will further exacerbate the public health crisis unfolding in New York City and rapidly spreading across the country.” Id. Similarly, a Harvard epidemiologist noted the importance of attention to local susceptibility to infection and at-risk populations specifically in

8

Several public officials stated NYPD enforcement of social distancing is associated with increased risk,

racial profiling, and escalation to violence and arrest. See Jarrett Murphy, Eric Adams Says Cops Should Not

Enforce Social Distancing, CityLimits (May 7, 2020) (“When you talk about police officers enforcing social

distancing, the police department that has historical tension in certain communities, you’re now encouraging the

largest interaction with these groups in the history of the police department. It is alarming.”); AG James Calls on the

NYPD to Ensure Equal Social Distancing Enforcement in NYC Communities, N.Y. STATE OFFICE OF THE ATT’Y

GEN. (May 13, 2020) (announcing investigation and indicating it is “[t]he apparent unequal enforcement of social

distancing policies is deeply troubling, and deepens the divide between law enforcement and the people they are

tasked to protect.”); See Hakeem Jeffries, @RepJeffries Twitter (May 5, 2020) (“Why are sunbathers who violate

social distancing guidelines treated one way and young men in certain communities another? This MUST end.”); see

also Brad Lander, @bradlander, Twitter (May 8, 2020) (“A better way: as part of a new NYC Public Health Corps

(that also does contact-tracing, quarantine support, economic recovery), hire a set of people as diverse as New York

City, to do public health outreach & social distancing compliance.”).

9

See Josiah Bates, ‘We Cannot Police Our Way Out of a Pandemic’ Experts, Police Union Say NYPD

Should Not Be Enforcing Social Distance Rules Amid COVID-19, Time (NYPD union president decries vague

guidelines, mixed messages, and officer uncertainty).

10

See John Annese, Medical professionals, reform advocates ask NYPD to cool it with arrests because

officers may spread coronavirus, The Daily News (Apr. 23, 2020).

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New York in evolving policy responsive to COVID-19, noting that governments should “put resources into protecting the vulnerable people who end up in the hospital at higher rates.”11
Thus, from a public health perspective, racial disparities in infection and the disproportionate number of Black and Latinx people serving as essential workers indicate these communities deserve the lightest touch and the greatest protection. Because this is a public health crisis, not a law enforcement crisis, the City should instead leverage the credibility and legitimacy of public health workers and community-based organizations to enforce social distancing as necessary. Ex. 1, CPR Decl. ¶ 20. Shifting enforcement toward community-based entities also addresses the Floyd court’s own stated concerns that impacted communities best understand how to mitigate risk and protect their own safety. See Floyd Remedial Ord., (Dkt. #372 at 29) (“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.”).
D. NYPD’s Promises to Pull Back on Social Distancing Enforcement Does Not Eliminate the Need for Court Intervention.
After two months of NYPD enforcement of social distancing, it remains unclear how the police add value to the COVID-19 pandemic response. After the viral video depicting the tackle and arrest of Kaleemah Rozier and her young child in the Atlantic Avenue subway station (her face mask was pulled down to her chin, exposing her nose and mouth), see Day Decl. at ¶ 31, NYPD indicated it would delegate enforcing face mask compliance to NYPD civilian employees after City Council threatened budget cuts. However, given the NYPD’s denialism and deflection

11

See Jonathan Shaw, COVID-19 May Be Much More Contagious Than We Thought, Harvard Magazine

(May 13, 2020) (citing forthcoming research that each COVID-19 patient may infect 5-6 others in cities like New

York).

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regarding even the possibility of racial profiling, these vague representations provide little comfort to Black and Latinx New Yorkers.
It remains unclear what policy governs NYPD pandemic conduct. Plaintiffs’ request for information and discovery in this regard were ignored, then dismissed, then refused. Day Decl. at ¶¶ 51-57. NYPD delayed the public release of relevant data and then promoted manipulations of the data that mirrored tactics found racially discriminatory at trial. See e.g., infra at III.A.2. And Despite the Mayor’s assurance that a “reset” of NYPD enforcement of social distancing measures would address criticisms, he continues to maintain that police enforcement is an “essential part of the equation,” and has offered no insight as to the City’s directives to NYPD or NYPD leadership’s directives to the rank-and-file. Mayor de Blasio Holds Media Availability, Press Conference (May 15, 2020) available at https://www1.nyc.gov/office-of-themayor/news/348-20/transcript-mayor-de-blasio-holds-media-availability. Thus, it appears that New Yorkers can expect that policing will remain a critical component of the enforcement of social distancing rules and may continue violating the Court’s prior orders in Floyd.
The concerns this raises for the Plaintiff classes are neither minimal nor remote. Most acknowledge that New York City may face a second wave of COVID-19 infection. Already, “quarantine fatigue” has parks, beaches, and streets crowded with people. Day Decl. at ¶¶ 13, 29. As summer arrives, weather and crowded living conditions will push people outside, as happens each year. In particularly congested areas, including New York City public housing, being outside might be safer than being inside, from a public health perspective. Declining media attention could license further impunity in the violation of this Court’s prior orders in this case, including the ongoing racial profiling and selective enforcement set forth herein.
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This suggests that protecting the Classes, supporting the monitoring of the remedy awarded to the Plaintiffs, and enforcing the Court’s prior orders entails granting Plaintiffs the relief requested. Community stakeholders’ concerns that racial profiling and selective enforcement in COVID-19 policing was a particularly significant risk in the stress of a pandemic has borne fruit. Ex. 1, CPR Decl. ¶ 22. The Court cannot trust the NYPD to carry out its obligations under the Floyd orders on its own.
E. The Relief Requested is Narrowly Tailored to Address the City’s Violations of the Court's Prior Orders.
The relief requested by Plaintiffs is no broader than what is necessary to protect the rights, health, and safety of the Black and Latinx class members. To begin, as with the injunctive remedies originally imposed by the Court, see Floyd, (Dkt # 372), the moratorium requested by Plaintiffs would not interfere with ordinary policing (e.g., arrests, summonses) constitutionally, nor would it stop the City from enforcing its and the State’s social distancing orders via non-law enforcement City agencies without a history of racially discriminatory practices. In addition, supplemental relief is warranted because no aspect of the Floyd Court-ordered remedies developed and implemented thus far have deterred or remediated racial discrimination in NYPD enforcement of social distancing. Neither the NYPD’s Court-approved policy prohibiting racial profiling, see Floyd, (Dkt # 517), nor the new written procedures for supervision of street encounters on the scene and after-the-fact, (Dkt # 527), have ensured legally proper, unbiased social distancing policing on the streets. Day Decl. at ¶ 40. Much-touted training programs on investigative encounters and fair and impartial policing have not impacted actual police conduct adequately to prevent racial discriminatory social distancing enforcement in practice.
When presented with evidence that injunctive relief failed to prevent ongoing constitutional or statutory violations, federal courts have not hesitated to impose more
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prescriptive relief on those defendants to cure those violations, even absent a contempt finding. See, e.g., Baez, 2015 WL 9809872, *2-3; Damus, 2020 WL 601629, at *2-5; Visa USA, Inc., 2007 WL 1741885, at *12-14; National Law Ctr. On Homelessness and Poverty, 765 F. Supp. at 6-13. Here, as in Hutto, 437 U.S. at 686-88, a categorical bar on further NYPD’s social distancing enforcement efforts is appropriate, because the arbitrary way in which NYPD officers have been authorized to conduct this enforcement without any apparent guidance from Department leadership is contributing to an ongoing pattern of racially discriminatory enforcement of the law that violates the Court’s orders and the Fourteenth Amendment. Moreover, the moratorium will provide the Monitor, NYPD, Plaintiffs and the Court the opportunity to determine what policies, procedures, and other measures should be put in place to prevent racially discriminatory social distancing enforcement action going forward.
In addition, the independent investigation and evaluation of the NYPD’s social distancing enforcement efforts requested by the Plaintiffs is narrowly tailored to cure the violations of the Court’s prior orders. The Remedial Order specifically authorizes and tasks the Court-appointed Monitor with assessing and reporting to the Court on the City’s implementation of and compliance with the Court-ordered reforms, of which August 2015 Policy Prohibiting Racial Profiling is one. See Floyd (Dkt # 372) at 12-13. The Monitor is empowered and required to “work with the parties to address any barriers to compliance.” Id. at 13. The requested investigation and evaluation of the NYPD social distancing enforcement practices will help determine why those practices are running afoul of the Court’s Liability, Remedial and Racial Profiling Policy Orders and what measures need to be put in place to cure those violations.
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CONCLUSION
For the foregoing reasons, Floyd and Davis Plaintiffs ask this Court to order the City to
show cause why the Court should not grant the emergency relief requested.
Dated: May 26, 2020 New York, New York
/s/ Dominique Day BELDOCK LEVINE & HOFFMAN LLP By: Dominique Day
Jonathan C. Moore Luna Droubi Marc Arena 99 Park Avenue, Suite 1600 New York, NY 10016 Tel. (212) 490-0900 Attorney for Floyd Plaintiffs

/s/ Darius Charney
CENTER FOR CONSTITUTIONAL RIGHTS By: Darius Charney
Guadalupe Aguirre Omar Farah Baher Azmy 666 Broadway, 7th Floor New York, NY 10012 Tel. (212) 614-6439 Attorney for Plaintiffs

NAACP LEGAL DEFENSE EDUCATIONAL FUND, INC. By: Jin Hee Lee
Raymond Audain Kevin Jason Ashok Chandran John Cusick Patricia Okonta 40 Rector Street, 5th Floor New York, NY 10006 Tel: (212) 965-3702 jlee@naacpdlf.org

AND

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Case 1:08-cv-01034-AT Document 757-1 Filed 05/26/20 Page 37 of 37 THE LEGAL AID SOCIETY By: Corey Stoughton Steven Wasserman 199 Water Street, 6th Fl. New York, NY 10038 Tel: (212) 577-3367 cstoughton@legal-aid.org swasserman@legal-aid.org
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------------- X

DAVID FLOYD, et al.,
-againstCITY OF NEW YORK,

Plaintiffs, Defendant.

DECLARATION OF DOMINIQUE DAY IN SUPPORT OF PLAINTIFFS’ MOTION FOR EMERGENCY RELIEF
No. 08 Civ. 1034 (AT)

--------------------------------------------------------------------- X DOMINIQUE DAY, an attorney duly authorized to practice in the courts of New York
and in this Court declares as follows: 1. I am an attorney at Beldock Levine & Hoffman LLP, which represents the
Plaintiffs and the class in this action. I am familiar with the facts of this case and I submit this declaration in support of Plaintiffs’ Order to Show Cause.
2. In March 2020, in response to the COVID-19 outbreak in New York state, Governor Cuomo announced, in New York, everyone other than essential workers would be required to work from home. NYS Department of Health, New York State on PAUSE, (March 22, 2020) available at https://coronavirus.health.ny.gov/new-york-state-pause (“effective at 8PM on Sunday, March 22, all non-essential businesses statewide will be closed”). In March, Mayor de Bill de Blasio also declared a social distancing plan, banning group gatherings, congregating in public, etc. for New Yorkers. New York City schools were closed. In mid-April, a directive to New York residents to wear masks in public took effect. See N.Y. Executive Order No. 202.17: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency (Apr. 15, 2020) available at https://www.governor.ny.gov/news/no-20233-

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continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency. The mask-wearing requirement was limited to people “able to medically tolerate a face-covering” and situations where social distancing was impractical or impossible. Id. No civil or criminal penalty was set forth. Id. There was also no publication of guidelines or rules to structure enforcement of social distancing. Notably, no curfew was ever instituted in New York City. People were asked to remain home (#StayHome), but never prohibited from leaving their homes other than for medical services, groceries, or essential work, as they were in China and some European countries. No proof of purpose, or justification of any kind, was mandated for people in public spaces in New York City.
Foreseeably, Black and Latinx Communities Navigated the Most Significant Risk and Were Hardest Hit by covid-19 Infection, Serious Illness, and Fatalities 3. Despite our shared susceptibility to infection, Black and Latinx communities in New York City have been hardest hit by COVID-19. See NYC Health, Age adjusted rate due to increased vulnerabilities given a range of fatal lab confirmed COVID-19 cases per 10,000 by race/ethnicity group (April 6, 2020) available at https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid-19-deaths-race-ethnicity-041620201.pdf (showing 22.8 deaths per 10,000 Hispanic New Yorkers and 19.8 deaths per 10,000 Black New Yorkers in contrast to 10.2 deaths per 10,000 White New Yorkers). Disproportionately in Black and Latinx communities, people navigated the uncertainty of COVID-19 in the context of commuting to work daily, more severe infections and higher mortality, and strained public hospitals forced to ration treatment during the pandemic. See NYC Comptroller, New York City's Frontline Workers (March 26, 2020) available at https://comptroller.nyc.gov/reports/new-yorkcitys-frontline-workers/ ("75 percent of all frontline workers are people of color, including 82 percent of cleaning services employees. More than 40 percent of transit employees are black
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while over 60 percent of cleaning workers are Hispanic."); Michael Schwirtz and Lindsey Rogers Cook, These N.Y.C. Neighborhoods have the Highest Rates of Virus Deaths, The New York Times (May 18, 2020) available at https://www.nytimes.com/2020/05/18/nyregion/coronavirus-deaths-nyc.html (Neighborhoods with high concentrations of Black and Latino people suffered the highest death rates in New York City); Harald Schmidt, The Way We Ration Ventilators is Biased, The New York Times (April 15, 2020) available at https://www.nytimes.com/2020/04/15/opinion/covid-ventilatorrationing-blacks.html (structural inequality leads to lower baseline health among particular racial and ethnic groups, resulting in a de-prioritization of those patients for ventilators); Yoav Gonen et al., NYC Blacks and Hispanics dying of COVID-19 at twice the rate of Whites, Asians, The City (April 8, 2020) available at https://thecity.nyc/2020/04/nyc-blacks-and-hispanics-dying-ofcovid-19-at-twice-the-rate.html.
4. Social distancing requirements in New York City did not exempt “essential workers,” people whose work directly or indirectly decreased the pressure on the healthcare system at the peak of the epidemic in New York City, like home health aides, nursing home personnel, transit workers, and grocery and delivery personnel, from working outside the home. In New York City, Black and Latinx people disproportionately fill essential worker roles, working full time and commuting via public transportation. See Scott M. Stringer, New York City’s Frontline Workers, Office of the N.Y. City Comptroller (Mar. 26, 2020) available at https://comptroller.nyc.gov/reports/new-york-citys-frontline-workers/. They also disproportionately experienced food insecurity in April 2020. See Joseph Lobrera, Food Security Impacts on People of Color Highlight Need for Aid, Center on Budget and Policy Priorities (May
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13, 2020) available at https://www.cbpp.org/blog/food-security-impacts-on-people-of-colorhighlight-need-for-aid (63% of food insecure households in April 2020 were Black or Latinx).
5. The current crisis in the Black and Latinx communities, i.e., the likelihood that racial disparities would characterize infection, severity, and deaths in a pandemic, was foreseeable to the City. Epidemiologists studying the social determinants of health reported racial disparities related to policy, not susceptibility to contagion, in the H1N1 influenza virus, the last viral epidemic. See Sidney Fussell, The H1N1 Crisis Predicted Covid-19’s Toll on Black Americans, Wired (May 6, 2020) available at https://www.wired.com/story/h1n1-crisispredicted-covid-19-toll-black-americans/ (citing Sandra Crouse Quinn, et al., Racial Disparities in Exposure, Susceptibility, and Access to Health Care in the US H1N1 Influenza Pandemic, 101 Am J Public Health 285 (Feb. 2011) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3020202/ and Supriya Kumar, Sandra Crouse Quinn, et al., The Impact of Workplace Policies and Other Social Factors on Self-Reported Influenza-Like Illness Incidence During the 2009 H1N1 Pandemic, 102 Am J Public Health 134 (Jan. 2012) available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3490553/ (lack of sick leave, greatest among Latinos, is central factor resulting in H1N1 exposure of five million people).
COVID-19 Risks Continue to Evolve in Unpredictable and Unforeseeable Ways 6. COVID-19, a novel coronavirus, remains an unknown with still evolving outcomes, consequences, and impact. Even a casual encounter with the police may be fatal. In the context of COVID-19, public understanding is evolving rapidly, but at exactly the same rate as scientific understanding. In January 2020, COVID-19 was compared to influenza and publicly dismissed as a significant concern for the United States. By February 2020, cases were filtering
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into the United States, but the virus was seen as primarily a threat to older people and children were believed to be immune or not susceptible to severe infection. By March 2020, cases skyrocketed in New York City, but nearly half of American infections included people under 50 years of age.
7. By April 2020, racial disparities in COVID-19 infection, severity, and fatalities showed that Black and Latinx communities were particularly impacted by COVID-19. See NYC Health, Age adjusted rate of fatal lab confirmed COVID-19 cases per 10,000 by race/ethnicity group (April 6, 2020) available at https://www1.nyc.gov/assets/doh/downloads/pdf/imm/covid19-deaths-race-ethnicity-04162020-1.pdf (showing 22.8 deaths per 10,000 Hispanic New Yorkers and 19.8 deaths per 10,000 Black New Yorkers in contrast to 10.2 deaths per 10,000 White New Yorkers). By early May 2020, a rare and previously unseen toxic reaction, pediatric multi-system inflammatory syndrome (“PMSIS”), began appearing in children, even as New York City cases decreased. See Pam Belluck, A New Coronavirus Threat to Children, New York Times (May 13, 2020) available at https://www.nytimes.com/article/kawasaki-diseasecoronavirus-children.html. The 110 children already diagnosed in New York City were largely Black and Latinx and some incubated COVID-19 for up to six weeks before developing symptoms or PMSIS. See Anna Sanders, NYC detects 110 cases of mysterious coronavirus-tied syndrome in children – most are black and Hispanic, N.Y. Daily News (May 15, 2020) available at https://www.nydailynews.com/coronavirus/ny-coronavirus-syndrome-mystery-children-blackhispanic-new-york-city-20200515-3f7ovpdhhza3ngagquftoaraxy-story.html. Recently, studies show COVID-19 is far more contagious than initially reported. See Jonathan Shaw, COVID-19 May Be Much More Contagious Than We Thought, Harvard Magazine (May 13, 2020) available at https://harvardmagazine.com/2020/05/r-nought (new research suggests each infected person
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may infect five to six others, i.e., R0 comparable to smallpox); Jessica Flores, Simply talking in confined spaces may be enough to spread the coronavirus, researchers say, USA Today (May 13, 2020) available at https://www.rrstar.com/zz/news/20200514/simply-talking-in-confinedspaces-may-be-enough-to-spread-coronavirus-researchers-say. This trajectory confirms serious, unpredictable risk, and a need for the highest level of care with respect to communities particularly at risk.
NYPD Enforcement of Social Distancing Has Proven Constitutionally Questionable and Ineffective in Several Respects 8. Citywide, throughout this period, community-based organizations have fielded reports of unlawful and abusive enforcement of social distancing by NYPD. Reporting of misconduct in NYPD enforcement of social distancing against Black and Latinx persons has persisted. This includes reports of harassment, unjustified stops, excessive force, abuses of authority, racial profiling, and racial pretext stops, including people being stopped and asked to show their “essential worker papers.” A declaration setting forth these reports, from Joo-Hyun Kang of Communities United for Police Reform, a citywide campaign to end discrimination and abuse policing, is attached hereto as Exhibit 1. 9. Recent analysis released by the Legal Aid Society confirms NYPD enforcement of social distancing involved stark racial disparities that cannot not be explained by citizen complaints about social distancing violations. See The Legal Aid Society, Racial Disparities in NYPD’s COVID-19 Policing: Unequal Enforcement of 311 Social Distancing Calls, (May 2020) available at https://legalaidnyc.org/racial-disparities-in-nypds-covid-19-policing/. The Legal Aid Society report found that NYPD responses to 311 complaints for social distancing violations are considerably more likely to result in a summons or arrest in majority Black or Latino precincts. Id. 18 of the 20 precincts with the highest rates of known social distancing arrests or summonses
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per 10,000 people are in majority Black and Latino precincts but, of the 32,293 social distancing complaints made through 311 between March 28 to May 12, slightly less than half (46.2%) of the complaints concerned violations in majority Black and Latino precincts. 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. Id. 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 majority Black and Latino precincts. Id.
10. In addition, there is little evidence that NYPD-specific enforcement of social distancing, or conducting low-level stops, is beneficial or effective to public health or safety. NYPD enforcement of social distancing has not proven effective to manage COVID-19 public health or public safety concerns. No evidence suggests these interventions kept the community safer, from viruses or violence. Compare Christopher M. Sullivan & Zachary P. O’Keeffe, Evidence that curtailing proactive policing can reduce major crime, 1 Nature Human Behavior 737 (2017) available at https://www.nature.com/articles/s41562-017-0211-5 (sharp reductions in proactive policing by NYPD in 2014-2015, including 90%+ drop in summonses, correlated to decreases in major crime complaints citywide); Sarah Lustbader, What’s Not To Love About The NYPD Slowdown?, The Appeal (Sept. 3, 2019) available at https://theappeal.org/whats-not-tolove-about-the-nypd-slowdown/ (NYPD work stoppage after Eric Pantaleo was fired showed decrease in summonses and decline in major crime).
11. In addition, in many NYPD interactions enforcing social distancing, NYPD personnel fail to use personal protective equipment or otherwise protect the health and safety of the citizens with whom they interact. On May 7, 2020, Time reported that in many videos
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depicting NYPD social distancing enforcement arrest, officers were not wearing masks or were incorrectly wearing marks. 'We Cannot Police Our Way Out of a Pandemic.' Experts, Police Union Say NYPD Should Not Be Enforcing Social Distance Rules Amid COVID-19, Josiah Bates, Time, (May 7, 2020), available at, https://time.com/5832403/nypd-pandemic-policesocial-distancing-arrests/.
12. NYPD enforcement of social distancing appears to replicate the racial disparities and racial profiling of low-level encounters, Terry stops, and arrests for offenses like jaywalking or fare evasion. Compare Samar Kurshid, NYPD Continues Move Away from Criminal Penalties for Low-Level Offenses, But Racial Disparities Remain, The Gotham Gazette (Sept. 4, 2019) available at https://www.gothamgazette.com/city/8768-nypd-fewer-criminal-penalties-for-lowlevel-offenses-racial-differences-remain (“91% of criminal summonses were given to people of color….Officers continue to use an exception that allows them to give out a criminal summons instead of a civil fine, vaguely citing “law enforcement reason” as a criteria.“); Samoylov, M. and Kuntzman, G., NYPD Targets Blacks and Latinos for ‘Jaywalking’ Tickets, StreetsBlogNYC (Jan 8, 2020) available at https://nyc.streetsblog.org/2020/01/08/nypd-targets-blacks-and-latinosfor-jaywalking-tickets/ (90% of people stopped for jaywalking by NYPD are Black and Latinx; one-third of jaywalking tickets given in the Bronx); Brand, D., Nearly every single person arrested for weed in NYC this year was Black or Latinx, Queens Daily Eagle (Aug. 21, 2019) available at https://queenseagle.com/all/nearly-every-single-person-arrested-for-weed-in-nycthis-year-was-black-or-latinx (“Black and Latinx New Yorkers accounted for 94 percent of all low-level marijuana arrests” mirroring “persistent disparities in fare evasion arrests”); Mueller, B., et al., Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic, The New York Times (May 13, 2018) available at
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https://www.nytimes.com/2018/05/13/nyregion/marijuana-arrests-nyc-race.html (despite NYPD claim racial disparity driven by local complaints, “among neighborhoods where people called about marijuana at the same rate, the police almost always made arrests at a higher rate in the area with more black residents”).
13. Perhaps, the most visible, and intentional, failure of NYPD enforcement of social distancing are the jam-packed New York City public parks, where unmasked people in close proximity and in crowds have been evident daily throughout this period. See e.g., Joseph Goldstein and Corey Kilgannon, Balmy Weekend Presents a Challenge: New Yorkers Rushing to Parks, N.Y. Times (May 2, 2020) available at https://www.nytimes.com/2020/05/02/nyregion/weather-parks-nyc-nj-coronavirus.html; Coronavirus Cabin Fever: Crowds Flock To Central Park Even As Social Distancing Enforcement Remains In Effect, CBS Local N.Y. (April 25, 2020) available at https://newyork.cbslocal.com/2020/04/25/coronavirus-central-park-long-beach-crowds/; Jen Carlson, Photos Show NYC Parks Still Bustling During The Global Pandemic, Gothamist (Mar. 28, 2020) available at https://gothamist.com/arts-entertainment/photos-show-nyc-parks-stillbustling-during-global-pandemic; Sarah Dorn, et al., People flock to NYC-area bars, beaches as ‘quarantine fatigue’ intensifies, N.Y. Post (May 16, 2020) available at https://nypost.com/2020/05/16/people-flock-to-nyc-area-bars-beaches-as-quarantine-fatigueintensifies/.
14. In addition, NYPD has not acted to enforce obvious social distancing needs on public transportation inside subway cars and buses, closed systems with particularly attendant risks heavily relied upon by Black and Latinx essential workers to commute daily, even though the executive orders apply to businesses in New York City and affirm their obligations to
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mitigate risk in serving customers. Subways and buses have become more crowded as service cuts limit the number of trains and buses running but NYPD enforcement has not acted to protect public health in this context. See Christina Goldbaum and Lindsay Rogers Cook, They Can’t Afford to Quarantine. So They Brave the Subway, The New York Times (Mar. 30, 2020) available at https://www.nytimes.com/2020/03/30/nyregion/coronavirus-mta-subwayriders.html.
NYPD has Disproportionately and Harshly Focused on Black and Latinx Persons and Communities Under the Guise ff Social Distancing Enforcement 15. Overwhelmingly, NYPD enforcement of social distancing has been against Black and Latinx communities and persons. Josiah Bates, Police Data Reveals Stark Racial Discrepancies in Social Distancing Enforcement Across New York City, TIME (May 8, 2020) available at https://time.com/5834414/nypd-social-distancing-arrest-data/ (68% of those arrested for social distancing violations in New York City between March 16 and May 5 were Black and 24% were Hispanic); Ashley Southall, Scrutiny of Social-Distance Policing as 35 of 40 Arrested are Black, The New York Times (May 7, 2020) available at, https://www.nytimes.com/2020/05/07/nyregion/nypd-social-distancing-race-coronavirus.html. (35 of 40 people arrested for social distancing violations in Brooklyn between March 17 and May 4 were Black, four were Hispanic, and one was white); On May 8, 2020, the Bronx Daily reported on the recent social distancing enforcement statistics and embedded a figure depicting the racially disproportionate data. See also Jonas Bronck, NYPD COVID-19 Summons Enforcement Data, The Bronx Daily, (May 8, 2020), available at, https://bronx.com/nypd-covid19-summons-enforcement-data/; Maya Rajamani, Vast majority of social distancing summonses in NYC went to black and Hispanic residents, 1010 WINS (May 8, 2020) available at
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https://www.politico.com/states/new-york/albany/story/2020/05/08/black-and-latino-newyorkers-get-vast-majority-of-social-distancing-summonses-1283223.
16. Citizen journalists, professional reporters, and concerned citizens have also come forward and spoken out about unjustified police encounters and stops and racial profiling toward Black and Latinx persons in NYPD enforcement of social distancing. On April 3, 2020, the Intercept reported on NYPD enforcement of social distancing, including an NYPD social distancing action in Bedford Stuyvesant, Brooklyn, where police pepper-sprayed a crowd of people in a parking lot. Alice Speri, NYPD’s Aggressive Policing Risks Spreading the Coronavirus, The Intercept, (April 3, 2020), available at https://theintercept.com/2020/04/03/nypd-social-distancing-arrests-coronavirus/.
17. On April 9, 2020, Cynthia Pope observed NYPD enforcement of social distancing restrictions escalate into a uniformed NYPD officer lifting an adolescent Black boy by his neck and another uniformed officer pepper spraying her. The declaration of Ms. Pope is attached hereto as Exhibit 2.
18. On April 10, 2020, a witness to NYPD enforcement of social distancing on a subway platform posted a video depicting NYPD Officers detaining and handcuffing a man who had indicated the subway platform was too crowded to socially distance as directed. Bystanders audible in the video implied the escalation to arrest was in retaliation for the use of coarse or vulgar language against the police. This video, which I personally reviewed, was posted on Twitter, a public social media platform. See Real Justice, @RealJusticePAC, Twitter, (April 10, 2020, 11:31 a.m.), https://twitter.com/RealJusticePAC/status/1248634593638592514.
19. On April 11, 12, and 13 2020, Rebecca Kavanaugh, an attorney admitted to practice in New York State, posted the relevant video involving the “social distancing detention”
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of a young Black child on a Harlem subway platform, in three parts on Twitter, a public social media platform, which I personally reviewed. Rebecca Kavanagh @DrRJKavanagh, Twitter, (April 11, 2020, 10:00 p.m.) https://twitter.com/DrRJKavanagh/status/1249155279293493249, (April 12, 2020, 10:39 a.m.) https://twitter.com/DrRJKavanagh/status/1249346403350044672, and (April 13, 2020, 6:13 a.m.), https://twitter.com/DrRJKavanagh/status/1249641953274331136. The videos depicted the detention of a young Black child on a Harlem subway platform and the eventual arrest of the child’s guardian.
20. On April 28, Steven Merete, a 51 year-old Latinx man, was arrested after NYPD officers were conducting social distancing enforcement at a nearby deli. Mr. Merete was socially distanced, standing outside his home, when officers pushed him, slammed him to the ground and arrested him. Mr. Merete spent almost 24 hours in custody and was ultimately charged with disorderly conduct and resisting arrest before being released. The declaration of Mr. Merete is attached hereto as Exhibit 3.
21. On May 2, 2020, Malik Harris, a 22 year-old Black man was approached by plain clothes NYPD officers in the courtyard of the Queensbridge public housing complex in Queens for an apparent social distancing enforcement. Though Mr. Harris had a mask and pulled it over his mouth and nose, an NYPD officer detained and arrested him, using force. Mr. Harris spent almost 24 hours in custody before arraignment. On the basis of this, Mr. Harris was sent to Rikers Island for parole revocation proceedings, the COVID-19 epicenter of the epicenter, and held there for an extended period, in a crowded dorm with over fifty men and only allowed one mask in the three weeks he was detained. Several of the officers involved in the arrest and to
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whom Mr. Harris was exposed at the precinct were not wearing masks. The declaration of Mr. Harris is attached hereto as Exhibit 4.
22. On May 2, 2020, in a video posted on Twitter, a public social media platform, which I personally reviewed, there was a heavy police presence in Brownsville, Brooklyn, a Black neighborhood in New York City. The video depicted multiple NYPD Officers, many of whom were not wearing masks, detaining multiple Black men in Brownsville, Brooklyn. In the video, police enforcing social distancing restrictions, and in the middle of handcuffing one Black man, noticed another Black man walking very slowly toward them in the street, ran up on him, grabbed him by the throat, tackled him to the ground and proceeded to handcuff him. Why Accountability, @WA_tweets, Twitter, (May 3, 2020, 8:41 a.m.) https://twitter.com/WA_Tweets/status/1256926903275061248.
23. On May 3, 2020, during NYPD enforcement of social distancing in the Lower East Side of Manhattan, in New York City, NYPD Officer Francisco Garcia approached a bystander, NYCHA employee Donni Wright, while firing his taser and instructing him to move back. Officer Garcia was not wearing a mask. He approached Mr. Wright, accused him of “flexing” and then immediately tackled Mr. Wright to the ground. He began punching Mr. Wright in the head and body, dragged him on the ground, and kneeled on his head while a fellow officer observed and then assisted in handcuffing Mr. Wright. A video of this incident, which I personally observed, went viral and is included in this herein referenced article. See John Del Signore, Video: NYPD Officer Beats Bystander, Kneels On His Head During Social Distancing Enforcement, Gothamist, (May 3, 2020), available at, https://gothamist.com/news/video-nypdofficer-beating-social-distancing-enforcement.
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24. On May 3, 2020, Hawk Newsome, the chairperson of Black Lives Matter Greater New York, was pretextually stopped on the claim of social distancing enforcement as he video recorded police officers in the Melrose area of the Bronx, in New York City. Although he was walking with only one person and legally video recording the police who were interfering in a funeral service in the Bronx, the officers repeatedly instructed him to disperse. Mr. Newsome retained six feet of distance from his walking companion. The police officer instructing Mr. Newsome was not wearing a mask. On May 5, 2020, a video was posted on Instagram, a public social media platform, which I personally reviewed. The video was posted by congressional candidate and witness, Chivona Renée Newsome, newyorkvonni, Instagram, (May 3, 2020). https://www.instagram.com/tv/B_v4RAyHdUu/?utm_source=ig_embed. The video depicted the arrest of Hawk Newsome who was protesting the NYPD dispersing of a funeral in the Bronx and Ms. Newsome indicated they were recording because the police had pepper sprayed an entire family gathered for a funeral service immediately prior to the video. See also Royce Dunmore, Graphic Videos Show NYPD Terrorizing Same Black Communities Being Killed By Coronavirus, News One (May 5, 2020) available at https://newsone.com/3936823/videos-show-nypdterrorizing-same-black-communities-killed-by-coronavirus/.On May 4, 2020, a video was posted on Twitter, a public social media platform, which I personally reviewed, shows multiple officers detaining, pushing, and approaching people without masks, gloves, or other protective equipment. Why Accountability, @WA_tweets, Twitter, (May 4, 2020, 9:42 p.m.) https://twitter.com/WA_Tweets/status/1257485915112517632.
25. On May 4, 2020, a video depicting uniformed officers violently arresting a young Black man showed three officers detaining and punching the young man. On the apparent guide of social distancing enforcement, the officers repeatedly instructed the bystanders video
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recording the interaction to go inside. Eventually, the officer ran warrant checks of the bystanders and the video ends as the officer informs the videographer that he has an I-card and grabs his cell phone. The video was posted on Twitter, a public social media platform, which I personally reviewed. Anthony Beckford (City Council Candidate), @Vote4Beckford, Twitter, (May 4, 2020, 8:39 p.m.), https://twitter.com/Vote4Beckford/status/1257469870524051457.
26. On May 8, 2020, in a video I personally reviewed, NYPD Officers detained approximately eight young Black adolescent boys forced to kneel up against fence in apparent social distancing enforcement. The videographer narrated and captured the presence of uniformed officers, plainclothes officers, and a white-shirted supervisor. This video was posted on Twitter, a public social media platform, which I personally reviewed. See Tariq Nasheed @tariqnasheed, Twitter, (May 8, 2020, 6:21 p.m.), https://twitter.com/tariqnasheed/status/1258884734551113729.
27. I live in the Nolita neighborhood of Manhattan. Since the COVID-19 pandemic began, on a regular basis I have heard the NYPD broadcast a friendly reminder to observe social distancing restrictions in my neighborhood on a regular basis. The announcement says, in sum and substance, “This is the New York City Police Department. Due to the current health emergency, members of the public are reminded to keep a safe distance of 6 feet from others while in public places to reduce the spread of the coronavirus. Please help us keep you safe, thank you for your cooperation.” See also Olivia Bensimon, NYPD patrol car plays coronavirus PSA over loudspeaker at NYC park, N.Y. Post (Mar. 25, 2020) available at https://nypost.com/2020/03/25/nypd-patrol-car-plays-coronavirus-psa-over-loudspeaker-at-nycpark/.
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28. In Queensbridge, a Twitter user noted that “Cops all over Vernon Boulevard by Queensbridge Projects locking people up for being outside, broadcasting a PSA that they’ve been ordered to dispersed by @NYGovCuomo” and referenced an attached video showing dozens of police officers occupying the courtyard of Queensbridge Houses, and broadcasting a public service announcement threatening arrest. The public service announcement indicates: “Warning: These gatherings are prohibited. This is the New York City Police Department. Gatherings of any kind have been prohibited by the governor and by the mayor. This gathering is unlawful and you are ordered to disperse. If you fail to disperse immediately, you are subject to arrest.” This video, which I personally reviewed, was posted on Twitter, a public social media platform. See UpFromTheCracks, @ UpFromTheCracks, Twitter, (May 5, 2020, 10:27 p.m.), https://twitter.com/UpFromTheCracks/status/1257859462288805889?s=20.
29. Elsewhere in the City, this more threatening PSA is reserved for public protestors gathering in violations of the rules. Upon information and belief, very few of these persons have been subject to individual subsequent law enforcement action. See Peter Mastrosimone, De Blasio declares protest to be illegal, Queens Chronicle (May 21, 2020) available at https://www.qchron.com/editions/queenswide/de-blasio-declares-protest-to-beillegal/article_8b72584b-9b07-5713-af7f-75692bf410b0.html (stating the full text of the PSA).
NYPD Enforcement of Social Distancing has Involved Frequent Retaliation, Use of Force, and Escalation in Retaliation for Coarse or Vulgar Language 30. In several cases, NYPD enforcement of social distancing escalated when officers retaliated against the legal use of vulgar or coarse language. For example, on May 5, 2020, NYPD enforcement of social distancing escalated quickly to handcuffing and arrest of a young [woman] situation was not wearing a face mask. Rebecca Kavanaugh, an attorney admitted to practice in New York State, posted the relevant video, which I personally reviewed, on Twitter, a
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public social media platform. See Rebecca Kavanagh @DrRJKavanagh, Twitter, (May 5, 2020, 2:32 a.m.), https://twitter.com/DrRJKavanagh/status/1257558718528577538.
31. On May 13, 2020, Kaleemah Rozier was in the Barclays Center/Atlantic Avenue subway station with her five-year old child. They were wearing masks, but had exposed their noses and mouths as they walked on the stairs. Ms. Rozier later claimed that “when the police encountered her, she had lowered her mask to breathe more easily while she climbed the subway steps and talked on the phone.” Woman arrested in subway over mask says police were “all in the wrong.”, New York Times (May 19,2020) available at https://www.nytimes.com/2020/05/19/nyregion/coronavirus-ny-nyc-live-news.html. As she tried to walk away from officers claiming to enforce social distancing, the officers confronted her and eventually tackled her to the ground and forcibly arrested her. Dean Meminger, a news reported for NY1, posted on Twitter, a public social media platform, a video depicting the arrest of the young woman of color. Dean Meminger, @DeanMeminger, Twitter, (May 13, 2020, 6:22 p.m.), https://twitter.com/deanmeminger/status/1260697038565638147. The video depicts the woman walking up the steps of the and being arrested by multiple NYPD Officers.
NYPD has not Enforced Social Distancing Restrictions Against White Communities and People Similarly Situated to Black and Latinx Communities, Including Disproportionately Fewer Summonses, Arrests, Unjustified Stops, Excessive Force, or Abuses of Authority 32. Largely, NYPD enforcement of social distancing against white persons and communities has been gentle or nonexistent. See, e.g., Poppy Noor, A tale of two cities: how New York police enforce social distancing by the color of your skin, The Guardian (May 4, 2020) available at https://www.theguardian.com/world/2020/may/04/coronavirus-new-york-policeenforce-social-distancing (“outrage has sparked over juxtaposed images that show officers
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handing out masks to white sunbathers, while another video shows an officer punching a person of color and sitting on him following a dispute about social distancing.”)
33. In some predominantly white neighborhoods, like Park Slope, Brooklyn (which includes Prospect Park), large crowds consistently gathering at Prospect Park did not result in NYPD enforcement of social distancing. On May 12, 2020, Patch reported that the largely white neighborhood of Park Slope, Brooklyn had experienced no social distancing arrests. Not One Social Distancing Ticket For All Of Park Slope: Data, Matt Troutman, Patch Staff, Patch, (May 12, 2020), available at, https://patch.com/new-york/parkslope/not-one-social-distancing-ticketall-park-slope-data.
34. Accounts of harsh tactics in enforcement of social distancing in Black and Latinx communities have been contrasted with the gentler approach taken in the Hasidic community in Williamsburg, Brooklyn, see Ashley Southall Scrutiny of Social-Distance Policing as 35 of 40 Arrested Are Black, New York Times (May 7, 2020) available at https://www.nytimes.com/2020/05/07/nyregion/nypd-social-distancing-race-coronavirus.html (“Officers issued 12 tickets at a recent funeral that drew a crowd of 2,500”) or with respect to crowded public parks in white communities. See also Ben Yakas, Brooklyn Yeshiva Allegedly Caught Holding Classes With At Least 60 Students Inside, Gothamist (May 18, 2020), available at https://gothamist.com/news/brooklyn-yeshiva-allegedly-caught-holding-classes-least-60students-inside (police raid an illegal yeshiva with 100 children inside, in violation of social distancing mandates but “NYPD said no summonses were issued against the people operating the school.”).
35. On May 2, 2020, a photo was posted on Twitter, a public social media platform, which I personally reviewed. Jeremiah Moss @jeremoss, Twitter, (May 2, 2020, 6:41 p.m.),
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https://twitter.com/jeremoss/status/1256715403188998146. The photo depicted NYPD Officers distributing masks to predominantly white individuals in Washington Square Park.
36. On May 2, 2020, a photo was posted on Twitter, a public social media platform, which I personally reviewed. NYPD NEWS, @NYPDnews, Twitter, (May 2, 2020, 3:15 p.m.), https://twitter.com/nypdnews/status/1256663527479279617. The photo depicted a white woman in being handed a mask by an NYPD Officer.
37. On May 2, 2020, a photo depicting a large and congested crowd of predominantly white individuals failing to maintain social distancing or wear mask at Christopher St. Pier was published. The photo was posted on Twitter, a public social media platform, which I personally reviewed. Welcome2theBronxTM, @Welcome2theBX, Twitter, (May 2, 2020, 9:52 p.m.), https://twitter.com/Welcome2theBX/status/1256763447209066496.
38. On May 3, 2020, Kate Reese, a 27 year-old white woman observed multiple families seated and gathered in a Red Hook park, enjoying their day. Ms. Reese observed that the only Black family in the park, among the other predominantly white families, was approached and ultimately asked to leave the park by the NYPD. The declaration of Ms. Reese is attached hereto as Exhibit 5.
39. On May 8, 2020, Gothamist reported that limitations would be put in place to stem the flow of large gatherings in some public parks. NYPD Will Limit How Many People Can Enter Hudson River Park And Domino Park, Ben Yakas, Gothamist, (May 8, 2020), available at, https://gothamist.com/news/nypd-will-limit-how-many-people-can-enter-hudson-river-park-anddomino-park.
Statements and Actions of New York City and State Officials Convey Compelling Public Interest Against NYPD Enforcement of Social Distancing
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40. Brooklyn Borough president, Eric Adams, noted New York’s social distancing mandates nowhere set forth criminal conduct: “the enforcement of social distancing is not a crime and we should stop treating it like a crime. It’s reculturing. It’s rethinking how we have to exist in a COVID, or any virus-like, environment.” See Jarrett Murphy, Eric Adams Says Cops Should Not Enforce Social Distancing, City Limits (May 7, 2020) available at https://citylimits.org/2020/05/07/eric-adams-says-cops-should-not-enforce-social-distancing/.
41. On May 8, 2020, the New York Daily News reported outrage by New York City public officials upon learning of the racially disproportionate social distancing arrests in New York City. See Anna Sanders and Rocco Parascandola, ‘That’s abysmal’: NYC politicians outraged after NYPD reveals 81 percent of social distancing arrests have been minorities, New York Daily News, (May 8, 2020), available at, https://www.nydailynews.com/coronavirus/nycoronavirus-social-distancing-enforcement-20200508-taominwawrhtlajdqjqf5gbdce-story.html.
42. On May 11, 2020, Gothamist reported on the decision of District attorneys in New York City to decline to prosecute social distancing arrests. NYC District Attorneys Won't Prosecute Social Distancing Arrests Ordered By De Blasio, Jake Offenhartz, Gothamist, (May 11, 2020), available at, https://gothamist.com/news/nyc-district-attorneys-wont-prosecute-socialdistancing-arrests-ordered-de-blasio.
43. On May 13, 2020, New York City Comptroller, Scott Stringer, wrote on Twitter, a public social media platform, responding to the incident described in ¶ 31 supra: “Inhumane. A young child watching their mother slammed to the ground. There is no possible justification for this. Let me say this AGAIN — the NYPD cannot be involved in social distancing enforcement.,” which I personally reviewed. Scott Stringer, @NYCComptroller, Twitter, (May
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13, 2020, 10:39 p.m.), https://twitter.com/NYCComptroller/status/1260761717866475521 (emphasis in original).
Statements and Actions of NYPD Leadership and Mayor Bill de Blasio Show Deliberate Indifference to Public Concerns About Racially Disparate Policing by NYPD Officers 44. The NYPD officers involved in NYPD enforcement of social distancing included uniformed and plainclothes officers. See e.g., Kim Bellware, Violent arrest in New York raises questions about police enforcement of social distancing orders, The Washington Post (May 5, 2020) available at https://www.washingtonpost.com/nation/2020/05/05/donni-wright-nyc-arrest/ (“Shea has said there’s no “hard and fast rule” on how or even whether plainclothes officers should aggressively enforce social distancing”). As a matter of course, they had graduated from the police academy, and received training in appropriate police encounters, the de Bour levels, and permissible stops, questions, and frisks. See NYPD Monitor, Training, available at http://nypdmonitor.org/training/. 45. On May 8, 2020, Gothamist reported on Mayor Bill de Blasio’s response to recent disproportionate social distancing enforcement. De Blasio Shrugs Off Leaked Data Showing Massive Racial Disparities In NYPD’s Social Distancing Arrests, Jake Offenhartz, Gothamist, (May 8, 2020), available at, https://gothamist.com/news/de-blasio-shrugs-leaked-data-showingmassive-racial-disparities-nypds-social-distancing-arrests. 46. Recalling the City’s strategies used at trial, the NYPD Commissioner has rationalized police misconduct and violence, blamed the people being stopped, suggested additional context would have neutralized public concern, and claimed they were largely criminals. See Jake Offenhartz, Police Commissioner Says It's "Dangerous" To Criticize NYPD For Social Distancing Enforcement Disparities, Gothamist (May 13, 2020) available at
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https://gothamist.com/news/police-commissioner-says-its-dangerous-criticize-nypd-socialdistancing-enforcement-disparities. Recently, when challenged regarding the stark racial disparities in stops and summonses issued for social distancing violations, NYPD began promoting a statistic that 90% of those arrested for actual crime during the COVID-19 pandemic were Black or Latinx, implying the race of these crime suspects justified racially discriminatory policing, and racial disparities in stops, in Black and Latinx communities. See Anthony M. DiStefano, COVID-19-related arrests in the city not racially motivated, NYPD says, Newsday (May 12, 2020) available at https://www.newsday.com/news/health/coronavirus/nypd-socialdistancing-minorities-arrests-1.44590671 (Legal Aid Society notes the “NYPD definition of ‘COVID-related’ in this data set is meaningless. Most importantly, it shed no light on the critical question of how the NYPD can explain and begin to address its pattern of racially discriminatory enforcement of social distancing….”).
47. Throughout the COVID-19 crisis, police misconduct has been publicly defended by police leadership. See e.g., Coronavirus News: Mom arrested after subway confrontation with NYPD over mask, Eyewitness News 7 (May 14, 2020) available at https://abc7ny.com/viralvideo-violent-arrest-kaleema-rozier-nypd/6196707/ ("We are confident that the police officers in this incident acted appropriately and with respect," the [NYPD] said. "This individual was arrested only after her behavior toward officers warranted police action."); Michael R. Sisak, Violent Arrest Raises Concerns About NYPD Distancing Patrols, New York Times (May 3, 2020) available at https://apnews.com/fa0a3f060e3c19d5dfe157e6d880c48c (“Police spokeswoman Sgt. Mary Frances O’Donnell said Wright ‘took a fighting stance against the officer’ when he was ordered to disperse”); Kathleen Culliton, Punching Isn't Excessive Force, NYPD Commissioner Says, Patch (May 6, 2020) available at https://patch.com/new-york/new-
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york-city/punching-isnt-excessive-force-nypd-commissioner-says (NYPD Commissioner Dermot Shea stated publicly, "A punch should not be assumed to be excessive force.").
48. On May 13, 2020, NYPD Commissioner Shea spoke at a Mayor’s Press Availability, and refused to consider any possibility of racial discrimination among the police: “I will push back strongly on any notion that this is business as usual for the NYPD or that this is ‘racist police.’ I think this could not be anything further from the truth. Let's remember, we are a minority-majority police department – fact.” Shea also suggested current racial profiling claims were merely creations of the media: “I would urge caution to everyone now to honestly, before a press conference is held on a ten second video of a street brawl in the middle of the day in Brooklyn in broad daylight, by the way, before it's turned into an agenda for a press conference.” See Transcript: Mayor de Blasio Holds Media Availability, May 13, 2020, available at https://www1.nyc.gov/office-of-the-mayor/news/344-20/transcript-mayor-de-blasio-holdsmedia-availability.
49. On May 13, 2020, Police Commissioner Dermot Shea also responded to a question during Mayor Bill De Blasio’s daily briefing and stated:
We have issued a small number of summonses, even fewer arrests tied to COVID. Are they mostly to minority members of this city? Yes, they are. And I think you knew that answer before you asked the question, but no one is talking about the disparity of the last ten homicide victims in New York City, and I think that should be spoken about or the victims of robberies across the city. Disparities exist in every facet of life, not just in New York City but in this country and it's rooted in much deeper issues than the New York City Police Department. Transcript: Mayor de Blasio Holds Media Availability, May 13, 2020, available at https://www1.nyc.gov/office-of-the-mayor/news/344-20/transcript-mayor-de-blasio-holdsmedia-availability. See also Craig McCarthy, Dermot Shea defends NYPD after racism claims
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over social-distancing stops, New York Post (May 13, 2020) available at https://nypost.com/2020/05/13/nypd-chief-responds-to-racist-claims-over-social-distancingstops/ (NYPD Commissioner offered “an extremely heated rant” dismissing claims of racism and saying “they fight when they go to court, they have opened gun cases, they are gang members, and we expect our police officers to do the best they can.”).
50. In addition, there has been no clear and transparent guidance with respect to NYPD enforcement of social distancing as it rolled out, in operation, and in the current claim of a partial rollback. See e.g., Kim Bellware, Violent arrest in New York raises questions about police enforcement of social distancing orders, The Washington Post (May 5, 2020) available at https://www.washingtonpost.com/nation/2020/05/05/donni-wright-nyc-arrest/ (“Shea has said there’s no “hard and fast rule” on how or even whether plainclothes officers should aggressively enforce social distancing”).
Plaintiffs’ Requests for Information, Data, and Documentation 51. As media reports began to surface about some of the aforementioned NYPD social distancing-related enforcement actions against individuals of color in certain predominantly Black and Latinx neighborhoods of the City, Plaintiffs grew very concerned that the NYPD’s social distancing enforcement efforts were violating the Court’s prior orders concerning racial profiling and biased policing. 52. On April 22, 2020, I observed an email sent by co-Plaintiffs’ counsel Jonathan Moore, an attorney with Beldock Levine & Hoffman, to NYPD Deputy Commissioner of Risk Management Jeffrey Schlanger and Corporation Counsel for the City, requesting information and data regarding street encounters related to shelter-in-place, social distancing, and mask-wearing
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stops, summonses, and arrests. The Court-appointed monitor, Peter Zimroth, and members of his team were copied on this email. A copy of this email is attached hereto as Exhibit 6.
53. Plaintiffs’ April 22, 2020 email, directed to requested several categories of materials and information related to the NYPD’s social distancing enforcement efforts, including:
a. Any training or written guidance provided to NYPD personnel concerning enforcement of social distancing restrictions
b. Information on how street encounters related to social distancing enforcement are documented and associated stop report, summonses, memo book entries and other NYPD documentation of such encounters
c. A sampling of NYPD body camera videos of such social distancing enforcement-related encounters.
d. Information on supervisory instruction and review of NYPD officers’ social distancing enforcement activity
e. Data on the number of summonses that have been issued stemming from street encounters involving any reference to social distancing enforcement
54. On April 29, 2020, Plaintiffs renewed the request for information on a videoconference with all parties to the Floyd, Davis, and Ligon cases, convened by the Monitor on the Zoom platform.
55. On May 7, 2020, Plaintiffs again renewed the request for information on a videoconference with parties to the Floyd, Davis, and Ligon cases, convened by the Monitor on the Zoom platform.
56. On May 8, 2020, I observed an email sent by Jonathan Moore renewing Plaintiffs’ request for the above-referenced information to NYPD and seeking a response no later than May 11, 2020. A copy of this email is attached hereto as Exhibit 7.
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57. To date, Defendants have not produced any of the materials or information requested by Plaintiffs, nor has the Monitor responded to Plaintiffs’ discovery requests.
58. On May 22, 2020, at 11:41 AM, I observed an email sent by Darius Charney, an attorney with the Center for Constitutional Rights and counsel to Plaintiffs, to Defendants and Defendants’ counsel, copying the Monitor and members of the Floyd and Davis teams, notifying them of Plaintiffs intent to move the Court for an order to show cause and the relief sought, and requesting consent to the order and relief sought. A copy of this email is attached hereto as Exhibit 8.
59. On May 22, 2020, Raju Sundaran, counsel for Defendants, informed Plaintiffs counsel that Defendants did not consent.
60. Pursuant to Local Rule 6.1(d), Plaintiffs could not proceed under ordinary notice of motion process. The COVID-19 pandemic has quickly and drastically impacted the Plaintiff Classes, with significant threat and documented impact to the lives, health, and safety of the class. The enforcement response of Defendant City, and its agency, NYPD, have and continue to exacerbate the risks to the class in varied and escalating ways described herein. Any further delay, including proceeding by ordinary notice of motion, will result in further violations of the Court’s orders in Floyd and Davis and greatly endanger the lives, health, and safety of the Plaintiffs. No previous application for similar relief has been made.
61. This is Plaintiffs’ first request for the relief set forth in Plaintiffs’ order to show cause.

Dated: New York, New York May 26, 2020

/s/ Dominique Day 26

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EXHIBIT 1

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

DAVID FLOYD, et al.,

Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al.,

Defendants. --------------------------------------------------------------------- X

DECLARATION OF COMMUNITIES UNITED FOR POLICE REFORM (CPR) IN SUPPORT OF PLAINTIFFS’ MOTION FOR EMERGENCY RELIEF
I, Joo-Hyun Kang, pursuant to 28 U.S.C. § 1746 and subject to penalties of perjury, state the following is true and correct:
1. I submit this declaration in support of Plaintiffs’ motion for emergency relief. I am not a party to the above-captioned case.
2. I have been the Director for Communities United for Police Reform (CPR), a citywide campaign to end discriminatory and abusive policing in New York since 2012. Among other responsibilities, in this position I coordinate planning and implementation of the coalition’s multiple strategies (including policy, legal, community education, organizing, research, civic engagement, and communications) to end discriminatory policing; represent the campaign/coalition in meetings with elected officials; serve as a media spokesperson for CPR; meet with, organize and speak to community members impacted by discriminatory police practices, including unconstitutional stops and frisks.
3. I have been involved with police accountability issues in New York City since the mid1990s. From 1996 to 2003, I served as Executive Director of the Audre Lorde Project, a community organizing center for Lesbian, Gay, Bisexual, Transgender communities of color. In this capacity, I was a founding member of the NYC Coalition Against Police Brutality (CAPB) which included and worked with a wide range of grassroots community organizations committed to fighting police brutality. As a founding member of CAPB, I organized, educated, and advocated to end discriminatory policing within Lesbian, Gay, Bisexual, Two Spirit, Trans and gender nonconforming communities of color, and helped to organize community rallies, events and forums aimed at achieving accountability for various cases of police brutality, including the brutality against Jalea Lamot and her family, torture of Abner Louima and death of Amadou Diallo in the late 1990s.
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4. I am the co-author of “Organizing at the Intersections: A Roundtable Discussion of Police Brutality Through the Lens of Race, Class, and Sexual Identities”, found in Zero Tolerance: Quality of Life and the New Police Brutality in New York City, editors Andrea McArdle and Tanya Erzen, New York University Press, 2001.
5. Around the year 2007, I worked with other grassroots organizations to co-found the People’s Justice coalition following the killing of Sean Bell and other high-profile police shootings. People’s Justice is a coalition of grassroots organizations committed to educating communities of color about their rights when interacting with police.
About Communities United for Police Reform (“CPR”)
6. CPR, launched in 2012, is a non-partisan, multi-strategy campaign to end abusive and discriminatory policing practices in New York and reduce reliance on policing for community safety.
7. CPR runs coalitions of over 200 national, statewide and local organizations from across New York whose members include community members most impacted by police violence, community organizing groups, legal organizations, policy groups, research projects, and others. The organizations in CPR coalitions represent community members from all five New York City boroughs, different walks of life and include individuals with family members who are police officers. The majority of our member organizations are grassroots organizations whose constituencies, memberships or clients are based primarily in lowincome communities of color, that are most impacted by abusive policing – including youth, LGBTGNC communities, immigrants, people with disabilities, homeless New Yorkers, public housing residents, and others. Members of these communities bear the bruch of the New York Police Department’s (“NYPD”) unjust stop and frisk practices. This includes organizations that have been leading work on police accountability in Black, Latinx and immigrant communities; organizations representing lesbian, gay, bisexual, and transgender communities; homeless New Yorkers; and youth organizations. Notably, young people of color have been documented as those most impacted by the NYPD’s stop and frisk practices.
8. In addition, CPR partners with a broad range of additional organizations to advance our effort to create a safer New York City for everyone. Many of our partners work on behalf of the communities most unfairly targeted by the NYPD’s stop and frisk practices.
9. CPR’s work is largely focused on police accountability, particularly centering the experiences of those directly affected by discriminatory and abusive NYPD policies and practices. Relevant examples include but are not limited to:
a) In 2019, CPR was able to effectively advocate for the inclusion of a change to the City Charter as a ballot item in the election. This ballot item expanded CCRB’s authority to investigate instances where police officers make false official statements. In spite of significant funds driving a misinformation campaign by NYPD police unions, New
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Yorkers voted in overwhelming support of the ballot item – it passed with over 70% of the vote.
b) CPR organized a citywide coalition of over 200 community organizations, labor unions, advocacy organizations and others to pass the Right to Know Act in 2017, legislation in the City Council directly relevant to changing NYPD’s practices with regards to common street encounters: Intro 0541-2014, a local law to mandate NYPD request consent to search an individual unless they have legal basis to engage in said search, and Intro 0182-2014, a local law that requires the New York Police Department officers provide a business card and the reason for law enforcement activity during certain interactions with the public.
c) In 2013, CPR secured passage of the Community Safety Act in the City Council, a pair of bills which were directly relevant to increasing NYPD accountability: Intro 10792013, a local law to create a clear mechanism for NYPD oversight and increased transparency though establishment of an Inspector General, and Intro 1080-2013, a ban on biased-based profiling.
d) In 2015 CPR, in partnership with families who have lost loved ones to police in New York, organized to ensure Governor Cuomo issued an Executive Order (Executive Order 147) creating the Office of the Special Prosecutor to investigate some cases where a person dies during an interaction with police in New York State.
e) CPR members have trained tens of thousands of New Yorkers on their rights during interactions with police and while observing police to increase the safety of community members during police encounters.
10. Members of CPR organizations regularly express the concerns of community members impacted by abusive policing practices in many public arenas and media outlets. For example, members have testified about their discriminatory stop and frisk experiences in front of numerous venues including the New York City Council and the New York State Legislature, at press conferences, at townhall meetings, and in front of former President Obama’s 21st Century Policing Task Force, the Congressional Black Caucus (CBC), Congressional Progressive Caucus (CPC), Congressional Hispanic Caucus (CHC), and Congressional Asian Pacific American Caucus (CAPAC) in Washington DC. In addition, CPR members have been quoted on policing, police oversight and police reform in the City of New York in media outlets as diverse as the Associated Press, the New York Times, Daily News, Gotham Gazette, El Diario, the Staten Island Advance, Black Entertainment Television, and Amsterdam News.
11. Historically, CPR’s interest in these matters dates back two decades, when, after the 1999 killing of Amadou Diallo by the Street Crimes Unit of the New York Police Department, organizations that would later become founding members of CPR approached the Center for Constitutional Rights to file the lawsuit targeting stop-and-frisk practices (Daniels v City of New York). The information concerning racial disparities in stop-and-frisk obtained through
3

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Daniels facilitated the filing of Floyd. CPR members are among the named plaintiffs, the main litigating nonprofit legal organizations and key witnesses in Floyd.
12. At different times CPR and/or its member organizations have been involved in Floyd v. City of New York and have a strong interest in the outcome of stop and frisk reform efforts. CPR is a named stakeholder in the Joint Remedial Process in Floyd v City of New York. (ECF No. #372) CPR has submitted multiple filings to the Court for consideration on this matter. On March 3rd, 2013 CPR submitted a motion for leave to file an amicus curiae brief in support of Plaintiffs’ remedial proposals in Floyd. The following are just some of the filings we have had accepted by the court: On August 13th, 2013 the Court granted this motion and accepted the brief as filed. (Dkt. #377) On May 16th 2012, the Court granted a request by members of CPR (Bronx Defenders, Brotherhood/Sister Sol, the Justice Committee, the Justice Committee, Picture the Homeless, and Streetwise and Safe) to submit an amicus curiae brief in support of Plaintiffs’ motion for class certification. (ECF No. # 208) In April 2017, CPR submitted to the Court concerning the NYPD’s Body-Worn Camera Pilot (ECF No. #547-1). On July 9th 2018, CPR filed an amicus curiae is response to the Facilitator’s Final Report uplifting priority reforms for the Court – this filing was supported by over 90 organizations. (ECF No. #611).
13. Communities United for Police Reform has worked to ensure directly impacted New Yorkers were able to participate in the Floyd legal process. CPR members and partners attended and packed the court every day of the historic nine-week Floyd trial. CPR participated extensively in the Joint Remedies Process (“JRP”). The JRP included 28 community forums, with an estimated 1,777 participants – more than half of these participants’ participation was facilitated by CPR members and partners. (ECF No. 597 at 7–8.) CPR and CPR members participated consistently throughout the JRP Advisory Committee and process, helping the Facilitator to organize focus groups and recruit participants, and directly organized nine community forums, convening 530 members of directly-impacted communities across the five boroughs. CPR partner organizations organized an additional 6 community forums with an additional 367 participants. Through these activities, CPR endeavored to facilitate direct input in the remedial process from New Yorkers most impacted by stop- and-frisk and trespass enforcement abuses, primarily lowincome New Yorkers of color. Since the end of the JRP, CPR and CPR members continue to engage with the Floyd remedial process including through filings with the Court.
Unconstitutional Stop-and-frisk Practices Persist in NYPD’s ‘Social Distance Enforcement’
14. The issues of racial disparities in enforcement practices are not unfamiliar to the Court. Despite the drop in reported stops, racial disparities have persisted - in 2019 59% of stops were of Black people and 29% Latinx people. Year after year, Black and Latinx New Yorkers have comprised of 80-90% of stops by the NYPD. While comprehensive stop information has not been released for the COVID-19 period (which is its own problem), the limited enforcement data that has been publicly shared tracks with prior enforcement patterns: In one report by CBS, 92% of social distance related arrests were of Black and Latinx New Yorkers. In data released by Brooklyn District Attorney Eric Gonzalez, 35 of the 40 people arrested in Brooklyn for social distancing enforcement were Black, 4 were
4

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Hispanic. In conjunction with the data, there have also been multiple videos released of abusive encounters where ‘social distancing enforcement’ was either the pretext and/or false explanation after-the-fact and have resulted in Black and Latinx people being punched, kicked, pepper-sprayed, thrown to the ground, or otherwise assaulted. Some of these began as unconstitutional stops, and we must not hide that.
15. The experiences captured in the data and the videos are only part of the picture. Since the emergence of the COVID-19 crisis, in our experience, there has been an uptick in what sound like unconstitutional stops and searches – and an uptick in those unconstitutional and unnecessary interactions escalating into physical violence. Through March and April we and CPR member groups have seen an increase in terms of overall support requests. As a result, CPR and CPR members have done intake with numerous New Yorkers since the pandemic was officially recognized in NYC who have had or have witnessed interactions with police during the COVID-19 period. Through this intake process, several trends have emerged including: (a) a majority of these interactions have involved Black and Latinx New Yorkers, primarily young people; (b) in situations where arrests were made or summons issued, the charges were unrelated to ‘social distancing’ violations in most interactions – they include “resisting arrest”, “disorderly conduct” and/or “obstruction of governmental administration” – charges that are well known as police brutality cover-up charges; (c) in some interactions no summonses were issued or arrests made, even when force, such as pepper-spray, using chokeholds and tasing were used; (d) in interactions where no summonses were issued or arrests made officers consistently refused to provide the reason for initiating the stop OR a business card as is mandated by the Right to Know Act.
16. When New York State’s “PAUSE” went into effect, we were notified of encounters where New Yorkers of color were stopped by police before entering the transit system or as they were leaving and asked to prove that they were essential workers. This is despite the fact that there are no directives stating that the subway can only be used for work-related travel and no guidance issued that New Yorkers must carry proof of the nature of their trips. This is just one example of the types of baseless and unconstitutional stops New Yorkers are being subjected to, regardless of their legal rights to be in public.
17. These abusive and discriminatory interactions are occurring in primarily Black and Latinx working class neighborhoods, including the South Bronx, Central Brooklyn, East New York, Harlem, Jamaica, Far Rockaway, Lower East Side and other neighborhoods throughout New York City. There is overlap between historically high stop precincts and some of the precincts with the highest number of complaints including, but not limited to the 75th and 40th precincts. Some of these interactions have occurred in and around public housing – in addition to the individual stories we have received, we have also heard of reports of ongoing, abusive and illegal behavior by police at or around public housing including engaging in unconstitutional and baseless stops and unwarranted arrests of public housing residents. At least one individual, a Black public housing resident in his 40s, commented to us that he has avoided leaving his apartment as much as possible since his last interaction with police and says he has been followed by police in unmarked vehicles once while going to the store and once while waiting for a cab.
5

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18. In one encounter which occurred in the Lower East Side, NYPD claimed they approached two people on the street to engage in ‘social distancing enforcement’ but wound up arresting one person involved for marijuana possession. Similarly, in an incident in Brooklyn on May 2nd, a group of people were brutalized in what began as ‘social distancing enforcement’ and resulted in one of the people involved being charged with low-level marijuana possession. Both of these incidents happened in the context of low-level marijuana possession being decriminalized in New York State since 1977, and despite changes to NYPD operations orders and the further decriminalization of marijuana by the Legislature in 2019. In both scenarios, ‘social distancing enforcement’ was used as the pretext to initiate interactions (including potentially unconstitutional stops) which resulted in unrelated charges, and multiple people being physically harmed.
19. When considering the enforcement data, the direct experiences being recounted through the intake process, and the recent media coverage and related viral videos, it is evident that NYPD’s ongoing selective enforcement practices have resulted in ‘social distancing enforcement’ being used a pretext to initiate and escalate interactions, primarily street encounters, with Black and Brown New Yorkers. For the last year, members of Communities United for Police Reform have said that stop-and-frisk is occurring with greater frequency – and that in certain neighborhoods, the experience of rates of stops are similar to those prior to the findings in Floyd v. City of New York. In light of the COVID19 crisis, in our experience, there has been an uptick in what sound like unconstitutional stops and searches – and an uptick in those unconstitutional and unnecessary interactions escalating into physical violence. Through March and April we and CPR member groups have seen an increase in terms of overall support requests.
20. Understanding the long history of discriminatory and abusive street encounters at the core of Floyd v City of New York – and seeing the disparate enforcement practices emerging from ‘social distancing enforcement’ it was alarming to hear Police Commissioner Dermot Shea say he “would not stand for” the police department being called racist at a May 13th press conference. In his comments, the Police Commissioner also attempted to discredit what New Yorkers saw with their eyes on video by broadly claiming that the people being targeted “have open gun cases," and “are gang members” though there is no evidence in support of either blanket claim. Even if true, such claims would not negate whether an unconstitutional stop or abusive policing took place. These types of defensive, inflammatory and dismissive remarks regarding valid criticism of the NYPD’s racist practices are dangerous. It is meant to discredit those who are victimized by police violence, facilitates under-reporting of complaints, and functions as part of the City and NYPD’s misleading public relations with claims that the NYPD has been “reformed” and “transformed” since Floyd -- while this is far from true in the areas that the Floyd, Davis and Ligon litigations raised. The fearmongering is akin to how Mayor Bloomberg & Police Commissioner Kelly responded to community concerns about stop-and-frisk, including falsely claiming that Black and other New Yorkers of color were “understopped”. It is very similar to Mayor Bloomberg and the NYPD’s talking points in the period before Judge Scheindlin’s Floyd ruling, and before the City Council passed the Community Safety Act – as well as their remarks in trying to unsuccessfully appeal both. The immediate practical impact of underreporting is largely due to the fact that Black, Latinx and other New Yorkers of color have
6

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seen that historically – including the recent period – the NYPD does not discipline or terminate abusive officers when they harm civilians in a meaningful or timely way. The fact that Officer Francisco Garcia was only put on modified duty instead of being suspended, with no word of whether disciplinary charges would be brought re the incident in the Lower East side is a perfect example for why many in communities of color do not have faith in the legitimacy of the NYPD or the City of New York’s response to unconstitutional and abusive policing.
21. Unfortunately, Commissioner Shea is acting like Commissioner Kelly in defending the NYPD’s inexcusable practices, refusing to hold officers accountable for abusive and violent behavior, and attempting to demonize Black and other communities of color as a way to deflect and justify unconstitutional, racist and violent policing. CPR and CPR’s member and partner organizations had to resist and overcome this same demonization and deflection when Kelly was the Commissioner.
22. These enforcement trends are deeply concerning to us. In mid-March, CPR released a letter calling for a moratorium on low-level enforcement including for ‘quality of life’ offenses including so-called ‘sweeps’ of homeless New Yorkers, and low-level drug enforcement, including marijuana-related stops, summonses and arrests. Since then, we have only seen abusive encounters increase. We are concerned that as the weather gets warmer and more New Yorkers head outside, unnecessary interactions between police and New Yorkers of color will continue to increase – and unfortunately, bring with them an increase in abusive encounters. This will be particularly perilous in light of conflicting messaging and directives from the city and state in regards to recommended behavior and norms during the pandemic.
23. Mayor de Blasio’s recent announcement that NYPD will not be issuing summons or making arrests for social distance violations “absent of a crime or other violation being committed” has already been shown as baseless given the continued NYPD abuses, and would still allow NYPD to use ‘social distancing enforcement’ as a pretext to start an interaction. Historical and current practices show that this “discretion” will be applied in racially-targeted ways and will continue to negatively impact Black, Latinx and other New Yorkers of color. For CPR, this situation is untenable and we fear that unnecessary and unconstitutional interactions that police routinely escalate will result in additional violence against New Yorkers, even risking unjustified killings by police.
24. For all of the reasons provided above and in the interest of justice, CPR supports the Plaintiffs’ motion for emergency relief.
Pursuant to 28 U.S.C § 1746, I declare under penalty of perjury that the forgoing is true and correct.

Dated: New York, New York May 25, 2020

Joo-Hyun Kang

7

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EXHIBIT 2

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

DAVID FLOYD, et al., Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al., Defendants.
--------------------------------------------------------------------- X

DECLARATION OF CRYSTAL POPE I, Crystal Pope, pursuant to 28 U.S.C § 1746 and subject to the penalties of perjury, state the following is true and correct:
1. I am a 30 year old, Black woman who lives in Hamilton Heights, in Manhattan This is a neighborhood in the City of New York.
2. On April 4, 2020, I was walking in my neighborhood in the vicinity of 143rd Street and Hamilton Place just before 7:00 pm when I observed the police dispersing a group of several adolescent Black boys, approximately 11-14 years old. I had heard the police were enforcing social distancing guidelines and believed it was part of that. Two uniformed police officers were shooing about ten young boys away. I have a son about that age and I had seen these boys in the neighborhood previously.
3. As the boys dispersed, I was walking toward 144th Street and Hamilton Place. The police officers walked into an apartment building at 135 Hamilton Place. Two of the neighborhood boys also walked into the building behind the police.

Case 1:08-cv-01034-AT Document 757-4 Filed 05/26/20 Page 3 of 3

4. As I was walking to the building, I could see a police officer choking one of the kids they had dispersed through the window. One police officer was in the vestibule area and the other police officer was in the lobby area, lifting one of the young boys from the neighborhood up by the neck and choking him.
5. At that time, I opened the door to enter the building. Immediately after I opened the door, I was maced by the police.
6. I have lived in my neighborhood my entire life. In my area, there is a lot of police brutality. Before the incident even occurred, I was thinking, “God forbid something happens,” as I entered the building and saw the police officer lifting the boy by his neck. I later learned that the police officers had noticed the boys behind them when they reached the elevator, had immediately turned, stated, “Why are you walking behind me?”, and grabbed one of them by the throat.
7. I became aware that some of the officers body-worn cameras were on at the time of this incident. I was informed that others in the area sought the police officers names and badge numbers to no avail. People in the vicinity were telling the police loudly that they were supposed to provide their names and badge numbers. After I finished rinsing out my eyes, I was informed that the police had refused to provide their names or badge numbers to anyone.

I declare under the penalty of perjury that the foregoing information is true and correct to the best of my knowledge.

Dated: New York, New York May 25, 2020

Crystal Pope

2

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EXHIBIT 3

Case 1:08-cv-01034-AT Document 757-5 Filed 05/26/20 Page 2 of 3

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

DAVID FLOYD, et al., Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al., Defendants. --------------------------------------------------------------------- X

DECLARATION OF STEVE MERETE

I, Steven Merete, pursuant to 28 U.S.C § 1746 and subject to the penalties of perjury, state the following is true and correct: 1. I am a 51-year-old, Hispanic man who lives at in the Bronx, a borough of City of New
York. 2. On April 28, 2020, I was standing outside my home on Intervale Avenue with two friends.
My building is located next to a deli. A group of officers had just made an arrest up the block. As they were coming back down the street, they immediately approached some other individuals standing outside the deli and began yelling at everyone to leave and disperse. This was a large group of officers and I was not part of a larger group. I was social distancing from other individuals on the street at this time. 3. Since I was in front of my home, I did not have anywhere to leave to. Before I had an opportunity to convey this information, officers pushed me from behind. They forcefully picked me up and slammed me in the ground. I was punched in the chest, resulting in bruising across my ribcage.

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4. At least four other individuals were arrested in the same incident. I observed officers being aggressive and assaultive.
5. Some of the officers were wearing masks on their face, while others were not. I was brought to the precinct for booking and was placed in a holding cell with other people. I was not provided personal protective equipment. I spent almost 24 hours in custody before I was released the following day at arraignments. I learned at my arraignment that I was charged with resisting arrest and disorderly conduct.
6. Upon release, I went to the emergency room at St. Barnabas Hospital to be seen for my injuries. I was prescribed Motrin for the pain and reported the bruising that I sustained during my violent arrest the night before.

Pursuant to 28 U.S.C § 1746, I declare under penalty of perjury that the forgoing is true and correct.

Dated: New York, New York May 25, 2020

Steven Merete

2

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EXHIBIT 4

Case 1:08-cv-01034-AT Document 757-6 Filed 05/26/20 Page 2 of 4

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

DAVID FLOYD, et al., Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al., Defendants. --------------------------------------------------------------------- X

DECLARATION OF MALIK HARRIS

I, Malik Harris, pursuant to 28 U.S.C § 1746 and subject to the penalties of perjury, state the following is true and correct: 1. I am a 22-year-old Black man who lives in Queensbridge North NYCHA Housing
Complex, in Long Island City, Queens. This is a neighborhood in the City of New York. 2. On May 2, 2020, I was walking with a friend within the confines of the Queensbridge
North Housing complex at approximately 4:45 pm when I approached by plainclothes officers. Upon approach in the courtyard, they asked us where our face masks were. I pulled my disposable face mask up over my mouth and nose. I was then further asked to provide my name and identification. I informed the officers that I did not have a form of identification on me when they abruptly turned me around placed my hands in cuffs behind my back. When I asked officers why I was being arrested, they did not respond. 3. As these officers dragged me by my arm towards the police transport van, people in the vicinity began to gather. One of the officers, who was a rather large man, kneed me in my side and threw me onto a parked vehicle. As I was held down forcibly against the top of

Case 1:08-cv-01034-AT Document 757-6 Filed 05/26/20 Page 3 of 4
this parked car, one of the officers started yelling at the crowd “[d]o you want it? Back up, back up,” while brandishing his taser at myself and at bystanders that began to gather. One bystander was filming this encounter. Additional officers responded, and at least one of the officers that interacted with me was not wearing a mask. Several officers that showed up were either not wearing a mask or wearing a mask incorrectly. At no point did any of these officers allow me to put my own mask on. 4. During this entire time, I was holding my disposable face mask in my hand. 5. I am diagnosed with asthma and require the use of an inhaler. I am considered high risk for potential coronavirus transmission. Because of my medical condition, I take precautions to protect myself against potential exposure to COVID-19 by following CDC guidelines as best as I can. 6. When I arrived at the precinct, the officers took my mask away from me, along with my other personal property, and vouchered it. I was searched illegally and marijuana was recovered from my pocket. One of the officers involved in my arrest taunted me that he was going to allege I assaulted him and told me he hoped I would be remanded. I was placed into a holding cell for over eight hours with handcuffs and leg shackles on until I was transported to central booking. The handcuffs left marks on my wrists. I was not provided a new mask nor soap or hand sanitizer. No soap was available in the bathroom at the precinct either. 7. When I arrived at central booking, I was put into a cell with over 20 over individuals. It was impossible to socially distance from one another. None of us had masks and no masks were provided for us. No soap or hand sanitizer was available either.
2

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8. At my arraignment, almost 24 hours later, I learned that I was being charged with resisting arrest and unlawful possession of a marijuana in the second degree. I pled not guilty on all counts. I was subsequently sent to Rikers Island to await my next court date.
9. Upon admission to Rikers Island, I was placed in general population and shared a dorm with over 50 other men. I was provided one mask for the entire three weeks I was held in detention and I did not have access to soap or hand sanitizer.
10. As of May 22, 2020, the Queens District Attorney’s Office dismissed the charges against me.
11. I am afraid to return to my home after this incident. I am currently seeking mental health counseling to address the trauma I’ve sustained from this police encounter.

Pursuant to 28 U.S.C § 1746, I declare under penalty of perjury that the forgoing is true and correct.

Dated: New York, New York May 25, 2020

Malik Harris

3

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EXHIBIT 5

Case 1:08-cv-01034-AT Document 757-7 Filed 05/26/20 Page 2 of 3

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

DAVID FLOYD, et al., Plaintiffs,

-against-

No. 08 Civ. 1034 (AT)

CITY OF NEW YORK, et al., Defendants. --------------------------------------------------------------------- X

DECLARATION OF KATE REESE

I, Kate Reese, pursuant to 28 U.S.C § 1746 and subject to the penalties of perjury, state the following is true and correct: 1. I am a 28-year-old white woman who lives in Gowanus, in Brooklyn. This is a
neighborhood in the City of New York. 2. On May 3, 2020, at around 6pm in the evening, I was biking around in the Red Hook
neighborhood of Brooklyn. I observed some children biking back and forth. I was biking by one of the large parks by the Ikea store when I observed multiple families gathered in the park. 3. I observed that most of the families gathered in the park appeared to be white while only one or two other families appeared to be black. I observed police officers off towards the side streets. Police asked one family, who appeared to be Hasidic, to disperse, and the apparent patriarch of the family complied and began to collect their things and walk away.

Case 1:08-cv-01034-AT Document 757-7 Filed 05/26/20 Page 3 of 3

4. The officers then walked towards another black family and began a terse exchange with one of the men. The encounter appeared to escalate as two additional officers showed up and asked one of the women to step aside and requested her identification.
5. The only black family in the park was asked to leave as the other families in the park were allowed to remain without any issues.
Pursuant to 28 U.S.C § 1746, I declare under penalty of perjury that the forgoing is true and correct.

Dated: New York, New York May 25, 2020

Kate Reese

18

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EXHIBIT 6

Case 1:08-cv-01034-AT Document 757-8 Filed 05/26/20 Page 2 of 3

From: Sent: To: Cc: Subject:
Jeffrey,

Jonathan C. Moore Wednesday, April 22, 2020 12:49 PM SCHLANGER, JEFFREY; Zimroth, Peter L.; Richard Jerome; Cooper, David (Law); Savasta, Nancy (Law); Nelson, Genevieve (Law); rsundara (rsundara@law.nyc.gov) Dominique Day; Luna Droubi; Lupe Aguirre; Katherine "Q" Adams; Marc Arena; Ian Head; Nahal Zamani; Omar Farah; 'dcharney@ccrjustice.org' Current Police Behavior

We write to raise two issues.

First, as you no doubt heard on the call with CPR, many communities are concerned about police behavior during the COVID‐19 crisis. As counsel for the Plaintiffs in Floyd we too are concerned about this issue. Street encounters related to enforcement of City and State shelter‐in‐place, face‐covering, and social distancing requirements fall squarely within the scope of the liability and remedial orders in this case.

We are therefore requesting the following information:
 Any FINEST messages, operations or interim orders, training bulletins, announcements or training sessions, or other directives or guidance provided to NYPD MOS concerning enforcement of shelter‐in‐ place, face‐covering, and social distancing requirements during the COVID‐19 crisis.
 Information on how these encounters are being documented and associated stop report, summonses, memo book entries and other documentation.
 A sampling of BWC videos that show the NYPD’s enforcement of shelter‐in‐place, face‐covering, and social distancing requirements.
 Information on what kind of supervisory instruction and review is being undertaken regarding the enforcement of shelter‐in‐place, face‐covering, and social distancing requirements.
 Information concerning the number of summonses that have been issued stemming from street encounters involving any reference to shelter‐in‐place, face‐covering, and social distancing requirements.

Second, on a related matter, we would also like to be advised as to whether the SQF training is continuing or has been suspended, as well as whether other training that includes instruction on SQF have been affected by the COVID‐19 crisis.

1

All the best,

Case 1:08-cv-01034-AT Document 757-8 Filed 05/26/20 Page 3 of 3

Jonathan Moore On Behalf of Floyd counsel

2

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EXHIBIT 7

Case 1:08-cv-01034-AT Document 757-9 Filed 05/26/20 Page 2 of 3
From: Jonathan C. Moore [mailto:jmoore@BLHNY.com] Sent: Friday, May 8, 2020 2:14 PM To: SCHLANGER, JEFFREY <JEFFREY.SCHLANGER@nypd.org>; Zimroth, Peter L. <Peter.Zimroth@arnoldporter.com>; Richard Jerome <richard.jerome94@gmail.com>; Cooper, David (Law) <dcooper@law.nyc.gov>; Savasta, Nancy (Law) <nsavasta@law.nyc.gov>; Nelson, Genevieve (Law) <gnelson@law.nyc.gov>; rsundara (rsundara@law.nyc.gov) <rsundara@law.nyc.gov> Cc: Dominique Day <DDay@BLHNY.COM>; Luna Droubi <LDroubi@BLHNY.com>; Lupe Aguirre <laguirre@ccrjustice.org>; Katherine "Q" Adams <QAdams@BLHNY.COM>; Marc Arena <MArena@BLHNY.COM>; Ian Head <ihead@ccrjustice.org>; Nahal Zamani <nzamani@ccrjustice.org>; Omar Farah <ofarah@ccrjustice.org>; 'dcharney@ccrjustice.org' <dcharney@ccrjustice.org>; Jonathan C. Moore <jmoore@BLHNY.com> Subject: RE: Current Police Behavior
May 8. 2020
Jeffrey,
We write again to raise our concerns about current police behavior during the current Covid 19 crisis that we raised with you now over two weeks ago. The article which we have affixed below, as well as other incidents which have been widely reported in the media, raises serious issues concerning whether the NYPD is currently engaged in street encounters that run afoul of P.G. 203­25 and P.G. 212­11, not to mention the injunction which was issued in Floyd.
Please provide responses to our April 22nd email by COB Monday, May 11th. Failing that we will look into other options.
For the Floyd Plaintiffs,
Jonathan Moore

Case 1:08-cv-01034-AT Document 757-9 Filed 05/26/20 Page 3 of 3
From: Jonathan C. Moore [mailto:jmoore@BLHNY.com] Sent: Friday, May 8, 2020 2:59 PM To: SCHLANGER, JEFFREY <JEFFREY.SCHLANGER@nypd.org>; Zimroth, Peter L. <Peter.Zimroth@arnoldporter.com>; Richard Jerome <richard.jerome94@gmail.com>; Cooper, David (Law) <dcooper@law.nyc.gov>; Savasta, Nancy (Law) <nsavasta@law.nyc.gov>; Nelson, Genevieve (Law) <gnelson@law.nyc.gov>; rsundara (rsundara@law.nyc.gov) <rsundara@law.nyc.gov> Cc: Dominique Day <DDay@BLHNY.COM>; Luna Droubi <LDroubi@BLHNY.com>; Lupe Aguirre <laguirre@ccrjustice.org>; Katherine "Q" Adams <QAdams@BLHNY.COM>; Marc Arena <MArena@BLHNY.COM>; Ian Head <ihead@ccrjustice.org>; Nahal Zamani <nzamani@ccrjustice.org>; Omar Farah <ofarah@ccrjustice.org>; 'dcharney@ccrjustice.org' <dcharney@ccrjustice.org> Subject: RE: Current Police Behavior
Jeff,
Sorry. The referenced article is attached below.
Jonathan
https://www.nytimes.com/2020/05/07/nyregion/nypd­social­distancing­race­coronavirus.html? referringSource=articleShare

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EXHIBIT 8

Case 1:08-cv-01034-AT Document 757-10 Filed 05/26/20 Page 2 of 2

From: Sent: To: Cc:
Subject:

Darius Charney <dcharney@ccrjustice.org> Friday, May 22, 2020 11:42 AM Sundaran, Raju (Law); SCHLANGER, JEFFREY; Cooper, David (Law) Jonathan C. Moore; Richard Jerome; Savasta, Nancy (Law); Nelson, Genevieve (Law); Dominique Day; Lupe Aguirre; Katherine "Q" Adams; Marc Arena; Ian Head; Omar Farah; Stoughton, Corey; Lee, Jin Hee; Audain, Raymond; Borchetta, Jenn Rolnick; Grace Li; Zimroth, Peter L. Re: Current Police Behavior

Raju, Jeff, David‐
Given Floyd Plaintiffs' ongoing concerns that the NYPD's recent social distancing enforcement efforts run afoul of the requirements of the Court's prior orders in Floyd, which we have raised with the City and Monitor several times over email and in All‐Parties Zoom meetings over the past month, I am writing to notify you that Floyd Plaintiffs intend to move the Court by order to show cause early next week for an emergency order that:
 Finds the NYPD's social distancing enforcement practices to be in violation of the Court's prior orders  Directs the Monitor to conduct an expedited investigation and evaluation of the NYPD's social distancing
enforcement practices and report his findings to the parties, the Court, and the public  Enjoins the NYPD from conducting any further social distancing enforcement pending the completion of the
Monitor's investigation and a determination by the Court of whether and how the NYPD can conduct social distancing enforcement in a manner consistent with the Court's prior orders; and  Directs the City to produce all of the social distancing enforcement‐related discovery requested by Floyd Plaintiffs on April 22.
Pursuant to Judge Torres' Individual Rules, Floyd Plaintiffs ask that you let us know by close of business this afternoon whether you consent to the order Plaintiffs will seek from the Court.
Darius (on behalf of the Floyd Team)

‐‐
Darius Charney Senior Staff Attorney
Pronouns: He/Him
Center for Constitutional Rights | Justice takes a fight. 666 Broadway, 7th Floor New York, NY 10012 212.614.6475
ccrjustice.org | facebook | twitter | instagram | linkedin

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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; and
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 Attorney’s 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:
(i) complainant or witness failed to positively identify defendant; or (ii) incorrect or missing paperwork; or (iii) insufficient evidence; or (iv) lack of element of crime; or (v) lack of jurisdiction; or (vi) lack of nexus between defendant and crime; or (vii) mere presence of defendant at location; or (viii) no personal observation of violation by arresting officer; or (ix) potential search and seizure issues; or (x) unavailability of arresting officer; or
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(xi) prosecutorial discretion; or (xii) summonsable offense. b. From the Office of Court Administration and the United States Attorney’s Offices for the Eastern and Southern Districts of New York, suppression decisions in which evidence was precluded as a result of court findings of unlawful stops and searches from state and federal criminal proceedings, juvenile delinquency proceedings, and child abuse and neglect proceedings. The following types of documents and information shall be obtained, preferably as digitized automated data, to the extent that they are available: (i) Aggregate data and individual records of all suppression hearings
and/or decisions in which a decision was made to suppress evidence, including the names of police officers and supervisors on the scene at the time of the encounter and/or police officers testifying about the encounter; and (ii) transcripts of suppression hearings; and (iii) written opinions or decisions, if available, concerning suppressed evidence. When required by New York State law, the NYPD shall file an unsealing application to obtain the above information in this section. The NYPD shall request that the Office of Court Administration and relevant personnel in the U.S. Attorney’s offices work with the NYPD to develop standard, efficient, and mutually acceptable procedures to ensure these data are routinely provided and shall approach the Court if external obstacles impede this obligation.
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c. From the District Attorney’s Offices, New York City Law Department, and the United States Attorney’s Offices for the Eastern and Southern Districts of New York, judicial decisions finding a police officer not credible, including from state and federal criminal proceedings, juvenile delinquency proceedings, and child abuse and neglect proceedings. The following types of documents in cases regarding court findings of incredible testimony shall be obtained, to the extent that they are available:
(i) Aggregate data and individual records of all court findings of incredible testimony, including the names of police officers and supervisors on the scene at the time of the encounter and/or police officers testifying about the encounter; and
(ii) transcripts of hearings regarding court findings of incredible testimony; and
(iii) written opinions or decisions regarding court findings of incredible testimony.
When required by New York State law, the NYPD shall file an unsealing application to obtain the above information in this section.
d. From the New York City Law Department, in any civil lawsuit alleging an unconstitutional stop, unconstitutional trespass enforcement, or racial profiling, including racial slurs, and if the Law Department declined to indemnify or represent a police officer, the civil complaint, notices of claim, and the declination letter. The NYPD shall also solicit from the Law Department the general basis for the declination of indemnification or representation, and identification of material(s) that directly underlie the general basis, to
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the extent that information is not protected from disclosure by operation of law or applicable privilege.
(i) In this order, the term “racial profiling” means police action initiated with race, color, ethnicity, or national origin as a motivating factor.
(ii) In this order, the term “racial slur” includes offensive language, and derogatory remarks or gestures, based on race, color, ethnicity, or national origin.
e. From the New York City Law Department, in any civil lawsuit or settlement alleging an unconstitutional stop, an unconstitutional trespass enforcement, or racial profiling, including racial slurs, where there has been a judgment or settlement against a police officer, and where there exists evidence that that police officer violated a rule or regulation of the NYPD, identification of such evidence, including, but not limited to, notices of claims and civil complaints, to the extent that the evidence is not protected from disclosure by operation of law or applicable privilege.
2. All such information in paragraph 1 shall be entered into computerized relational databases and commands shall be notified in the event of: (a) declinations of prosecution by the District Attorney’s Offices; (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) declinations of indemnification and/or representation of police officers by the New York City Law Department as described in paragraph 1(d) above; and (e) judgments and settlements against police officers in civil cases as described in paragraph 1(e) above.
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3. The NYPD shall systematically assess the following categories of information in

the manner described herein:

a. The NYPD shall utilize an Early Intervention Committee (“Committee”) to

systematically assess information regarding adverse findings on the conduct of police

officers involving illegal stops, illegal trespass enforcements, or racial profiling, including

racial slurs. The Committee shall be comprised of executive-level personnel representing

the Deputy Commissioner of Legal Matters, the Deputy Commissioner of Equity and

Inclusion, the Deputy Commissioner of Risk Management, the Chief of Department, the

Chief of Detectives, the Chief of Patrol, and the Chief of Personnel. The Committee must

convene no less than once every three months.

b. The NYPD shall designate personnel to compile the above categories of

information on a regular basis and identify police officers who may require early

intervention (“Subject Officers”). The designated NYPD personnel shall enter the

compiled information into a database, and ensure that the compiled information is

transmitted to the Committee.

c.

The Committee shall set forth a written policy for the evaluation of the

information collected with sufficient detail to guide its assessments of individual officers

and the extent and manner of intervention to be applied. The policy should allow for a

range of appropriate remedial measures including, but not limited to:

(i) refresher trainings;

(ii) mentoring;

(iii) monitoring;

(iv) enhanced supervision;

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(v) change of assignment;

(vi) health and wellness referral; and

(vii) referral for potential disciplinary action to an internal NYPD bureau, or

for criminal investigation to an external agency, such as a District

Attorney’s Office.

The policy shall provide flexibility to tailor interventions to each Subject Officer’s

circumstances. The policy shall contain guidelines to ensure consistent, fair, and

proportionate outcomes. The policy shall be posted on the NYPD public website.

d. The Committee shall track metrics to measure performance of the program,

including: (a) number of police officers assessed, categorized by type of threshold

triggered; (b) number of police officers who triggered the early intervention system

mechanism more than once; (c) number of interventions or remedies directed, categorized

by type and duration; (d) number of police officers successfully completing written action

plans referred to in paragraph 4.d; (e) number of police officers subject to early intervention

who continued to be flagged for monitoring once the recommended intervention was

complete; (f) number of police officers who become the subject of Civilian Complaint

Review Board or NYPD investigations, or lawsuits, after entry into the program; and (g)

number of police officers terminated or placed on dismissal probation after entry into the

program. The NYPD shall report on these metrics quarterly. The quarterly reports shall

be statistical and summary in nature without identifying characteristics, and shall be

publicly available.

e.

The Committee, in consultation with the Monitor and available to Plaintiffs

prior to adoption, shall develop a program for systematically receiving and assessing

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information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements for consideration in officer performance evaluations, transfer requests and discretionary promotional decisions. Such assessments and relevant information shall be provided to the Police Commissioner, or the Police Commissioner’s designee(s), for consideration by personnel making performance evaluations, transfer or discretionary promotional decisions, on a case by case basis, as the Police Commissioner deems appropriate.
f. The Committee must assess a Subject Officer’s need for early intervention when a Subject Officer crosses designated thresholds. A Subject Officer crosses a designated threshold when he or she:
(i) receives three or more declinations of prosecution relating to the categories specified in paragraph 1(a)(i)-(xii) in a twelve-month period; or
(ii) receives a suppression decision in a case in which evidence was precluded as a result of an allegation of an unlawful stop, frisk, search, trespass enforcement or racial profiling, including racial slurs; or
(iii) receives a court finding of incredible testimony; or (iv) is a named defendant in a lawsuit and the New York City Law
Department has declined to represent the Subject Officer; or (v) is a named defendant in a lawsuit and the New York City Law
Department has declined to indemnify the Subject Officer; or (vi) is a named defendant in any lawsuit alleging an unconstitutional stop,
an unconstitutional trespass enforcement, or racial profiling or racial
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slurs where there has been a judgment or settlement against a police officer, and where there exists evidence that the police officer violated a rule or regulation of the NYPD; or (vii) receives any complaint containing an allegation of racial profiling or racial slurs. 4. The NYPD shall systematically act on the following categories of information in the manner described herein: a. The Committee shall determine if intervention with respect to a Subject Officer is appropriate after reviewing: (1) all relevant details pertaining to the underlying facts of the incident or incidents that caused the Subject Officer to cross a threshold; (2) the Subject Officer’s disciplinary history and performance monitoring; (3) the Subject Officer’s tenure with the NYPD; (4) the Subject Officer’s performance evaluations; (5) the Subject Officer’s past and current assignments; and (6) whether the Subject Officer has appeared before the Committee more than once. The Committee may also utilize or consult with other NYPD resources, such as a NYPD health and wellness representative or the commander of the Training Academy. When appropriate, the Committee shall select from a range of interventions, including, but not limited to: (i) refresher trainings; (ii) mentoring; (iii) monitoring; (iv) enhanced supervision; (v) change of assignment; (vi) health and wellness referral; and
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(vii) referral for potential disciplinary action to an internal NYPD bureau, or for criminal investigation to an external agency, such as a District Attorney’s Office.
b. 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. This shall include any relevant or associated case materials obtained or received by the Early Intervention Committee, the Adverse Credibility Committee, any of their constituent members, or any other bureau or office within the NYPD. Where relevant information exists, it shall factor into the decision-making of the Committee, be associated with the Subject Officer in the computerized database, and be considered in connection with any early intervention determination.
c. The Committee, before making its decision, shall ask the commanding officer or their designee for their recommendation on what early intervention would be effective and, if there had been any prior efforts at interventions, their effectiveness.
d. The Committee, within seven business days of making a decision, shall communicate the appropriate intervention to the Subject Officer’s commanding officer, along with any other relevant internal stakeholders, in a written action plan, and return a copy of the written action plan to the Risk Management Bureau (“RMB”). RMB must file the written action plan in a database in a manner that permits analysis in the aggregate. In the event that the Committee determines that no intervention is required, RMB shall log the non-intervention in a database.
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 Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 1 of 125
Eleventh Report of the Independent Monitor Peter L. Zimroth
October 28, 2020
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 2 of 125
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long John MacDonald James McCabe
Jane Perlov James Yates

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Table of Contents Page
I. INTRODUCTION...........................................................................................................1 II. GUIDELINES FOR SUBSTANTIAL COMPLIANCE ...................................................5 III. WRITTEN POLICIES.....................................................................................................7
A. Stop and Frisk Policies.........................................................................................7 1. Compliance Assessment—Written Stop and Frisk Policies and Implementation ........................................................................................8
B. Stop Report Form...............................................................................................12 1. Compliance Assessment—Stop Report Form and Implementation..........13 a. CCRB Reports of Other Misconduct Noted (OMN) ....................14 b. RAND Audits, Command RAND Audits, Automated RAND Audits .........................................................................................15 c. Police-Initiated Enforcement (PIE) Audits ..................................16 d. Supervisory Review of BWCs.....................................................16 e. RISKS Reviews ..........................................................................17 f. Discipline and Correction of Officers with Unreported Stops ......18
C. Racial Profiling Policies.....................................................................................19 1. Assessing Compliance—Racial Profiling Policy.....................................19
D. Davis/NYCHA Interior Patrol Policies...............................................................24 1. Compliance Assessment—NYCHA Interior Patrol Policy ......................24 a. Reviews of Stops at NYCHA Properties .....................................25 b. Review of Trespass Arrests at NYCHA Properties......................26 c. Review of BWC Videos at NYCHA Properties...........................27
E. Trespass Affidavit Program (TAP) Policies........................................................32
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1. Compliance Assessment—TAP Policies.................................................33 a. Reviews of Stops at TAP Locations ............................................34 b. 2019 Trespass Arrests at TAP Locations .....................................35 c. Review of BWC Videos at TAP Locations..................................35
2. Compliance Assessment—TAP Administration......................................40 a. Patrol Borough Bronx .................................................................40 b. Patrol Borough Manhattan North ................................................42
F. Trespass Crimes Fact Sheet (TCFS) ...................................................................43 1. Compliance Assessment—TCFS ............................................................44
G. Business Card Requirement ...............................................................................44 IV. SUPERVISION.............................................................................................................45
1. Compliance Assessment—Supervision ...................................................45 V. TRAINING ...................................................................................................................51
A. In-Service Stop and Frisk and Racial Profiling Training.....................................51 1. Compliance Assessment—In-Service Training for Stop and Frisk and Racial Profiling ......................................................................................52
B. Training for Newly Promoted Supervisors .........................................................59 1. Compliance Assessment—Newly Promoted Supervisor Training ...........59
C. Housing Training ...............................................................................................59 1. Compliance Assessment—In-Service Housing Training .........................60
D. Training for Investigating Profiling and Biased-Based Policing Complaints.......61 1. Compliance Assessment—Training for Investigating Profiling and Biased-Based Complaints .......................................................................62
E. Basic Plainclothes Course ..................................................................................63 1. Compliance Assessment—Basic Plainclothes Course .............................63
F. Recruit Training—Policing Legally ...................................................................64
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1. Compliance Assessment—Recruit Training—Policing Legally ..............65 G. Recruit Training—Policing Impartially ..............................................................65
1. Compliance Assessment—Recruit Training—Policing Impartially .........66 H. Recruit Training—Characteristics of Armed Suspects ........................................66
1. Compliance Assessment—Recruit Training—Characteristics of Armed Suspects .................................................................................................67
I. Recruit Training—Interior Patrol at NYCHA and TAP Locations ......................67 1. Compliance Assessment—Recruit Training—Interior Patrol ..................67
J. Field Training Guide and FTO training ..............................................................68 1. Compliance Assessment—Field Training Guide and FTO Training........68
K. Refresher Training Course for Investigative Encounters.....................................69 1. Compliance Assessment—Refresher Training Course for Investigative Encounters.............................................................................................. 69
VI. BODY-WORN CAMERAS ..........................................................................................70 A. Precinct-Level BWC Pilot..................................................................................70 1. Supervisory Review of BWC Videos......................................................70 2. Preserving BWC Videos for Investigation of Complaints........................71 3. Compliance Assessment—Precinct Level BWC Pilot .............................73 B. PSA BWC Pilot .................................................................................................73 1. Compliance Assessment—PSA BWC Pilot ............................................73
VII. PERFORMANCE EVALUATIONS .............................................................................74 1. Compliance Assessment—Performance Evaluations...............................75
VIII. AUDITING ...................................................................................................................77 A. QAD Auditing of Stop Reports and Activity Logs..............................................78 B. Monitor Team Review of Stop Report Audits.....................................................80 C. QAD Audits of BWC Videos Associated with Stop Reports and Arrests............81
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D. QAD Audits for Undocumented Stops ...............................................................83 1. RAND Audit Results ..............................................................................83 2. Results from PIE Audits .........................................................................85
E. QAD Auditing of Trespass Crimes Fact Sheets ..................................................86 1. Compliance Assessment—Auditing........................................................87
IX. EARLY INTERVENTION SYSTEM............................................................................89 A. The Early Intervention Committee .....................................................................90 1. Compliance Assessment—Early Intervention System .............................93
X. COMPLAINTS AND DISCIPLINE ..............................................................................93 A. NYPD Investigations of Profiling Allegations....................................................93 1. Compliance Assessment—Racial Profiling Investigations ......................95 B. NYPD Handling of Substantiated CCRB Cases..................................................96 1. NYPD Discipline and Penalties Imposed ................................................96 2. DAO Reconsideration Requests..............................................................98 3. Compliance Assessment—DAO Handling of Substantiated CCRB Cases .................................................................................................... 100 C. Other Misconduct Noted; Failure to Complete Stop Report .............................. 101
XI. ALTERNATIVE TO COMBINED PILOT..................................................................102
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ELEVENTH REPORT OF THE INDEPENDENT MONITOR I. INTRODUCTION
This, the Monitor’s 11th Report, comes at a time of extraordinary stress for the people of New York City, the New York City Police Department (NYPD or Department), and the relationship between the NYPD and the communities it polices, especially communities of color. The causes of the stress are many, but the most prominent ones stem from the coronavirus pandemic, the police-involved death of George Floyd in Minneapolis and others, and longstanding concerns about police misconduct in communities of color.
The first confirmed case of coronavirus was announced on March 1, 2020, and shortly after, it was clear that the virus, with its related disease, COVID-19, was both deadly and tremendously contagious. On March 7, 2020, Governor Andrew Cuomo declared a disaster emergency for the state (Executive Order 202); on March 18, Governor Cuomo prohibited any gathering with 50 or more participants, and closed bars, restaurants, gyms, and entertainment venues (Executive Order 202.6); on March 20, the Governor required employees, other than essential workers, to work from home (Executive Order 202.8); and on April 15, he required persons to wear masks when out in public (Executive Order 202.17). Mayor Bill De Blasio declared a state of emergency on March 12 (Executive Emergency Order 98); closed restaurants, bars, and entertainment venues on March 14 (EEO 100); and ordered businesses to have their employees work from home except for essential services (EEO 103) on March 25. Until May 15, the NYPD had the responsibility of enforcing these executive orders, including social distancing and face-covering; thereafter, that responsibility was shifted to the New York City Sheriff.
Police officers, as essential workers, could not stay at home, but continued reporting to their commands and patrolling. By April 6, 2020, it was reported that almost 7,000 uniformed
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members of NYPD, about 19% of the force, were out sick.1 The number of COVID-19 patients skyrocketed, emergency room and ICU hospital beds were in short supply, and the number of persons on mechanical ventilators increased. By April 11, many officers were returning to work and more NYPD members were coming back to work than were going out sick.
The death of George Floyd on May 25, 2020, sparked protests and demonstrations across the country, demanding changes in the way policing is conducted, with New York City experiencing some of the largest marches and demonstrations. Protests and demonstrations have continued in New York City almost daily since then. Four officers of the Minneapolis Police Department were charged by the Minneapolis attorney general in connection with Mr. Floyd’s death—one with second-degree murder and three others with aiding and abetting second-degree murder and aiding and abetting manslaughter.
In June, the New York State Legislature enacted and Governor Cuomo signed ten bills on police reform. The reforms include, among others: (a) repealing of Section 50(a) of the New York Civil Rights Law, which had been preventing the release of law enforcement disciplinary records (S.8496/A.10611); (b) establishing criminal penalties for chokeholds causing death or serious injury (S.6670-B/A.6144); (c) requiring officers to provide medical and mental health assistance to civilians when needed (S.6601-A/A8226); (d) requiring officers in New York State to wear body-worn cameras (BWCs) (S.8493/A.8774); and (e) appointing the state Attorney General as the independent prosecutor for police-involved deaths (S.2574-C/A.1601).2
1 Since March 12, 2020, 4,644 NYPD members have tested positive for COVID-19 (approximately 12 percent of the Department’s sworn officers). 2 See https://www.governor.ny.gov/news/governor-cuomo-signs-say-their-name-reform-agendapackage; https://www.governor.ny.gov/news/governor-cuomo-signs-policing-reform-legislation. Other legislation creates a Law Enforcement Investigative Office (S.3595-C/A.10002); requires officers to report firearms discharges within six hours ((S.2575-B/A.10608); requires the New
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The City Council passed its own legislation, some overlapping with the state’s and some going beyond. For example, chokeholds were made a crime punishable by up to a year in jail, as were other methods of restraint that restrict breathing or blood flow. The City legislation applies regardless of whether there is any injury, whereas the state criminal penalty applies only in cases of serious injury or death. The City Council also passed legislation requiring the NYPD to develop a disciplinary matrix that outlines penalties for misconduct violations. In addition, the Mayor and the City Council agreed on changes to the New York City budget, including moving school resource officers from the NYPD to the Department of Education in FY2022, eliminating a new class of police recruits that would have brought on an additional 1,000 officers, and introducing a $268 million cap on police overtime costs.
The NYPD itself also has made changes to its policing strategies. On June 15, Police Commissioner Shea announced the elimination of the plainclothes anti-crime units at precincts and other commands. Approximately 600 officers previously in these anti-crime units have been transitioned to new assignments. In his press conference announcing this step, Commissioner Shea said: “We welcome reform, but we also believe that meaningful reform starts from within.” He said that it was “time to move forward and change how we police in this city. We can do it with brains, we can do it with guile. We can move away from brute force.”
News stories, editorials, and opinion pieces have filled the print media, television and cable networks, the internet and social media with prescriptions on how to change policing and the
York State Courts to compile and publish racial and other demographic information on low-level offenses (S.1830-C/A.10609); affirms the right to record law enforcement activity (S.3253A/A.1360) and prohibits race-based 911 calls (S.8492/A.1531). https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-requiring-new-york-statepolice-officers-wear-body-cameras-and; https://www.governor.ny.gov/news/governor-cuomosigns-legislation-affirming-right-record-law-enforcement-activity.
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NYPD. It is not the proper role of the Monitor to weigh in on these policy debates. No matter how they are ultimately resolved, however, that resolution will have to include adherence to the Constitution. And, insofar as stop, question and frisk and trespass enforcement are involved, that is the proper role of the Monitor. That is the focus of this Report.
This is the Monitor’s 11th report on the City’s compliance with the Court-ordered requirements. It covers data and information about NYPD policing in 2019 and, where data is available, policing in the first quarter of 2020. Reported stops in 2019 rose to 12,958 from 11,238 in 2018. The Monitor believes this is because of an increase in officers reporting their stops and not an increase in stops made by NYPD officers. Reported crime in 2019 also decreased from 2018 (0.8%). Since the 10th Report of the Monitor, a number of other changes of interest to the monitorship have occurred:
• The Court issued an order setting out the requirements for the NYPD’s Early Intervention System (EIS)
• The NYPD’s 2020 Auditing Plan was approved by the Court • The NYPD has trained the vast majority of patrol officers and sergeants and lieutenants on
stop and frisk policies • The NYPD conducted one-day training for all Housing Bureau officers • The NYPD has proposed a Disciplinary Matrix outlining penalties for misconduct
violations • The NYPD has completed the Fair and Impartial Policing training for its members • In September 2020, the NYPD ended the Trespass Affidavit Program (TAP), in which
officers conducted routine vertical patrols in certain private multi-unit residences. • The Police Academy class of recruit officers planned to begin in April 2020 was cancelled
because of the coronavirus; the new Academy recruit class that was to begin in July was cancelled after the City Council passed its budget in July 2020. As noted above, policing now in 2020 looks different than policing in 2019, as a result of both COVID-19 and the deaths of George Floyd and other Black Americans. Arrests and
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summonses in the first quarter of 2020 went down by 22 percent and 16 percent, respectively, compared to the first quarter of 2019. Reported stops in April 2020 were 31 percent fewer than in April 2019. The City also has seen a spike in shootings and homicides since June of 2020. Even with the decreases seen in March and April, the number of shootings and homicides in the first six-months of 2020 is higher than they were in 2019, following a trend affecting many other U.S. cities. The next report of the Monitor will be able to report on how those changes have impacted stop and frisk and trespass enforcement data and practices, and NYPD compliance with the Court’s orders.
Organization of the Report This report is organized in the following fashion. Section II describes the summary appendix listing the Court’s requirements and the Monitor’s assessment of each requirement. In Section III, the report describes the Court-ordered requirements for written policy changes pursuant to the Floyd remedial order and the Ligon and Davis settlements and then, for each policy requirement, reviews the efforts made by the Department to implement the policies in practice, and the Monitor’s assessment of those efforts. After written policies, the report covers the requirements for compliance, the efforts made by NYPD to comply, and the Monitor’s assessment of those efforts for the following topics: Supervision (IV), Training (V), Body-Worn Cameras (VI), Performance Evaluation (VII), Auditing (VIII), Early Intervention System (IX), and Complaints and Discipline (X). Section XI describes the City’s proposed alternative to the Courtordered pilot study to test the impact of two policy changes that the facilitator recommended. II. GUIDELINES FOR SUBSTANTIAL COMPLIANCE One of the first tasks set out for the Monitor by the Court was to specify for the City the milestones that the NYPD must achieve to demonstrate substantial compliance with the Court’s requirements. Although general milestones were established early in the monitorship, the Monitor
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and his team then worked with the parties to detail each requirement and establish the benchmarks and standards the Monitor would use to determine compliance, including what sources of information the Monitor would use and what kinds of analysis and metrics would be used to evaluate compliance. In the 10th Report, the Monitor included an Excel spreadsheet listing more than 90 separate tasks and for each task, the text from which the requirement is derived, the definition of compliance, the methodology for assessing compliance, and the data needed for the Monitor’s compliance review. For this 11th Report, the Monitor has included a column setting forth his view for each task as to whether the City has done the work necessary to meet the definition of compliance for that task. (Appendix A) The terms listed are as follows:
In Compliance. The NYPD has met the definition of compliance for this requirement at this time. The Monitor’s responsibility will be to assess whether compliance is maintained and whether it is having the desired effect of meeting the fundamental goals of the Courtordered reforms. Partial Compliance. The NYPD has made progress in implementing the requirement, but has not reached the level necessary for compliance, or there are additional steps that the Department needs to take to meet the definition of compliance. Not Yet in Compliance. The NYPD has more work to do to implement the requirement, the level of non-compliance is too high, and there are additional steps the NYPD needs to take to meet the definition of compliance. It should be noted that even where a task is listed as “In Compliance,” that does not mean that the work for that task is complete, or that the Monitor will no longer assess whether the task is in compliance. Compliance needs to be sustained over time. In addition, even written policies that have been approved by the Court (and thus deemed to be in compliance with a requirement that the policy be developed) may need to be reexamined, if the Monitor determines that the policies were insufficient to achieve constitutional stops. The individual requirements are part of a broader assessment of whether the NYPD is in substantial compliance with the overriding requirements of the remedial order—whether there is
6

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lawful policing under the Fourth and Fourteenth Amendments. If there are individual incidents of non-compliance, the Monitor will assess whether they have been identified and corrected through instruction, retraining, and, when appropriate, discipline. As stated in the Monitor’s Seventh Report, “[t]he question at the end of the day will be whether each of the remedial measures, working together, provides a system of constitutional, respectful policing.” III. WRITTEN POLICIES
A. Stop and Frisk Policies The NYPD’s written policy regarding stop, question and frisk is detailed in Section 21211 of the Patrol Guide, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops. This Patrol Guide section describes the procedure to be followed when an officer stops a person based on reasonable suspicion that the person has committed, is committing, or is about to commit a felony or Penal Law misdemeanor. The Court in Floyd recognized that the practice, known as “stop and frisk” or “stop, question and frisk,” can be an important tool to further public safety. The Court ruled, however, that to comply with the Constitution, the Department needed to make the following changes to the Patrol Guide: • The Patrol Guide must state what constitutes a stop; when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted. • The Patrol Guide must include a definition of “reasonable suspicion,” the standard needed for a stop. • The Patrol Guide must state clearly that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person. • The Patrol Guide must require officers to document the stop and articulate the circumstances that gave them reasonable suspicion for the stop, and, if conducted, for the frisk. • The Patrol Guide must require supervisory review of stops, including review of the constitutionality of the stop, and not just that a stop report form was filled out.
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1. Compliance Assessment—Written Stop and Frisk Policies and Implementation
In August 2015, the Court approved a new Patrol Guide section on stop and frisk, P.G. 212-11. The Patrol Guide also addresses investigative encounters between officers and civilians that are less intrusive than stops or arrests. These encounters are governed by People v. DeBour, which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures in P.G. 212-11 describe the standards that govern each level.
There have been several changes to P.G. 212-11 since it was first approved by the Court in 2015. In March 2016, the Court approved changes to P.G. 212-11 to reconcile the procedures with the new stop report form. Additional changes were made when the stop report became electronic. In October 2018, the Department proposed and the Court approved changes to P.G. 212-11 to comply with the Right to Know Act enacted by the City Council. These laws require officers in certain nonemergency encounters to identify themselves by name, rank, and command, explain the reason for the stop, and offer business cards if no one is arrested or issued a summons. They also require officers to inform people of their right not to consent to a search if consent would be necessary to perform the search.
The NYPD revised its policies to comply with the Court’s orders and the Court has approved those changes. The City is in compliance with this requirement of the court orders (Task 1a).
As we have stated in prior reports, changing written policy is not meaningful unless the change is implemented and sustained in the field. It is the Monitor’s role to assess whether the policies are being implemented in practice. Stops made by NYPD officers must comply with
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NYPD’s new policies and with federal and state standards. Officers must articulate reasonable suspicion for the stop and the frisk, if conducted, and articulate a justifiable basis for the search, if conducted. Stop reports that do not articulate reasonable suspicion should be identified by the Department and corrective action taken with respect to both the relevant officers and their supervisors.
Starting in the fourth quarter of 2016, the monitor team has obtained samples of stop reports to review. The stop reports are evaluated by three members of the monitor team and any disagreements, either among the monitor team or between the monitor team and the NYPD’s assessment of the stop reports, are reviewed by the Monitor and Deputy Monitor. The stops are then discussed in monitor team meetings, and the results sent to the NYPD, which meets with the monitor team to discuss those cases in which there is a disagreement between the Department’s and the Monitor’s assessment.
In making assessments of stops, the monitor team members review the stop report, the activity log, and any associated ICAD3 printout (the radio dispatch). The team member examines the officer’s narrative describing the circumstances that led to the stop, as well as what the officer listed as the crime suspected, to determine whether the officer articulated reasonable suspicion of a felony or Penal Law misdemeanor. If a frisk and/or a search was conducted, the team member reviews the officer’s narrative describing the circumstances of the frisk and/or the search to assess whether the officer had reasonable suspicion that the person stopped was armed and dangerous, justifying a frisk, or if the officer had a justifiable legal basis for the search. Starting in 2018, monitor team members have also reviewed the BWC video of the encounter, if the officer making
3 ICAD means Intergraph Computer-Aided Dispatch. 9

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the stop had a BWC, to assess whether the stop report narratives were consistent with the BWC video.
For stops in 2019, the monitor team has reviewed the BWC video of all of the stop reports. monitor team members then make two different assessments: (1) taking the stop report, BWC video, and ICAD dispatch into account, was the stop, frisk, and search constitutional; and (2) did the stop report on its face articulate reasonable suspicion for the stop, reasonable suspicion for the frisk, if conducted, and a legal basis for the search, if conducted. It is important to note that there are Level 3 encounters where the ICAD printout and BWC video show that the officer had reasonable suspicion for the stop, but the stop report did not sufficiently articulate reasonable suspicion. A common example is where the officer makes a stop based on a verified call with a specific, detailed description of the suspect, but the stop report does not include the description (e.g., simply states “fit description”). The stop was a proper stop with reasonable suspicion, but the stop report would be listed as not in compliance because it did not articulate the basis for the stop. The opposite also occurs; an officer could write the stop report and articulate an appropriate stop based on reasonable suspicion, but other sources, such as the BWC footage and the ICAD printout, might show that the stop was not in fact based on reasonable suspicion. The court’s Remedial Order requires both that the stop be a legal stop and that the stop report articulate reasonable suspicion in the officer’s narrative.
Chart 1 below reports on the Monitor’s assessment of stop reports from the fourth quarter of 2016 to the fourth quarter of 2019. For each quarter, the chart shows the number of stop reports that the monitor team reviewed and, in the third column, the number and percentage of stop reports that the monitor team determined articulated reasonable suspicion for the stop. The fourth column is the number of stop reports reviewed in which a frisk was conducted, and the fifth column reports
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the number and percentage of stop reports that articulated reasonable suspicion that the person

stopped was armed and dangerous. The sixth column reports the number of stops that included a

search, and the seventh column reports the number and percentage of stop reports that the monitor

team determined articulated a justification for the search. The Monitor’s assessment of stops

included only stops for which there was a stop report, and does not account for stops that were not

reported; see Section III.B below for discussion of undocumented stops.

As can be noted in the chart below, the level of compliant stop reports has improved over

time. This is particularly true for whether the officer articulated reasonable suspicion for the stop,

which occurred in a little over 80 percent of stops for the second half of 2018 compared to less

than 60 percent in the first half of 2017. The NYPD maintained that level of compliance in 2019

(79%). The percentage of officers who articulated reasonable suspicion that the person stopped

was armed and dangerous (necessary for a frisk), or justification for the search, has also increased

over time, although the level of compliance was fairly high even in the fourth quarter of 2016.4

Chart 1. Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017

Monitor Team Review of Stop Reports 4Q 2016 through 4Q 2019

# Stop Reports Reviewed by Monitor Team

Stop Reports That Articulate Reasonable Suspicion

# Stop Reports in Which Suspect Was Frisked

Stop Reports that Articulate Reasonable Suspicion for the Frisk

# Stop Reports Where Suspect Was Searched

for the Stop

261

121 (46%)

146

111 (76%)

67

256

142 (55%)

145

302

178 (59%)

176

114 (79%)

79

143 (81%)

91

312

188 (60%)

179

146 (82%)

87

305

212 (70%)

171

153 (89%)

107

Stop Reports that Articulate Justification for the Search
56 (84%) 68 (86%) 73 (80%) 76 (87%) 101 (94%)

4 As noted, Chart 1 details the monitor team’s assessments of stop reports and associated documents (activity logs and ICAD printouts). The monitor team’s preliminary assessment of stops, based on a review of 2019 stop reports that also had associated BWC videos, indicated that a small percentage of stops did not have a legal basis even though the stop report narrative articulated reasonable suspicion. However, a larger percentage (though still small) of stops appeared to be legal even though the stop report narrative did not articulate reasonable suspicion for the stop. Future monitor reports will discuss this issue in more detail.

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Quarter
1Q2018 2Q2018 3Q2018 4Q2018 1Q2019 2Q2019 3Q2019 4Q2019

# Stop Reports Reviewed by Monitor Team
308 295 302 300 315 308 304 310

Stop Reports That Articulate Reasonable Suspicion for the Stop
202 (66%) 211 (72%) 251 (83%) 239 (80%) 250 (79%) 245 (80%) 249 (82%) 228 (74%)

# Stop Reports in Which Suspect Was Frisked

Stop Reports that Articulate Reasonable Suspicion for the Frisk

# Stop Reports Where Suspect Was Searched

213

187 (88%)

92

189

169 (89%)

81

150

134 (89%)

113

184

170 (92%)

113

174

155 (89%)

109

190

168 (88%)

121

143

117 (82%)

129

121

103 (85%)

116

Stop Reports that Articulate Justification for the Search
84 (92%) 70 (87%) 98 (87%) 106 (94%) 101 (93%) 115 (95%) 119 (92%) 101 (87%)

Based on the Monitor’s review of stop reports and BWC video of stops, as well as the

extent to which supervisors are identifying and correcting improper stops (see Section IV,

Supervision) and the Quality Assurance Division (QAD) is identifying improper stops (see Section

VIII, Auditing), the NYPD is in partial compliance with respect to implementing the Court-

approved stop and frisk policies (Task 1b).

B. Stop Report Form

The court orders required that the NYPD develop and implement a stop report form to be

used by officers every time a person is stopped. The stop report must include a narrative section

to explain the basis for the stop and a narrative section to explain the basis for the frisk or the

search, if applicable. The Court also required the Department to simplify and improve checkboxes

that were in the prior stop report.

The Department implemented a new stop report in March 2016. The stop report has the

two narrative sections required by the Court: the reasons for the stop and the reasons for the frisk

and the search, if conducted. The stop report also has a section in which supervisors document the

review required by P.G. 212-11 and any follow-up action. An officer’s supervisor must confirm

that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the

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officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the corresponding activity log entry was reviewed; (4) the supervisor was present on the scene; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken.
In January 2017, the Department began using an electronic stop report form that officers can fill out on their phones, on tablets, or on a computer at the command. In October 2018, the stop report form was revised to document compliance with the Right to Know Act, so it now requires officers to indicate if they sought consent to search and whether it was given. In addition, when a stop is based on a radio run (a communication from a dispatcher over the radio, often based on a call for service), officers are now required to indicate if the call was based on an anonymous or a verified caller, since that information can determine the level of authority an officer is legally allowed to exercise.
1. Compliance Assessment—Stop Report Form and Implementation The revised stop report was approved by the Court in March 2016. In October 2018, the Court approved the most recent changes to the stop report form. The City is in compliance with the requirement that a new stop report be developed (Tasks 3, 8a). As we have reported since the revised stop report was first put in place, the most significant aspect of this requirement is making sure that officers who make stops are actually completing stop reports. The underreporting of stops has been acknowledged by the Department and by officers and supervisors in focus groups conducted by the Monitor, and explicitly identified in NYPD audits (discussed in Section VIII below). Any assessment of compliance with the Court’s remedial orders will be impossible unless the Department finds ways to ensure that unreported
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stops are no longer an issue. If the NYPD’s data is not accurate and complete, the Monitor cannot find that the City is in substantial compliance.
There are a number of ways that the NYPD has attempted to determine the scope of underreporting of Level 3 Terry stops and to address the problem. These include: (a) Civilian Complaint Review Board (CCRB) reports of stop-related complaints for which a stop report was not completed; (b) RAND audits (labeled as such because these were initially conducted by the RAND Corporation) of radio communications; (c) Police-Initiated Enforcement (PIE) audits; (d) supervisory review of BWC videos; (e) meetings with command executives, labeled RISKS Reviews (Remediation of Identified Situations Key to Success); and (f) discipline and correction of officers for unreported stops. All these are discussed in the Report below and in Sections IV, VI, VIII and X.
a. CCRB Reports of Other Misconduct Noted (OMN) When the CCRB investigates a complaint involving a stop and determines that the officer did not complete a stop report, it alerts the NYPD by sending an “Other Misconduct Noted” (OMN) to the Internal Affairs Bureau (IAB). The NYPD then investigates the failure to complete a stop report to determine if it should be substantiated and, if so, determine the appropriate corrective action. The numbers of OMN cases for failure to complete a stop report have gone down over the last several year, while the number of CCRB complaints involving a stop have remained steady. However, there are still complaints made in 2019 for which the CCRB investigations have not been complete, so there may still be additional OMNs for failure to complete a stop report for 2019 CCRB complaints (Chart 2 below). Additional data regarding OMNs for failure to complete a stop report is detailed in Section X below.
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Chart 2. 2017 CCRB Stop Complaints
851

Other Misconduct Noted for Failure to Complete Stop Report

2017 Failure to Complete Stop Report OMNs (%)
72 (8.5%)

2018 CCRB Stop Complaints
855

2018 Failure to Complete Stop Report OMNs (%)
57 (6.7%)

2019 CCRB Stop Complaints
902

2019 Failure to Complete Stop Report OMNs (%)
51 (5.7%)

b. RAND Audits, Command RAND Audits, Automated RAND Audits
One audit conducted by the NYPD to assess underreporting is the RAND audit. This audit is conducted by QAD and is designed to identify stop encounters using radio transmissions to identify instances in which stop reports should have been prepared. QAD uses keyword searches of radio transmissions (ICADs) to identify events that likely involved stop encounters. These keywords are “Stopped,” “Show-up,” “Holding,” and “Warrant Check.” When a potential stop encounter is identified, NYPD records are reviewed to determine if a corresponding stop report was prepared. If there is BWC video of the event, QAD reviews the video as part of this analysis. If the auditor determines that a stop report may have been required, but was not prepared, the matter is referred to the command for further investigation. The command then reports back to QAD whether the encounter did, in fact, require a stop report and whether one was filed. From 2017 to 2019, the compliance level identified by QAD’s RAND audits increased from 49 percent in 2017 to 70 percent in 2019, but was only 56 percent in the first quarter of 2020 (see Auditing Section, below).
The NYPD has expanded RAND audits in two ways. First, several commands have started doing RAND audits of their own radio transmissions. The command does a search of ICAD dispatches to identify encounters in which the words “Stopped,” “Warrant Check,” “Holding” or “Show-up” are used. The command’s Integrity Control Officer (ICO) (or other member doing the

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RAND audit) will evaluate the encounter to see if it appears that a stop occurred and, if so, check to see whether a stop report was prepared. Second, starting in February 2020, the Risk Management Bureau (RMB) has conducted a daily automated search of the keywords in ICAD transmissions of patrol commands, and sending the results to the command for investigation. RMB has also added the search word “canvass” to the ICAD search. The Monitor has requested that NYPD track and report on undocumented stops identified using these methods.
c. Police-Initiated Enforcement (PIE) Audits A second audit conducted by QAD to identify undocumented stops is the PIE audit. These audits examine arrests in which the People of the State of New York are the complainants on the Complaint Report, such as criminal possession of a controlled substance and criminal possession of a weapon. The arrest reports are reviewed to determine whether it appears that a stop report should have been completed for the encounter. When an auditor determines that an arrest report possibly required a stop report and no stop report was completed, the arrest report is sent to the command for further investigation. From 2017 to 2019, the compliance level identified by QAD’s PIE audits increased from 34 percent in 2017 to 50 percent in 2019 (see Auditing, Section VIII, below).
d. Supervisory Review of BWCs The NYPD can also identify stops that were not documented by having supervisors examine the BWC videos of their officers. Sergeants are required to review five BWC videos of their officers per month and complete a self-inspection worksheet of their reviews. In addition, other supervisors at the command level, such as training sergeants, platoon commanders, ICOs and others, review officer BWC videos. Although the NYPD has tracked the number of supervisory BWC reviews, it has not tracked the number of BWC reviews that identified
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undocumented stops, but should do so going forward. This review should include instances in which BWC footage shows more people stopped than there are stop reports.
e. RISKS Reviews The NYPD has developed an executive review of commands it has labeled RISKS Reviews. Beginning in December 2018, the Department has met with every Patrol, PSA and Transit command to discuss the commands’ efforts to address the following issues: underreporting of stops, constitutionality of stops, legality of trespass enforcement, and compliance with policies regarding the use of BWCs, including proper activation and deactivation, categorization, tagging, and supervisory reviews of videos. Before each meeting with the command, RMB generates relevant statistics for the command (including those identified through audits and self-inspections), along with comparable statistics for other commands in the patrol borough. At the RISKS Review meeting, the commanding officer of the command discusses problematic statistics and how the command plans to address concerns going forward. The meetings are chaired by the Deputy Commissioner of Risk Management. Members from the appropriate Patrol Borough attend, as well as representatives from both the Chief of Department’s Office and the operational bureau under review (Patrol, Housing, or Transit). Attendees from each command include the commanding officer, the executive officer, the ICO, the special operations lieutenant and the training sergeant. Failure of documentation is a key area covered. The special operations lieutenants, who oversaw the plainclothes anti-crime team at a command, have been queried about the team’s activities and what efforts the command made to identify stops that are not documented. There has also been a consistent focus on the command’s self-inspections of stop reports; the Chief from Patrol Services and the Deputy Commissioner of RMB often note that if deficiencies are missed in the self-inspections, that means there are failings at several levels: the officer making the stop
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and writing the stop report; the supervisor who missed the deficiency in reviewing the stop report;

the ICO who missed it in the self-inspection; and the Commanding Officer or Executive Officer

who signed off on the self-inspection.

The RISKS Review meetings were put on hold at the beginning of the pandemic. At the

end of June, the RISKS Review meetings resumed virtually. The elimination of the anti-crime

units also meant that RISKS Review meetings since June no longer covered their activities. In

2019, there were 98 RISKS Review meetings, covering every numbered command, as well as

transit and housing commands, with six commands having a second pass (Precincts 42, 60, 73,

102, 110, and 120).

f. Discipline and Correction of Officers with Unreported Stops The Monitor requested data from the NYPD regarding any discipline, instructions or

CRAFT entries for officers identified as not completing stop reports, especially those with a history of underreporting.5

Chart 3. Discipline, Instructions and CRAFT Entries for Failure to Complete Stop Report

Command Discipline

Instructions

CRAFT

2017

13

54

0

2018

16

40

33

2019

27

27

50

The NYPD has made significant efforts to address underreporting and the compliance rates

from its PIE audits and RAND audits have improved. The number of reported stops increased in

2019, which appears to have been the result of increased reporting, perhaps in part a result of the

5 CRAFT stands for Cop’s Rapid Assessment Feedback Tool. Supervisors can issue a Supervisory Comment Form in the CRAFT system for an officer’s positive actions or negative actions (Needs Improvement). The CRAFT “Needs Improvement” report is now used by NYPD instead of the Minor Violations Log, which was a logbook kept at the command but was not tracked departmentwide.
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Department’s RISKS Review meetings and other efforts. However, the level of undocumented stops still appears to be higher than required for the NYPD to be in compliance. The Department is not yet in compliance with Task 1c. The Monitor will assess the impact of the elimination of the anti-crime units on stop reporting in a future report.
C. Racial Profiling Policies The court orders require the NYPD to revise its Patrol Guide prohibition on racial profiling. The new procedures must state that race, ethnicity, or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description, and that racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data. As with the Department’s stop and frisk policy, substantial compliance regarding the racial profiling policy also requires that Department personnel follow the policy in practice, so that stops by NYPD officers comply with federal and state standards regarding racial profiling. In addition, communications from NYPD leadership (executives, commanding officers, and others) and in stop report narratives cannot indicate a targeting of defined racial or ethnic groups for stops because of their prevalence in local crime suspect data.
1. Assessing Compliance—Racial Profiling Policy The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the Court on August 24, 2015. The patrol guide defines racial profiling as police action, including stops, frisks, arrests, or other law enforcement actions, or the failure to perform a police action, motivated, even in part, by the actual or perceived race, color, ethnicity or national origin of an individual. Race may be considered only if it is part of a reliable and specific suspect description that includes not just race, gender, and age, but other identifying characteristics or information. The policy also includes a description of Section 14-151 of the New York City
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Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color, and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability, and housing status. The policies comply with the Court’s requirement for racial profiling policies (Task 2a).
Assessing implementation of the Department’s racial profiling polices is not a simple task. Generally, it is not apparent from a stop report or a BWC video of a stop whether the officer was motivated, even in part, by race, other than when there is a suspect specific description. The Monitor will assess the Department’s compliance with its racial profiling policies and the Fourteenth Amendment by using a variety of statistical analyses of NYPD’s stop and frisk data conducted by experts on the monitor team. The Monitor will also consider the NYPD’s compliance with other requirements, such as improved tracking and investigations of racial profiling complaints, in making an assessment of compliance with the racial profiling policy.
As part of the Monitor’s assessment of the Department’s compliance with its racial profiling policies, the Monitor examined whether rates of compliance with legal standards for stops, frisks and searches in 2019 differed by race, and, if so, whether those differences were due to chance or not. The race of the person being stopped was noted in 97.5 percent of the stop reports that were reviewed by the Monitor.6 Chart 4 below shows, for each quarter, the number of stop reports reviewed by the monitor team broken down by the race of the person stopped, and then the percentage of those stop reports that the monitor team determined articulated reasonable
6 For ease of interpretation of categories, the race of the person stopped was collapsed into three categories, representing whether the person was Black (Black, n=631, 51%), Hispanic (Black Hispanic, n=144, 12%, White Hispanic, n=290, 23%), White/Other (White, n=98, 8%; Asian, n=43, 4%; Middle Eastern, n=8, 1%), or Unknown (n=23, 2%). These are the same categories used in prior analyses by the Monitor and by plaintiffs’ expert.
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suspicion.7 As shown in Chart 4, the percentage of stop reports rated as justified with articulable

reasonable suspicion is significantly lower for Hispanics (73%) than that for stops of

Whites/Others (81%) and Blacks (82%).

Chart 4. Monitor Judgments that 2019 Stop Reports Articulate Reasonable Suspicion for

Stop, by Race of Person Stopped

Total No.,

Total No.,

Total No., Total No.,

Percentage Percentage

Percentage Percentage

Audit

Justified

Justified

White/Other Black

Justified Hispanic

Justified Total8

Quarter

1Q2019

48

178

85%

80%

89

315

75%

79%

2Q2019

19

168

89%

82%

121

308

74%

80%

3Q2019

64

139

81%

85%

101

304

78%

82%

4Q2019

41

146

73%

82%

123

310

64%

74%

Total

172

631

81%

82%

434

1,237

73%

79%

The monitor team’s expert, John MacDonald, examined these data to test whether the

differences between the monitor team’s ratings for stops of Whites/Others and Blacks and the

monitor team’s ratings for stops of Hispanics were likely due to chance or not. The method used

compared the disparities in justified stops by race identified by the monitor team to 1,000

simulations in which the ratings (the percentages of justified stops) were not associated with a

7 The stop reports in Chart 4 are the same stop reports as reviewed and included in Chart 1. Again, these analyses of stops, frisks, and searches are based on stops for which there was a completed stop report, and thus would not provide any information about stops that were not reported. 8 The “Total” column in this chart does not include stop reports for which no race is indicated.
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particular racial category, but were randomly scrambled among the racial categories. The results

from this test show that the lower percentage of justified stops in 2019 for Hispanics (73%) relative to Whites/Others (81%) would occur by chance in only 2.9 percent of 1,000 times, respectively.9

The disparities between Hispanics compared to Whites/Others are statistically significant at the

five percent level.

If a frisk or search occurred during the stops being reviewed, the monitor team also rated

the officers’ justification for the frisks and searches. The percentage of frisks and searches that

the monitor team rated as being justified has averaged 87 percent and 92 percent, respectively,

over the four quarters of 2019 (see Charts 5 and 6, below). However, the percentage of justified

frisks was higher for Whites/Others (93%) than it was for Hispanics (87%) and Blacks (85%), as

shown in Chart 5 below. These differences in justified frisks would occur by chance 6.7 percent

and 1.9 percent in 1,000 times, respectively. The disparities between Blacks compared to

Whites/Others are statistically significant at the five percent level. This suggests that the Black-

White/Other disparities for frisks is not likely a chance occurrence due to which cases were

sampled for auditing.

Chart 5. Monitor Judgments that 2019 Stop Reports Articulate Reasonable Suspicion for

Frisk, by Race of Person Stopped

Total No.,

Total No.,

Total No., Total No.,

Percentage Percentage

Percentage Percentage

Audit

Justified

Justified

White/Other Black

Justified Hispanic

Justified Total10

Quarter

1Q2019

18

93

100%

87%

44

155

90%

89%

2Q2019

12

95

92%

87%

61

168

90%

89%

9 Although the analysis shows that the racial disparity in justified stop reports would not have
occurred by chance, the analysis does not determine the cause of the disparity. 10 The “Total” column does not include stop reports for which no race was indicated.

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Total No., Percentage Justified

Total No., Percentage Justified

Total No., Percentage Justified

Total No., Percentage Justified

3Q2019

27

50

90%

81%

40

117

78%

82%

4Q2019

41

44

92%

80%

47

132

89%

92%

Total

98

282

93%

85%

192

572

87%

87%

There was a very small disparity by race in the percentage of searches in 2019 that were

rated as justified, showing justified searches for 93 percent of Whites/Others, 92 percent of Blacks,

and 90 percent of Hispanics, as shown in Chart 6, below. The small differences in the racial

disparity in searches rated as justified would occur by chance 56 percent and 90 percent in 1,000

times, respectively, showing these are likely chance differences and not statistically significant.

Chart 6. Monitor Judgments that 2019 Stop Reports Articulate Justification for Search, by

Race of Person Stopped

Total No.,

Total No.,

Total No., Total No., Total No.,

Percentage Percentage

Percentage Percentage Percentage

Justified

Justified

Justified

Justified

Justified

Audit

White/Other Black

Hispanic

No race

Total

Quarter

indicated

1Q2019

17

64

89%

94%

20

1

102

91%

100%

93%

2Q2019

10

60

91%

95%

45

1

116

96%

100%

95%

3Q2019

26

51

93%

89%

42

1

120

95%

100%

92%

4Q2019

12

44

45

0

101

100%

90%

82%

-

87%

Total

65

219

93%

92%

152

3

439

90%

100%

92%

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The monitor team also will consider other analyses of stop and frisk data to assess whether there are racial disparities that are not explained by legally justified reasons, but that are practically significant in magnitude and unlikely to be due to chance, and whether these racial disparities are declining or increasing over time. Several such analyses have been considered for this report: an analysis of outcomes from stops (frisks, searches, summonses and arrests, force) for Blacks and Hispanics compared to similarly situated non-Hispanics; and an analysis of the recovery rate of contraband and weapons for stops of Blacks and Hispanics compared to similarly situated nonHispanics. These analyses might be done comparing outcomes from stops in and around NYCHA developments with outcomes from stops in areas with similar levels of reported crime. However, the present level of underreporting would undermine the conclusions of these analyses. The Monitor’s expert (John MacDonald) will consider analyses that compensate for underreporting and its effect on the size of racial disparities in stops. These analyses will be presented in a future report.
Based on the Monitor’s analysis of racial disparities in the stop reports that the Monitor team found deficient in articulating reasonable suspicion for stops and frisks and legal justification for searches, the NYPD is not yet in compliance with implementation of the racial profiling policies (Task 2b).
D. Davis/NYCHA Interior Patrol Policies The Davis settlement, incorporated in a court order, requires that the Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) promote constitutional interactions between NYPD officers and persons encountered during interior patrols.
1. Compliance Assessment—NYCHA Interior Patrol Policy The policy for interior patrols of NYCHA buildings was approved by the Court and became effective on April 25, 2017. Among other things, the Patrol Guide states that, without more,
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entering, being in, or exiting a NYCHA building is not an “objective credible reason” justifying an officer’s approach and request for information, nor does it establish reasonable suspicion for a Level 3 Terry stop. P.G. 212-60 also states that arrests for trespass in restricted areas, such as roofs or roof landings, must be made with appropriate notice (e.g., through a conspicuously posted sign).
The Patrol Guide also requires officers to complete a form documenting all trespass arrests in NYCHA buildings (the Trespass Crimes Fact Sheet (TCFS)). Officers must provide information about what led them to approach the person and what led them to believe that the person was a trespasser. Since May 2017, the NYPD has used the Court-approved TCFS for all trespass arrests in both NYCHA buildings and TAP buildings.
The City is in compliance with the Court’s requirement regarding written policies for NYCHA interior patrols (Task 10a) and the written requirement that trespass arrests be documented with a TCFS (Task 11a). With respect to implementation, the monitor team reviewed stops at NYCHA properties, trespass arrests, and officer BWC videos of interior patrols in NYCHA buildings.
a. Reviews of Stops at NYCHA Properties A sample of 300 stop reports was randomly sampled from the population of 1313 reports prepared in NYCHA in 2019.11 These reports were identified from the publicly available data on the NYC data portal. For each stop report, the monitor team assessed whether the stop narrative articulated reasonable suspicion for the stop, whether the frisk narrative articulated reasonable suspicion that the persons stopped was armed and dangerous, and whether there was a sufficient
11 The sample of 300 reports has a confidence interval of approximately 4.97% at a 95% confidence level.
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legal basis for the search. Below is a table that summarizes the Monitor’s assessment of the legal

sufficiency for the stop, frisk, and search on the 300 reports.

Chart 7. 2019 NYCHA Stop Reports

2019

Stop Reports Evaluated
300

Stop Narrative Articulates Reasonable Suspicion for Stop
198 (66%)

Frisks Evaluated
178

Frisk Narrative Articulates Reasonable Suspicion for Frisk
156 (88%)

Searches Evaluated
97

Search Narrative Articulates Legal Basis for Search
90 (93%)

The monitor team made the following additional observations:
• Of the 102 stop reports that the monitor team determined did not articulate reasonable suspicion, all of the stop reports were approved by the supervising officers. In only two cases did the supervisor determine that there was an insufficient basis for the stop. In both instances, the monitor team disagreed and determined that there was a sufficient basis for the stop.
• Of the 22 stop reports in which, according to the monitor team’s determination, there was insufficient articulation that the person frisked was armed and dangerous, the supervising officer concluded that there was an insufficient basis for the frisk in two of the 22 encounters and approved the frisk in the 20 others.
b. Review of Trespass Arrests at NYCHA Properties
The Monitor requested the TCFS and the Online Booking Sheet (OLBS) for 150 randomly
selected trespass arrests at NYCHA locations from the first half of 2019. The NYPD provided the
OLBS for the 150 arrests, but was able to locate a TCFS for only 104 of the arrests. For the
remaining 46 trespass arrests (31%), there was no TCFS. In reviewing the arrest documents (the
TCFS and OLBS), the monitor team determined that the officer had an objective credible reason
to approach the person arrested in 119 arrests (79%), but did not have an objective credible reason
to approach in 31 (21%) of arrests. The monitor team also determined that the officer had probable
cause for the arrest in 140 of the 150 trespass arrests, but did not have probable cause for a trespass
arrest in ten of the 150 arrests (7%).

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c. Review of BWC Videos at NYCHA Properties As part of the monitoring plan, BWC video recordings are assessed to explore the

lawfulness of encounters between police officers and members of the public inside and in the

vicinity of NYCHA buildings. Every six months, the Vievu and Axon data management systems

are searched using the tag “Interior Patrol – NYCHA.”

In 2019, there were 149,892 videos assigned the tag “Interior Patrol – NYCHA”; 32,225

recorded in the Axon system and 117,667 recorded in the Vievu system. Due to the infrequency

of encountering members of the public in routine interior patrols, the sample was stratified into

two groups. The first group was videos that were “uncategorized” with the additional tag of

“Interior Patrol – NYCHA.” The second group consisted of videos that were assigned a category

indicating there was police action involving a member of the public (arrest, summons, investigative

encounter) and that also had the tag of “Interior Patrol – NYCHA.”

Vievu

Uncategorized Assigned a Category

Total
115,176 2,491

System Total 117,667

Axon

Uncategorized Assigned a Category

29,760 2,465

32,225

Total

149,892

The table above provides an illustration of the number and types of videos recorded in the 2019. For 2019, a search of the Vievu system returned 115,176 “Uncategorized” videos, and 2,491 videos that were assigned a category indicating there was an encounter with a member of the public (arrest, summons, investigative encounter). From the Axon system there were 29,760 “Uncategorized” videos and 2,465 videos with a possible encounter. The videos from each system were combined by groupings and a random sample of 200 videos was selected from each group

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for assessment. This assessment focused on the lawfulness of significant public contacts between the police and the public.
For our purposes, significant public contact is defined as any encounter between the officer and a member of the public that lasts longer than 30 seconds, or any encounter in which it appears that the officer is engaged in an investigative encounter. This would include contacts of less than 30 seconds during which the officer asked Level 1 or Level 2 questions. Routine interactions with staff members of the building, other officers, or persons in their official capacity (FDNY, EMS, Postal, etc.) were not considered a significant public contact for this definition. There was significant public contact in 14 percent (27 of 200) of the videos in the “uncategorized” and 66 percent (131 of 200) of the other categories. Overall, in 158 of the 400 videos (40%), the recording officer had significant public contact with a person during the Interior Patrol.
A total of 296 individuals were encountered in the 158 videos12 in which the officer was observed to have had significant public contact. A worksheet was developed to evaluate the conduct of the officers during these interior patrols/encounters (Appendix B). The monitor team made the following observations:
• The most common location of the 296 encounters was on the hallway (25%). • Most encounters (N=128) started at Level 1 (43%). • There were 97 encounters that started at Level 4 (33%). In 23 of these encounters (24%)
the person was issued a summons, in 44 cases (45%) the person was arrested, and in 30 cases (31%) no enforcement action was taken. • During the 275 encounters about which a conclusion could be drawn, the officers acted lawfully in 256 (93%) of them, at the initial approach, and in 19 encounters the officers’ approach was problematic.
12 In several videos, more than one person were encountered during the Interior Patrol. This was a combination of multiple persons at the same encounter or encounters with different people at different times during the same interior patrol.
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• There were 25 encounters that escalated about which a conclusion could be drawn; of those, escalation was proper in 17 (68%) and without the appropriate legal authority in eight (32%)

• In the large majority of encounters, there was no frisk (83%). Of the encounters in which a frisk was conducted, the officer had reasonable suspicion that the person was armed and dangerous in 74 percent of those encounters.

• In the large majority of encounters there was no search (80%). Of the encounters in which there was a search, the officer had the legal authority to conduct the search in 86 percent of those encounters.
2019 NYCHA BWC VIDEOS

Encounter Information

Table 1 – Location Where Person First Encountered

APARTMENT BASEMENT COURTYARD/FRONT ELEVATOR HALLWAY LOBBY ROOF ROOF LANDING STAIRWAY Total

Number 49 2 21 6 73 33 9 41 62 296

Percentage 17 1 7 2 25 11 3 14 21
100.0

Table 2 – Level at First Encounter

Level

Number

0

22

1

128

2

10

3

20

4

97

Inconclusive

or Unknown

19

Total

296

Percentage 7 43 3 7 33
6 100

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Table 3 – Did It Appear that the Officers’ Actions Were Lawful at the First Encounter?

Number Percentage

No

19

7

Yes

256

93

Inconclusive

21

Total

296

100.0

Table 4 – Did the Encounter Escalate?

Number

No

252

Yes

33

Inconclusive

11

Total

296

Percentage 88 12
100.0

Table 5 – If the Encounter Escalated, did Escalation Appear Lawful?

Number

Percentage

No

8

32

Yes

17

68

Inconclusive

8

Total

33

100.0

Table 6 – Was the Person Frisked?

Number

No

238

Yes

48

Inconclusive

10

Total

296

Percentage 83 17
100.0

Table 7 – Did the Frisk Appear Lawful?

Number

No

10

Yes

29

Inconclusive

9

Total

48

Percentage 26 74
100.0

Table 8 – Was the Person Searched?

Number

No

228

Percentage 80

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Yes

58

Inconclusive

10

Total

296

20 100.0

Table 9 – Did the Search Appear Lawful?

Number

No

7

Yes

43

Inconclusive

8

Total

58

Percentage 14 86
100.0

Table 10 – Enforcement Action?

Number

No Action

189

Arrested

71

Summons

31

Inconclusive

5

Total

296

Percentage 64 24 11 2
100.0

Right to Know Act Information

Table 11 – Did the Officer Offer a Business Card as Required?

Number

Percentage

No

28

82

Yes

6

18

Not Required

256

Inconclusive

6

Total

296

100.0

Table 12 – Did the Officer Explain His/Her Actions?

Number

No

37

Yes

250

Inconclusive

9

Total

296

Percentage 13 87
100.0

Demographic Information

Table 13 – Gender of Person Encountered?

Number

Male

186

Percentage 63

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Female

108

Unknown

2

Total

296

37 1 100.0

Table 14 – Race of the Person Encountered?

Number

Black

183

Hispanic

77

White

16

Asian

1

Inconclusive

19

Total

296

Percentage 61.8 26.0 5.4 0.3 6.4 100.0

Based on the review of stops, interior patrol videos and trespass arrests at NYCHA buildings, the Monitor determined that the NYPD is in partial compliance with implementing the revised policies regarding police patrols at NYCHA locations (Tasks 10b, 10c and 11b).
E. Trespass Affidavit Program (TAP) Policies The Trespass Affidavit Program, sometimes called “Clean Halls,” was a Department program in which police officers conduct interior patrols in certain private apartment buildings. For a building to have been enrolled in the program, the owner must have certified concerns regarding criminal activity or community complaints in the building, such as trespassing or drug activity within the last year, and submit an “Owner’s Affidavit” providing the NYPD with the authority to patrol their buildings. Ligon v. City of New York, one of the three lawsuits that were combined in this monitorship, challenged stops and trespass arrests at buildings enrolled in TAP. In September 2020, the NYPD determined that interior patrols of TAP buildings were not an effective crime prevention strategy and not an efficient use of police resources, and informed building owners that the program would end. Officers will continue to respond to calls for service and address crime problems at private buildings, but will no longer conduct routine interior patrols

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of private buildings based on the owners’ affidavit. Although the Department ended TAP as of October 1, this Report includes the Monitor’s review of the NYPD’s TAP activities through 2019.
In the Ligon case, the Court issued an injunction requiring changes to the NYPD’s procedures for stops and frisks at TAP locations (P.G. 212-59). The new policy was required to state: (1) the circumstances in which it is permissible to stop a person outside a TAP building on suspicion of trespass; (2) that stops inside and outside TAP buildings must comply with the new stop and frisk policies; and (3) that “mere presence” in a TAP building, and entry into or exit from a TAP building, do not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information.
In July 2017, the City and the Ligon plaintiffs filed an agreement settling the litigation, which spelled out the requirements for DeBour encounters at TAP locations, including Level 1 and Level 2 encounters, as well as the requirements for criminal trespass arrests. The settlement also detailed the requirements for the administration of TAP, including the criteria for buildings to enter into and be maintained in the program. Crime Prevention Officers (CPOs) were to obtain an appropriate Trespass Crimes—Owner’s Affidavit and complete TAP enrollment forms for buildings entering the program. Before the end of six months in the program, CPOs were required to review and evaluate whether to renew a building’s participation in the program. After one year in the program, commanding officers were to review and evaluate whether to renew a building's participation in the program, and the CO’s assessment was to be sent through the Borough Commander to the Office of the Chief of Patrol for final approval.
1. Compliance Assessment—TAP Policies In June 2016, the Court approved P.G. 212-59, the NYPD procedures for interior patrols in buildings enrolled in TAP. Stops inside and outside TAP buildings were required to comply with the NYPD’s stop and frisk policies, P.G. 212-11. In addition, P.G. 212-59 states that “mere
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presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an

“objective credible reason” for a DeBour Level 1 approach and request for information, nor does

it constitute reasonable suspicion for a Level 3 Terry stop. The policy also requires the

documentation of Level 3 stops with a stop report and criminal trespass arrests with a TCFS. The

NYPD published P.G. 212-59 in April 2017 and conducted roll call training on interior patrols in

TAP buildings in June and July 2017.

The City was in compliance with the requirements for written policies regarding police

patrol at TAP buildings (Tasks 5a, 6a, 8a, 9, and 12a).

a. Reviews of Stops at TAP Locations

Sixty-three stop reports in 2019 were identified in the NYPD database as being prepared

at a TAP location. All of the 2019 TAP stop reports were selected for assessment. For each stop

report, the monitor team assessed whether the stop narrative articulated reasonable suspicion for

the stop, whether the frisk narrative articulated reasonable suspicion that the persons stopped was

armed and dangerous, and whether there was a sufficient legal basis for the search. Below is a

table that summarizes the monitor team’s assessment of the legal sufficiency for the stop, frisk,

and search on the 63 reports.

Chart 8. 2019 TAP Stop Reports

2019

Stop Reports Evaluated
63

Stop Narrative Articulates Reasonable Suspicion for Stop
32 (51%)

Frisks Evaluated
45

Frisk Narrative Articulates Reasonable Suspicion for Frisk
28 (62%)

Searches Evaluated
32

Search Narrative Articulates Legal Basis for Search
28 (88%)

The monitor team made the following additional observations:
• In all the TAP stop reports, including the 31 in which the monitor team determined that the stop report did not articulate reasonable suspicion, the reviewing supervisor determined that there was a sufficient basis for the stop.

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• Of the 45 TAP stops that involved a frisk, the reviewing supervisor determined that there was a sufficient basis for the frisk in 44 stop reports, including 16 of the 17 stop reports in which the monitor team determined that the frisk narrative did not articulate reasonable suspicion that the person stopped was armed and dangerous. In the one instance in which the reviewing supervisor determined that there was not a sufficient basis for the frisk, the monitor team agreed with that assessment. b. 2019 Trespass Arrests at TAP Locations The monitor team reviewed 50 2019 trespass arrests that the NYPD audited as TAP
trespass arrests. The monitor team determined that officers had probable cause for 46 of the arrests (92%). However, the NYPD informed the Monitor that QAD had been using a TAP building list that had not been updated when buildings were taken out of the TAP program. Of the 50 trespass arrests reviewed, only 17 arrests were made at buildings that were still enrolled in TAP. All 17 arrests had probable cause.
c. Review of BWC Videos at TAP Locations As part of the Ligon monitoring plan, BWC video recordings are assessed to explore the lawfulness of encounters between police officers and members of the public inside and in the vicinity of buildings enrolled in the Trespass Affidavit Program. Every six months the Vievu and Axon data management systems are searched for videos having the tag “Interior Patrol – TAP.” For 2019, search of the BWC system for interior patrol videos at a TAP location returned 1,607 “uncategorized” videos, and 133 videos that were assigned a category indicating that there was police action involving a member of the public (arrest, summons, investigative encounter). Due to the infrequency of encountering members of the public in routine interior patrols, the sample was stratified. One group of videos was randomly selected from videos categorized as “uncategorized.” A second group included all of the videos from the categories “arrest,” “summons,” and “investigative encounter.” This approach resulted in assessments of 124 “uncategorized” videos and 76 categorized videos.
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There was significant public contact in 19 of 124 (15%) of the “uncategorized” videos and

in 50 of 76 (66%) of the other categories. Overall, in 69 of the 200 videos reviewed, the recording

officer had significant public contact with a person during the TAP interior patrol.

There were 129 persons encountered in the 69 videos13 in which the officer was observed

to have had significant public contact. A worksheet was developed to evaluate the conduct of the

officers during these interior patrols/encounters (Appendix B). The monitor team’s review of the

TAP BWC videos determined that the officers’ actions appeared to meet the Terry and DeBour

standards and Department policies, at the first encounter, in 104 of 118 (88%) encounters in

which a conclusion could be drawn. In the encounters that escalated, it appeared that the officers’

actions were proper in 16 of 22 (73%) encounters in which a conclusion could be drawn. Nineteen

individuals were frisked during the encounters and 14 of the19 (74%) frisks appeared to be lawful.

Twelve individuals were searched, and 10 of the 12 (83%) searches appeared to be lawful.

The charts below detail information about the TAP encounters and the demographics of

the persons encountered.

Encounter Information

2019 TAP BWC VIDEOS

Table 1 – Location Where Person First Encountered

Number

APT

17

HALLWAY

16

LOBBY

18

OTHER (office, basement, street)

5

ROOF

2

ROOF LANDING

18

STAIRS

38

STREET

15

Total

129

Percentage 13 12 14 4 2 14 30 12 100

13 In several videos, more than one person were encountered during the Interior Patrol. This was a combination of multiple persons at the same encounter or encounters with different people at different times during the same interior patrol.
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Table 2 – Level at First Encounter

Level

Number

1

64

2

0

3

16

4

41

Inconclusive 8

Total

129

Percentage 50 0 12 32 6 100

Table 3 – Did It Appear that the Officers’ Actions Were Lawful at the First Encounter?

Number Percentage

No

14

8

Yes

104

92

Inconclusive

11

Total

129

100

Table 4 – Did the Encounter Escalate?

Number

No

100

Yes

23

Inconclusive

6

Total

129

Percentage 78 18 5 100

Table 5 – If the Encounter Escalated, Did Escalation Appear Lawful?

Number

Percentage

No

6

27

Yes

16

73

Inconclusive

1

Total

23

100

Table 6 – Was the Person Frisked?

Number

No

105

Yes

19

Inconclusive

5

Total

129

Percentage 81 15 4 100

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Table 7 – Did the Frisk Appear Lawful?

Number

No

5

Yes

14

Total

19

Percentage 26 74 100

Table 8 – Was the Person Searched?

Number

No

117

Yes

12

Total

129

Percentage 91 9 100

Table 9 – Did the Search Appear Lawful?

Number

No

2

Yes

10

Total

12

Percentage 17 83 100

Table 10 – Enforcement Action?

Number

No Action

75

Arrested

21

Summons

27

Inconclusive

6

Total

129

Percentage 58 16 21 5 100

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Right to Know Act Information

Table 11 – Did the Officer Offer a Business Card as Required?

Number

Percentage

No

25

100

Yes

0

0

Not Required

104

Total

129

100

Table 12 – Did the Officer Explain His/Her Actions?

Number

No

7

Yes

114

Inconclusive

8

Total

129

Percentage 5 88 6 100

Demographic Information

Table 13 – Gender of Person Encountered?

Number

Male

86

Female

43

Total

129

Percentage 67 33 100

Table 14 – Race of the Person Encountered?

Number

Black

85

Hispanic

28

White

13

Asian

1

Inconclusive

2

Total

129

Percentage 70 22 10 1 2 100

Based on the review of stops, interior patrol videos, and trespass arrests at TAP buildings, the Monitor determined that, as of the end of the TAP program, the NYPD was not in compliance with implementing the revised policies regarding police patrols at TAP locations and ensuring that every trespass arrest at a TAP location had a TCFS (Tasks 5b, 6b, 8b, 12b).

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2. Compliance Assessment—TAP Administration The Department revised its administrative guide governing the requirements and procedures for entry into and continued enrollment in the TAP program, A.G. 303-27 in 2016. For a building to be enrolled in the program, the owner must have certified concerns regarding criminal activity or community complaints in the building, such as trespassing or drug activity within the last year. Crime prevention officers in each precinct were responsible for enrolling the buildings in the TAP program and then were to assess every six months whether the buildings still met the criteria for renewing enrollment. The Court approved the revised TAP administrative guide, A.G. 303-27, and the NYPD is in compliance with the written requirements for the administration of TAP (Task 13a). To assess whether the Department was complying with implementation of the TAP administrative procedures guide, the Monitor requested TAP enrollment forms, renewal forms and the owner’s affidavits for Patrol Borough Manhattan North (PBMN) for the 2nd and 3rd quarters of 2019 and Patrol Borough Bronx (PBBX) for the 3rd and 4th quarters of 2019.
a. Patrol Borough Bronx For PBBX, 30 buildings were enrolled in TAP during the 3rd quarter of 2019 and 35 buildings were enrolled in TAP during the 4th quarter of 2019. As of the 4th quarter of 2019, there was one building enrolled in the 44 precinct, 20 buildings enrolled in the 46 precinct, nine buildings enrolled in the 47 precinct and five buildings enrolled in the 48 precinct. There were no buildings enrolled in the 40, 41, 42, 43, 45, 49, 50, and 52 Precincts. The NYPD provided 32 TAP enrollment forms: six enrollment forms for the 1st quarter of 2019, sixteen enrollment forms for the 2nd quarter 2019, two enrollment forms for the 3rd quarter of 2019, and eight enrollment forms for the 4th quarter of 2019. Since data from the 1st and 2nd quarters of 2019 were not requested, these quarters were not considered in this review.
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The two 3rd quarter 2019 enrollment applications were examined. The justification for enrollment on one application was left blank. The justification for enrollment on the other application was descriptive but not quantitative. For example:
 Violence multiple shootings in front of location  Perps live in building  Narcotics sales and people loitering within the building  Trespassers using drugs in the alley or in the garage area. The eight 4th quarter enrollments were quantitative but not descriptive. For example:  Three 311 calls, four arrests, two C-summonses—one for criminal trespass, four I-
Cards, four OATH summonses, two active warrants  Thirty-five 311 calls, 14 arrests, 10 I-Card, seven OATH Summonses, one active
warrant, one ShotSpotter, one person on probation. Although it would have been more informative if the enrollment justifications were both quantitative and descriptive, it is clear that the justification to enroll these buildings into TAP was sufficient. Trespass Crimes—Owner’s Affidavits were provided for two of the ten buildings enrolled in the TAP program during the 3rd and 4th quarters 2019. The NYPD was unable to locate the remaining eight Trespass Crimes-Owner’s Affidavits. It is difficult to draw a conclusion concerning compliance because it is not known if the Trespass Crimes-Owner’s Affidavits were simply misplaced or never prepared. With respect to renewal in the program, there were 10 buildings in the 46 precinct and eight buildings in the 47 precinct that were enrolled in TAP for more than six months as of the 4th quarter 2019. Therefore, six-month renewal applications, approved by the precinct commander, for these buildings were required for continued participation in TAP. There were no buildings in TAP more than 12 months for the 4th quarter of 2019; therefore, no buildings required the approval of the Borough Commander and Office of the Chief of Patrol for continued participation in TAP. The NYPD was unable to locate the six-month renewal applications, approved by the precinct commander, for these 18 buildings. Again, the Monitor cannot find the NYPD in compliance
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because it is not known if the six-month renewal applications, approved by the precinct

commander, were simply misplaced or never prepared.

b. Patrol Borough Manhattan North

In PBMN, 204 buildings were enrolled in TAP during the 2nd quarter of 2019 and 146

buildings were enrolled in TAP during the 3rd quarter of 2019, a 28% decrease in enrollment. Of

the 204 buildings in TAP in the 2nd quarter of 2019, four were enrolled 6 months or less, 27 were

enrolled between seven and 12 months, and 173 were enrolled for more than 12 months. Many of

these buildings required either a six-month or a 12-month renewal during the period evaluated,

pursuant to A.G. 303-27. Of the 146 buildings in TAP in the 3rd quarter of 2019, 11 were enrolled

six months or less, 11 were enrolled between seven and 12 months, and 124 were enrolled for more

than 12 months. Several of these buildings were either initially enrolled or required a six-month

or 12-month renewal during the period evaluated. The NYPD did not provide TAP enrollment

forms, TAP renewal forms (six-month or 12-month), or Trespass Crimes—Owner’s Affidavits for

PBMN for the quarters requested. As such, the monitor team cannot find the NYPD in compliance

with the TAP administrative procedures for buildings enrolled during these periods.

The NYPD did provide data regarding the number of buildings enrolled in TAP by precinct

and the enforcement activities at TAP buildings during the periods examined (see chart below).

Chart 9. Buildings Enrolled in TAP

Precinct 19 20 23

2nd Quarter 2019 0 10 23

24

42

25

9

26

10

28

4

30

26

32

6

33

5

34

69

3rd Quarter 2019 0 10 23 32 7 6 0 9 3 5 51

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Thirty-six interior patrols were conducted during the 2nd quarter of 2019. Four precincts did not conduct verticals in any of the building enrolled during the period. Six felony and 20 misdemeanor arrests were made in TAP buildings during the period. No felony arrests were reported in TAP buildings in three precincts and no misdemeanor arrests were reported in TAP buildings in four precincts. No violation arrests were reported in any TAP building in any precinct and one criminal trespass arrest was reported during the quarter. Five criminal court summonses were reported during the quarter, all in two precincts. Only one stop report was reported during the quarter.
In the 3rd quarter of 2019, 132 verticals were conducted. Five precincts did not conduct verticals in any of the building enrolled during the period. Six felony and seven misdemeanor arrests were made in TAP buildings during the period. No felony arrests were reported in TAP buildings in four precincts and no misdemeanor arrests were reported in TAP buildings in six precincts. No violation arrests or criminal trespass arrest were reported in any precinct during the quarter. Eight criminal court summonses were reported during the quarter, all in one precinct. Two stop reports were reported during the quarter, one each in two precincts. The number of complaints made via 311 for these buildings was not provided.
Because the NYPD was not able to provide data demonstrating compliance with the TAP administration requirement, the NYPD was not yet in compliance with this requirement (Task 13b) as of the end of 2019.
F. Trespass Crimes Fact Sheet (TCFS) The settlements in Davis and Ligon require officers making trespass arrests in NYCHA and TAP buildings to document the arrests on a new form—the TCFS (PD 351-144). NYPD officers must complete a TCFS form prior to arraignment, and the TCFS articulate a proper basis for the officer’s approach and probable cause for the trespass arrest.
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1. Compliance Assessment—TCFS For the 2019 trespass arrests at NYCHA and TAP locations that we reviewed, TCFS were completed in 69 percent of NYCHA trespass arrests and less than half of TAP trespass of arrests, respectively. The NYPD also audited 2019 trespass arrests and found that TCFS were completed in 94 percent of arrests at NYCHA locations and 51 percent of TAP locations. As of the end of 2019, the NYPD was in partial compliance with this requirement with respect to NYCHA trespass arrests (Task 11b) and not yet in compliance with respect to TAP trespass arrests (Task 12b). G. Business Card Requirement The Court’s August 2013 Remedial Order required that the NYPD, if it provided any form or card to a person stopped, include on that card the stated reasons for the stop, the badge numbers of the stopping officers, and information on how to file a complaint. [cite., p. 21]. In August 2015, as part of the submission of P.G. 212.11, the Department required officers to offer persons who are stopped but not arrested or summonsed a “What Is a Stop?” tear-off information card. In 2018, when the Right to Know Act was passed, which requires business cards to be given to persons not arrested or summonsed, the NYPD designed business cards to cover both the Right to Know Act and the Court’s Remedial Order. The pre-printed business cards contain the officer’s name, rank, and shield number and a place for the officer to write his or her command. The back of the card lists a website (www1.nyc.gov/police-encounter) that provides information on how to obtain BWC footage, how to request a copy of a stop report, and how to make a complaint or comment regarding the encounter. Although the business card was approved by the Court and meets the requirements of the court order, the monitor team’s review of BWC video and stop report data suggests that in too many cases, officers are not offering business cards to persons stopped but not arrested or summonsed. The NYPD is not yet in compliance with this requirement (Task 14).
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IV. SUPERVISION One of the findings of the Court in Floyd was that NYPD supervisors did not take
responsibility for reviewing the constitutionality of the stops made by officers under their supervision. From the beginning of this monitorship, the Monitor has recognized that significant change in the NYPD depends on first-line supervisors. Sergeants on the street must embrace the changes and be responsible for the officers in their charge. Reforms will be successful only if supervisors take an active role in supervision, oversight, mentoring, and, when appropriate, discipline. An engaged supervisor who actively intervenes at the scene as well as reviewing reports sets the tone. Improper conduct is best identified and corrected, and good conduct recognized and rewarded, at this level of the organization. Supervisors must ensure that the stops, frisks, and trespass arrests made by their officers are legal and proper and that these activities are properly documented.
Compliance with the supervision requirements of the monitorship will be achieved when supervisors review stops for constitutionality in a comprehensive manner and take appropriate corrective action when they identify improper stops, frisks or searches; when supervisors who observe or learn of officers who make a stop but do not document the stop with a stop report take appropriate corrective action; and when ICOs properly complete self-inspections of stop reports and review the reports for constitutionality.
1. Compliance Assessment—Supervision NYPD policies set out supervisors’ responsibilities. Patrol Guide 212-11 requires documentation of all stops and establishes the responsibilities of supervising officers up the chain of command. Supervisors are required to respond to the scene of stops when feasible, discuss the circumstances of the stop with an officer making a stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. If a stop report is inaccurate or incomplete,
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the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk or an appropriate basis for the search, the supervisor must document that and specify an appropriate follow-up: instruction, additional training, or, when warranted, discipline. The Court has approved these policies and the NYPD is in compliance with the required policies (Task 15a).
The NYPD has also required ICOs in commands to conduct self-inspections of stop reports to evaluate both the actions of their officers and the supervisory reviews of their sergeants. The specific details and criteria used for these self-inspections are part of an audit plan developed by the NYPD, which the Court approved on July 27, 2020 (see Section VIII, Auditing, below). The NYPD is in compliance with the requirement for written policies requiring ICO review of stops and frisks (Task 16a).
These supervisory responsibilities are set out in the Patrol Guide and have been emphasized in the Department’s training, but putting in place the right policies and training is not the same as having those policies and that training applied in practice, with supervisors taking seriously their responsibility to review the constitutionality of stops. In 2018, out of 11,238 recorded stops, only 58 supervisors noted on the stop reports that the report failed to articulate reasonable suspicion. In 2019, out of 12,958 recorded stops, only 66 supervisors identified stop reports that failed to articulate reasonable suspicion (still only .5 percent). For the 7,290 stops in which a frisk was conducted in 2019, 60 supervisors checked “No” under the caption “Sufficient Basis for Frisk.” In 4,721 stops, a search was reported. In 64 cases, the supervisor checked “No” under the caption “Sufficient Basis for Search.”
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Chart 10. Supervisory Actions on Stop Reports

# Stop Reports

# Reviewing Supervisor Determined Insufficient Basis for Stop

# Stop Reports with Frisks

# Reviewing Supervisor Determined Insufficient Basis for Frisk

2019 12,958 66

7,290 60

# Stop Reports with Searches
4,721

# Reviewing Supervisor Determined Insufficient Basis for Search 64

Chart 11 below shows the follow-up actions taken in 2019 by the supervisors in those cases

in which the supervisor determined there was an insufficient basis for the stop, frisk, or search.

Chart 11. 2019 Stop Report Follow-Up Actions by Reviewing Supervisors

Supervisor Determined Insufficient Basis Follow-Up Action Instruction Only Training Only Discipline Only Instruction and Training Instruction, Training, and Discipline No Action Taken Total

Frisk

Search

Stop

19

22

22

1

2

0

0

0

0

23

20

14

4

5

3

19

11

25

66

60

64

According to the NYPD, in 2019, supervisors sent back for corrections 30 percent of stop

reports submitted by their officers (over 4,300 corrections). However, NYPD data do not show

how many of those corrections (or what percentage) related to the officers’ articulation of

reasonable suspicion for the stop or frisk or basis for the search (versus corrections for other

reasons, e.g., typos or failure to complete other unrelated fields in the report). The data supplied

by the NYPD do show, however, the total number of follow-up corrective actions that supervisors

directed for their officers: 304 were given instructions, 126 were sent to training; and 27 were

disciplined.

Command ICOs are also required to evaluate the stops of officers in their command and

the supervision of the sergeants and lieutenants in the command. Each month, the ICO of each

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command must examine the most recent 25 stop reports filed by officers in the command and review whether the stop and any frisk or search, if conducted, were proper, and whether the supervisor who approved the stop report properly assessed the legality of the stop. The selfinspection is then signed off by the command’s executive officer or commanding officer. When QAD conducts its audits of each command, it also examines the command’s self-inspections. If a stop report is reviewed by both the ICO in a self-inspection and QAD in its audit, QAD reviews whether the ICO’s findings are consistent with its auditors’ findings.
There are three additional ways the NYPD has tried to address concerns about supervision: RISKS Review meetings; remedial training for commands and for supervisors who are not identifying deficient stop reports; and discipline. The monitor team has attended most of the RISKS Review meetings, including those done remotely during the pandemic. During these meetings, Department leadership emphasized the importance of supervision to achieve compliance. One particular focus of the meetings was whether the results of the command’s selfinspections of stop reports, generally performed by the ICO, are consistent with QAD’s audits of stop reports. Another item emphasized was the supervisory review of officers’ BWC video, with the Department stressing that the reviews are not just a box checked, but an opportunity to identify positive conduct, negative conduct, and training opportunities. There were several changes made in 2019 in the command profiles that are discussed at the RISKS Reviews. The command profiles now compare statistics to the command’s prior RISKS Review profile. RMB also added: (1) statistics on the number of stop reports on which the supervisor incorrectly evaluated the sufficiency of the narratives; (2) the number of TAP buildings in the command, and information
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on criminal trespass arrests at NYCHA and TAP buildings; and (3) CCRB complaints and racial profiling complaints.14

The Department also conducts several types of remedial training for individual officers or

commands that demonstrate compliance issues. RMB reviews the quarterly audits of commands

to determine whether remedial training might be helpful. Supervisors from commands that have

a high number of stop reports found to be deficient by QAD are brought in for such training. Stop

reports from these commands are reviewed to determine the most common issues, which are then

addressed in the remedial training. The remedial training consists of approximately one hour of

refresher training on the law and how to complete a stop report and then an hour of reviewing

specific deficient stop reports and associated video. A question and answer session then follows.

The following command remedial sessions have taken place in 2020.

Chart 12. Remedial Training for Command Supervisors

Date

Number of Supervisors

Commands

3/6/2020

33

20, 28, 34, 41, 49, 52, 75, 79, 84

3/13/2020 11

109, 110, 114, 115

6/24/2020 41

9, 26, 41, 48, 73, 75, 79, 81, 83, 90, 101

7/7/2020

7

48, 81, 83, 90

8/5/2020

70

PSAs 1-9

8/6/2020

70

PSAs 1-9

RMB has also provided remedial training on investigative encounters for specific

commands either at the request of command executives or when RMD identified issues of concern

at the command. RMB sends an attorney or officer with training experience to a roll call in that

command to provide a refresher on the law and answer any questions. The remedial training is

14 Now that the TAP program has been terminated, information about criminal trespass arrests in TAP buildings is no longer included in the command profiles.
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customized to cover issues that have been identified in the command. The roll call remedial

sessions provided as of August 15 are listed below.

Chart 13. Remedial Roll Call Training

Command 13 26

Date 3/14/2019 8/28/2018, 2/7/2019

28

5/17/2019, 6/30/2020

33

11/6/2019

40

1/28/2020

46

7/3/2019

72

3/18/2020

94

1/15/2020

100

3/18/2019

101

7/5/2019

102

1/10/2019, 2/11/2019, 12/10/2019

103

10/17/2019, 10/18/2019

105

11/28/2018, 1/30/2020

107

10/3/2019

108

3/21/2019

110

9/24/2019

111 112 113 114 PBBN (73 and 75)

10/2/2019 9/17/2019 1/27/2020, 7/29/2020 10/8/2019 3/6/2019

PSA 2 PSA 5 PSA 6 PSA 7 PSA 8

11/7/2019 6/12/2019 10/30/2019 5/13/2019 12/11/2019, 1/29/2020

PSA 9

10/24/2018, 11/14/2018

SRG 3

9/4/2019

SRG (Bronx) TD 32

10/2/2019 9/25/2019

The Department also identifies supervisors for supplemental training who have approved deficient stop reports from three or more encounters. Supervisors who have approved multiple deficient stop reports have their stop reports and other paperwork reviewed by attorneys in RMB. The supervisors attend the morning session of the Investigative Encounters training and then receive one-on-one training from an attorney in RMB aimed at the specific deficiencies that have

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been identified. In 2018, 67 supervisors received this remedial training. In 2019, 39 supervisors received remedial training. As of August 15, 2020, 18 supervisors have been retrained this year.
There have also been commands who have corrected supervisors who do not sufficiently evaluate their officers’ stop reports. In 2019, 76 supervisors were given CRAFT entries for failing to detect an improper stop, frisk, or search when reviewing stop reports, and 127 supervisors were given instructions or retraining.
The NYPD is taking positive steps to get its supervisors to take an active role in overseeing, managing, and, when necessary, correcting their officers for improper stops. However, to date, not all supervisors have fully embraced their responsibilities for their officers. For example, as noted above, the monitor team’s review of stops and trespass arrests at NYCHA and TAP locations showed that supervisors approved numerous deficient stop reports and did not require TCFS for many trespass arrests. The NYPD is not yet in compliance with the supervisory review requirements (Task 15b). The NYPD is in partial compliance with the requirement of ICO selfinspections (Task 16b). V. TRAINING
Effective training requires well-written training materials and quality instruction so that the materials are communicated successfully. The monitor team spent many hours working with the parties on the development of training curricula and then observing, in many instances with the plaintiffs. how the NYPD conducted training. The training section below starts with the requirements for in-service training for incumbent officers, and then details the Department’s recruit training.
A. In-Service Stop and Frisk and Racial Profiling Training Training for current members of the service is critically important and the most timeconsuming of the NYPD’s training tasks. The Remedial Order requires the NYPD to revise its
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training regarding stop and frisk to adhere to constitutional standards and New York State law. The in-service training must cover: when a stop may be conducted, when a frisk may be conducted and when a search may be conducted; trespass enforcement and interior patrols; proper documentation of stops; and supervisors’ responsibility for reviewing officers’ stops and frisks. The Court’s Remedial Order also required the NYPD to revise its training regarding racial profiling to make clear that targeting “the right people” for stops (as described in the Court’s Liability Opinion) is a form of racial profiling and violates the constitution. Racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data. Race may be considered only where the stop is based on a specific and reliable suspect description. The training must clearly convey the changes in NYPD procedures and what is expected of officers and supervisors regarding the documentation and supervision of stops.
1. Compliance Assessment—In-Service Training for Stop and Frisk and Racial Profiling
The NYPD began its training for incumbent officers with roll call training shortly after the Department revised its stop and frisk policies, P.G. 212-11 in 2015. The NYPD produced five short videos that were played at command roll call. The five videos covered the following: (1) an introductory video by James O’Neill, then Chief of Department, briefly explaining the new policy for investigative encounters; (2) Level 1 Requests for Information, (3) Level 2 Common Law Right of Inquiry, (4) Level 3 Terry stops, and (5) documentation requirements and supervisory responsibilities for Level 3 stops. The video covering Level 3 stops also corrected information from a 2012 training video, which incorrectly suggesting that just verbal commands such as “STOP POLICE!” would not constitute a seizure. The introductory video was played at successive roll calls in October 2015, while the next four videos were played at successive roll calls in February,
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May, June, and July 2016. The 2016 Level 3 roll call video addressed the corrections required by

the Remedial Order (Task 24).

In 2016, the Department also began working on a lesson plan and PowerPoint presentation

for a day-long in-class training course on stop and frisk. The Monitor and the plaintiffs worked

with the Department to develop the curriculum and scenarios for role-play exercises illustrating

key lessons in the training. The role-play exercises were later replaced with BWC videos of NYPD

encounters. The NYPD piloted the training for several months to improve the course. The NYPD

determined that it would train supervisors first so that they would be prepared to review the stops

of their officers, and included additional material on supervisory responsibilities in the lesson plan.

At the beginning of the training, instructors show a video of the Police Commissioner

explaining how the training grew out of the stop and frisk litigation, how the overuse and misuse

of stop and frisk harmed both the Department and the communities it serves, that the responsibility

for this misuse rests with the leadership of the Department, and that the Department now owes its

members a comprehensive training course so they understand what, under the law and Department

procedure, they can and cannot do.

The video can be seen at

http://nypdmonitor.org/resourcesreports/training.

An attorney from the Department’s RMB or from a local district attorney’s office and

uniformed members of the service co-teach an interactive class on the law and procedures

regarding investigative encounters and interior patrols The NYPD has added additional material

covering the new Right to Know Act. After this portion of the course, the class breaks for a meal.

For the supervisors’ course, the content of the post-meal session includes discussions of

video footage from NYPD BWCs with a focus on sergeants’ and lieutenants’ role as supervisors,

particularly with regard to how to supervise stops and how to discuss stop reports with their

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subordinates, and the need to ensure proper documentation of all stops. For the officers’ training, the post-meal session includes reviews of BWC footage involving investigative encounters, after which the instructors discuss both good and bad examples of stop reports for those encounters. The NYPD has added a section on procedural justice in the post-meal session for officers and supervisors and has also included BWC videos of self-initiated stops. “Procedural justice” is a phrase used to describe the necessity of treating civilians with respect, listening to them and explaining the officer’s actions. The post-meal session includes viewing and discussion of video footage and completed stop reports. The classes review the strengths and weakness of stop reports completed in class, as well as common errors and mistakes in stop reports.
The training materials cover the fundamental principles of stop, question and frisk, trespass enforcement, and bias-free policing. Opportunities for discussion about the role of race in investigative encounters are included in several places. The materials describe the difference between the constitutionally permissible use of race based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops. The materials also effectively convey the changes in NYPD procedures governing investigative encounters and interior patrols, as well as what is expected of officers and supervisors regarding the documentation and supervision of stops and trespass arrests.
The Court approved training materials for NYPD’s in-service training on Investigative Encounters for NYPD supervisors (sergeants and lieutenants) on December 5, 2017. After the training materials were revised to address Right to Know Act issues, the stop and frisk course for patrol officers was approved by the Court on July 10, 2018. The training materials meet the requirements of the court orders (Tasks 17a, 18a, 19a, and 21a).
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Training for supervisors began in December 2017. Training for patrol officers began in February 2018 to pilot proposed changes to the training materials, and then continued after revisions were made and the course materials were approved by the Court. From 2017 through March 2020, the training was held at the Tactical Village at Rodman’s Neck. Each class was limited to 30-35 officers or supervisors and training was taught every weekday and on both the day (7x3) and evening (3x11) tours. Training was paused because of the coronavirus, but it has resumed at the Police Academy, because the Academy building provides for more space between officers.
As of September 11, 2020, 32,689 members of the service have gone through the stop and frisk training. As of that date, there were 1,845 members still to be trained, mainly nonenforcement members (167 lieutenants, 375 sergeants, 1,031 detectives, and 272 police officers). The NYPD anticipates completing the training by the winter of 2020.
From 2017 to 2020, the monitor team has observed numerous classes of both supervisors and patrol officers. Plaintiffs’ counsel also have attended training classes on a quarterly basis. The monitor team and plaintiffs’ counsel have shared with the Department observations and views about the course materials, the way the materials have been presented and the course instructors. The instructors observed by the monitor team were knowledgeable and followed the approved materials. Although they varied in style and in their ability to engage the officers, the instructors were quite good. The Department completed training of patrol officers in 2019 and continued its training of all members of the service from the rank of police officer to lieutenant, including those in non-enforcement bureaus. Ninety-four percent of NYPD’s members have been trained on stop and frisk policies; the NYPD is in compliance with these requirements (Task 17c, 19c, and 21b),
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Some of the instructors did a better job than others in addressing issues of race and engaging the class in a discussion of how race intersects with stop and frisk encounters, but the course as a whole sufficiently covered the NYPD policies on racial profiling and bias-free policing. The Department also covers NYPD racial profiling policies in other training it has conducted, including training of new supervisors, training of housing officers, and a course on implicit bias that was delivered to the entire force. Ninety-four percent of NYPD’s members have been trained on NYPD’s racial profiling policies; the NYPD is in compliance with these requirements (Task 18c).
The Court’s Remedial Order noted that it may be appropriate for the Department to conduct training “on the effect of unconscious racial bias.” Floyd, ECF 372, p. 17. Early in the monitorship, the Department committed to training its members on implicit bias and procedural justice. “Implicit bias” is the concept that people make automatic, unconscious associations between groups of people and stereotypes about those groups, and that those associations arise from the particular environment (neighborhood, family, friends, media, etc.) in which they grow up, live, and work.
In 2017, the NYPD contracted with an outside vendor, Fair and Impartial Policing, LLC (FIP), http://www.fairimpartialpolicing.com/, to create the training materials and teach the course. FIP developed specific training sessions for senior executives, mid-level managers, supervisors and police officers. The training included discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. The point of the training is to make officers more aware of biases so that those biases do not interfere with the officers’ law enforcement functions.
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Professor Jennifer Eberhardt, a member of the monitor team and one of the leading experts in the country on implicit bias in law enforcement, reviewed the training materials and provided feedback and suggestions for edits to the NYPD and FIP. Plaintiffs’ counsel and one of the plaintiffs’ experts, Professor Jack Glaser, also a leading expert on these matters, provided feedback and edits to FIP. Based on that input, some parts of the training materials were revised. FIP instructors presented the training to the monitor team and plaintiffs’ counsel, who provided feedback as well. In September 2019, the plaintiffs reviewed the revised FIP training materials and expressed their concerns about some aspects of the materials to the CEO of FIP. Neither the monitor team nor plaintiffs’ counsel observed the training being provided to NYPD members, because FIP and the NYPD believed that the attendance of outside observers in the class would inhibit candid discussion of the material. Professor Eberhardt concurred with that assessment.
In February 2018, the Department began the FIP training for all 36,000 uniformed members of the service, including those at the highest levels of the Department (e.g., the Commissioner, the First Deputy Commissioner, and all the commanding officers of the precincts and other commands). The NYPD also conducted train-the-trainer sessions for instructors at the Police Academy, who began presenting the training for recruit officers in August 2018. As of March 20, 2020, when FIP training concluded, 34,870 members of the service (MOS) had been trained.
Although implicit bias training for police officers, and the FIP training in particular, has been conducted throughout the country, what is less clear is what impact this training has on officers’ attitudes and behavior. Systematic scientific evaluations of such training are rare and are only now being conducted. The NYPD worked with the IACP-University of Cincinnati Center on Police Research and Policy and with the Finn Institute for Public Safety at SUNY Albany to evaluate NYPD’s implicit bias training of patrol officers. The evaluation was designed to
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determine the effectiveness of the training in raising officers’ awareness of and knowledge about implicit bias and providing officers the skills to manage their own implicit biases.
The FIP training was oriented towards police officers’ knowledge of implicit bias and its implications for policing. The NYPD’s stated objective for the program was to convey to police personnel:
• The science of implicit bias (convey to officers that all people, even well-intentioned people (officers) can be impacted by implicit bias).
• How implicit biases might manifest in policing. • The consequences of biased policing for community members, officers and agencies. • The skills that police personnel need to be fair and impartial. To determine whether the FIP training met those objectives, the evaluation team collected survey data on the day of training and after officers and supervisors were back in the field. The trainingday surveys were collected using an experimental design, with classes being randomly assigned to take the survey immediately before (control) or immediately after (treatment) the FIP training, making it possible to see if FIP training influenced officer perceptions.
The evaluation team found that the training did have some effect on officers’ beliefs and attitudes. For example, consistent with NYPD objectives, the FIP training was successful on the day of training in raising officers’ awareness of implicit bias, procedural justice, and concern with bias. These effects were achieved despite the fact that the FIP content was delivered as a mandatory, one-shot, lecture-style training—conditions that can dampen its effectiveness, but were made necessary by the size of the NYPD. Because these results were measured on the day the training was conducted, it is uncertain how enduring the changes in officers’ beliefs and attitudes will be. Enduring change requires not only passively learning about bias, but actively attending to the conditions that give rise to it. Supporting the FIP training program and its
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evaluation was one among a number of steps the NYPD has taken to increase the effectiveness of officers and build trust with the community. These are ongoing efforts, and their success is not yet fully known.
B. Training for Newly Promoted Supervisors Training for newly promoted sergeants, lieutenants, and captains covering supervisory responsibilities, along with a refresher on investigative encounters, is an important and necessary component of NYPD’s compliance
1. Compliance Assessment—Newly Promoted Supervisor Training Training materials for newly promoted sergeants and lieutenants were approved by the Court on March 27, 2018. The format of the training has been changed to encourage class participation and add BWC video, and is similar to the in-service training for incumbent sergeants and lieutenants. The monitor team observed promotional training before and after it was approved by the Court and again in February 2020. The same two instructors have been teaching this course for every promotional class since 2017 and the class is one of the most impressive training classes the monitor team has observed. The training covers all of the required material in the lesson plan, but, more importantly, the instructors engage the class in interactive exercises and discussions and thorough questions and answers. The NYPD is in compliance with these requirements (Tasks 20a, 20b). C. Housing Training The Davis settlement requires that the Department provide in-service training so that officers who conduct interior patrols in NYCHA buildings are familiar with the posted rules and regulations in those buildings and have guidance on how to maintain the proper balance between enforcing the law and respecting the rights of residents and their guests. After a long period of negotiations, the parties came to a consensus on language that carefully strikes this balance. The
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training encourages officers to use their discretion when appropriate. The morning session begins with a video from the then-Chief of the Housing Bureau, Chief Secreto, and then proceeds to a discussion of the legal issues involving trespass enforcement and Housing patrol, including documentation of trespass arrests using the TCFS. The post-meal session includes role-play scenarios illustrating various aspects of interior patrols. The NYPD also developed a useful pamphlet for Housing Bureau officers highlighting important features of the training.
1. Compliance Assessment—In-Service Housing Training On May 29, 2019, the Court approved materials for a one-day training to be given to all Housing Bureau officers. The NYPD began the training in October 2019. The monitor team and Davis counsel observed this training in November 2019 and in January and February 2020. After the November training, plaintiffs’ counsel and the Monitor provided the NYPD with recommendations for improvements to the training, including emphasizing that NYCHA properties are people’s homes, the importance of de-escalation under appropriate circumstances, and the value of exercising discretion for trespass arrests. Davis counsel particularly stressed the need to meaningfully engage Housing Bureau officers regarding the issues of racial bias and stereotyping. All Housing Bureau officers had attended the training by the end of February 2020. The training made effective use of multiple instructors, which breaks up the potential monotony of one or two instructors. All of the instructors were Housing Bureau members. Instructors opened their block of instruction by informing the class of their longevity in the NYPD and giving a summary of their commands. Their longevity and current assignment to a PSA patrol command or Community Affairs gave them credibility with the class. Several instructors also had previous experience living as residents within NYCHA housing. The classes were interactive, with attendees being asked whether they had been stopped by the police, a discussion of Operation Impact and its impact on the community, and the bases for
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the lawsuits that led to the training. Attendees in some classes, however, were less engaged than the officers in other classes. The issue of discretion was emphasized throughout the class. One class discussed how overenforcement could ruin lives and how discretion can mean de-escalating a situation.
The post-meal scenarios were instructive. In one scenario, the instructors had the officers go through, in detail, why there was justification to approach. Another scenario illustrated discretion and included an effective demonstration of how an individual might not feel free to leave when approached by officers. During one debrief, an instructor had a student switch places with him and the instructor approached the student as he had been approached in the exercise. He then asked if the student would feel free to leave in that situation and the student agreed that he wouldn’t.
With respect to the discussion of race in the training, the instructor providing the introduction of the class reviewed the history of stop and frisk litigation and explicitly touched on race, noting that NYPD stopped people based on race. The theme of race was revisited by subsequent instructors, but sometimes less explicitly. Although the plaintiffs believe that the course did not sufficiently discuss the issue of race, the monitor team disagrees.
The Housing one-day training provided attendees with more than skills and knowledge improvements; it influenced the attendees to think differently and react differently based upon NYPD’s stated values of community partnership, valuing human life, respect, courtesy, and civility. The NYPD is in compliance with the requirements for the creation of Housing training materials and the implementation of Housing training (Task 26a, 26b).
D. Training for Investigating Profiling and Biased-Based Policing Complaints The Remedial Order requires the NYPD to track and investigate racial profiling complaints. For this reason, training for investigators on the NYPD’s racial profiling policies and
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how to go about conducting profiling investigations is also required. The training is designed to provide investigators with the fundamental skills to process and investigate complaints regarding the NYPD’s policy prohibiting racial profiling and bias-based policing. Upon completion of the class, participants should understand the NYPD’s policy, the procedures for investigating racial profiling and bias-based policing allegations, and strategies for investigating those allegations. The standards for when investigators can substantiate or find a profiling allegation unfounded, even in the absence of corroborating physical or documentary evidence, are explained.
1. Compliance Assessment—Training for Investigating Profiling and Biased-Based Complaints
The training curriculum for IAB investigators and investigators from patrol borough investigative units regarding the investigations of profiling allegations (Internal Investigators Course, Module Number 04, Profiling and Bias-Based Policing) was approved by the Court in January 2019.
The monitor team observed this training in July 2019. The instructors used the Courtapproved PowerPoint slides and lesson plan, were familiar with the material, and covered the learning objectives stated at the beginning of the presentation. The instructors emphasized Department policy prohibiting officers from targeting members of a racial or ethnic group for police action because they appear more frequently in local crime suspect data. The instructors discussed investigative steps that should be taken when investigating racial profiling allegations: contact the complainant; permit the complainant to tell the full story without interruption and ask follow-up questions after; and don’t close a case simply because the complainant is uncooperative. Although this was not part of the written training materials, the instructors also addressed additional issues on racial profiling investigations:
• Investigators should not close out a case as unfounded because the complainant was found guilty of the underlying criminal case.
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• The fact that the subject officer and the complainant are of the same race does not mean that there is no racial profiling; this cannot be a reason for closing the case as unfounded.
• If the investigator has not been able to contact the complainant, the investigator should check to see if the complainant might be incarcerated. Although the Court approved the training curriculum for this course, the Monitor’s review
of profiling investigations (as well as the review by plaintiffs’ counsel of a smaller sample of investigations) identified numerous problems with the Department’s profiling investigations (see Monitor’s Corrected 10th Report, pp. 74-79), and the Monitor made recommendations for changes to the protocols for investigations. Based on these findings and recommendations, the NYPD has proposed additional changes to the IAB guidelines for profiling investigations, which will be submitted for court approval. Changes to the training curriculum for profiling investigations also will need to be made. The Department is in partial compliance with the written training materials (Task 29a) and not yet in compliance with implementing the training requirements regarding racial profiling (Task 29b).
E. Basic Plainclothes Course The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers. That course was required for officers who joined a precinct-based anti-crime unit, or any other unit that works in plainclothes. While there are no longer anti-crime units, there will still be officers in various units that work in plainclothes, so this training will continue to be needed. It is important to ensure that these officers get training on stop and frisk policies, because their work often involves actively seeking to detect and apprehend suspects.
1. Compliance Assessment—Basic Plainclothes Course On August 14, 2018, the Court approved revised training materials for a module on investigative encounters that is part of a three-day course given to plainclothes officers. The revisions were done to make sure the materials were consistent with the in-service investigative
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encounters training. In addition, BWC videos involving plainclothes officers were added to the training to demonstrate some of the main teaching points. The training materials meet the Court’s requirements (Task 30a).
The monitor team observed the Basic Plainclothes Course on February 24, 2020. Although the instructor used the approved materials, the quality of the training was not sufficient. There was little to no explanation of the material, no engagement with the attendees, and very little connection between the material covered and plainclothes policing. The instructor should provide an introduction and overview to this part of the three-day course, so that participants understand why they are getting this training. Plainclothes enforcement often requires substantially different tactics and this course should integrate the law with tactics. Knowledge of the law and what one can do at the various levels is an important tactic, and it will ensure that officers use their authority correctly. A firm understanding of the law of investigative encounters will give officers a tactical advantage and protect the rights of the people they encounter. Weaving Investigative Encounters instruction into the physical skills component of the plainclothes training would help to reinforce both. The NYPD is not yet in compliance with the implementation of plainclothes training (Task 30b).
F. Recruit Training—Policing Legally A recruit training class entitled “Policing Legally—Street Encounters” covers the legal standards governing when an officer may stop, question and frisk a person. The training emphasizes that the legal authority for a stop does not automatically provide the authority for a frisk. To frisk a person, the officer must have reasonable suspicion that the person stopped is armed and presently dangerous. The training materials stress that an encounter between a civilian and an officer is a “stop” when a reasonable person would not feel free to disregard the officer and walk away. Such an encounter requires the officer to have reasonable suspicion that the person
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was engaged in or is about to be engaged in criminal conduct. The course covers Terry v. Ohio and the four levels of DeBour encounters.
1. Compliance Assessment—Recruit Training—Policing Legally Recruit training was a particular focus of attention for the parties and Monitor at the beginning of the remedial effort, as a recruit class started in January 2015, shortly after the start of this monitorship. The parties recognized that the new class of recruits could not be trained using materials that the Court had found inadequate. Training materials for Police Academy recruit classes on stop and frisk were rewritten and approved by the Court in April 2015. The materials for Policing Legally have been revised as new NYPD policies and new stop report forms were approved. The course was revised in 2018 to ensure consistency with the in-service investigative encounters training being taught at Rodman’s Neck and to add BWC videos as a tool to review each level of investigative encounter; information regarding the Right to Know Act was also added to the curriculum. These changes were approved by the Court on August 14, 2018. The revised Policing Legally training materials are in compliance with the Court’s requirements (Tasks 17b, 19b). The monitor team observed Policing Legally classes early in the monitorship and returned to the Police Academy to observe these classes in 2018, 2019, and 2020. Team members found the instruction to be consistent with the Court-ordered materials and well presented, with significant recruit engagement. The NYPD is in compliance with the requirements for implementing recruit training on stops and frisks (Tasks 17d, 19d). G. Recruit Training—Policing Impartially The remedial order requires revised training on the NYPD’s prohibition of racial profiling. Under that policy, officers may not use race as a motivating factor, even in part, for law enforcement action, unless the action is based on a reliable and specific suspect description. A
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general suspect description, such as “young black male,” is not sufficient; in addition, the fact that a particular group may appear more frequently in local crime statistics is not enough information for there to be reasonable suspicion for a stop. The class material includes information regarding bias and police history and how knowledge of this history can help officers be more effective.
1. Compliance Assessment—Recruit Training—Policing Impartially The Court approved the NYPD’s training course for recruits on racial profiling, Policing Impartially, in April 2015. The training materials are in compliance with the Court’s requirements (Task 18b). Monitor team members observed this class in 2018 and 2019. The course followed the general course guide and approved material, although some of the classes observed could improve with more engagement and discussion of the materials. Monitor team members have noted that discussions of bias-based policing, profiling, and community respect have been included in several of the other recruit training courses and associated scenario-based training, beyond Policing Impartially. Incorporating these themes consistently throughout the training modules will support the building of a Department culture. The NYPD also provided all recruits with the FIP training on implicit bias and procedural justice. The NYPD is in compliance with the recruit training on racial profiling (Task 18d). The Monitor will observe the Policing Legally class when the NYPD resumes Police Academy recruit training. H. Recruit Training—Characteristics of Armed Suspects One recruit training segment identified in the Floyd liability and remedies decisions as needing revision was a training module conducted by the Firearms Training Section on the characteristics of armed suspects.15 This training teaches recruits about factors that should raise
15 Floyd v. City of New York, 959 F. Supp. 2d 540, 614 (S.D.N.Y. 2013) (Liability Opinion); see Floyd v. City of New York, 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013) (Remedial Order).
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their awareness when they attempt to determine whether or not an individual they encounter is armed.
1. Compliance Assessment—Recruit Training—Characteristics of Armed Suspects
A revised version of this training was approved by the Court in February 2017. The NYPD is in compliance with the requirement for a revised curriculum (Task 28a).
Monitor team members and plaintiffs’ counsel observed this training in 2019. The class was taught by a 27-year veteran of the NYPD who has taught similar material for more than 10 years. The instruction followed the Court-approved lesson plan and covered all of the learning objectives. The instructor went to great lengths to emphasize that this was not a stand-alone lesson and that this training must be considered in the context of all other lessons/training received (e.g., investigative encounters training). He noted that none of the characteristics singularly was sufficient to show reasonable suspicion that a person was carrying a firearm. The NYPD is in compliance with the requirement to implement this training (Task 28b).
I. Recruit Training—Interior Patrol at NYCHA and TAP Locations Both the Davis settlement and the Ligon settlement require revised recruit training governing the legal standards and procedures for when a person may (or may not) be stopped in or outside a TAP or NYCHA building (P.G. 212-59 and P.G. 212-60). The training must instruct recruits that mere presence near, entry into, or exit from a TAP or NYCHA building is not an “objective credible reason” to approach a person to request information. The training also must cover trespass enforcement standards for TAP and NYCHA buildings, including the requirement of completing a TCFS for trespass arrests.
1. Compliance Assessment—Recruit Training—Interior Patrol
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The NYPD combined the Court-approved recruit training materials regarding patrols at TAP buildings with the training materials approved by the Court in Davis governing housing patrols in and around NYCHA buildings. The training also includes scenario-based role-play exercises for both TAP and NYCHA buildings. The training materials were approved by the Monitor and meet the requirements of the court orders (Tasks 22a, 25a).
Monitor team members have observed these classes and generally found the instruction to be consistent with the approved materials. For some of the classes observed in 2020, however, the training did not meet the level of quality expected. The Monitor recommends that when police recruit classes resume, the instructors of the in-service One-Day Housing training class meet with the instructors for the Interior Patrol recruit class and compare materials. It will also be helpful for the recruit class to provide the Housing brochure that was distributed in the in-service Housing training. In addition, the training materials will need to reflect the termination of TAP. The NYPD is in partial compliance with these requirements (Tasks 22b, 25b).
J. Field Training Guide and FTO training The Court’s Remedial Order required the NYPD to revise its Field Training Guide and Field Training Officer (FTO) training materials to reflect the corrected policies governing trespass stops outside TAP buildings. The Field Training Guide and the FTO materials also needed to be revised to conform with P.G. 212-11.
1. Compliance Assessment—Field Training Guide and FTO Training The Field Training Guide was revised in 2016 and training for FTOs was revised to reflect changes to the in-service investigative encounters training. In addition, BWC videos have been added to the training and the PowerPoint presentation has been made more engaging. The language in the Field Training Guide and FTO training materials mirrored the language approved by the Court in other trainings, and the Monitor approved the guide and the training materials. The
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training observed by the monitor team was in compliance with the Court’s requirements (Tasks 23a, 23b). The last FTO training was conducted in March 2020. As there is no current class of Academy recruits, it is unclear when the next FTO training will occur.
K. Refresher Training Course for Investigative Encounters The NYPD and the parties recognize that the one-time training on stop and frisk at Rodman’s Neck or at the Police Academy will not be sufficient to instruct and prepare recruits and officers to properly conduct stops and frisks, and supervisors to review stops and frisks. The NYPD has delivered additional training at precinct roll calls upon requests of training sergeants and at RISKS roll-out meetings. NYPD is also developing “booster” or refresher training for officers and supervisors, including officers who recently graduated from the Police Academy. The supervisors’ “booster” training will include additional material regarding review of stop reports and the responsibilities of supervisors. NYPD plans to conduct this training as an online course, which will include a post-training quiz.
1. Compliance Assessment—Refresher Training Course for Investigative Encounters
The NYPD has developed draft scripts for the following refresher module topics: Investigative Encounters, Level 1-4; Documenting Stops; Right To Know Act; Racial Profiling; Patrolling NYCHA and TAP Properties; and Supervisor’s Responsibility. The NYPD distributed the refresher training scripts to the parties at the beginning of September. After the parties review and comment on the draft scripts, the NYPD will film the refresher modules for the parties’ review and develop post-training tests. The materials will then be submitted for the Court’s review. The NYPD is in partial compliance with the requirements for developing the materials for refresher training (Task 31a) and not yet in compliance with implementation (Task 31b).
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VI. BODY-WORN CAMERAS A. Precinct-Level BWC Pilot As part of the Remedial Order, the Court directed the Monitor to oversee a pilot of the use
of BWCs by NYPD officers. On April 24, 2017, the NYPD launched its BWC pilot program for a one-year period pursuant to the requirements of the amended remedial order in Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (Remedial Order). The goal of the pilot program is to assess the effects of deploying BWCs on policing outcomes, community perceptions of policing in their neighborhoods, and whether deployment results in reducing unconstitutional stops and frisks. The Monitor’s research and evaluation design for the BWC pilot program was developed and executed by Professor Anthony Braga of Northeastern University, Professor John MacDonald of the University of Pennsylvania, and other members of the monitor team.
The NYPD launched the BWC pilot program in April 2017. In a randomized control trial, 1,200 officers in 20 pilot precincts wore cameras for a one-year period. Those 20 precincts were matched with 20 precincts in which officers were not wearing cameras. The monitor team is currently completing its work on a report to the Court on the study, examining outcome measures relating to the civility of police-civilian encounters, police activity, and police lawfulness.
1. Supervisory Review of BWC Videos As part of the BWC pilot, the Court directed the Monitor to “establish procedures for the review of stop recording by supervisors and, as appropriate, more senior managers.” In 2017, the NYPD developed a self-inspection protocol for the review of BWC videos by sergeants in the commands with BWCs. Sergeants must review five BWC videos each month. After reviewing these videos, sergeants must complete a BWC self-inspection worksheet for each video; the sergeant’s platoon commanders or lieutenant must then review two of the videos and complete the self-inspection worksheet; and the command’s executive officer must review and approve the
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BWC self-inspection worksheet. For one month out of each quarter, the BWC compliance unit selects the five BWC videos for each sergeant in the command.
In addition to the self-inspection, the NYPD’s BWC patrol guide, P.G. 212-123, directs the patrol supervisor, training sergeant, and ICO to “[p]eriodically review BWC video as appropriate, to provide positive feedback and address any performance or tactical deficiencies observed.” At the command RISKS Review meetings, NYPD leadership examines the number of BWC videos reviewed by supervisors and discusses with the commanding officer what criteria the command uses for its reviews.
2. Preserving BWC Videos for Investigation of Complaints The Remedial Order also directed the Monitor to “establish procedures for the preservation of stop recordings for use in verifying complaints in a manner that protects the privacy of those stopped.” When the BWC pilot was launched, the NYPD set out a procedure for sharing BWC video with the CCRB. The BWC patrol guide, P.G. 212-123, states that “[t]he Internal Affairs Bureau will process requests from the Civilian Complaint Review Board for body-worn camera video as per P.G. 211-14,” but it does not provide any protocol for how those videos would be shared or any timeframe for when they would be shared. Initially, there was agreement between the NYPD and the CCRB that requested BWC videos would be provided within seven business day; but this was at a time when there were only 1,000 cameras in the pilot program, fewer complaints involving BWCs, and thus fewer requests for BWC videos. In 2018 and 2019, the length of time it took for the NYPD to respond to CCRB requests for BWC videos became a significant problem for CCRB’s investigation. The CCRB reported that in November 2019, there were 574 requests for BWC footage pending, with half of the video requests pending for more than 30 days and 28 percent of the requests pending for more than 60 days. The Monitor worked with the NYPD, Law Department, and CCRB to determine the extent
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of delays and their causes, and develop a procedure for prompt access to BWC footage by the

CCRB.

On November 21, 2019, the NYPD and CCRB entered into a Memorandum of

Understanding (MOU) to expedite production and sharing of BWC footage. Under the MOU, the

NYPD will establish a facility with at least ten secure computer terminals so that CCRB

investigators can review BWC footage directly. The NYPD must provide CCRB with BWC

footage requested within 25 days if any redactions are needed, and within ten days if no redactions

are needed. In a February 2020 CCRB report on BWCs, the chair of the CCRB stated that these

new protocols “will allow CCRB investigators to search for videos alongside NYPD personnel,

view unredacted footage, and more rapidly isolate and request the portions of video that are

relevant to CCRB investigations. It is our hope that this new system will streamline CCRB’s

access to BWC footage, which is pivotal to our work.”

The coronavirus pandemic and the shelter-at-home orders upended the BWC protocol

established in the MOU. The NYPD has not yet been able to set up the shared facility to expedite

production, and the CCRB staff is working remotely. In addition, there were a significant number

of new complaints and additional requests for BWC videos after the protests over the death of

George Floyd. However, after the CCRB raised concerns about the delays in obtaining BWC

videos, the NYPD made significant progress in providing the CCRB with BWC videos for

complaint investigations related to the protests and in reducing the backlog of BWC requests. In

its most recent September 2020 Statistical Report, the CCRB reported that 173 requests for BWC

videos were pending as of August 31, 2020, a significant decrease from the 641 requests that were

pending

as

of

July

31,

2020.

See,

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https://www1.nyc.gov/assets/ccrb/downloads/pdf/policy_pdf/monthly_stats/2020/20200909_mo nthlystats.pdf.
3. Compliance Assessment—Precinct Level BWC Pilot The precinct level BWC pilot has been completed. As part of the pilot, the NYPD developed protocols for supervisory review of BWC videos that the Monitor approved in August 2017. Prior to the November CCRB/NYPD Memorandum of Agreement, however, the NYPD did not have an adequate procedure for preserving and providing BWC videos in a timely manner to the CCRB for complaint investigations. Now that the MOU has been signed and the NYPD and CCRB have developed protocols for CCRB access to BWC videos, the NYPD is in compliance with the BWC pilot requirements of Tasks 32a, 32b, and 32c. B. PSA BWC Pilot Professor Anthony Braga and other members of the monitor team developed a separate research and evaluation plan for the use of BWCs by Housing Bureau officers working in PSAs, to assess how BWC videos impact policing in and around NYCA properties. The Monitor’s 8th Report describes that study. NYPD Housing Bureau officers in the nine PSAs were equipped with BWCs over the course of nearly 11 months, starting with PSA 8 in February 2018 and ending with PSA 9 in December 2018. The study will compare officer data for the 36 months before officers were equipped with BWCs to officer data for the 12 months the officers were equipped with BWCs.
1. Compliance Assessment—PSA BWC Pilot The monitor team is in the process of collecting and analyzing the data for the PSA BWC study. The NYPD is in partial compliance with the requirement for the PSA BWC pilot (Task 33).
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VII. PERFORMANCE EVALUATIONS The Court found that the NYPD’s performance objectives and the way that the NYPD
measured officer performance put pressure on officers to make stops without regard to whether they were constitutional. For that reason, one condition for NYPD compliance is to put in place a performance evaluation system for officers that does more than just count the number of enforcement actions. The NYPD developed and implemented a new performance evaluation system in 2017. In the new system, the lawfulness of stops and the accuracy of stop reports play a role, but the number of stops does not.
Part of the new system is the Officer Profile Report, an electronic form that is automatically generated monthly. This report compiles data from numerous Department databases and compares the officer to other officers in his or her precinct, borough and citywide. It does not count the number of stops made by the officer. Supervisors are to review the Officer Profile Report each quarter and complete a Quarterly Evaluation. Supervisors use the Quarterly Evaluation to rate officers in 12 performance categories or “dimensions” on a scale from one to four. The fourth quarter evaluation will provide the supervisor with a section to recap the officer’s yearly performance.
The 12 performance dimensions are: 1. Problem Identification/Solving 2. Adaptability and Responsiveness 3. Judgment 4. Integrity 5. Application of Law and Procedures 6. Community Interaction 7. Departmental Interaction 8. Professional Image and Maintenance of Equipment 9. Quality and Timeliness of Reports 10. Initiative 11. Leadership
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12. Implementation of Proactive Policing Strategies (for members who perform administrative functions, a different dimension, Competence in Unit’s Mission, replaces this dimension) 1. Compliance Assessment—Performance Evaluations
In November 2017, the Court approved the NYPD’s performance-evaluation system for patrol officers. In doing so, the Court ordered that the Monitor review and assess certain aspects of the system. The review is to ensure that, in practice, the system does not “reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness” or undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments. ECF 564.16
To evaluate whether the performance evaluation system meets these criteria, the Monitor has undertaken a number of steps. The monitor team reviewed the evaluations for officers receiving a “Needs Improvement” rating for Application of Law and Procedures, Quality and Timeliness of Department Reports, and Implementation of Proactive Policing for the third quarter of 2019. The monitor team also reviewed data on officers receiving a “Needs Improvement” CRAFT supervisory feedback report for those dimensions. In addition, the monitor team reviewed the quarterly evaluation in a sample of precincts, as well as a PSA and Transit District.
In the third quarter of 2019 there were more than 6,000 CRAFT entries in the selected Performance Dimensions of Application of Law and Procedures, Implementation of Proactive Policing, and Quality and Timeliness of Written Reports. These entries were examined to identify
16 Pursuant to the court order, “the Monitor shall, in his bi-annual reports, review and assess the NYPD’s performance-evaluation system to ensure that, on paper and in practice, it does not (a) reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness or (b) undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedies Opinion.”
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areas related to stops. The table below shows the breakdown of stop-related CRAFT entries in

those performance dimensions. The reasons supervisors provided to describe the nature of the

feedback was diverse. An attempt was made to condense those descriptions into major themes

and categories to permit a better understanding of the areas identified most often.

Chart 14. CRAFT Entries on Select Performance Dimensions, 3rd Q2019

Performance Dimension

#3Q2019 Entries

Application of Law and Procedures

119

ACTIVITY LOG DEFICIENT

4

APPROVED STOP REPORT WITH DEFICIENCIES

25

DID NOT ENSURE STOP REPORT PREPARED

4

FAILED TO PREPARE A STOP REPORT

27

FAILURE TO OFFER BUSINESS CARD

21

IMPROPER STOP

2

STOP REPORT DID NOT ARTICLUATE RS

5

STOP REPORT DID NOT ARTICULATE RS

28

STOP REPORT DID NOT ARTICULATE RS FOR FRISK

3

Implementation of Proactive Policing

11

ACTIVITY LOG DEFICIENT

8

FAILURE TO OFFER BUSINESS CARD

1

PROFESSIONAL STOP

2

Quality and Timeliness of Written Reports

88

ACTIVITY LOG DEFICIENT

9

APPROVED STOP REPORT WITH DEFICIENCIES

31

FAILED TO PREPARE A STOP REPORT

13

FAILURE TO OFFER BUSINESS CARD

5

IMPROPER STOP

1

STOP REPORT DID NOT ARTICLUATE RS

28

STOP REPORT DID NOT ARTICULATE RS FOR FRISK

1

Total

218

The monitor team also reviewed the quarterly evaluations for nine precincts, one PSA, and one Transit District, totalling 1,276 evaluations. Those evaluations showed what is known as a “halo effect” in performance evaluation systems. In none of the 1,276 evaluations did a supervisor

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rate an officer as “Needs Improvement” in any of the 12 dimensions. This was the case even for the seven officers who received a negative CRAFT entry for failing to prepare a stop report, one officer who received two negative CRAFT entries for failing to prepare a stop report, 13 officers who received negative CRAFT entries for failing to articulate reasonable suspicion for a stop or a frisk, and one officer who received two negative CRAFT entries for failing to provide a business card. Indeed, the rating for “Application Law and Procedures” for each one of these 22 officers was either “Exceptional” or “Exceeds Standards.” This suggests that supervisors are not using the evaluation system to achieve one of its stated purposes—to identify and correct performance that need improvement.
The monitor team’s review of the data indicates that the NYPD’s performance evaluation system, as it is being implemented in practice, does not lead supervisors to pressure officers to make more stops without regard to the lawfulness of those stops. The monitor team did not find cases in which officers were given negative evaluations because of a lack of stop activity. However, the Monitor has not reviewed the performance evaluations of officers who conducted multiple improper stops or frisks or failed to complete stop reports to examine whether those deficiencies were taken into account in their evaluations. High performance evaluations, including in the dimension of “Application of Law and Procedures,” may indicate that the performance evaluation system is undermining rather than supporting the goals of the remedial process. For this reason, the Monitor is deferring the compliance determination for the performance evaluation requirement until the monitor team reviews more data as indicated above (Task 38b). VIII. AUDITING
The Court’s Remedial Order requires the NYPD to develop systems to monitor its members’ compliance with constitutional and state law standards. The Department’s auditing function is designed to discover and then correct deviations from NYPD policy and the law. The
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Department’s QAD is the unit that conducts audits, including those relating to stop and frisk and trespass enforcement. QAD also requires commands to submit self-inspections in order to monitor their compliance. The audit procedures address whether Department reports were properly prepared (e.g., whether a stop report was completed), and the quality of the information contained in the Department reports (i.e., whether the stop met 4th Amendment standards). QAD is currently conducting four types of audits relevant to the remedial measures: (1) audits of stop reports and associated BWC videos; (2) RAND audits to identify undocumented stops; (3) PIE audits, also to identify undocumented stops; and (4) audits of trespass arrests and Trespass Crime Fact Sheets (TCFS).
On July 27, the Court approved the NYPD’s 2020 Audit Plan. These audits and selfinspections examine each command’s compliance with the 4th Amendment and the NYPD’s stop and frisk procedures. Now that the Court has approved the 2020 Auditing Plan, the Department has begun to put it into operation. The sections below report on the changes from earlier auditing protocols to what the Department is now beginning to implement after court approval.
A. QAD Auditing of Stop Reports and Activity Logs QAD had been using two auditing methodologies, one for Patrol Bureau commands and another for other commands, including Housing PSAs and Transit Districts. For all Patrol Bureau commands, stop reports were evaluated weekly. Stop reports in other commands, including PSAs and Transit Districts, were evaluated quarterly. Now that the 2020 Audit Plan has been approved, QAD will be auditing all commands, including PSAs and Transit Districts, weekly. QAD provides each command a detailed assessment of their performance in the most recent quarter and compares that performance to prior quarters. Chart 15, below, shows QAD’s determinations of the percentage of stop reports that articulate reasonable suspicion for the stop, the percentage of stop reports that articulate reasonable suspicion that the person frisked was armed and dangerous, and
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the percentage of stop reports that articulated a legal basis for the search conducted. Based on the

assessments from QAD audits, the NYPD’s level of compliance improved from 2017 to 2018, and

remained at about the same level for 2019.

Chart 15. QAD Stop Report Audits

Period 2017

Stop Reports Evaluated
7,526

Stop Narrative Articulates Reasonable Suspicion for Stop 5,448 (72%)

2018

7,134 5,839 (82%)

2019

7,475 6,050 (81%)

Frisks Evaluated
4,480 4,119 3,434

Frisk Narrative Articulates Reasonable Suspicion for Frisk 3,920 (88%)
3,739 (91%)
3,233 (94%)

Searches Evaluated
2,458 2,421 2,473

Search Narrative Articulates Legal Basis for Search
2,256 (92%)
2,277 (94%)
2,312 (93%)

Note that for stops in 2017-2019, QAD reviewed only frisks and searches from stops that were deemed lawful. If QAD determined that the stop report did not articulate reasonable suspicion, the frisk and search, if conducted, were not reviewed by QAD in its audits and not included in the calculations of the percentage of frisks with reasonable suspicion and searches with a legal basis in Chart 15 above. Under the 2020 Audit Plan, QAD will now be reviewing all frisks and searches, even if the stop that led to the frisk or search was deemed improper.
As noted in Section IV, Supervision, commanding officers oversee self-inspections in their commands. Concerning stop, question, and frisk, the ICO in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for the month reviewed, the ICO must evaluate all of them. The results of these selfinspections are reported up the chain of command in the precinct and the borough, and then QAD reviews a subset of the results to assess whether the results of the command’s self-inspection of stop reports are different than the results of QAD’s audit of stop reports. Stop reports that QAD finds deficient, but that the command’s self-inspection did not, are identified in the command’s RISKS profile and are raised at the command’s RISKS Review meeting. Chart 16 below shows

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improvement from 2018 to 2019 in the percentage of stop reports for which QAD auditors and

command self-inspections came to the same conclusions.

Chart 16. QAD Audits and Command Self-Inspections of 2018-1Q2020 Stop Reports

Quarter

# Stop Reports Audited by QAD

# Stop Reports Audited by QAD in Command Self-Inspection

# QAD, Command Consistent

% QAD, Command Consistent (Column 3 divided by Column 4)

1Q2018 1,862

1,414

868

61%

2Q2018 1,852

1,458

948

65%

3Q2018 1,761

1,343

942

70%

4Q2018 1,659

1,088

765

70%

1Q2019 1,741

1,100

884

80%

2Q2019 2,172

1,313

1,078

82%

3Q2019 1,915

1,244

972

78%

4Q2019 1,647

1,094

842

77%

1Q2020 1,823

1,105

833

75%

B. Monitor Team Review of Stop Report Audits Starting with the audits from the fourth quarter of 2016, the monitor team has obtained

QAD’s audits of a sample of commands, along with the audited stop reports from those commands.

The goal is to evaluate the auditors’ work and also to review a sufficient number of stops to be

able to make meaningful statements about citywide compliance. The stop reports are evaluated

by three members of the monitor team. When they disagree, the stop reports are reviewed by the

Monitor and Deputy Monitor. These disagreements are discussed in monitor team meetings, and

then the results are sent to QAD, which meets with the monitor team to discuss those cases in

which there is a disagreement between QAD’s and the Monitor’s assessment.

Chart 17 below compares the number and percentage of stop reports each quarter that QAD

determined articulated reasonable suspicion with the number and percentage of stop reports that

the monitor team determined to be justified. Both QAD audits and those conducted by the monitor

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team show an improvement in the stops meeting the standard of reasonable suspicion. Chart 17

shows that although the monitor team’s assessment of compliance is lower than the NYPD’s

assessment of compliance, the difference between the monitor team’s assessments and QAD’s

assessments has decreased over time. This is likely due at least in part to the meetings with the

monitor team and NYPD and a more thorough review of the stop reports by QAD as a result.

Chart 17. QAD and Monitor Ratings of Justified Stop Reports

QAD (No., % Yes) Monitor (No., % Yes) Total

1Q2017

197 (77%)

142 (55%)

256

2Q2017

209 (69%)

178 (59%)

302

3Q2017 4Q2017

219 (70%) 221 (72%)

188 (60%)

312

212 (70%)

305

1Q2018

222 (72%)

202 (66%)

308

2Q2018

238 (81%)

211 (72%)

295

3Q2018

240 (79%)

251 (83%)

302

4Q2018

232 (77%

239 (80%)

300

1Q2019

263 (83%)

250 (79%)

315

2Q2019

255 (83%)

245 (80%)

308

3Q2019 4Q2019

257 (85%) 233 (75%)

249 (82%)

304

228 (74%)

310

Total

2,786 (77%)

2,595 (72%)

3,617

C. QAD Audits of BWC Videos Associated with Stop Reports and Arrests

In the fourth quarter of 2017, QAD began auditing BWC videos associated with the five

most recent stop reports that indicate there is a corresponding BWC video. These videos and their

corresponding stop reports are reviewed to assess whether the BWC video is complete and to test

the accuracy of the stop report narratives. QAD will identify stops where the narrative for the stop

or the frisk in the stop report is inconsistent with what is recorded on the BWC video of the

encounter. Chart 18 below shows QAD’s findings regarding whether the BWC videos are

inconsistent with the Stop Report narrative of the encounter. The number of videos listed in the

second column of the chart below are only those for which the auditor was able to make a

conclusion about the consistency of the video and the stop report narrative. QAD’s methodology

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changed in 2Q2019 to eliminate “inconclusive” as a determination. QAD auditors now assess

whether there is any inconsistency between the BWC video and the stop report narrative, and if

there are no inconsistencies, the video is listed as consistent.

Chart 18. QAD Audit of Stop Reports with Associated BWC Video

Number of Videos Reviewed

Video Consistent with Stop Narrative

Video Inconsistent with Stop Narrative

1Q2018 82

61 (74%)

21 (26%)

2Q2018 164

141 (86%)

23 (14%)

3Q2018 258

222 (86%)

36 (14%)

4Q2018 476 1Q2019 755

406 (85%) 666 (88%)

70 (15%) 89 (12%)

2Q2019 940 3Q2019 947 4Q2019 870

863 (92%) 877 (93%) 797 (92%)

77 (8%) 70 (7%) 73 (8%)

1Q2020 905

817 (90%)

88 (10%)

Video Inconclusive with Regard to Stop Narrative
43 40 36 1

QAD also conducts a similar analysis for the five most recent arrest reports in the PIE

audits that indicate they have corresponding BWC videos. In the case of arrests, the videos and

arrest reports are reviewed for completeness, whether a stop report was prepared if the arrest arose

out of a stop, and whether the BWC video was consistent with the arrest report. The arrest reports

reviewed are for all PIE arrests not only trespass arrests. Chart 19 below shows QAD’s findings.

Chart 19. QAD Audits of Arrests with Associated BWC Video

Number of Videos Video Consistent

Reviewed

with Arrest Report

2Q2018

38

37 (97%)

3Q2018

144

139 (96%)

4Q2018

418

410 (98%)

1Q2019

924

894 (97%)

2Q2019

1,089

1,077 (99%)

3Q2019

1,016

1,008 (99%)

4Q2019

1,021

1,011 (99%)

1Q2020

988

982 (99%)

Video Inconsistent with Arrest Report
1 (3%) 5 (4%) 8 (2%) 30 (3%) 12 (1%) 8 (1%) 10 (1%) 6 (1%)

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D. QAD Audits for Undocumented Stops

The documentation of stops is essential for the Department to demonstrate substantial

compliance with the remedial orders. QAD performs two types of audits to determine whether or

not stops are being properly documented: RAND audits and PIE audits.

1. RAND Audit Results

QAD continues to audit the potential underreporting of stop reports by using what has been

labeled a RAND audit. As discussed above, this audit program is designed to identify stop

encounters using radio transmissions to identify instances in which stop reports should have been

prepared. QAD uses keyword searches of ICADs to identify events that likely involved stop

encounters. These keywords are “Stopped,” “Show-up,” “Holding,” and “Warrant Check.” If a

potential stop encounter is identified through the review of ICADs and/or listening to the

corresponding radio transmissions, QAD checks NYPD records to determine if a stop report was

prepared. If there is BWC video of the event, QAD reviews the video as part of this analysis. If

the auditor determines that a stop report may have been required, QAD refers the matter to the

command for further investigation. The command then reports back to QAD whether the

encounter did, in fact, require a stop report and whether one was filed.

Chart 20 below shows that in 2019, there were 21 Terry stops without a stop report

prepared. The compliance levels have fluctuated, with the 1Q2020 at 56 percent compliance.

Chart 20. RAND Audit with Command Responses

Total RAND Audits Indicating a Possible Stop

Stop Reports Prepared

Report Deemed Not Necessary After Command Investigation

4Q2016 28

8

8

1Q2017 28

6

10

Total Terry Stops
20 17

Terry Stop Without Stop Report

Compliance Rate (%) (Stop Reports Prepared/Total Stops)

12

40%

11

35%

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2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019 2Q2019 3Q2019 4Q2019 1Q2020

Total RAND Audits Indicating a Possible Stop 31 21 23 21 25 26 25 19 18 28 22 40

Stop Reports Prepared
6 12 12 10 13 6 9 13 11 13 16 20

Report Deemed Not Necessary After Command Investigation 9 4 6 7 5 12 3 4 5 2 2 4

Total Terry Stops
22 17 17 14 20 14 22 15 13 26 20 36

Terry Stop Without Stop Report

Compliance Rate (%) (Stop Reports Prepared/Total Stops)

16

27%

5

71%

5

71%

4

71%

7

65%

8

43%

13

41%

2

87%

2

85%

13

50%

4

80%

16

56%

When a command investigates a RAND audit encounter and determines that it was a stop

without a stop report, the command directs the officer to complete a stop report and takes corrective

action. Below are the follow-up actions taken by the commands for members who did not

document stops.

Chart 21. Command Follow-Up Actions from RAND Audit

Terry Stop Without Stop Report

Command Discipline

Instructions/ Training

Minor Violations Log or CRAFT Supervisory Report

4Q2016 12

2

3

5

1Q2017 11

0

6

5

2Q2017 16

0

8

5

3Q2017 5

0

3

1

4Q2017 5

4

1

0

1Q2018 3

2

0

1

2Q2018 7

0

2

3

3Q2018 8

1

4

3

4Q2018 10

1

1

7

No Disciplinary Action
2 0 3 1 0 0 2 0 1

1Q2019 2

0

0

2

0

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Terry Stop Without Stop Report

Command Discipline

2Q2019 2

0

3Q2019 13

1

4Q2019 4

0

1Q2020 16

1

Instructions/ Training
0 0 0 1

Minor Violations Log or CRAFT Supervisory Report 1 11 4 14

No Disciplinary Action
1 1 0 0

2. Results from PIE Audits

QAD also uses PIE audits to detect undocumented stop encounters. These audits look at

the last 25 arrests in each command from the audit period that result from police-initiated

enforcement. These are defined as arrests in which the People of the State of New York are the

complainants on the Complaint Report, such as criminal possession of a controlled substance or

criminal possession of a weapon. Arrest reports are reviewed to determine whether or not a stop

report should have been completed for the encounter. When an auditor determines that an arrest

report possibly required a stop report and no stop report was filled out, the arrest report is sent to

the command for further investigation.

Chart 22. PIE Audits with Command Responses

Arrests Audited Possibly Requiring Stop Reports

Stop Report Not Required

Command Response Missing

4Q2016 103

50

7

1Q2017 161

95

23

2Q2017 154

104

6

3Q2017 194

122

26

4Q2017 225 1Q2018 122

171

0

74

4

2Q2018 149

103

5

3Q2018 190

121

19

4Q2018 166

74

37

1Q2019 156

63

72

2Q2019 128

94

1

3Q2019 149

96

0

Stop Report Required
46 43 44 46 54 44 41 50 55 21 33 53

Stop Report on File
20 19 13 12 20 18 16 22 34 13 20 21

Percentage Compliance (SR on file/SR Required) 44%
44%
30%
26% 37% 41%
39%
44%
62%
62%
61%
40%

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4Q2019

Arrests Audited Possibly Requiring Stop Reports
138

Stop Report Not Required
103

Command Response Missing
0

Stop Report Required
35

Stop Report on File
16

Percentage Compliance (SR on file/SR Required)
46%

E. QAD Auditing of Trespass Crimes Fact Sheets Officers are required to fill out a TCFS for all trespass arrests in and around NYCHA

buildings and buildings enrolled in TAP. QAD auditors review whether or not a TCFS was

prepared when required, whether or not the officer articulated a proper basis for the approach, and

whether the arrest documentation articulates probable cause for the arrest. As noted in Chart 23

below, in 2019, NYPD officers completed a TCFS for only 20 of 39 (51%) trespass arrests at TAP

locations, an insufficient level of compliance. QAD determined that all of the 20 TCFS articulated

a proper basis for the approach, and that of the 39 trespass arrests, 85 percent of the arrest

documentation articulated probable cause. For trespass arrests at NYCHA properties, 94 percent

had a TCFS, 98 percent of the TCFS articulated a proper basis for the approach, and 93 percent of

the arrest documents articulated probable cause. It appears that Housing officers, who make

trespass arrests more frequently than precinct patrol officers, are more familiar with the

requirement of a TCFS for every trespass arrest.

Chart 23. QAD Audits of Trespass Arrests

TAP

TAP TCFS TAP

Trespass Articulated Trespass

Arrest Had Proper Basis Arrests

TCFS

for Approach Articulated

Probable

Cause

2018 82%

98%

75%

(140/171) (137/140) (129/171)

NYCHA Trespass Arrest Had TCFS
85% (516/604)

NYCHA TCFS Articulated Proper Basis for Approach
97% (501/516)

NYCHA Trespass Arrests Articulated Probable Cause
94% (567/604)

2019 51% (20/39)

100% (20/20)

85% (33/39)

94%

98%

(520/555) (508/520)

93% (515/555)

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1. Compliance Assessment—Auditing In its Liability Opinion, the Court held that the NYPD was deliberately indifferent to unconstitutional stops and frisks, in part because it had “no meaningful procedures for auditing stop paperwork to monitor the constitutionality of stops.” Floyd v. City of New York, 959 F. Supp. 2d 540, 609 (S.D.N.Y. 2013). In particular, the Court found that QAD’s process of reviewing stops consisted of “a superficial review of whether paperwork was completed, not a substantive review of whether a stop was constitutional.” Id. at 609-10. Partly to address that finding, the Court’s Remedial Order instructed the Monitor to work with the parties to develop reforms to the NYPD’s “monitoring . . . regarding stop and frisk.” Floyd v. City of New York, 959 F. Supp. 2d 668, 677 (S.D.N.Y. 2013). The Monitor has worked with the NYPD and plaintiffs to make QAD’s review of stops more effective. That process has produced many changes through the years. In 2016, new methods were developed and implemented for reviewing representative samples of stop reports in the precincts. In 2017, more stringent criteria were developed for assessing whether stop reports articulate reasonable suspicion; a new worksheet was created to improve the commands’ selfinspections of encounters; and QAD went beyond stop reports to start auditing TCFS. And in 2019, QAD began auditing stop reports from precincts weekly, rather than monthly, and began reviewing the BWC footage related to some of the stop reports it audited. On July 27, 2020, the Court approved the NYPD’s 2020 Auditing Plan. The 2020 Audit Plan was the result of substantial feedback shared among the monitor team, plaintiffs, and NYPD. The 2020 Audit Plan includes important improvements over the prior protocols. Most significantly, the plan requires QAD to review BWC video corresponding to every stop report being audited. In this BWC review, QAD will examine: whether the encounter was recorded in full or in part; whether the BWC video was consistent or inconsistent with the stop report, and, in
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particular, whether the video indicates that the stop report does not accurately articulate reasonable suspicion for the stop or frisk, or a legally sufficient basis for the search; and whether the officer complied with the Right to Know Laws, including compliance with the consent to search policy. This is a substantial increase in BWC review over the prior protocols. Also, under the prior protocols, QAD reviewed only a sample of BWC videos associated with trespass arrests and PIE arrests as part of QAD Trespass Arrests audits and PIE audits. Under the 2020 Audit Plan, QAD will review the BWC video associated with every audited trespass arrest and PIE arrest. In addition, under the new command self-inspection protocol in the 2020 Audit Plan, the ICOs at commands will review the BWC video associated with each stop report being evaluated as part of the command stop report self-inspection.
With respect to the frequency of audits, QAD implemented a pilot program in which it now audits precincts on a weekly basis. This frequency provides those commands with timely feedback, allowing them to take appropriate corrective actions more quickly than audits conducted quarterly. Under the 2020 Audit Plan, this weekly audit protocol will now also be applied to Transit Districts, PSAs, and selected Specialized Units.
The NYPD is required to establish auditing procedures that identify non-compliant stops, frisks, searches, and trespass arrests and a mechanism for correcting them. With the 2020 Audit Plan, the NYPD is in compliance with this requirement (Task 36a).17
Because the 2020 Audit Plan has just recently been approved, the Monitor is not yet able to assess how the NYPD is implementing these protocols to determine compliance in practice.
17 QAD’s audits and command self-inspections assess compliance with the 4th Amendment and the Department’s stop and frisk policies. The NYPD also is required to develop sound procedures for monitoring 14th Amendment compliance as well.
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That will be reported in our next Report. As of this Report, the NYPD is in partial compliance (Task 36b). IX. EARLY INTERVENTION SYSTEM
On November 20, 2018, the Court ordered the Department, in consultation with the Monitor, to develop a program for “systematically receiving, assessing, and acting” on five categories of “information regarding adverse findings of conduct of police officers involving illegal stops or illegal trespass enforcement.”18 The information to be included in the early intervention system are: (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 there exists evidence of police misconduct. Id. The purpose of the “early intervention system” is to identify members who engage in potentially problematic behavior, not as part of the NYPD’s discipline system, but to mentor, support, and correct members of the service so as to prevent officers from future misconduct.
The Department submitted its first plan for its early intervention system in January 2019. After the plaintiffs objected to a number of aspects of the NYPD plan and numerous pleadings in response and reply, the Department in December 2019 submitted a revised plan to comply with the Court’s order. Negotiations among the parties followed, and a joint submission was made to the Court laying out the remaining differences between the parties. On June 2, 2020, the Court issued a final order regarding the Department’s early intervention system. Floyd, ECF Dkt. 767.
18 Floyd, ECF No. 662.
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A. The Early Intervention Committee The NYPD has provided the Monitor with information regarding how it is implementing the Court’s early intervention order. The central component of the Department’s system is the Early Intervention Committee (the “Committee”). This Committee is chaired by the Deputy Commissioner of Risk Management and includes executive-level personnel representing the Deputy Commissioner of Legal Matters, the Deputy Commissioner of Equity and Inclusion, the Chief of Department, the Chief of Detectives, the Chief of Patrol, and the Chief of Personnel. The Committee replaces the existing Civil Lawsuit Monitoring and Adverse Credibility Committees, which had their last meetings to assess officers who met specific thresholds prior to June 1, 2020. The Committee will review officers who met designated thresholds from June 1, 2020 onward for potential intervention. The thresholds for review by the Committee include three or more declinations to prosecute in a 12-month period for 12 specified categories,19 a suppression decision, a court finding of incredible testimony, a declination by the Law Department to represent or indemnify the officer, a judgment or settlement where there exists evidence the officer violated Department policy, or a complaint containing an allegation of racial profiling or racial slurs. In addition to the thresholds specified in the Order, the Committee will also review any officer who
19 The 12 categories are: complainant or witness failed to positively identify defendant; incorrect or missing paperwork; insufficient evidence; lack of element of a crime; lack of jurisdiction; lack of nexus between defendant and crime; mere presence of defendant at location; no personal observation of violation by arresting officer; potential search and seizure issue; unavailability of arresting officer; prosecutorial discretion; summonsable offense.
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meets certain criteria regarding civil litigation,20 force complaints,21 and other indicators specified in a bill recently passed by the City Council and signed by the Mayor.22
When a threshold is triggered, RMB staff prepare a profile of the officer and the Committee evaluates the officer for potential intervention. As required by the Court’s order, guidelines for the Committee’s evaluation process will be set out in a written policy that will be posted on the Department’s website. The Department anticipates that the guidelines will be published in the fourth quarter of 2020. When evaluating an officer, the Committee will consider relevant details relating to the incident that caused the officer to meet the threshold, the officer’s disciplinary and monitoring history, the officer’s tenure with the Department, the officer’s performance evaluations, the officer’s past and current assignments, arrest history, and sick leave, and whether the officer has previously appeared before the Committee. Additionally, the Committee will examine any information related to a prosecutor’s office’s determination that an officer’s testimony lacks credibility or is otherwise ineffective. Prior to making a decision, the Committee will ask the commanding officer for their recommendation regarding early intervention and the effectiveness of any prior interventions regarding the officer in question.
The Committee has a number of potential interventions from which to choose, including refresher trainings, mentoring, monitoring, mediation, enhanced supervision, change of
20 Three or more commenced lawsuits in a 12-month period; six or more commenced lawsuits in a five-year period; one disposed lawsuit for $200,000 or greater in a 12-month period. 21 Two or more force complaints in a 12-month period; four or more force complaints in a twoyear period; five or more force complaints in a four-year period. 22 These indicators include CCRB and Internal Affairs Bureau (IAB) investigations, criminal arrests and investigations of an officer, vehicle pursuits and collisions, violations of the Patrol Guide, and arrests and summonses for resisting arrest, obstructing governmental administration, and disorderly conduct. The bill took effect on September 1, 2020.
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assignment, a health and wellness referral, or referral for discipline or prosecution. Within seven business days of making a decision, the Committee will inform the commanding officer and other applicable internal stakeholders of its recommendation. Within 30 days, the commanding officer will be required to report back on the implementation of the Committee’s recommendation.
RMB has created a new unit to gather the necessary information for the Committee, input information regarding the Committee’s activities into a central database, and ensure that commanding officers are implementing the Committee’s recommendations. When an officer triggers one of the designated thresholds, the relevant documents will be collected by RMB and entered into the early intervention database. RMB will create a profile for that particular officer, which will be sent to the Committee and entered into the early intervention database. In addition to containing relevant details of the incident that caused the officer to trigger the threshold, the profile will contain information regarding the officer’s tenure, the officer’s past and current assignments, any history of CCRB or IAB investigations, the number of arrests made by the officer, RMB’s analysis and recommendation for intervention, and the Commanding Officer’s recommendation to the Committee. RMB will enter the Committee’s recommendation into the early intervention database, track whether commanding officers respond within 30 days, and ensure that the Committee’s recommendations have been implemented.
As required by the Court’s order, RMB will track relevant data on a quarterly basis and report them to the Committee. Aggregate data will be posted publicly, including the number of officers assessed by the Committee, the number and types of interventions, the number of officers who have successfully completed the written action plans, and the number of officers terminated or placed on dismissal probation following intervention. RMB will also perform analyses of racial profiling and bias complaints and report those findings to the Committee. These analyses and data
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will assist in informing the Committee whether there are potential issues on which the Department should focus and how to improve the effectiveness of the early intervention program going forward.
1. Compliance Assessment—Early Intervention System The NYPD submitted to the Court its plan for receiving, assessing, and acting on information regarding adverse findings regarding unlawful stops and trespass enforcement. The Court then issued an order setting out the requirements for the early intervention system. The NYPD is in compliance with this requirement (Task 37a). Concerning implementation, the monitor team observed the Early Intervention Committee meetings in August and September 2020. NYPD provided the monitor team with the officer profiles of the members being reviewed by the Committee. After the Committee meetings, the monitor team shared its observations and recommendations with RMB. The Monitor recognizes that the Early Intervention System is an important opportunity to identify potential at-risk officers and steer them in the right direction. A significant effort has been put into getting it off the ground. It is, however, a work in progress and thus too soon to assess its implementation in practice. The NYPD is in partial compliance with implementation of the early intervention system (Task 37b). X. COMPLAINTS AND DISCIPLINE The Court’s remedial order required the NYPD to change its policies and practices with respect to investigations of racial profiling and other bias-based profiling allegations as well as its handling of civilian complaints that have been substantiated by the CCRB. A. NYPD Investigations of Profiling Allegations The NYPD investigates all profiling allegations related to race and biased-based policing, whether the allegation is made directly to the Department or referred from the CCRB. Profiling complaints have decreased each year since 2017, with 160 complaints filed in the first half of 2020.
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However, to date, the NYPD has not substantiated any profiling allegations. See Monitor’s 10th

Report at 73.

Chart 24. Profiling Case Dispositions by Year, 2014 – June 30, 2020

Unfounded Unsubstantiated Exonerated Partially Substantiated* Information and Intelligence Open or Active
Substantiated
Total

2014 2 6 2 0

2015 160 112 11 32

0

0

0

28

0

0

10

343

2016 205 267 0 36
0
54 0 562

2017 311 449
2 46

2018 318 365 8 39

1

2

49

12

0

0

858 744

2019 202 212
4 46

2020 20 40 1 2

2

0

47

97

0

0

513 160

Total 1,218 1,451
28 201
5
287 0 3,190

* These are cases in which other allegations in a profiling complaint were substantiated, but not profiling allegations.

In January 2019, the Court approved an IAB guide section and related training that provide detailed guidance on how to process and investigate profiling complaints. The NYPD also made

changes to the way that it investigates profiling complaints, based on the recommendations of the monitor team in the last report. Changes to NYPD’s procedures for profiling investigations included : (1) a reduction in time to assignment of case and contact with complainant; (2) a review of public social media of both complainant and subject officer, when appropriate; (3) designation of specific investigators at the Borough Investigations Unit level as primary investigators for these cases; and (4) additional training for supervisors up to and including the borough adjutant regarding proper review of these cases.23 These changes, along with others reflecting the monitor team’s and the plaintiffs’ counsel’s review of investigative files, will be included in a revised IAB investigative guide that will be submitted for court review and approval. The NYPD has also

23 The borough adjutant is the executive in each patrol borough who supervises the borough investigations unit and oversees the disciplinary system in the borough command. P.G. 202-02.
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included profiling complaints made against officers in a command in that commands’ RISKS Review profiles, and profiling complaints will also be a threshold criterion for the Department’s early intervention system.
1. Compliance Assessment—Racial Profiling Investigations Although the IAB Guidelines for Racial Profiling Investigations were approved by the Court, additional changes to the guidelines are necessary to ensure that the investigations conducted are thorough and impartial. The NYPD is in partial compliance with this requirement (Task 35a). Since the 10th Report, the monitor team reviewed another set of 46 profiling investigations, conducted from late 2016 to early 2019. Cases selected for the review were based upon specific criteria, including: • Profiling cases in which a police officer was named as a subject in three or more profiling complaints and/or the officer was identified as a subject in recorded civil actions and settlements involving profiling complaints; • Profiling cases in which the complaint was referred to IAB from the CCRB or the profiling allegation refers to an encounter relating to a companion CCRB investigation; • Profiling cases in which BWC video was initiated during the encounter or some other video was noted; and • Profiling cases in which the subject officer was also the subject of a corruption investigation stemming from the same event or encounter. However, because these investigations were all conducted before the NYPD began implementing the changes recommended by the monitor team, it is not possible to make an assessment of whether the investigations being done today meet the requirements of the monitorship. The Monitor is now reviewing another 23 more recent profiling investigations to assess whether the changes in the NYPD investigation protocols have improved the thoroughness
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and impartiality of the investigations. The NYPD is not yet in compliance with this requirement (Task 35b).
B. NYPD Handling of Substantiated CCRB Cases At trial, the Court found that the NYPD failed to impose meaningful discipline when the CCRB determined that officers engaged in unconstitutional stops and frisks. The Court’s order requires the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the Department Advocate’s Office (DAO) must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint.
1. NYPD Discipline and Penalties Imposed The charts below show the final discipline and penalties imposed for substantiated CCRB cases sent to the NYPD in 2014 through 2019. The data illustrate the decline in the incidence and severity of the final discipline and penalties imposed. This decline resulted from both changes in the initial CCRB recommendations made to the NYPD and the final disposition and penalties imposed by the NYPD. The Monitor examined CCRB disciplinary recommendations in cases involving allegations relating to stop and frisk cases and trespass enforcement cases specifically. Based on data provided by the NYPD to the Monitor, it appears that the CCRB’s recommendations have shifted over time, with a decrease in severity from 2014 to 2016 and a slight increase in severity since then. Recommendations of charges and specifications declined from 57 percent of the total in 2014 to 11 percent of the total in 2016, and then rose slightly to 14 percent in 2019. CCRB recommendations for Command Discipline-B went from 28 percent in 2014 to 21 percent in 2016 and then increased to 39 percent in 2019.
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Chart 25. CCRB’s Initial Disciplinary Recommendations, 2014-2018

Instructions Training Command Discipline-A Command Discipline-B Charges and Specifications Other TOTAL

2014 20 1 4
51
102
126 179

2015 58 22 6524
7425
48
127 268

2016 4 69 72
44
23
0 212

2017 4 22 41
16
19
0 102

2018 15 14 15
28
15
128 88

2019 6 24 16
37
13
0 96

The Police Commissioner makes the final determination about the discipline imposed.

Chart 26 below compares the CCRB’s initial discipline recommendations with the final discipline

imposed by the NYPD for 50 closed 2019 cases involving stops, frisks and searches. In many of

the cases in which the CCRB recommended a Command Discipline-B, the Police Commissioner

imposed Command Discipline-A or training. The Police Commissioner also imposed command

discipline-a in the two cases in which the CCRB recommended charges and specifications. There

were four cases in which the Police Commissioner imposed no discipline (labeled “NDA,” no

disciplinary action).

24 Includes five cases in which instructions were also recommended and three cases in which training was also recommended.
25 Includes one case in which Instructions were also recommended and four cases in which training was also recommended. 26 In 2014, there was one case in which the CCRB’s disciplinary recommendation is listed in the data as “Command Discipline” without specifying whether level A or B was recommended.
27 In 2015, one case is listed as “NDA” in the data. The notes on the case indicate that the complaint was received after the statute of limitations had run.
28 CCRB initially recommended charges and specifications, but then reconsidered on its own and unsubstantiated the case.
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Chart 26. Comparison of Recommended Penalties to Final Disposition, 2019 Closed Cases

2019 Penalty Type,

CCRB Recommended Discipline Final Penalty

Closed Cases

Charges and Specifications 2

0

Command Discipline-B

22

3

Command Discipline-A

9

16

Training

15

22

Instructions

2

1

No Disciplinary Action

0

4

Case Closed Administratively 0

429

Total

50

50

2. DAO Reconsideration Requests In 2014, the NYPD and the CCRB established a new “reconsideration process,” in which the DAO may ask the CCRB to reconsider its findings on whether allegations were substantiated or its recommendations for discipline. The CCRB may then choose to change or maintain its original conclusions. Alternatively, in certain circumstances (such as when a case is running out of time under the statute of limitations), the DAO may unilaterally recommend a different disposition or discipline to the police commissioner, without requesting reconsideration by the CCRB. In either case, the police commissioner makes the final decision on what discipline, if any, to impose after reviewing both the CCRB’s and the DAO’s findings and recommended remedy. In addition, pursuant to a Memorandum of Understanding between the CCRB and the NYPD, if the police commissioner determines that CCRB’s prosecution of charges and specifications a substantiated case “would be detrimental to the Police Department’s disciplinary process,” the police commissioner may retain the cases. The police commissioner’s authority to retain cases is contained in Provision 2 of the MOU. In such cases, the NYPD will determine if charges and specifications will be served and what discipline, if any, will be imposed.
29 Of the cases closed administratively, two MOSs resigned, one retired, and one lost three days before the statute of limitations expired.
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Chart 27 below shows how the NYPD handled the 50 closed cases that were substantiated by the CCRB in 2019. For the 50 cases closed in 2019, four were closed administratively because the member resigned or retired or the statute of limitations (SOL) expired. The DAO agreed with CCRB’s findings and recommendations in 32 of the remaining 46 cases (70 percent) and disagreed with the recommendation in 14 cases (30 percent). The DAO requested reconsideration in five cases, retained two cases using its authority under Provision 2 of the MOU, and changed the penalty without reconsideration in seven cases. In ten of the 14 cases in which the NYPD disagreed with the CCRB’s recommendation, the disagreement was with the discipline recommended by the CCRB, rather than with the CCRB’s investigation, its credibility determinations, or its substantiated findings. In four cases, the NYPD disagreed with the CCRB’s disposition and imposed no penalty.

Chart 27. 2019 Substantiated CCRB Cases 2019 Closed CCRB Cases

DAO Agrees with CCRB

32

Recommendation

DAO Agrees with Disposition,

Disagrees with Penalty, Asks for

3

Reconsideration

DAO Agrees with Disposition,

Disagrees with Penalty, NYPD Changes

Penalty Without Reconsideration

7

(Includes Two cases Retained Under

Provision 2)

DAO Disagreed with Both Disposition

and Penalty and Asked for

2

Reconsideration, and Imposed No

Disciplinary Action

DAO Disagreed with Both Disposition

2

and Penalty and Imposed No

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Disciplinary Action Without Reconsideration
Case Closed Due to Resignation, Retirement or SOL
Total Closed CCRB Cases

2019 Closed CCRB Cases
4 50

Of the five reconsideration requests, the Police Commissioner imposed training or instructions in three cases in which the CCRB recommended Command Discipline-B, and imposed no discipline (NDA) in two cases in which the CCRB recommended Command Discipline-B. Of the seven cases with a different final disposition, but no reconsideration request, five involved command discipline recommended by the CCRB in which the Police Commissioner imposed training, while the Police Commissioner imposed no discipline (NDA) in two cases in which the CCRB recommended instructions. The NYPD explained that no reconsideration was requested in these seven cases either because of a short statute of limitations period, or because the DAO disagreed with the CCRB’s recommendation after the initial 30 days from when the CCRB provided its recommendations to the NYPD.
3. Compliance Assessment—DAO Handling of Substantiated CCRB Cases
The Court’s Remedial Order requires the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the DAO must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint. Although the DAO has made changes to its procedures for handling substantiated CCRB complaints, the procedures have not yet been submitted for court approval.
For 32 (70%) of the substantiated CCRB cases in 2019, the NYPD agreed with the CCRB’s substantiation disposition and imposed the discipline recommended by the CCRB. In those cases,

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the NYPD was compliant with the Court’s requirements. The NYPD disagreed with the CCRB’s recommendation in 14 cases. In 10 of these, the NYPD disagreed with the recommended penalty and not the CCRB’s credibility determination; so in those cases, the DAO did not challenge the CCRB’s credibility determinations, use an improper evidentiary standard, or require corroboration of the complaint. There were only four cases out of 50 closed cases in 2019 in which the DAO disagreed with the CCRB’s substantiation finding. For two officers, the DAO requested reconsideration of the CCRB’s disposition because it disagreed with the legal conclusions of the CCRB, based on the same set of facts. For two other officers, the DAO disagreed with the CCRB’s legal conclusions, but did not request reconsideration. At this time, the Monitor concludes that the NYPD is in partial compliance with the Court’s requirements (Tasks 34a, 34b).
C. Other Misconduct Noted; Failure to Complete Stop Report If the CCRB, in the course of its investigation, identifies misconduct outside its jurisdiction, it refers the misconduct to the NYPD for investigation and any additional action. These cases are referred to as Other Misconduct Noted, or OMN, cases. For example, if the CCRB investigates a complaint involving a stop, frisk, or search, and determines that the subject member or members made a Terry stop but did not complete a stop report for the encounter, the CCRB refers the case to the NYPD as OMN. If the failure to complete a stop report is associated with a complaint that CCRB substantiates, then the CCRB sends the OMN with the substantiated complaint, and the DAO handles both. If there is no substantiated complaint associated with the failure to complete a stop report, the OMN is sent to the IAB, the IAB logs the case, and the NYPD assigns it to the command for investigation and tracks the outcome. Below are the outcomes of the NYPD’s investigations of CCRB’s OMN referrals for failure to complete a stop report for completed CCRB cases from 2015 through 2020. For the year 2020, as of July 31, 2020, the CCRB has made 41 OMN referrals to the Department for failure to
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compete a stop report; of those, 22 cases are still open and being investigated at the commands.

For the cases for which investigations were completed and substantiated in 2019 and 2020, the

majority listed no penalty imposed on the officer.

Chart 28. Outcomes for Failure to Complete Stop Report (OMN Cases)

2015 2016 2017 2018 2019 2020

Command Discipline 4

17

30 8

6

2

C&S

1

0

1

0

0

0

Training

1

4

11 9

1

0

Instructions

14

59

42 15

4

1

Minor Procedural

0

0

3

0

0

0

Violations

Substantiated, Warn 1

4

0

0

0

0

and Admonish

Substantiated (no

0

0

0

8

14 11

penalty listed)

Substantiated NDA 1

2

10 8

0

0

NDA-DUP

3

3

5

8

1

0

Exonerated

3

2

8

6

15 1

Unfounded

2

1

5

1

1

0

Unsubstantiated

1

1

4

13

9

1

Information and

0

0

0

7

0

3

Intelligence

Open/Pending

3

11

4

1

0

22

Other*

1

2

2

3

1

0

Total

35

106 125 87

52 41

* Includes the following dispositions: Filed, No Allegation, No Record Found.

XI. ALTERNATIVE TO COMBINED PILOT On May 15, 2018, the Court-appointed facilitator, the Hon. Ariel Belen, filed his Final

Report and Recommendations on the Joint Remedial Process with the Court. ECF No. 597. Judge

Belen recommended that the Court order 14 specific reforms. On July 19, 2018, the Court ordered

a pilot program to study one of the facilitator’s recommendations, the electronic documentation of Level 1 and 2 encounters.30 Three weeks later, the Court ordered a pilot program to study another

30 Floyd, ECF No. 619. 102

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of the facilitator’s recommendations, the activation of BWCs during Level 1 encounters.31 On November 9, 2018, the Monitor submitted a proposal combining the two Court-ordered pilots into one. In response to objections from plaintiffs’ counsel, the Monitor submitted a reply and revised proposal in January 2019, which was approved by the Court on February 7, 2019.32 The combined pilot was to be overseen by the Monitor, who retained Professor Stephen Mastrofski and CUNY’s Institute for State and Local Governance (ISLG) to assist in planning and implementation. As designed, the pilot was to use systematic social observations—in other words, trained observers, who would ride along with officers and collect data. Results from the pilot would then inform the Court on the impact of implementing one or both of the proposed policy changes.
Because of the pandemic, it is no longer feasible to have trained observers ride with NYPD officers. Moreover, on February 21, 2020, the NYPD proposed an alternative to the combined pilot. In the NYPD’s alternative, the NYPD would voluntarily adopt one of the two policy changes —mandatory activation of BWCs for Level 1 encounters. The NYPD proposed to adopt this requirement citywide, with the exception of those Level 1 encounters that: (1) are currently “Do Not Record” scenarios, such as interviewing confidential informants, undercover officers, and strip searches; (2) are aided situations, other than with emotionally disturbed persons; and (3) are taking reports for past crimes.
Under this proposed alternative, the NYPD would not have officers electronically document Level 1 and Level 2 encounters on their phones, but the BWC metadata (Evidence.com) would include certain information about encounters, including the date and time of the encounter and the applicable level of the encounter. In addition, for Level 2 encounters, the officer would
31 Floyd, ECF No. 634. 32 Floyd, ECF No. 691.
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record in Evidence.com the race and gender of the primary individual encountered and whether the encounter was with more than one individual. The City will be submitting its proposed alternative for court approval.
In response to the City’s proposed alternative, and because the systematic social observation study is no longer feasible, the Monitor has proposed studies to improve the City’s alternative proposal, to answer questions raised by the Court in its orders for the pilots, and to provide additional information to assist the Monitor in assessing compliance. These studies would be conducted by ISLG and a team of researchers from Stanford University, including Dr. Jennifer Eberhardt. These studies will address important questions about the NYPD’s compliance with the Fourth and Fourteenth Amendments in police-citizen encounters: legal compliance in policecitizen encounters, racial disparities in compliance and escalation of encounters, and appropriate documentation of encounters. All these issues can be examined on a broader scale following the introduction of the new policy proposed by NYPD to record nearly all police-citizen encounters at every De Bour level with BWCs. With a more complete record of police-citizen encounters available on BWC, the studies can supply novel insights into officer compliance with the Fourth and Fourteenth Amendments and the degree of NYPD documentation of police-citizen encounters without direct observation of officers.
The proposed studies to be conducted by the Stanford team are using a methodology that the monitor team has not used before—harnessing “machine learning.” Although BWCs are being implemented by more and more police agencies, the video footage from BWCs is more often used as evidence to evaluate particular interactions than as data to inform practice and policy. The Stanford team has developed scalable computational tools for quickly and accurately analyzing police-community interactions captured by BWCs, and for examining broad patterns in those
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interactions. The Stanford studies will analyze the language that officers use during investigative encounters. An officer’s words are of great legal import: they can signal to citizens whether they are detained or free to leave, request their consent, or provoke their complaint. More broadly, the manner in which officers relate to the public is consequential for building or eroding citizens’ trust in the law and law enforcement, their support for law enforcement, and whether they personally cooperate with the police.
The ISLG and Stanford studies will explore the following research questions: 1. Compliance: How often does officer behavior in police-citizen encounters violate the
Fourth Amendment or Fourteenth Amendment? What are the key reasons for officers’ failure to comply with legal requirements? Are there racial disparities in the legality of police-citizen encounters? 2. Consent Searches: Do officers seek overt consent to search in Level 3 encounters? If so, when and how is consent sought? What language used by officers is associated with citizen consent versus refusal to search? 3. Escalation: How often do police-citizen encounters escalate from lower to higher levels? Are there racial disparities in the frequency and nature of escalated encounters? 4. Citizen Complaints: What elements of officer language and behavior in Level 3 encounters are most likely to result in citizen complaints? 5. Documentation: Does the expansion of mandatory BWC recording to most Level 1 encounters increase the number of Level 3 encounters that are reported? Post-expansion of BWC recording, what is the documentation rate of Level 3 encounters? Are undocumented Level 3 encounters associated with race and ethnicity or legal noncompliance? In addition to addressing these substantive research questions, the studies will generate important descriptive information about the nature of police-citizen encounters.
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APPENDIX A COMPLIANCE MATRIX
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Status

Standard

Task No. and Source of
Requirement

Essence of Requirement

Compliance Definition

Methodology for Assessing and Achieving Compliance

Requirements for Policies and Procedures

In

Creation of Written Task #1a,

Source: Revise policies regarding stop

Compliance policies,

Floyd remedial order, and frisk to adhere to

procedures, and p.14

constitutional standards and

Training Materials

New York state law

Partial

Implementation

Compliance

Task #1b

NYPD stops and frisks comply

Source: Floyd remedial with NYPD policies and with

order, p.14

state and federal standards

Not yet in Implementation Compliance

Task #1c

Source: Stops and Frisk are

Floyd remedial order, Documented on Stop Reports

p.14

Compliance with this provision will be achieved when NYPD Revise policies for stops to comport with federal and state constitutional

develops new policies regarding stops which comply with

standards.

federal and state constitutional standards and which are

approved by the Monitor and the Court.

Compliance with this provision will be achieved when:

Percentage of compliant stops must increase over time. Reviews of

1. Stops made by NYPD MOS comply with NYPD's new policies BWC footage and associated stop reports will be made to assess the

and with federal and state standards.

accuracy of stop reports and whether the BWC footage and stop reports

2. Stop reports that do not articulate reasonable suspicion for are consistent. Compliance on this task is dependent on demonstration

the stop or the frisk, or do not articulate the basis for the search of compliance with documentation (Task 1c). Compliance must be

are identified as deficient by supervisors and the officer is

consistent over time and across commands. Substantial compliance will

corrected.

3. Stop

be assessed by a combination of a quantitative measure (percentage of

reports that do not articulate reasonable suspicion are identified compliant stops) with a qualitative assessment of the Department's

by QAD, and corrective action is taken with respect to the

efforts, including RISK Reviews, correction and discipline, and EIS.

relevant MOS (officers and supervisors).

Compliance or non-compliance with other tasks/requirements will also

4. QAD evaluates BWC footage of stop encounters described in inform the Monitor's qualitative assessment.

audited stop reports, identifies stops when the BWC footage is

contrary to the reasonable suspicion articulated in the stop

report, and corrective action is taken with respect to the relevant

officers and supervisors.

Compliance with this provision will be achieved when

RISKS Reviews, QAD audits. The Monitor team will review a

1. Stops made by NYPD MOS are documented on Stop

combination of RAND audit compliance rates, PIE audit compliance rates

Reports;

2. In and CCRB OMN rates for failure to complete stop reports. The Monitor

stop reports, officers articulate reasonable suspicion for the stop will review the Department's efforts to correct undocumented stops,

and frisk, if conducted, and the basis for a search, if conducted. including RISK Reviews, supervisory actions and officer instructions and

3. BWC footage of stops are not contrary to the reasonable

discipline. The Monitor also will assess NYPD efforts (by leadership and

suspicion articulated in stop reports of the same encounters. supervisors) to communicate the importance of documenting stops.

4. Officers who make stops and do not document them are

Compliance must be consistent over time and across commands.

corrected through instructions and discipline.

In Compliance

Creation of Written Task #2a

Source: Revise policies regarding racial Compliance with this provision will be achieved when NYPD

policies,

Floyd remedial order, profiling to make clear targeting develops new policies regarding racial profiling.

procedures and p.17

“right people” for stops is racial

Training Materials

profiling and violates

Constitution

Revise policies to ensure race is not used improperly when officers conduct stops

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 114 of 125

Not yet in Compliance
In Compliance In Compliance In Compliance

Implementation

Task #2b

Source: NYPD stops and frisks comply

Floyd remedial order, with NYPD policies and with

p.17

state and federal standards

regarding racial profiling

Creation of Written Task #3

Source: Stop Report must include a

policies,

Floyd remedial order, narrative section to explain

procedures and p.19

basis for the stop and a

Training Materials

narrative section to explain

basis for frisk or search, if

applicable, and the stop report

checkboxes must be simplified

and improved.

Creation of Written Task #4

Source: NYPD must transmit FINEST

policies,

Floyd remedial order, message explaining Floyd and

procedures and p.25

related reforms to entire

Training Materials

Department

Creation of Written Task #5a

Source: NYPD shall develop and adopt

policies,

Floyd remedial order the standards set forth in

procedures and (Ligon remedies

subparagraph E(1)(a) though

Training Materials section), p.33-34; Ligon (m) of the Ligon stipulation of

stipulation of

settlement regarding

settlement, p.11

enforcement activities in and

around TAP buildings

Compliance with this provision will be achieved when:

Assessment of this task will be both quantitative and qualitative.

1. Stops made by NYPD MOS comply with NYPD's new policies Compliance or non-compliance with other tasks/requirements, such as

and with federal and state standards regarding racial profiling. Task 1c (documentation of stops) and Task 35 (racial profiling

2. Data on stops, frisks and searches made by NYPD MOS do investigations), will inform the Monitor's assessment.

not show racial disparities that are not explained by legally

Analyses will be conducted to assess whether there are racial disparities

justified reasons, and that are practically significant in

that are statistically significant and practically significant, and whether

magnitude and statistically significant, based on analyses

racial disparities are declining over time. Monitor team analyses may

conducted by Monitor experts.

3. include: (1) An analysis of outcomes from stops (frisks, searches,

Communications from NYPD leadership (executives, CO's and summonses and arrests, force) for Blacks and Hispanics compared to

others) and officers' stop report narratives do not indicate a

similarly-situated non-Hispanics; (2) An analysis of the recovery rate of

targeting of defined racial or ethnic groups for stops because of contraband and weapons for stops of Blacks and Hispanics compared to

their prevalence in local crime suspect data.

similarly-situated non-Hispanics; (3) An analysis of whether there are

racial disparities in the stop reports that the Monitor team found deficient

in articulating reasonable suspicion for stops, frisks or searches,

including an assessment of how MOS are using the term "fits

description." The Monitor team will also conduct an analysis that will

examine racial disparity by place, over time.

The Monitor team will also conduct analyses for assessing compliance

with the Davis case. The Monitor team is currently considering the

following types of analyses:

A. Descriptive results and multivariate analyses for 2015-2018, for

NYCHA: (1) Comparison of trespass stops, arrests, and summonses

over time in and around NYCHA developments; (2) Comparison of

outcomes (frisk, searches, use of force, and enforcement activity) from

stops in NYCHA developments and around NYCHA developments over

time; (3) Examination of whether outcomes vary by whether an officer is

assigned to the Housing Bureau or other NYPD units; (4) Examination of

racial disparities in outcomes from stops in NYCHA developments

compared to outcomes from stops of individuals stopped under similar

contexts.

B. Spatial analysis of overall enforcement activity and disparities by

race/ethnicity for Davis case: (5) Assess enforcement activity (stops,

Compliance with this provision will be achieved when:

1. NYPD revises its stop report form to include a narrative

section for the officer to explain the reason for the stop.

2.

NYPD revises its stop report form to include a narrative section

for the officer to explain the reason for the frisk or search.

3. NYPD prepares a stop report form which contains simplified

and improved checkboxes

Compliance with this provision will be achieved when NYPD Prepare and distribute a FINEST message to all NYPD personnel

prepares and distributes a FINEST message detailing the Floyd summarizing the constitutional standards for conducting stops and frisks

litigation disposition and constitutional standards NYPD

and prohibiting racial profiling

personnel have to comply when conducting stops

Compliance with this provision will be achieved when:

Revise policies for stops to comport with federal and state constitutional

1. NYPD revises its policy to specify when it is legally

standards.

permissible to stop a person outside a TAP building on

suspicion of trespass;

2.

NYPD develops and adopts specified standards regarding

enforcement activities in and around TAP buildings

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Not yet in Compliance
In Compliance
Not yet in Compliance In Compliance In Compliance
Not yet in Compliance
In Compliance
In Compliance Partial Compliance

Implementation Task #5b

Source: NYPD shall implement policies Compliance with this provision will be achieved when:

Percentage of compliant stops must increase over time. Compliance on

Floyd remedial order and procedures, training,

1. Stops made by NYPD MOS at TAP locations comply with this task is dependent on demonstration of compliance with

(Ligon remedies

supervision and monitoring

NYPD's new policies and with federal and state standards.

documentation (Task 1c). Compliance must be consistent over time and

section), p.33-34; Ligon programs sufficient to

2. Stop reports that do not articulate reasonable suspicion for across commands.

stipulation of

consistently follow, apply and the stop or the frisk, or do not articulate the basis for the search

settlement, p.11

use the standards regarding are identified as deficient by supervisors and the officer is

enforcement in and around TAP corrected.

3. Stop

buildings specified in Paragraph reports that do not articulate reasonable suspicion are identified

E(1)(a) through (m) of the Ligon by QAD, and corrective action is taken with respect to the

stipulation of settlement.

relevant MOS (officers and supervisors).

4. NYPD MOS follow the agreed-upon standards for

investigative encounters and trespass enforcement activities in

and around TAP buildings.

Creation of Written Task #6a

Source: Amend Interim Order 22 with Compliance will be achieved when revisions are made to NYPD Revise and publish PG 212-59

policies,

Floyd remedial order specified language regarding policy (P.G. 212-59) on interior patrols in buildings enrolled in

procedures and (Ligon remedies

mere presence near, entry into the Trespass Affidavit Program buildings specifying that mere

Training Materials section), p.34

or exit out of TAP building

presence outside of or entry into or exit from a TAP building

does not constitute an objective credible reason to approach an

individual under a DeBour analysis.

Implementation Task #6b

Source: NYPD MOS must have OCR to Compliance will be achieved when NYPD MOS have OCR for

Floyd remedial order approach person at TAP

Level 1 encounters at TAP locations.

(Ligon remedies

locations

section), p.34

Creation of Written Task #7

Source: Draft FINEST message

Compliance with this provision will be achieved when NYPD Draft and promulgate FINEST message explaining revisions to IO 22

policies,

Floyd remedial order explaining revisions to Interim drafts and promulgates FINEST message explaining revisions

procedures and (Ligon remedies

Order 22

to IO 22

Training Materials section), p.34

Creation of Written Task #8a

Source: Develop procedures to ensure Compliance with this provision will be achieved when the NYPD NYPD needs to revise its procedures to make clear that Stop Reports are

policies,

Floyd remedial order Stop Reports are completed for has developed procedures to ensure that Stop Reports are

required for all stops including stops for trespass outside of TAP

procedures and (Ligon remedies

every trespass stop at TAP

prepared for all stops in and around TAP buildings

buildings

Training Materials section), p.35; Ligon locations

stipulation of

settlement, p.7

Implementation Task #8b

Source: All stops at TAP locations must Compliance with this provision will be achieved when MOS

QAD Audits, RISK Reviews. Monitor team will review a combination of

Floyd remedial order be documented by a Stop

complete a Stop Report for all stops conducted in or around RAND audit compliance rates, PIE audit compliance rates and CCRB

(Ligon remedies

Report

TAP buildings.

OMN rates for failure to complete stop reports. Compliance must be

section), p.35; Ligon

consistent over time and across commands.

stipulation of

settlement, p.7

Implementation Task #9

Source: Distribute revised TAP policies Compliance with this provision will be achieved when the

Distribution of P.G. 212-59

Floyd remedial order and procedures to each NYPD revised version of P.G. 212-59 has been distributed to all MOS.

(Ligon remedies

member and redistribute two

section), p.36

additional times at six-month

intervals

Creation of Written Task #10a Source: Revise Patrol Guide 212-60 Compliance with this provision will be achieved when the

Revise PG 212-60 to promote constitutional interactions.

policies,

Davis stipulation of

Department revises its policy on interior patrols in NYCHA

procedures and settlement, p.9

buildings to promote constitutional interactions.

Training Materials

Implementation Task #10b Source: NYPD interior patrols, stops and Compliance with this provision will be achieved when:

Percentage of compliant stops must increase over time. Compliance on

Davis stipulation of

frisks at NYCHA properties

1. Stops made by NYPD MOS at NYCHA properties comply this task is dependent on demonstration of compliance with

settlement, p.9

comply with NYPD policies and with NYPD's new policies and with federal and state standards. documentation (Task 1c#)

with state and federal standards 2. Stop reports that do not articulate reasonable suspicion for

the stop or the frisk, or do not articulate the basis for the search

are identified as deficient by supervisors and the officer is

corrected.

3. Stop

reports that do not articulate reasonable suspicion are identified

by QAD, and corrective action is taken with respect to the

relevant MOS (officers and supervisors).

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 116 of 125

Partial Compliance
In Compliance
Partial Compliance

Implementation Task #10c Source: NYPD trespass arrests at

Davis stipulation of

NYCHA properties comply with

settlement, p.9

NYPD policies and with state

and federal standards

Creation of Written Task #11a

Revise Trespass Crimes Fact

policies,

Source: Davis

Sheet

procedures and stipulation of

Training Materials settlement, p.10, Ligon

stipulation of

settlement, p.12

Implementation Task #11b Source: MOS use Trespass Crime Fact

Davis stipulation of

Sheet for Housing trespass

settlement, p.10, Ligon arrests

stipulation of

settlement, p.12

Compliance with this provision will be achieved when:

Percentage of compliant arrest must increase over time. Compliance

1. Trespass arrests made at NYCHA properties comply with the must be consistent over time and across commands.

NYPD's policies and with federal and state standards

Compliance with this provision will be achieved when the Department revises the Trespass Crimes Fact Sheet

Revise Trespass Crimes Fact Sheet

Compliance with this provision will be achieved when:

Compliance must be consistent across commands and over time.

1. NYPD MOS complete a Trespass Crime Fact Sheet form (PD

351-144) prior to arraignment, any time they effect an arrest for

trespass in or around a NYCHA residence. 2. The TCFS

articulates a proper basis for the approach and probable cause

for the trespass arrest.

In Compliance
Not yet in Compliance
In Compliance
Not yet in Compliance

Creation of Written Task #12a Source: NYPD officers are required to Compliance with this provision will be achieved when officers Require officers to complete a Trespass Crimes Fact Sheet for all

policies,

Ligon stipulation of

complete a Trespass Crimes are required to complete a Trespass Crimes Fact Sheet for all trespass arrests made in or around TAP buildings prior to arraignment

procedures and settlement, p.10

Fact Sheet for every trespass trespass arrests made in or around TAP buildings prior to

Training Materials

arrest made in or around a TAP arraignment.

building

Implementation Task #12b Source: NYPD officers complete a

Compliance with this provision will be achieved when:

1. Compliance must be consistent across commands and over time.

Ligon stipulation of

Trespass Crimes Fact Sheet for Officers complete a Trespass Crimes Fact Sheet for all trespass

settlement, p.10

every trespass arrest made in or arrests made in or around TAP buildings prior to arraignment;

around a TAP building

2. The TCFS

articulates a proper basis for the approach and probable cause

for the trespass arrest.

Creation of Written Task #13a Source: Revise and promulgate

Compliance with this provision will be achieved when the NYPD Promulgate the revised AG 303-27.

policies,

Ligon stipulation of

Administrative Guide 303-27 promulgates the revised AG 303-27.

procedures and settlement, p.13-14

Training Materials

Implementation Task 13b

Source: Implement Administrative Guide Compliance with this provision will be achieved when the NYPD

Ligon stipulation of

303-27

implements the revised AG 303-27:

1.

settlement, p.10

CPOs obtain appropriate Trespass Crimes Owner's Affidavit

and complete TAP enrollment form for buildings entering the

program.

2. CPOs review

and evaluate whether to renew a building's participation in the

program before the expiration of six months.

3. COs review and evaluate whether to renew a building's

participation in the program before the expiration of one year.

4. Borough Commanders are notified if there is a need for a

building to remain in TAP beyond one year, and will recommend

approval to the Officer of the Chief of Patrol if the they determine

that the building should remain in the program. The Office of

the Chief of Patrol will issue the final approval for renewal.

Not yet in Implementation Compliance

Task #14

Source: NYPD Business Card given to Compliance will be achieved when NYPD MOS offer a business Monitor team will review BWC videos and Stop Reports to assess

Floyd remedial order, person stopped but not arrested card to persons stopped but not arrested or summonsed

whether persons stopped but not arrested or summonsed are offered a

p.21

or summonsed, replacing the

business card.

tear-off receipt

In Compliance

Supervisory Review Requirements

Creation of Written Task #15a Source: Sergeants and must address Compliance with this provision will be achieved when:

Add Supervisor checkboxes "Sufficient Basis to Stop," "Sufficient Basis

policies,

Floyd remedial order, constitutionality of stops of their 1. NYPD policies and procedures require supervisors to review for Frisk" and Sufficient Basis for Search" on the Stop Report, which

procedures and p.24

subordinates

stops for constitutionality in a comprehensive manner;

requires supervisor to determine whether officer had reasonable

Training Materials

2. NYPD requires supervisors to complete Supervisory Review suspicion to stop and, if applicable, frisk or search the individual;

section of Stop Report;

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 117 of 125

Not yet in Compliance
In Compliance Partial Compliance

Implementation Task #15b Source: Sergeants review and assess Compliance with this provision will be achieved when:

Floyd remedial order, the constitutionality of stops of 1. Supervisors review stops for constitutionality in a

p.24

their subordinates

comprehensive manner and take appropriate corrective action

when they identify improper stops, frisks or searches.

2. Supervisors who observe or learn of MOS who make a stop

but do not document the stop with a stop report take

appropriate corrective action.

Creation of Written Task #16a Source: ICOs must address

Compliance with this provision will be achieved when:

policies,

Floyd remedial order, constitutionality of stops of their 1. NYPD prepares ICOs self-inspection procedures and forms

procedures and p.24

subordinates

for review of Stop Reports for constitutionality

Training Materials

Implementation Task #16b Source: ICOs conduct Self-Inspections Compliance with this provision will be achieved when:

Floyd remedial order, to assess the constitutionality of 1. ICOs complete SQF self-inspections and review Stop

p.24

stops

Reports for constitutionality;

Monitor team will examine a sample of stop reports audited by QAD; as well as ICO self-inspections and QAD's audit of supervisory review. Monitor team will also assess NYPD's efforts through RISKS Reviews and follow-up training conducted for supervisors who do not identify deficient stop reports.
ICO SQF self-inspection protocols revised
Monitor team will assess a sample of ICO Self-Inspections as well as reviewing the QAD audit findings of ICO self-inspections. ICO efforts to review BWC footage will also be considered.

In Compliance
In Compliance
In Compliance

Training Requirements

Creation of Written Task #17a Source: Revise training regarding stop Compliance with this provision will be achieved when

Revise training materials for stops to comport with federal and state

policies,

Floyd remedial order, and frisk to adhere to new

1. NYPD develops new In-Service training regarding stops

standards.

procedures and p.14

NYPD policies, constitutional which comply with federal and state standards and which are

Training Materials

standards and New York state approved by the Monitor and the Court;

law

2. NYPD develops new In-Service training for supervisors

regarding their responsibilities for reviewing officer stops and

documentation of stops.

Creation of Written Task #17b Source: Revise recruit training regarding Compliance with this provision will be achieved when

Revise training materials for stops to comport with federal and state

policies,

Floyd remedial order, stop and frisk to adhere to new 1. NYPD develops new Recruit training regarding stops which standards.

procedures and p.14

NYPD policies, constitutional comply with federal and state standards and which are

Training Materials

standards and New York state approved by the Monitor and the Court.

law

Implementation Task #17c Source: NYPD has trained its members Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

Floyd remedial order, regarding stops to comply with 1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

p.14

NYPD policies and with state court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

and federal standards

NYPD patrol officers and detectives are trained on investigative MOS with enforcement responsibilities, such as those in Narcotics and

encounters.

3. NYPD

Gang Units and the Strategic Response Group also must be trained.

supervisors are trained on investigative encounters and their The training must be effective and consistent, both in terms of consistent

responsibility for reviewing officer stops and documentation of with the curricula and consistently provided over time, based on Monitor

stops;

Team observation. Qualitative assessment of SQF training will also take

into account outcome measures, such as the level of compliance of MOS

as reflected in their stop reports and an assessment of unreported stops.

Sustained compliance will be assessed in conjunction with refresher

training in Task 31b.

In

Implementation

Compliance

Task #17d Source: NYPD has trained its recruits

Floyd remedial order, regarding stops to comply with

p.14

NYPD policies and with state

and federal standards

Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

NYPD recruit officers are trained on investigative encounters. MOS with enforcement responsibilities, such as those in Narcotics and

Gang Units and the Strategic Response Group also must be trained.

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation. Qualitative assessment of SQF training will also take

into account outcome measures, such as the level of compliance of MOS

as reflected in their stop reports and an assessment of unreported stops.

Sustained compliance will be assessed in conjunction with refresher

training in Task 31b.

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 118 of 125

In Compliance
In Compliance In Compliance
In Compliance
In Compliance

Creation of Written Task #18a Source: Revise in-service training

Compliance with this provision will be achieved when NYPD Revise training to ensure race is not used improperly when officers

policies,

Floyd remedial order, regarding racial profiling to

develops new in-service training regarding racial profiling

conduct stops

procedures and p.17

make clear targeting “right

Training Materials

people” for stops is racial

profiling and violates

Constitution

Creation of Written Task #18b Source: Revise recruit training regarding Compliance with this provision will be achieved when NYPD Revise training to ensure race is not used improperly when officers

policies,

Floyd remedial order, racial profiling to make clear develops new recruit training regarding racial profiling

conduct stops

procedures and p.17

targeting “right people” for stops

Training Materials

is racial profiling and violates

Constitution

Implementation Task #18c Source: NYPD has trained its members Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

Floyd remedial order, regarding stops to comply with 1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

p.17

NYPD policies and with state court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

and federal standards regarding NYPD patrol officers, detectives and supervisors are trained MOS with enforcement responsibilities, such as those in Narcotics and

racial profiling

regarding racial profiling.

Gang Units and the Strategic Response Group also must be trained.

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation. Qualitative assessment of SQF training will also take

into account outcome measures, such as the level of compliance with

Task #2b. Sustained compliance will be assessed in conjunction with

refresher training in Task 31b.

Implementation Task #18d Source: NYPD has trained its recruts Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

Floyd remedial order, regarding stops to comply with 1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

p.17

NYPD policies and with state court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

and federal standards regarding NYPD recruit officers are trained regarding racial profiling.

MOS with enforcement responsibilities, such as those in Narcotics and

racial profiling

Gang Units and the Strategic Response Group also must be trained.

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation. Qualitative assessment of SQF training will also take

into account outcome measures, such as the level of compliance with

Task #2b. Sustained compliance will be assessed in conjunction with

refresher training in Task 31b.

Creation of Written Task #19a Source: NYPD has developed in-service Compliance with this provision will be achieved when NYPD Revise training for stops and frisk to comport with federal and state

policies,

Floyd remedial order, training in use of new Stop

develops new training guidelines for officers to explain reasons standards

procedures and p.21

Report

for stopping and frisking the individual, especially why the officer

Training Materials

had reasonable suspicion that individual was committing or

about commit criminal activity and was armed and dangerous.

In Compliance

Creation of Written Task #19b Source: NYPD has developed recruit

policies,

Floyd remedial order, training in use of new Stop

procedures and p.21

Report

Training Materials

Compliance with this provision will be achieved when NYPD Revise training for stops and frisk to comport with federal and state develops new training guidelines for recruits to explain reasons standards for stopping and frisking the individual, especially why the officer had reasonable suspicion that individual was committing or about commit criminal activity and was armed and dangerous.

In

Implementation

Compliance

Task #19c Source: Floyd remedial order, p.21

NYPD has trained its members regarding the use of the new Stop Report

Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

NYPD patrol officers, detectives and supervisors are trained MOS with enforcement responsibilities, such as those in Narcotics and

regarding the use of the new Stop Report.

Gang Units and the Strategic Response Group also must be trained.

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation.

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 119 of 125

In Compliance
In Compliance
In Compliance
In Compliance
In Compliance

Implementation Task #19d Source: NYPD has trained its recruit Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

Floyd remedial order, members regarding the use of 1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

p.21

the new Stop Report

court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

NYPD recruit officers are trained regarding the use of the new MOS with enforcement responsibilities, such as those in Narcotics and

Stop Report.

Gang Units and the Strategic Response Group also must be trained.

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation.

Creation of Written Task #20a

NYPD has developed

policies

Source: Floyd

training on supervisory

procedures, and Training Materials

remedial order, p.24

responsibilities for newly

promoted supervisors

Compliance with this provision will be achieved when: 1. NYPD has developed training, approved by the monitor and the Court, for newly promoted NYPD supervisors on investigative encounters and their responsibility for reviewing officer stops and documentation of stops.

Implementation Task #20b Source: NYPD has trained its newly Compliance with this provision will be achieved when:

The training must be effective and consistent, both in terms of consistent

Floyd remedial order, promoted supervisors on

1. NYPD training instructors provide training consistent with the with the curricula and consistently provided over time, based on Monitor

p.24

supervisory responsibilities for court approved training materials.

2. Newly Team observation.

newly promoted supervisors promoted NYPD supervisors are trained on investigative

encounters and their responsibility for reviewing officer stops

and documentation of stops.

Creation of Written Task #21a Source: NYPD must develop stop and Compliance with this provision will be achieved when the SQF SQF in-service training needs to include instruction specifically aimed at

policies,

Floyd remedial order frisk training at Rodman’s Neck in-service training materials at Rodman's Neck incorporates preventing unconstitutional stops outside TAP buildings.

procedures and (Ligon remedies

that incorporates instruction instruction specifically aimed at the preventing unconstitutional

Training Materials section), p.36; Ligon specifically targeting the

stops outside TAP buildings.

stipulation of

problem of unconstitutional

settlement, p.16

stops outside TAP buildings

Implementation Task #21b Source: NYPD has trained its members Compliance with this provision will be achieved when:

Patrol officers, detectives and supervisors in the Patrol Services Bureau,

Floyd remedial order regarding stops at TAP

1. NYPD training instructors provide training consistent with the Housing Bureau and Transit Bureau must be trained regarding

(Ligon remedies

locations to comply with NYPD court approved training materials.

2.

investigative encounters to demonstrate substantial compliance Other

section), p.36; Ligon policies and with state and

NYPD patrol officers, detectives and supervisors are trained on MOS with enforcement responsibilities, such as those in Narcotics and

stipulation of

federal standards

stops at TAP locations.

Gang Units and the Strategic Response Group also must be trained.

settlement, p.16

The training must be effective and consistent, both in terms of consistent

with the curricula and consistently provided over time, based on Monitor

Team observation.

In Compliance
Partial Compliance
In Compliance

Creation of Written Task #22a Source: NYPD must develop training Compliance with this provision will be achieved when the recruit Recruit training needs to include instruction specifically on when an

policies,

Floyd remedial order regarding stops outside TAP training includes the constitutional standard for when an officer officer may and may not stop someone outside of a TAP building

procedures and (Ligon remedies

buildings for new recruits

may and may not stop someone outside of a TAP building

Training Materials section), p.36

Implementation Task #22b

NYPD has trained its recruits Compliance with this provision will be achieved when:

Interior Patrol training course must be part of Recruit Curriculum taken by

Source: Floyd remedial regarding stops at TAP

1. NYPD training instructors provide training consistent with the each recruit class. The training must be effective and consistent, both in

order (Ligon remedies locations to comply with NYPD court approved training materials.

2.

terms of consistent with the curricula and consistently provided over time,

section), p.36

policies and with state and

NYPD recruits are trained on stops at TAP locations.

based on Monitor Team observation.

federal standards

Creation of Written Task #23a Source: Field Training Guide and FTO Compliance with this provision will be achieved when the Field The Field Training Guide and FTO training needs to include instruction

policies,

Floyd remedial order training materials must be

Training Guide and FTO training materials have been revised to regarding the formal written policy governing trespass stops outside of

procedures and (Ligon remedies

revised to reflect formal written reflect the formal written policy governing trespass stops outside TAP buildings.

Training Materials section), p.36

policy governing trespass stops of TAP buildings.

outside TAP buildings

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 120 of 125

In Compliance In Compliance In Compliance Partial Compliance In Compliance
In Compliance
Partial Compliance In Compliance

Implementation Task #23b Source: NYPD has trained its FTOs on Compliance with this provision will be achieved when FTOs

Floyd remedial order TAP policies and procedures have been trained on TAP policies and procedures

(Ligon remedies

section), p.36

Implementation Task #24

Source: SQF Training Video No. 5 must Compliance with this provision will be achieved when the

Floyd remedial order be revised to state information Department disseminates an SQF video stating that the

(Ligon remedies

in earlier video was incorrect information in the previous training video was incorrect and

section), p.36

explain why it was incorrect.

Creation of Written Task #25a Source: Revise Interior Patrol recruit Compliance with this provision will be achieved when the

policies,

Davis stipulation of

training

Department revises its recruit training on interior patrols in

procedures and settlement, p.9

NYCHA buildings to promote constitutional interactions.

Training Materials

Implementation Task #25b Source: Train recruits at the Academy Compliance with this provision will be achieved when the

Compliance

Davis stipulation of

on Interior Patrol

Department trains its recruits in the Police Academy on interior

settlement, p.9

patrols in NYCHA buildings to promote constitutional

interactions.

Creation of Written Task #26a Source: Revise training regarding

Compliance with this provision will be achieved when the

policies,

Davis stipulation of

NYCHA rules, regulations, and Department:

procedures and settlement, p.9

signage

1. Develops roll call training for Housing officers on NYPD

Training Materials

policies on interior patrol;

2.

Develops training for Housing officers that includes instruction

on NYCHA rules, regulations, and signage utilizing material

contained in Exhibit E (lesson plan) contained in the Davis

stipulation.

Implementation Task #26b Source: Implement training regarding Compliance with this provision will be achieved when:

Davis stipulation of

NYCHA rules, regulations, and 1. NYPD disseminates roll call training on NYPD interior patrol

settlement, p.9

signage

policies to Housing officers;

2.

NYPD training instructors provide training for Housing officers

consistent with the court approved training materials.

3. NYPD Housing officers and supervisors are trained on

NYCHA rules, regulations, and signage utilizing material

contained in Exhibit E (lesson plan) of the Davis stipulation.

Implementation Task #27 Source: Ensure every member of NYPD Compliance with this provision will be achieved when TAP

Ligon stipulation of

who is involved in administration administrators have been trained on the specified standards.

settlement, p.16

of TAP is trained on specified

standards

Creation of Written Task #28a Source: Training on constitutional

Compliance with this provision will be achieved when:

policies,

Floyd remedial order standard for a frisk - reasonable 1. Errors identified in the training materials (furtive behavior,"

procedures and p.16

suspicion that a stopped person "unusual firearms") have been corrected;

Training Materials

is armed and dangerous to

2. The proper legal standards for a frisk or search are clearly

correct overbroad definition of articulated in the SQF training;

furtive behavior, the misleading

training on unusual firearms

SQF and TAP Training module must be part of each FTO training class. The training must be effective and consistent, both in terms of consistent with the curricula and consistently provided over time, based on Monitor Team observation. Create SQF video stating that the information in the previous training video was incorrect and explaining why it was incorrect.
Revise Interior Patrol recruit training to promote constitutional interactions in and around NYCHA buildings.
Interior Patrol Training Course must be part of Recruit Curriculum taken by each recruit class. The training must be effective and consistent, both in terms of consistent with the curricula and consistently provided over time, based on Monitor Team observation. Create Housing one-day training that includes instruction based on Exhibit E of the stipulation, specifically including instruction on NYCHA rules, regulations, and signage
The training must be effective and consistent, both in terms of consistent with the curricula and consistently provided over time, based on Monitor Team observation.
Revise TAP enrollment form and instructions and meet with relevant actors to go over how to implement the revisions.
Revise recruit and in-service trainings to correct identified errors and clearly articulate the proper legal standards regarding stops and frisks.

In

Implementation

Compliance

Task #28b Source: Training on constitutional

Compliance with this provision will be achieved when:

Monitor team observation of Characteristics of Armed Suspects recruit

Floyd remedial order standard for a frisk - reasonable 1. NYPD training instructors provide training consistent with the training. The training must be effective and consistent, both in terms of

p.16

suspicion that a stopped person court approved training materials.

2.

consistent with the curricula and consistently provided over time, based

is armed and dangerous to

NYPD recruits are correctly trained on identifying characteristics on Monitor Team observation.

correct overbroad definition of of armed suspects.

furtive behavior, the misleading

training on unusual firearms

Partial Compliance

Creation of Written Task #29a Source: NYPD develops training for its

policies,

Floyd remedial order investigators on racial profiling

procedures and p.24-25

complaint investigations

Training Materials

Compliance with this provision will be achieved when: 1. IAB develops an Internal Investigators Course on profiling and biasbased policing.

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 121 of 125

Not yet in Compliance
In Compliance

Implementation Task #29b Source: NYPD must train investigators Compliance with this provision will be achieved when:

Monitor team observation of Internal Investigators course, Module #4.

Floyd remedial order on racial profiling complaint 1. IAB intake personnel are trained on handling profiling

The training must be effective and consistent, both in terms of consistent

p.16

investigations

complaints;

2. with the curricula and consistently provided over time, based on Monitor

Investigators in Investigations Units who will be undertaking Team observation. Assessment of the training will be informed by the

profiling investigations have been trained on investigating

Monitor's review of profiling investigations, Task 35(b).

profiling complaints

Creation of Written Task #30a Source: NYPD must develop training for Compliance with this provision will be achieved when:

policies,

Floyd remedial order officers newly assigned to

1. NYPD has developed training, approved by the monitor and

procedures and p.14

plainclothes assignments

the Court, for officers newly assigned to plainclothes units on

Training Materials

investigative encounters and the standards for stops and frisks.

Not yet in Compliance
Partial Compliance
Not yet in Compliance

Implementation

Task #30b Source: Training is provided for officers

Floyd remedial order newly assigned to plainclothes

p.14

assignments

Creation of Written Task #31a

policies, procedures and Training Materials

Source: Floyd remedial order p.14

Implementation

Task #31b Source: Floyd remedial order p.14

NYPD develops SQF refresher training for incumbent and
probationary officers, and for supervisors NYPD conducts SQF refresher training for incumbent and probationary officers

Compliance with this provision will be achieved when:

SQF Training module must be part of each Basic Plainclothes training

1. NYPD training instructors provide training consistent with the class. The training must be effective and consistent, both in terms of

court approved training materials.

2. NYPD MOS consistent with the curricula and consistently provided over time, based

assigned to plainclothes units are trained on investigative

on Monitor Team observation.

encounters.

Compliance with this provision will be achieved when: Create refresher course forincumbent and probationary officers

1. NYPD develops SQF refresher training for incumbent

and probationary officers.

2.

NYPD develops SQF refresher training for

supervisors.

Compliance with this provision will be achieved when:

Conduct SQF refresher for incumbent and probationary officers.

1. NYPD provide training consistent with court approved

training materials.

2.

NYPD incumbent and probationary officers have taken a

refresher course on investigative encounters.

3.

Supervisors have taken a refresher course on investigative

encounters and supervisory responsibilities for review of stop

reports and documentation.

In Compliance
In Compliance In Compliance
Partial Compliance

Body-Worn Camera Requirements

Implementation Task #32a Source: NYPD must institute one-year Compliance with this provision will be achieved when:

Floyd remedial order BWC pilot project

1. The Monitor reports on the results of his BWC Pilot with

p.27

respect to the effectiveness of body-worn cameras in reducing

unconstitutional Stop and Frisks.

Implementation Task #32b Source: NYPD must develop procedures Compliance with this provision will be achieved when:

Floyd remedial order for supervisory review of BWC 1. NYPD implements supervisory reviews of BWCs consistent

p.27

videos

with the review protocols approved by the Monitor.

Implementation Task #32c Source: NYPD must develop procedures Compliance with this provision will be achieved when:

Floyd remedial order for sharing BWC videos with the 1. NYPD shares BWC videos with CCRB consistent with

p.27

CCRB for complaint

procedures approved by the Monitor.

investigations

Implementation Task #33

Source: NYPD must implement a BWC Compliance with this provision will be achieved when the

October 2018 Court pilot for Housing officers

Monitor reports on the results of his PSA BWC Pilot with

approval of stop report working in PSA

respect to the effectiveness of body-worn cameras in reducing

unconstitutional Stop and Frisks.

Acquire BWC technology; Create BWC policy PG 212-123; equip MOS in pilot commands with BWC for use on the third platoon; train affected MOS in proper use of BWC's. Retaining BWC footage for use by Monitor's team.

Partial Compliance

Complaints and Discipline Requirements

Creation of Written Task #34a Source: DAO must improve procedures Compliance with this provision will be achieved when NYPD Establish Department Advocate's Office procedures relating to handling

policies,

Floyd remedial order, for imposing discipline by

improves its procedures regarding imposing discipline in

and prosecution of substantiated complaints received from the CCRB.

procedures and p.24

increasing deference to CCRB response to CCRB findings of substantiated misconduct during

Training Materials

credibility determinations,

stops.

applying evidentiary standard

that is neutral between claims of

complainants and officers and

not requiring corroborating

physical evidence

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 122 of 125

Partial

Implementation

Compliance

Task #34b Source: DAO handling of substantiated

Floyd remedial order, CCRB complaints must meet

p.24

improved procedures

Compliance with this provision will be achieved when:

Monitor review of DAO handling of CCRB complaints, including case files

1. The DAO's handling of substantiated CCRB complaints

for Reconsideration Requests and Provision II retention cases.

reflects:

(a) Increased deference

to CCRB's factual findings;

(b) A neutral

evidentiary standard; and

(c) No general requirement

of corroborating physical evidence.

2. NYPD tracks

and analyzes CCRB complaints and discipline imposed.

Partial Compliance
Not yet in Compliance

Creation of Written Task #35a Source: NYPD must begin tracking and Compliance with this provision will be achieved when:

policies,

Floyd remedial order, investigating racial profiling

1. IAB establishes a procedural guide for processing and

procedures and p.24-25

complaints

investigating cases of profiling and bias-based policing

Training Materials

Implementation Task #35b Source: Racial Profiling complaints must Compliance with this provision will be achieved when:

Floyd remedial order, be thoroughly and fairly

1. NYPD tracks and investigates profiling investigations;

p.24-25

investigated

2. NYPD investigations are thorough and impartial and

consistent with the IAB guide.

3. NYPD analyzes trends and patterns of profiling complaints.

Any complaints that contain an allegation of profiling will be processed and inputted into the IAB case management system, appropriately assigned to an investigator in IAB (for C cases) or in an Investigation Unit, and the results of the investigation will be tracked by IAB. Investigators assigned to Investigations Units and IAB will receive training and guidance regarding investigation of allegations of racial profiling. Monitor review of profiling investigation files.

In Compliance
Partial Compliance

Auditing Requirements

Creation of Written Task #36a

NYPD establishes auditing Compliance will be achieved when the NYPD establishes

policies,

Source: Floyd

procedures that identify non-an auditing plan that:

1.

procedures and Training Materials

remedial order, p.23

compliant stops, frisks,

Provides a sampling methodology for auditing Stop

searches, trespass arrests Reports;

2.

and a mechanism for

Provides audit procedures for Stop Reports, assessing

correcting them

whether: (i) officers sufficiently articulated reasonable

suspicion as the basis for the stop, (ii) officers

sufficiently articulated the legal basis for a frisk and/or

search, if applicable; (iii) supervisors reviewed the form

and made correct determinations about the legality of

the stop, frisk and search and took appropriate follow-up

action;

3.

Includes a review of BWC videos as part of the SQF

audits;

4.

Includes a review and audit of Command Self-

Inspections;

5.

Includes audit procedures for trespass arrests and

associated TCFS at NYCHA and TAP locations assessing

whether: (i) officers sufficiently articulate a legal basis

for the approach; and (ii) officers sufficiently articulated

probable cause for the arrest;

6.

Provides procedures for audits of Police Initiated

Enforcement arrests;

7.

Provides procedures for RAND audits.

Implementation Task #36b

NYPD implements auditing Compliance will be achieved when:

1. Monitor team will review a representative sample of stop reports, along

Source: Floyd remedial procedures that identify non- The NYPD conducts auditing in accordance with a plan

with BWC footage, and will compare QAD audit results with Monitor audit

order, p.23

compliant stops, frisks,

approved by the monitor and the Court;

results.

searches, trespass arrests and 2. QAD audits identify non-compliant stops, frisks, searches

a mechanism for correcting and trespass arrests;

3.

them

Commands take appropriate action in response to QAD findings

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 123 of 125

In Compliance
Partial Compliance

Early Intervention System

Creation of Written Task #37a Source: NYPD to design a program to

policies,

Court Order Regarding receive, assess, and act on

procedures and Facilitator's

information regarding adverse

Training Materials Recommendation No. 1 findings regarding unlawful

stops and trespass

enforcements

Implementation Task #37b Source: NYPD to implement a program

Court Order Regarding to receive, assess, and act on

Facilitator's

information regarding adverse

Recommendation No. 1 findings regarding unlawful

stops and trespass

enforcements

Compliance will be achieved when the Department submits a plan, approved by the Court, to receive, assess, and act on information regarding adverse findings regarding unlawful stops and trespass enforcements

Compliance will be achieved when: 1. The NYPD

Monitor will review EIS system to ensure that appropriate data is included

implements a program to receive, assess, and act on

in system and that Commanding Officers and RMB implement

information regarding adverse findings regarding unlawful stops interventions when MOS reach threshold triggers.

and trespass enforcements, in accordance to a plan approved

by the Court;

2. Data on

declined prosecutions, adverse credibility findings, suppression

decisions, lawsuits and denials of indemnification are included

in the Department's early intervention system;

3. Commanding Officers and RMB implement and document

interventions for officers identified through data on at-risk

behaviors in the categories identified by the court.

In Compliance

Performance Evaluation

Creation of Written Task #38a Source: Performance Evaluation System Compliance will be achieved when:

1.

policies,

Floyd remedial order, that does not pressure MOS to NYPD eliminates Operation Order 52 and any improper

procedures and p.17; Floyd Order

make stops without regard to performance objectives from its performance evaluation system;

Training Materials approving PERF,

constitutionality

2. NYPD establishes a performance evaluation system that

11/6/2017

does not pressure MOS to make stops without regard to their

constitutionality;

3. NYPD establishes a performance evaluation system that

does not undermine the goals of the remedial process.

Deferring Implementation Assessment

Task #38b Source: Implementation of Performance Compliance with this provision will be achieved when the

The monitor team will undertake focus groups of officers and focus

Floyd remedial order, Evaluation System that does NYPD’s performance-evaluation system, on paper and in

groups of supervisors to assess whether the PERF system pressures

p.17; Floyd Order

not pressure officers to make practice, does not:

1. MOS to make stops without regard to constitutionality; monitor team will

approving PERF,

stops without regard to

Reinstitute pressures that result in a focus on the quantity of review data on MOS who receive rating of "needs improvement" for

11/6/2017

constitutionality

stops without regard to their lawfulness; or

dimensions of Application of Law and Procedure, Quality and Timeliness

2. Undermine the goals of the remedial process, including

of Written Reports, and Proactive Policing, and the documentation for

compliance with the Fourth and Fourteenth Amendments of the those ratings, as well as CRAFT Supervisory Feedback forms.

Constitution as required by the Remedies Opinion.

In Compliance
Not yet in Compliance
Not yet in Compliance

Joint Remedial Process

Implementation Task #39

Source: NYPD must participate in the Compliance with this provision will be achieved when: 1. NYPD Participate in JRP meetings and respond to Facilitator's Final Report.

Floyd remedial order, Joint Remedial Process

participates in the Joint Remedial Process;

2.

p.30

Facilitator submits his report and recommendations to the

parties, the monitor and the Court.

Implementation Task #40

Source: The NYPD must conduct a pilot Compliance will be achieved when 1. The NYPD participates in

Court Order Regarding to test requiring officers to

the pilot study and provides the Monitor Team the relevant data

Body-Worn Cameras, activate BWCs at the inception to complete its analysis and report; 2. Monitor submits its report

8/9/2018

of all Level 1 encounters with to the Court

civilians

Implementation Task #41

Source: The NYPD must conduct a pilot Compliance will be achieved when 1. The NYPD participates in Development of Level 1 and Level 2 electronic documentation app

Court Order Regarding to test requiring officers to

the pilot study and provides the Monitor Team the relevant data

Documenting and

electronically document Level 1 to complete its analysis and report; 2. Monitor submits its report

Recording Police-

and Level 2 encounters with to the Court

Citizen Encounters, civilians

7/19/2018

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 124 of 125
APPENDIX B BWC VIDEOS ASSESSMENT WORKSHEET
107

Case 1:08-cv-01034-AT Document 795-1 Filed 10/28/20 Page 125 of 125

Appendix B – BWC Videos Assessment Worksheet

NYPD BWC INTERIOR PATROL – VIDEO OBSERVATION DATA ENTRY FORMS

1. BWC File number?

_________

2. MOS Name

_________

3. MOS Tax

_________

4. MOS Command

_________

5. How many members of the public did the officer have significant

contact with during the BWC activation?

_________

6. Where in the building was the person first encountered?

_________

7. What time did the encounter begin?

_________

8. How long was the encounter?

_________

9. What was the person’s gender?

_________

10. What was the person’s race/ethnicity?

_________

11. What was the person’s approximate age?

_________

12. When the officer first encountered this person, what was the highest level _________

of knowledge available to the officer?

13. Was the officer’s conduct legally appropriate? (If N, indicate why in comments) (Y/N)

14. Did the level of the encounter escalate?

(Y/N)

15. If the encounter escalated was the officer’s conduct legally appropriate

at the escalated level? (If N, indicate why in comments)

(Y/N/NA)

16. Did the officer ask if the person live/visit/work in the building?

(Y/N/NA)

17. Was the person advised that the encounter was being recorded by the

(Y/N)

officers BWC?

18. Was the person frisked during the encounter? (If N, go to Q20)

(Y/N)

19. Did it appear that the officer had RS to frisk?

(Y/N)

20. Was the person searched during the encounter? (If N, go to Q23)

(Y/N)

21. Did the search appear legally justified?

(Y/N)

22. If the officer requested consent to search was it done as per the PG?

(Y/N/NA)

23. Did the police recover any contraband on the person?

(Y/N)

24. Was the person arrested or summonsed?

(A/S/N)

25. Did the officer explain the reason for the encounter?

(Y/N)

26. Did the officer offer a Business Card?

(Y/N/NA)

27. Was the Interior Patrol recorded in its entirety?

(Yes=1, Start Late=2, End Early=3, Start Late AND End Early=4)

(1/2/3/4)

COMMENTS:__________________________________________________________________

______________________________________________________________________________

108

 
 THE POLICE COMMISSIONER
CITY OF NEW YORK
May 16,2012
Honorable Christine Quinn Speaker New York City Council City Hall New York, New York 10007
Dear Speaker Quinn:
I am writing to provide you with an update regarding the various steps we have taken to
increase public confidence in Police Department stop, question and frisk procedures.
First, we have republished the Department order that specifically prohibits racial profiling
and are including it in our unit level training sessions in June. We have also published another order outlining a new procedure that will ensure that there is a greater level of scrutiny of Stop,
Question and Frisk report worksheets at the local command level. The executive officer of each
precinct, an executive in the rank of captain, will now be responsible for personally conducting
an audit of the Stop, Question and Frisk report worksheets that have been prepared within his or
her command. This audit, which will be conducted on an ongoing basis, will be completed in
accordance with specific guidelines set forth by our Quality Assurance Division. In addition, the Chief of Department now reviews worksheets in advance of each weekly Compstat meeting and questions precinct commanders regarding the quality of the report. I believe these measures will help us more closely monitor the daily street encounter activity of precinct personnel.
As you are aware, the Department has also executed a Memorandum of Understanding with the Civilian Complaint Review Board (CCRB), which gives that agency the responsibility
for conducting prosecutions of substantiated CCRB cases for which formal Departmental charges have been recommended. The MOU will take effect 30 days after City Rules
implementing its provisions are published in the City Record. The MOU also provides for an
exchange of information between the Police Department and the CCRB when the Police
Commissioner disagrees with the prosecution of charges in a particular case, or disagrees with the level of penalty recommended by CCRB, or by the Police Department Trial Commissioner, in a CCRB substantiated case. This exchange is intended to provide transparency regarding the disciplinary decisions in these cases; an appropriate mechanism for ensuring the confidentiality
of the identities of parties and witnesses to these cases will needs to be developed prior to
implementation.
1 Police Plaza, New York, NY 10038 o 646-610-5410 . Fax: 646-610-5865
Website: http://nyc. gov/nypd

The Department is also in the process of developing a quantitative mechanism to identify officers who receive a baselin e number of stop-re lated civilian complaints in c omparison to officers in sim ilar assignments. This m echanism will not in terfere with on-g oing CCRB investigations, but rather s upport the goal of im proving the m anner and efficiency of each officer’s interactions with the public during a street encounter.
Earlier this year I directed, Dr. James O’Keefe, the Deputy Commissioner of Training to complete a review of our training curriculum regarding stop, question and frisk encounters. One of the results of this review has been the establ ishment of a new course, currently being taught at the Department’s Outdoor Range facility at Ro dman’s Neck, that provides personnel with an additional level of clarity in determining when and how to conduct a lawful stop. The course also encourages the use of our inform ational cards during stop encounters. The cards provide a written description of the legal authority for such stops and a list of co mmon reasons individuals are stopped by the police. The cards, which have been distributed throughout the Department, are intended to assist an officer in de–escalati ng tension that m ay accompany a stop, question an d frisk encounter. The first group of personnel to receiv e this training are th e 1,500 officers who are currently assigned to Operation Im pact. Personnel assigned to other enforcem ent units will then receive this training.
In addition, the script for the fi fth and final part in our series of training videos regarding street encounters has been com pleted and a pproved for production by attorneys in our Legal Bureau. The first day of actual film ing for the video began today. As I previously explained, the video will include comm entary that outlines the methods that a police officer sho uld use when conducting a stop, question and frisk encounter so that there is a le vel of mutual understanding, to the degree possible, with the person who was stopped.
In the last two m onths, we have also expanded our community outreach efforts, particularly with vulnerable you th. In addition to the array of existing program s that the Department offers, we established a prom ising new pilot program in the 32 nd Precinct in Manhattan and the 77 th Precinct in Brooklyn that provides these teenager s with basic com puter skills. The goal of this program is to provide these young people, who have come to the attention of the Police Departm ent through various circum stances, such as being a truant or having been exposed to domestic violence, with a working knowledge of the latest business–related computer technologies. Taught by police officer instructors in Police Department facilities, the course is designed to last eight weeks with 32 hours of instruction. It is our hope that this course will build lasting relationships and provide an outlet that m ight help to foster positive interactions between these teenagers and police officers. W e also hope to be able to expand this program to other areas of the City in the near future.
The Department will c ontinue to e nhance the community outrea ch program, Operation Conversation: Cops and Kids, that is run in conjunction with a New Yor k City based non–profit organization. The program, which is designed to foster positive interactions between members of the Department and inner-city youth who have had pr ior interactions with the police, consists of workshops that use perform ance arts and conv ersation to create a great er level of mutual understanding. We will hold larg er demonstration workshops (based on the exis ting smaller group model) for newly graduated officers as signed in the Bronx, northern Manhattan and northern Brooklyn.

We have also commenced participation in the West Side Story Project, a collaboration with the Phoenix House Foundation, located in downtown Brooklyn, that utilizes theatre arts to reduce youth conflicts and engage local law enforcement and at-risk youth in dialogues about gang violence, youth/police relationships and racial/ethnic relations.
Additionally, the Department has submitted for a Federal grant (OJJDP) to support the Brownsville Violence Reduction Project. This grant, in which the Department will partner with the Center for Court Innovation, will support three years of outreach to reduce violence among the high risk offender population. The grant will support monthly 'call-ins" and an evaluative component to determine the efficacy of the intervention. In addition to the Brownsville Project, the Department is also exploring future participation in a New York State Division of Criminal Justice Services grant program with two other New York City non-profits to implement a similar 'Ceasefire' model for violence reduction. This project, stewarded by Professor Tracey Meares of Yale Law School, is an adaptation of the widely-known program with this implementation having a focus on offenders released on state parole. It will be in Harlem, Mott Haven and Brownsville.
Finally, we have now posted all of the data underlying each stop encounter that occurred in 2011 on our website. At present, comprehensive data going back to 2003 is now readily available for use by both researchers and members of the general public.
As always, I appreciate your continued support of the New York City Police Department.
P6lice Commissioner

 
 APPEAL,CASREF,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−01034−AT

Floyd et al v. The City of New York et al Assigned to: Judge Analisa Torres Referred to: Magistrate Judge Sarah L Cave (Settlement) Related Cases: 1:99−cv−01695−SAS−HBP
1:08−cv−04303−SAS
1:10−cv−05672−SAS
1:10−cv−00699−AT−HBP
1:11−cv−04121−SAS Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 01/31/2008 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

David Floyd

represented by Andrea Hope Costello Southern Legal Counsel 1229 N.W. 12th Avenue Gainesville, FL 32601 352−271−8890 Fax: 352−271−8347 Email: andrea@floridalegal.org TERMINATED: 09/26/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Darius Charney Lansner & Kubitschek 325 Broadway, Suite 203 New York, NY 10007 (212)−349−0900 Fax: (212)−349−0694 Email: DCharney@ccrjustice.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan C Moore Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 212−353−9587 Fax: 212−674−4614 Email: jmoore@blhny.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rachel Miriam Kleinman Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 (212)−490−0400 Fax: 212 557−0565 Email: rkleinman@naacpldf.org TERMINATED: 07/19/2013 LEAD ATTORNEY

Anna Esther Lumelsky Wilmer Cutler Pickering Hale and Dorr LLP (Bos) 60 State Street Boston, MA 02109

(617)−526−6000 Fax: (617)−526−5000 Email: Anna.Lumelsky@wilmerhale.com TERMINATED: 02/28/2012
Baher Azmy Seton Hall Law School Center For Social Justice 833 Mccarter Highway Newark, NJ 07102 (973)−642−8700 Fax: (973)−642−8295 Email: bazmy@ccrjustice.org ATTORNEY TO BE NOTICED
Bruce Oliver Corey , Jr. Corey Covington & Burling LLP The New York Times Building 620 Eighth Avenue New York, NY 10018 (212) 841−1055 Fax: (646) 441−9055 Email: bcorey@cov.com PRO HAC VICE ATTORNEY TO BE NOTICED
Chauniqua Danielle Young Center For Constitutional Rights 666 Broadway Fl 7 New York, NY 10012 (212)−614−6483 Email: cyoung@ccrjustice.org TERMINATED: 07/25/2017
Daniel A. George COVINGTON & BURLING LLP 201 PENNSYLVANIA AVE., N.W. WASHINGTON, DC 20004 (202)662−5160 Fax: (202) 662−6291 Email: dgeorge@cov.com TERMINATED: 12/05/2012 PRO HAC VICE
Dominique Day Whatley Kallas LLP(NYC) 1180 Ave of the Americas, 20th Floor New York, NY 10036 (212)−447−7070 Fax: (212)−447−7077 Email: dday@blhny.com ATTORNEY TO BE NOTICED
Eric Hellerman Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018−1405 212−841−1155 Fax: 212−841−1010 Email: ehellerman@cov.com TERMINATED: 06/05/2019
Gretchen Ann Hoff Varner Covington & Burling LLP(NYC) 620 Eighth Avenue

New York, NY 10018−1405 (212)−841−1176 Fax: 646 441 9176 Email: ghoffvarner@cov.com ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−838−7878 Fax: 718−665−0100 Email: jennb@bronxdefenders.org TERMINATED: 02/20/2019
Joshua Samuel Moskovitz The Law Office of Joshua Moskovitz 233 Broadway Suite 2220 New York, NY 10279 212−380−7040 Email: josh@moskovitzlaw.com ATTORNEY TO BE NOTICED
Kasey Lynn Martini Covington & Burling LLP(NYC) 620 Eighth Avenue New York, NY 10018−1405 (212)−841−1167 Fax: (646)−441−9167 Email: kmartini@cov.com TERMINATED: 02/21/2014
Laura Marie Flahive Wu Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018−1405 (212) 841−1257 Fax: (646) 441−9257 Email: lflahivewu@cov.com ATTORNEY TO BE NOTICED
Luna Droubi Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor New York, NY 10016 212−277−5875 Fax: 212−277−5880 Email: ldroubi@blhny.com ATTORNEY TO BE NOTICED
Omar Ahmed Farah Clifford Chance US, LLP (NYC) 31 West 52nd Street New York, NY 10019 (212) 878 3383 Fax: (212) 878 8375 Email: ofarah@ccrjustice.org ATTORNEY TO BE NOTICED
Philip Alexander Irwin Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018−1405 (212)−841−1190

Plaintiff Lalit Clarkson

Fax: (212)−841−1010 Email: pirwin@cov.com ATTORNEY TO BE NOTICED
Sunita Patel Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 (212) 614−6439 Fax: (212)614−6499 Email: spatel@ccrjustice.org ATTORNEY TO BE NOTICED
Taylor Hoffman Covington & Burling LLP (NYC) 620 Eighth Avenue New York, NY 10018−1405 (212) 841−1200 x1206 Fax: (646) 441−9206 Email: taylorhoffman@gmail.com TERMINATED: 02/28/2012
represented by Andrea Hope Costello (See above for address) TERMINATED: 09/26/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Darius Charney (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dominique Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jonathan C Moore (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 07/19/2013 LEAD ATTORNEY
Anna Esther Lumelsky (See above for address) TERMINATED: 02/28/2012
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Bruce Oliver Corey , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chauniqua Danielle Young (See above for address)

Plaintiff Deon Dennis

TERMINATED: 07/25/2017
Daniel A. George (See above for address) TERMINATED: 12/05/2012 PRO HAC VICE
Eric Hellerman (See above for address) TERMINATED: 06/05/2019
Gretchen Ann Hoff Varner (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 02/20/2019
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
Kasey Lynn Martini (See above for address) TERMINATED: 02/21/2014
Laura Marie Flahive Wu (See above for address) ATTORNEY TO BE NOTICED
Luna Droubi (See above for address) ATTORNEY TO BE NOTICED
Omar Ahmed Farah (See above for address) ATTORNEY TO BE NOTICED
Philip Alexander Irwin (See above for address) ATTORNEY TO BE NOTICED
Sunita Patel (See above for address) ATTORNEY TO BE NOTICED
Taylor Hoffman (See above for address) TERMINATED: 02/28/2012
represented by Andrea Hope Costello (See above for address) TERMINATED: 09/26/2008 LEAD ATTORNEY
Dominique Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address)

TERMINATED: 07/19/2013 LEAD ATTORNEY
Anna Esther Lumelsky (See above for address) TERMINATED: 02/28/2012
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Bruce Oliver Corey , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chauniqua Danielle Young (See above for address) TERMINATED: 07/25/2017
Daniel A. George (See above for address) TERMINATED: 12/05/2012 PRO HAC VICE
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Eric Hellerman (See above for address) TERMINATED: 06/05/2019
Gretchen Ann Hoff Varner (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 02/20/2019
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
Kasey Lynn Martini (See above for address) TERMINATED: 02/21/2014
Laura Marie Flahive Wu (See above for address) ATTORNEY TO BE NOTICED
Luna Droubi (See above for address) ATTORNEY TO BE NOTICED
Omar Ahmed Farah (See above for address) ATTORNEY TO BE NOTICED
Philip Alexander Irwin (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
David Ourlicht individually and on behalf of a class of all others similarly situated

Sunita Patel (See above for address) ATTORNEY TO BE NOTICED
Taylor Hoffman (See above for address) TERMINATED: 02/28/2012
represented by Dominique Day (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rachel Miriam Kleinman (See above for address) TERMINATED: 07/19/2013 LEAD ATTORNEY
Anna Esther Lumelsky (See above for address) TERMINATED: 02/28/2012
Baher Azmy (See above for address) ATTORNEY TO BE NOTICED
Bruce Oliver Corey , Jr. (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Chauniqua Danielle Young (See above for address) TERMINATED: 07/25/2017
Daniel A. George (See above for address) TERMINATED: 12/05/2012 PRO HAC VICE
Darius Charney (See above for address) ATTORNEY TO BE NOTICED
Eric Hellerman (See above for address) TERMINATED: 06/05/2019
Gretchen Ann Hoff Varner (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) TERMINATED: 02/20/2019
Joshua Samuel Moskovitz (See above for address) ATTORNEY TO BE NOTICED
Kasey Lynn Martini (See above for address) TERMINATED: 02/21/2014

V. Defendant The City of New York

Laura Marie Flahive Wu (See above for address) ATTORNEY TO BE NOTICED
Luna Droubi (See above for address) ATTORNEY TO BE NOTICED
Omar Ahmed Farah (See above for address) ATTORNEY TO BE NOTICED
Philip Alexander Irwin (See above for address) ATTORNEY TO BE NOTICED
Sunita Patel (See above for address) ATTORNEY TO BE NOTICED
Taylor Hoffman (See above for address) TERMINATED: 02/28/2012
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
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 Jacobs & Hazan LLP 30 Vesey Street, 4th Floor Ste 4th Floor New York, NY 10007 212−577−2690 Fax: 212−577−2691 Email: dhazan@jacobshazan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heidi Grossman NYC Law Department, Office of the Corporation Counsel (NYC) 100 Church Street New York, NY 10007 (212) 788−0792

Fax: (212) 788−0367 Email: hgrossma@law.nyc.gov 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@mcf−esq.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham NYC Law Department 100 Church Street Room 3−212 New York, NY 10007 (212)−788−1103 Fax: (212)−788−9776 Email: smettham@law.nyc.gov TERMINATED: 11/21/2018 LEAD ATTORNEY
Arthur Gabriel Larkin , III The New York City Law Department 100 Church Street New York, NY 10007 (212)−788−1599 Fax: (212)−788−9776 Email: alarkin@ahalelaw.com 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 TERMINATED: 02/03/2015
Cecilia Ann Silver New York City Law Department 100 Church Street New York, ny 10007 (212) 788−8684 Fax: (212) 788−9776 Email: csilver@law.nyc.gov ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo DOJ−USAO 271 Cadman Plaza East Brooklyn, NY 11201

Defendant
Commissioner Raymond Kelly New York City Police, in his official capacity

212−254−6288 Email: joseph.marutollo@usdoj.gov TERMINATED: 03/18/2015
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
Linda Donahue New York City Law Depart. Office of the Corporation Counsel 100 Church Street New York, NY 10007 (212)−788−0892 Fax: (212)−788−9776 Email: ldonahue@law.nyc.gov TERMINATED: 04/24/2015
Lisa Marie Richardson New York City Law Department 100 Church Street New York, NY 10007 (212) 442−0832 Fax: (212) 788−9776 Email: lrichard@law.nyc.gov TERMINATED: 09/04/2015
Stephanie Marie Breslow NYC Law Department 100 Church Street Rm. 3−187 New York, NY 10007 (212)−788−1575 Fax: (212)−788−9776 Email: sbreslow@law.nyc.gov ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver

Defendant
Raymond Kelly individually

(See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015

Defendant Mayor Michael Bloomberg in his official capacity
Defendant Michael Bloomberg individually

Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015

Defendant Police Officer Rodriguez New York City, in his official capacity TERMINATED: 03/08/2013
Defendant NYC Police Officer Rodriguez in his individual capacity

Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda Elaine Cooke (See above for address)

TERMINATED: 04/15/2008
Defendant NYC Police Officer Goodman in his official capacity TERMINATED: 03/08/2013
Defendant NYC Police Officer Goodman in his individual capacity TERMINATED: 04/15/2008

TERMINATED: 02/03/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015

Defendant Police Officer Jane Doe New York City, in her official capacity TERMINATED: 03/08/2013 Defendant Jane Doe individually TERMINATED: 04/15/2008 Defendant Police Officers John Does New York City, 1 and 2, in their official capacity TERMINATED: 04/15/2008 Defendant John Does 1 and 2, individually TERMINATED: 04/15/2008 Defendant NYC Police Officers Michael Cousin Hayes Shield #3487, in his individual capacity TERMINATED: 04/02/2009
Defendant NYC Police Officers Angelica Salmeron Shield #7116, in her individual capacity TERMINATED: 03/08/2013

Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address)

Defendant
Luis Pichardo Shield #00794, in his individual capacity TERMINATED: 03/08/2013

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015

Defendant
NYC Police Officer John Doe #2 in his individual capacity TERMINATED: 10/20/2008
Defendant
NYC Police Officers John Does #1 through 11 in their individual capacities TERMINATED: 03/08/2013
Defendant
NYC Police Sergeant James Kelly Shield #92145, in his individual capacity TERMINATED: 03/08/2013

Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue

Defendant NYC Police Officers Cormac Joyce Shield #31274, in his individual capacity TERMINATED: 03/08/2013
Defendant NYC Police Officers Eric Hernandez Shield #15957, in his individual capacity TERMINATED: 03/08/2013

(See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address)

Defendant
NYC Police Officer Jane Doe in her individual capacity TERMINATED: 04/15/2008
Defendant
NYC Police Officer Christopher Moran in his individual capacity TERMINATED: 03/08/2013

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address) ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015
Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED
Linda Donahue (See above for address) TERMINATED: 04/24/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Linda Donahue (See above for address) TERMINATED: 04/24/2015
represented by David M. Hazan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Prathyusha Bandi Reddy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Suzanna Publicker Mettham (See above for address) TERMINATED: 11/21/2018 LEAD ATTORNEY
Brenda Elaine Cooke (See above for address) TERMINATED: 02/03/2015
Cecilia Ann Silver (See above for address)

Facilitator Nicholas Turner VERA Institute 233 Broadway 12th Floor New York, NY 10279 (212) 334−1300 TERMINATED: 11/10/2014
Facilitator Ariel E. Belen JAMS 620 Eight Avenue, 34th Floor New York, NY 10018
Monitor Peter L. Zimroth Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019 212.836.7316
V. Amicus United States of America United States of America
Amicus Communities United for Police Reform

ATTORNEY TO BE NOTICED Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015 Judson Krebbs Vickers (See above for address) TERMINATED: 05/16/2018 ATTORNEY TO BE NOTICED Linda Donahue (See above for address) TERMINATED: 04/24/2015 Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015 Stephanie Marie Breslow (See above for address) ATTORNEY TO BE NOTICED
represented by Ariel E Belen Jams 620 Eighth Avenue, 34th Floor New York, NY 10018 917 468−3400 Email: abelen@jamsadr.com 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@aporter.com ATTORNEY TO BE NOTICED
represented by David Bruce Rankin Beldock Levine & Hoffman LLP 99 Park Ave 26th Floor

Amicus Leadership Conference on Civil and Human Rights
Amicus Plaintiffs in Davis, et al. v. City of New York, et al., 10 Civ. 0699 (S.D.N.Y.) Amicus District Attorney
V. Intervenor Sergeants Benevolent Association

New York, NY 10016 212−490−0400 Fax: 212−277−5880 Email: DRankin@BLHNY.com TERMINATED: 11/15/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gary W. Kubek Debevoise & Plimpton, LLP (NYC) 919 Third Avenue, 3rd Floor New York, NY 10022 212 909−6000 Fax: 212 909−6836 Email: gwkubek@debevoise.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gideon Orion Oliver Gideon Orion Oliver 277 Broadway, Suite 1501 New York, NY 10007 646−263−3495 Fax: 646−349−2914 Email: gideon@gideonlaw.com ATTORNEY TO BE NOTICED
Jarrod Lee Schaeffer Debevoise & Plimpton LLP 919 Third Avenue New York, NY 10022 (212)−909−6000 Fax: (212)−909−6836 Email: jlschaeffer@debevoise.com TERMINATED: 10/12/2018
represented by Christopher Hikaru Fitzgerald Law Office of Christopher H. Fitzgerald 233 Broadway, Suite 2348 New York, NY 10279 212−226−2275 Fax: 212−226−3224 Email: cfitzgerald@chflegal.com ATTORNEY TO BE NOTICED
represented by Anthony Paul Coles DLA Piper US LLP (NY) 1251 Avenue of the Americas New York, NY 10020 (212) 335−4500 Email: anthony.coles@dlapiper.com

Intervenor Patrolmens Benevolent Association of the City of New York, Inc.
Intervenor Patrolmen's Benevolent Association of the City of New York, Inc.

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Gilligan Saleski DLA Piper US LLP ( Philadelphia ) One Liberty Place,1650 Market Street, Suite 4900 Philadelphia, PA 19103 (215)−656−2431 Fax: (215)−606−2046 Email: courtney.saleski@dlapiper.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by James M. McGuire Dechert LLP 1095 Avenue of The Americas New York, NY 10036 (212) 698−3658 Fax: (212) 698−0489 Email: jmcguire@hsgllp.com TERMINATED: 11/20/2017 LEAD ATTORNEY
Michael J. Gilbert Dechert, LLP (NYC) 1095 Avenue of the Americas New York, NY 10036−6797 (212)698−3886 Fax: (212)698−3599 Email: michael.gilbert@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel Dechert, LLP (DC) 1341 27th Street NW Washington, DC 20007 (202)−261−3403 Fax: (202)−261−3143 Email: steven.engel@dechert.com TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul Dechert LLP Cira Circle, 2929 Arch Street Philadelphia, PA 19104 (215)−994−2708 Fax: (215)−665−2708 Email: elisa.wiygul@dechert.com TERMINATED: 05/01/2015
Lindsay Elizabeth Ray Dechert LLP (NYC) 1095 Avenue of the Americas New York, NY 10036−6797 (212)−698−3533 Email: lindsay.ray@dechert.com

Intervenor Detectives' Endowment Association, Inc.
Intervenor NYPD Captains Endowment Association
Intervenor Lieutenants Benevolent Association of the City of New York, Inc.

ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY
Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address) TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015
Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY
Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address) TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015
Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY
Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address)

TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015
Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/31/2008
01/31/2008
01/31/2008 01/31/2008 01/31/2008
02/15/2008 02/15/2008 02/15/2008 02/26/2008
03/03/2008

# Docket Text
1 COMPLAINT against Goodman(New York City, in his official capacity), Goodman(in his official capacity), Jane Doe, Jane Doe, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), The City of New York, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually), Rodriguez(New York City, in his official capacity), Rodriguez(individually). (Filing Fee $ 350.00, Receipt Number 640181)Document filed by David Floyd, Lalit Clarkson.(mbe) (jpo). (Entered: 02/01/2008)
SUMMONS ISSUED as to Goodman(New York City, in his official capacity), Goodman(in his official capacity), Jane Doe, Jane Doe, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), The City of New York, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually), Rodriguez(New York City, in his official capacity), Rodriguez(individually). (mbe) (Entered: 02/01/2008)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly related to 1:99−cv−1695. (mbe) (Entered: 02/01/2008)
Case Designated ECF. (mbe) (Entered: 02/01/2008)
2 ORDER GRANTING PLAINTIFFS' EXPEDITED MOTION TO RETAIN DATA UNDER PROTECTIVE ORDER IN DANIELS, et al. v. THE CITY OF NEW YORK, et al. AND REQUEST FOR CONFERENCE: That that motion is GRANTED. Plaintiffs shall retain the UF−250 data, all information derived therefrom and all other materials in their possession and control which refer to such information, until, at least, such time as the Court has held a conference and rendered a ruling on a complete record concerning Plaintiffs' request that the UF−250 data produced under the Stipulation of Settlement in Daniels, should be retained by Plaintiffs' counsel and should not be subject to a protective order in this case. A conference is scheduled for Feb. 6, 2008 at 3:30pm. ( Status Conference set for 2/6/2008 at 03:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 1/31/08) (tro) (Entered: 02/01/2008)
CASE ACCEPTED AS RELATED. Create association to 1:99−cv−01695−SAS−HBP. Notice of Assignment to follow. (mbe) (Entered: 02/21/2008)
4 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. (mbe) (Entered: 02/21/2008)
Magistrate Judge Henry B. Pitman is so designated. (mbe) (Entered: 02/21/2008)
5 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Linda Donahue dated 2/25/08 re: Request that City defendants time to respond to the complaint be extended to 4/10/08. ENDORSEMENT: Request granted. Defendant's time to move or answer is extended to 4/10/08. No further extensions. SO ORDERED. The City of New York answer due 4/10/2008. (Signed by Judge Shira A. Scheindlin on 2/26/08) (db) (Entered: 02/26/2008)
6 ORDER RE INITIAL PRETRIAL CONFERENCE: Initial Conference set for 4/7/2008 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 3/3/08)

03/13/2008 04/04/2008 04/09/2008
04/14/2008 04/15/2008
04/17/2008 04/17/2008 04/21/2008 04/22/2008 04/23/2008

(cd) (Entered: 03/04/2008)
7 TRANSCRIPT of proceedings held on 2/06/2008 before Judge Shira A. Scheindlin. (ama) (Entered: 03/13/2008)
8 ORDER FOR ADJOURNMENT OF INITIAL CONFERENCE: The Initial Conference scheduled for 4/7/2008 at 4:30 PM is adjourned until 4/16/2008 at 4:00 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 4/4/08) (tro) (Entered: 04/04/2008)
9 ORDER, plaintiffs shall have until 4/14/08, to file an Amended Complaint on or before 5/14/08, and defendants shall have until 5/14/08, to file an Answer to the Amended Complaint, in lieu of filing an Answer to the pending Complaint. Goodman(New York City, in his official capacity) answer due 5/14/2008; Goodman(in his official capacity) answer due 5/14/2008; Jane Doe answer due 5/14/2008; Jane Doe answer due 5/14/2008; John Does(New York City, 1 and 2, in their official capacity) answer due 5/14/2008; John Does(1 and 2, individually) answer due 5/14/2008; The City of New York answer due 5/14/2008; Raymond Kelly(New York City Police, in his official capacity) answer due 5/14/2008; Raymond Kelly(individually) answer due 5/14/2008; Michael Bloomberg(in his official capacity) answer due 5/14/2008; Michael Bloomberg(individually) answer due 5/14/2008; Rodriguez(New York City, in his official capacity) answer due 5/14/2008; Rodriguez(individually) answer due 5/14/2008.( Amended Pleadings due by 4/14/2008.) (Signed by Judge Shira A. Scheindlin on 4/9/08) (cd) (Entered: 04/10/2008)
10 ORDER re plaintiffs' request to file the unredacted Amended Complaint in this case under seal, the request is granted. Plaintiffs shall file the unredacted Amended Complaint in this case with the Clerk of Court as soon as practicable. The Clerk of the Court is directed to accept for filing the redacted version plaintiffs' Amended Complaint via the CM/ECF system and the file under seal the unredacted version of the Amended Complaint. (Signed by Judge Shira A. Scheindlin on 4/11/08) (cd) (Entered: 04/14/2008)
11 FIRST AMENDED COMPLAINT amending 1 Complaint,, against Hayes, Salerno, Popichurdo, John Doe #2, John Doe #1, Kelly, Joyce, Hernandez, Jane Doe, Goodman(in his official capacity), The City of New York, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually), Rodriguez(individually).Document filed by David Floyd, Lalit Clarkson. Related document: 1 Complaint,, filed by David Floyd, Lalit Clarkson.(dle) (dle). (Entered: 04/16/2008)
13 SCHEDULING ORDER: Factual Discovery due by 1/16/2009. Final Pretrial Conference set for 2/2/2009 at 04:30 PM before Judge Shira A. Scheindlin. 3 week jury trial. (Signed by Judge Shira A. Scheindlin on 4/16/08) (cd) (Entered: 04/17/2008)
14 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 4/16/08) (cd) (Entered: 04/17/2008)
15 ORDER: It is hereby ordered that the request is GRANTED. Plaintiffs shall file their motion to compel by May 31, 2008; Defendants shall file and serve their opposition to Plaintiff's motion to compel by June 30, 2008; and Plaintiffs shall file their reply in further support of their motion to compel by July 15, 2008. Additionally a hearing on the proposed motion is scheduled for May 5, 2008 at 2:30 p.m. (Signed by Judge Shira A. Scheindlin on 4/21/2008) (jpo) (Entered: 04/21/2008)
16 AFFIDAVIT OF SERVICE. The City of New York served on 2/29/2008, answer due 5/14/2008; Michael Bloomberg(in his official capacity) served on 2/28/2008, answer due 5/14/2008. Service was accepted by Tamekia Mendes−Gammons and Lisa Moore. Document filed by David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 04/22/2008)
***NOTE TO ATTORNEY TO E−MAIL PDF. Note to Attorney Andrea Costello, Jonathan Moore, Darius Charney for noncompliance with Section (3) of the S.D.N.Y. 3rd Amended Instructions For Filing An Electronic Case or Appeal and Section 1(d) of

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the S.D.N.Y. Procedures For Electronic Case Filing. E−MAIL the PDF for Document 11 Amended Complaint,, to: case_openings@nysd.uscourts.gov. (dle) (Entered: 04/23/2008)
17 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jonathan Moore dated 5/1/08 re: Counsel for plaintiff request that the hearing be adjourned to May 14, 2008, or any date thereafter which is convenient for the Court. ENDORSEMENT: Request granted Hearing adjourned to May 19 at 11:30 a.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 5/1/08) (js) (Entered: 05/02/2008)
18 ANSWER to Amended Complaint with JURY DEMAND. Document filed by The City of New York. Related document: 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson.(Hazan, David) (Entered: 05/13/2008)
19 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION for Extension of Time to Serve Complaint (LETTER). Document filed by David Floyd, Lalit Clarkson.(Charney, Darius) Modified on 5/19/2008 (jar). (Entered: 05/16/2008)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 19 HAS BEEN REJECTED. Note to Attorney Darius Charney : 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. (jar) (Entered: 05/19/2008)
20 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 5/27/08 re: Plaintiffs request to have until 30 days from the date on which counsel for the City provides Plaintiffs with sufficient identifying information on (certain individual) defendants to effect service. Counsel for the City consents to this extension. ENDORSEMENT: Plaintiffs may have an extension of time in which to serve certain individual defendants until 30 days after the City provides identifying information. (Signed by Judge Shira A. Scheindlin on 5/27/08) (cd) (Entered: 05/28/2008)
21 ORDER: Now, therefore It is hereby ordered that the request is GRANTED. Plaintiffs shall file unredacted Memorandum of Law in Support of their Motion to Compel Discovery and exhibits to the Declaration of Andrea Costello under seal. The Clerk of the Court is hereby directed to accept for filing the redacted versions of the Memorandum of Law in Support of Plaintiffs' Motion to Compel Discovery and exhibits to the Declaration of Andrea Costello vis the CM/ECF system in the above captioned action and to file under seal, the unredacted versions of these documents. ENDORSEMENT: Plaintiffs may file their motion June 2, 2008. Defendants accordingly will have one extra business day to file their opposition. (Signed by Judge Shira A. Scheindlin on 5/29/08) (js) (Entered: 05/30/2008)
23 MOTION to Compel Discovery. Document filed by David Floyd, Lalit Clarkson. Return Date set for 7/3/2008 at 11:00 AM.(Charney, Darius) (Entered: 06/02/2008)
24 MEMORANDUM OF LAW in Support re: 23 MOTION to Compel Discovery.. Document filed by David Floyd, Lalit Clarkson. (Charney, Darius) (Entered: 06/02/2008)
25 DECLARATION of Andrea Costello in Support re: 23 MOTION to Compel Discovery.. Document filed by David Floyd, Lalit Clarkson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2−3, # 3 Exhibit 4, # 4 Exhibit 5−9, # 5 Exhibit 10A, # 6 Exhibit 10B, # 7 Exhibit 11−12, # 8 Exhibit 13)(Charney, Darius) (Entered: 06/02/2008)
26 TRANSCRIPT of proceedings held on 5/19/2008 before Judge Shira A. Scheindlin. (ama) (Entered: 06/03/2008)
27 AFFIDAVIT OF SERVICE. Raymond Kelly(New York City Police, in his official capacity) served on 5/29/2008, answer due 6/18/2008; Michael Bloomberg(individually) served on 5/29/2008, answer due 6/18/2008. Service was accepted by Amanda Gonzalez for Bloomberg and Tara Oupoli for Kelly. Service was made by Mail service also completed on 6/5/08. Document filed by David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 06/05/2008)

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Minute Entry for proceedings held before Judge Shira A. Scheindlin: Interim Pretrial Conference held on 6/12/2008. (pl) (Entered: 06/19/2008)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Interim Pretrial Conference held on 6/12/2008. (pl) (Entered: 06/19/2008)
28 ANSWER to Amended Complaint with JURY DEMAND. Document filed by Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually). Related document: 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson.(Hazan, David) (Entered: 06/18/2008)
29 DECLARATION of Jennifer Rossan in Opposition re: 23 MOTION to Compel Discovery.. Document filed by The City of New York. (Hazan, David) (Entered: 06/26/2008)
30 MEMORANDUM OF LAW in Opposition re: 23 MOTION to Compel Discovery.. Document filed by The City of New York. (Hazan, David) (Entered: 06/26/2008)
31 ORDER It is hereby ordered that the request is granted. Defendants shall file the unredacted memorandum of law in opposition to plaintiffs motion to compel discovery and the declaration of Jennifer Rossan with exhibits under seal. The clerk is hereby directed to accept for filing the redacted versions of the memorandum of law in opposition to plaintiffs motion to compel discovery and the declaration of Jennifer Rossan and exhibits under seal via the CM/ECF system in the above captioned action and to file, under seal, the unredacted versions of these documents. re: 30 Memorandum of Law in Opposition to Motion filed by The City of New York (Signed by Judge Shira A. Scheindlin on 6/27/08) (mme) (Entered: 06/27/2008)
34 REPLY MEMORANDUM OF LAW in Support re: 23 MOTION to Compel Discovery. of UF−250 Data and Information Subject to the Protective Order in Daniels and Memorandum in Opposition to Defendants' Application for a Protective Order. Document filed by Deon Dennis, David Floyd, Lalit Clarkson. (Costello, Andrea) (Entered: 07/08/2008)
35 DECLARATION of Darius Charney in Support re: 23 MOTION to Compel Discovery.. Document filed by Deon Dennis, David Floyd, Lalit Clarkson. (Costello, Andrea) (Entered: 07/08/2008)
36 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Andrea Costerllo dated 8/7/2008 re: Counsel respectfully request a conference with the Court to address the need for a protective order concerning the disclosure, maintenance and use of the certain sensitive personal identifying information. ENDORSEMENT: The plaintiff's request is hereby granted. A conference is hereby scheduled for 2:00 p.m., on Thursday August 14, 2008 in Courtroom 15C. So Ordered. (Signed by Judge Shira A. Scheindlin on 8/7/2008) (jfe) (Entered: 08/07/2008)
37 AFFIDAVIT OF SERVICE. Salerno served on 7/29/2008, answer due 8/18/2008. Service was accepted by Officer Morales. Service was made by mail. Document filed by Deon Dennis; David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 08/19/2008)
38 AFFIDAVIT OF SERVICE. Popichurdo served on 7/29/2008, answer due 8/18/2008. Service was accepted by Officer Morales. Service was made by mail. Document filed by Deon Dennis; David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 08/19/2008)
39 AFFIDAVIT OF SERVICE. Hayes served on 7/29/2008, answer due 8/18/2008. Service was accepted by Officer Morales. Service was made by mail. Document filed by Deon Dennis; David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 08/19/2008)
40 AFFIDAVIT OF SERVICE. Joyce served on 7/30/2008, answer due 8/19/2008. Service was accepted by Officer Murray. Service was made by mail. Document filed by Deon Dennis; David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 08/19/2008)

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41 AFFIDAVIT OF SERVICE. Kelly served on 7/30/2008, answer due 8/19/2008. Service was accepted by Officer Murray. Service was made by mail. Document filed by Deon Dennis; David Floyd; Lalit Clarkson. (Costello, Andrea) (Entered: 08/19/2008)
42 MOTION for Andrea Costello to Withdraw as Attorney. Document filed by Deon Dennis, David Floyd, Lalit Clarkson.(Costello, Andrea) (Entered: 08/19/2008)
43 ANSWER to Amended Complaint with JURY DEMAND. Document filed by Salerno, Popichurdo, Kelly, Joyce, Hernandez. Related document: 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson.(Hazan, David) (Entered: 08/21/2008)
44 ANSWER to Amended Complaint with JURY DEMAND. Document filed by Hayes. Related document: 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson.(Hazan, David) (Entered: 08/22/2008)
45 OPINION AND ORDER #96490: For the reasons described above, plaintiffs' motion is granted as to all data except the names and contact information of individuals who were stopped by the police and the names of the reporting and reviewing officers. Other personal identifying information in the database, or information in the database, or information that could lead to the disclosure of an individual's identity, must be produced but shall remain confidential under a protective order. The Clerk of the Court is directed to close this motion (docket #23). A conference is scheduled for September 25 at 4:00 p.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 9/9/08) (js) Modified on 9/12/2008 (rw). (Entered: 09/10/2008)
46 NOTICE OF CHANGE OF ADDRESS by Andrea Hope Costello on behalf of Deon Dennis, David Floyd, Lalit Clarkson. New Address: Florida Institutional Legal Services, 12921 S.W. 1st Road, Ste. 107, #346, Newberry, FL, United States 32669, 352−375−2494, ext. 1012. (Costello, Andrea) (Entered: 09/19/2008)
47 ORDER:Plaintiffs are granted leave to file a Second Amended Class Action Complaint. Plaintiffs are directed to file said Complaint by October 24, 2008. The Clerk of the Court is hereby directed to file plaintiffs' Second Amended Class Action Complaint upon receipt. SO ORDERED. ( Amended Pleadings due by 10/24/2008.) (Signed by Judge Shira A. Scheindlin on 9/23/2008) (tve) (Entered: 09/23/2008)
48 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT − MOTION for Reconsideration re; 45 Memorandum & Opinion. Document filed by The City of New York. (Attachments: # 1 Affidavit Declaration of Captain Joseph Pascarella)(Hazan, David) Modified on 9/26/2008 (jar). (Entered: 09/24/2008)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 48 HAS BEEN REJECTED. Note to Attorney David Hazan : 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. REMINDER: When correctly re−filing Motion for Reconsideration, Supporting Documents are filed individually. Use event type Declaration in Support found under Replies, Oppositions, Supporting Documents. (jar) (Entered: 09/26/2008)
49 MEMO ENDORSEMENT on 42 Motion to Withdraw as Attorney. ENDORSEMENT: Request granted. The Clerk of the Court is directed to close this motion (No. 42). So Ordered. (Signed by Judge Shira A. Scheindlin on 9/25/2008) (jpo) (Entered: 09/26/2008)
50 SECOND AMENDED COMPLAINT amending 11 Amended Complaint,, against Christopher Moran, Goodman(New York City, in his official capacity), Jane Doe(New York City, in her official capacity), The City of New York, Hayes, Raymond Kelly(New York City Police, in his official capacity), Salerno, Popichurdo, John Doe #1, Kelly, Joyce, Hernandez, Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually), Rodriguez(New York City, in his official capacity). Document filed by David Ourlicht, Deon Dennis, David Floyd, Lalit Clarkson. Related document: 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson.(dle) (Entered: 10/21/2008)
51 ANSWER to Amended Complaint with JURY DEMAND. Document filed by The City of New York, Michael Cousin Hayes, Raymond Kelly(New York City Police, in

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his official capacity), Angelica Salmeron, Luis Pichardo, James Kelly, Cormac Joyce, Eric Hernandez, Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually). Related document: 50 Amended Complaint,, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht.(Hazan, David) (Entered: 10/26/2008)
52 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 10/29/08) (tro) (Entered: 10/30/2008)
53 AFFIDAVIT OF SERVICE of Summons and Amended Complaint,,. Christopher Moran served on 10/28/2008, answer due 11/17/2008. Service was accepted by Ms. Hill−Principal. Document filed by Deon Dennis; David Ourlicht; David Floyd; Lalit Clarkson. (Charney, Darius) (Entered: 11/10/2008)
54 ANSWER to Amended Complaint with JURY DEMAND. Document filed by Christopher Moran. Related document: 50 Amended Complaint,, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht.(Hazan, David) (Entered: 11/12/2008)
55 ORDER: Fact Discovery due by 3/1/2009. Expert Deposition due by 5/1/2009. Final Pretrial Conference set for 3/19/2009 at 04:30 PM before Judge Shira A. Scheindlin. This conference shall also serve as a pre−motion conference for any dispositive motions to be filed by either party. (Signed by Judge Shira A. Scheindlin on 11/17/08) (tro) (Entered: 11/18/2008)
56 STIPULATION AND ORDER: Defendants will produce to plaintiffs a sampling consisting of one hundred fifty of the actual photographic images of the UF−250 forms. The photographic images only exist for the 3rd quarter of 2003, the entire year of 2004, and the entire year of 2005. Defendants will proportion the number of images to be selected from the three time periods according to the total number of records from that time period. For example, if one of the three time periods according to the total number or records from that time period. For example, if one of the three time periods has 40% of the total number of records, then defendants will produce sixty photographic images from that time period ($0% of 150). The photographic images are not numbered and will be selected randomly from DVD files. Defendants will redact from the photographic images the identifying information of individuals who were stopped and the names of the reporting and reviewing officers. The parties agree that if defendants inadvertently disclose to plaintiffs information or materials that could be withheld from plaintiffs, in accordance with this Court's Opinion and Order, dated 9/9/08, than plaintiffs' counsel will immediately return the information or material to counsel for defendants. The Clerk of the Court is directed to close this motion (No. 48). (Signed by Judge Shira A. Scheindlin on 11/25/08) (tro) (Entered: 11/25/2008)
57 NOTICE OF APPEARANCE by Philip Alexander Irwin on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Irwin, Philip) (Entered: 12/05/2008)
58 NOTICE OF APPEARANCE by Anna Esther Lumelsky on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Lumelsky, Anna) (Entered: 12/05/2008)
59 NOTICE OF APPEARANCE by Eric Hellerman on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Hellerman, Eric) (Entered: 12/05/2008)
60 TRANSCRIPT of proceedings held on September 25, 2008 before Judge Shira A. Scheindlin. (mro) (Entered: 12/11/2008)
61 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 1/12/2009) (jfe) (Entered: 01/13/2009)
62 AMENDED SCHEDULING ORDER: Plaintiffs shall identify any expert witness on or before 6/1/09. Defendants shall identify any expert witness on or before 7/1/09. The parties shall complete factual discovery by 9/1/09. Plaintiffs shall serve their expert reports on or before 10/1/09. Expert depositions for both parties shall be completed by 1/15/2010. The Final Pretrial Conference set for 9/15/2009 at 04:30 PM before Judge Shira A. Scheindlin. This conference shall also serve as a pre−motion conference for any dispositive motions to be filed by either party. (Signed by Judge Shira A. Scheindlin on 2/10/09) (tro) (Entered: 02/11/2009)

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***DELETED DOCUMENT. Deleted document number 63 Amended Scheduling Order. The document was incorrectly filed in this case. (cd) (Entered: 02/23/2009)
63 ORDER OF DISMISSAL PURSUANT TO FRCP 41(a)(2) that all of Plaintiffs' claims against Defendant New York City Police Officer Michael Cousin Hayes are dismissed without prejudice. (Signed by Judge Shira A. Scheindlin on 4/2/09) (cd) (Entered: 04/03/2009)
64 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material....SO ORDERED (Signed by Judge Shira A. Scheindlin on 4/6/2009) (jmi) (Entered: 04/07/2009)
65 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 5/26/09 re: Plaintiffs request that the deadline to identify expert witnesses in this case be extended to 7/1/09. ENDORSEMENT: Plaintiffs' request is hereby granted. Plaintiffs must identify their expert witnesses by 7/1/09. Defendants must identify their expert witnesses by 8/1/09. No further extensions will be granted. (Signed by Judge Shira A. Scheindlin on 5/26/09) (cd) (Entered: 05/27/2009)
66 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 6/8/2009) (jfe) (Entered: 06/09/2009)
67 ORDER: On May 21, 2009, defendants submitted a letter request for sanctions against named plaintiff David Ourlicht, based on allegations of spoliation and perjury. Plaintiffs responded by letter dated June 8, 2009. In order to address defendants' request, the Court requires access Ourlicht's Facebook page. Therefore, defendants are hereby ordered to produce to the Court and to plaintiffs' counsel copies of all records of Ourlicht' s Facebook page they presently maintain, including screen captures, print outs, and written notes. Plaintiffs are ordered to produce to the Court and to defendants' counsel a copy of Ourlicht's page as it currently exists. Plaintiffs' production must include Our1icht's "Wall" (including "Older Posts" as far back as are retrievable through Ourlicht's account) and "Info" pages but need not include "Photos," "Boxes," or any application−based pages. This production must be completed by the close of business on Friday, June 12, 2009 and may be faxed or hand−delivered to the Court. (Signed by Judge Shira A. Scheindlin on 6/9/2009) (jfe) (Entered: 06/09/2009)
68 TRANSCRIPT of proceedings held on 5/21/09 before Judge Shira A. Scheindlin. (ldi) (Entered: 06/16/2009)
69 ORDER: Having reviewed in camera original and redacted versions of the documents that appear in defendants' June 15, 2009 Second Log of Redacted Documents, defendants' redactions are found to be appropriate on the ground of relevancy, with a single exception. Defendants are ordered to produce document NYC_2_00000493 with paragraph "4. Program Deliverables" unredated. (Signed by Judge Shira A. Scheindlin on 6/25/2009) (jfe) (Entered: 06/25/2009)
70 NOTICE OF APPEARANCE by Sunita Patel on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Patel, Sunita) (Entered: 07/01/2009)
71 TRANSCRIPT of proceedings held on June 16, 2009 at 4:52 pm before Judge Shira A. Scheindlin. (eef) (Entered: 07/24/2009)
72 NOTICE OF APPEARANCE by Taylor Hoffman on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Hoffman, Taylor) (Entered: 07/30/2009)
73 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Jennifer Rossan dated 8/18/2009 re: Defendants respectfully request that they have until August 25, 2009, to respond to both of plaintiffs' letters dated August 17, 2009. ENDORSEMENT: Defendants' request for an extension of time and page limits is granted. Defendants shall submit their response by Monday, August 24, 2009. They are permitted to submit seven and nine page letters. If necessary. A pre−motion conference is scheduled for August 26, 2009 at 5 p.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 8/19/2009) (jfe) (Entered: 08/19/2009)
74 NOTICE OF APPEARANCE by Laura Marie Flahive Wu on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Flahive Wu, Laura) (Entered: 08/25/2009)

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75 ORDER: It is ordered that the February 10, 2009 Amended Scheduling Order is modified as follows: 1. The deadline for completion of fact discovery is extended to december 1, 2009. 2. Plaintiffs shall serve their expert report(s)on or before February 1, 2010. 3. Defendants shall serve their rebuttal expert report(s) on or before March 1, 2010. 4. All expert depositions shall be conducted between March 16, 2010, and April 16, 2010. All other provisions as set forth in this order. So Ordered (Signed by Judge Shira A. Scheindlin on 9/1/09) (js) (Entered: 09/01/2009)
76 ENDORSED LETTER: addressed to Judge Shira A. Scheindlin from Linda Donahue dated 9/4/09 re: Counsel for defendants request an adjournment of the currently scheduled September 15, 2009, 4:30 p.m. conference before Your Honor due to a scheduling conflict. Plaintiffs consent to this request. Counsel are available for a rescheduled date the following week, except September 25, 2009, and the week of October 5, 2009. ENDORSEMENT: Defendants' request for an adjournment is hereby granted the conference is rescheduled for October 1, 2009 at 4:30 p.m. So Ordered. ( Status Conference set for 10/1/2009 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 9/4/09) (js) (Entered: 09/08/2009)
77 TRANSCRIPT of proceedings held on 8/26/09 before Judge Shira A. Scheindlin. (ama) (Entered: 09/25/2009)
78 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from David M. Hazan dated 10/1/2009 re: Requesting permission to file a four page response to plaintiffs' application. ENDORSEMENT: Request granted. So ordered. (Signed by Judge Shira A. Scheindlin on 10/1/2009) (jpo) (Entered: 10/01/2009)
79 ORDER....it is hereby ordered that FTI Consulting is appointed as the neutral expert. FTI has agreed to a rate of $300 per hour, the cost of which shall be borne by Defendants, subject to reallocation by the Court after receipt of the report. FTI may consult with any party or the expert retained by any party. Adam Cohen of FTI is the contact person on this assignment. He can be reached at his e−mail address. (Signed by Judge Shira A. Scheindlin on 10/13/09) (cd) (Entered: 10/13/2009)
80 ORDER: On August 21, 2009, Defendants produced to Plaintiffs redacted minutes from CompStat meetings of the New York City Police Department. At Plaintiffs' request, the Court conducted an in camera review of the unredacted minutes. The Court finds that Defendants' redactions are appropriate in light of Plaintiffs' discovery request. Discovery in this case is ordered to proceed according to the scheduling order. (Signed by Judge Shira A. Scheindlin on 10/14/09) (tro) (Entered: 10/15/2009)
84 TRANSCRIPT of proceedings held on 10/9/09 before Judge Shira A. Scheindlin. (ldi) (Entered: 11/09/2009)
81 ORDER that at plaintiffs' request, the Court conducted an in camera review of the entire manual in unredacted form. The Court agrees with defendants that only chapters on and five contain information responsive to plaintiffs' discovery request. By ex parte communication, the Court will inform defendants of the portions that are responsive to plaintiffs' discovery request. Defendants shall either disclose those portions to plaintiffs or shall inform the Court on or before 11/6/09 whether they seek to prevent disclosure under the "investigatory privilege". Parties are directed to file simultaneous letter briefs addressing the applicability of the investigatory privilege, including whether this privilege applies to the CCRB as an independent civilian mayoral agency. The letter briefs shall no more than three pages in length and shall be submitted to chambers on 11/12/09 (Signed by Judge Shira A. Scheindlin on 11/4/09) (dle) Modified on 11/5/2009 (jmi). (jmi). Modified on 11/5/2009 (dle). (Entered: 11/05/2009)
82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. Return Date set for 11/20/2009 at 02:30 PM.(Charney, Darius) (Entered: 11/06/2009)
83 DECLARATION of Darius Charney in Support re: 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Charney, Darius) (Entered: 11/06/2009)

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12/08/2009 12/08/2009 12/18/2009

86 TRANSCRIPT of proceedings held on October 23, 2009 before Judge Shira A. Scheindlin. (mro) (Entered: 11/13/2009)
85 DECLARATION of Jennifer Rossan in Opposition re: 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain.. 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)(Rossan, Jennifer) (Entered: 11/13/2009)
87 MEMORANDUM OF LAW in Opposition re: 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain.. Document filed by The City of New York. (Rossan, Jennifer) (Entered: 11/13/2009)
88 STIPULATION AND PROTECTIVE ORDER RELATED TO THE PHOTO ARRAYS SHOWN TO PLAINTIFFS...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 11/19/2009) (jpo) (Entered: 11/20/2009)
89 REPLY to Response to Motion re: 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Charney, Darius) (Entered: 11/20/2009)
90 REPLY AFFIDAVIT of Darius Charney in Support re: 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Charney, Darius) (Entered: 11/20/2009)
91 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 11/24/09) (dle) (Entered: 11/25/2009)
92 ORDER: RAND is hereby ordered to disclose to the parties all information in its possession identifying the fifteen officers recognized in the Report as appearing to overstop blacks and Hispanics. Such disclosures shall be subject to a protective order agreed to by RAND and the parties, or imposed by the Court. If RAND is unable to identify these officers, for reasons unrelated to the prohibitions imposed by federal regulations, it shall immediately notify the Court and the parties. In this event, RAND shall explain to the NYPD how it can identify these officers. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 12/8/2009) (tve) (Entered: 12/08/2009)
93 ORDER granting 82 Motion for Reconsideration. Plaintiffs' motion to reconsider is granted. The Clerk of the Court is directed to close this motion (document number 82). Defendants' application for a protective order is granted in part as further set forth in this Order. The RAND Corporation is ordered to disclose to the parties all information in its possession identifying the fifteen (15) officers anonymously recognized in GREG RIDGEWAY, ANALYSIS OF RACIAL DISPARITIES IN THE NEW YORK POLICE DEPARTMENT'S STOP, QUESTION, AND FRISK PRACTICES (RAND Corporation 2007) as appearing to have stopped substantially more blacks or Hispanics than other officers when patrolling the same areas, at the same times, and with the same assignment. Plaintiffs' fourth request for an extension of discovery is granted. Fact discovery is extended to April 1, 2010. Expert discovery is extended to June 1,2010. No further extensions will be granted. A status and/or pre−motion conference is scheduled for April 5, 2010 at 4:30 p.m. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 12/8/2009) (tve) (Entered: 12/08/2009)
Set Deadlines/Hearings: Discovery due by 6/1/2010. Status Conference set for 4/5/2010 at 04:30 PM before Judge Shira A. Scheindlin. (tve) (Entered: 12/08/2009)
***DELETED DOCUMENT. Deleted document number 94 Order. The document was incorrectly filed in this case. (tve) (Entered: 12/08/2009)
94 TRANSCRIPT of proceedings held on December 2, 2009 at 5:41 pm before Judge Shira A. Scheindlin. (eef) (Entered: 12/30/2009)

01/20/2010
01/20/2010 03/01/2010 03/15/2010 03/15/2010 03/15/2010
04/14/2010 04/14/2010
04/28/2010 04/28/2010 05/05/2010 05/06/2010
05/06/2010

95 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 1/19/10 re: counsel for plaintiffs respectfully requests clarification and amendment of those portions of the Court's December 8, 2009 Order (Dkt #93) relating to the expert discovery deadlines in this case. ENDORSEMENT: Plaintiffs shall serve their expert report(s) on or before June 1, 2010. Defendants shall serve their rebuttal expert report(s) on or before July 1, 2010. Expert depositions shall be conducted between July 16 and August 16, 2010. So ordered. (Signed by Judge Shira A. Scheindlin on 1/19/10) (pl) (Entered: 01/20/2010)
Set/Reset Deadlines: Deposition due by 8/16/2010. (pl) (Entered: 01/20/2010)
96 TRANSCRIPT of proceedings held on February 11, 2010 4:40 p.m. before Judge Shira A. Scheindlin. (ajc) (Entered: 03/04/2010)
97 MOTION for Sanctions. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson.(Hoffman, Taylor) (Entered: 03/15/2010)
98 MEMORANDUM OF LAW in Support re: 97 MOTION for Sanctions.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Hoffman, Taylor) (Entered: 03/15/2010)
99 DECLARATION of Taylor Hoffman in Support re: 97 MOTION for Sanctions.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Attachments: # 1 Exhibit 1A, # 2 Exhibit 1B, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Errata 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Errata 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19, # 21 Exhibit 20, # 22 Exhibit 21, # 23 Errata 22, # 24 Exhibit 23, # 25 Exhibit 24, # 26 Exhibit 25, # 27 Exhibit 26, # 28 Exhibit 27, # 29 Exhibit 28, # 30 Exhibit 29, # 31 Exhibit 30)(Hoffman, Taylor) (Entered: 03/15/2010)
100 MEMORANDUM OF LAW in Opposition re: 97 MOTION for Sanctions.. Document filed by Christopher Moran, The City of New York, Raymond Kelly(New York City Police, in his official capacity), Angelica Salmeron, Luis Pichardo, James Kelly, Cormac Joyce, Eric Hernandez, Michael Bloomberg(in his official capacity). (Hazan, David) (Entered: 04/14/2010)
101 DECLARATION of David M. Hazan in Opposition re: 97 MOTION for Sanctions.. Document filed by Christopher Moran, The City of New York, Raymond Kelly(New York City Police, in his official capacity), Angelica Salmeron, Luis Pichardo, James Kelly, Cormac Joyce, Eric Hernandez, Michael Bloomberg(in his official capacity). (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")(Hazan, David) (Entered: 04/14/2010)
102 REPLY MEMORANDUM OF LAW in Support re: 97 MOTION for Sanctions.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Hoffman, Taylor) (Entered: 04/28/2010)
103 REPLY AFFIRMATION of Taylor M. Hoffman in Support re: 97 MOTION for Sanctions.. Document filed by Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson. (Attachments: # 1 Exhibit 31, # 2 Exhibit 32)(Hoffman, Taylor) (Entered: 04/28/2010)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Settlement Conference held on 5/5/2010. Follow up call set for 4:30pm on 6/7/10. (mro) (Entered: 05/10/2010)
104 DECLARATION of Jennifer Rossan in Opposition re: 97 MOTION for Sanctions.. Document filed by Christopher Moran, The City of New York, Raymond Kelly(New York City Police, in his official capacity), Angelica Salmeron, Luis Pichardo, James Kelly, Cormac Joyce, Eric Hernandez, Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually). (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Rossan, Jennifer) (Entered: 05/06/2010)
105 MEMORANDUM OF LAW in Opposition re: 97 MOTION for Sanctions. Defendants' Sur−Reply. Document filed by Christopher Moran, The City of New

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06/25/2010
07/07/2010 07/30/2010 08/06/2010
08/11/2010 08/30/2010 08/31/2010 09/03/2010 10/19/2010 11/01/2010

York, Raymond Kelly(New York City Police, in his official capacity), Angelica Salmeron, Luis Pichardo, James Kelly, Cormac Joyce, Eric Hernandez, Raymond Kelly(individually), Michael Bloomberg(in his official capacity), Michael Bloomberg(individually). (Rossan, Jennifer) (Entered: 05/06/2010)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 6/7/2010. (mro) (Entered: 06/08/2010)
106 NOTICE OF APPEARANCE by Rachel Miriam Kleinman on behalf of Deon Dennis, David Ourlicht, David Floyd, Lalit Clarkson (Kleinman, Rachel) (Entered: 06/21/2010)
107 ENDORSED LETTER addressed to Ruby J. Krajick, Clerk of Court from Taylor M. Hoffman dated 6/18/2010 re: Requesting that Plaintiffs' Motion for Sanctions (Docket No. 97) be withdrawn without prejudice. ENDORSEMENT: The Clerk of Court is hereby directed to close plaintiffs' motion for sanctions (docket number 97). This motion is withdrawn without prejudice to renewal. (Signed by Judge Shira A. Scheindlin on 6/24/2010) (jpo) (Entered: 06/24/2010)
108 OPINION AND ORDER. #99108 Plaintiffs' motion to compel is granted. Defendants are ordered to disclose the documents listed on page 21 of this opinion and order. Because the IAB investigations are open and ongoing, defendants are ordered to continue making disclosures consistent with this Opinion and Order. For all documents ordered disclosed or to which the continuing obligation of disclosure attaches, defendants may redact information irrelevant to the issue of quotas, and may also apply to the Court for redaction of information that, upon careful reflection, is truly sensitive. All disclosures shall be subject to an attorneys' eyes only protective order negotiated by the parties or imposed by the Court. (Signed by Judge Shira A. Scheindlin on 6/24/10) (rjm) Modified on 6/30/2010 (ajc). (Entered: 06/25/2010)
109 TRANSCRIPT of proceedings held on June 14, 2010 3:20 p.m. before Judge Shira A. Scheindlin. (ajc) (Entered: 07/07/2010)
110 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht (Borchetta, Jennifer) (Entered: 07/30/2010)
111 NOTICE OF APPEARANCE by Prathyusha Bandi Reddy on behalf of Michael Bloomberg(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Angelica Salmeron, The City of New York (Reddy, Prathyusha) (Entered: 08/06/2010)
112 ATTORNEY'S EYES ONLY STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 8/10/2010) (jpo) Modified on 8/11/2010 (jpo). (Entered: 08/11/2010)
***DELETED DOCUMENT. Deleted document number 113 ORDER EXTENDING DEADLINE FOR MOTION FOR CLASS CERTIFICATION. The document was incorrectly filed in this case. (jpo) (Entered: 08/30/2010)
113 TRANSCRIPT of proceedings held on August 10, 2010 3:00 p.m. before Judge Shira A. Scheindlin. (bw) (Entered: 08/31/2010)
114 NOTICE OF APPEARANCE by Gretchen Ann Hoff Varner on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht (Hoff Varner, Gretchen) (Entered: 09/03/2010)
115 TRANSCRIPT of proceedings held on 10/1/2010 before Judge Shira A. Scheindlin. (jw) (Entered: 10/19/2010)
116 ORDER, after due consideration of the parties' submissions and in light of 2010 NY Laws 176, that defendants provide the Court with a sealed searchable version of the UF250 database from January 31, 2005 through July 16, 2010, which contains all the fields previously produced to the plaintiffs and adds the names and addresses of the individuals who were stopped to the extent that such information exists in the database. The Court shall maintain the database under seal for safekeeping. (Signed by

11/04/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010 11/16/2010

Judge Shira A. Scheindlin on 11/1/2010) (lnl) (Entered: 11/01/2010)
117 SEALED DOCUMENT placed in vault.(cb) (Entered: 11/04/2010)
118 MOTION for Summary Judgment Notice Of Motion. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York.(Donahue, Linda) (Entered: 11/16/2010)
119 MEMORANDUM OF LAW in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
120 DECLARATION of Heidi Grossman in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Donahue, Linda) (Entered: 11/16/2010)
121 DECLARATION of Santos J. Albino in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
122 DECLARATION of Joseph Esposito and Supporting Exhibit in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
123 DECLARATION of Brian O'Gorman in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
124 DECLARATION of Julie L. Schwartz in Support re: 118 MOTION for Summary Judgment Notice Of Motion.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica

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02/24/2011

Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
125 RULE 56.1 STATEMENT. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 11/16/2010)
126 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 12/16/2010 re: Counsel on behalf of Plaintiffs writes to update the Court on the status of the parties' meet−and−confer process regarding Defendants' summary judgment motion and to request a brief extension of the timeline for completion of that process. Plaintiffs request that the deadline for the parties to complete the meet−and−confer process be extended to January 31, 2011. Defendants consent to this request. ENDORSEMENT: Plaintiffs' request for an extension until January 31, 2011 to complete the meet−and−confer process is hereby granted. Plaintiffs are directed to submit their Monell facts to defendants by December 31, 2010. (Signed by Judge Shira A. Scheindlin on 12/16/2010) (lnl) (Entered: 12/17/2010)
127 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Linda Donahue, dated 12/15/2010, re: Defendants write to request an extension of the January 31, 2011 expert discovery deadline to February 18, 2011. Defendants also request an extension to February 18, 2011 to complete the depositions of all of the experts. ENDORSEMENT: Defendants' request to extend expert discovery until Feb 18, 2011 is hereby granted. No more extensions will be given. SO ORDERED. (Discovery due by 2/18/2011) (Signed by Judge Shira A. Scheindlin on 12/16/2010) (lnl) (Entered: 12/17/2010)
128 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, Letters February 2 through February 4, 2011. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 2/4/2011) (jpo) (Entered: 02/04/2011)
129 ORDER: It is hereby ordered that Defendants' Motion for Summary Judgment, as appears on the ECF docket sheet as entries 118−125, should be marked voluntarily withdrawn without prejudice and removed from the ECF docket. (Signed by Judge Shira A. Scheindlin on 2/4/2011) (jpo) (Entered: 02/04/2011)
130 NOTICE OF APPEARANCE by Arthur Gabriel Larkin, III on behalf of The City of New York (Larkin, Arthur) (Entered: 02/07/2011)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Discovery Hearing held on 2/8/2011. (mro) (Entered: 02/09/2011)
131 TRANSCRIPT of proceedings held on 1/26/2011 before Judge Shira A. Scheindlin. (ab) (Entered: 02/09/2011)
132 SEALED DOCUMENT placed in vault.(nm) (Entered: 02/17/2011)
133 ORDER re issue left open after the 2/8/11 conference, namely whether defendants need to produce the "facts and data" underlying Appendices D and E to the expert report of defendants' expert, Dr Dennis C. Smith: Accordingly, within ten days of the date of this Order, defendants are to either provide that facts and data underlying Appendices D and E to Dr. Smith's report or, if the facts and data have already been produced, identify with specificity, i. e., by serial number, where the facts and data can be found. (Signed by Magistrate Judge Henry B. Pitman on 2/18/11) Copies sent by Chambers(cd) (Entered: 02/18/2011)
134 MOTION for Summary Judgment. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11,

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Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York.(Donahue, Linda) (Entered: 02/24/2011)
135 MEMORANDUM OF LAW in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
136 RULE 56.1 STATEMENT. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
137 DECLARATION of Heidi Grossman in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit E− Part 1, # 2 Exhibit E− Part 2, # 3 Exhibit F−O, # 4 Exhibit P−T)(Donahue, Linda) (Entered: 02/24/2011)
138 DECLARATION of Santos Albino and Exhibits 1−3 in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
139 DECLARATION of Joseph Esposito and Supporting Exhibit in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)

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140 DECLARATION of Julie Schwartz in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
141 REPLY MEMORANDUM OF LAW in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
142 DECLARATION of Heidi Grossman and Exhibits A to DD in Support re: 134 MOTION for Summary Judgment.. Document filed by Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Donahue, Linda) (Entered: 02/24/2011)
143 DECLARATION of Santos Albino and Exhibit A in Support re: 134 MOTION for Summary Judgment.. Document filed by Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Donahue, Linda) (Entered: 02/24/2011)
144 RULE 56.1 STATEMENT. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Jane Doe, Jane Doe(in her individual capacity), Jane Doe(New York City, in her official capacity), John Doe #2, John Does(New York City, 1 and 2, in their official capacity), John Does(1 and 2, individually), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Appendix Non−confidential, # 2 Appendix Confidential)(Donahue, Linda) (Entered: 02/24/2011)
145 APPENDIX (1) IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Pursuant to Judge Shira A. Scheindlin's permission to filed hard copy is granted.) Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in

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his official capacity), Angelica Salmeron, The City of New York.(mbe) (Entered: 03/01/2011)
146 APPENDIX (2) IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Pursuant to Judge Shira A. Scheindlin's permission to filed hard copy is granted.). Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York.(mbe) (Entered: 03/01/2011)
147 APPENDIX (3) IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Pursuant to Judge Shira A. Scheindlin's permission to filed hard copy is granted.). Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York.(mbe) (Entered: 03/01/2011)
148 APPENDIX (4) IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Pursuant to Judge Shira A. Scheindlin's permission to filed hard copy is granted.). Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Jane Doe(New York City, in her official capacity), Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, David Ourlicht, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York.(mbe) (Entered: 03/01/2011)
149 DEFENDANTS' APPENDIX IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT (DEPOSITION EXCERPTS). Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Lalit Clarkson, Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (mbe) (Entered: 03/01/2011)
150 SEALED DOCUMENT placed in vault.(mps) (Entered: 03/02/2011)
***DELETED DOCUMENT. Deleted document number 151 Sealed Document. The document was incorrectly filed in this case. (mps) (Entered: 03/04/2011)
151 TRANSCRIPT of proceedings held on March 3, 2011 2:47 p.m. before Judge Shira A. Scheindlin. (ajc) (Entered: 03/15/2011)
152 TRANSCRIPT of proceedings held on 1/26/2011 before Judge Shira A. Scheindlin. (ama) (Entered: 03/28/2011)
153 OPINION AND ORDER: that Defendants' motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 134]. A conference is scheduled for 9/23/2011 at 4 p.m. (Signed by Judge Shira A. Scheindlin on 8/31/2011) (ft) (Entered: 08/31/2011)
Set/Reset Hearings: Status Conference set for 9/23/2011 at 04:00 PM before Judge Shira A. Scheindlin. (ft) (Entered: 08/31/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/23/2011. (mro) (Entered: 09/28/2011)
154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 09/28/2011)
155 MEMORANDUM OF LAW in Support re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Lalit Clarkson, Deon

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Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 09/28/2011)
156 AFFIDAVIT of Jeffrey Fagan in Support re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 09/28/2011)
157 TRANSCRIPT of Proceedings re: Conference held on 9/23/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Guido Tascione, (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)
158 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 9/23/11 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)
159 MEMORANDUM OF LAW in Opposition re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Publicker, Suzanna) (Entered: 10/12/2011)
160 DECLARATION of Heidi Grossman in Opposition re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit A−L)(Publicker, Suzanna) (Entered: 10/12/2011)
161 DECLARATION of Tracy S. Mulet in Opposition re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit A−D)(Publicker, Suzanna) (Entered: 10/12/2011)
162 REPLY MEMORANDUM OF LAW in Support re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 10/19/2011)
163 DECLARATION of Darius Charney in Support re: 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit Exhibit 1)(Charney, Darius) (Entered: 10/19/2011)
164 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 11/1/11 re: Counsel for the plaintiffs requests permission to cite, rather than resubmit, deposition testimony, documents and other evidence previously submitted to the Court, particularly in connection with defendants' motion for summary judgment. If Your Honor permits this, counsel then requests leave to submit a total of twenty exhibits. ENDORSEMENT: Request granted. Plaintiffs may cite, rather than

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re−submit already submitted evidence and may submit up to twenty exhibits. So ordered. (Signed by Judge Shira A. Scheindlin on 11/2/2011) (mro) (Entered: 11/03/2011)
165 MOTION to Certify Class. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Hoff Varner, Gretchen) (Entered: 11/07/2011)
166 MEMORANDUM OF LAW in Support re: 165 MOTION to Certify Class. Memorandum Of Law In Support of Plaintiffs' Motion For Class Certification. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Appendix Part 1, # 2 Appendix Part 2, # 3 Appendix Part 3)(Hoff Varner, Gretchen) (Entered: 11/07/2011)
167 DECLARATION of Darius Charney in Support re: 165 MOTION to Certify Class.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (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)(Hoff Varner, Gretchen) (Entered: 11/07/2011)
168 DECLARATION of Jeffrey Fagan in Support re: 165 MOTION to Certify Class.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 11/07/2011)
169 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 11/15/2011 re: I write pursuant to Rule I.D. of Your Honor's Individual Rules and Procedures to request a two−week extension of the deadline for Plaintiffs to submit both their opposition to Defendants' anticipated motion to exclude Plaintiffs' expert's testimony and their reply in further support of their own motion for class certification, both of which are currently due January 19, 2012. ENDORSEMENT: Request granted in part. Plaintiff's deadlines shall be extended by 14 days until February 2, 2012. Defendant's deadline to reply to plaintiff's Daubert opposition shall be also be extended 14 days, until February 16, 2012. Defendants have conveyed to the Court their reasons for requesting a four week extension, but those reasons are insufficient to justify further delay of this case. So Ordered. (Signed by Judge Shira A. Scheindlin on 11/15/2011) (rdz) (Entered: 11/16/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/16/2011. (js) (Entered: 12/02/2011)
170 ORDER: The Law Office of Rankin and Taylor, PLLC, on behalf of their clients Bronx Defenders, Brotherhood/Sister Sol, the Justice Committee, Picture the Homeless, and Streetwise and Safe, has submitted a motion for leave to file a amicus brief in this case. Having consulted with plaintiffs and defendants, I grant the motion. Because defendants will not have the opportunity for discovery on any factual claims made by the amici, I will rely only on the legal arguments, and not the facts, that they raise in their brief. (Signed by Judge Shira A. Scheindlin on 11/18/2011) (cd) (Entered: 11/21/2011)
171 OPINION AND ORDER re:#101065 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. For the reasons stated above, plaintiff's motion to reinstate Floyd's claims arising out of his February 27, 2008 stop and frisk is granted. (Signed by Judge Shira A. Scheindlin on 11/23/2011) (lmb) Modified on 11/30/2011 (jab). (Entered: 11/23/2011)
172 NOTICE OF APPEARANCE by Stephanie Marie Breslow on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Breslow, Stephanie) (Entered: 12/12/2011)
173 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Heidi Grossman dated 12/12/2011 re: counsel for defendants have made our best good faith efforts to confine our moving brief to the 15−page limit which Your Honor imposed during the

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conference; however, we believe that Defendants will be severely prejudiced by this constraint and respectfully request that the Court consider increasing the limit to 25 pages, commensurate with Your Honor's Individual Rules governing motion practice. ENDORSEMENT: Request denied. The Court addressed this precise question at the conference on September 23 and there is no reason to depart from the 15 page limit for this Daubert inquiry, which is restricted to addressing the relevancy and reliability of Fagans analytical methods. (Signed by Judge Shira A. Scheindlin on 12/14/2011) (pl) (Entered: 12/15/2011)
174 NOTICE OF APPEARANCE by Cecilia Ann Silver on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Silver, Cecilia) (Entered: 12/19/2011)
175 NOTICE OF APPEARANCE by Brenda Elaine Cooke on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Cooke, Brenda) (Entered: 12/19/2011)
176 MEMORANDUM OF LAW in Opposition re: 165 MOTION to Certify Class.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Silver, Cecilia) (Entered: 12/20/2011)
177 DECLARATION of Heidi Grossman in Opposition re: 165 MOTION to Certify Class.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, 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)(Silver, Cecilia) (Entered: 12/20/2011)
178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. Return Date set for 2/16/2012 at 05:00 PM.(Cooke, Brenda) (Entered: 12/20/2011)
179 MEMORANDUM OF LAW in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Cooke, Brenda) (Entered: 12/20/2011)
180 DECLARATION of Heidi Grossman in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in

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his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, 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)(Cooke, Brenda) (Entered: 12/20/2011)
181 DECLARATION of Dennis C. Smith in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, 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)(Cooke, Brenda) (Entered: 12/20/2011)
183 DECLARATION of Heidi Grossman in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Breslow, Stephanie) (Entered: 01/06/2012)
184 REPLY MEMORANDUM OF LAW in Support re: 165 MOTION to Certify Class.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 02/02/2012)
185 DECLARATION of Gretchen Hoff Varner in Support re: 165 MOTION to Certify Class.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit 1)(Hoff Varner, Gretchen) (Entered: 02/02/2012)
186 DECLARATION of Deon Dennis in Support re: 165 MOTION to Certify Class.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 02/02/2012)
187 MEMORANDUM OF LAW in Opposition re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 02/03/2012)
188 DECLARATION of Darius Charney in Opposition re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hoff Varner, Gretchen) (Entered: 02/03/2012)
189 DECLARATION of Jeffrey Fagan in Opposition re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hoff Varner, Gretchen) (Entered: 02/03/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Pre−Motion Conference held on 2/7/2012. (cd) (Entered: 03/06/2012)
190 MEMORANDUM OF LAW in Opposition re: 165 MOTION to Certify Class. Defendants' Sur−Reply. Document filed by Michael Bloomberg(individually), Michael

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Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Silver, Cecilia) (Entered: 02/16/2012)
191 REPLY MEMORANDUM OF LAW in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Publicker, Suzanna) (Entered: 02/17/2012)
192 DECLARATION of Heidi Grossman in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, 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)(Publicker, Suzanna) (Entered: 02/17/2012)
193 DECLARATION of Dennis C. Smith in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Publicker, Suzanna) (Entered: 02/17/2012)
194 DECLARATION of Robert M. Purtell in Support re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit A)(Publicker, Suzanna) (Entered: 02/17/2012)
195 NOTICE OF APPEARANCE by Judson Krebbs Vickers on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Vickers, Judson) (Entered: 02/23/2012)
196 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Gretchen Hoff Varner dated 2/23/12 re: Counsel requests that Taylor Hoffman and Anna Lumelsky be terminated from the docket, as they no longer represent plaintiffs. ENDORSEMENT: Plaintiffs' request is granted. Docketing is directed to remove attorneys Taylor Hoffman and Anna Lumelsky from the docket. So ordered. (Signed by Judge Shira A. Scheindlin on 2/28/2012) (mro) (Entered: 02/28/2012)
197 ORDER: Plaintiffs have filed suit against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and numerous police officers, alleging that the New York City Police Department has an unlawful practice of stops and frisks

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of City residents. To prove their case, plaintiffs seek to rely, in part, on the findings and testimony of Jeffrey Fagan, a criminologist and professor at Columbia University. Defendants have moved to exclude Fagan's expert reports, opinions, and testimony, arguing that they are irrelevant and unreliable. A hearing to consider defendants' motion is scheduled for Thursday, March 8 at 2:15 p.m. Set Deadlines/Hearing as to 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN:( Motion Hearing set for 3/8/2012 at 02:15 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 3/6/2012) (mro) Modified on 3/7/2012 (mro). (Entered: 03/06/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Final Pretrial Conference held on 3/8/2012. (jfe) (Entered: 04/10/2012)
198 DECLARATION of Jeffrey Fagan in Opposition re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 03/14/2012)
199 TRANSCRIPT of Proceedings re: Conference held on 3/8/2012 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 4/9/2012. Redacted Transcript Deadline set for 4/19/2012. Release of Transcript Restriction set for 6/18/2012.(McGuirk, Kelly) (Entered: 03/15/2012)
200 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 3/8/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/15/2012)
201 OPINION AND ORDER: #101712 For the reasons explained above, defendants' motion is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 178]. re: 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN filed by James Kelly, The City of New York, Michael Cousin Hayes, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Rodriguez, Goodman, Luis Pichardo. (Signed by Judge Shira A. Scheindlin on 4/16/2012) (cd) Modified on 4/20/2012 (jab). (Entered: 04/16/2012)
202 ENDORSED LETTER addressed to Judge Shira A Scheindlin from Gretchen Hoff Varner dated 3/15/2012 re: Defendants' letter dated 3/14/2012. ENDORSEMENT: The Clerk of the Court is directed to docket this letter. (Signed by Judge Shira A. Scheindlin on 4/16/2012) (cd) (Entered: 04/16/2012)
203 ENDORSED LETTER addressed to Judge Shira A Scheindlin from Heidi Grossman dated 3/14/2012 re: Defendants write to address issues raised in the 3/8/2012 Daubert hearing. ENDORSEMENT: The Clerk of the Court is directed to docket this letter. (Signed by Judge Shira A. Scheindlin on 4/16/2012) (cd) (Entered: 04/16/2012)
204 TRANSCRIPT of Proceedings re: CONFERNCE held on 2/7/2012 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 6/8/2012. Redacted Transcript Deadline set for 6/18/2012. Release of Transcript Restriction set for 8/16/2012.(McGuirk, Kelly) (Entered: 05/15/2012)
205 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 2/7/12 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

05/16/2012
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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: 05/15/2012)
206 OPINION AND ORDER # 101802 re: 165 MOTION to Certify Class filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. Because plaintiffs have satisfied the requirements of Rule 23, their motion for class certification is granted. The clerk is directed to close this motion [Docket No. 165] Status Conference set for 5/29/2012 at 04:30 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 5/16/2012) (tro) Modified on 5/17/2012 (ft). (Entered: 05/16/2012)
207 MEMO ENDORSEMENT re: BRIEF OF AMICUS CURIAE THE BLACK, LATINO AND ASIAN CAUCUS OF THE COUNCIL OF THE CITY OF NEW YORK IN FURTHER SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION: ENDORSEMENT: The Clerk is directed to docket this amicus brief. So Ordered. (Signed by Judge Shira A. Scheindlin on 5/16/2012) (pl) (Entered: 05/16/2012)
208 MEMO ENDORSEMENT MEMO ENDORSEMENT re: AMICUS CURIAE BRIEF of The Bronx Defenders, Brotherhood/Sister Sol, the Justice Committee, Picture the Homeless, and Streetwise and Safe in Support of Plaintiffs' Motion for Class Certification: ENDORSEMENT: The Clerk is directed to docket this amicus brief. So Ordered. (Signed by Judge Shira A. Scheindlin on 5/16/2012) (pl) (Entered: 05/16/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 5/29/2012. (pl) (Entered: 06/06/2012)
209 ORDER: Plaintiffs' request to extend the briefing schedule for their proposed Daubert motion challenging the methodology and/or qualifications of defendants' expert is denied. At the May 27 conference, plaintiffs stated that they would seek to expedite the remaining discovery and proceed to trial at the earliest possible time. This case is now four years old. A two month extension of the anticipated Daubert motion will cause further delay. A Daubert motion is not required and counsel should give careful thought to the need for such a motion. While counsel may disagree with the substance of an expert's testimony, that is not the standard for disqualification. Such motions are often made reflexively and with little chance of success. Nonetheless, should plaintiffs determine that a Daubert motion is absolutely necessary, they must make it on the schedule ordered during the May 27 conference. (Signed by Judge Shira A. Scheindlin on 6/4/2012) (laq) Modified on 6/6/2012 (tro). (Entered: 06/04/2012)
***DELETED DOCUMENT as per instructions from Chambers on 6/6/2012. Deleted document number 210 ORDER, which of 209 . (tro) (Entered: 06/06/2012)
211 ORDER FOR ADMISSION PRO HAC VICE. Attorney Daniel A. George for Lalit Clarkson,Daniel A. George for Deon Dennis,Daniel A. George for David Floyd,Daniel A. George for David Ourlicht admitted Pro Hac Vice. (Signed by Judge Shira A. Scheindlin on 6/18/2012) (lmb) (Entered: 06/19/2012)
Mailed copy of docket sheet on 6/11/12. (rdz) (Entered: 06/19/2012)
210 NOTICE OF APPEARANCE by Kasey Lynn Martini on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht (Martini, Kasey) (Entered: 06/19/2012)
212 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Gretchen Hoff Varner dated 6/26/2012 re: I write pursuant to Your Honor's Individual Rules and Procedures to request leave to file two exhibits that exceed Your Honor's Rule IV(H) fifteen page limit for exhibits. ENDORSEMENT: Request granted. So Ordered. (Signed by Judge Shira A. Scheindlin on 6/26/2012) (djc) (Entered: 06/26/2012)
213 TRANSCRIPT of Proceedings re: Conference held on 5/29/2012 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 7/20/2012. Redacted Transcript Deadline set for 7/30/2012. Release of Transcript Restriction set for 9/27/2012.(McGuirk, Kelly) (Entered: 06/26/2012)

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07/24/2012

214 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 05/29/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 06/26/2012)
215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Hoff Varner, Gretchen) (Entered: 06/26/2012)
216 MEMORANDUM OF LAW in Support re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 06/26/2012)
217 DECLARATION of Darius Charney in Support re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B (Part 1), # 3 Exhibit B (Part 2), # 4 Exhibit C)(Hoff Varner, Gretchen) (Entered: 06/26/2012)
CASHIERS OFFICE REMARK on 211 Order Admitting Attorney Pro Hac Vice, in the amount of $200.00, paid on 06/20/2012, Receipt Number 1041532. (jd) (Entered: 06/28/2012)
218 MEMORANDUM OF LAW in Opposition re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Breslow, Stephanie) (Entered: 07/24/2012)
219 DECLARATION of Heidi Grossman in Opposition re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Attachments: # 1 Exhibit A)(Breslow, Stephanie) (Entered: 07/24/2012)
220 DECLARATION of Dennis C. Smith in Opposition re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Breslow, Stephanie) (Entered: 07/24/2012)
221 DECLARATION of Robert M. Purtell in Opposition re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his individual capacity), Goodman(in his official capacity), Michael Cousin Hayes, Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(in his individual capacity), Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York. (Breslow, Stephanie) (Entered: 07/24/2012)

08/07/2012 08/07/2012 08/09/2012 08/17/2012 08/21/2012
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08/24/2012 08/27/2012
08/27/2012 08/29/2012 08/30/2012

222 REPLY MEMORANDUM OF LAW in Support re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Hoff Varner, Gretchen) (Entered: 08/07/2012)
223 DECLARATION of Gretchen Hoff Varner in Support re: 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit 1)(Hoff Varner, Gretchen) (Entered: 08/07/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/9/2012. (lmb) (Entered: 08/27/2012)
224 OPINION AND ORDER: #102223 Plaintiffs motion is granted in part and denied in part. The Clerk of the Court is directed to close the motion [Docket No. 215]. A status conference is scheduled for August 27 at 3:30 p.m. Defendants are directed to make Robert Purtell available for deposition as soon as practicable. (Signed by Judge Shira A. Scheindlin on 8/17/2012) (js) Modified on 8/22/2012 (jab). (Entered: 08/17/2012)
225 NOTICE OF APPEARANCE by Suzanna Hallie Publicker on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Publicker, Suzanna) (Entered: 08/21/2012)
226 TRANSCRIPT of Proceedings re: confernce held on 8/9/2012 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 9/17/2012. Redacted Transcript Deadline set for 9/27/2012. Release of Transcript Restriction set for 11/26/2012.(McGuirk, Kelly) (Entered: 08/22/2012)
227 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a confernce proceeding held on 8/9/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 08/22/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/24/2012. (djc) (Entered: 09/07/2012)
228 SCHEDULING ORDER: The scheduling order is amended to reflect the following dates: Motions due by 1/11/2013. Responses due by 1/24/2013 Replies due by 1/31/2013. Status Conference set for 11/16/2012 at 04:00 PM before Judge Shira A. Scheindlin. Pretrial Order due by 1/11/2013. Ready for Trial by 3/18/2013.SO ORDERED. (Signed by Judge Shira A. Scheindlin on 8/27/2012) (ama) (Entered: 08/27/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Conference held on 8/27/2012. (cd) (Entered: 09/06/2012)
229 ORDER: Defendants are instructed to deliver for in camera review, by no later than August 31, 2012, the entire set of documents for which they are asserting the deliberative process privilege. (Signed by Judge Shira A. Scheindlin on 8/28/2012) (ja) (Entered: 08/29/2012)
230 STIPULATION AND ORDER: Unsealing of Database. The Court will order the Clerk of the Court to release the NYPD UF250 database to defendants' counsel for the purposes described herein, including identifying names, addresses and telephone numbers in the 2009 UF250 database limited to the UF250 forms identified in Exhibit A, annexed hereto. Additional relief as set forth in this Order. (Signed by Judge Shira A. Scheindlin on 8/29/2012) (pl) (Entered: 08/31/2012)

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231 ORDER: that the Clerk of the Court release to the custody of defendants' counsel, the sealed database stored in the vault (Dkt. #117), for the purposes and in accordance with the Stipulation and Order, dated August 29, 2012. (Signed by Judge Shira A. Scheindlin on 8/29/2012) (pl) (Entered: 08/31/2012)
232 MEMORANDUM OPINION AND ORDER #102343: PlaintiffS seek production of all documents related to the creation and implementation of the NYPD'S Operations Order No. 52, dated October 17, 2011 and two other related orders. In this instance, however, because plaintiffs have failed to demonstrate that the documents are issue are relevant and because the final Orders promulgated by the NYPD are as helpful to the plaintiffs as the draft Orders and cover memoranda, defendants' strong interest in encouraging deliberative candor carries their burden of persuasion. Accordingly, plaintiffs' request for these documents is DENIED (Signed by Judge Shira A. Scheindlin on 9/7/2012) (ago) Modified on 9/19/2012 (ft). (Entered: 09/07/2012)
233 TRANSCRIPT of Proceedings re: CONFERNCE held on 8/27/2012 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 10/4/2012. Redacted Transcript Deadline set for 10/15/2012. Release of Transcript Restriction set for 12/13/2012.(McGuirk, Kelly) (Entered: 09/10/2012)
234 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 8/27/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/10/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 9/20/2012. (mro) (Entered: 09/26/2012)
235 MANDATE of USCA (Certified Copy) USCA Case Number 12−2206. Petitioners, through counsel, move, pursuant to Federal Rule of Civil Procedure 23(f) for leave to appeal the District Court's order granting Respondents' motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is DENIED because an immediate appeal is unwarranted. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/10/2012. (nd) (Entered: 10/10/2012)
236 TRANSCRIPT of Proceedings re: telephone conference held on 9/20/2012 before Magistrate Judge Henry B. Pitman. Court Reporter/Transcriber: Shari Riemer, (518) 581−8973. 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 11/8/2012. Redacted Transcript Deadline set for 11/19/2012. Release of Transcript Restriction set for 1/17/2013.(tro) (Entered: 10/15/2012)
237 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a telephone conference proceeding held on 9/20/2012 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...(tro) (Entered: 10/15/2012)
238 ORDER: Plaintiffs' request for a one−week extension of time − to November 16, 2012 − to identify potential trial witnesses is granted. Plaintiffs' request for a two−week extension to November 29, 2012 − to serve Professor Fagan's updated expert report is granted. Defendants may have whatever time they need to submit their expert report up to and including January 14, 2013. If this schedule is not acceptable to plaintiffs, then I adopt defendants' proposal that the Fagan supplemental report be made due November 21, 2012, and defendants must respond by December 21, 2012. (Signed by Judge Shira A. Scheindlin on 11/6/2012) (ft) (Entered: 11/07/2012)

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12/03/2012 12/05/2012
12/07/2012

239 NOTICE OF APPEARANCE by Joseph Anthony Marutollo on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Marutollo, Joseph) (Entered: 11/09/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/16/2012. (js) (Entered: 12/14/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/27/2012. (js) (Entered: 12/14/2012)
240 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/16/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Denise 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 12/26/2012. Redacted Transcript Deadline set for 1/7/2013. Release of Transcript Restriction set for 3/4/2013.(Rodriguez, Somari) (Entered: 11/30/2012)
241 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/16/2012 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...(Rodriguez, Somari) (Entered: 11/30/2012)
242 ORDER: In accordance with my rulings at the conference held November 27, 2012, the following pretrial schedule is hereby ORDERED: Plaintiffs will submit their preliminary witness and exhibit lists by December 14, 2012, and defendants will submit theirs by December 21, 2012. Pre−motion letters concerning motions in limine and any other pre−trial motions will be due December 28, 2012, with each side limited to 10 double−spaced pages. A pre−motion conference to address proposed motions in limine and any other pre−trial motions will be held January 4, 2013 at 2:30 p.m. The moving briefs of any motions in limine will be due January 15, 2013, response briefs will be due January 24, 2013, and reply briefs will be due January 31, 2013. The joint pre−trial order with briefing, subject to any amendment necessitated by my rulings on the motions in limine, will be due February 19, 2013. ( Motions due by 1/15/2013., Pretrial Order due by 2/19/2013., Responses due by 1/24/2013, Replies due by 1/31/2013.) (Signed by Judge Shira A. Scheindlin on 12/3/2012) (mro) (Entered: 12/03/2012)
Set/Reset Hearings: Pre−Motion Conference set for 1/4/2013 at 02:30 PM before Judge Shira A. Scheindlin. (mro) (Entered: 12/03/2012)
243 ENDORSED LETTER addressed to Judge Shira Scheindlin from Kasey L. Martini dated 11/30/2012 re: Plaintiff's counsel writes to request that the Court terminate Daniel George from the docket, as he is no longer associated with Covington & Burling LLP and no longer represents Plaintiffs in this matter. Plaintiffs continue to be represented by Darius Charney and Sunita Patel of the Center for Constitutional Rights, Jonathan Moore and Jennifer Borchetta of Beldock Levine & Hoffman LLP, and Philip Irwin, Eric Hellerman, Gretchen Hoff Varner, and Kasey Martini of Covington & Burling, LLP. ENDORSEMENT: Plaintiff's request is granted. Docket is directed to remove attorney Daniel George from the docket, as he is no longer represents plaintiffs. So Ordered. (Signed by Judge Shira A. Scheindlin on 12/5/2012) (ago) Modified on 12/20/2012 (ago). (Entered: 12/05/2012)
244 TRANSCRIPT of Proceedings re: CONFERENCE held on 11/27/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Carol Ganley, (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 1/2/2013. Redacted Transcript Deadline set for 1/10/2013. Release of Transcript Restriction set for 3/11/2013.(Rodriguez, Somari) (Entered: 12/07/2012)

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12/18/2012
12/19/2012 01/03/2013
01/03/2013
01/04/2013 01/04/2013 01/17/2013 01/22/2013 01/30/2013

245 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 11/27/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 12/07/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/11/2012. (cd) (Entered: 12/20/2012)
246 TRANSCRIPT of Proceedings re: SPEAKERPHONE CONFERENCE held on 12/11/2012 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 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)
247 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a SPEAKERPHONE CONFERENCE proceeding held on 12/11/12 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 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)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/19/2012. (ft) (Entered: 01/11/2013)
248 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/19/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Steven Greenblum, (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: 01/03/2013)
249 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/19/12 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 is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 01/03/2013)
250 NOTICE OF APPEARANCE by Lisa Marie Richardson on behalf of Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Goodman(in his official capacity), Eric Hernandez, Cormac Joyce, James Kelly, Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), Christopher Moran, Luis Pichardo, Rodriguez(New York City, in his official capacity), Angelica Salmeron, The City of New York (Richardson, Lisa) (Entered: 01/04/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/4/2013. (djc) (Entered: 01/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/17/2013. (djc) (Entered: 01/29/2013)
251 OPINION AND ORDER: #102829 Defendants' request for a stay is granted pending a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon. Defendants' request for a postponement of the Floyd trial is denied. (Signed by Judge Shira A. Scheindlin on 1/22/2013) (ago) Modified on 1/23/2013 (jab). (Entered: 01/22/2013)
252 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/4/2013 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

01/30/2013 01/31/2013 01/31/2013 01/31/2013 01/31/2013 01/31/2013 01/31/2013
01/31/2013

Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/25/2013. Redacted Transcript Deadline set for 3/7/2013. Release of Transcript Restriction set for 5/3/2013.(Rodriguez, Somari) (Entered: 01/30/2013)
253 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/4/13 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...(Rodriguez, Somari) (Entered: 01/30/2013)
254 TRANSCRIPT of Proceedings re: CONFERENCE held on 1/17/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Carol Ganley, (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 2/25/2013. Redacted Transcript Deadline set for 3/7/2013. Release of Transcript Restriction set for 5/6/2013.(Rodriguez, Somari) (Entered: 01/31/2013)
255 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 1/17/13 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...(Rodriguez, Somari) (Entered: 01/31/2013)
256 Letter addressed to Judge Shira A. Scheindlin from Brenda E. Cooke dated 1/28/2013 re: Defendants respectfully request an extension of time, until February 1, 2013, for service of defendants' rebuttal expert report. Document filed by Michael Bloomberg (individually), Michael Bloomberg (in his official capacity), Goodman (in his official capacity), Eric Hernandez, Jane Doe (New York City, in her official capacity), Cormac Joyce, James Kelly, Raymond Kelly (New York City Police, in his official capacity), Raymond Kelly (individually), Christopher Moran, Luis Pichardo, Rodriguez (New York City, in his official capacity), Angelica Salmeron, The City of New York.(ft) (Entered: 01/31/2013)
257 Letter addressed to Judge Shira A. Scheindlin from Jonathan C. Moore, Darius Charney, and Eric Hellerman dated 1/28/2013 re: Counsel requests the opportunity to discuss this proposal with the Court at the January 31 status conference currently scheduled in Ligon and Floyd. We also request that plaintiffs' counsel in Davis be permitted to attend and participate in that conference. Document filed by David Floyd.(ft) (Entered: 01/31/2013)
258 Letter addressed to Judge Shira A. Scheindlin from Jenn Rolnick Borchetta and Jonathan C. Moore dated 1/29/2013 re: We write on behalf of Plaintiffs to raise certain discovery and evidentiary matters that we would like to address at the January 31, 2013 conference currently scheduled in this matter. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(ft) (Entered: 01/31/2013)
259 Letter addressed to Judge Shira A. Scheindlin from Suzanna Publicker dated 1/29/2013 re: Defendants write today in response to plaintiffs letter dated January 29, 2013, to respectfully request that the Court preclude plaintiffs from calling certain witnesses at trial, to produce certain expert materials. Document filed by Michael Bloomberg (individually), Michael Bloomberg (in his official capacity), Goodman (in his official capacity), Eric Hernandez, Jane Doe(New York City, in her official capacity), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly (New York City Police, in his official capacity), Raymond Kelly (individually), Christopher Moran, Luis Pichardo, Rodriguez (New York City, in his official capacity), Angelica Salmeron, The City of New York.(ft) (Entered: 01/31/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/31/2013. (cd) (Entered: 02/06/2013)

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260 ORDER: At the January 31, 2013 conference, I reserved judgment as to whether the City would be compelled to produce records of unsubstantiated Internal Affairs Bureau ("IAB") and Office of Chief of Department ("OCD") complaints of suspicionless stops involving police officers who are expected to testify at the upcoming trial. I ordered the submission of the summary records for in camera review, to determine which allegations in fact involved suspicionless stops. The City submitted for in camera review only the twenty summary records that it found not to be complaints of suspicionless stops, or that it found to be unclear, as well as a summary of its conclusions regarding those records. Based on my review of these twenty complaint records, I conclude that the following complaints sufficiently allege suspicionless stops by officers who are expected to testify: 08−15158, 08−04119, 09−02441, 09−52860, 11−06568, 05−09344, 09−36862, 07−09652, 08−53470, 09−14207, and 09−15511. For each of these complaints, the City is ordered to locate, redact, and produce the associated investigative file. The City is ordered to complete production of the eleven files it has already begun to locate by March 4, 2013, and to complete production of the eleven files listed above by March 8, 2013. (Signed by Judge Shira A. Scheindlin on 2/21/2013) (ja) (Entered: 02/21/2013)
261 ORDER FOR ADMISSION PRO HAC VICE: Attorney Corey's application for admission to practice pro hac vice in the above captioned matter is GRANTED. (Signed by Judge Shira A. Scheindlin on 2/22/2013) (ft) (Entered: 02/22/2013)
262 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Suzanna Rublicker dated 2/27/2013 re: Therefore, defendants ask that the Court permit the City to only produce the Command Conditions Reports for the 43rd, 73rd, 107th, and the 28th Precincts for February 2012. While defendants are making best efforts to comply with this last minute request for documents, so that the deposition of the 30(b)(6) witness regarding Quest for Excellence can proceed next week as ordered by the Court, we propose that we provide one command conditions report to plaintiffs so that the deposition can occur in compliance with this Court's order. Given that the Court has allotted 2 hours for the deposition, a sample of one command conditions report should allow plaintiffs an opportunity to ask questions of the witness. ENDORSEMENT: The City's request is Granted in part as follows: The City is ordered to produce Command Condition Reports for the 43rd, 73rd, 107th and 28th Precincts Patrol Unit B and Anti−Crime Units for the month of February 2012, as early as possible, and no later than March 1, 2013. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 2/27/2013) (ama) (Entered: 02/28/2013)
263 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − BRIEF In Support of Plaintiffs' Requested Injunctive Relief. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) Modified on 3/6/2013 (ka). (Entered: 03/04/2013)
264 DECLARATION of Sunita Patel in Support re: 263 Brief. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Charney, Darius) (Entered: 03/04/2013)
265 STIPULATION AND PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (Signed by Judge Shira A. Scheindlin on 3/5/2013) (ft) (Entered: 03/05/2013)
266 Letter addressed to Judge Shira A. Scheindlin, from Jonathan C. Moore, dated 2/28/2013, re: Plaintiffs raising matters that we seek to address at the March 5, 2013 conference with the Court: Joint Pretrial Order, Defendants' Newly Identified Witnesses, Newly Identified High−Level NYPD Witnesses, Newly Identified Witnesses Related to Pedro Serrano, Newly Identified Expert Witness and other matters that are set forth herein. Document filed by Lalit Clarkson, Deon Dennis, David Floyd.(ja) (Entered: 03/06/2013)
267 Letter addressed to Judge Shira A. Scheindlin, from Heidi Grossman, dated 3/4/2013, re: in response to plaintiffs' 2/28/2013 letter, and in advance of the court conference scheduled on 3/5/2013. In addition, defendants raise several additional issues that are set forth herein. Document filed by Michael Bloomberg (individually), Michael Bloomberg (in his official capacity), Goodman (in his official capacity), Eric Hernandez, Jane Doe (New York City, in her official capacity), John Does #1 through 11, Cormac Joyce, James Kelly, Raymond Kelly (New York City Police, in his official

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capacity), Raymond Kelly (individually), Christopher Moran, Luis Pichardo, Rodriguez (New York City, in his official capacity), Angelica Salmeron, The City of New York.(ja) (Entered: 03/06/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Charney, Darius to RE−FILE Document 263 Brief. Use the event type Memorandum of Law (non−motion) found under the event list Other Answers. (ka) (Entered: 03/06/2013)
268 MEMORANDUM OF LAW in Support of Plaintiffs' Request for Permanent Injunctive Relief. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 03/06/2013)
269 DECLARATION of Sunita Patel in Support re: 268 Memorandum of Law. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Charney, Darius) (Entered: 03/06/2013)
270 STIPULATION AND ORDER OF WITHDRAWAL OF INDIVIDUAL DAMAGE CLAIMS: Plaintiffs Floyd, Clarkson, Dennis, and Ourlicht, through counsel, expressed their desire at the November 27, 2012 hearing in this action to withdraw their respective Individual Damage Claims and as a result the parties and the Court agreed at the November 27, 2012 hearing that this case must be tried to the Court. NOW THEREFORE, IT IS HEREBY STIPULATED, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii), by and between the parties through their respective counsel of record, that: Plaintiffs agree to withdraw the Individual Damage Claims, with prejudice, against all defendants against whom such Claims were asserted or could have been asserted, including the individuals identified in the Second Amended Complaint as "JOHN DOES #1 through #11," and agree not to assert any other damages claim in this action. As further set forth herein Plaintiffs specifically withdraw the following paragraphs of their Second Amended Complaint. The Plaintiffs agree to withdraw all claims, with prejudice, against the following Defendants and to dismiss the following Defendants from the case. The parties also agree that the caption of the Second Amended Complaint shall be amended to omit any reference to the following defendants as set forth herein. (Signed by Judge Shira A. Scheindlin on 3/5/2013) (ja) (Entered: 03/08/2013)
271 JOINT PRELIMINARY TRIAL REPORT. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A (Witnesses), # 2 Exhibit B (Exhibits), # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Borchetta, Jennifer) (Entered: 03/11/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 3/14/2013. (mro) (Entered: 03/19/2013)
272 JOINT PRELIMINARY TRIAL REPORT. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Martini, Kasey) (Entered: 03/15/2013)
273 NOTICE OF APPEARANCE by Baher Azmy on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht (Azmy, Baher) (Entered: 03/17/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial begun on 3/18/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/19/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/20/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/21/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/22/2013. (pl) (Entered: 03/29/2013)

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Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/27/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/28/2013. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 3/29/2013. Continued to next month. (pl) (Entered: 03/29/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/1/2013. (Reily, James) (Entered: 04/08/2013)
***DELETED DOCUMENT. Deleted document number 274 Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/1/2013. The document was incorrectly filed in this case. (tro) (Entered: 04/10/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/2/2013. (Reily, James) (Entered: 04/08/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/3/2013. (Reily, James) (Entered: 04/08/2013)
***DELETED ENTRY. Deleted Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/1/2013.. The document was incorrectly filed in this case. (tro) (Entered: 04/10/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/4/2013. (Reily, James) (Entered: 04/08/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/5/2013. (Reily, James) (Entered: 04/08/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/8/2013. (Reily, James) (Entered: 04/08/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/9/2013. (Reily, James) (Entered: 04/17/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/10/2013. (Reily, James) (Entered: 04/17/2013)
274 MEMORANDUM OF LAW in Opposition re: 268 Memorandum of Law. Document filed by The City of New York. (Richardson, Lisa) (Entered: 04/11/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/15/2013. (Reily, James) (Entered: 04/17/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/16/2013. (Reily, James) (Entered: 04/17/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/17/2013. (Reily, James) (Entered: 04/17/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/18/2013. (Reily, James) (Entered: 05/01/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/19/2013. (Reily, James) (Entered: 05/01/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/22/2013. (Reily, James) (Entered: 05/01/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/23/2013. (Reily, James) (Entered: 05/01/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/24/2013. (Reily, James) (Entered: 05/01/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/25/2013. (Reily, James) (Entered: 05/01/2013)

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275 ORDER: On April 24, 2013, the City of New York moved to exclude the testimony of plaintiffs' police practices expert, Lou Reiter. Under the Federal Rules of Evidence and related case law, the use of expert testimony must be "carefully circumscribed to assure that the expert does not usurp either the role of the trial judge in instructing the jury as to the applicable law or the role of the [trier of fact] in applying that law to the facts before it."... I have carefully reviewed Mr. Reiter's testimony. Large portions of the testimony consisted of legal conclusions, expert opinions lacking a sufficient foundation, non−expert observations regarding lay matters, and summaries of the trial testimony and exhibits. Such summaries are appropriate in the parties' summations, but may not be offered under the guise of expert opinion. Certain portions of Mr. Reiter's testimony, including his opinions regarding the NYPD's procedures for administrative investigations, rested on a reliable foundation and are admissible. But other portions, including Mr. Reiter's observations concerning general and best practices for recording stop and frisk activity, did not rest on a reliable foundation and are inadmissible. In addition, while Mr. Reiter established a general expertise regarding use−of−force reporting, he did not establish a sufficient foundation for his opinions regarding the NYPD's use−of−force reporting in relation to stop and frisk activity the only use−of−force reporting relevant to this case. As a result, his testimony regarding use−of−force reporting must be excluded. Based on these conclusions, all but the following portions of Mr. Reiter's testimony on direct and redirect examination are excluded: Tr. 4808: 13−4824:9, 4826:19−4831:17 (expert qualifications); 4834:1−4835:20, 4845:8−4846:1 (first level supervisors and operational policy); 4865:22−4866:5 (memo book deficiencies as choice rather than oversight); 4877:11−4878:6 (public pronouncements as notice); 4878:12−4893:21 (administrative investigations); 4956:23−4957:17 (quotas); 4963:19−4964:12 (callbacks). The City is directed to identify any portions of Mr. Reiter's cross−examination that it wishes to exclude based on the reasoning of this Order. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 4/29/2013) (ja) (Entered: 04/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/29/2013. (Reily, James) (Entered: 05/01/2013)
276 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 268 Memorandum of Law. Document filed by The City of New York. (Richardson, Lisa) (Entered: 04/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 4/30/2013. (Reily, James) (Entered: 05/01/2013)
277 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' request to preclude City's remedies expert Stewart from testifying at trial. Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 5/1/2013) (ja) (Entered: 05/02/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/1/2013. (Reily, James) (Entered: 05/24/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/2/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/3/2013. (Reily, James) (Entered: 05/30/2013)
278 OPINION AND ORDER: #103176 Defendants' expert is precluded from testifying to the opinions set forth in his report dated April 15, 2013 except as follows: (1) defendants' expert may testify to the opinions expressed at pages 26−31 of his report; (2) defendants' expert may testify concerning his belief regarding New York City's compliance with the Daniels settlement agreement to the extent that belief is a predicate for his opinion concerning the need for a court−appointed monitor. (Signed by Magistrate Judge Henry B. Pitman on 5/6/2013) (ft) Modified on 5/8/2013 (jab). (Entered: 05/06/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/6/2013. (Reily, James) (Entered: 05/30/2013)

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05/30/2013
05/30/2013

Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/7/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/9/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/10/2013. (Reily, James) (Entered: 05/30/2013)
279 MEMORANDUM OPINION AND ORDER: #103189 For the reasons stated in this Memorandum Opinion and Order, the decision of the magistrate court is overruled and the Stewart Report is admissible. (Signed by Judge John F. Keenan in Part I on 5/13/2013). (rjm) Modified on 5/14/2013 (jab). (Entered: 05/13/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/13/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/14/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/15/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/16/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial held on 5/17/2013. (Reily, James) (Entered: 05/30/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Bench Trial completed on 5/20/2013. (Reily, James) (Entered: 05/30/2013)
280 TRANSCRIPT of Proceedings re: Trial held on 3/18/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
281 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/18/2013 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: 05/30/2013)
282 TRANSCRIPT of Proceedings re: Trial held on 3/19/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
283 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/19/2013 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: 05/30/2013)
284 TRANSCRIPT of Proceedings re: Trial held on 3/20/2013 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 6/24/2013.

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Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
285 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/20/2013 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: 05/30/2013)
286 TRANSCRIPT of Proceedings re: Trial held on 3/21/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
287 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/21/13 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: 05/30/2013)
288 TRANSCRIPT of Proceedings re: Trial held on 3/22/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
289 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/22/2013 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: 05/30/2013)
290 TRANSCRIPT of Proceedings re: Trial held on 3/27/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
291 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/27/2013 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: 05/30/2013)
292 TRANSCRIPT of Proceedings re: Trial held on 3/28/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)

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293 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/28/2013 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: 05/30/2013)
294 TRANSCRIPT of Proceedings re: Trial held on 3/29/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
295 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 3/29/2013 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: 05/30/2013)
296 TRANSCRIPT of Proceedings re: Trial held on 4/1/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
297 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/1/2013 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: 05/30/2013)
298 TRANSCRIPT of Proceedings re: Trial held on 4/2/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
299 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/2/2013 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: 05/30/2013)
300 TRANSCRIPT of Proceedings re: Trial held on 4/3/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
301 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/3/2013 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar

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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: 05/30/2013)
302 TRANSCRIPT of Proceedings re: TRIAL held on 4/4/2013 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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/30/2013)
303 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 4/4/2013 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: 05/30/2013)
304 TRANSCRIPT of Proceedings re: Trial held on 4/5/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/24/2013. Redacted Transcript Deadline set for 7/8/2013. Release of Transcript Restriction set for 9/3/2013.(McGuirk, Kelly) (Entered: 05/31/2013)
305 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/5/2013 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: 05/31/2013)
306 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Morgan D. Kunz, dated 5/30/2013, re: seek an Order from the Court on the extent to which Plaintiffs' Trial Exhibits 291 and 292, attached hereto in redacted form, were admitted into evidence during trial. Accordingly, Defendant asks that the copies of the documents enclosed with this letter be the final trial versions of these documents. ENDORSEMENT: Defendant's request for the admission of exhibits 291 and 292 as they appear in the attachment to defendant's letter is granted. The attached documents are the final trial versions of exhibits 291 and 292. In addition, the record should be corrected as follows: the references to exhibit 300 at trial transcript pages 2487:24, 2490:19, and 2491:8 should be replaced with references to exhibit 291. (Signed by Judge Shira A. Scheindlin on 5/31/2013) (ja) Modified on 6/3/2013 (ja). (Entered: 06/03/2013)
307 TRANSCRIPT of Proceedings re: Trial held on 4/8/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
308 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/8/2013 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: 06/04/2013)

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309 TRANSCRIPT of Proceedings re: Trial held on 4/9/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
310 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/9/2013 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: 06/04/2013)
311 TRANSCRIPT of Proceedings re: Trial held on 4/10/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
312 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/10/13 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: 06/04/2013)
313 TRANSCRIPT of Proceedings re: Trial held on 4/15/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
314 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/15/2013 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: 06/04/2013)
315 TRANSCRIPT of Proceedings re: Trial held on 4/16/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
316 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/16/2013 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: 06/04/2013)
317 TRANSCRIPT of Proceedings re: Trial held on 4/17/2013 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

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Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
318 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/17/13 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: 06/04/2013)
319 TRANSCRIPT of Proceedings re: Trial held on 4/18/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
320 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/18/2013 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: 06/04/2013)
321 TRANSCRIPT of Proceedings re: Trial held on 4/19/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
322 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/19/2013 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: 06/04/2013)
323 TRANSCRIPT of Proceedings re: Trial held on 4/22/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
324 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/22/13 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: 06/04/2013)
325 TRANSCRIPT of Proceedings re: Trial held on 4/23/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set

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for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
326 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/23/13 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: 06/04/2013)
327 TRANSCRIPT of Proceedings re: Trial held on 4/24/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
328 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/24/2013 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: 06/04/2013)
329 TRANSCRIPT of Proceedings re: Trial held on 4/25/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
330 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/25/13 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: 06/04/2013)
331 TRANSCRIPT of Proceedings re: Trial held on 4/29/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
332 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/29/13 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: 06/04/2013)
333 TRANSCRIPT of Proceedings re: Trial held on 4/30/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)

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334 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 4/30/2013 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: 06/04/2013)
335 TRANSCRIPT of Proceedings re: Trial held on 5/1/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
336 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/1/2013 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: 06/04/2013)
337 TRANSCRIPT of Proceedings re: Trial held on 5/2/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
338 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/2/2013 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: 06/04/2013)
339 TRANSCRIPT of Proceedings re: Trial held on 5/3/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
340 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/3/2013 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: 06/04/2013)
341 TRANSCRIPT of Proceedings re: Trial held on 5/6/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
342 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/6/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar

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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: 06/04/2013)
343 TRANSCRIPT of Proceedings re: Trial held on 5/7/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
344 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/7/2013 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: 06/04/2013)
345 TRANSCRIPT of Proceedings re: Trial held on 5/9/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
346 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/9/13 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: 06/04/2013)
347 TRANSCRIPT of Proceedings re: Trial held on 5/10/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
348 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/10/2013 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: 06/04/2013)
349 TRANSCRIPT of Proceedings re: Trial held on 5/13/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
350 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/13/2013 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:

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06/04/2013)
351 TRANSCRIPT of Proceedings re: Trial held on 5/14/2013 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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
352 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/14/2013 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: 06/04/2013)
353 TRANSCRIPT of Proceedings re: Trial held on 5/15/2013 before Judge Leonard B. Sand. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
354 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/15/13 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: 06/04/2013)
355 TRANSCRIPT of Proceedings re: Trial held on 5/16/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
356 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/16/2013 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: 06/04/2013)
357 TRANSCRIPT of Proceedings re: Trial held on 5/17/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
358 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/17/2013 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: 06/04/2013)

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359 TRANSCRIPT of Proceedings re: corrected trial held on 5/17/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
360 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a corrected trial proceeding held on 5/17/2013 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: 06/04/2013)
361 TRANSCRIPT of Proceedings re: Trial held on 5/20/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Eve Giniger, (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 6/28/2013. Redacted Transcript Deadline set for 7/11/2013. Release of Transcript Restriction set for 9/6/2013.(McGuirk, Kelly) (Entered: 06/04/2013)
362 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Trial proceeding held on 5/20/2013 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: 06/04/2013)
363 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by The City of New York.(Marutollo, Joseph) (Entered: 06/12/2013)
364 POST TRIAL MEMORANDUM. Document filed by The City of New York.(Marutollo, Joseph) (Entered: 06/12/2013)
365 BRIEF Statement of Interest. Document filed by United States of America.(Volek, Jude) (Entered: 06/12/2013)
366 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Martini, Kasey) (Entered: 06/12/2013)
367 POST TRIAL MEMORANDUM. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Martini, Kasey) (Entered: 06/12/2013)
368 MOTION for RACHEL M. KLEINMAN to Withdraw as Attorney. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Text of Proposed Order)(Kleinman, Rachel) (Entered: 07/11/2013)
369 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Heidi Grossman, dated 7/12/2013, re: in response to the Court's email request of the parties on June 27, 2013, to explain what, if any effect that the recent passage by the New York City Council of Int. No. 1079, a bill that would create an independent inspector general for the NYPD, would have on the parties' remedies arguments. Int. No. 1079 passed amid the public debate surrounding NYPD's stop, question and frisk practices. Defendants submit that Int. No. 1079, should it become effective, illustrates the confusion, redundancy and unwieldiness that defendants argued in their previous submissions would result and potentially compromise the public safety if NYPD is subjected to further oversight, including a federal monitor. For all of the above reasons, the Court should not appoint a monitor. ENDORSEMENT: The Clerk of Court is directed to docket the following two letters from the parties in this case, both dated July 10, 2013. (Signed by Judge Shira A. Scheindlin on 7/12/2013) (ja) (Entered: 07/12/2013)
370 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Sunita Patel, dated 7/10/2013, re: Plaintiffs write in response to the Court's request for letters from

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the parties explaining the effect, if any, of New York City Council bill Int. No. 1079's creation of an inspector general ("IG") for the New York Police Department ("NYPD") on the remedies sought in this action. In sum, the roles of the IG, a court−appointed monitor, and the Joint Remedial Process are distinct and would each serve as complementary and necessary pieces of a comprehensive reform process and independent oversight and accountability system for the NYPD. In the future, similar to the way DOJ consent decrees provide, when the IG and court monitor are hired or appointed, there may be a need to specify mechanisms for information−sharing and coordination of efforts... At that time, Plaintiffs can provide the Court with a sample order with such provisions after consulting with the court monitor, Defendants and the IG. ENDORSEMENT: The Clerk of the Court is directed to docket this letter. So Ordered. (Signed by Judge Shira A. Scheindlin on 7/12/2013) (ja) (Entered: 07/12/2013)
371 ORDER granting 368 Motion to Withdraw as Attorney. Attorney Rachel Miriam Kleinman terminated. On motion of Rachel M. Kleinman to withdraw her appearance as counsel for Plaintiffs, IT IS ORDERED that the motion is GRANTED. The Clerk is directed to close Dkt. # 368.(Signed by Judge Shira A. Scheindlin on 7/19/2013) (ama) (Entered: 07/19/2013)
372 OPINION AND ORDER: #103482 The defendant in Floyd and the defendants in Ligon are ordered to comply with the remedial orders described herein. The Clerk of the Court is directed to close the Ligon defendants' motion regarding proposed remedies. [No. 12 Civ. 2274, Dkt. No. 112] (Signed by Judge Shira A. Scheindlin on 8/12/2013) (ja) Modified on 8/15/2013 (ca). (Main Document 372 replaced on 8/23/2013) (tro). (Entered: 08/12/2013)
373 OPINION AND ORDER: #103471 For the foregoing reasons, the City is liable for the violation of plaintiffs' Fourth and Fourteenth Amendment rights. In a separate opinion, I will order remedies, including immediate changes to the NYPD's policies, a joint−remedial process to consider further reforms, and the appointment of an independent monitor to oversee compliance with the remedies ordered in this case. I conclude with a particularly apt quote: "The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies like stop−and−frisk, and... neighborhood watch − regardless of the collateral damage done to the majority of innocents. It's like burning down a house to rid it of mice." (See Order). (Signed by Judge Shira A. Scheindlin on 8/12/2013) (ja) Modified on 8/14/2013 (ca). (Entered: 08/12/2013)
374 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Darius Charney, dated 1/11/2013, re: response to Defendants' January 10, 2013 letter that seeks to preclude class member witness Clive Lino from testifying about a stop that occurred on or about August 3, 2008. We submit that permitting Mr. Lino to testify about this stop is consistent with the Court's previous ruling... ENDORSEMENT: The Clerk of the Court is directed to docket this letter. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) (Entered: 08/13/2013)
375 OPINION AND ORDER #103469: On January 31, 2013, a joint conference was held in Floyd v. City of New York, No. 08 Civ. 1034; Ligon v. City of New York, No. 12 Civ. 2274; and Davis v. City of New York, No. 10 Civ. 0699. The transcript for the conference has been docketed in Davis at Dkt. No. 266. The Clerk of the Court is directed to docket the transcript of the conference in the Floyd and Ligon dockets as well. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) Modified on 8/16/2013 (tro). (Entered: 08/13/2013)
377 MEMO ENDORSEMENT re AMICUS CURIAE BRIEF OF COMMUNITIES UNITED FOR POLICE REFORM (CPR)*. ENDORSEMENT: The Clerk of the Court is directed to docket this amicus brief. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) Modified on 8/14/2013 (ja). (Entered: 08/14/2013)
378 MEMO ENDORSEMENT re BRIEF OF AMICUS CURIE THE BLACK, LATINO AND ASIAN CAUCUS OF THE COUNCIL OF THE CITY OF NEW YORK IN FURTHER SUPPORT OF PLAINTIFFS' REQUEST TO INCLUDE THE COMMUNITY IN A COLLABORATIVE PROCESS TOWARDS REFORM. ENDORSEMENT: The Clerk of the Court is directed to docket this amicus brief. SO

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ORDERED. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) (Entered: 08/14/2013)
***DELETED DOCUMENT. Deleted document number 376 Opinion and Order *(duplicative of 375). The document was incorrectly filed in this case. (tro) (Entered: 08/16/2013)
379 NOTICE OF APPEAL from 372 Memorandum & Opinion, 373 Memorandum & Opinion,,,. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), The City of New York. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Cooke, Brenda) (Entered: 08/16/2013)
Appeal Fee Due: for 379 Notice of Appeal. Appeal fee due by 8/30/2013. (tp) (Entered: 08/16/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 379 Notice of Appeal. (tp) (Entered: 08/16/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 250 Notice of Appearance, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Rodriguez, Goodman, Luis Pichardo, 248 Transcript,, 310 Notice of Filing Transcript, 186 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 103 Reply Affirmation in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 374 Endorsed Letter,, 184 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 277 Order Referring Case to Magistrate Judge, 133 Order,, 289 Notice of Filing Transcript, 214 Notice of Filing Transcript,, 57 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 49 Order on Motion to Withdraw as Attorney, 318 Notice of Filing Transcript, 27 Affidavit of Service Complaints, filed by David Floyd, Lalit Clarkson, 54 Answer to Amended Complaint filed by Christopher Moran, 165 MOTION to Certify Class. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 126 Endorsed Letter,,, 221 Declaration in Opposition to Motion,, filed by James Kelly, The City of New York, Michael Cousin Hayes, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 312 Notice of Filing Transcript, 328 Notice of Filing Transcript, 331 Transcript,, 296 Transcript,, 44 Answer to Amended Complaint filed by Michael Cousin Hayes, 45 Memorandum & Opinion,, 355 Transcript,, 193 Declaration in Support of Motion,, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 335 Transcript,, 136 Rule 56.1 Statement,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Rodriguez, Goodman, Luis Pichardo, 349 Transcript,, 168 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 159 Memorandum of Law in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 50 Amended Complaint,, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 330 Notice of Filing Transcript, 30 Memorandum of Law in Opposition to Motion filed by The City of New York, 130 Notice of Appearance filed by The City of New York, 309 Transcript,, 340 Notice of Filing Transcript, 172 Notice of Appearance,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 83 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 269 Declaration in Support, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 225 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 79 Order, 78 Endorsed Letter, 373 Memorandum & Opinion,,, 166 Memorandum of Law in Support of Motion, filed by David Floyd,

David Ourlicht, Lalit Clarkson, Deon Dennis, 35 Declaration in Support of Motion filed by David Floyd, Lalit Clarkson, Deon Dennis, 81 Set Deadlines/Hearings,,,, 323 Transcript,, 280 Transcript,, 101 Declaration in Opposition to Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 357 Transcript,, 299 Notice of Filing Transcript, 320 Notice of Filing Transcript, 188 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 243 Endorsed Letter,,, 134 MOTION for Summary Judgment. filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 55 Order, Set Deadlines/Hearings,, 379 Notice of Appeal, filed by Raymond Kelly, The City of New York, Michael Bloomberg, 107 Endorsed Letter, Set Deadlines/Hearings,, 23 MOTION to Compel Discovery. filed by David Floyd, Lalit Clarkson, 333 Transcript,, 224 Memorandum & Opinion, 375 Memorandum & Opinion, 43 Answer to Amended Complaint filed by James Kelly, Angelica Salmeron, Eric Hernandez, Cormac Joyce, Luis Pichardo, 367 Post Trial Memorandum filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 235 USCA Mandate, 295 Notice of Filing Transcript, 236 Transcript,, 111 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 19 MOTION for Extension of Time to Serve Complaint. filed by David Floyd, Lalit Clarkson, 271 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 300 Transcript,, 190 Memorandum of Law in Opposition to Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 161 Declaration in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 339 Transcript,, 326 Notice of Filing Transcript, 102 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 244 Transcript,, 270 Stipulation and Order,,,,, 144 Rule 56.1 Statement,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 75 Order, Set Deadlines/Hearings,,,, 38 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 17 Endorsed Letter, Set Deadlines/Hearings,, 346 Notice of Filing Transcript, 353 Transcript,, 342 Notice of Filing Transcript, 66 Protective Order, 64 Protective Order, 183 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 238 Order,, 332 Notice of Filing Transcript, 264 Declaration in Support filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 229 Order, 281 Notice of Filing Transcript, 329 Transcript,, 212 Endorsed Letter, 262 Endorsed Letter, Set Deadlines/Hearings,,,,,,,, 162 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 311 Transcript,, 25 Declaration in Support of Motion, filed by David Floyd, Lalit Clarkson, 377 Memo Endorsement, 348 Notice of Filing Transcript, 343 Transcript,, 160 Declaration in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 267 Letter,,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 254 Transcript,, 265 Protective Order, 163 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 37 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 273 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 231 Order, 204 Transcript,, 105 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 213 Transcript,, 143 Declaration in Support of

Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 142 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 13 Scheduling Order, 180 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 62 Scheduling Order,, 315 Transcript,, 242 Order, Set Deadlines,,,,,,,, 322 Notice of Filing Transcript, 251 Order, 234 Notice of Filing Transcript, 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 20 Endorsed Letter,, 279 Memorandum & Opinion, 245 Notice of Filing Transcript,, 207 Memo Endorsement, 85 Declaration in Opposition to Motion, filed by The City of New York, 24 Memorandum of Law in Support of Motion filed by David Floyd, Lalit Clarkson, 73 Endorsed Letter, Set Deadlines/Hearings,,,, 31 Order,, 247 Notice of Filing Transcript,, 8 Order, Set Deadlines/Hearings, 233 Transcript,, 291 Notice of Filing Transcript, 352 Notice of Filing Transcript, 28 Answer to Amended Complaint, filed by Raymond Kelly, Michael Bloomberg, 359 Transcript,, 360 Notice of Filing Transcript,, 354 Notice of Filing Transcript, 246 Transcript,, 61 Protective Order, 89 Reply to Response to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 222 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 129 Order, Set Deadlines/Hearings,, 345 Transcript,, 258 Letter, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 336 Notice of Filing Transcript, 298 Transcript,, 177 Declaration in Opposition to Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 127 Endorsed Letter, Set Deadlines/Hearings,,,, 189 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 206 Memorandum & Opinion, Set Hearings,, 65 Endorsed Letter, 1 Complaint,, filed by David Floyd, Lalit Clarkson, 317 Transcript,, 80 Order, 74 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 93 Order on Motion for Reconsideration,,,, 314 Notice of Filing Transcript, 158 Notice of Filing Transcript, 272 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 91 Protective Order, 10 Order,, 201 Memorandum & Opinion,, 108 Memorandum & Opinion,,, 319 Transcript,, 100 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 196 Endorsed Letter, 284 Transcript,, 40 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 282 Transcript,, 321 Transcript,, 88 Protective Order, 257 Letter, filed by David Floyd, 98 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 305 Notice of Filing Transcript, 338 Notice of Filing Transcript, 181 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 48 MOTION for Reconsideration re; 45 Memorandum & Opinion,,. MOTION for Reconsideration re; 45 Memorandum & Opinion,,. filed by The City of New York, 174 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 119 Memorandum of Law in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 36 Endorsed Letter, Set Deadlines/Hearings,,,, 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment,. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 365 Brief filed by United States of America, 292 Transcript,, 59 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 16 Affidavit of Service Complaints, filed by David Floyd, Lalit Clarkson, 286 Transcript,, 217 Declaration in Support of

Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 372 Memorandum & Opinion, 287 Notice of Filing Transcript, 114 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 135 Memorandum of Law in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 306 Endorsed Letter,,, 278 Memorandum & Opinion,, 47 Order, Set Deadlines,, 203 Endorsed Letter, 141 Reply Memorandum of Law in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 210 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 288 Transcript,, 138 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 125 Rule 56.1 Statement,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 260 Order,,,,, 253 Notice of Filing Transcript,, 69 Order, 164 Endorsed Letter,, 249 Notice of Filing Transcript,, 200 Notice of Filing Transcript, 97 MOTION for Sanctions. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 364 Post Trial Memorandum filed by The City of New York, 137 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 209 Order,,, 334 Notice of Filing Transcript, 46 Notice of Change of Address, filed by David Floyd, Lalit Clarkson, Deon Dennis, 283 Notice of Filing Transcript, 21 Order, Set Deadlines/Hearings,,,,,, 170 Order,, 6 Order for Initial Pretrial Conference, 274 Memorandum of Law in Opposition filed by The City of New York, 169 Endorsed Letter, Set Deadlines,,,,,, 56 Stipulation and Order, Terminate Motions,,,,,,,,,, 116 Order,, 344 Notice of Filing Transcript, 230 Stipulation and Order, 187 Memorandum of Law in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 87 Memorandum of Law in Opposition to Motion, filed by The City of New York, 124 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 52 Protective Order, 53 Affidavit of Service Complaints, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 140 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 327 Transcript,, 303 Notice of Filing Transcript, 157 Transcript,, 121 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 369 Endorsed Letter,,,, 11 Amended Complaint,, filed by David Floyd, Lalit Clarkson, 263 Brief, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 70 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 171 Memorandum & Opinion, 122 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 123 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 304 Transcript,, 256 Letter,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 259 Letter,,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 5 Endorsed Letter, Set Deadlines,, 362 Notice of Filing

Transcript, 324 Notice of Filing Transcript, 2 Order, Set Deadlines/Hearings,,,,,, 255 Notice of Filing Transcript,, 363 Proposed Findings of Fact filed by The City of New York, 356 Notice of Filing Transcript, 63 Order, 182 Letter, 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 14 Order Referring Case to Magistrate Judge, 351 Transcript,, 211 Order Admitting Attorney Pro Hac Vice, 34 Reply Memorandum of Law in Support of Motion, filed by David Floyd, Lalit Clarkson, Deon Dennis, 39 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 95 Endorsed Letter, Set Hearings,,,, 194 Declaration in Support of Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 275 Order,,,,,,,,, 92 Order,, 308 Notice of Filing Transcript, 76 Endorsed Letter, Set Deadlines/Hearings,,,, 223 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 9 Order, Set Deadlines/Hearings,,,,,,,, 266 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, 208 Memo Endorsement, 232 Memorandum & Opinion,, 18 Answer to Amended Complaint filed by The City of New York, 90 Reply Affidavit in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 29 Declaration in Opposition to Motion filed by The City of New York, 301 Notice of Filing Transcript, 252 Transcript,, 112 Protective Order, 239 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 202 Endorsed Letter, 325 Transcript,, 228 Scheduling Order, 341 Transcript,, 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN. filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 366 Proposed Findings of Fact filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 192 Declaration in Support of Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 378 Memo Endorsement, 42 MOTION for Andrea Costello to Withdraw as Attorney. filed by David Floyd, Lalit Clarkson, Deon Dennis, 226 Transcript,, 316 Notice of Filing Transcript, 153 Order on Motion for Summary Judgment, 173 Endorsed Letter,,, 197 Order, Set Motion and R&R Deadlines/Hearings,,,,,, 293 Notice of Filing Transcript, 219 Declaration in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 337 Transcript,, 139 Declaration in Support of Motion,,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 205 Notice of Filing Transcript, 67 Order,,,, 58 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 370 Endorsed Letter,,,, 185 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 227 Notice of Filing Transcript, 176 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 216 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 199 Transcript,, 220 Declaration in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 261 Order Admitting Attorney Pro Hac Vice, 15 Order, Set Deadlines/Hearings,, 191 Reply Memorandum of Law in Support of Motion,, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 371 Order on Motion to Withdraw as Attorney, 72 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 307 Transcript,, 290 Transcript,, 276 Memorandum of Law in Opposition filed by The City of New York, 118 MOTION for Summary Judgment Notice Of Motion. filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The

08/19/2013 08/23/2013 08/26/2013 08/27/2013

City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 313 Transcript,, 285 Notice of Filing Transcript, 128 Order Referring Case to Magistrate Judge, 179 Memorandum of Law in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 198 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 302 Transcript,, 268 Memorandum of Law filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 294 Transcript,, 4 Notice of Case Assignment/Reassignment, 175 Notice of Appearance,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 241 Notice of Filing Transcript,, 155 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 106 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 104 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 240 Transcript,, 41 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 99 Declaration in Support of Motion,, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 350 Notice of Filing Transcript, 347 Transcript,, 110 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 195 Notice of Appearance,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 156 Affidavit in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 358 Notice of Filing Transcript, 237 Notice of Filing Transcript,, 51 Answer to Amended Complaint, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 368 MOTION for RACHEL M. KLEINMAN to Withdraw as Attorney. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 167 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 361 Transcript,, 218 Memorandum of Law in Opposition to Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 120 Declaration in Support of Motion,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 297 Notice of Filing Transcript, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 08/16/2013)
USCA Appeal Fees received $ 455.00 receipt number 465401074872 on 8/19/2013 re: 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly. [USCA Case No. 13−3088−cv.] (nd) (Entered: 08/19/2013)
408 INTERNET CITATION NOTE: Material from decision with Internet citation re: 373 Memorandum & Opinion. (Attachments: # 1 Internet Citation) (sj) (Entered: 09/20/2013)
CASHIERS OFFICE REMARK in the amount of $200.00, paid on 03/12/2013, Receipt Number 465401062287. Payment Pro Hac Vice for Bruce O. Corey. (jd) (Entered: 08/26/2013)
380 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Heidi Grossman and Linda Donahue dated 8/27/2013 re: We write on behalf of defendants in the above−referenced cases to seek a stay of the injunctive relief ordered in this Court's Remedies Opinion and Order, dated August 12, 2013, (the "Remedies Order"; Floyd Dkt. 372; Ligon Dkt. 120), issued in conjunction with this Court's Liability Opinion in Floyd on the same date (the "Liability Order"; Floyd Dkt. 373), and the amended preliminary injunction Opinion in Ligon, issued on February 14, 2013 (Ligon Dkt. 105), collectively "the District Court Orders." ENDORSEMENT: The Clerk of the Court is directed to docket this letter. (Signed by Judge Shira A. Scheindlin on 8/27/2013) (tn) (Entered: 08/27/2013)

08/28/2013 08/29/2013
09/03/2013 09/04/2013
09/06/2013 09/06/2013 09/11/2013

381 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Darius Charney dated 8/28/2013 re: On behalf of Plaintiffs in the above−captioned action, I write to request that we be given until Friday, September 6, 2013, to respond to Defendants' request for a stay of the relief ordered in the Court's August 12, 2013 Remedies Opinion and Order. ENDORSEMENT: Plaintiffs' request is hereby granted. Plaintiffs have until September 6, 2013 to respond to the City's stay request. (Signed by Judge Shira A. Scheindlin on 8/28/2013) (rsh) (Entered: 08/28/2013)
382 ORDER: On August 27, 2013, fifteen days after this Court issued the Remedies Opinion in Floyd and Ligon, the City of New York submitted to this Court a letter motion requesting a stay of the Opinion pending appeal. Plaintiffs in Floyd and Ligon promptly requested until September 6, 2013 to submit letters in opposition to the City's motion. The City opposed plaintiffs' requests, arguing that plaintiffs should be granted no more than three days to draft an opposition letter, because this is the time normally allotted for responses to pre−motion letters under this Court's Individual Rules. The City's stay request is a motion, not a pre−motion letter, and the City had fifteen days to prepare its motion. Plaintiffs will have ten days, including the Labor Day weekend, to prepare their opposition letter. Thus, plaintiffs' opposition will be due by September 6, 2013. The City's reply will be due by September 12, 2013, pursuant to the City's request. (Signed by Judge Shira A. Scheindlin on 8/29/2013) (rsh) (Entered: 08/29/2013)
383 NOTICE OF APPEARANCE by Chauniqua Danielle Young on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Young, Chauniqua) (Entered: 09/03/2013)
384 SUPPLEMENTAL ORDER: This Order supplements the Remedies Opinion of August 12, 2013, which ordered the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop and frisk practices of the New York City Police Department ("NYPD"). The Opinion stated that the Joint Remedial Process would be guided by a Facilitator to be named by the Court. I am now appointing Nicholas Turner, President and Director of the VERA Institute of Justice, as the Facilitator. After previously working at VERA for nine years, Mr. Turner was recently named as the Institute's fifth President... Based in New York City, the VERA Institute is widely recognized for its use of rigorous testing and broad−based collaboration to help governments plan, implement, and evaluate improvements to the justice system... VERA has a long history of working to improve public safety by strengthening the ties between police and the community. In the early 1980s, VERA partnered with the NYPD to develop the Community Patrol Officer Program, one of the first community policing programs in the country. A 1999 study of two police precincts in the South Bronx examined approaches to respectful and effective policing in minority communities. SO ORDERED. (See Order). (Signed by Judge Shira A. Scheindlin on 9/4/2013) (ja) Modified on 9/5/2013 (ja). (Entered: 09/04/2013)
385 LETTER addressed to Judge Shira A. Scheindlin from Jenn Rolnick Borchetta dated September 6, 2013 re: Defendant's Motion to Stay the Remedies Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Affidavit (Ourlicht), # 2 Affidavit (Quinn), # 3 Affidavit (Foster), # 4 Affidavit (Jackson), # 5 Affidavit (CPR))(Borchetta, Jennifer) (Entered: 09/06/2013)
386 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Steven R. Newmark and John Siegal, dated 9/6/2013, re: New York City Public Advocate Bill de Blasio (the "Public Advocate") requests leave to submit this letter brief as amicus curiae in opposition to the Defendant City of New York's request for a stay pending appeal of the Court's Remedies Opinion and Order, dated August 12, 2013 (the "Remedies Order", Floyd, ECF No. 372, Ligon, ECF No. 120), issued in conjunction with the Court's Liability Opinion in Floyd on the same date... For the foregoing reasons, on behalf of the Public Advocate for the City of New York, we respectfully request that the Court deny the City's request for a stay of the Remedies Order pending appeal. ENDORSEMENT: The Clerk of the Court is directed to docket this amicus letter brief. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 9/6/2013) (ja) Modified on 9/10/2013 (ja). (Entered: 09/09/2013)
387 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Intervene. Document filed by Sergeants Benevolent Association. (Attachments: # 1

09/11/2013 09/11/2013 09/11/2013 09/12/2013
09/12/2013 09/12/2013 09/12/2013 09/12/2013

Memorandum Of Law In Support Of Motion To Intervene, # 2 Affidavit Affidavit Of Edward D. Mullins, # 3 Certificate of Service)(Coles, Anthony) Modified on 9/12/2013 (db). (Entered: 09/11/2013)
388 NOTICE OF APPEAL from 372 Memorandum & Opinion, 373 Memorandum & Opinion,,,. Document filed by Sergeants Benevolent Association. Filing fee $ 455.00, receipt number 0208−8862070. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Coles, Anthony) (Entered: 09/11/2013)
389 NOTICE OF APPEARANCE by James M. McGuire on behalf of Patrolmens Benevolent Association of the City of New York, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Inc., NYPD Captains Endowment Association, Lieutenants Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/11/2013)
390 MOTION to Intervene. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(McGuire, James) (Entered: 09/11/2013)
391 NOTICE OF APPEAL from 372 Memorandum & Opinion, 373 Memorandum & Opinion,,,. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. Filing fee $ 455.00, receipt number 0208−8862129. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McGuire, James) (Entered: 09/12/2013)
392 MEMORANDUM OF LAW in Support re: 390 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/12/2013)
393 DECLARATION of Joseph Alejandro in Support re: 390 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/12/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 388 Notice of Appeal. (tp) (Entered: 09/12/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 381 Endorsed Letter, 384 Order, 385 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, 388 Notice of Appeal, filed by Sergeants Benevolent Association, 390 MOTION to Intervene filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 383 Notice of Appearance filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, 387 MOTION to Intervene filed by Sergeants Benevolent Association, 386 Endorsed Letter, 380 Endorsed Letter, 389 Notice of Appearance, filed by Patrolmens Benevolent Association of the City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 382 Order, 250 Notice of Appearance, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Rodriguez, Goodman, Luis Pichardo, 248 Transcript, 310 Notice of Filing Transcript, 186 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 103 Reply Affirmation in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 374 Endorsed Letter, 184 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 277 Order Referring Case to Magistrate Judge, 133 Order, 289 Notice of Filing Transcript, 214 Notice of Filing Transcript, 57 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 49 Order on Motion to Withdraw as Attorney, 318 Notice of Filing Transcript, 27 Affidavit of Service Complaints, filed by David Floyd, Lalit Clarkson, 54 Answer

to Amended Complaint filed by Christopher Moran, 165 MOTION to Certify Class filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 126 Endorsed Letter, 221 Declaration in Opposition to Motion, filed by James Kelly, The City of New York, Michael Cousin Hayes, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 312 Notice of Filing Transcript, 328 Notice of Filing Transcript, 331 Transcript, 296 Transcript, 44 Answer to Amended Complaint filed by Michael Cousin Hayes, 45 Memorandum & Opinion, 355 Transcript, 193 Declaration in Support of Motion, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 335 Transcript, 136 Rule 56.1 Statement, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Rodriguez, Goodman, Luis Pichardo, 349 Transcript, 168 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 159 Memorandum of Law in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 50 Amended Complaint, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 330 Notice of Filing Transcript, 30 Memorandum of Law in Opposition to Motion filed by The City of New York, 130 Notice of Appearance filed by The City of New York, 309 Transcript, 340 Notice of Filing Transcript, 172 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 83 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 269 Declaration in Support, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 225 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 79 Order, 78 Endorsed Letter, 373 Memorandum & Opinion, 166 Memorandum of Law in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 35 Declaration in Support of Motion filed by David Floyd, Lalit Clarkson, Deon Dennis, 81 Set Deadlines/Hearings, 323 Transcript, 280 Transcript, 101 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 357 Transcript, 299 Notice of Filing Transcript, 320 Notice of Filing Transcript, 188 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 243 Endorsed Letter, 134 MOTION for Summary Judgment filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 55 Order, Set Deadlines/Hearings, 379 Notice of Appeal, filed by Raymond Kelly, The City of New York, Michael Bloomberg, 107 Endorsed Letter, Set Deadlines/Hearings, 23 MOTION to Compel Discovery filed by David Floyd, Lalit Clarkson, 333 Transcript, 224 Memorandum & Opinion, 375 Memorandum & Opinion, 43 Answer to Amended Complaint filed by James Kelly, Angelica Salmeron, Eric Hernandez, Cormac Joyce, Luis Pichardo, 367 Post Trial Memorandum filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 235 USCA Mandate, 295 Notice of Filing Transcript, 236 Transcript, 111 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 19 MOTION for Extension of Time to Serve Complaint filed by David Floyd, Lalit Clarkson, 271 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 300 Transcript, 190 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 161 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 339 Transcript, 326 Notice of Filing Transcript, 102 Reply Memorandum of Law in Support of Motion filed by David Floyd, David

Ourlicht, Lalit Clarkson, Deon Dennis, 244 Transcript,, 270 Stipulation and Order, 144 Rule 56.1 Statement, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 75 Order, Set Deadlines/Hearings, 38 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 17 Endorsed Letter, Set Deadlines/Hearings, 346 Notice of Filing Transcript, 353 Transcript, 342 Notice of Filing Transcript, 66 Protective Order, 64 Protective Order, 183 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 238 Order, 332 Notice of Filing Transcript, 264 Declaration in Support filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 229 Order, 281 Notice of Filing Transcript, 329 Transcript, 212 Endorsed Letter, 262 Endorsed Letter, Set Deadlines/Hearings, 162 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 311 Transcript, 25 Declaration in Support of Motion, filed by David Floyd, Lalit Clarkson, 377 Memo Endorsement, 348 Notice of Filing Transcript, 343 Transcript, 160 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 267 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 254 Transcript, 265 Protective Order, 163 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 37 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 273 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 231 Order, 204 Transcript, 105 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 213 Transcript, 143 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 142 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 13 Scheduling Order, 180 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 62 Scheduling Order, 315 Transcript, 242 Order, Set Deadlines, 322 Notice of Filing Transcript, 251 Order, 234 Notice of Filing Transcript, 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 20 Endorsed Letter, 279 Memorandum & Opinion, 245 Notice of Filing Transcript, 207 Memo Endorsement, 85 Declaration in Opposition to Motion, filed by The City of New York, 24 Memorandum of Law in Support of Motion filed by David Floyd, Lalit Clarkson, 73 Endorsed Letter, Set Deadlines/Hearings, 31 Order, 247 Notice of Filing Transcript, 8 Order, Set Deadlines/Hearings, 233 Transcript,, 291 Notice of Filing Transcript, 352 Notice of Filing Transcript, 28 Answer to Amended Complaint, filed by Raymond Kelly, Michael Bloomberg, 359 Transcript, 360 Notice of Filing Transcript, 354 Notice of Filing Transcript, 246 Transcript, 61 Protective Order, 89 Reply to Response to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 222 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 129 Order, Set Deadlines/Hearings, 345 Transcript, 258 Letter, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 336 Notice of Filing Transcript, 298 Transcript, 177 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 127 Endorsed Letter, Set Deadlines/Hearings, 189 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit

Clarkson, Deon Dennis, 206 Memorandum & Opinion, Set Hearings, 65 Endorsed Letter, 1 Complaint, filed by David Floyd, Lalit Clarkson, 317 Transcript, 80 Order, 74 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 93 Order on Motion for Reconsideration, 314 Notice of Filing Transcript, 158 Notice of Filing Transcript, 272 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 91 Protective Order, 10 Order, 201 Memorandum & Opinion, 108 Memorandum & Opinion, 319 Transcript, 100 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 196 Endorsed Letter, 284 Transcript, 40 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 282 Transcript, 321 Transcript, 88 Protective Order, 257 Letter, filed by David Floyd, 98 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 305 Notice of Filing Transcript, 338 Notice of Filing Transcript, 181 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 48 MOTION for Reconsideration re; 45 Memorandum & Opinion, MOTION for Reconsideration re; 45 Memorandum & Opinion, filed by The City of New York, 174 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 119 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 36 Endorsed Letter, Set Deadlines/Hearings, 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 365 Brief filed by United States of America, 292 Transcript, 59 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 16 Affidavit of Service Complaints, filed by David Floyd, Lalit Clarkson, 286 Transcript, 217 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 372 Memorandum & Opinion, 287 Notice of Filing Transcript, 114 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 135 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 306 Endorsed Letter, 278 Memorandum & Opinion, 47 Order, Set Deadlines, 203 Endorsed Letter, 141 Reply Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 210 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 288 Transcript, 138 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 125 Rule 56.1 Statement,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 260 Order, 253 Notice of Filing Transcript, 69 Order, 164 Endorsed Letter, 249 Notice of Filing Transcript, 200 Notice of Filing Transcript, 97 MOTION for Sanctions filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 364 Post Trial Memorandum filed by The City of New York, 137 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 209 Order, 334 Notice of Filing Transcript, 46 Notice of Change of Address, filed by David Floyd, Lalit Clarkson, Deon Dennis, 283 Notice of Filing Transcript, 21 Order, Set Deadlines/Hearings, 170 Order, 6 Order for Initial Pretrial Conference, 274 Memorandum of Law in Opposition filed by The City of New York, 169 Endorsed Letter, Set Deadlines, 56 Stipulation and Order, Terminate Motions, 116 Order, 344 Notice of Filing Transcript, 230 Stipulation and Order, 187

Memorandum of Law in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 87 Memorandum of Law in Opposition to Motion, filed by The City of New York, 124 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 52 Protective Order, 53 Affidavit of Service Complaints, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 140 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 327 Transcript, 303 Notice of Filing Transcript, 157 Transcript, 121 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 369 Endorsed Letter, 11 Amended Complaint, filed by David Floyd, Lalit Clarkson, 263 Brief, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 70 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 171 Memorandum & Opinion, 122 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 123 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 304 Transcript, 256 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 259 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 5 Endorsed Letter, Set Deadlines, 362 Notice of Filing Transcript, 324 Notice of Filing Transcript, 2 Order, Set Deadlines/Hearings, 255 Notice of Filing Transcript, 363 Proposed Findings of Fact filed by The City of New York, 356 Notice of Filing Transcript, 63 Order, 182 Letter, 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 14 Order Referring Case to Magistrate Judge, 351 Transcript, 211 Order Admitting Attorney Pro Hac Vice, 34 Reply Memorandum of Law in Support of Motion, filed by David Floyd, Lalit Clarkson, Deon Dennis, 39 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 95 Endorsed Letter, Set Hearings, 194 Declaration in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 275 Order, 92 Order, 308 Notice of Filing Transcript, 76 Endorsed Letter, Set Deadlines/Hearings, 223 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 9 Order, Set Deadlines/Hearings, 266 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, 208 Memo Endorsement, 232 Memorandum & Opinion, 18 Answer to Amended Complaint filed by The City of New York, 90 Reply Affidavit in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 29 Declaration in Opposition to Motion filed by The City of New York, 301 Notice of Filing Transcript, 252 Transcript, 112 Protective Order, 239 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 202 Endorsed Letter, 325 Transcript, 228 Scheduling Order, 341 Transcript,, 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN. filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 366 Proposed Findings of Fact filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 192 Declaration in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 378 Memo Endorsement, 42 MOTION for Andrea Costello to Withdraw as Attorney filed by David Floyd, Lalit Clarkson, Deon Dennis, 226 Transcript, 316

Notice of Filing Transcript, 153 Order on Motion for Summary Judgment, 173 Endorsed Letter, 197 Order, Set Motion and R&R Deadlines/Hearings, 293 Notice of Filing Transcript, 219 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 337 Transcript, 139 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 205 Notice of Filing Transcript, 67 Order, 58 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 370 Endorsed Letter, 185 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 227 Notice of Filing Transcript, 176 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 216 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 199 Transcript, 220 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 261 Order Admitting Attorney Pro Hac Vice, 15 Order, Set Deadlines/Hearings, 191 Reply Memorandum of Law in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 371 Order on Motion to Withdraw as Attorney, 72 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 307 Transcript, 290 Transcript, 276 Memorandum of Law in Opposition filed by The City of New York, 118 MOTION for Summary Judgment Notice Of Motion filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 313 Transcript, 285 Notice of Filing Transcript, 128 Order Referring Case to Magistrate Judge, 179 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 198 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 302 Transcript, 268 Memorandum of Law filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 294 Transcript, 4 Notice of Case Assignment/Reassignment, 175 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 241 Notice of Filing Transcript, 155 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 106 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 104 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 240 Transcript, 41 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 99 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 350 Notice of Filing Transcript, 347 Transcript, 110 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 195 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 156 Affidavit in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 358 Notice of Filing Transcript, 237 Notice of Filing Transcript, 51 Answer to Amended Complaint, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 368 MOTION for RACHEL M. KLEINMAN to Withdraw as Attorney. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 167 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 361 Transcript, 218 Memorandum of Law in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric

09/12/2013 09/12/2013

Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 120 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 297 Notice of Filing Transcript, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 09/12/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 391 Notice of Appeal. (tp) (Entered: 09/12/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 381 Endorsed Letter, 384 Order, 385 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, 388 Notice of Appeal, filed by Sergeants Benevolent Association, 390 MOTION to Intervene filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 383 Notice of Appearance filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, 387 MOTION to Intervene filed by Sergeants Benevolent Association, 386 Endorsed Letter, 380 Endorsed Letter, 389 Notice of Appearance, filed by Patrolmens Benevolent Association of the City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 382 Order, 250 Notice of Appearance, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Rodriguez, Goodman, Luis Pichardo, 248 Transcript, 310 Notice of Filing Transcript, 186 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 103 Reply Affirmation in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 374 Endorsed Letter, 184 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 277 Order Referring Case to Magistrate Judge, 133 Order, 289 Notice of Filing Transcript, 214 Notice of Filing Transcript, 57 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 49 Order on Motion to Withdraw as Attorney, 318 Notice of Filing Transcript, 27 Affidavit of Service Complaints, filed by David Floyd, Lalit Clarkson, 54 Answer to Amended Complaint filed by Christopher Moran, 165 MOTION to Certify Class filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 126 Endorsed Letter, 221 Declaration in Opposition to Motion, filed by James Kelly, The City of New York, Michael Cousin Hayes, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 312 Notice of Filing Transcript, 328 Notice of Filing Transcript, 331 Transcript, 296 Transcript, 44 Answer to Amended Complaint filed by Michael Cousin Hayes, 45 Memorandum & Opinion, 355 Transcript, 193 Declaration in Support of Motion, filed by James Kelly, The City of New York, Michael Bloomberg, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Luis Pichardo, Goodman, Rodriguez, 335 Transcript, 136 Rule 56.1 Statement, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Rodriguez, Goodman, Luis Pichardo, 349 Transcript, 168 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 159 Memorandum of Law in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 50 Amended Complaint, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 330 Notice of Filing Transcript, 30 Memorandum of Law in Opposition to Motion filed by The City of New York, 130 Notice of Appearance filed by The City of New York, 309 Transcript, 340 Notice of Filing Transcript, 172 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 83 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 269 Declaration in Support, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 225 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New

York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 79 Order, 78 Endorsed Letter, 373 Memorandum & Opinion, 166 Memorandum of Law in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 35 Declaration in Support of Motion filed by David Floyd, Lalit Clarkson, Deon Dennis, 81 Set Deadlines/Hearings, 323 Transcript, 280 Transcript, 101 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 357 Transcript, 299 Notice of Filing Transcript, 320 Notice of Filing Transcript, 188 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 243 Endorsed Letter, 134 MOTION for Summary Judgment filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 55 Order, Set Deadlines/Hearings, 379 Notice of Appeal, filed by Raymond Kelly, The City of New York, Michael Bloomberg, 107 Endorsed Letter, Set Deadlines/Hearings, 23 MOTION to Compel Discovery filed by David Floyd, Lalit Clarkson, 333 Transcript, 224 Memorandum & Opinion, 375 Memorandum & Opinion, 43 Answer to Amended Complaint filed by James Kelly, Angelica Salmeron, Eric Hernandez, Cormac Joyce, Luis Pichardo, 367 Post Trial Memorandum filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 235 USCA Mandate, 295 Notice of Filing Transcript, 236 Transcript, 111 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 19 MOTION for Extension of Time to Serve Complaint filed by David Floyd, Lalit Clarkson, 271 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 300 Transcript, 190 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 161 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 339 Transcript, 326 Notice of Filing Transcript, 102 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 244 Transcript,, 270 Stipulation and Order, 144 Rule 56.1 Statement, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 75 Order, Set Deadlines/Hearings, 38 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 17 Endorsed Letter, Set Deadlines/Hearings, 346 Notice of Filing Transcript, 353 Transcript, 342 Notice of Filing Transcript, 66 Protective Order, 64 Protective Order, 183 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 238 Order, 332 Notice of Filing Transcript, 264 Declaration in Support filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 229 Order, 281 Notice of Filing Transcript, 329 Transcript, 212 Endorsed Letter, 262 Endorsed Letter, Set Deadlines/Hearings, 162 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 311 Transcript, 25 Declaration in Support of Motion, filed by David Floyd, Lalit Clarkson, 377 Memo Endorsement, 348 Notice of Filing Transcript, 343 Transcript, 160 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 267 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 254 Transcript, 265 Protective Order, 163 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 37 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 273 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 231 Order, 204 Transcript, 105 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly,

Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 213 Transcript, 143 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 142 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 13 Scheduling Order, 180 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 62 Scheduling Order, 315 Transcript, 242 Order, Set Deadlines, 322 Notice of Filing Transcript, 251 Order, 234 Notice of Filing Transcript, 82 MOTION for Reconsideration of Court's October 23, 2009 Decision Granting Protective Order as to Deposition of NYPD Borough Impact Overtime Captain filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 20 Endorsed Letter, 279 Memorandum & Opinion, 245 Notice of Filing Transcript, 207 Memo Endorsement, 85 Declaration in Opposition to Motion, filed by The City of New York, 24 Memorandum of Law in Support of Motion filed by David Floyd, Lalit Clarkson, 73 Endorsed Letter, Set Deadlines/Hearings, 31 Order, 247 Notice of Filing Transcript, 8 Order, Set Deadlines/Hearings, 233 Transcript,, 291 Notice of Filing Transcript, 352 Notice of Filing Transcript, 28 Answer to Amended Complaint, filed by Raymond Kelly, Michael Bloomberg, 359 Transcript, 360 Notice of Filing Transcript, 354 Notice of Filing Transcript, 246 Transcript, 61 Protective Order, 89 Reply to Response to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 222 Reply Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 129 Order, Set Deadlines/Hearings, 345 Transcript, 258 Letter, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 336 Notice of Filing Transcript, 298 Transcript, 177 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 127 Endorsed Letter, Set Deadlines/Hearings, 189 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 206 Memorandum & Opinion, Set Hearings, 65 Endorsed Letter, 1 Complaint, filed by David Floyd, Lalit Clarkson, 317 Transcript, 80 Order, 74 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 93 Order on Motion for Reconsideration, 314 Notice of Filing Transcript, 158 Notice of Filing Transcript, 272 Joint Preliminary Trial Report, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 91 Protective Order, 10 Order, 201 Memorandum & Opinion, 108 Memorandum & Opinion, 319 Transcript, 100 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 196 Endorsed Letter, 284 Transcript, 40 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 282 Transcript, 321 Transcript, 88 Protective Order, 257 Letter, filed by David Floyd, 98 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 305 Notice of Filing Transcript, 338 Notice of Filing Transcript, 181 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 48 MOTION for Reconsideration re; 45 Memorandum & Opinion, MOTION for Reconsideration re; 45 Memorandum & Opinion, filed by The City of New York, 174 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 119 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 36 Endorsed Letter, Set Deadlines/Hearings, 154 MOTION to Amend/Correct 153 Order on Motion for Summary Judgment, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 365 Brief filed by United States of America, 292 Transcript, 59 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 16 Affidavit of Service Complaints,

filed by David Floyd, Lalit Clarkson, 286 Transcript, 217 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 372 Memorandum & Opinion, 287 Notice of Filing Transcript, 114 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 135 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 306 Endorsed Letter, 278 Memorandum & Opinion, 47 Order, Set Deadlines, 203 Endorsed Letter, 141 Reply Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 210 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 288 Transcript, 138 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 125 Rule 56.1 Statement,, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 260 Order, 253 Notice of Filing Transcript, 69 Order, 164 Endorsed Letter, 249 Notice of Filing Transcript, 200 Notice of Filing Transcript, 97 MOTION for Sanctions filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 364 Post Trial Memorandum filed by The City of New York, 137 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 209 Order, 334 Notice of Filing Transcript, 46 Notice of Change of Address, filed by David Floyd, Lalit Clarkson, Deon Dennis, 283 Notice of Filing Transcript, 21 Order, Set Deadlines/Hearings, 170 Order, 6 Order for Initial Pretrial Conference, 274 Memorandum of Law in Opposition filed by The City of New York, 169 Endorsed Letter, Set Deadlines, 56 Stipulation and Order, Terminate Motions, 116 Order, 344 Notice of Filing Transcript, 230 Stipulation and Order, 187 Memorandum of Law in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 87 Memorandum of Law in Opposition to Motion, filed by The City of New York, 124 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 52 Protective Order, 53 Affidavit of Service Complaints, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 140 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 327 Transcript, 303 Notice of Filing Transcript, 157 Transcript, 121 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 369 Endorsed Letter, 11 Amended Complaint, filed by David Floyd, Lalit Clarkson, 263 Brief, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 70 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 171 Memorandum & Opinion, 122 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 123 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 304 Transcript, 256 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 259 Letter, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman,

Rodriguez, 5 Endorsed Letter, Set Deadlines, 362 Notice of Filing Transcript, 324 Notice of Filing Transcript, 2 Order, Set Deadlines/Hearings, 255 Notice of Filing Transcript, 363 Proposed Findings of Fact filed by The City of New York, 356 Notice of Filing Transcript, 63 Order, 182 Letter, 215 MOTION to Exclude Certain Opinions of Defendants' Proposed Expert filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 14 Order Referring Case to Magistrate Judge, 351 Transcript, 211 Order Admitting Attorney Pro Hac Vice, 34 Reply Memorandum of Law in Support of Motion, filed by David Floyd, Lalit Clarkson, Deon Dennis, 39 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 95 Endorsed Letter, Set Hearings, 194 Declaration in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 275 Order, 92 Order, 308 Notice of Filing Transcript, 76 Endorsed Letter, Set Deadlines/Hearings, 223 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 9 Order, Set Deadlines/Hearings, 266 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, 208 Memo Endorsement, 232 Memorandum & Opinion, 18 Answer to Amended Complaint filed by The City of New York, 90 Reply Affidavit in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 29 Declaration in Opposition to Motion filed by The City of New York, 301 Notice of Filing Transcript, 252 Transcript, 112 Protective Order, 239 Notice of Appearance, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 202 Endorsed Letter, 325 Transcript, 228 Scheduling Order, 341 Transcript,, 178 MOTION in Limine TO EXCLUDE PLAINTIFFS PROPOSED EXPERT REPORTS, OPINIONS AND TESTIMONY OF JEFFREY FAGAN. filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 366 Proposed Findings of Fact filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 192 Declaration in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 378 Memo Endorsement, 42 MOTION for Andrea Costello to Withdraw as Attorney filed by David Floyd, Lalit Clarkson, Deon Dennis, 226 Transcript, 316 Notice of Filing Transcript, 153 Order on Motion for Summary Judgment, 173 Endorsed Letter, 197 Order, Set Motion and R&R Deadlines/Hearings, 293 Notice of Filing Transcript, 219 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 337 Transcript, 139 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, John Does, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, Jane Doe, John Doe #2, The City of New York, Michael Bloomberg, John Does #1 through 11, Luis Pichardo, Goodman, Rodriguez, 205 Notice of Filing Transcript, 67 Order, 58 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 370 Endorsed Letter, 185 Declaration in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 227 Notice of Filing Transcript, 176 Memorandum of Law in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 216 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 199 Transcript, 220 Declaration in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 261 Order Admitting Attorney Pro Hac Vice, 15 Order, Set Deadlines/Hearings, 191 Reply Memorandum of Law in Support of Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 371 Order on Motion to Withdraw as Attorney, 72 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 307 Transcript, 290 Transcript, 276 Memorandum of Law in Opposition filed by The City of New York, 118 MOTION for Summary Judgment Notice Of Motion filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New

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York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 313 Transcript, 285 Notice of Filing Transcript, 128 Order Referring Case to Magistrate Judge, 179 Memorandum of Law in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 198 Declaration in Opposition to Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 302 Transcript, 268 Memorandum of Law filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 294 Transcript, 4 Notice of Case Assignment/Reassignment, 175 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 241 Notice of Filing Transcript, 155 Memorandum of Law in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 106 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 104 Declaration in Opposition to Motion, filed by James Kelly, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 240 Transcript, 41 Affidavit of Service Complaints filed by David Floyd, Lalit Clarkson, Deon Dennis, 99 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 350 Notice of Filing Transcript, 347 Transcript, 110 Notice of Appearance filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 195 Notice of Appearance, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 156 Affidavit in Support of Motion filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 358 Notice of Filing Transcript, 237 Notice of Filing Transcript, 51 Answer to Amended Complaint, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, 368 MOTION for RACHEL M. KLEINMAN to Withdraw as Attorney. filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 167 Declaration in Support of Motion, filed by David Floyd, David Ourlicht, Lalit Clarkson, Deon Dennis, 361 Transcript, 218 Memorandum of Law in Opposition to Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 120 Declaration in Support of Motion, filed by James Kelly, Michael Cousin Hayes, Angelica Salmeron, Raymond Kelly, Christopher Moran, Eric Hernandez, Cormac Joyce, The City of New York, Michael Bloomberg, Luis Pichardo, Goodman, Rodriguez, 297 Notice of Filing Transcript, 392 Memorandum of Law in Support of Motion, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 393 Declaration in Support of Motion, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. were transmitted to the U.S. Court of Appeals. (tp) (Entered: 09/12/2013)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Anthony Paul Coles to RE−FILE Document 387 MOTION to Intervene. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 09/12/2013)
394 NOTICE OF APPEARANCE by Steven A. Engel on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 09/12/2013)
395 MOTION to Intervene. Document filed by Sergeants Benevolent Association.(Coles, Anthony) (Entered: 09/12/2013)
396 MEMORANDUM OF LAW in Support re: 395 MOTION to Intervene.. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 09/12/2013)

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397 AFFIDAVIT of Edward Mullins in Support re: 395 MOTION to Intervene.. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 09/12/2013)
398 CERTIFICATE OF SERVICE of Motion To Interven and supporting papers served on All Counsel Of Record on 9/11/2012. Service was made by electronic mail. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 09/12/2013)
399 LETTER addressed to Judge Shira A. Scheindlin from defendant City of New York dated September 12, 2013 re: Reply in connection with August 27, 2013 stay application. Document filed by The City of New York.(Marutollo, Joseph) (Entered: 09/12/2013)
400 NOTICE of Attorney Change of Name. Document filed by The City of New York. (Publicker, Suzanna) (Entered: 09/12/2013)
401 ORDER: The briefing schedule for the police unions' motions to intervene in the above−captioned actions is as follows: (1) Responses to the police unions' motions are to be filed by October 11, 2013. The Floyd and Ligon plaintiffs' briefs are not to exceed a combined length of twenty−five pages. Defendants' brief is not to exceed fifteen pages. (2) The police unions' replies in further support of their motions are to be filed by October 25, 2013 and are not to exceed a combined length of twenty pages. SO ORDERED. ( Responses due by 10/11/2013, Replies due by 10/25/2013.) (Signed by Judge Shira A. Scheindlin on 9/13/2013) (ama) (Entered: 09/13/2013)
402 OPINION AND ORDER: 103589 For the reasons set forth above, the City's request for a stay of this Court's August 12 Orders is DENIED. (Signed by Judge Shira A. Scheindlin on 9/17/2013) (ja) Modified on 9/19/2013 (ca). (Entered: 09/17/2013)
403 SUPPLEMENTAL ORDER: This Order supplements the Remedies Opinion of August 12, 2013, which ordered the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop and frisk practices of the New York City Police Department ("NYPD"). The Opinion stated that the Joint Remedial Process would be guided by a Facilitator to be named by the Court. On September 4, 2013, I appointed Nicholas Turner, President and Director of the VERA Institute of Justice, as the Facilitator. To help the Facilitator and the Monitor in their challenging tasks, I am appointing an Academic Advisory Council consisting of professors from area law schools. These professors have generously agreed to provide their expertise in a pro bono capacity. The Chair of the Council is Professor Bennett Capers of Brooklyn Law School. The other members of the Advisory Council are: Ian Ayres, William K. Townsend Professor Law, Yale Law School; Alafair S. Burke, Professor of Law, Maurice A. Deane School of Law at Hofstra University; Miriam Gohara, Visiting Assistant Professor, Columbia Law School; Taja−Nia Y. Henderson, Associate Professor of Law, Rutgers School of Law−Newark; Tanya K. Hernandez, Professor of Law, Fordham University School of Law; Conrad Johnson, Clinical Professor of Law, Columbia Law School; William E. Hellerstein, Professor of Law (retired), Brooklyn Law School; K. Babe Howell, Associate Professor of Law, CUNY School of Law; Olatunde Johnson, Professor of Law, Columbia Law School; Tracey L. Meares, Walton Hale Hamilton Professor of Law, Yale Law School; Janice Tudy−Jackson, Lecturer in Law, Columbia Law School; Steve Zeidman, Professor of Law, Director of Criminal Defense Clinic, CUNY School of Law. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (tro) (Entered: 09/18/2013)
404 MEMO ENDORSEMENT on TRANSCRIPT of proceedings held on 3/5/2012 before Judge Shira A. Scheindlin. ENDORSEMENT: The Clerk of the Court is directed to docket this transcript of the March 5, 2012 conference in Floyd v. City of New York, 08 Civ. 1034. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (ja) Modified on 9/19/2013 (ja). (Entered: 09/19/2013)
405 MEMO ENDORSEMENT on TRANSCRIPT of proceedings held on 1/15/2013 before Judge Shira A. Scheindlin. ENDORSEMENT: The Clerk of the Court is directed to docket this transcript of the January 15, 2013 conference in Floyd v. City of New York, 08 Civ. 1034. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (ja) Modified on 9/19/2013 (ja). (Entered: 09/19/2013)
406 MEMO ENDORSEMENT on TRANSCRIPT of proceedings held on 1/31/2013 before Judge Shira A. Scheindlin. ENDORSEMENT: The Clerk of the Court is directed to

09/18/2013
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docket this transcript of the January 31, 2013 conference in Floyd v. City of New York, 08 Civ. 1034. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (ja) (Entered: 09/19/2013)
407 MEMO ENDORSEMENT on TRANSCRIPT of proceedings held on 3/14/2013 before Judge Shira A. Scheindlin. ENDORSEMENT: The Clerk of the Court is directed to docket this transcript of the March 14, 2013 conference in Floyd v. City of New York, 08 Civ. 1034. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (ja) (Entered: 09/19/2013)
409 MOTION for Courtney G. Saleski to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−8900849. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sergeants Benevolent Association.(Saleski, Courtney) (Entered: 09/24/2013)
410 MOTION for Courtney G. Saleski to Appear Pro Hac Vice. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sergeants Benevolent Association. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order)(Saleski, Courtney) (Entered: 09/24/2013)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 410 MOTION for Courtney G. Saleski 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. (wb) (Entered: 09/24/2013)
411 MANDATE of USCA (Certified Copy) as to 391 Notice of Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. USCA Case Number 13−3524. The parties in the above−referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 9/25/2013. (tp) (Entered: 09/26/2013)
Transmission of USCA Mandate/Order to the District Judge re: 411 USCA Mandate.(tp) (Entered: 09/26/2013)
412 MEMORANDUM OF LAW in Opposition re: 390 MOTION to Intervene.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Martini, Kasey) (Entered: 10/11/2013)
413 DECLARATION of Darius Charney in Opposition re: 390 MOTION to Intervene.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit A−1, # 2 Exhibit A−2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D)(Martini, Kasey) (Entered: 10/11/2013)
414 LETTER addressed to Judge Shira A. Scheindlin re: Motions to Intervene. Document filed by The City of New York.(Marutollo, Joseph) (Entered: 10/18/2013)
415 REPLY MEMORANDUM OF LAW in Support re: 390 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 10/25/2013)
416 REPLY MEMORANDUM OF LAW in Support re: 395 MOTION to Intervene. In Further Support. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 10/25/2013)
417 MANDATE of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly USCA Case Number 13−3088. Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court's August 12, 2013 remedial order and preliminary injunction ("Remedies Opinion"). It is hereby ORDERED that the District Courts January 8, 2013 "Opinion and Order," as well as the August 12, 2013 "Liability Opinion" and "Remedies Opinion," each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED

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pending the disposition of these appeals. The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule: Defendants shall perfect their appeals by January 24, 2014. Plaintiffs shall file by February 28, 2014. Defendants shall reply by March 14, 2014. Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course. The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process. Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...."), and that the appearance of partiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly−designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals. In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued. The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/31/2013. (nd) (Entered: 10/31/2013)
NOTICE OF CASE REASSIGNMENT to Judge John G. Koeltl. Judge Shira A. Scheindlin is no longer assigned to the case. (sjo) (Entered: 10/31/2013)
418 CORRECTED MANDATE of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly. USCA Case Number 13−3088. Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court's August 12, 2013 remedial order and preliminary injunction ("Remedies Opinion"). It is hereby ORDERED that the District Court's January 8, 2013 "Opinion and Order," as well as the August 12, 2013 "Liability Opinion" and "Remedies Opinion," each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals. The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:Defendants shall perfect their appeals by January 24, 2014. Plaintiffs shall file by February 28, 2014. Defendants shall reply by March 14, 2014. Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course. The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process. Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly−designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits

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of the ongoing appeals. In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued. The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court. In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/31/2013. (nd) (Entered: 11/01/2013)
NOTICE OF CASE REASSIGNMENT to Judge Analisa Torres. Judge John G. Koeltl is no longer assigned to the case. (sjo) (Entered: 11/01/2013)
419 PER CURIAM OPINION of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly. USCA Case Number 13−3088; 13−3123.These cases, motions of which were argued in tandem and decided on October 31, 2013, and which concern the so−called "stop−and−frisk" policies of the New York City Police Department, have, quite apart from the underlying merits, raised a number of unusual procedural issues. In a separate opinion published contemporaneously with this one, we explain the basis of our prior, brief order reassigning these cases from Judge Shira A. Scheindlin to a new district judge of the United States District Court for the Southern District of New York, to be chosen randomly. In this opinion, we address the unprecedented motion filed by Judge Scheindlin herself, through counsel, to appear and seek reconsideration of our order of reassignment. The motion, submitted substantially in the form of a brief in favor of reconsideration, presents the threshold question whether, in the circumstances presented, a district judge may participate as a party, as an intervenor, or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we DENY Judge Scheindlin's motion to appear in this Court in support of retaining authority over these cases. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/13/2013. (nd) (Entered: 11/14/2013)
420 OPINION of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly. USCA Case Number 13−3088; 13−3123. This opinion explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin's appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that "reassignment is advisable to preserve the appearance of justice." Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/13/2013. (nd) (Entered: 11/14/2013)
421 SEALED DOCUMENT placed in vault.(nm) (Entered: 11/21/2013)
422 PER CURIAM OPINION of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly USCA Case Number 13−3088. For the foregoing reasons, we DENY the motions of appellant City of New York, seeking to modify the Court's stay order of October 31, 2013 to include vacatur of the District Courts February 14, 2013 order in Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013), and August 12, 2013 orders in Floyd v. City of New York, −−− F. Supp. 2d −−−−, No. 08−cv−1034, 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013); −−− F. Supp. 2d −−−−, No. 08−cv−1034, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013) without prejudice (as indicated above). We also DENY the November 13, 2013 motions by counsel for Judge Scheindlin to appear in order to oppose the Citys motions for modification, for the reasons stated in In re Motion of District Judge, −−− F.3d −−−−, Nos. 13−3123, 13−3088 (2d Cir. Nov. 13, 2013), and, because in any event, they are moot. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/22/2013. (nd) (Entered: 11/22/2013)
423 MOTION for Jenn Rolnick Borchetta to Withdraw as Attorney. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Borchetta, Jennifer) (Entered: 12/17/2013)
424 ORDER granting 423 Motion to Withdraw as Attorney: the motion is GRANTED. Attorney Jennifer Rolnick Borchetta terminated. (Signed by Judge Analisa Torres on

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12/19/2013) (tn) (Entered: 12/19/2013)
425 LETTER addressed to Judge Analisa Torres from Kasey L. Martini dated February 21, 2014 re: Request to Remove Kasey L. Martini's Appearance from the Docket and Name from the ECF Distribution List. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Martini, Kasey) (Entered: 02/21/2014)
426 MANDATE of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly USCA Case Number 13−3088. DefendantAppellant City of New York moves for a limited remand to the District Court for the purpose of exploring a resolution to these cases. Also pending before the Court are motions to intervene as party appellants in both Floyd v. City of New York and Ligon v. City of New York, filed by the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association, and the Captains' Endowment Association and a motion to intervene as a party appellant in Floyd v. City of New York, filed by the Sergeants Benevolent Association (collectively the "police unions"). We hereby GRANT the City's motion on terms indicated in this opinion. We VACATE the stay of proceedings in the District Court entered as part of the Court's Orders of October 31, 2013 and November 13, 2013, In re Reassignment of Cases, 736 F.3d 118 (2d Cir. 2013), to the extent necessary to pursue settlement negotiations among such concerned or interested parties as the District Court deems appropriate, and REMAND the cause to the District Court (Analisa Torres, Judge) for further proceedings consistent with this opinion. The schedule for briefing and other filings in the Court of Appeals is hereby STAYED pending the outcome of the proceedings in the District Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 2/21/2014. (nd) (Entered: 02/24/2014)
427 MEMO ENDORSEMENT on re: 425 Letter filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. ENDORSEMENT: The Clerk of Court is directed to remove Kasey L. Martini's appearance from the docket and name from the ECF distribution list. Attorney Kasey Lynn Martini terminated. (Signed by Judge Analisa Torres on 2/21/2014) (rjm) (Entered: 02/24/2014)
428 ORDER. The Police Unions and the SBA shall file supplemental moving papers by March 5, 2014. The parties shall file supplemental opposition papers by March 10, 2014. The Police Unions and the SBA shall reply by March 14, 2014. The parties are directed to continue settlement discussions during the briefing period and to submit a joint letter to the Court by March 4, 2014, indicating whether they desire the Court's participation in aid of settlement. In light of the revised briefing schedule, the Clerk of Court is directed to terminate the motions at ECF Nos. 390 and 395. Terminating 390 Motion to Intervene; Terminating 395 Motion to Intervene. (Signed by Judge Analisa Torres on 2/25/2014) (rjm) (Entered: 02/25/2014)
Set/Reset Deadlines: Motions due by 3/5/2014. Responses due by 3/10/2014. Replies due by 3/14/2014. (rjm) (Entered: 02/25/2014)
429 ORDER FOR ADMISSION PRO HAC VICE granting 410 Motion for Courtney G. Saleski to Appear Pro Hac Vice. (Signed by Judge Analisa Torres on 2/25/2014) (lmb) (Entered: 02/25/2014)
430 NOTICE OF APPEARANCE by Heidi Grossman on behalf of The City of New York. (Grossman, Heidi) (Entered: 02/26/2014)
431 MOTION for Adam D. Brown to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9394315. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Sergeants Benevolent Association. (Attachments: # 1 Exhibit A− Certificate of Good Standing)(Coles, Anthony) (Entered: 02/26/2014)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 431 MOTION for Adam D. Brown to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9394315. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 02/26/2014)
432 ORDER FOR ADMISSION PRO HAC VICE granting 431 Motion for Adam D. Brown to Appear Pro Hac Vice. (Signed by Judge Analisa Torres on 2/26/2014) (tn) (Entered: 02/27/2014)

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433 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − STATUS REPORT. Of All Parties, dated March 4, 2014 Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) Modified on 3/5/2014 (ka). (Entered: 03/04/2014)
434 MOTION for Elisa T. Wiygul to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9417868. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A − Certificate of Good Standing, # 2 Text of Proposed Order)(Wiygul, Elisa) (Entered: 03/04/2014)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 434 MOTION for Elisa T. Wiygul to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9417868. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 03/05/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Darius Charney to RE−FILE Document 433 Status Report. Use the event type Letter found under the event list Other Documents. (ka) (Entered: 03/05/2014)
435 FILING ERROR − DEFICIENT DOCKET ENTRY − SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24. Document filed by Sergeants Benevolent Association. (Attachments: # 1 Supplement)(Coles, Anthony) Modified on 3/6/2014 (db). (Entered: 03/05/2014)
436 MOTION to Intervene. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/05/2014)
437 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 436 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/05/2014)
438 DECLARATION of Steven A. Engel, Esq., in Support re: 436 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Engel, Steven) (Entered: 03/05/2014)
439 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/05/2014)
440 LETTER addressed to Judge Analisa Torres from Darius Charney, Alexis Karteron and Zachary Carter dated March 4, 2014 re: Parties' Settlement Negotiations. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 03/06/2014)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Anthony Paul Coles to RE−FILE Document 435 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24. ERROR(S): Supporting Documents are filed separately, each receiving their own document #. Memorandum in Support of Motion is found under the Event Type − Replies, Opposition and Supporting Documents. ***REMINDER*** − refile motion first, then file and link any supporting documents. (db) (Entered: 03/06/2014)
441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24. Document filed by Sergeants Benevolent Association.(Coles, Anthony) (Entered: 03/06/2014)

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442 MEMORANDUM OF LAW in Support re: 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 03/06/2014)
443 CERTIFICATE OF SERVICE of Supplemental Motion to Intervene on 03/06/2014. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 03/06/2014)
444 ORDERFOR ADMISSION OF ELISA T. WIYGUL PRO HAC VICE: granting 434 Motion for Elisa T. Wiygul to Appear Pro Hac Vice. (Signed by Judge Analisa Torres on 3/6/2014) (ajs) (Entered: 03/06/2014)
445 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 436 MOTION to Intervene. (Corrected Supplemental Memorandum of Law). Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/06/2014)
446 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/06/2014)
447 MEMORANDUM OF LAW in Opposition re: 436 MOTION to Intervene., 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by The City of New York. (Cooke, Brenda) (Entered: 03/10/2014)
448 SUPPLEMENTAL MEMORANDUM OF LAW in Opposition re: 436 MOTION to Intervene., 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 03/10/2014)
449 DECLARATION of Darius Charney in Opposition re: 436 MOTION to Intervene., 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (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)(Charney, Darius) (Entered: 03/10/2014)
450 DECLARATION of Darius Charney in Opposition re: 436 MOTION to Intervene., 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (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)(Charney, Darius) (Entered: 03/11/2014)
451 REPLY MEMORANDUM OF LAW in Support re: 441 SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24.. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 03/14/2014)
452 CERTIFICATE OF SERVICE of Reply Memorandum on March 14, 2014. Service was made by ECF and Mail. Document filed by The City of New York. (Coles, Anthony) (Entered: 03/14/2014)
453 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Support re: 436 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/14/2014)
454 DECLARATION of Steven A. Engel in Support re: 436 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1

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Exhibit A)(Engel, Steven) (Entered: 03/14/2014)
455 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/14/2014)
456 JOINT MOTION to Amend/Correct 372 Memorandum & Opinion,. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht, The City of New York.(Cooke, Brenda) (Entered: 04/03/2014)
457 DECLARATION of Zachary W. Carter in Support re: 456 JOINT MOTION to Amend/Correct 372 Memorandum & Opinion,.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht, The City of New York. (Attachments: # 1 Exhibit A)(Cooke, Brenda) (Entered: 04/03/2014)
458 JOINT MEMORANDUM OF LAW in Support re: 456 JOINT MOTION to Amend/Correct 372 Memorandum & Opinion,.. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht, The City of New York. (Cooke, Brenda) (Entered: 04/03/2014)
459 MEMORANDUM OF LAW in Opposition re: 456 JOINT MOTION to Amend/Correct 372 Memorandum & Opinion,.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 04/08/2014)
460 LETTER addressed to Judge Analisa Torres from Plaintiffs' Counsel dated April 10, 2014 re: Police Unions' April 8, 2014 Brief In Opposition to Parties' Joint Motion to Modify. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 04/10/2014)
461 MEMORANDUM OF LAW in Opposition re: 456 JOINT MOTION to Amend/Correct 372 Memorandum & Opinion,.. Document filed by Sergeants Benevolent Association. (Coles, Anthony) (Entered: 04/11/2014)
462 LETTER addressed to Judge Analisa Torres from Darius Charney dated June 10, 2014 re: Pending Motion to Modify Remedial Order and Motions to Intervene. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht, The City of New York.(Charney, Darius) (Entered: 06/10/2014)
463 LETTER addressed to Judge Analisa Torres from Anthony P. Coles dated June 20, 2014 re: SBA's Pending Motion to Intervene. Document filed by Sergeants Benevolent Association. (Attachments: # 1 Appendix)(Coles, Anthony) (Entered: 06/20/2014)
464 LETTER addressed to Judge Analisa Torres from Darius Charney dated June 23, 2014 re: Response to June 20, 2014 Letter to Court from Sergeants Benevolent Associatio. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 06/23/2014)
465 OPINION AND ORDER re: (436 in 1:08−cv−01034−AT−HBP) MOTION to Intervene. filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., (171 in 1:12−cv−02274−AT−HBP) MOTION to Intervene filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., (441 in 1:08−cv−01034−AT−HBP) SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24 filed by Sergeants Benevolent Association. The Unions' motions to intervene are DENIED for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal. The parties' motion for an order modifying the Remedial Order is GRANTED. The modification shall be set forth in a separate order to be issued forthwith. The Unions' request to participate in the settlement of Floyd and Ligon is, therefore, DENIED as moot. The Unions' request to

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participate in the remedial phase of Floyd is also DENIED as moot because the Remedial Order already offers "police organizations" the opportunity to participate in the development of reforms to NYPD stop−and−frisk policies and procedures through the "Joint Remedial Process." To the extent the Unions request to participate in the remedial phase of Ligon, that request is DENIED for the same reasons the Court denies their motion to intervene for the purpose of appealing the Remedial Order. Having resolved the motions to intervene, and having approved the terms of the parties' proposed resolution of the City's appeals, the Court has continuing jurisdiction only "insofar as is necessary to effectuate a settlement." Ligon, 743 F.3d at 365. Accordingly, by August 6, 2014, the City shall submit a letter to the Court indicating the status of its pending appeals. This Court shall take no further action unrelated to effectuating the parties' settlement unless and until the Court of Appeals dissolves the stay or otherwise returns jurisdiction to the District Court. The Clerk of Court shall terminate the motions at ECF Nos. 436 and 441 in Floyd and ECF No. 171 in Ligon. (Signed by Judge Analisa Torres on 7/30/2014) (tro) (Entered: 07/30/2014)
466 ORDER MODIFYING REMEDIAL ORDER terminating 456 Motion to Amend/Correct 372 Memorandum & Opinion. For the reasons stated in an Opinion and Order of even date, and pursuant to the directive of the United States Court of Appeals for the Second Circuit to "effectuate a settlement," Mandate and Opinion, (Feb. 21, 2014), Floyd, ECF No. 426; Ligon, ECF No. 166, IT IS ORDERED that paragraph 12 on page 13 of the Remedial Order, Floyd, ECF No. 372; Ligon, ECF No. 120, is deleted and the following is substituted in its place: 12. a. The Monitor's position will come to an end in Floyd no sooner than three years after the Court's entry of the final order approving the Immediate Reforms to be developed in Floyd and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Immediate and Joint Process Reforms to be approved and so−ordered by the Court in Floyd. If the City fails to make such showing, the Monitor's position will continue until such time as the City can make the required showing of substantial compliance. b. The Monitor's position with respect to the preliminary injunctive relief in Ligon will come to an end no sooner than three years after the Court's entry of the final order approving the preliminary injunctive relief set forth in Section III of this Order, entitled "Remedies in Ligon" (the "Ligon Preliminary Injunctive Relief") and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Ligon Preliminary Injunctive Relief. If the City fails to make such showing, the Monitor's position will continue until such time as the City can make the required showing of substantial compliance. c. "Substantial compliance" in Floyd shall be defined as compliance with all material aspects of the Immediate and Joint Process Reforms to be approved and so−ordered by the Court. "Substantial compliance" in Ligon shall be defined as compliance with all material aspects of the Ligon Preliminary Injunctive Relief. In either case, 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. d. Substantial compliance shall be measured using the milestones to be set by the Monitor pursuant to paragraph 5 above. The Clerk of Court shall terminate the motions at ECF No. 456 in Floyd and ECF No. 188 in Ligon. (Signed by Judge Analisa Torres on 7/30/2014) (tro) (Entered: 07/30/2014)
467 LETTER addressed to Judge Analisa Torres from defendant City of New York dated August 6, 2014 re: Your Honor's July 30, 2014 Opinion and Order. Document filed by The City of New York.(Marutollo, Joseph) (Entered: 08/06/2014)
468 NOTICE OF INTERLOCUTORY APPEAL from 465 Memorandum & Opinion,,,,,,,,,,. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. Filing fee $ 505.00, receipt number 0208−9974058. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Engel, Steven) (Entered: 08/06/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 468 Notice of Interlocutory Appeal,. (nd) (Entered: 08/07/2014)

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Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 468 Notice of Interlocutory Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. were transmitted to the U.S. Court of Appeals. (nd) (Entered: 08/07/2014)
469 NOTICE OF APPEAL from 465 Memorandum & Opinion,,,,,,,,,,. Document filed by Sergeants Benevolent Association. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Coles, Anthony) (Entered: 08/07/2014)
Appeal Fee Due: for 469 Notice of Appeal. Appeal fee due by 8/21/2014. (tp) (Entered: 08/08/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 469 Notice of Appeal. (tp) (Entered: 08/08/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 469 Notice of Appeal filed by Sergeants Benevolent Association were transmitted to the U.S. Court of Appeals. (tp) (Entered: 08/08/2014)
Appeal Fee Payment: for 469 Notice of Appeal. Filing fee $ 505.00, receipt number 0208−9981756. (Coles, Anthony) (Entered: 08/08/2014)
470 OPINION of USCA as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly, 468 Notice of Interlocutory Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. USCA Case Number 13−3088−cv; 14−2829−cv. For the reasons set forth in this opinion, Judge Torres's July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions' motions to intervene in the appeals are DENIED, the City's motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion. Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions perspectives in any ongoing District Court proceedings, nothing in this opinion should be construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 10/31/2014. (nd) (Entered: 10/31/2014)
471 MANDATE of USCA (Certified Copy) as to 379 Notice of Appeal, filed by The City of New York, Michael Bloomberg, Raymond Kelly, 469 Notice of Appeal filed by Sergeants Benevolent Association USCA Case Number 13−3088−cv, 14−2848−cv. For the reasons set forth in this opinion, Judge Torres's July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions' motions to intervene in the appeals are DENIED, the City's motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion. Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions perspectives in any ongoing District Court proceedings, nothing in this opinion should be construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/7/2014. (nd) (Entered: 11/10/2014)
472 MANDATE of USCA (Certified Copy) as to 468 Notice of Interlocutory Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's

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Benevolent Association of the City of New York, Inc. USCA Case Number 14−2829. The appeal in the above captioned case from an order of the United States District Courtfor the Southern District of New York was argued on the district court's record and the parties' briefs. Upon consideration thereof, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the order of the district court is AFFIRMED and the causes are REMANDED for such further proceedings as may be appropriate in the circumstances. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/7/2014. (nd) (Entered: 11/10/2014)
473 ORDER APPOINTING FACILITATOR: This Order supplements the Remedies Opinion of August 12, 2013, which directed the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop−and−frisk practices of the New York City Police Department ("NYPD"). By Supplemental Order dated September 4, 2013, the Court appointed Nicholas Turner as Facilitator to guide the Joint Remedial Process. Due to professional obligations that have arisen since his appointment, Mr. Turner has withdrawn as Facilitator. The Court now appoints as Facilitator the Honorable Ariel E. Belen, a retired Associate Justice of the Supreme Court of the State of New York, Appellate Division, Second Department, currently serving as a neutral mediator and arbitrator at JAMS, an alternative dispute resolution ("ADR") provider. Justice Belen, a graduate of Cornell Law School, began his legal career as a public defender with the Legal Aid Society of New York (1981−1990). At Legal Aid, he represented indigent criminal defendants, frequently participating in suppression hearings concerning, among other issues, stop−and−frisk violations. Later, at the City of New York Law Department, he worked as an Assistant Corporation Counsel (1990−1993), Deputy Chief of the Brooklyn Tort Division (1993−1994), and Chief of the Bronx Borough Office (1994), representing police officers sued for alleged civil rights violations, unlawful detentions, and the use of excessive force. Beginning in 1995, Justice Belen served in Kings County as a New York State Supreme Court Justice in various capacities, including in the trial court, at the Appellate Term, and as Administrative Judge of the Civil Term. Justice Belen was appointed to the Appellate Division, Second Department in 2008. In 2012, he joined JAMS. Justice Belen chairs the ADR Committee of the New York County Lawyers' Association and is a Member of the Executive Advisory Committee of the International Institute for Conflict Prevention & Resolution Panel of Distinguished Neutrals. (Signed by Judge Analisa Torres on 11/10/2014) (mro) (Entered: 11/10/2014)
474 MOTION for Brenda Elaine Cooke to Withdraw as Attorney . Document filed by The City of New York.(Cooke, Brenda) (Entered: 01/26/2015)
475 DECLARATION of Brenda Elaine Cooke in Support re: 474 MOTION for Brenda Elaine Cooke to Withdraw as Attorney .. Document filed by The City of New York. (Cooke, Brenda) (Entered: 01/26/2015)
476 ORDER REGARDING MONITOR'S FINAL RECOMMENDATIONS: Accordingly, it is ORDERED that: 1. After consultation with the parties, the Monitor shall, over the course of the monitorship, deliver to the parties written, final recommendations for the implementation of remedies ("Final Recommendation"). A Final Recommendation shall be labeled as such, dated, and signed by the Monitor. 2. If a party does not wish to object to a Final Recommendation, the party shall, as soon as possible, notify the Monitor and the other parties in writing. 3. If a party does wish to object to a Final Recommendation, the party shall: a. within 5 days of receiving a Final Recommendation, notify the Monitor and the other parties in writing that there will be an objection; and b. within 14 days of receiving a Final Recommendation, submit a letter to the Court on ECF of no more than five single−spaced pages stating the grounds for the objection. 4. Following the submission of a letter under paragraph 3(b), the Court shall issue an order approving or denying the Final Recommendation. 5. If a party fails to make a timely notification under paragraph 3(a) or fails to timely file a letter under paragraph 3(b), the Final Recommendation shall be deemed adopted by the parties, and the Monitor shall submit it to the Court for approval. 6. If the Monitor seeks to file any materials under seal, he shall inform the parties and e−mail a letter to the Court explaining the basis for his request. The Court shall notify the Monitor and the parties of its decision. The Monitor may then, to the extent permitted by the Court, file the redacted materials on ECF and the full, unredacted materials under seal in accordance with this district's procedures. SO ORDERED. (Signed by

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Judge Analisa Torres on 2/3/2015) (ajs) (Entered: 02/03/2015)
477 MEMO ENDORSEMENT granting 474 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Brenda Elaine Cooke's appearance from the docket and name from the ECF distribution list. Attorney Brenda Elaine Cooke terminated. (Signed by Judge Analisa Torres on 2/3/2015) (mro) (Entered: 02/04/2015)
478 ORDER REGARDING MONITOR AND FACILITATOR COMPENSATION: This Agreement, by and between Peter L. Zimroth (Monitor) and New York City (City) is effective as of the last date signed below (Start Date) and, unless sooner terminated, shall terminate upon the termination by the Court of the Monitor's duties. The Monitor and New York City are sometimes referred to individually as a Party and together as the Parties; as further set forth therein. (Signed by Judge Analisa Torres on 2/6/2015) (mro) (Entered: 02/06/2015)
479 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/06/2015 re: Final Recommendations re: FINEST Messages. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 02/06/2015)
480 MEMO ENDORSEMENT on re: (479 in 1:08−cv−01034−AT−HBP) Letter filed by Peter A. Zimroth, (208 in 1:12−cv−02274−AT−HBP) Letter filed by Peter A. Zimroth. ENDORSEMENT: The Monitor's Final Recommendations with respect to the FINEST message in Floyd v. City of New York are APPROVED. (Signed by Judge Analisa Torres on 2/6/2015) (mro) (Entered: 02/06/2015)
481 NOTICE OF APPEARANCE by Joshua Samuel Moskovitz on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Moskovitz, Joshua) (Entered: 02/17/2015)
482 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/20/2015 re: Amended Final Recommendation for FINEST Message in Floyd. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 02/20/2015)
483 MEMO ENDORSEMENT on re: (482 in 1:08−cv−01034−AT−HBP) Letter filed by Peter A. Zimroth, (210 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, re: Amended Final Recommendation for FINEST Message in Floyd. ENDORSEMENT: The Monitor's Amended Final Recommendations with respect to the FINEST message in Floyd v. City of New York is APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 2/23/2015) (ajs) (Entered: 02/23/2015)
484 LETTER addressed to Judge Analisa Torres from Steven A. Engel dated March 4, 2015 re: February 3 Order Regarding Monitor's Final Recommendations. Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/04/2015)
485 LETTER addressed to Judge Analisa Torres from Anthony P. Coles dated March 6, 2015 re: request to modify the Court's Order regarding Monitor's Final Recommendations. Document filed by Sergeants Benevolent Association.(Coles, Anthony) (Entered: 03/06/2015)
486 ORDER: By March 13, 2015, each party shall file a letter with respect to the application made by the Patrolmen's Benevolent Association and the Sergeants Benevolent Association by letters dated March 4 and March 6, 2015, respectively. SO ORDERED. (Signed by Judge Analisa Torres on 3/9/2015) (ajs) (Entered: 03/09/2015)
487 LETTER MOTION for Extension of Time to file response to the letters filed by the PBA and SBA addressed to Judge Analisa Torres from Lisa M. Richardson dated March 12, 2015. Document filed by The City of New York.(Richardson, Lisa) (Entered: 03/12/2015)
488 AMENDED LETTER MOTION for Extension of Time to respond to the PBA and SBA letters addressed to Judge Analisa Torres from Lisa M. Richardson dated March 12, 2015. Document filed by The City of New York.(Richardson, Lisa) (Entered: 03/12/2015)
489 ORDER finding as moot 487 Letter Motion for Extension of Time; granting 488 Letter Motion for Extension of Time. GRANTED. SO ORDERED. (Signed by Judge Analisa

03/13/2015 03/13/2015 03/17/2015 03/17/2015 03/18/2015 03/18/2015 03/18/2015 03/18/2015 03/19/2015
03/24/2015
03/25/2015 03/25/2015 03/25/2015

Torres on 3/12/2015) (ajs) (Entered: 03/12/2015)
490 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Darius Charney dated March 13, 2015. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 03/13/2015)
491 ORDER granting 490 Letter Motion for Extension of Time. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/13/2015) (ajs) (Entered: 03/13/2015)
492 MOTION to Withdraw as Attorney . Document filed by The City of New York.(Marutollo, Joseph) (Entered: 03/17/2015)
493 DECLARATION of Joseph A. Marutollo in Support re: 492 MOTION to Withdraw as Attorney .. Document filed by The City of New York. (Marutollo, Joseph) (Entered: 03/17/2015)
494 LETTER addressed to Judge Analisa Torres from Darius Charney and Christopher Dunn dated March 18, 2015 re: Police Unions' March 4 and 6th Letters. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 03/18/2015)
495 LETTER addressed to Judge Analisa Torres from Lisa M. Richardson dated March 18, 2015 re: City's response to the PBA and SBA letters dated March 4, 2015 and March 6, 2015. Document filed by The City of New York.(Richardson, Lisa) (Entered: 03/18/2015)
496 MEMO ENDORSED ORDER on MOTION TO WITHDRAW granting 492 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Joseph A. Marutollo's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Joseph Anthony Marutollo terminated. (Signed by Judge Analisa Torres on 3/18/2015) (ajs) (Entered: 03/18/2015)
497 LETTER addressed to Judge Analisa Torres from Steven A. Engel dated March 18, 2015 re: Response to letters by City of New York and Plaintiffs dated 3/18/15. Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/18/2015)
498 ORDER: By letter dated March 18, 2015, the City suggests a way for all five police unions to participate in the remedial process now. Under the City's approach, the City will share proposals with the unions before providing them to the Monitor and the Plaintiffs. The unions may then offer their comments, which the City will convey to the Monitor. The City will continue to confer with the unions about substantial revisions proposed by the Monitor and the Plaintiffs.1 This approach affords the unions "a practical opportunity" to inform the Monitor of their viewpoints before the Monitor reaches conclusions and submits Final Recommendations to the Court. Accordingly, the unions' request is GRANTED to the extent that the Court invites the unions to participate in the manner described above. (Signed by Judge Analisa Torres on 3/19/2015) (mro) (Entered: 03/19/2015)
499 FILING ERROR − DEFICIENT DOCKET ENTRY − CONSENT MOTION Addition of Class Counsel . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Affidavit Declaration of Baher Azmy in Support of Motion, # 2 Exhibit A to Azmy Declaration, # 3 Exhibit B to Azmy Declaration, # 4 Declaration of Jenn Borchetta in Support of Motion)(Azmy, Baher) Modified on 3/25/2015 (db). (Entered: 03/24/2015)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Baher Azmy to RE−FILE Document 499 CONSENT MOTION Addition of Class Counsel . ERROR(S): Supporting Documents are filed separately, each receiving their own document #. (db) (Entered: 03/25/2015)
500 CONSENT MOTION Addition of Class Counsel . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Azmy, Baher) (Entered: 03/25/2015)
501 DECLARATION of Baher Azmy in Support re: 500 CONSENT MOTION Addition of Class Counsel .. Document filed by Lalit Clarkson, Deon Dennis, David Floyd,

03/25/2015 03/25/2015 03/26/2015 04/20/2015
04/23/2015 04/24/2015
04/24/2015 04/27/2015
05/01/2015 05/01/2015

David Ourlicht. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Azmy, Baher) (Entered: 03/25/2015)
502 DECLARATION of Jenn Borchetta in Support re: 500 CONSENT MOTION Addition of Class Counsel .. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Azmy, Baher) (Entered: 03/25/2015)
503 ORDER granting 500 Motion. Plaintiffs' unopposed request that the Court appoint Demos as co−Class Counsel pursuant to Federal Rule of Civil Procedure 23(g)(1)(E) is GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/25/2015) (ajs) (Entered: 03/25/2015)
504 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Borchetta, Jennifer) (Entered: 03/26/2015)
505 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated April 20, 2015 re: Final Recommendation Concerning Training Material for Current Academy Class. Document filed by Peter A. Zimroth. (Attachments: # 1 Exhibit 1 − Student Guide for Policing Legally, # 2 Exhibit 2 − Powerpoint for Policing Legally, # 3 Exhibit 3 − Student Guide for Policing Impartially, # 4 Exhibit 4 − Part 1 of 4 − Powerpoint for Policing Impartially, # 5 Exhibit 4 − Part 2 of 4 − Powerpoint for Policing Impartially, # 6 Exhibit 4 − Part 3 of 4 − Powerpoint for Policing Impartially, # 7 Exhibit 4 − Part 4 of 4 − Powerpoint for Policing Impartially, # 8 Exhibit 5 − Student Guide for Patrol of Multiple Dwelling Bldgs in TAP, # 9 Exhibit 6 − Powerpoint for Patrol of Multiple Dwelling Bldgs in TAP)(Zimroth, Peter) (Entered: 04/20/2015)
506 MOTION for Linda Donahue to Withdraw as Attorney . Document filed by The City of New York.(Donahue, Linda) (Entered: 04/23/2015)
507 MEMO ENDORSEMENT on re: (228 in 1:12−cv−02274−AT−HBP) Letter, filed by Peter L Zimroth, (505 in 1:08−cv−01034−AT−HBP) Letter, filed by Peter A. Zimroth, re: Final Recommendation Concerning Training Material for Current Academy Class. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 4/24/2015) (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4 − Part 1, # 5 Exhibit Exhibit 4 − Part 2, # 6 Exhibit Exhibit 4 − Part 3, # 7 Exhibit Exhibit 4 − Part 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6)(ajs) (Entered: 04/24/2015)
508 MEMO ENDORSED ORDER on MOTION TO WITHDRAW granting 506 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Linda Donahue's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Linda Donahue terminated. (Signed by Judge Analisa Torres on 4/24/2015) (ajs) (Entered: 04/24/2015)
509 FIRST AMENDMENT TO ORDER REGARDING MONITOR'S FINAL RECOMMENDATIONS: The Court's February 3, 2015 Order Regarding Monitor's Final Recommendations is amended such that the following paragraph is added: 7. The Monitor shall submit for the Court's review any material changes to a previously approved Final Recommendation. Changes that are not material do not require the Court's approval. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2015) (ajs) (Entered: 04/27/2015)
510 MOTION for Elisa T. Wiygul to Withdraw as Attorney . Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(Wiygul, Elisa) (Entered: 05/01/2015)
511 AFFIDAVIT of Elisa T. Wiygul in Support re: 510 MOTION for Elisa T. Wiygul to Withdraw as Attorney .. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Wiygul, Elisa) (Entered: 05/01/2015)

05/01/2015
07/09/2015 08/07/2015 08/07/2015 08/20/2015 08/24/2015
09/03/2015 09/03/2015 09/04/2015 12/07/2015 12/08/2015
02/16/2016 02/16/2016 02/25/2016 03/23/2016 03/25/2016

512 MEMO ENDORSED ORDER on NOTICE OF MOTION FOR WITHDRAWAL OF APPEARANCE granting 510 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Elisa T. Wiygul's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Elisa Talora Wiygul terminated. (Signed by Judge Analisa Torres on 5/1/2015) (ajs) (Entered: 05/01/2015)
513 STATUS REPORT. First Report of the Independent Monitor Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 07/09/2015)
514 STATUS REPORT. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 08/07/2015)
515 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated 08/07/2015 re: Monitor's submission to Court. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Borchetta, Jennifer) (Entered: 08/07/2015)
516 NOTICE OF APPEARANCE by Amatullah Khaliha Booth on behalf of The City of New York. (Booth, Amatullah) (Entered: 08/20/2015)
517 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)
518 MOTION for Lisa M. Richardson to Withdraw as Attorney . Document filed by The City of New York.(Richardson, Lisa) (Entered: 09/03/2015)
519 DECLARATION of Lisa M. Richardson in Support re: 518 MOTION for Lisa M. Richardson to Withdraw as Attorney .. Document filed by The City of New York. (Richardson, Lisa) (Entered: 09/03/2015)
520 ORDER granting 518 Motion to Withdraw as Attorney. GRANTED. SO ORDERED. Attorney Lisa Marie Richardson terminated. (Signed by Judge Analisa Torres on 9/4/2015) (ajs) (Entered: 09/04/2015)
521 STATUS REPORT. Recommendation Regarding Body−Worn Camera Program Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 12/07/2015)
522 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 body−worn cameras in reducing unconstitutional stops−and−frisks and in 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)
523 STATUS REPORT. Second Status Report Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 02/16/2016)
524 LETTER addressed to Judge Analisa Torres from Darius Charney dated February 16, 2016 re: The Monitor's Second Status Report. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 02/16/2016)
525 NOTICE of Notice of Withdrawal of Apperance. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Corey, Bruce) (Entered: 02/25/2016)
526 STATUS REPORT. Recommendation Regarding Stop Report Form Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 03/23/2016)
527 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.

08/09/2016 10/04/2016 10/04/2016 10/04/2016 10/05/2016 10/12/2016 10/13/2016 11/10/2016 11/18/2016 11/22/2016 11/22/2016 12/23/2016 01/24/2017
02/17/2017 02/24/2017

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)
528 STATUS REPORT. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 08/09/2016)
529 MOTION to Appoint Counsel . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 10/04/2016)
530 DECLARATION of Jenn Rolnick Borchetta in Support re: 529 MOTION to Appoint Counsel .. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 10/04/2016)
531 DECLARATION of Darius Charney in Support re: 529 MOTION to Appoint Counsel .. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 10/04/2016)
532 NOTICE OF CHANGE OF ADDRESS by Jennifer Rolnick Borchetta on behalf of All Plaintiffs. New Address: The Bronx Defenders, 360 East 161st Street, Bronx, NY, USA 10451, 718.838.7878. (Borchetta, Jennifer) (Entered: 10/05/2016)
533 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 12, 2016 re: Consent to Search. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 10/12/2016)
534 LETTER addressed to Judge Analisa Torres from Darius Charney dated October 13, 2016 re: Consent to Search Changes to NYPD PG 212−11. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 10/13/2016)
535 STATUS REPORT. re: Recommendation Regarding Electronic Stop Report Form Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 11/10/2016)
536 STATUS REPORT. Fourth Report of the Independent Monitor Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 11/18/2016)
537 ORDER: Consensual searches are not the subject matter of this litigation and, therefore, the Court rejects Plaintiffs' argument that court approval of the Agreement is required. Accordingly, Plaintiffs' request is DENIED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 11/22/2016) (cf) (Entered: 11/22/2016)
538 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 Report filed by Peter A. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 11/22/2016) (cf) (Entered: 11/22/2016)
539 NOTICE of. Document filed by David Floyd. (Attachments: # 1 Exhibit)(Moore, Jonathan) (Entered: 12/23/2016)
540 STIPULATION OF SETTLEMENT OF COUNSEL FEES, COSTS, EXPENSES AND ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: "Fee Stipulation" shall mean this Stipulation of Settlement of Counsel Fees, Costs and Expenses and Order, executed by the Parties in the above−captioned action. (As further set forth in this Order.) The Fee 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, result in a rejection of the settlement, as set forth in this Fee Stipulation. (Signed by Judge Analisa Torres on 1/24/2017) (cf) (Entered: 01/24/2017)
541 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/17/2017 re: Monitors Recommendation for Recruit Training. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 02/17/2017)
542 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)

03/30/2017 03/31/2017 04/11/2017 04/19/2017 04/20/2017 04/21/2017 04/21/2017 04/21/2017 04/21/2017
04/21/2017
04/21/2017 05/30/2017 06/01/2017 06/07/2017 06/29/2017

543 LETTER addressed to Judge Analisa Torres from Zachary W. Carter dated March 29, 2017 re: The Facilitator's Compensation Agreement and Additional Consultants. Document filed by The City of New York.(Anakhu, Joy) (Entered: 03/30/2017)
544 MEMO ENDORSEMENT on re: (277 in 1:12−cv−02274−AT−HBP) Letter filed by City of New York, (543 in 1:08−cv−01034−AT−HBP) Letter filed by The City of New York. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 3/31/2017) (cf) (Entered: 03/31/2017)
545 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 A. Zimroth.(Zimroth, Peter) (Entered: 04/11/2017)
546 Objection re: 545 Letter Memorandum Regarding Approval of Body Worn Camera Policies. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 04/19/2017)
547 LETTER MOTION to File Amicus Brief addressed to Judge Analisa Torres from David B. Rankin dated April 20, 2017. Document filed by Communities United for Police Reform. (Attachments: # 1 Exhibit Amici Curiae Statement, # 2 Exhibit Exh to Amici Curiae Statement)(Rankin, David) (Entered: 04/20/2017)
548 ORDER granting 547 Letter Motion to File Amicus Brief. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 4/21/2017) (cf) (Entered: 04/21/2017)
549 LETTER MOTION to File Amicus Brief addressed to Judge Analisa Torres from Christopher H. Fitzgerald dated 4/21/17. Document filed by Leadership Conference on Civil and Human Rights. (Attachments: # 1 Amicus Filing)(Fitzgerald, Christopher) (Entered: 04/21/2017)
550 ORDER granting 549 Letter Motion to File Amicus Brief. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 4/21/2017) (cf) (Entered: 04/21/2017)
551 LETTER addressed to Judge Analisa Torres from Joo−Hyun Kang, Director of Communities United for Police Reform dated April 20, 2017 re: Amici curiae statement in support of Plaintiffs' response and objection, ECF No. 546 . Document filed by Communities United for Police Reform. (Attachments: # 1 Exh 1 − CPR BWC Pub Comments from 2016.08.07)(Rankin, David) (Entered: 04/21/2017)
552 ORDER: By letter dated April 11, 2017, the Monitor submitted to the Court a memorandum (the "Memorandum") approving certain aspects of the Pilot Program. ECF No. 545. By letter dated April 19, 2017, the Floyd and Davis Plaintiffs objected to the Memorandum and argued that the Court is required, pursuant to the Court's prior orders, to approve the Pilot Program. ECF No. 546. The Memorandum approving certain aspects of the Pilot Program is not a Final Recommendation that is subject to the Court's approval or review. Plaintiffs' objections are, therefore, premature. Accordingly, Plaintiffs' request is DENIED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 4/21/2017) (cf) (Entered: 04/21/2017)
553 NOTICE OF APPEARANCE by Joy Tolulope Anakhu on behalf of The City of New York. (Anakhu, Joy) (Entered: 04/21/2017)
554 STATUS REPORT. Monitors Fifth Report: Analysis of NYPD Stops Reported, 2013−2015 Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 05/30/2017)
555 NOTICE OF APPEARANCE by David Allen Cooper on behalf of The City of New York. (Cooper, David) (Entered: 06/01/2017)
556 RESPONSE re: 554 Status Report . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 06/07/2017)
557 STATUS REPORT. Monitors Sixth Report: NYPDs Body−Worn Camera Pilot−−Research and Evaluation Plan Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 06/29/2017)

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11/14/2017 11/14/2017

558 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)
559 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)
560 LETTER addressed to Judge Analisa Torres from Chauniqua D. Young dated July 21, 2017 re: Withdrawal of Chauniqua D. Young as attorney of record for Plaintiffs. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Young, Chauniqua) (Entered: 07/21/2017)
561 MEMO ENDORSEMENT on re: 560 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. ENDORSEMENT: Plaintiffs' request is GRANTED. The Clerk of Court is directed to remove Chauniqua D. Young's appearance from the docket and name from the ECF distribution list. Attorney Chauniqua Danielle Young terminated. (Signed by Judge Analisa Torres on 7/25/2017) (cf) (Entered: 07/25/2017)
562 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 20, 2017 re: Recommendation Regarding NYPD Performance Evaluation System. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 10/20/2017)
563 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 Plaintiffs in Davis, et al. v. City of New York, et al., 10 Civ. 0699 (S.D.N.Y.).(Audain, Raymond) (Entered: 10/27/2017)
564 ORDER: The Court has reviewed and now APPROVES the Monitor's recommendation. Accordingly, it is ORDERED that: The Monitor shall, in his bi−annual reports, review and assess the NYPD's performance−evaluation system to ensure that, on paper and in practice, it does not (a) reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness or (b) undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedies Opinion. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 11/6/2017) (cf) Modified on 11/14/2017 (cf). (Entered: 11/06/2017)
565 NOTICE OF APPEARANCE by Michael J. Gilbert on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Gilbert, Michael) (Entered: 11/13/2017)
566 NOTICE OF APPEARANCE by Luna Droubi on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Droubi, Luna) (Entered: 11/13/2017)
567 NOTICE OF WITHDRAWAL OF APPEARANCE: Steven Engel, hereby respectfully withdraws his appearance as counsel for Patrolmen's Benevolent Association of the City of New York, Inc., the Detectives' Endowment Association, Inc., the NYPD Captains Endowment Association and the Lieutenants Benevolent Association of the City of New York, Inc., and requests removal from service of any further pleadings in connection with the above−captioned matter, as further set forth in this Order. Attorney Steven A. Engel terminated. (Signed by Judge Analisa Torres on 11/14/2017) (cf) Modified on 12/14/2017 (cf). (Entered: 11/14/2017)
568 MOTION for David B. Rankin to Withdraw as Attorney . Document filed by Communities United for Police Reform.(Rankin, David) (Entered: 11/14/2017)
569 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for David B. Rankin to Withdraw as Attorney Declaration of David B. Rankin. Document filed by Communities United for Police Reform.(Rankin, David) Modified on 11/15/2017 (db). (Entered: 11/14/2017)

11/15/2017 11/16/2017 11/20/2017 11/20/2017 11/20/2017 12/05/2017
12/13/2017 01/10/2018 01/17/2018
01/23/2018 01/23/2018 01/25/2018

570 ORDER granting 568 Motion to Withdraw as Attorney. Attorney David Bruce Rankin terminated; granting 569 Motion to Withdraw as Attorney. Attorney David Bruce Rankin terminated (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 11/15/2017)
571 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)
572 MOTION for James M. McGuire to Withdraw as Attorney . Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(McGuire, James) (Entered: 11/20/2017)
573 AFFIDAVIT of James M. McGuire in Support re: 572 MOTION for James M. McGuire to Withdraw as Attorney .. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 11/20/2017)
574 ORDER granting 572 Motion to Withdraw as Attorney. Attorney James M. McGuire terminated (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 11/20/2017)
575 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)
576 STATUS REPORT. Monitor's Seventh Status Report Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 12/13/2017)
577 LETTER MOTION for Conference on the Joint Remedial Process addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 10, 2018. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Borchetta, Jennifer) (Entered: 01/10/2018)
578 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)
579 LETTER RESPONSE to Motion addressed to Judge Analisa Torres from David Cooper dated January 23, 2018 re: 577 LETTER MOTION for Conference on the Joint Remedial Process addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 10, 2018. . Document filed by The City of New York. (Cooper, David) (Entered: 01/23/2018)
580 MEMO ENDORSEMENT on re: (579 in 1:08−cv−01034−AT) 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 1/23/2018) (cf) (Entered: 01/23/2018)
581 LETTER RESPONSE in Support of Motion addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 25, 2018 re: 577 LETTER MOTION for Conference on the Joint Remedial Process addressed to Judge Analisa Torres from

01/29/2018 01/29/2018 01/29/2018
02/22/2018 02/23/2018 02/26/2018
03/27/2018 04/19/2018

Jenn Rolnick Borchetta dated January 10, 2018. . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Borchetta, Jennifer) (Entered: 01/25/2018)
582 LETTER addressed to Judge Analisa Torres from Ariel E. Belen dated 1/29/2018 re: Joint Remedial Process. Document filed by Ariel E. Belen.(Belen, Ariel) (Entered: 01/29/2018)
583 AMENDED LETTER addressed to Judge Analisa Torres from Ariel E. Belen dated 1/29/2018 re: Joint Remedial Process. Document filed by Ariel E. Belen.(Belen, Ariel) (Entered: 01/29/2018)
584 ORDER granting in part and denying in part 577 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) Modified on 1/29/2018 (cf). (Entered: 01/29/2018)
585 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)
586 SEALED DOCUMENT placed in vault.(rz) (Entered: 02/23/2018)
587 STIPULATION OF SETTLEMENT OF COUNSEL FEES, COSTS, AND EXPENSES TO CLASS COUNSEL FOR TIME AND EXPENSES INCURRED IN THIS MATTER FROM NOVEMBER 1, 2014 UNTIL FEBRUARY 23, 2017, AND ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: "Main Fee Stipulation" shall mean the Stipulation of Settlement of Counsel Fees, Costs and Expenses and Order, executed by the Parties in the above−captioned action, which was so ordered by the Court on January 24, 2017. The City agrees to pay attorneys' fees, totaling two − million, six−hundred ten thousand, fifty − one dollars and twenty−two cents ($2,610,051.22), and costs and expenses,totaling four − thousand six−hundred forty − nine dollars and forty − nine cents ($4,649.49), to Class Counsel for time and expenses incurred in this matter, from November 1, 2014 until February 23, 2017. Plaintiffs hereby agree that payment shall be made by check as follows: $1,019,398.50 to Beldock Levine & Hoffman, LLP, $254,849.62 to Jonathan C. Moore, Esq, on behalf of Moore & Goodman, LLP, $ 1,045,891.90 to the Center for Constitutional Rights, $230,713.50 to Demos, $38,086.87 to The Bronx Defenders, and, $25,760.32 to Covington & Burling, LLP, and accept said payment in full satisfaction of all claims for attorneys' fees, costs and expenses, in, arising from, or in connection with this action, during that time period. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 2/26/2018) (cf) (Entered: 02/26/2018)
588 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)
589 FIRST LETTER MOTION for Extension of Time to File Final Report addressed to Judge Analisa Torres from Ariel E. Belen dated April 19, 2018. Document filed by Ariel E. Belen.(Belen, Ariel) (Entered: 04/19/2018)

04/19/2018 05/04/2018
05/07/2018
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06/18/2018 06/18/2018 06/18/2018

590 ORDER granting 589 Letter Motion for Extension of Time to File in 08−cv−1034−AT. GRANTED. (Signed by Judge Analisa Torres on 4/19/2018) (mro) (Entered: 04/20/2018)
591 LETTER MOTION for Leave to File Comments (Request for Scheduling Order) addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated May 4, 2018. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Borchetta, Jennifer) (Entered: 05/04/2018)
592 ORDER granting 591 Letter Motion for Leave to File Document. 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)
597 NOTICE of New York City Joint Remedial Process Final Report. Document filed by Ariel E. Belen. (Belen, Ariel) (Entered: 05/15/2018)
598 NOTICE of New York City Joint Remedial Process Final Report re: 597 Notice (Other). Document filed by Ariel E. Belen. (Attachments: # 1 Appendix Written submissions from stakeholders, # 2 Appendix Plaintiffs' counsel recommendations, # 3 Appendix NYPD response, # 4 Appendix Focus group materials, # 5 Appendix Leadership meeting materials, # 6 Appendix Community forum materials, # 7 Appendix Police and Community Feedback, # 8 Appendix Data)(Belen, Ariel) (Entered: 05/15/2018)
***STRICKEN DOCUMENT. Deleted document number and PDF attached to dkt. 593 from the case record. The document was stricken from this case pursuant to 599 Order Striking Document from Record. (cf) (Entered: 05/16/2018)
***STRICKEN DOCUMENT. Deleted document number and PDF attached to dkt. 596 from the case record. The document was stricken from this case pursuant to 599 Order Striking Document from Record. (cf) (Entered: 05/16/2018)
***STRICKEN DOCUMENT. Deleted document numbers [594 and 595] from the case record. The document was stricken from this case pursuant to 599 Order Striking Document from Record. (cf) (Entered: 05/16/2018)
599 ORDER: The Clerk of Court is directed to strike ECF Nos. 593 to 596. (Signed by Judge Analisa Torres on 5/16/2018) (cf) (Entered: 05/16/2018)
600 MOTION for Judson Krebbs Vickers to Withdraw as Attorney . Document filed by The City of New York.(Vickers, Judson) (Entered: 05/16/2018)
601 ORDER granting 600 Motion to Withdraw as Attorney. Attorney Judson Krebbs Vickers terminated (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 05/16/2018)
602 BRIEF re: 597 Notice (Other) Pls. Comments on the Joint Remedial Process Reforms. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Borchetta, Jennifer) (Entered: 06/08/2018)
603 BRIEF re: 597 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)
604 BRIEF re: 597 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)
605 NOTICE OF APPEARANCE by Gary W. Kubek on behalf of Communities United for Police Reform. (Kubek, Gary) (Entered: 06/18/2018)
606 NOTICE OF APPEARANCE by Jarrod Lee Schaeffer on behalf of Communities United for Police Reform. (Schaeffer, Jarrod) (Entered: 06/18/2018)
607 LETTER MOTION for Extension of Time for Amicus Curiae CPR to file comments to the Joint Remedial Process Final Report and Recommendations addressed to Judge

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Analisa Torres from Gary W. Kubek dated June 18, 2018. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 06/18/2018)
608 ORDER granting 607 Letter Motion for Extension of Time. GRANTED. By July 9, 2018, amici shall file their comments. By July 16, 2018, the parties shall file their replies. (Signed by Judge Analisa Torres on 6/18/2018) (mro) (Entered: 06/19/2018)
609 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)
610 NOTICE OF APPEARANCE by Lindsay Elizabeth Ray on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Ray, Lindsay) (Entered: 07/09/2018)
611 NOTICE of /Comments of Amicus Curiae Communities United for Police Reform on Final Joint Remedial Process Report re: 597 Notice (Other). Document filed by Communities United for Police Reform. (Attachments: # 1 Addenda)(Kubek, Gary) (Entered: 07/09/2018)
612 FILING ERROR − DEFICIENT DOCKET ENTRY (SEE DOCUMENT #613) − LETTER addressed to Judge Analisa Torres from Michael J. Gilbert dated July 9, 2018 re: Comments of Amicus Curiae Patrolmen's Benevolent Association in Response to the Final Joint Remedial Process Report, Dkt No. 597 ... Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Gilbert, Michael) Modified on 7/11/2018 (ldi). (Entered: 07/09/2018)
613 LETTER addressed to Judge Analisa Torres from Michael J. Gilbert dated July 9, 2018 re: : Comments of Amicus Curiae Patrolmen's Benevolent Association in Response to the Final Joint Remedial Process Report, Dkt No. 597 . Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Gilbert, Michael) (Entered: 07/09/2018)
614 SEALED DOCUMENT placed in vault.(rz) (Entered: 07/10/2018)
615 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)
616 BRIEF re: 597 Notice (Other) Plaintiffs' Reply in Further Support of the Joint Remedial Process Reforms. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Appendix Letters from Named Plaintiffs)(Borchetta, Jennifer) (Entered: 07/16/2018)
617 BRIEF re: 604 Brief, 603 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)
618 LETTER addressed to Judge Analisa Torres from Michael J. Gilbert dated July 17, 2018 re: Representation Clarification. Document filed by Patrolmens Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A)(Gilbert, Michael) (Entered: 07/17/2018)
619 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

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the cost of the pilot program. (Signed by Judge Analisa Torres on 7/19/2018) (cf) (Main Document 619 replaced on 7/19/2018) (cf). (Entered: 07/19/2018)
620 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)
621 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)
622 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)
623 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)
624 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)
625 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated July 31, 2018 re: Amended Proposed Confidentiality Order [622−1]. Document filed by Peter L. Zimroth. (Attachments: # 1 Text of Proposed Order)(Zimroth, Peter) (Entered: 07/31/2018)
626 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2018 re: A Proposed Revision to the Amended Proposed Confidentiality Order. Document filed by The City of New York.(Cooper, David) (Entered: 08/02/2018)
627 Objection re: 625 Letter re Amended Proposed Confidentiality Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 08/02/2018)
628 NOTICE OF APPEARANCE by Gideon Orion Oliver on behalf of Communities United for Police Reform. (Oliver, Gideon) (Entered: 08/02/2018)
629 LETTER MOTION to File Amicus Brief in opposition to the Monitor's Application for a Confidentiality Order addressed to Judge Analisa Torres from Gideon Orion Oliver dated August 2, 2018. Document filed by Communities United for Police Reform. (Attachments: # 1 Appendix 1 − Proposed Amicus Curiae Opposition to the Monitor's Application for a Confidentiality Order)(Oliver, Gideon) (Entered: 08/02/2018)
630 RESPONSE re: 626 Letter dated August 2, 2018 from David Cooper to Judge Analisa Torres re Proposed Confidentiality Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 08/03/2018)
631 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)
632 LETTER addressed to Judge Analisa Torres from Towaki Komatsu, dated 8/8/18 re: APPLICATION FOR LEAVE TO SUBMIT OPPOSITION PAPERS AS AMICUS CURIAE. Document filed by Towaki Komatsu, a non−party.(sc) (Entered: 08/08/2018)
633 ORDER granting 629 Letter Motion to File Amicus Brief; granting 631 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.

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(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)
634 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 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)
635 BRIEF re: 633 Order on Motion to File Amicus Brief, Order on Motion for Leave to File Document,,,, 622 Letter, 625 Letter by Amicus Curiae Communities United for Police Reform in opposition to the Independent Monitor's application for a confidentiality order. Document filed by Communities United for Police Reform.(Oliver, Gideon) (Entered: 08/09/2018)
636 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)
637 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)
638 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)
639 LETTER addressed to Judge Analisa Torres from Darius Charney dated August 21, 2018 re: Response in Further Opposition to Proposed Confidentiality Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 08/21/2018)
640 LETTER addressed to Judge Analisa Torres from Michael J. Gilbert dated August 21, 2018 re: Reply in Opposition to the City's Redlined Copy of the Amended Proposed Confidentiality Order [Dkt No. 638].. Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Gilbert, Michael) (Entered: 08/21/2018)
641 LETTER MOTION to File Amicus Brief in further opposition to the Monitor's Application for a confidentiality order addressed to Judge Analisa Torres from Gideon Orion Oliver dated August 21, 2018. Document filed by Communities United for Police Reform. (Attachments: # 1 Appendix 1 − Proposed Amicus Curiae Further Opposition to the Monitor's Application for a Confidentiality Order)(Oliver, Gideon) (Entered: 08/21/2018)
642 ORDER granting 641 Letter Motion to File Amicus Brief. GRANTED. By August 23, 2018, Communities United for Police Reform shall file its amicus curiae in further

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opposition. (Signed by Judge Analisa Torres on 8/22/2018) (cf) (Entered: 08/22/2018)
Set/Reset Deadlines: Responses to Brief due by 8/23/2018 (cf) (Entered: 08/22/2018)
643 BRIEF re: 642 Order on Motion to File Amicus Brief, 641 LETTER MOTION to File Amicus Brief in further opposition to the Monitor's Application for a confidentiality order addressed to Judge Analisa Torres from Gideon Orion Oliver dated August 21, 2018. . Document filed by Communities United for Police Reform.(Oliver, Gideon) (Entered: 08/22/2018)
644 SEALED DOCUMENT placed in vault.(rz) (Entered: 08/23/2018)
645 FIRST LETTER MOTION for Extension of Time To Submit Joint Proposal for a Pilot Program addressed to Judge Analisa Torres from Jonathan C. Moore dated September 12, 2018. Document filed by David Floyd.(Moore, Jonathan) (Entered: 09/12/2018)
646 ORDER granting 645 Letter Motion for Extension of Time. GRANTED. The deadline for the submission of a joint proposal for a pilot program documenting police−citizen encounters is EXTENDED to October 19, 2018. (Signed by Judge Analisa Torres on 9/12/2018) (cf) (Entered: 09/12/2018)
647 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, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Zimroth, Peter) (Entered: 10/01/2018)
648 LETTER MOTION for Leave to File response to the Monitor's letter re Confidentiality Order (Dkt. No. 647) addressed to Judge Analisa Torres from Luna Droubi dated October 2, 2018. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Droubi, Luna) (Entered: 10/02/2018)
649 ORDER denying 648 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)
650 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)
651 LETTER addressed to Judge Analisa Torres from Jarrod L. Schaeffer dated October 12, 2018 re: withdrawal from case. Document filed by Communities United for Police Reform.(Schaeffer, Jarrod) (Entered: 10/12/2018)
652 MEMO ENDORSEMENT on re: 651 Letter filed by Communities United for Police Reform. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Jarrod L. Schaeffer's appearance from the docket and name from the ECF distribution list. Attorney Jarrod Lee Schaeffer terminated. (Signed by Judge Analisa Torres on 10/12/2018) (cf) (Entered: 10/12/2018)
653 SECOND LETTER MOTION for Extension of Time to File Joint Pilot Proposal addressed to Judge Analisa Torres from Darius Charney dated October 18, 2018. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 10/18/2018)
654 ORDER granting 653 Letter Motion for Extension of Time to File. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 10/18/2018) (anc) (Entered: 10/18/2018)
655 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)

10/23/2018 10/26/2018
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11/20/2018 11/20/2018 11/20/2018

656 LETTER addressed to Judge Analisa Torres from Gary W. Kubek dated October 23, 2018 re: Approval of Patrol Guide. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 10/23/2018)
657 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)
658 LETTER MOTION for Extension of Time To Submit Proposal for Court−Ordered Electronic Documentation and Level 1 BWC Pilots addressed to Judge Analisa Torres from Darius Charney dated November 2, 2018. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 11/02/2018)
659 ORDER granting 658 Letter Motion for Extension of Time. GRANTED. (Signed by Judge Analisa Torres on 11/2/2018) (cf) (Entered: 11/02/2018)
660 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)
661 LETTER addressed to Judge Analisa Torres from Darius Charney dated November 9, 2018 re: Monitor's Final Recommendation re the Court−Ordered Level 1& 2 Documentation and Level 1 Body Camera Pilots. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 11/09/2018)
662 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 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)
663 LETTER addressed to Judge Analisa Torres from Jonathan C. Moore dated November 20, 2018 re: Seeking Clarification re Court's November 20, 2018 Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Droubi, Luna) (Entered: 11/20/2018)
664 MOTION for Suzanna Publicker Mettham to Withdraw as Attorney . Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), The City of New York.(Mettham, Suzanna) (Entered: 11/20/2018)
665 DECLARATION of Suzanna Publicker Mettham in Support re: 664 MOTION for Suzanna Publicker Mettham to Withdraw as Attorney .. Document filed by Michael Bloomberg(individually), Michael Bloomberg(in his official capacity), Raymond Kelly(New York City Police, in his official capacity), Raymond Kelly(individually), The City of New York. (Attachments: # 1 Text of Proposed Order)(Mettham,

11/21/2018 11/21/2018
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01/07/2019 01/07/2019 01/11/2019

Suzanna) (Entered: 11/20/2018)
666 MEMO ENDORSEMENT on re: 663 Letter filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. ENDORSEMENT: DENIED. Plaintiffs shall have an opportunity to comment on the proposal once it has been submitted to the Court for review. (Signed by Judge Analisa Torres on 11/21/2018) (cf) (Entered: 11/21/2018)
667 ORDER granting 664 Motion to Withdraw as Attorney. IT IS HEREBY ORDERED that attorney Suzanna Publicker Mettham is granted leave to withdraw as counsel for defendants; IT IS FURTHER ORDERED that the Clerk of Court shall remove Ms. Mettham from the list of counsel of record for defendants in this case. (As further set forth in this Order.) Attorney Suzanna Publicker Mettham terminated (Signed by Judge Analisa Torres on 11/21/2018) (cf) (Entered: 11/21/2018)
668 LETTER MOTION for Leave to File comments on the Monitor's Proposal addressed to Judge Analisa Torres from Gary W. Kubek dated November 21, 2018. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 11/21/2018)
669 Objection re: 660 Letter and Monitor Final Recommendation re Level 1/2 Documentation and Level 1 Body Worn Camera Recording Pilots. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Charney, Darius) (Entered: 11/21/2018)
670 ORDER granting 668 Letter Motion for Leave to File Document. GRANTED. By December 3, 2018, Communities United for Police Reform shall file comments on the Monitor's proposal. (Signed by Judge Analisa Torres on 11/26/2018) (mro) (Entered: 11/26/2018)
671 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)
672 ORDER granting 671 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 11/30/2018) (cf) (Entered: 11/30/2018)
673 LETTER addressed to Judge Analisa Torres from Gary W. Kubek dated December 3, 2018 re: CPR Comments on the Monitor's Proposal. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 12/03/2018)
674 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)
675 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)
676 STATUS REPORT. Recommendation Regarding IAB Guide and Training on Profiling Investigations Document filed by Peter L. Zimroth.(Zimroth, Peter) (Entered: 12/20/2018)
677 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)
678 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)
679 ORDER granting 678 Letter Motion for Extension of Time to File. GRANTED. (Signed by Judge Analisa Torres on 1/7/2019) (cf) (Entered: 01/07/2019)
680 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,

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# 3 Appendix 2)(Zimroth, Peter) (Entered: 01/11/2019)
681 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)
682 LETTER addressed to Judge Analisa Torres from Darius Charney dated January 16, 2019 re: Plaintiffs' Response to Defendant City of New York's Plan for Implementation of Facilitator Recommendation # 1. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 01/16/2019)
684 MEMO ENDORSEMENT on re: 682 Letter, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. GRANTED. (Signed by Judge Analisa Torres on 1/16/2019) (cf) (Entered: 01/16/2019)
***DELETED DOCUMENT. Deleted document number 683 NOTICE OF VOLUNTARY DISMISSAL. The document was incorrectly filed in this case. (jwh) (Entered: 01/16/2019)
685 NOTICE OF APPEARANCE by Dominique Day on behalf of David Floyd. (Day, Dominique) (Entered: 01/24/2019)
686 LETTER addressed to Judge Analisa Torres from Dominique Day 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 David Floyd.(Day, Dominique) (Entered: 01/28/2019)
687 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)
688 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)
689 ORDER granting 688 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 1/30/2019) (cf) (Entered: 01/30/2019)
690 FIRST LETTER MOTION for Leave to File Letter Requesting Permission to Submit Reply To Cravath Letter Jan 29, 1019 addressed to Judge Analisa Torres from Jonathan C. Moore dated February 1, 2019. Document filed by Lalit Clarkson.(Moore, Jonathan) (Entered: 02/01/2019)
691 ORDER denying 690 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) (Main Document 691 replaced on 2/7/2019) (cf). (Entered: 02/07/2019)
692 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 7, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 02/07/2019)
693 ORDER granting 692 Letter Motion for Extension of Time to File Response/Reply. Granted. So Ordered. (Signed by Judge Analisa Torres on 2/7/2019) (js) Modified on 7/10/2019 (js). (Entered: 02/08/2019)

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694 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Jenn Rolnick Borchetta to Withdraw as Attorney for Plaintiffs. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Declaration in Support of Motion, # 2 Proposed Order)(Borchetta, Jennifer) Modified on 3/11/2019 (db). (Entered: 02/20/2019)
695 ORDER granting 694 Motion to Withdraw as Attorney. WHEREAS, on the motion and supporting papers of Jenn Rolnick Borchetta for leave to withdraw as counsel for the plaintiffs, IT IS HEREBY ORDERED that Jenn Rolnick Borchetta is granted leave to withdraw as counsel for the plaintiffs, and IT IS FURTHER ORDERED that the Clerk of the Court shall remove Jenn Rolnick Borchetta from the list of counsel for the plaintiffs in this action. Attorney Jennifer Rolnick Borchetta terminated (Signed by Judge Analisa Torres on 2/20/2019) (cf) (Entered: 02/20/2019)
696 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)
697 ORDER granting 696 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)
698 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)
699 ORDER granting 698 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. GRANTED. SO ORDERED. (Responses due by 3/22/2019) (Signed by Judge Analisa Torres on 3/8/2019) (jca) (Entered: 03/08/2019)
700 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)
701 ORDER granting 700 Letter Motion for Extension of Time to File Response/Reply re 700 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)
702 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 Analisa Torres from David Cooper dated April 12, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 04/12/2019)
703 ORDER granting 702 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)
704 PROPOSED STIPULATION AND ORDER. Document filed by The City of New York. (Cooper, David) (Entered: 05/03/2019)
705 STIPULATION OF SETTLEMENT AND ORDER FOR COUNSEL FEES, COSTS, AND EXPENSES TO CLASS COUNSEL FOR TIME AND EXPENSES INCURRED IN THIS MATTER FROM FEBRUARY 24, 2017 THROUGH MAY 31, 2018: The City agrees to pay attorneys' fees, totaling one−million, one−hundred eighty, five−hundred ninety−nine dollars and twenty−six cents ($1,180,599.26), and costs and expenses, totaling five−thousand five−hundred ninety−five dollars and

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twenty−eight cents ($5,595.28), to Class Counsel for time and expenses incurred in this matter, from February 24, 2017 through May 31, 2018. Class Counsel represent that they are authorized to receive payment on behalf of the Plaintiffs in full satisfaction of all claims for attorneys' fees, costs, and expenses in, arising from, or in connection with this action, from February 24, 2017 through May 31, 2018. Plaintiffs hereby agree that payment shall be made by check as follows: $600,916.89 to Beldock Levine & Hoffman LLP, $150,229.22 to Jonathan C. Moore, Esq, $357,783.43 to the Center for Constitutional Rights, and $77,265.00 to The Bronx Defenders, and accept said payment in full satisfaction of all claims for attorneys' fees, costs, and expenses, in, arising from, or in connection with this action, during that time period. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 5/6/2019) (cf) (Entered: 05/06/2019)
706 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)
707 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)
708 LETTER addressed to Judge Analisa Torres from Eric Hellerman dated June 5, 2019 re: Withdrawal as Attorney. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Hellerman, Eric) (Entered: 06/05/2019)
709 MEMO ENDORSEMENT on re: 708 Letter filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Eric Helle1man1s appearance from the docket and name from the ECF distribution list. Attorney Eric Hellerman terminated. (Signed by Judge Analisa Torres on 6/5/2019) (cf) (Entered: 06/05/2019)
710 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)
711 ORDER granting 710 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. GRANTED. SO ORDERED. Responses due by 8/2/2019 (Signed by Judge Analisa Torres on 6/7/2019) (jca) (Entered: 06/07/2019)
712 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)
713 LETTER addressed to Judge Analisa Torres from Darius Charney dated June 17, 2019 re: Monitor's 6/14/19 Request for Entry of a Confidentiality Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 06/17/2019)
714 LETTER MOTION to File Amicus Brief on behalf of the District Attorneys of New York City addressed to Judge Analisa Torres from Carey R. Dunne, Julian Bond O'Connor, Timothy J. Koller, Tali Farhadian Weinstein, Robert J. Masters, Steven M. Goldstein dated June 28, 2019. Document filed by District Attorney.(Mazer, Ross) (Entered: 06/28/2019)
715 ORDER granting 714 Letter Motion to File Amicus Brief. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 6/28/2019) (kv) (Entered: 06/28/2019)

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716 LETTER MOTION for Leave to File Excess Pages addressed to Judge Analisa Torres from Dominique Day dated June 28, 2019. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 06/28/2019)
717 Objection to Monitor's Proposed Pilot Confidentiality Order. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Charney, Darius) (Entered: 06/28/2019)
718 ORDER granting 716 Letter Motion for Leave to File Excess Pages. GRANTED. (Signed by Judge Analisa Torres on 7/1/2019) (cf) (Entered: 07/01/2019)
719 LETTER addressed to Judge Analisa Torres from Gary W. Kubek dated July 3, 2019 re: requesting that the Court permit CPR to file comments on the Monitor's proposed confidentiality order by July 19, 2019. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 07/03/2019)
720 MEMO ENDORSEMENT on re: 719 Letter, filed by Communities United for Police Reform. ENDORSEMENT: GRANTED. (Signed by Judge Analisa Torres on 7/8/2019) (cf) (Entered: 07/08/2019)
721 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)
722 ORDER granting 721 Letter Motion for Leave to File Document. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 7/9/2019) (rro) (Entered: 07/09/2019)
723 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)
724 BRIEF on behalf of the District Attorneys of New York City. Document filed by District Attorney.(Mazer, Ross) (Entered: 07/18/2019)
725 LETTER addressed to Judge Analisa Torres from Gary W. Kubek dated July 19, 2019 re: CPR Comments on Proposed Confidentiality Order. Document filed by Communities United for Police Reform.(Kubek, Gary) (Entered: 07/19/2019)
726 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)
727 ORDER granting 726 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 7/26/2019) (cf) (Entered: 07/26/2019)
728 NOTICE of relevant Second Circuit order in Brown v. Maxwell, No. 18−cv−2868 (vacating district court order and unsealing) re: 717 Objection (non−motion). Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit July 2, 2019 Second Circuit opinion in Brown v. Maxwell, No. 18−cv−2868)(Day, Dominique) (Entered: 07/29/2019)
729 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)
730 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)
731 LETTER MOTION for Extension of Time to File Response/Reply as to 729 Letter, addressed to Judge Analisa Torres from Darius Charney dated August 5, 2019. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht.(Charney, Darius) (Entered: 08/05/2019)

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732 ORDER: granting 731 Letter Motion for Extension of Time to File Response/Reply re 731 LETTER MOTION for Extension of Time to File Response/Reply as to 729 Letter, addressed to Judge Analisa Torres from Darius Charney dated August 5, 2019. GRANTED. SO ORDERED. Responses due by 9/27/2019. (Signed by Judge Analisa Torres on 8/05/2019) (ama) (Entered: 08/05/2019)
733 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)
734 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)
735 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)
736 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)
737 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION for Reconsideration re; 736 Protective Order . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Memorandum of Law in Support of Floyd Plaintiffs' Motion to Reconsider the Court's August 12, 2019 Order and Request for Oral Argument, # 2 Text of Proposed Order Proposed Order Granting Reconsideration of the August 12, 2019 Order)(Day, Dominique) Modified on 9/9/2019 (ldi). (Entered: 08/26/2019)
738 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)
739 LETTER MOTION for Extension of Time to File Response/Reply to Floyd Plaintiffs' First Motion for Reconsideration addressed to Judge Analisa Torres from David Cooper dated September 9, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 09/09/2019)
***NOTICE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney Dominique Day to RE−FILE Document 737 FIRST MOTION for Reconsideration re; 736 Protective Order . ERROR(S): Supporting documents must be filed separately, each receiving their own document number. Memorandum of Law in Support of Motion is found under the event list Replies, Opposition and Supporting Documents. (ldi) (Entered: 09/09/2019)
740 FIRST MOTION for Reconsideration of the Court's August 12, 2019 Order and Request for Oral Argument. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Text of Proposed Order in Support of Motion for Reconsideration and Request for Oral Argument)(Day, Dominique) (Entered: 09/09/2019)
741 FIRST MEMORANDUM OF LAW in Support re: 740 FIRST MOTION for Reconsideration of the Court's August 12, 2019 Order and Request for Oral Argument. . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Day, Dominique) (Entered: 09/09/2019)
742 ORDER granting 740 Motion for Reconsideration. GRANTED. By September 24, 2019, Defendants shall file their response to the Floyd Plaintiffs' Motion for Reconsideration. By October 1, 2019, the Floyd Plaintiffs shall file their reply, if any. (Signed by Judge Analisa Torres on 9/9/2019) (cf) (Entered: 09/09/2019)
Set/Reset Deadlines: Responses due by 9/24/2019 Replies due by 10/1/2019. (cf) (Entered: 09/09/2019)

09/24/2019 09/27/2019
10/01/2019
10/03/2019 10/10/2019 10/11/2019 10/11/2019 10/11/2019 10/25/2019
11/07/2019 11/08/2019 12/16/2019 12/20/2019

743 RESPONSE to Motion re: 740 FIRST MOTION for Reconsideration of the Court's August 12, 2019 Order and Request for Oral Argument. . Document filed by The City of New York. (Cooper, David) (Entered: 09/24/2019)
744 LETTER addressed to Judge Analisa Torres from Dominique Day dated 09/27/2019 re: Floyd Plaintiffs' Reply to NYPD Response to Plaintiffs' Concerns Regarding NYPD's Plan to Implement Facilitator's Recommendation No. 1. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit 2019.07.22 Plaintiffs' Comments on NYPD Draft RAILS Response)(Day, Dominique) (Entered: 09/27/2019)
745 REPLY MEMORANDUM OF LAW in Support re: 740 FIRST MOTION for Reconsideration of the Court's August 12, 2019 Order and Request for Oral Argument. . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Reply Declaration of Dominique Day in Further Support of Plaintiffs' Motion for Reconsideration and Request for Oral Argument)(Day, Dominique) (Entered: 10/01/2019)
NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge Sarah L. Cave, for Settlement. Magistrate Judge Henry B. Pitman no longer referred to the case. (ad) (Entered: 10/03/2019)
746 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)
747 LETTER MOTION for Leave to File a Supplement to the NYPD's Response Filed August 2, 2019 addressed to Judge Analisa Torres from David Cooper dated October 11, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 10/11/2019)
748 ORDER granting 747 Letter Motion for Leave to File Document. GRANTED. By November 8, 2019, the City shall submit the NYPD's supplement to its response. By November 22, 2019, Floyd Plaintiffs shall file their reply. (Signed by Judge Analisa Torres on 10/11/2019) (cf) (Entered: 10/11/2019)
Set/Reset Deadlines: Replies due by 11/22/2019. (cf) (Entered: 10/11/2019)
749 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 reconsideration of the Pilot Confidentiality Order is DENIED. (Signed by Judge Analisa Torres on 10/25/2019) (cf) (Entered: 10/25/2019)
750 LETTER MOTION for Extension of Time to File a Supplement to the NYPD's Response Filed August 2, 2019 addressed to Judge Analisa Torres from David Cooper dated November 7, 2019. Document filed by The City of New York.(Cooper, David) (Entered: 11/07/2019)
751 ORDER granting 750 Letter Motion for Extension of Time to File. GRANTED. By December 20, 2019, the City shall submit the NYPD's supplement to its response. By January 17, 2020, Floyd Plaintiffs shall file their reply. (Signed by Judge Analisa Torres on 11/8/2019) (cf) (Entered: 11/08/2019)
752 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)
753 LETTER addressed to Judge Analisa Torres from David Cooper dated December 20, 2019 re: Submission of Supplement to NYPD's Response Addressing Floyd 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 Floyd Plaintiffs' Reply Regarding Facilitator's Recommendation No. 1, # 2 Proposed Order Implementing Plan for an Early Intervention System)(Cooper, David) (Entered: 12/20/2019)

01/07/2020 01/17/2020
05/05/2020
05/26/2020
05/26/2020 05/26/2020 05/26/2020 05/26/2020 05/26/2020
05/26/2020 05/26/2020

754 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)
755 LETTER addressed to Judge Analisa Torres from Dominique Day dated January 17, 2020 re: Plaintiffs' Response to NYPD Supplement, Dkt. # 753−1, to its Planned Implementation of Facilitator's Recommendation No. 1. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Proposed Order on Implementation of Facilitator's Recommendation No. 1, # 2 Redline comparison of Plaintiffs' Proposed Order against original NYPD−proposed text)(Day, Dominique) (Entered: 01/17/2020)
756 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)
757 PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Supplement Memorandum of Law in Support of Plaintiffs' Motion for Emergency Relief, # 2 Affidavit Declaration of Dominique Day in Support of Plaintiffs' Motion for Emergency Relief, # 3 Exhibit Day Declaration, Ex 1, # 4 Exhibit Day Declaration, Ex 2, # 5 Exhibit Day Declaration, Ex 3, # 6 Exhibit Day Declaration, Ex 4, # 7 Exhibit Day Declaration, Ex 5, # 8 Exhibit Day Declaration, Ex. 6, # 9 Exhibit Day Declaration, Ex 7, # 10 Exhibit Day Declaration, Ex. 8).(Charney, Darius) Proposed Order to Show Cause to be reviewed by Clerk's Office staff. (Entered: 05/26/2020)
***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document No. 757 Proposed Order to Show Cause With Emergency Relief, was reviewed and approved as to form. (dt) (Entered: 05/26/2020)
758 NOTICE OF APPEARANCE by Omar Ahmed Farah on behalf of Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht..(Farah, Omar) (Entered: 05/26/2020)
759 PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht..(Charney, Darius) Proposed Order to Show Cause to be reviewed by Clerk's Office staff. (Entered: 05/26/2020)
760 MEMORANDUM OF LAW in Support re: 759 Proposed Order to Show Cause With Emergency Relief . Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht..(Charney, Darius) (Entered: 05/26/2020)
761 DECLARATION of Dominique Day in Support re: 759 Proposed Order to Show Cause With Emergency Relief. Document filed by Lalit Clarkson, Deon Dennis, David Floyd, David Ourlicht. (Attachments: # 1 Exhibit Day Declaration, Ex. 1, # 2 Exhibit Day Declaration, Ex. 2, # 3 Exhibit Day Declaration Ex. 3, # 4 Exhibit Day Declaration, Ex. 4, # 5 Exhibit Day Declaration, Ex. 5, # 6 Exhibit Day Declaration, Ex. 6, # 7 Exhibit Day Declaration, Ex. 7, # 8 Exhibit Day Declaration, Ex. 8).(Charney, Darius) (Entered: 05/26/2020)
***NOTICE TO COURT REGARDING PROPOSED ORDER TO SHOW CAUSE WITH EMERGENCY RELIEF. Document No. 759 Proposed Order to Show Cause With Emergency Relief was reviewed and approved as to form. (dt) (Entered: 05/26/2020)
762 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)

05/28/2020 05/28/2020 05/29/2020 06/01/2020
06/01/2020 06/02/2020

763 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)
764 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)
765 LETTER MOTION for Extension of Time to File Response/Reply as to 759 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)
766 ORDER granting 765 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. (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)
767 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)

 
 13-3123; 13-3088 In re Motion of District Judge - Ligon; Floyd et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand thirteen.

Present:

John M. Walker, Jr., José A. Cabranes, Barrington D. Parker,
Circuit Judges.

_____________________________________

In re Motion of District Judge
_____________________________________ _____________________________________

Jaenean Ligon, et al.,

Plaintiffs-Appellees,

v. City of New York, et al.,

Defendants-Appellants.

_____________________________________ _____________________________________

13-3123

David Floyd, et al.,

Plaintiffs-Appellees,

v. City of New York, et al.,

Defendants-Appellants.

_____________________________________

13-3088

Burt Neuborne, New York, NY, for Judge Shira A. Scheindlin.

PER CURIAM

These cases, motions of which were argued in tandem and decided on October 31,

2013, and which concern the so-called “stop-and-frisk” policies of the New York City

Police Department, have, quite apart from the underlying merits, raised a number of

unusual procedural issues. In a separate opinion published contemporaneously with this

one, we explain the basis of our prior, brief order reassigning these cases from Judge

Shira A. Scheindlin to a new district judge of the United States District Court for the

Southern District of New York, to be chosen randomly. In this opinion, we address the

unprecedented motion filed by Judge Scheindlin herself, through counsel, to appear and

seek reconsideration of our order of reassignment. The motion, submitted substantially in

the form of a brief in favor of reconsideration, presents the threshold question whether, in

the circumstances presented, a district judge may participate as a party, as an intervenor,

or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we

DENY Judge Scheindlin’s motion to appear in this Court in support of retaining authority

over these cases.

BACKGROUND1

These cases deal with the constitutionality of certain practices of the New York

City Police Department (“NYPD”). The practices—and these cases themselves—present

issues of prominent public concern and have attracted intense scrutiny in the media. On

August 12, 2013, following a nine-week trial in Floyd v. City of New York, Judge

1 In this section, we recite only the facts directly relevant to this opinion. A more complete history of these cases may be found in our separate opinion published today, addressing the merits of reassigning the cases to a new district judge.

2

Scheindlin held that the City of New York (the “City”) violated the Fourth and Fourteenth Amendments by acting with deliberate indifference towards the NYPD’s practice of unconstitutional stops and unconstitutional frisks and by adopting a policy of “indirect racial profiling” that targeted racially defined groups for “stops-and-frisks.”2 Judge Scheindlin also ordered an array of injunctive remedies, including but not limited to the appointment of a monitor, the institution of a program requiring certain officers to wear cameras on their persons, and the amendment of the forms used to document stopand-frisks.3
After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.4
On November 8, 2013, Judge Scheindlin moved in this court, through counsel, for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions
2 See Floyd v. City of New York, __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013).
3 See Floyd v. City of New York, __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013).
4 See Floyd v. City of New York, No. 13-3088, Dkt. 247; Ligon v. City of New York, No. 13-3123, Dkt. 174.
3

for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel’s sua sponte order of removal.”5 On November 9, 2013, Judge Scheindlin’s counsel, now styling himself as amicus curiae on her behalf, filed a letter urging us to vacate our order of reassignment “to terminate a dispute that is distracting attention from the underlying merits.”6
DISCUSSION We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one. Indeed, we note in the motion itself some inconsistency in its theory of Judge Scheindlin’s relationship to the proceedings in this Court. The motion requests leave for
5 Scheindlin Mot. for Leave to Appear re: Order of Removal, at 2. Attorney Burt Neuborne is the only person to have actually entered an appearance on Judge Scheindlin’s behalf. See Local Rule 12.3(b) (“An attorney, other than the initial counsel of record, who appears in a case in any capacity on behalf of a party or an amicus curiae must file the Notice of Appearance Form for Substitute, Additional, or Amicus Counsel at the time the attorney enters the case.”). We do observe, however, that, pursuant to Local Rule 29.1(a), we “ordinarily will deny leave to file an amicus brief when, by reason of a relationship between a judge assigned to hear the proceeding and the amicus curiae or its counsel, the filing of the brief might cause the recusal of the judge.” Mr. Neuborne labors under no such disability.
6 See Note 14, post, for the full text of this letter.
4

her lawyers “to appear either as counsel to the District Judge, or as amici curiae on her
behalf.”7 Additionally, the motion purports to seek relief “in the nature of an order under
Rule 21(b)(4) of the Federal Rules of Appellate Procedure.”8 This locution is notable
because Rule 21 governs “Writs of Mandamus and Prohibition, and Other Extraordinary
Writs,” and provides that the “trial-court judge may request permission to address the
petition [for mandamus] but may not do so unless invited or ordered to do so by the court
of appeals.”9
Rule 21, however, does not apply to these proceedings because there has been no
petition for a writ of mandamus or any other type of extraordinary writ in these cases.
The Supreme Court has long instructed that the writ of mandamus is “a ‘drastic and
7 Scheindlin Mot., at ¶ 46.
8 Id. at 2 (emphasis added). Judge Scheindlin asserts several other legal bases for her motion, none of which in our view supports, or even suggests, a district judge’s right to formally contest reassignment. In addition to Rule 21, her motion “is brought pursuant to Rules . . . 27, and 29 of the Federal Rules of Appellate Procedure; 28 U.S.C § 2106; 28 U.S.C. § 1651 (the All Writs Act); and the First and Fifth Amendments to the Constitution of the United States.” Scheindlin Mot. at 2. Rule 27 (governing “Motions”) and Rule 29 (governing “Brief of an Amicus Curiae”) are general provisions that do not provide a procedural predicate for her unprecedented motion. Similarly, Section 2106 of Title 28, entitled “Determination,” states that “[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” While this provision establishes what an appellate court may do, it does not speak to a district judge’s role in that process. The All Writs Act gives courts the authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Although we have recognized numerous injunctions and orders of a district court appropriately authorized under the All Writs Act, we are aware of no precedent that establishes a district judge’s right to join an ongoing proceeding by formally contesting an appellate court’s order of reassignment. Finally, the constitutional amendments on which she relies are also inapplicable. The freedom of speech protected by the First Amendment does not mean that there can be no limitations such as those contemplated under section 455(a), on what a federal judge may say, much less on where she can say it, especially as it relates to pending litigation. As discussed in our accompanying opinion, numerous courts of appeals have reassigned cases due to an appearance of partiality that was traceable to speech by a district judge. Similarly, the Due Process Clause of the Fifth Amendment is inapplicable in these circumstances, because reassignment of a case is not a legal injury to the district judge, and we have made no finding of judicial misconduct that a judge might have the right to contest.
9 Fed. R. App. P. 21(b)(4).
5

extraordinary’ remedy ‘reserved for really extraordinary causes.’”10 No writ of
mandamus is involved in this appeal: We have not issued an extraordinary writ to the
district judge, nor is there a petition for a writ directed to us. For this reason, the case
presented here is quite unlike those in which other district judges have appeared before this court pursuant to specific statutory authority.11 Outside of the context of a writ of
mandamus, it is procedurally improper for a District Judge to enter an appearance in an
appeal of her own decisions, whether as a party, intervenor, or amicus.
We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case.12 While a district judge may believe
that he or she has expended a great deal of effort and energy on a case, only to see it
reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment
allows the courts to ensure that cases are decided by judges without even an appearance
10 Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)); see also In re The City of New York, 607 F.3d 923, 932-33 (2d Cir. 2010) (enumerating requirements for the writ).
11 See Fed. R. App. P. 21; see, e.g., U.S. Sec. & Exch. Comm’n v. Citigroup Global Mkts. Inc., 673 F.3d 158, 169 (2d Cir. 2012) (appointing counsel to represent Judge Jed S. Rakoff in a mandamus proceeding); In re Austrian & German Holocaust Litig., 250 F.3d 156, 160 (2d Cir. 2001) (acknowledging that the Second Circuit properly invited Judge Shirley Kram to respond through counsel to mandamus petitions).
12 In somewhat similar circumstances, the then-Chief Judge of the Central District of California, Manuel L. Real, refused to reassign, pursuant to mandate of the Ninth Circuit, a case over which he had been presiding. Instead, he directed the parties to brief whether the Ninth Circuit had the power to reassign cases. See Brown v. Baden, 815 F.2d 575, 576 (9th Cir. 1987). The Ninth Circuit then issued a writ of mandamus requiring reassignment, explaining that “[t]here is no doubt as to our authority to order a case reassigned” and that “[i]n the scheme of the federal judicial system, the district court is required to follow and implement our decisions just as we are oath- and duty-bound to follow the decisions and mandates of the United States Supreme Court.” Id. at 576. Chief Judge Real then petitioned for a writ of certiorari to appeal the Ninth Circuit’s decision to the Supreme Court, which the Supreme Court denied without comment. See Real v. Yagman, 484 U.S. 963 (1987).
6

of partiality.13 A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.
To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.
Finally, we note that Judge Scheindlin’s counsel, now purporting to serve as amicus “to the district judge,” filed a supplemental letter on November 9, 2013, wherein he urges that we vacate parts of our order of October 31, 2013, “without prejudice,” which would “permit the parties to raise the issues” without “being forced to address them in the context of an unseemly dispute among judges” and in a way that would “terminate a dispute that is distracting attention from the underlying merits.”14 First, we
13 See 28 U.S.C. § 455(a); see also In re Murchison, 349 U.S. 133, 136 (1955) (“[T]o perform its high function in the best way justice must satisfy the appearance of justice.” (internal quotation marks omitted)); United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1966) (“[R]eassignment is advisable to preserve the appearance of justice.” (internal quotation marks omitted)) (abrogated on other grounds).
14 The letter in full reads as follows: Burt Neuborne
40 Washington Square South New York, New York 10012
212 998-6172 burt.neuborne@nyu.edu
November 8, 2013
7

cannot subscribe to the view that a decision of this Court—made pursuant to a statute
passed by Congress—should be vacated because a non-party (even a judge) claiming to
be affected by that order believes that the issue has become controversial or “distracting.”
Second, as we observe in our accompanying opinion, reassignment is an ordinary
tool used by our judicial system to maintain and promote the appearance of impartiality
Hon. John M. Walker, Jr. Hon. José Cabranes Hon. Barrington D. Parker, Jr. United States Court of Appeals
for the Second Circuit Thurgood Marshall United States Courthouse Foley Square New York, New York 10007
Re: In re Order of Removal of District Judge Ligon v. City of New York, 13-3123 (corrected)
Floyd v. City of New York, 13-3088
Your Honors:
We write as amici curiae on behalf of the District Judge herein, with her approval and consent. We believe, and the District Judge concurs, that it is in the best interests of all concerned to terminate a dispute that is distracting attention from the underlying merits, while preserving the rights of the parties to raise the issue in the ordinary course.
Accordingly, we urge the panel to withdraw, without prejudice, so much of its order herein, dated October 31, 2013, as sua sponte found that the District Court’s actions had “run afoul” of the Code of Conduct for United States Judges, and directed her removal as presiding judge in Ligon v. City of New York, 13-3123 (corrected), and Floyd v. City of New York, 13-3088. Such a course of conduct would permit the parties to raise the issues at an appropriate point in the proceedings without being forced to address them in the context of an unseemly dispute among judges.
Respectfully,
Burt Neuborne (Counsel of Record)
Norman Dorsen Arthur R. Miller
Judith Resnik Frederick A.O. Schwarz Amici Counsel to the District Judge
cc: all interested counsel
8

across the federal courts.15 We recognize that it is frustrating to work extensively on a case that is later reassigned, and that reassignment, even if only based on an appearance of partiality, is a displeasing occurrence for any district judge, particularly for a longserving and distinguished one such as Judge Scheindlin, but we are confident that these matters will be ably handled, without any arguable appearance of partiality, by another of her capable colleagues.
CONCLUSION For the foregoing reasons, we DENY Judge Scheindlin’s motion to appear in this Court in support of retaining authority over these cases.
15 See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v. Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d Cir. 2003); United States v. Padilla, 186 F.3d 136, 143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the appearance of justice would best be preserved by reassignment.”); United States v. Londono, 100 F.3d at 242 (“To reassign a case on remand, we need only find that the facts might reasonably cause an objective observer to question the judge’s impartiality, or absent proof of personal bias requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.” (alterations, citations, and internal quotation marks omitted)); see also In Re Reassignment of Cases, Nos. 13-3123, 13-3088, at 13 nn. 29-30 (2d Cir. Nov. 13, 2013).
9

 
 13-3123; 13-3088 In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand thirteen.

Present: John M. Walker, Jr., José A. Cabranes, Barrington D. Parker, Circuit Judges.
_____________________________________

In re Reassignment of Cases _____________________________________

Jaenean Ligon, et al.,

Plaintiffs-Appellees,

v.

City of New York, et al.,

Defendants-Appellants.

_____________________________________

13-3123

David Floyd, et al.,

Plaintiffs-Appellees,

v.

City of New York, et al.,

Defendants-Appellants.

____________________________________

13-3088

PER CURIAM These cases, motions of which were argued in tandem, deal with an issue of great
significance: the constitutional boundaries of practices by the New York City Police Department (“NYPD”) that subject citizens to being stopped and frisked. On August 12, 2013, Judge Shira A. Scheindlin, a long-serving and distinguished jurist of the United States District Court for the Southern District of New York, held that the City of New York (“the City”) had violated the plaintiffs’ Fourth and Fourteenth Amendment rights, and ordered the City to engage in a variety of remedial measures and activities.
On August 27, 2013, the City moved in the district court to stay those remedies, pending an appeal on the merits of the district court’s decision. Judge Scheindlin denied the motions. On September 23, 2013, the City moved in this Court to stay the imposition of the district court’s remedies. By order dated October 31, 2013, we both granted that stay and, because the appearance of impartiality had been compromised by certain statements made by Judge Scheindlin during proceedings in the district court and in media interviews, we reassigned the cases to a different district judge, to be chosen randomly.1 We now explain the basis for that order, which is superseded by this opinion.2
BACKGROUND We emphasize that the merits of this litigation are not before us and are not at issue here. Accordingly, we neither express nor intimate any views on the merits of the underlying actions.
1 See Appendix A. 2 On November 8, 2013, Judge Scheindlin moved in this court through counsel for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel’s sua sponte order of removal.” We address this motion by the district judge to appear in support of retaining authority over these cases in a separate opinion published contemporaneously with this one.
2

This opinion deals only with our procedural decision to direct the reassignment of the cases and turns on how the cases came before Judge Scheindlin and the media interviews she gave during the pendency of these lawsuits.
For the sake of clarity, we recite the procedural history that has led us to this point. In January 2008, the plaintiffs in Floyd filed a class action alleging that the NYPD violated the Fourth and Fourteenth Amendments through a pattern and practice of stopping and frisking without reasonable suspicion. In March 2012, the plaintiffs in Ligon filed a class action alleging that the NYPD violated the Fourth Amendment by engaging in a practice of unlawfully stopping, frisking, and arresting persons for trespass because of their presence in or near buildings enrolled by their landlords in an NYPD crime prevention program known as the Trespass Affidavit Program (“TAP”).
When filing, the plaintiffs in Floyd marked the case on the appropriate form as related to Daniels v. City of New York, No. 99-cv-1695, an earlier case over which Judge Scheindlin presided. Likewise, the plaintiffs in Ligon marked that case as related to Davis v. City of New York, No. 10-cv-699, over which Judge Scheindlin was also presiding.3 Because Daniels, although terminated a month earlier, and Davis had been assigned to Judge Scheindlin, Floyd and Ligon were forwarded to her, pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges,4 and she accepted them both as related cases.
3 Prior to Ligon being filed, Judge Scheindlin had accepted Davis as related to Floyd, so in that sense, Ligon also descends directly from Daniels via Floyd and Davis.
4 In relevant part, Rule 13 provides: (c) Assignment of cases and proceedings that are designated as related.
(i) Disclosure of contention of relatedness.
3

In a decision dated January 8, 2013, and amended on February 14, 2013, Judge
Scheindlin granted the Ligon plaintiffs’ motion for a preliminary injunction, holding that they
had “shown a clear likelihood of proving that defendants have displayed deliberate indifference
toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP
buildings in the Bronx.”5 In a separate opinion, Judge Scheindlin granted the defendants’ motion
to stay any remedies until after the “issuance of a final decision regarding the appropriate scope
of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any)
in Floyd.”6
On August 12, 2013, following a nine-week trial in Floyd, Judge Scheindlin held that the
City of New York violated the plaintiffs’ rights under the Fourth Amendment and the Equal
Protection Clause of the Fourteenth Amendment.7 The same day, Judge Scheindlin issued an
opinion setting forth remedial measures in both Floyd and Ligon8 intended to bring the NYPD’s
use of stop-and-frisk into compliance with the Fourth and Fourteenth Amendments.9
When a civil case is filed or removed or a bankruptcy appeal or motion to withdraw the reference of an adversary proceeding from the bankruptcy court is filed, the person filing or removing shall disclose on form JSC44C any contention of relatedness. A copy of that form shall be served with the complaint, notice of removal, appeal or motion. (ii) Civil cases that are designated as related.
A case designated as related shall be forwarded to the judge before whom the earlier-filed case is then pending who has the sole discretion to accept or reject the case. Cases rejected by the judge as not related shall be assigned by random selection. 5 Ligon et al. v. City of New York et al., 925 F. Supp. 2d 478, 485 (S.D.N.Y. 2013). 6 Ligon et al. v. City of New York et al., Nos. 12-cv-2274, 08-cv-1034, 2013 WL 227654, at *4 (S.D.N.Y. Jan. 22, 2013). 7 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013). 8 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013). 9 Id. at *13.
4

On August 16, 2013, the defendants in both cases filed notices of appeal in this court. On August 27, 2013, the City of New York moved in the district court to stay the remedies in Floyd and Ligon, pending the outcome of the appeals process. On September 17, 2013, Judge Scheindlin denied the City’s stay motions. On September 23, 2013, the City moved in this court to stay the district court’s August 12, 2013 remedies order.
Following oral argument, this panel, on October 31, 2013, stayed, “the District Court’s January 8, 2013 ‘Opinion and Order,’ as well as the August 12, 2013 ‘Liability Opinion’ and ‘Remedies Opinion,’ each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants.” This panel also concluded “that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.”10 We now explain in greater detail the basis for our decision to reassign the cases.
DISCUSSION Title 28, United States Code, section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This statute embodies the principle that “to perform its high function in the best way justice must satisfy the appearance of justice.”11
10 See Appendix A, at 3. 11 In re Murchison, 349 U.S. 133, 136 (1955) (internal quotation marks omitted).
5

The goal of section 455(a) is to avoid not only partiality but also the appearance of partiality.12 The section does so by establishing an “objective standard ‘designed to promote public confidence in the impartiality of the judicial process.’”13 The rule functions as a critical internal check to ensure the just operation of the judiciary. Our Court, sitting en banc, has stated that there exists “unusual circumstances where both for the judge’s sake and the appearance of justice, an assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.”14 And as other circuits have correctly noted, “‘if the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal.’”15
We emphasize at the outset that we make no findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin. Following our review of the record, however, we conclude that her conduct while on the bench, which appears to have resulted in these lawsuits being filed and directed to her, in conjunction with her statements to the media and the resulting stories published while a decision on the merits was pending and while public interest in the outcome of the litigation was high, might cause a reasonable observer to question her impartiality. For this reason, her disqualification is required by section 455(a).
12 See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). 13 SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861 F.2d 1307, 1313 (2d Cir. 1988) (quoting H.R. Rep. No. 1453, reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55). 14 United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc) (internal quotation marks and citations omitted). 15 In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001) (quoting Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995)); see also United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993).
6

A.
The appearance of partiality stems in the first instance from comments made by Judge
Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a
case that had yet to be filed, and as seeking to have that case filed and to preside over it after it
was filed. These comments were made in the earlier case of Daniels v. City of New York, No.
99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to
establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s
supervisory authority under the settlement agreement was set to expire, she heard argument on a motion brought by the Daniels plaintiffs to extend the settlement period.16 The transcript of the
hearing indicates that the City had substantially complied with the relief required by the
settlement and that the plaintiffs were seeking information from the City beyond that required to
be furnished by the settlement agreement.
Observing that the settlement agreement did not entitle the plaintiffs to the relief they
sought, Judge Scheindlin counseled:
THE COURT: [. . .] why don’t you file a lawsuit
Mr. COSTELLO: We did, we are here.
THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.
How could it not be related to this whole long seven or eight years we have lived together in this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn’t mean if you have a timely lawsuit -- you seem to have compiled interesting arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she did, that’s why we didn’t do something, because we didn’t want them to write this
16 See Appendix B (transcript of hearing).
7

letter, she -- let’s just say she hasn’t substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling [sic] me about a stipulation of settlement, why don’t you craft a lawsuit?
(TR 10-11) (emphasis added). She returned to the idea of bringing a suit alleging that the City
had violated their racial profiling policies and suggested a basis for the suit:
THE COURT: what I am trying to say - - I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply - MR. MOORE: $350 THE COURT: I knew I had it wrong. The [C]ity violates its own written policy, the City has a policy that violates -- they have violated their policy, here is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely.
(TR 14, 15) (emphasis added). And again:
THE COURT: I don’t understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn’t, that Raffo applies or it doesn’t that the court has the power to extend the supervision, that we want our immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right? MR. GROSSMAN: Yes, your Honor. THE COURT: If you think they are violating their written policy, sue them.
(TR 15) (emphasis added).
Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would
successfully obtain relevant documents produced by the government:
THE COURT: . . . There is enough in the public record to craft the suit.
And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential.
8

(TR 18) (emphasis added). After the plaintiffs indicated their willingness to bring the new suit,
she repeated her earlier suggestion that the cases were related and indicated her willingness to
keep the newly filed case:
MR. MOORE: To the extent that some of the materials have already been made public. THE COURT: what’s public is public, -- If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren’t acting in good faith. If I can get the Rand study on the internet, it is public -MR. MOORE: you can go to the NYPD website, your Honor. THE COURT: There you go, that’s public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you.
(TR 42) (emphasis added).
We believe that a reasonable observer viewing this colloquy would conclude that the
appearance of impartiality had been compromised. We do not mean to suggest that a district
judge can never engage in a colloquy with a party during which the judge advises the party of its
legal or procedural options. However, we think, particularly in combination with the public
statements described below, that a reasonable observer could question the impartiality of the
judge where the judge described a certain claim that differed from the one at issue in the case
before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim
could be viable and would likely entitle the plaintiffs to documents they sought, and advised the
party to designate it as a related case so that the case would be assigned to her.17
17 The designation by parties, and acceptance by district judges, of cases as related to other pending matters pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges, is a routine practice that promotes judicial efficiency and economy. Our decision in this opinion should not be construed as casting doubt on the proper designation and acceptance of cases as “related” in the normal course—that is, when a district judge does not invite the filing of a suit and encourage its direction to their Court. We also note that, for civil matters, the Rule explicitly anticipates cases being marked as related to “earlier-filed case[s] . . . then pending,” see Rule 13(c), which is “designed to reduce litigants’ costs by informally consolidating proceedings in related cases,” Chase Manhattan
9

B.
This appearance of partiality by Judge Scheindlin at the Daniels hearing was exacerbated
as a result of interviews she gave to the news media during the course of the Floyd litigation.
Cases involving public comment by a presiding judge, other than statements in open court, are
infrequent. As the First Circuit has remarked, “[j]udges are generally loath to discuss pending
proceedings with the media.”18 Of course, not every media comment made by a judge is
necessarily grounds for recusal.19 We note that Judge Scheindlin did not specifically mention the
Floyd or Ligon cases in her media interviews. However, a judge’s statements to the media may
nevertheless undermine the judge’s appearance of impartiality with respect to a pending
proceeding, even if the judge refrains from specifically identifying that proceeding in his remarks
to the media. Because context is always critical, the relevant question at all times remains
whether, under the circumstances taken as a whole, a judge’s impartiality may reasonably be
called into question.20 Because there is no scienter requirement in section 455,21 the test is not
Bank, N.A. v. Celotex Corp., 56 F.3d 343, 347 (2d Cir. 1995). Here, at the time Floyd was filed in January 2008, Daniels, to which it was accepted as “related,” was closed.
Judge Scheindlin’s motion, the subject of the separate opinion we file today, contends that the “District Court’s recognition that judicial economy would be served by the invocation of the related case doctrine codified in Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy.” To be sure, both Local Rule 13 dealing with related cases in the district court, and the practice in this court by which a motion panel may choose to hear the appeal on the merits, are designed to conserve judicial resources. However, in the court of appeals, because the case is the same case and not just a related case, and no litigant is involved with the decision, there can be no forum-shopping.
In any event, the gravamen of why reassignment of this case is necessary is not simply the use of Local Rule 13. It is the appearance of partiality that was created by Judge Scheindlin’s conduct throughout the December 21, 2007 hearing in suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case, as well as the media interviews she gave during the Floyd proceedings.
18 In re Boston’s Children First, 244 F.3d at 169. 19 See, e.g., United States v. Fortier, 242 F.3d 1224, 1229-30 (10th Cir. 2001) (superseded by statute on other grounds); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991). 20 See United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).
10

how a judge intended his remarks to be understood, but whether, as a result of the interviews or
other extra-judicial statements, the appearance of impartiality might reasonably be questioned.
In late May 2013, at the conclusion of the evidence in Floyd, when public interest from
reporting on that trial was high, and months before she had produced a decision, Judge
Scheindlin made herself available for interviews by the Associated Press, The New Yorker, and the New York Law Journal.22 The “lede” of the AP article dated May 18, 2013, read “[t]he
federal judge presiding over civil rights challenges to the stop-and-frisk practices of the New
York Police Department has no doubt where she stands with the government. ‘I know I’m not
their favorite judge,’ U.S. District Judge Shira A. Scheindlin said during an Associated Press
interview Friday.” The lengthy profile of Judge Scheindlin in The New Yorker, for which she
agreed to be interviewed, was titled, “Rights and Wrongs: A Judge Takes on Stop-and-Frisk.”
The writer, implying that Judge Scheindlin was aligned with the plaintiffs, wrote,
[t]he primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade. In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with the Democratic candidates united in their opposition to the stop-and-frisk policies of the Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite the rules of engagement between the city’s police and its people.
While nothing prohibits a judge from giving an interview to the media, and while one
who gives an interview cannot predict with certainty what the writer will say, judges who
affiliate themselves with news stories by participating in interviews run the risk that the resulting
21 See Liljeberg, 486 U.S. at 859. 22 Jeffrey Toobin, Rights and Wrongs: A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013 (attached hereto as Appendix C); Larry Neumeister, NY “Frisk” Judge Calles Criticism “Below-the-Belt”, The Associated Press, May 19, 2013 (attached hereto as Appendix D); Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 20, 2013 (attached hereto as Appendix E).
11

stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”
Further, in those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality. As the First Circuit put it, “the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.”23
C. In our previous order, we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 372, et seq. No such finding is required under section 455,24 and we do not find that there was any judicial misconduct or violation of any ethical duty. “To reassign a case on remand, we need only find that the facts might reasonably cause an objective observer to question the judge’s impartiality, or absent proof of personal bias
23 In re Boston’s Children First, 244 F.3d at 170; see also United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media.”).
24 See In re Boston’s Children First, 244 F.3d at 168.
12

requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.”25
Even where there is reason to believe that a district judge would fairly conduct further
proceedings on remand, “in determining whether to reassign a case we consider not only whether
a judge could be expected to have difficulty putting aside his previously expressed views, but
also whether reassignment is advisable to preserve the appearance of justice.”26 Such a decision
“does not imply any personal criticism of the trial judge,”27 and none is intended here. Indeed,
for example, in United States v. Quattrone, we ordered reassignment because “portions of the
transcript raise[d] the concern that certain comments could be viewed as rising beyond mere
impatience or annoyance” even though there was no “evidence that the trial judge made any
inappropriate statements leading us to seriously doubt his impartiality.”28
Reassigning a case to a different district judge, while not an everyday occurrence, is not
unusual in this Circuit.29 Nor is reassigning a case to a different district judge an unusual
occurrence in our sister Circuits.30 Indeed, as noted in our accompanying opinion, reassignment
25 United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (internal quotation marks and citations omitted) (abrogated on other grounds).
26 United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998) (internal quotation marks omitted). 27 United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006) (internal quotation marks omitted). 28 Id. 29 See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v. Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d Cir. 2003); Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146 (2d Cir. 2000); United States v. Padilla, 186 F.3d 136, 143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the appearance of justice would best be preserved by reassignment.”). Additionally, it bears noting that in none of these cases was the affected district judge afforded “an opportunity to be heard” prior to the disqualification action of the Court of Appeals, much less did the affected district judge ever seek to participate in the appellate proceedings involving the district judge’s decisions. 30 See, e.g., United States v. Clawson, 650 F.3d 530, 539 (4th Cir. 2011); John v. Goetz, 626 F.3d 356, 36365 (6th Cir. 2010); In re United States, 614 F.3d 661, 666 (7th Cir. 2010) (“No reasonable person would fail to perceive a significant risk that the judge’s rulings in the case might be influenced by his unreasonable fury toward
13

is simply a mechanism that allows the courts to ensure that cases are decided by judges without
even an appearance of partiality.
Although the possible recusal of Judge Scheindlin was not raised either by the parties or
the judge herself in the district court or this court, there is no barrier to our reassigning the cases
nostra sponte. Indeed, in numerous cases in recent years, we have found it appropriate to
reassign a case without the issue having been raised or briefed by the parties or considered by the district judge.31 To be sure, in the usual case, “a federal appellate court does not consider an issue not passed upon below.”32 But as Justice Black, writing for the unanimous Supreme Court,
recognized more than seventy years ago, “[t]here may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate court, where injustice might otherwise
result, to consider questions of law which were neither pressed nor passed upon by the court . . . below.”33 More recently, Justice Souter, writing for the Court, reaffirmed that when an appellate
court may consider a legal issue not raised below is a “matter ‘left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases,’”34 and we recently
the prosecutors.”); Microsoft Corp., 253 F.3d at 107-117; In re Boston’s Children First, 244 F.3d at 164; United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) (stating that courts of appeals in the first instance are empowered to reassign cases where, under 28 U.S.C. § 455(a), the district judge’s “impartiality might reasonable be questioned”); United States v. Cooley, 1 F.3d 985, 992-96 (10th Cir. 1993); In re School Asbestos Litig., 977 F.2d 764, 798 (3d Cir. 1992); United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (“We have the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit.”); Brown v. Baden, 815 F.2d 575, 575 (9th Cir. 1987); Potashnick v. Port City Const. Co., 609 F.2d 1101, 1120 (5th Cir. 1980).
31 See, e.g., Steppello, 664 F.3d at 367; Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999); Londono, 100 F.3d at 242 (abrogated by statute on other grounds); Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir. 1988); see also United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006) (noting that in some reassignment cases, the reassignment has been “initiated sua sponte by the court on the defendants behalf”).
32 Singleton v. Wulff, 428 U.S. 106, 121 (1976). 33 Hormel v. Helvering, 312 U.S. 552, 557 (1941). 34 Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (quoting Singleton, 428 U.S. at 121).
14

reaffirmed the same principle.35 Given the importance of maintaining the judiciary’s appearance of impartiality, we think that it is well within our discretion to order reassignment in these cases.
CONCLUSION This opinion explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”36
35 See United States v. Sum of $185,336.07 United States Currency Seized From Citizen’s Bank Account L7N01967, 731 F.3d 189, 195 n.6 (2d Cir. 2013).
36 Londono, 100 F.3d at 242.
15

APPENDIX A

13-3123; 13-3088 Ligon, et al. v. City of New York, et al.; Floyd, et al. v. City of New York, et al.

United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 31st day of October, two thousand thirteen.

Present:

John M. Walker, Jr., José A. Cabranes, Barrington D. Parker,
Circuit Judges.

_____________________________________ Jaenean Ligon, et al.,
Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________ _____________________________________

David Floyd, et al.,

Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________

13-3123 (Corrected)
13-3088

Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction (“Remedies Opinion”).
It is hereby ORDERED that the District Court’s January 8, 2013 “Opinion and Order,” as well as the August 12, 2013 “Liability Opinion” and “Remedies Opinion,” each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals.
The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:
Defendants shall perfect their appeals by January 24, 2014.
Plaintiffs shall file by February 28, 2014.
Defendants shall reply by March 14, 2014.
Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course.
The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media
1 In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case
2

interviews and public statements purporting to respond publicly to criticism of the District Court.2
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.
The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.
In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
2 See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.
3

APPENDIX B

1

1 UNITED

COURT

1

UTHERN

2

--- --- -x

2

3

NI

3

4

PI nt

4

5

v.

5

6

E

F

6

7

nd

7

8 ----

--- -- -x

8

N

rk, N

9

m r21,2007

9

4:50 p.m.

10

10

1 1

1 1

. SHI

HEIN UN,

1 2

12

Judge

1 3

1 3

14

1 5

16

1 7

18

19

20

21

22

23

24

25

UTH

ISTRI

,P. .

12) 5 03

2

IPd

1

(In open urt)

2

MS.

MAN- ur nor, m I ju bring one issue

3

ur ntion?

4

THE COURT: Not until I h you.

5

ood rnoon, Mr. Moo

6

MR.M RE: ood rn n, Judge.

7

THE

rn n, Ms

110.

8

MS.

rn n, ur Honor.

9

THE URT: Mr. Franklin.

10

And who is e

n in

n all

1 1

S.

nor, this is

g , he

12 is a

uate from our offi

1 3

nd g

rn n, s. ssm

d Ms.

14

nah

1 5

IS I

16

MS.

MAN: The m

1 7

nfidential m ri during our

me

nce

me

n

d Iju

18

bring

urt's ntion! in th

lieve the

19

urtroom might h

bri moment. r

20

pi

un

rai th e issues

21 while we h

her

22

I think we a

m. n.

23

THE U

who

e

j th are

24 he on the criminal e. Who are the other

25

I

We with the

r for n tutional

UTHERN DISTRI

,P. .

12) 5 0300

3

Pdan

1 Rights.

2

THE U

u h rn

3

val E: I am an rn

4

I am a paralegal.

5

THE URT: Th

- I understand ur point.

6

n I can, I'd be h

g the criminal case out the

7 u m.

n

8

me g

on this m r Daniels versus

9 The ity of New York.

10

Ih aI

m r 14,

11 2 7. nd th

s king anum r thi s. t I sup se

12 on the m imm iate basis th

king some kind of an

13 o er

nding the urt su rvision no less n a

14 months, for the sole purpose of letting them fully bri the

15 reque for reli in this I r. So the is no rush.

16

th

s ng, the

have no rush and

1 7

r is

the d

nsent a

r-th

18 month adjournment minimally, ju

eve

can these

19 issues ful bri

and on the Ie. And if the urt denies

20 I the Ii

21

But rather th h

rk it out in eight or nine

22 d

u s ng JU

g

me kind

23 ju

nsion or som mg.

24

n't go i the re

the Ii th seek,

25 mo in rms

zing the I rs, b the large

SOUTH N ISTRI

1 5 0300

4

IPdan

1 overall summary is th the h

n a I k of mpliance in

2

ous

th the stipul

leme. d

e

3

urt should modify the pul

lement order,

4 spe fic performan of rtain

the stipulation of

5 settlement.

6

And then th

k r the third point

7 is

I ink u

,whe th

e

8 should a modifi

ive order

some of

9 the

nfidential.

10

ne

s

will have use some

11 the

rm on

rmine wh

do with

12 the motion. But, s ndly, they a s ng some of it h

n

13 disci

e d ndant in

her

d it is

14 al

much discuss ! and u should withd the

design n

15 if it h

n publicly disci ed.

1 6

Then I ived a I r in sponse d

m r

17 19 b

Ily

in cham

m r 20,

1 8

a rei

d on t

1 9

e long and short of it, I h nit h a chan

20

I But I did have the

21 opportunity

If

long, I guess,

22 the es

't II h

the is a

23 I

single s

es,

them.

24

And e quick summ

n

25 pi ntiffs want p nd that the s ement

SOUTHERN OISTRI

I P.

12) 5-0300

5

IPdan

1 things it d snit

the all

b h

nit breaches

2

I,

d

ui e d nda

3

h.

4

a number times in the I r,

5 plainti may h wanted the stipulation of settlement s

6 these things, but it d nit. And the

in nse d

7 d i s eme

ons.

if th didn't g

8 th

mplain about it now.

9

nd so the d ndant opposes all the reque for

10

ifi on the stipul on, op s

1 1

an I op ses

12 the

line, and opposes the modifi on the

13 p

14

id, it would nonetheless helpful to

15 the urt and all the parties, in the nine d remaining

16

n now and the 31

m r,

- deny this in an

17 o erly hion

nding the d

18

If the d ndant refuses

is

19 will

bri

for the ne nine d

20 th show

s nd ur hri

S,

21 th

u.

22

h the

r

ume I but I

23 n

9 enough a

figu it out. And if u

24

do

much I through hri mas and N

25

Who is

ng the I

SOUTHERN ISTRI

12) 805 0300

6

IPdan

1

MR.M

. Ms.

110.

2

E

II, Ms.

110 I think u h

3 ught the burden m

ument the u ent

4

a ply I r. I think you n to an r all the points

5 th Ms. rossman made in her very thorough submission point

6

i nt.

her i

u noti

closely

7 from the merits, so to speak. And th try not to II me

8

whether or not, u kn the

9 discrimin ion, or whether

on.

10

t

kp

u

t

k

is

11 or isn't in the ipulation. Wh rights u have or don't

12 h in the ipul on.

1 3

d I unde

th is a ntract th

14

ng, no m r how bad things may

s not part

15 this

ui

16

other I uit brin

1 7

Butth

some interesting allian on the

18

iation The ty New rk, whe th

19

denying any further Ii

d th

20

P

ent r them. d it did

21

m

r them.

22

urt -- n there is no

23 gu

e s lement d ume ,

24 th

nvincing demon ion

25

nt discrimination uld not m n th the d nd

SOUTHERN DI CT REPORTERS, P. .

12) 805 0300

7

Pd

1

violating the provisions of the settlement

ment.

2

rt is

Iy the situ on I m

in,

3

rt of sing problems th a

ry

4

sting but not part of this

ement

ment.

5 think you n to g me a ply bri if you wish, orally.

6

MS.

s, your Honor. I try my be

7

ne i th the c

s

j u the

8 th there no in substantial m ies in the nsent

9 dec

10

THE U

the nsent d ree, I think

11 some

h

hibit

12

MS. ROSSMAN: s, your Honor.

1 3

THE

going h

show e, do

14 II

ree, sh me the langu e.

1 5

: In s ion l! your Honor, in s on

16 1.

1 7

me ju back up one s nd, ur Honor. I think

18 the

! and this is

of what we would Ii

19 bri

urt, there are two

th the u uld

20

n nt dec and also grant our

21

Ion. ne is within the u

Ie

22

d under R

ifi on.

23

r

24

ing, the non-

d s

rman

25

mpt p i n g th would suit, flow m th

which

UTHERN DISTRI REPORTE ,P..

12) 805 0300

8

IPdan

1

solution mechanism in the

ment itself, if

2

da under

, a much mo flexible

3

s into

unt the public i re and the

4 change in circum

s. The ci doesn't address th

all.

5

THE URT: No, th n

Ruffo, I donlt think

6 th did. I

it rly quickly.

7

MS.

: Under the d in R

think

8 th the modifi on would appropri

9

Putting that ide for the moment,

king

10 the langu e the

ree, s

the

11 pul on

a

n

1 2

arding racial or ethnic or nation origin profiling, th

13 mplies with the Uni

5 n tution and the New

14

n itution.

1 5

And I think th we have shown th the is dence

16 of al profiling going on.

1 7

THE URT:

n the 15 den of ial

18 profiling, th

raph d snit h anything do with

19 th

20

It

that the NYPD shall h a written poli th

21 complies h the nstitution of both the Un

sand

22 N

th s wh th h

23

-I

u example, I

24 th

a wri n Ii

mplies hit, d th th

25 01 it I the time.

wouldn't h viol

SOUTHERN DISTRI

12) 5 0300

9

IPd

1 paragraph 1. Paragraph 1

you h to have a written

2

Ii th complies

the

3

MS.

: -- if you

pa raph 1 in

4

nn ion with, which requi s ining on the poli

5 training on the offi

in p and frisk procedu S, in

6 s on E the is a provision in the for palm rds which go

7 out ind duals in the mmun If th

lieve th h

8

n impro rly pped and frisked th can file a mplaint

9 with the ivilian mplaint Revi

10

think that all th m ns there was an

1 1 impl on this Ii

12

THE COURT: -- u a king me to rewri your

13 s lement

ment. This is

h

, It IS n a

14

I don't want anybody to be confused by

ing the

15 record. I am saying hypoth ically if th h a written

16 policy th complies with the nstitution of the United

s

17 and New rk

ial and hnic origin

18 profil ing! t h s

ph 1.

19

th th

01 ng

20 their

21

Num

UI s them h

propri

22

n Ii

23

That ms

the ole

IS n on th

24 the

ment.

in the

25

g

th it will n

SOUTHERN I

REPO

,P..

5 0300

10

IPd

1 inappropri racial profiling. The is no guarantee in he

2 It is

the me thing

Judge pi

t ng

3

4

MS. COSTELLO: If you I k

on 2, which s

5 that the NYPD m alter the policy

6

THE URT: - let me

th

7

It s

The

m al r the

8 profiling poli

1.

9

That ju m

isn't in

10

mpli

! and th

is in

11 mplian ,I don't

r 2 p

u e

12 gu

e th

m

talking ut.

1 3

MS.

I think num

rei s

14 al ring the poli And I think th

nt of this

1 5

ment was not to bargain for a poli that meant nothing

16 that the NYPD uld ju go out d viol

pi

urth

1 7

endment rights d Fou nth end me rig with no

18 re u e pi ntiffs. I think th would--

19

THE URT: m

it is an

don't u file a

20

uit?

21

MS.

We did,

here.

22

THE COU No, u

ruggling with the

mber

23 31! 2007 d line in a 1999

. And if u g p

24 in p ri

al profiling in a g

n itution

25 why don't u bring a I

u

rtainly mark it

UTHERN DISTRI

, P.

12) 805 03

1 1

IPdan

1 lated.

2

H

uld it n

is Ie long s n

3 or eight

h

ether on this

use

4 you trying to put a squ peg in a round hole. And trying

5 to force you Ives argue what the 5 lement m 5, th it

6 doesn't m if you h a timely I uit - you 5

h

7 compi! in

ing a ume Ms. 55

h

b

8 maybe she did, th why we didn't do mething,

use

9 didn't

them

r, she - I s JU s

10 she h n't su

s

r. one h

1 1 only your I r, it would look Ii

12 in

ling

lIing me

a

Ion

1 3

ement, why don't u craft a I uit?

14

MS. COSTELLO: We could, but the only other issue

15 is --

16

THE URT: That's wh would I Ii

turn

1 7

talk ut the non mpli

18

MR. M

Judge, uld I ju

a things,

19

ut the notion that wh we

20

simply a pi

r th h no

21 sub

it.

22

THE URT: I didn't it no sub ceo

23 didn't h the wo gua

. Didn't she

r

24 the we no gu

And Judge

25 in his

ement. I didn't h time re

sion, I

SOUTH N DI

REPO

5 0300

1 2

1 only read the two I r s . m mes a Judge h

me time

2

I didn't h

ti e, es

the

3

came in

4

: To the e nt th given my involvement

5 with the

in the beginning, I can sh any light on th ,

6 on wh our unde

ding , about wh we

ning

7 r.

8

We Ii

g ing a licy th the

9 c would put into

That , it is

n why we

lOb ught the I uit. And

Ms.

110 d, the

1 1

n

- th didn't ju

change e

n

12

do s ral things.

1 3

t h

fi nd the m ch r d

14

ument I'd like

rrupt u JU

15 for a minute, and

this criminal e.

16

1 7

THE URT:: I think u

s king, Mr. Moo

18

MR. M

I h

ne I 0 rvation

19

ut my unde

ding in the u

ng this

20 d

21

I find it hard

Ii th

22

s

U ! or

II,

23

a

but

Ilow it.

24

U

5

h

25

d --

UTH ERN ISTR! REPO

12) 5 0300

1 3

an

1

MR. MOORE: -- I think th

th in their I r,

2

n change the Ii

long we h a

3 wri n poli

es ntially do wh

r we want.

4

I ju think th if that's, in

wh the

5 position of the city of New York is, it is a significant

6 di ren

m wh

unde

we

ing, which

a

7

th had some substan

it. Not ju a Ii on

8

r.

9

Ii

Sl the Thi nth Amendment

10

lishing sl

long

h

amendment th

u

1 1

It h sl

But in practi we still h sl

12

It s ms me it is a

r

I i rp

on

13 of the words in the d

m nt add ss

14 wh we beli

rious issue with respect to racial

15 profiling which, appa ntly, h not gone

And n their

16

udy th th

mmission

e th

17 with s

e n

PS, but n the

18 fris

IS a

disparity, th s their own

19 ex

imony, their own ex

port.

20

I ju find the notion th

tying to

21

e in a law hool exe i

g ing a Ii

22 th h

23

THE

II

24

M M

ntrary my unde

ding and

25 ntrary --

SOUTHERN DISTRI REPORTERS, p,

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IPdan

1

THE

RT: - I will qu from page 4 the I r,

2 the fi full

h

3

ing) In nclusion, it is important

4 that plaintiffs vigorously bargain for a provision which

5 would c

for an obligation on the part of the d nd

6 gu

th the would no racial profiling. The city

7

such a rm r

ns he

8 n oti

9

M M RE: I don't know, there is no citation

10th

is no it is

in a

it

11 it

ing sile th

th

uldn't s

u,

12

to the city, and you

ing to mply with th

13 goi

ally implement the Ii

14

I don't think I m n, a municipality that

15 adopt a poli should be then saying, now th

h adopted

16 a written poli

don't h

implement it in practi

17 When, in , th

making -- th

I you kn the

1 8

inform ion sent out th the

ial

19

E U

I am su

20 am going

uble r s ng i r $65 u n bring

21 that I uit.

simply --

22

M M R $350.

23

THE COURT: I kn Ih it ng.

24

The c

Ii the ci h

25 a Ii th 01 s -

h

their Ii

UTHERN DI ICT

1 2)

300

1 5

IPdan

1 is the proof of it, pi

give us the medy. Injunction or

2 d

! or

rl

k r in mplian

3

for $350 u can bring th

uit

it is

4 timely.

5

I don't understand why h to potentially have,

6

u know, months of briefing when it d s fit under this

7 ipu on or it d snit, th

pli

it d snit

8 th the urt h the power to

nd the su

9 want an imm

peal the circuit. Why do u n th

l O u h a I u Bring it. Th h a n Ii

11 rig

1 2

MS. GROSSMAN: s, your Honor.

1 3

THE URT: If u think t a 01 ng eir

14 written poli sue them.

1 5

MS. COSTELLO: Your Honor, just two quick ints. One

16 is about the point ur Honor's raising ut ju filing a n

17 I uit.

18

The one issue for us in th particular nario is

19

the p

0 er is ill in

this

20 ends, we h

back all of the d

unless the

21

urt is p

modify the p

order and lift i

22

would n

nefit of that d until filed a new

23

e and eng

and battles with the ci

g

24 th same inform on n, and then an er Ie ra

25 p

order ain.

SOUTHERN DI CT REPO

12) 5 300

16

IPd

1

we see it in the inte

of judici

nomy, if

2 the urt uld lift the p

order in this e, sin

3 under the I guage the stipul on and pointed, if the

4 information is herwi made publicly lable.

5

THE URT: That's something I do want to Ik the

6 city ut.

7

If it is publicly

Ie, then I don't unde nd

8 why u 't u publicly-available information in drafting

9 ur suit, or for wh

her purpose. If mething is

10 publi

I Ie

it and

who is in the

11 public lib

g it, or using the In

g it, if

12 anybody calls the city's 9 n book offi

it, then it

13 is public.

14

Can you do this from public inform ion or n

1 5

MS. COSTELLO: It is not th publicly lable.

16

THE URT: You can't h it both

If it is

17 public u can u it d I don't think the ci

r ue

18th you 't.

19

n

u bac

k

it is Iy n public,

20 then you

aking their ument.

21

MS.

: It is public. The only problem is th

22

the c h put out, ju

Ms.

23

sm

use it h

r

24 we would Ii

rm

out the

25 Rand rpo lon,

a

udy, is th the

UTHERN DISTRI R , P .

12) 5 0300

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IPd

1 Rand rporation and the NYPD's spin using magic wands about

2

the d m s, our

is d

on

3 ex sh us different things, that the nd information h

4 us benchmark and other statistical m hods to plain

5

it is publicly available in the sen that the NYPD and the

6 Rand publi ion h written d Is in the Daily Nand

7

erwise m e th

rm on lable. But in the nse

8 the d th

h th m

9 put out, is not publicly

that's our

10

5 our imp

dour

ci 5 and

11 nu

the

rns 5

1 2

our inform ion is d rent than what the

13 has, me which is the e

14

Rand

hed me the me nclusions about the

15 d

But th h also ignored some of the her

16 inform on, particularly lal disparities d the frisks

1 7

and the

ns

th

think

18 indi

19

M

ur Honor, in rms how the d is

20 II

the d on dis

m the city, which ma

21 it th

ier

mp

22

is information is public, but it is public in hard

23

pies. d so it is public n on th ugh the d

24 but al th ugh the udy th th the city,

the

25 city coun I. But th

the d is he

UTHERN I

,P. .

12) 5-0300

18

IPdan

1 but it is in a form

rms of

2 m ng

I I

ich uld

3

us months to

4

THE URT:

ier, Ms.

110

5 spond with how difficult it would to

rial

6

n, The is enough in the public

rd

7

d

suit si ply

we

p u

I th

8 produ in the 1999 I uit.

9

I don't know h you uld I

ing it. It m be

lOa que n wh

II going

under p

11 0 er or n

h

1m

g ng it, u

12 know what I am

me th anyJudge

13

Id

p

u in the e

14 th you h i t , th

u will h

n. Whether or not

15 it mains confidential.

16

MR. FRANKLIN: We'll h

ain, but we h

go

17 th ugh the same p ss h gone through. We

turn

18 everything

the city under this p

order.

19

g

h

ain

cui the same

20

h

21

goth ugh

culatin

22 Why uld th

23

MR. FRANK N:

under the p

o er

24

g them k th information.

25

THE URT: Not ju wh they g

UTHERN DISTRI REPORTERS, P. .

12) 805 0300

19

IPdan

1

MR. FRANKLIN: If my

ing is

, it's what

2 th

us d

3

MS.

rything de

from the U 50

4 d

e.

it is the

al physical dis that the d IS

5

ned on, which thousands and -- ns -- hundreds of

6 thou s entries, well as any information th we

7 derived. any

th our

h done

8 with coding, would h to be given k to the city. We

9

uldn't

n th information.

10

THE URT:: ur rn work produ and publish

11 m

would h

go

1 2

ms odd me. I don't know why it n't be

1 3

under the rms

nfidentiality. is is

14 practical.

1 5

MS. COSTELLO: Your Honor, if I uld, I am ju gOing

16

one minute and look the p

order m

17 su

18

MR. FRANKLIN: Unless the ci disputes th .

19

E

We n't g

r off the

20 sub

21

: Judge, the p

0 er -

22

THE

th

23

MR.M

a py.

24

THE

I Ms.

sma Is th

25

UTHERN DI

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IPdan

1

MS.

MAN: your Honor

2

MR. M RE:

hand u up a

judge.

3

THE URT:: This is june 31 ,2000 - I'm sorry

4 Janu 31, 2000.

! it will be eight

this january.

5

MR.M RE:

raph 7, I think, is the provision

6 th is at issue he

7

THE U

s

it.

in Within 30 d

8

r the rmin ion of this e, including any ap s, the

9

nfidential m rials, including all pies, n s and other

10m rials con ning or

in rm

11

! shall

u ng

12

! or upon their con nt, destroyed. And all pe ons

13 who sess such

rials sh I rify their

rn or

14 destruction byaffid

to the producing

15 attorn . And pa

: (Reading) The rms of this

16 order may modified by further order the

1 7

obviously 30 d

rmin on

IS

18 January 30, 2008, right? If the

rmin

mber 31

19

MAN. , thin

ur Honor, the rmination

20 d

in the

21 d

ment.

22

uldn't

se th

uld

23

this stuff

u

o.

24

MS.

MAN: Th did.

all docume

25 th

urn when the

ment was

ERN DI

REPORTERS, P. .

12) 5 300

21

IPdan

1 and when it was finali by the Court.

2

the

me in

s ep

0 er d

3

Iy s th the plaintiffs n to return the

4 documents, maintain the nfidentiality, and

r

5 the

ment sun . Th s ex

ment

6 rmin

7

The p

0 er

the pi

subj

8

the p

order, m

nfidential ity,

9 but --

10

THE URT:

II

u all.

1 1

I II

12 now still retain until Janu 30, 2008, thirty d

rthe

13 rmi on this e.

14

I am still supervising this

, that's why u

15 worried about my nding it none d becau my

16 supervision runs out on

mber 31 ! '07. I still h this

1 7

e.

the rei it is not 30 d

rmination

1 8

this

Th

king a ut the ry

rial th

19 h

20

M

material

21

THE URT:

ntly

ber.

u

22

u didn't urn it 30 d

r the

r

23 bvious it is n due k till Janua 30 or 31

2 8.

24

II I am ng is, by then if u h a I uit

25

nding and n the ve

e m rial,

I

the

SOUTH N DISTRI

RTERS, P. .

12) 5 300

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IPdan

1 authority to modify the rms of this order by a further order

2 the urt, which the

, then I II, and I II

3

u h the m rial, hold on to it, rem ns

4 nfidential, mebody

otherwise, and u it

u n

5 to u it in ur n lawsuit.

6

I don't want pi games he , if the is a

7 01 ion the c

ling Ii

th n

8 wh it is call ,.

9

MR. MOORE: Th s wh it is called.

10

RT:

ge. Kind a --

11

nonraci

1 2

THE

is a violation of it, the

13 isa 01

sal uit, th s

14

It still rikes me making it mo difficult, a

15 squa

in a round hole, to fo it into this stipul ion

16

settlement, and got into all these que ions about u tri

17

g a gu

18

u didn't g

u fought r it, but

19th

it

u. I I

20 But okay, this is only the inning. We go through their

21 whole I r and pond to all their poin . We didn't g

22

u re going -- we

with 1.

23

MR. M RE: Ju one

nd, Judge.

24

THE URT: s.

25

(Discussion the record)

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1

MS. GROSSMAN: Your Honor, if I m just d ss the

2 issue the nfide ial

3

THE URT: s.

4

MS. G MAN: If you were to I k paragraph 4 --

5 I'm rry, H4.

6

THE COURT: Wh ipul ion s lement,

7

MS.

4.

8

THE

s, 0

9

MS.

MAN: If you would r with me, your Honor.

10 If I

u through the fi and pi n wh it

1 1

h4 ell it

12 nfidential d uments-

1 3

THE URT:

a min ! I on e 11 -- oh,

14 H,o

1 5

MS. ROSSMAN: (Reading) All nfidential documents

16 subj

the January 31 , 2000 protective order, and pies

17 m

produ

pi nti

d nd prior the

18

, shall

rn

rpo

I

19 offi upon the

d Unless prior to th d

20 d

slyauthori the ntion s ific

21

uments i mi in writing by plaintiffs until, the

22

,the rmination the ipul on.

23

Now, I

a b . Th

rm Ion

24 all the d ume p d during the litig on. The

25 plaintiffs complied with th provision in the

ment and

UTHERN DISTRI REPO

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1 returned all the documents to the city with the ex ption of a

2

put in

ng, a th we

3 all

main n.

4

Now we m on to all d uments provid to plaintiffs

5 in any form by d ndan under the rms and during the

cou

6

this pul on sh I d m

nfidenti ,a

7 pi nti

Ion

offi all

8 such d uments,

pies m

upon the

9

In on of this

on.

10

e

d

11 of the

ment, the plaintiffs, under the rms of this

1 2

ement, which th

r, ich

1 3

to returned to the city.

14

THE URT: Well, that's good, but I don't think it is

15 good enough. Becau I think the urt's order is ambiguous or

16 ntradi

th

ng th it nds 30 d

1 7

r the rmination

e.

"18

N

rp the ph e rmination of

19 is e di ntly an I do. I don't h it in front

20 me, I will find Actually it is

h to this in the

21 p

the p

0 er

22

M

KLlN: it's the I

ment.

23

THE URT: I h it d

Jan

31 ! 2000. Is th

24

of the ipul ion settlement -

I it mu

25

hibit

the ipulation of ement. d the exhibit

SOUTHERN DISTRICT REPORTERS, P..

12) 5 0300

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7c1Pdan

1

If s

ry d of the termination of this e.

2 Ih

the same pul ion of

3

ement th

. And-

4

MR. MOO -- essentially wh

a Iking about

5 is 30 d

6

THE COURT: Oh, I unde nd. But the

d sn

7

h these

Ie

this mpl

d

8 it al s ms childish me. It is in your I r, it is all

9 the

10

Ih

two nfH ng clauses in nt

1 1

e Ie e ,.

1 2

MS. ROSSMAN: I Ii , your Honor, if u

to

1 3

k

h 4, e plain m ing --

14

THE COURT: -

15

MS. ROSSMAN: -- the same

1 6

THE COURT: H4.

17

MS.

MAN: H4.

18

THE COURT:: I kn

H4 d, I don't even a ue

19 th it is wrong, but it

h hibit . hibit

20 lis me th wi in 30 d

rmination the e,

21

this

is open until the urt's su rvision ends on

22

m r 31 2 7

23

M M RE: Judge -

24

THE

and it

th I have the

r

25 m ify t

order

time.

SOUTHERN ISTRI REPO

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IPdan

1

In rms this - by further order of the urt.

2

nly h the

r modi th

3 p

order until

mber 31 of '07.

4

And to that e nt, I surely would modify it my

5 own reading of it, which is 30 d

r the e rmin s,

6 which is January 30, '08.

7

I am h

ping with ur I r if u

8 to go through ch rand

, and try to II m

ur

9 points in ur I r, try to nvin me. I don't like the

10 id

having

rk on it in the n eight d under th

11 gun. B th

it is ming It d s n s m me

12 th would

1 3

MS.

ur Honor, putti

ide the issue

14 the modifi on it

s the racial profiling issues.

1 5

THE COURT: s turn to something else then.

16

MS. COSTELLO: The specific rform

issues other

1 7

th which would include the training.

18

THE URT::

talk about it. The city

19

ut that . I don't a subh ing ually

20 training.

21

Ms.

sman

II me whe in this I r it i

22

MR. M

on

23

THE

ion . The it is, ning,

24 o

25

MS.

Iy under the

on,

SOUTHERN DI

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12) 5-0300

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IPdan

1 and I will point the urt to 5, and actually

on of

2 e ipul on-

3

THE URT: -- E is the one th

r

4

MS. COSTELLO' Yes.

5

THE COURT: Training.

6

MS.

had

ral nversations with

7 the c th

ut the

th there

8 has n r

rifi

the training s ified in

9 s ion E h

urred.

10

The

s position is, I unde

d i is th

1 1

n

d

uld di

th

1 2

THE

k at the plain langu e of the

13 s lement

men

14

I don't know how much

ing to have to

15 but we wi II read much

to.

16

1: The NYPD has ndu

in service training

1 7

ing the ial profiling poli which h

n p nted

1 8

NYPD mmands. The NYPD sh I provide nu in-servi

19 training ardi the ial profiling poli

20

2. The NYPD shall maintain that portion of the poli

21

emy curriculum th

ns training arding the

22

ial profiling poli

23

3: The NYPD sh

n poli offi

24

ut the I al d

r ndu

d

25 d umenting p,qu on and frisk ivity. ntinue to

SOUTHERN DISTRI

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IPdan

1 implement the poli

emy curriculum for training police

2

cer ru

the I al d

r

3

ndu ng and d umenting p, que ion and frisk activity.

4 And continue to provide training for police

emy

5 instructors,

6

MR. M R

Judge -

7

E U

a ut the I

d

es r

8 conducting for and - and then all I can s

ragraph

9 4

I the NYPD shall

the NYPD

10 sh I inue p

nl

11

Num r 6 s

Ii

emy II ntinue

12 consider informally,

al inciden brought to i

ntion

13 r use in t ning.

14

7 s , the NYPD is

ng the ruit curriculum

15 and is part the p

mmissioner will conduct a

16 review.

1 7

8

, the NYPD will

p de full

18 p m

rg

d lie nan

ning,

19

9: The municipal d nd

h provid

d

20 10

: The NYPD shall ntinue to docume training

provid

21

pulation in the e manner and nsi nt with

22

ng p

d p u s empl

the NYPD.

23

Now, I h

it all. Nowhe d

th

24 will turn anything r cI s un

cI s

25 un I.

SOUTHERN DISTRICT REPORTERS, P.

12) 5 300

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7clPdan

1

MR. MOORE: To rify, the word rifi on d s not

2

3

THE U

r port or turn over -

4

MR. M R - if you look subs on 5 the

5

ment.

6

THE URT:

me now turn 5.

7

e NYPD shall su

,mon rand t n

rs

8

arding the al profiling policy

forth below.

9

MR, MOO

th s an rm

duty on the NYPD.

10

THE U

true.

1 1

su se, mon rand t n

1 2

arding the ial profiling.

1 3

In order d rmine wh erth a Ifi II ing

14 their du whether th h

up to the rms this

1 5

me nt, we would argue that th should II us what th

16 are doing.

17

THE URT: Why didn't u

into the

18

eme Why didn't u

u on a qua rly

19

IS

mmg m rials for

20

There is nothing in the There no obligations

21 other than do But not

u know th ugh

22 d umentation.

23

MR. M R

if th a n doing it, the on

24 we n kn if th

doing it is by king them if th

25

doing it.

UTHERN DISTRI

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IPdan

1

THE URT: I understand.

2

M

. It ms me

th s an inhe

3 obligation on the part of the city.

4

THE URT: But this thing

signed Jan

9,2004.

5 I mean, th almost four

ago. Did you

them

6 a demand' r and

pi e document th

doing

7

nin

r

Ii

u

- or

Ii

ua n

8 doing training, we worried ut that, pi

nd us

9 copies--

10

MS.

: -- we did -

11

THE

doing this on

m r 21

12 of '0

1 3

14

1 5

16

1 7

18

19

20

21

22

23

24

25

31

IPdan

1

MS.

Part of this! your Honor, is that we

2

mpting

it 0

th the eMs. ss

and

3 I, in

4

THE URT: I h r you. But the position u put

5 me in is to h

me kind of

bri motion, you would like

6 to bri the

bri Ruffo and i

7p e 0

ur bri due on 10m. on the 2

8 and their bri

lOon the 28th, and the ply on the 31

9

MS.

: Th s wh

proposed, there six

10 months

nsion.

1 1

on

1 2

MS. COSTELLO:

I your Honor. me of the

1 3

th

cited

uld II th the

14

uitable power of the urt

1 5

THE COURT:: Didn't I do it and undo it?

16

MS.

You did undo it.

1 7

THE

an opinion

18

MS.

Part of that ur Hono

th we

19 h not

the dispute solution in the dec

d we

20 h

21

THE URT: th wrote you didn't. Didn't u

22

th

ssman, th didn't II the dispu

23

olution al

24

MS.

MAN- Th s right.

25

MS.

di

UTHERN DISTRI REPORTERS, P.

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IPd

"I

THE URT: But I am not being g n much time to

2 unde

ng u didn't,

s ng

3 something

. in wh way didn't th file a

4 disp

lution

5

MS.

MAN: th we suppos to wait until 30

6 d

urt.

7

E

u

8

MS.

MAN: From the d

,g

9 notification to us. The notifi

required to

10 g is by and hand rvi

1 1

THE U

d th

u a I r.

1 2

MS.

MAN: Frid

nmg.

1 3

THE URT:

mber wh

14

MS. ROSSMAN: N mber 30, Frid evening, 7:03 p.m.

15 And th did not del r a d ument by hand Frid for us to

16 h noti. nd it wasn't until Monday,

mber 3, there

17 no hand del ry all. th h nit mpH

th the

18 rms of the

ment in rms of giving p

19 then would bring us

nd the

mber 31 suns provision

in

20 rms of when th would be Ie

k Ii from the urt.

21

The fi time th

the issue ut the

22 p ling

on N m r 30.

23

MR. MOORE: Judge--

24

MS.

MAN: the first time th rais an issue

25

ut another i m n rning joint mmunity rums

on

SOUTHERN DISTRICT REPORTERS, P.

12) 5-0300

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IPdanC

1 November 30.

2

THE U Which lis within the 30 d

u

3

ng out the hnicali the

on th it is

4 important was because, th s important because u weren't in

5 the offi

7:03 on a Frid night and didn't it until

6 Mond

7

The

is s ng it didn't h

al n

on

8 N mber 30, but on

m r 3.

9

MR. MOORE: We we before you in April, and

10 raisi the issues ut the

t th h nit produ the

11 d

e. d, u

we didn't g th

r.

1 2

THE COURT: I know -

1 3

M MOORE: th

rt sid

us a little

14 bit. And I think, though, th now th

had the

15 d

16

THE URT:: -- but th didn't

to things like

17 n having proof t nmg,

proof of communi

rum,

18 which u didn't think

going on. There re other

19

mplai that u uld h rai in time g some

20 rulings on viol ions or n .

21

I might have ill d the end of the d with

22

ining, th

23 u,

uld ue

k on

ion

24

we suppos

judge mplian

It

25 g di

ry. But dis ry is diffe nt than a po ing

UTHERN ISTRI REPORTERS,

12) 805-0300

34

IPdan

1 requi ment.

2

M MOO ' I guess it brings me

other

3 which if, in ,the ty is of the opinion th all th

4 h to do is have a written poli and th h a written

5 poli wh harm is there to the city in agreeing

nd

6 this r two months, th months, wh

r it m

, if in

7

th s a I th it uires them do is h

8 mething on per th

won't eng e

9

THE URT: -- u don't know if th h a written

10

Ii

1 1

M

I do

th impleme

a

n

12 poli There

-- I h nit I ked at it in the I

1 3

. But I do Ii there is a

n Ii

14

My point is that if, in fact, all th

required

15 do under this lement ag ment is to have a written poli

16 wh harm is the in

nding this ag ment for a uple of

17 months, r us

the iss sand d de, r

18 in

,d

want just put this thing bed

19 and, you kn

other

If th s

20 do.

21

If

Ii th that

ial profiling

22 is there,

a ry ng

ut tryi ng put a

23

u

und hole, wh

might . But my

24 poi

uld there

I guess the answer is,

25 it's ammon n

ument. It is n a I rly ument.

SOUTHERN DISTRI REPO

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1 Th s the problem.

2

THE U Unfo n

all cho this

3 profession, and me d we k you elves why.

4

h the right to stand on hnicalities.

5 The Sup me urt issued me opinion I

that d,

6 the eral judge th

the Supreme urt s d you

7 tim e

u h

fi Ie ap

n d

r

8 judgement, lling your attorn you want an appeal is n

9 enough. u should have Ii ned to th Federal judge.

10

The nsenting ju i

a

, but the u

11 hit.

er ju

ht it

a fine ing

12 it on the

I The District judge told the pri ner

13 u

time.

r pri ner should h kn

r

14 than a federal judge. The I is full of technicalities.

1 5

Why d

nd it? Because th

16 don't want to. And if th

,th don't want

1 7

Wh am I going

Iy

18 speaking, he's right, why don't u g us all time to bri

19 this and d ide thi Th

uld

th

ry ni

20 d line.

21

u

me g it on the -- would u

22

nd this

th

g a bri ng

23 hedule.

24

MS.

MAN: ur Honor, I n

ori

25

th

UTHERN DISTRI

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IPdan

1

MS.

: I h one point on the training issue,

2

hibit l o u r I r, the

m r 4 I r th I

3 Ms. ssman. If u I k the third page

the

4 bottom -

5

THE URT: I got a problem, the N m r 30

6

r

7

MS.

no, I'm

the I r

8 del red to the urt I Frid

9

THE COURT:: Oh,

10

MS.

t

1 1

E U

m r 30 I r.

1 2

MS. COSTELLO:

it is

ur Honor.

1 3

THE U

hibit 2 is the

r.

14

MS. COSTELLO: The should a m b e r 4 I r,

15 your Honor.

16

THE COURT: Th

hibit 3. Page 2 at the bottom.

17

MS. COSTELLO: n the n

plain the c

18 th

think th

in

with the training

19

ui ments, ju as

in mpli

20 with the auditing the training ui ments.

21

THE URT: But u didn't bring it

ntion,

22 is all I am trying

urse, now wh

ng

23 is u did

lution m

ism. Is th

24

u

r41 r u did, in

25

the disp

uirement?

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1

MR. MOORE:

2

MS.

Ms. ross

and I h

ions

3 in which were mpting to s if the city would g us

4

me d umentation showing th the training had urred.

5

THE COURT: Ms. rossman, did the plaintiff sati

6 the disp

lution by sing the issue on ptember

7

MS.

MAN: On the t nin

8

THE URT: In writing.

9

MS.

MAN: The one pi on the training, s.

10 But when I mention th the issue ut the ial p ling

1 1

fi -- fi

1 2

THE COURT: -- but got I of issues. s d

13 with t ning.

14

th satisfied the dispute

1 5

MS. GROSSMAN:

1 6

THE U Wh flows from the fact that th

d

17 the disp

solution m hanism on the t ning int?

18 u rai some kind of d n .

19

MS.

MAN: I'm sorry, ur Honor, re u

20

d

21

,wh fl

m the

th th

22

the disp

lution m hanism.

23

MS,

MAN: Our

nse t

ur Honor,

24 th

misi rp

the

ment, th th

rewriting

25 the

nt,

SOUTHERN DISTRI

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1

THE URT: Meaning procedurally, if th

sfi

2 the disp

solution m hanism 9 ng u 30 d , wh

3 fl

allowed to me to urt,

4

s.

5

THE

th alluded to me court on th

6 one

use th

the disp - and th want

7

in their

the

ing

8 viol

nd su rvision,

9 and/or m

ific rforman

10

MS.

ur Honor, the

ment is ve

11 s

s fic

rman

d then I would

1 2

ur Honor, th th have to provide sufficient noti

1 3

en Ie I

d 9

1 4

n d . And to 9 noti

h

15 believe is contemplated by the

ment.

16

THE COURT: Well, I don't know. Th

the

17 disp

lution m hanism, all

I on this

18 issue, and th I then th h the right

me

urt.

1 9

d th h

me to urt.

20

I can

on their mpl nt arding

21

ining, I n

full bri ngs in 0 er 9 the

22

urt an app pri amount of time d ide whether the

h

23

n a viol on. I h

nd the d line d de the

24 m ion properly.

25

MS. G MAN: We would submit, ur Honor, th

SOUTHERN DISTRI REPO

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1 th s not the dispute that is not a medy lable under

2

me .

3

THE URT: The m you

to is, th

4 bring a dispute to court r giving you 30 d noti

5

MS. ROSSMAN: But the is no --

6

THE URT: - inherent power. I can't decide a

7

on th n bri . It is time it

b ught

8 the expi ion of this ag ment, th satisfied the dispu

9

lution mechanism, the Court h the power to operate its

10 own d

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UTHERN ISTRI REPORTERS, P.

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1 5

ALL UNSEL: Thank u, your Honor.

16

17

18

19

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21

22

23

24

25

SOUTHERN I

12) 5 0300

APPENDIX C

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

ANNALS OF LAW
RIGHTS AND WRONGS
A judge takes on stop-and-frisk.
by Jeffrey Toobin
MAY 27, 2013
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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? Photograph by Antonio Bolfo.

“I don’t love trials,” Judge Shira Scheindlin said recently. “They are not a good way to tell a story. They are not efficient. And they are often so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the

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Daniel Patrick Moynihan building, off Foley Square, in lower Manhattan, after a long day of

presiding in Floyd v. City of New York, which is the latest legal challenge to the stop-and-frisk

practices of the New York Police Department. “What I really like to do is write opinions,” the

Judge said. “There you get to do what you think is right, what you believe in. You’re pushing the

margins of the envelope, being willing to be creative.”

It was after seven o’clock in the evening, and the courthouse was nearly empty. At sixty-six,

Scheindlin is renowned for her work ethic and her demands on her staff. Her clerks work from 9

A.M. until 8 P.M. every weekday. They can get lunch at the courthouse cafeteria but must eat it in

chambers. They are also expected to work six hours over the weekend. (They can choose which

day.)

In her office, Scheindlin was relaxed and expansive, especially when she talked about her two

children, a son who is a violist with the Metropolitan Opera orchestra and a daughter who is a

political consultant and pollster in Israel. (Her husband, Dr. Stanley Friedman, is an associate dean

at SUNY-Downstate Medical Center.) On the bench, though, she is unflaggingly rigorous. She listens

to testimony, reads the transcript on her computer in real time, e-mails her clerks, and sips endless

cups of Diet Coke. Lawyers who appear before her often describe her as opinionated and brusque.

(“I’ve heard enough.” “Move along.” “I’ve ruled, counsel.”)

The primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought

with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for

more than a decade. In decision after decision, she has found that cops have lied, discriminated

against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with

the Democratic candidates united in their opposition to the stop-and-frisk policies of the

Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite

the rules of engagement between the city’s police and its people. David Floyd, the lead plaintiff, is

an African-American medical student who had been stopped and searched twice. The core allegation

in the case is that the N.Y.P.D. is systematically violating the rights of its citizens with unlawful

stop-and-frisks, particularly by targeting minorities. The questions before Scheindlin are profound.

Crime has declined in New York in recent years, as it has in other cities around the country. But

why? And at what cost to the civil liberties of its people? Has New York City conducted a long-

term, racially motivated campaign to deprive thousands of its citizens of their constitutional rights?

Or, as Mayor Bloomberg and others maintain, has the city created one of the great law-enforcement

success stories in recent American history?

T he concept behind stop-and-frisk, which is sometimes also called “stop, question, and frisk,” is a simple and venerable one. Police officers may arrest a suspect only if they have probable cause to believe that he committed a crime. What can they do if they suspect that someone is involved in criminal activity but lack sufficient grounds to make an arrest? The Supreme Court

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addressed the subject in Terry v. Ohio, in 1968. According to Chief Justice Earl Warren’s opinion,

a stop is permissible only when “a police officer observes unusual conduct which leads him

reasonably to conclude in light of his experience that criminal activity may be afoot.” In other

words, the level of certainty needed for an officer to make such a stop is less than probable cause;

the standard is often described as “reasonable suspicion.” According to the Terry decision, the

judgment by the officer must be made on the basis of “specific reasonable inferences” from the

evidence, not “inarticulate hunches.” By and large, this remains the law today. Stop-and-frisk

encounters are also known as “Terry stops.”

“Stop, question, and frisk has been around forever,” William Bratton, a former police

commissioner in Boston, New York, and Los Angeles, told me. “It’s a basic tool. It’s the most

fundamental practice in American policing. It is done every day, probably by every city force in

America. If the police are not doing it, they are probably not doing their job.” Bratton served as

Mayor Rudolph Giuliani’s first commissioner of the N.Y.P.D., from 1994 to 1996, and is widely

credited with changing the orientation of the police from responding to crime to preventing it.

Through much of the second half of the twentieth century, crime and disorder, in forms ranging

from graffiti to murder to a crack epidemic, plagued New York. The police appeared powerless to

address these scourges. “Around 1960, New York City basically stopped policing,” Bratton told me.

“The police were no longer engaged in controlling behavior in the streets. We changed that. If

people are drinking cans of beer on the corner, you stop that behavior. If somebody is urinating

against a building, or if you suspect somebody is casing a building for a burglary, you stop them. Of

course police should be doing that. You make the streets safe, and, besides, a lot of these people

committing these minor crimes turn out to have warrants out against them for more serious things.”

The approach is known as Broken Windows, after a 1982 article in the Atlantic by James Q. Wilson

and George L. Kelling. Bratton’s interpretation of the Broken Windows approach called for

vigorous police enforcement of minor crimes like fare-beating and intrusive panhandling as a tool

to preserve public order and, at the same time, to catch criminals. In addition, the N.Y.P.D. under

Bratton began to make extensive use of data to identify crime-prone areas and focus resources on

them—an approach sometimes called “hot-spot policing.” Along the way, especially in high-crime

neighborhoods, cops stopped people not just in the act of committing minor crimes but also for

suspicious behavior.

Stop-and-frisk—indeed, aggressive policing generally—presents significant challenges for

judges. Months, or even years, after a confrontation between a cop and a suspect, the judge must

determine if the stop was legal and thus whether the evidence gathered can be used in court or

should be suppressed. “Most judges are reluctant to grant suppression motions,” Erin Murphy, a

professor at the New York University School of Law, said. “It’s hard for judges to look a police

officer in the eye and say he didn’t follow the law. And of course it’s only defendants who look

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guilty who file suppression motions. It’s every judge’s worst nightmare that a released defendant

will show up in the newspaper the next day for committing some horrible crime. If you suppress

evidence, you are making it hard or impossible to prosecute a guilty person. That’s a really difficult

emotional and political decision for a judge to make.”

The matter of Antonio Fernandez presented such a dilemma for Judge Scheindlin. On May 12,

1995, police received a 911 call reporting a gang meeting in progress at a small park in the Bronx.

The caller said that one member, a Hispanic man wearing a white-and-black jacket, had a gun. The

officers who responded found about fifty or sixty men, all Hispanic, milling around. The police

frisked one man, who had no contraband. Then they followed a group of three or four men who had

been standing to the side of the main group. One of them was Fernandez, who was stopped, frisked,

and found to have a small amount of marijuana. At the station house, he was frisked again, and

police said that he had a fully loaded .38-calibre revolver hidden in his crotch.

Fernandez was charged with illegal possession of a handgun, and the case was assigned to

Scheindlin, who was in her early days on the federal bench. Fernandez argued that the Terry stop was

illegal, and that the gun should be suppressed as illegally obtained evidence. Scheindlin agreed,

writing in an opinion that, “based on the facts presented here, the police did not have reasonable

suspicion to stop Defendant and his companions.” In part, Scheindlin said, the stop-and-frisk was

illegitimate, because the anonymous tip was too vague to lead to Fernandez, but her opinion

reflected a disbelief in the officers’ testimony. According to the officers, Fernandez’s first frisk

produced a small amount of marijuana, but the second yielded a large handgun. As Scheindlin wrote,

“It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber

revolver hidden in Defendant’s pants.”

The case might have passed without notice, but Antonio Fernandez was not an ordinary

defendant. He was better known as King Tone, the leader of the Latin Kings, one of the most

notorious drug gangs in the United States, and he was being charged as part of a huge crackdown on

the group by the United States Attorney’s office for the Southern District of New York. “Scheindlin

is one of the very few judges who would have had the guts to toss out a case like that one,” a former

prosecutor familiar with the case said. (Three years later, Fernandez was prosecuted for heroin and

cocaine trafficking and sentenced, by a different judge, to twelve years.) Scheindlin’s ruling in the

Fernandez case set a template for her handling of criminal cases. As one of her former law clerks

put it, “What you have to remember about the Judge is that she thinks cops lie.”

According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the

basis of illegal police searches far more than any of her colleagues—twice as often as the second-

place judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased

against cops. (Scheindlin has said that the study is misleading, because it reflects only her written

opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.)

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Still, she embraces her maverick status. Many judges in the Southern District previously worked as

prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges,

especially because so many of our judges come out of that office, become government judges,”

Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern

District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights.

These issues come up, and I take them quite seriously. I’m not afraid to rule against the

government.”

Scheindlin grew up in Detroit. Her mother was a schoolteacher, and her father, who emigrated from the Soviet Union, ran a Jewish civic organization. “We were a political family,” she told me. “My father was the official Jew for many committees in the state.” For a time, the family lived in a house once owned by a brother of Walter Reuther, the United Auto Workers labor leader. “The house had a bullet hole, from where someone had taken a shot at him,” she said. “It was a tough town.”
At the University of Michigan, Scheindlin majored in Chinese history, then continued her studies for seven years at Columbia. She never received her doctorate. “The language defeated me,” she said. “The prospect of reading original documents in Chinese was just too difficult.” Scheindlin drifted into law school, graduating from Cornell in 1975. She spent her final year of law school at Columbia, where she took a class with Ruth Bader Ginsburg, who became a mentor. Ginsburg introduced her to the legal side of the women’s-rights movement, and, while still a student, Scheindlin played a role in a case that brought equal pay to female academics at the City University of New York.
For the next two decades, Scheindlin did a little bit of everything in the law. She was in private practice, a federal prosecutor in Brooklyn, general counsel to the New York City Department of Investigation, and a magistrate (a lower-level federal judge), also in Brooklyn. In 1994, at the recommendation of Senator Daniel Patrick Moynihan, who had been encouraged by Ginsburg, President Clinton nominated Scheindlin to the federal bench in Manhattan. Her professional roots in Brooklyn, which is known as the Eastern District of New York, separated her from the start from the clubby world of the Southern District.
A defining event of Scheindlin’s tenure as a federal judge took place on February 4, 1999. On that day, four plainclothes officers shot and killed Amadou Diallo, an unarmed African immigrant, who was in the vestibule of his apartment building, in the Soundview section of the Bronx. (The officers, who thought Diallo was reaching for a gun, were charged with manslaughter. They were acquitted by a jury in Albany, where the case had been moved because of pretrial publicity in the Bronx.) The Diallo case suggested a dark side of Giuliani-era policing. The same aggressiveness that led New York cops to arrest minor offenders could turn, in certain circumstances, into a predatory approach to non-offenders, especially racial minorities. Crime rates (for whatever

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reason) had fallen dramatically during the Giuliani administration, but the Diallo case raised

concerns about the N.Y.P.D.’s new tactics. “The idea behind proactive policing was to get guns off

the street, which was fine as far as it went, but what it meant on the street was the cops tossed every

young black man that they saw,” Jonathan Moore, a veteran civil-rights lawyer, said. “That’s what led

to Diallo.”

In response to Diallo’s death, Moore and the Center for Constitutional Rights, a legal-advocacy

group, filed the first class-action lawsuit challenging the city’s stop-and-frisk policies. The case,

Daniels v. City of New York (Kelvin Daniels was the lead plaintiff), was randomly assigned to

Judge Scheindlin, and years of legal skirmishing followed. The parties settled in 2004. The city

agreed to establish a written policy governing its stop-and-frisk practices and to improve the

training of officers in conducting legal Terry stops.

In retrospect, though, the most important part of the Daniels settlement may have involved

record-keeping. The city agreed to create a kind of checklist, which police officers would complete

each time they conducted a stop-and-frisk. During the next decade, the police filled out more than

four million of these forms, which served as indispensable evidence for the Center for

Constitutional Rights and others in lawsuits against the city.

Scheindlin has a bright and airy courtroom, one floor below her chambers, and the Floyd trial, now in its third month, has settled into a routine. In jury trials, judges avoid signalling their views, so as not to influence the jurors; but in bench trials there’s less reason for judges to be reticent. By this point, Judge Scheindlin’s views seem etched on the faces of the lawyers before her. Moore and his colleagues bound in and greet the Judge with confident half-smiles; the team from the city’s law department already look like disaster survivors, just trying to hang on. Moore and his team linger after court, chatting with spectators; the city’s lawyers, led by Brenda Cooke, scurry for the door, avoiding eye contact. (Closing statements are expected this week; Scheindlin will probably render her decision within sixty days.)
The plaintiffs’ key witness was Jeffrey Fagan, a criminologist and statistician, and a professor of law at Columbia, who has spent much of the past decade scrutinizing the city’s vast database of stop-and-frisk reports. The stop-and-frisk form, known as the UF-250, contains boxes for police officers to check to explain why a suspect was stopped. Some of the boxes refer to specific behavior: a suspicious bulge in clothing, or a refusal to comply with an officer’s directions. More than half of the four million UF-250 forms included checks in the box labelled “Furtive movements.” In his report, Fagan concluded that the furtive-movement box, without more evidence, suggested an unconstitutional Terry stop—that is, one not supported by reasonable suspicion of a crime. According to an algorithm that Fagan devised, eighty-two per cent of the stops were justifiable, twelve per cent were ambiguous, and six per cent appeared to be unjustified. Projecting that ratio over a decade, Fagan concluded that the N.Y.P.D. had made more than two hundred and

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sixty thousand illegal stop-and-frisks.

The plaintiffs have emphasized that only six per cent of stops led to arrests, just two per cent

yielded seizures of contraband, and only a tenth of one per cent led to seizures of guns. According

to Moore, “What this means is that the stops are unjustified more than ninety per cent of the time.”

Moreover, the plaintiffs used Fagan’s findings to support a claim that the police engaged in racial

discrimination. According to Fagan’s analysis, N.Y.P.D. stop-and-frisks are significantly more

frequent for black and Hispanic residents—constituting eighty-four per cent of the stops—than

they are for white residents, even after adjusting for local crime rates, the racial composition of the

local population, and other social and economic factors. “Statistics is a big part of how we are

proving racial discrimination by the police,” Darius Charney, who is a co-lead counsel, with Moore,

in the Floyd case, said. “We don’t need to find blatant racial animus. It doesn’t have to be motivated

by hatred of black or Hispanic people. We are looking at evidence of stereotypical thinking. We’re

looking for cops using race as a factor to make these decisions in a law-enforcement context. It’s

using race as a proxy for crime.”

In public, police officials have a clear answer to these accusations. “We have had tremendous

success,” Raymond Kelly, the police commissioner since 2002, told me. “Crime is down, and stop-

and-frisk is an important reason why.” Civil libertarians say that other factors (such as changing

inner-city demographics and the end of the crack epidemic) are involved, and dispute any clear

correlation between more aggressive police behavior and the falloff in crime. What is indisputable

is that since Bloomberg took office, in 2002, murders have dropped twenty-eight per cent, to four

hundred and nineteen in 2012, the lowest number since the city began keeping records, in 1963.

Even compared with other cities where crime has also declined, New York has experienced

dramatic changes. Since 2002, major crimes across the country have declined fourteen per cent; in

New York, they have declined thirty-four per cent. The contrast is even more striking between New

York and other big cities. If New York had Detroit’s murder rate last year, there would have been

forty-five hundred murders in the city—more than ten times the actual number.

Lawyers for the city tried to make the argument before Scheindlin about the effectiveness of

stop-and-frisk, but she shut them down before they had the chance. In order to rebut Fagan’s

analysis of the UF-250 forms, they sought the testimony of Dennis Smith, a professor of public

policy at New York University who is an expert on police management. In particular, the city

lawyers wanted Smith to testify about his view that the stop-and-frisk policy was an important factor

in what they termed “the historic crime decline achieved by New York City.”

In a pretrial ruling, Scheindlin excluded much of Smith’s proposed testimony. She said that

“permitting the parties to delve into the question of whether the stop-and-frisk program actually

reduces crime would risk turning the trial into a policy debate over the wisdom of the program

rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.” Still, as the trial has

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unfolded, city lawyers have continued to argue that stop-and-frisk has been a success—to

Scheindlin’s mounting irritation. When Brenda Cooke, the city’s lead attorney, who was cross-

examining Fagan, tried to make that point, Scheindlin cut her off.

“I got to put a stop to this,” the Judge said. “It is not a good use of my time. For one thing, I’ve

said repeatedly that one issue that is not present here is the effectiveness of this policy, because

that’s not for this court. This court is only here to judge the constitutionality. . . . We could stop

giving Miranda warnings. That would probably be exciting for reducing crimes. But we don’t allow

that. So there are a number of things that might reduce crime, but they’re unconstitutional. This

court is only concerned with the Constitution, not with the effectiveness of the policy. I’ve tried

and tried to explain that. This is my third or fourth try.”

Even then, the city’s witnesses persisted in defending stop-and-frisk as a sure means to reduce

crime. In a way, the entire conflict in the case came down to a single exchange between Moore and

Joseph J. Esposito, who had just stepped down, after thirteen years, as the chief of department in

the N.Y.P.D., the highest-ranked uniformed officer in the force. Chief Espo, as he is known, was a

renowned figure in the N.Y.P.D., and his demeanor on the stand suggested that he was more

accustomed to giving orders than to answering questions. Esposito poorly concealed his contempt

as Moore, shambling but relentless, pursued him about the propriety of stop-and-frisk. Moore

noted that the number of stop-and-frisks had increased from approximately ninety-seven thousand,

in 2002, to almost six hundred and eighty-five thousand, in 2011.

“So that increase is all on your watch, correct?” Moore asked.

“Yes, it is,” Esposito said, plainly seething. After a slight pause, he volunteered, eyes flashing,

“As is the forty-per-cent decrease in crime during my time—as is the eighty-per-cent decrease in

the last twenty years.”

I n the Southern District, plaintiffs in civil cases can designate new cases as related to old ones and thus guarantee that the same judge presides. Ever since the Daniels case, civil-rights and civil-liberties groups have continued to challenge the stop-and-frisk policies of the N.Y.P.D. Each time, the plaintiffs have made sure that the cases went before Judge Scheindlin, who currently has three such class actions on her docket. The Floyd case challenges the practice citywide; Davis v. City of New York, which will go to trial later this year, involves stops at city-owned housing projects; and Ligon v. City of New York, which is farthest along in the process, concerns searches at privately owned properties around the city.
The Ligon case was initiated by the Bronx Defenders, a nonprofit organization that represents indigent defendants in the borough. The lawsuit was based on the experience of, among others, Charles Bradley, a fifty-year-old security guard from the South Bronx who went to visit his fiancée at her apartment building, in the Parkchester neighborhood, on May 3, 2011. When he went upstairs, she didn’t answer her doorbell at first—she is deaf in one ear—so Bradley went

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downstairs to wait. “An officer got out of an unmarked van and came up to me,” Bradley recalled. “I

just accommodated the officer to the best of my ability, and, in turn, what happened was, he went

into my pockets. . . . There was nothing in my pockets except my house keys, my cell phone, my

wallet. The thing about it that was so appalling was that I had spent my last dollar to see my loved

one. And then he said, ‘Fuck that, you’re going in.’ ” Bradley was arrested for trespassing, a

misdemeanor, and strip-searched.

At the local precinct, Bradley was given a Desk Appearance Ticket, a common first step in the

legal process for minor offenses in New York City. He was instructed to appear in criminal court

on July 19th, but he faced a more immediate problem. “There was a domino effect from being

arrested,” Bradley said. The arrest would be reported to a New York State licensing agency for

security guards, and that might mean the loss of Bradley’s job. “I need a license to be a security

guard, and I would have lost it if they pressed charges,” he said. “If I lose my license, I lose my

income. I could have been put into homelessness for all this.”

Bradley took the ticket to the offices of the Defenders, who have pioneered what they call

“holistic defense,” a method based on recognizing that, for criminal defendants like Bradley,

deportation, eviction, or the loss of parental rights may be more ruinous than conviction or jail.

Bradley met with two lawyers—an employment specialist and a criminal-defense attorney. “Charles

was freaking out,” Molly Kovel, the employment lawyer, said. “We had seen it before. Many of our

clients are security guards or cabdrivers, and both are licensed by the government. For a lot of

minor crimes, the bigger threat to their lives is losing their jobs, rather than getting convicted.”

Kovel kept the licensing authorities at bay while a colleague, Cara Suvall, dealt with the criminal

case. “I had the problem of how to prove his innocence,” Suvall said. “So we went and got a

notarized letter from his fiancée saying that he really was visiting her. I took it to the district

attorney, and they agreed to drop the charges.”

Still, the experience of Bradley and others prompted the Bronx Defenders to file a class-action

suit against the city. The case focussed on the N.Y.P.D.’s Operation Clean Halls program, through

which private landlords give the police advance permission to patrol their property. This led to

Ligon v. City of New York, in which the Defenders were joined by the New York Civil Liberties

Union, the public-interest group Latino Justice, and the law firm of Shearman & Sterling. (Jaenon

Ligon, the lead plaintiff in that class action, had also claimed to be the victim of an unlawful stop-

and-frisk.) They charged that the police were using Operation Clean Halls to conduct

unconstitutional stop-and-frisk searches of innocent citizens like Bradley.

At a hearing in October, 2012, Scheindlin listened to testimony from both Bradley and Miguel

Santiago, the officer who placed the cuffs on him. Santiago testified that Bradley was in a “drug-

prone location” in a high-crime neighborhood and was “suspiciously walking back and forth”

outside the building. Santiago said that he approached Bradley by saying, “Excuse me, sir, could you

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come over here?” and that Bradley could not tell him his girlfriend’s name or produce any

identification. But Judge Scheindlin noted that Santiago’s paperwork contradicted his account in

several ways—he had written, for example, that he approached Bradley inside the building.

In a hundred-and-fifty-seven-page opinion, handed down on January 8th this year, Scheindlin

gave the Defenders a resounding victory. “Officer Santiago claimed that he was able to see

Bradley’s suspicious behavior even though he was inside a police van parked across the street,

twenty or thirty feet from the door, separated from Bradley not only by the street but by the

windows of the front door, a vestibule, the windows of an inner door, and the hallway,” Judge

Scheindlin observed. “I find Bradley’s account credible.” She was especially moved by Bradley’s

story. “If an unjustified stop happens to lead to an unjustified arrest for trespassing, as it did in

Charles Bradley’s case, not every overburdened public defender will have the wherewithal to obtain

a notarized letter from the defendant’s host explaining that the defendant was invited, as Bronx

Defender Cara Suvall did on behalf of Bradley,” she wrote. “When considering the relative

hardships faced by the parties, it is important to consider the potentially dire and long-lasting

consequences that can follow from unconstitutional stops.” Scheindlin concluded that a “very large

number of constitutional violations took place” as a result of Operation Clean Halls.

Scheindlin had found the city liable in the Ligon case, but what was the remedy? Here the Judge

sprang a surprise. She wrote that she was going to decide the city’s punishment in the Ligon case

(which the city had already lost) at the end of the Floyd trial (which had not even taken place). In

other words, it looked as though Scheindlin were scheduling her remedies hearing as if she had

already ruled against the city in Floyd. In a footnote, Scheindlin added, “I emphasize that this ruling

should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in

Floyd.” But the city lawyers in the Floyd case are skeptical that the Judge’s mind is open. “It’s like

she has scheduled our sentencing before she’s even found us guilty,” one said.

P olitically, the verdict on stop-and-frisk seems already clear. The Democratic mayoral candidates running to succeed Michael Bloomberg all criticize stop-and-frisk, differing only in the intensity of their complaints. Christine Quinn, the City Council speaker, said recently, at Barnard College, “I want to leave it as a tool in police officers’ toolboxes,” but she noted, “We need to put an infrastructure of reform around stop-and-frisk.” Bill de Blasio, the public advocate, said at a mayoral forum, “We need to send a message to every young man of color that they are beloved, they are valuable, they are our future. You can’t do that if you’re constantly treating people as suspects.” John Liu, the comptroller, has gone even further. “Stop-and-frisk doesn’t have to be amended, it has to be ended,” he said at the forum.
In response, Bloomberg took the unusual step last month of giving a speech to the leadership of the N.Y.P.D. in which he both celebrated his record in reducing crime and addressed the allegations in the Floyd case. “As the ongoing federal court case is now demonstrating for any objective

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observer to see,” the Mayor said, “the N.Y.P.D. conducts stops based on seeing something

suspicious, or witnesses’ descriptions of suspects, not on any preconceived notions, or on

demographic data that would have you stopping old women as often as you stop young men.”

Commissioner Kelly, for his part, is dismissive of the mayoral candidates’ criticism. “This is just

pandering. This is what goes on in New York politics,” he told me. “They try and get as far left as

they can for the primary, where it’s just a tiny number of people who are voting. Then the challenge

is to get to the center for the general election. That’s all that’s going on here.”

In the courtroom, before Judge Scheindlin, the city is attempting to put on a defense. The

lawyers are pushing back on the plaintiffs’ most incendiary claim—that the stop-and-frisk policy

has been applied in a racially discriminatory manner. “It’s close to a perfect correlation between

who is committing crime and who is being stopped,” Celeste Koeleveld, the deputy Corporation

Counsel who is supervising the defense, said. “That’s true in minority neighborhoods, and also in

predominantly white areas, like Staten Island.” She noted that more than half of the N.Y.P.D.

consists of racial minorities. Kelly goes further, asserting that stop-and-frisk protects, rather than

oppresses, the African-American community. In a speech last month before Al Sharpton’s National

Action Network, Kelly said, “African-Americans, who represent twenty-three per cent of the city’s

population, made up sixty-four per cent of the murder victims and seventy-one per cent of the

shooting victims in this city last year.” He added, “African-American men between the ages of

sixteen and thirty-seven, who are just four per cent of the city’s population, comprise forty per cent

of those murdered citywide; eighty-two per cent of these young men were killed with a firearm. As

a city, as a society, we cannot stand idly by in the face of these facts.” He said, “I believe that this

tactic is lifesaving,” and, referring to Terry v. Ohio, he added, “It is also lawful and constitutional as

upheld by the U.S. Supreme Court in 1968.”

Nevertheless, it appears that public criticism—and Scheindlin’s rulings—has already changed

the behavior of the police. In March, just as the Floyd trial was beginning, the N.Y.P.D. revised its

instructions to officers in filling out the stop-and-frisk reports, demanding that they provide

narrative details on their reasons for the confrontations. More significant, perhaps, in the first

quarter of this year the number of police stops dropped by fifty-one per cent.

I n both the Floyd and the Ligon cases, the plaintiffs are asking for Scheindlin to appoint an independent monitor, to make sure that the police comply with the Constitution. They want the Judge to impose a sort of receivership on the police, creating a dual internal authority as a check on the existing leadership. As a model, the plaintiffs’ lawyers cite a case in Cincinnati a decade ago, in which the city agreed to fund an independent monitor who filed regular reports on the local cops’ compliance with the law. (Bloomberg called this notion a recipe for chaos.) The idea of the independent monitor, like the lawsuits themselves, is rooted in the hope that a single judge can diagnose a complex problem and reform a huge organization like the New York Police Department

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based on the imperfect medium of trial testimony. Scheindlin’s dedication to protecting citizens’

rights is beyond question; it is less clear that she has the wisdom, or even the ability, to impose her

vision in the real world of New York.

Scheindlin’s confidence in her understanding of the Constitution remains unshaken. Back in her

chambers, after a long day of testimony from a plaintiff’s expert on police procedures, Scheindlin

talked about another celebrated case of hers. Shortly after the terrorist attacks of September 11,

2001, investigators found the name and phone number of Osama Awadallah on a scrap of paper in a

car rented by one of the hijackers. On September 21, 2001, F.B.I. agents in California arrested

Awadallah. He was not charged with any crime but was held as a material witness. On October 10th,

he testified before a grand jury in New York that he was acquainted with one of the hijackers but

denied knowing another who lived in the San Diego area. He was indicted for perjury, but on April

20, 2002, before the trial had even begun, Scheindlin threw out the case against him.

In a pair of lengthy opinions, Scheindlin said that the government had violated the material-

witness law, by holding Awadallah too long and under unduly harsh conditions. She quoted the

famous Supreme Court case of Ex Parte Milligan, in 1866: “The Constitution of the United States

is a law for rulers and people, equally in war and in peace, and covers with the shield of its

protection all classes of men, at all times, and under all circumstances.” The Court of Appeals

reversed Scheindlin’s ruling and ordered her to bring Awadallah to trial. The trial ended in a hung

jury; in a second trial, he was acquitted.

“That case was just an enormously satisfying experience,” Scheindlin told me. “What I did was

gutsy, because it was so close to 9/11. For me to suppress that evidence stunned people, because

there was no question that he did know the hijackers. You saw the world changing in how each jury

saw the case. The first jury was eleven-to-one to convict. But by the time of the second trial the

Bush policies were unpopular, and he was acquitted. That was a vindication.”

Each day, before Scheindlin goes to court, the last thing she sees in her chambers is a framed

copy of an article she co-wrote with Brian Lehman, a former law clerk, in the New York La w

Journal. Headlined “ONE DAY IN SEPTEMBER,” and published in September of 2006, it was, like

many stories published around that time, a commemoration of an anniversary. “It was a day in

September that changed America forever,” she wrote. But her story wasn’t about September 11,

2001. It was about September 25, 1789, the day that Congress passed the Bill of Rights. Thanks to

that document, the authors wrote, “If a judge decides that a defendant’s rights have been violated and

the case is dismissed, a remarkable thing happens: the government bows to the rule of law.” ♦

PHOTOGRAPH: REPORTAGE BY GETTY IMAGES
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APPENDIX D

NY 'frisk' judge calls criticism 'below-thebelt'
By LARRY NEUMEISTER May 19, 2013 2:44 PM
NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-andfrisk practices of the New York Police Department has no doubt where she stands with the government.
"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday. It was another moment of candor for a judge known for her call-it-as-she-sees-it manner and willingness to confront government lawyers in a courthouse where many judges — former federal prosecutors themselves — seem less inclined.
"I do think that I treat the government as only one more litigant," she said during the interview that proceeded with a single rule: no questions about the trial over police tactics that reaches closing arguments Monday.
The trial has put the NYPD and City Hall on the defensive as they justify a long-running policy of stopping, questioning and frisking some residents to deter crime. Critics say it discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic, since it has been found to be legal, but she does have the power to order reforms in how it is implemented.
During the trial, she's shown an impatience with lawyers on both sides when they stray from the topic at hand, and a willingness to directly question witnesses — including police supervisors — about the nuts and bolts of trying to keep streets safe.
"I don't think they're entitled to deference," she said of government attorneys. "I think some of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ... They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office, they know the people there, whatever. I try not to do that."

Scheindlin, 66, appointed by President Bill Clinton, has had plenty of high-profile cases in 19 years in federal court, including three trials of John "Junior" Gotti, the son of the late legendary mob boss John Gotti, two trials of a California student who knew two of the Sept. 11 hijackers and the trial of international arms dealer Viktor Bout.
The AP interview came after a New York Daily News article revealed that the staff of Mayor Michael Bloomberg had reviewed her record to show that 60 percent of her 15 written "search-and-seizure" rulings since she took the bench in 1994 had gone against law enforcement.
The judge called it a "below-the-belt attack" on judicial independence. She said it was rare when any judge grants a request to suppress evidence in a law enforcement case and that inclusion of the numerous times when she rejected the requests with oral rulings from the bench would likely reduce the total to less than 5 percent.
She said reports that the mayor's office was behind the study made it worse.
"If that's true, that's quite disgraceful," Scheindlin said. "It was very discouraging and upsetting. I can't say it has no toll."
Of such criticism, she said: "It's very painful. Judges can't really easily defend themselves. ... To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me."
A Bloomberg spokesman said Saturday, "We did a simple search of publicly available written decisions, as the media is also free to do."
The New York County Lawyers' Association called the report meaningless because it sampled so few Scheindlin rulings.
Scheindlin has faced heat before, most notably a decade ago when she presided over the trials of Osama Awadallah and one newspaper labeled her "Osama's best friend," a reference that some could misinterpret to refer to Osama bin Laden.
"You could be in danger, physically," she said.
The Awadallah case is memorable to Scheindlin for how it reflected the mood of the attitude across the country after the Sept. 11 attacks. Awadallah, born in Venezuela and raised in

Jordan, was a young immigrant in San Diego who was picked up as a material witness after his telephone number was found in a car that one of the hijackers drove to the airport on Sept. 11. Prosecutors agreed he was no terrorist but claimed he intentionally misled grand jurors about how well he knew one of the terrorists. Defense attorneys said he was left confused after 20 days in detention.
She said she learned in talking to jurors after Awadallah's first trial that they came within one vote of convicting him of false statements. At the next trial, he was exonerated.
"Same evidence. Same prosecutor. Same defense lawyers. Jury goes from 11-to-1 to 12zip," she recalled. "So I asked what happened. The answer is the country had turned in a new direction."
She said immediately after Sept. 11, "people were so worried and so terrified that the next attack was around the corner that they were willing to cede many of their civil liberties."
She added: "The second half of the (President George W.) Bush term, Bush policies were not popular any longer. People were much more distant from the event of 9/11. Now they were more concerned with civil liberties and less concerned with the security threat. ... I thought it was dramatically shown by what happened in that case."
In choosing law clerks, Scheindlin looks for varied experience like her own. She has been a prosecutor and a defense lawyer and was once politically active.
"I don't want a kid who's just done seven straight years of A's at Harvard," she said. "I want to know that they've done something, worked somewhere. Some experience. Some work. Some life. That makes for a rounded person."
And should they someday become a judge, it makes them well prepared for the rare case of impact.
"That's the day you live for, to do something that you believe is right and that is upheld as right and has a national impact, that's great," Scheindlin said. "That's why people want to be judges, I think, so they can make a difference."
___
Associated Press writers Tom Hays and Colleen Long contributed to this report.

APPENDIX E

11/11/13

New York Law Journal: Stop and Frisk Judge Relishes Her Independence

ALM Properties, Inc. Page printed from: New York Law Journal
Back to Article

Stop-and-Frisk Judge Relishes Her Independence
Mark Hamblett New York Law Journal 2013-05-20 00:00:00.0

The judge presiding over one of the m ost politically charged cases in recent New York City history says her 20 years on the bench have taught her to "appreciate more than ever the words 'judicial independence.'"
Shira Scheindlin, in a recent interview during the nine-week bench trial over the constitutionality of the New York City Police Departm ent's anti-crim e stop, question and frisk policies, said there are too m any judges who don't want to take chances and deliver controversial rulings.
"They are fearful or they want a prom otion or whatever it is, they don't exercise the independence they should have. State court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don't appreciate how m uch independence they have—m any of them are a little cautious, m ore cautious than they should be."
Few court observers would describe Scheindlin as cautious and the judge spoke freely when she sat down recently with the Law Journal to discuss som e of her prior decisions and her views on being a federal judge. The only subject off the table was the ongoing trial, expected to wrap up on May 20 with closing argum ents.
The judge, who already has m ade som e rulings critical of the city for stop-and-frisk, has not been reluctant to m ake controversial decisions in the realm of civil liberties and constitutional law that have drawn the ire of police and prosecutors.
"I do think judges have a duty to protect individual rights because that's what the Bill of Rights is all about," she said. "It's the responsibility of the judiciary to protect those rights granted by our Founders. Now, does that m ake m e an activist? No. Som e people have said I'm conservative because I go back to what the Founders wrote and what they m eant. I see it as abiding by m y constitutional duty and our oath."
Am ong her other m atters, Scheindlin (See Profile) has issued a series of groundbreaking opinions on e-discovery in Zub ulake v. UBS Warb urg, which she regards as her most significant case. (See, for example, NYLJ, May 13, 2003, and July 25, 2003).
She has presided over multi-district litigation on conflicts of interest at investment banks in initial public offerings, and has presided over the trials of m obster John Gotti Jr. and Police Officer Francis Livoti in the use of a deadly chokehold on Anthony Baez.
Scheindlin has held parts of New York's anti-harassment statute unconstitutional; found police in contempt for continuing to enforce a law against loitering for the purposes of begging for m oney or cruising for sex that had long been ruled unconstitutional; held the National Football League was violating the antitrust laws by preventing underclassm an Maurice Clarett from participating in the league draft (later reversed); and com pelled the Metropolitan Transportation Authority to reinstate subway advertising that m ocked Mayor Rudolph Giuliani.
"What I've learned is do what you think is right, follow the law, do what you think you can do," she said. "Sometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer."

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

Scheindlin, 66, has earned a reputation as a hard-working judge and has kept up a full docket since taking senior status last year. She takes an average of 15 new cases a month and has a pending caseload of 132, not including related cases in multidistrict litigation. Her workload is in the upper half of senior judges in the district.

She sets a quick pace in her courtroom, with little tolerance for lawyers who obfuscate or belabor a point. She often asks questions herself when things slow down, although she said, "I don't think I've committed the sin of taking over trials."

"She is a judge who runs a very, very strong courtroom and has a clear idea of how she wants to do it," said one veteran Southern District practitioner.

"I think sometimes people can be critical of her because she can sometimes be sharp to litigants, put people down and be critical. But from m y experience, when she com es on the bench, she's prepared, she has strong views and she has the courage of her convictions," he added. "Her ideas can sometimes be idiosyncratic. She's not afraid to think independently."

Scheindlin "runs a very orderly courtroom , dignified, and as a jurist she's not only sm art but she's creative," said Robert Swift of Kohn Swift & Graf in Philadelphia, who has appeared before her. "She asks good questions and is polite to counsel, but, by the sam e token, she doesn't let counsel argue silly m otions or m ake silly requests—she's well in control of her courtroom . She's certainly been reversed, but that's also indicative of a judge being certain of what the law should be—not just what it is."

Like other judges, Scheindlin said she expects lawyers who appear before her to be well prepared.

"They need to be fam iliar with the facts and the law on the spot and not say, 'Oh sorry, I have to go look that up, or 'I'm sorry, I have to ask a colleague,'" she said.

Unusual Path to the Law

Scheindlin was born in Washington, D.C., raised in Detroit, and educated at the University of Michigan, Colum bia University and Cornell Law School.

She was working at Columbia as a graduate student in Far Eastern studies, but she said the language requirements were so rigorous—years of Chinese and Japanese included—"that I knew I would never finish m y dissertation. So I said, 'What's next?'

"I really didn't know m uch about the law but I knew it offered a broad education that gives you lots of possibilities of what you might do with it afterward," she said.

"I think at that point I thought I was going to be doing divorces and house closings and DWIs," she said. "I thought I'd be a local town lawyer married to a professor on the campus."

After graduating from Cornell in 1975, she spent a year at Stroock & Stroock & Lavan, then clerked for Southern District Judge Charles Brieant and was hired by David Trager, who was then the U.S. attorney in the Eastern District. She rose from general prosecutions to handling political corruption cases before being nam ed deputy chief of the Econom ic Crim es Unit while working as Trager's administrative assistant U.S. attorney.

Scheindlin counts Trager, along with Brieant and Eastern District Judge Jack Weinstein, as mentors.

Trager, she said, "was funny, he would speak in the im perative—'you will get a clerkship, you will apply to be a m agistrate."

She spent a year as general counsel at the New York City Departm ent of Education and then returned to the Eastern District as a m agistrate judge from 1982 to 1986, where she was also appointed as special m aster by Weinstein in the Agent Orange cases and litigation over asbestos.

Scheindlin returned to private practice in 1986 as a partner with Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and then Herzfeld & Rubin, where she worked as a com m ercial litigator until she was nam ed a federal judge by President Bill Clinton in 1994, part of a wave of new judges who sometimes refer to themselves as the "Class of '94."

It is rare for magistrates to be promoted to Article III judgeships, and Scheindlin said her experience as a special master and magistrate —the first woman magistrate judge or district judge in the Eastern District—helped her hit the ground running when she took the bench in Manhattan.

"I just took that bench and I knew what I was doing," she said. "And I got feedback right away like, 'Boy you look like you've been doing this forever' and I would make a joke, 'Well, that's because I have.'"

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She added,"I was incredibly fortunate—it is not easy for those who have not had any judicial experience."

Scheindlin said she never had any interest in m oving to the U.S. Court of Appeals for the Second Circuit because cases are built at the district court level.

District judges "have a much more exciting job than the Court of Appeals, because we shape the case in the first instance. We shape the issue—the case comes in the door and we are the first judge on the line, with the first crack at giving an answer and shaping a ruling, shaping the whole future of that case, right?

"The Court of Appeals has to use what we've done—we have the tough job—all they can do is review it and say 'You got it right or you got it wrong.'"

Scheindlin said the problem with the appellate court is that "there you've got to negotiate and get votes and there's three of you and you can end up in dissent when you really don't want to. To m e, this is the best of all worlds."

One case where the circuit said Scheindlin "got it wrong" was an opinion she remains proud of—her ruling that the governm ent had abused the m aterial witness statute by detaining Osam a Awadallah in the 9/11 investigation and then prosecuting him for perjury. Awadallah had known two of the 9/11 hijackers in California (NYLJ, April 30, 2002).

Scheindlin dism issed the charges, calling it a "perjury trap" and holding the m aterial witness statute was intended to be used only for trial witnesses, not people being interviewed in connection with an investigation.

The Second Circuit reversed and sent it back for trial (NYLJ, Nov. 10, 2003). The first jury hung 11 to 1 for conviction. The second, the judge recalled, "was 12-zip for acquittal."

"What happened in between?" Scheindlin asked. "It was exactly the sam e evidence, the sam e lawyers, and it was word for word the same trial record. What happened is that, it was later in the Bush administration and his policies were no longer as popular and people had pulled back…and were now looking at som e of the consequences of the event that they didn't really like."

But the judge also said that the jury in the second trial was subjected to a "m uch stronger voir dire."

"The second questionnaire worked m uch harder to probe bias—'did you know anybody even indirectly, who was injured that day?'"

"We know that the first jury was in tears, people were crying, telling about their neighbor who had lost a son, which was not at all the point of the prosecution."

'Judges Are Hum an Beings'

Scheindlin's ruling in the Awadallah case drew criticism that she said found hard to take.

"Judges are hum an beings and it always hurts to be attacked when you can't defend yourself—that's a very painful thing," she said. "Over the years I have read editorials such as the famous 'Osama's Best Friend' after the Awadallah decision, it was hurtful.

"I would have liked to have been able to explain the decision so that the public understood it so I was not wrongly attacked but a judge doesn't have that ability," she said. "In recent years the bar associations have really stepped up to the plate and tried to defend judges, not on the m erits of their decisions but by explaining their job, that the judge is a neutral and does the best they can. To attack them personally when it's not a m atter of dishonesty, just disagreem ent, is a terrible thing."

With her involvem ent in the stop-and-frisk litigation Scheindlin has had to cope with sharp criticism from city officials like Police Commissioner Raymond Kelly, who has accused her of being in the thrall of a few civil rights lawyers.

The New York County Lawyers' Association wrote to the New York Daily News on May 15 to protest an article reporting that an "internal report" by the m ayor's office purporting to show that Scheindlin is biased against law enforcem ent because she has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994.

In its letter, NYCLA argued that the report was m is leading becaus e it did not cons ider her s uppres s ion decis ions from the bench. Moreover, NYCLA wrote, "Judges are not s uppos ed to grade on the curve. They are s uppos ed to decide cas es on their merits," and the report didn't consider the merits of Scheindlin's rulings.

"I think it's inappropriate to label any judge as liberal or conservative," Scheindlin said in the interview. "I like to think of m yself as a fair-m inded neutral who calls the case outcom es the way that the law and justice require."

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

Scheindlin said she thinks Americans' attitude toward civil liberties has changed since the Sept. 11, 2001, terrorist attacks.

"I think it's better—I think the worst tim e was around 9/11. People just didn't want to hear about the rights of anybody when they felt their security was threatened—so I think, actually its been slowly better for the last decade as 9/11 has receded," she said. "One worries again, though, with the Boston Marathon bombers and whether public opinion shifts back, but I don't think anybody was particularly outraged [the surviving suspect] wasn't read Miranda rights.

"It's events like this that test people's commitments to civil liberties…I think the atmosphere has been much better because more of the population has been critical of what I might call the Bush-era policies—the torture memo, the Guantanamo issue, the m ilitary courts, the detention without charges."

She said she thinks that President Barack Obama would like to close the detention center at Guantanamo but cannot get Congress to go along.

"It's deeply troubling to hold people in perpetuity without charging them ," Scheindlin said. "We like to think we don't do that."

Scheindlin said that politics influences the selection of federal judges, but that is m ainly on the appellate court level.

"Let's be realistic, these are political appointm ents and the m akeup of the circuit judges in this circuit is slowly changing now that President Obama has been here five years," she said.

But she said that the Southern District had been "extraordinarily lucky" in avoiding political polarization.

"I'm saying that it's not partisan, she said. "All through the Bush years, all through the Obam a years we have had really high quality people. We are so lucky here we don't have political hacks. We have well-qualified judges virtually across the board."

Scheindlin said that she was disappointed in the U.S. Supreme Court's ruling last month on the Alien Tort Claims Act, Kiob el v. Royal Dutch Petroleum, 569 U.S. — (2013), determining that there was no extraterritorial application of the law.

In 2009, Scheindlin had recognized aiding and abetting liability for corporations on hum an rights violations in South Africa, the case along with Awadallah that has given her the greatest pride (NYLJ, April 9, 2009). But her ruling was put on hold while the Supreme Court considered the issue.

Scheindlin said Justice Samuel Alito "reached out" and skirted the aiding and abetting question just to strike down the law on extraterritoriality grounds, and "that was sad."

Scheindlin observed that new technologies had changed the law since she joined the bench, as evidenced by her own ediscovery rulings in Zub ulake and other cases.

"This is what lawyers really talk about—social m edia, GPS, cell sites, data collection, technology-assisted review," she said. "The biggest change in the law is that all these issues that have arisen out of the new world we live in.

"Now, the civil side is very advanced, the crim inal side is just beginning to catch up, but all data is electronic data, all discovery is e-discovery," she said.

And, like m any judges, she worries about the im pact of social m edia on juries.

In the case of arm s trafficker Viktor Bout, she m ade the jury sign a "pledge" not to go on Facebook, Twitter, LinkedIn or other outlets and prom ise they would not com m unicate that way, and if they did, "they understood they would be subjected to prosecution which was supposed to be an in terrorem effect," she said.

They signed, but one juror in the whole selection process said, "'I can't sign that' and I said ' Well, thank you for telling m e, you're off," Scheindlin said. "It really is threatening to the jury system —the ease of obtaining evidence outside the courtroom . This has happened again and again."

Scheindlin has been m arried for alm os t 30 years to Stanley Friedm an, the as s ociate dean of education at SUNY Downs tate Medical Center. She has two grown children.

She adm its to having virtually no outside interests.

"I love to work," she said. "The only other way I know how to enjoy m yself is exercise. Otherwise, I'm a great reader. I love audio books."

www.newyorklawjournal.com/PubArticleFriendlyNY.jsp?id=1202600625151#

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11/11/13

New York Law Journal: Stop and Frisk Judge Relishes Her Independence

She said she's at the courthouse m ost days from 10 a.m to 8 p.m ., "really living here." She also works all weekend and requires her clerks to work one weekend day.

"This is sort of m y hom e away from hom e," she said.

@|Mark Hamb lett can b e contacted at mhamb lett@alm.com.

Copyright 2013. ALM Media Properties, LLC. All rights reserved.

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

ANNALS OF LAW
RIGHTS AND WRONGS
A judge takes on stop-and-frisk.
by Jeffrey Toobin
MAY 27, 2013
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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? Photograph by Antonio Bolfo.

“I don’t love trials,” Judge Shira Scheindlin said recently. “They are not a good way to tell a story. They are not efficient. And they are often so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the

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NY 'frisk' judge calls criticism 'below-thebelt'
By LARRY NEUMEISTER May 19, 2013 2:44 PM
NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-andfrisk practices of the New York Police Department has no doubt where she stands with the government.
"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday. It was another moment of candor for a judge known for her call-it-as-she-sees-it manner and willingness to confront government lawyers in a courthouse where many judges — former federal prosecutors themselves — seem less inclined.
"I do think that I treat the government as only one more litigant," she said during the interview that proceeded with a single rule: no questions about the trial over police tactics that reaches closing arguments Monday.
The trial has put the NYPD and City Hall on the defensive as they justify a long-running policy of stopping, questioning and frisking some residents to deter crime. Critics say it discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic, since it has been found to be legal, but she does have the power to order reforms in how it is implemented.
During the trial, she's shown an impatience with lawyers on both sides when they stray from the topic at hand, and a willingness to directly question witnesses — including police supervisors — about the nuts and bolts of trying to keep streets safe.
"I don't think they're entitled to deference," she said of government attorneys. "I think some of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ... They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office, they know the people there, whatever. I try not to do that."