Case 1:08-cv-02173-SAS Document 1 Filed 03/04/08 Page 1 of 23

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------------------------------------)(
PAUL CASALE and ANTHONY GARCIA, on Behalf of Themselves and Others Similarly Situated,
Plaintiffs,
-against-

0
-CV-
CLASS ACTION COMPLAINT AND JURY DEMAND

RAYMOND W. KELLY, Commissioner of the New York City Police Department (NYPD); CITY OF NEW YORK; JOHN/JANE DOES1-50 (NYPD Supervisory, Training and Policy Personnel); JOHN/JANE DOES 51-100 (NYPD police officers);
Defendants. -----------------------------------------------------------------)(
Plaintiffs Paul Casale and Anthony Garcia ("Plaintiffs"), on behalf ofthemselves
and others similarly situated, for their Complaint, allege as follows:
INTRODUCTION
1. Almost two decades ago, in 1988, the New York State Court of Appeals
declared unconstitutional New York Penal Law § 240.35(7), which provided that a person is
guilty of"loitering" when he "loiters or remains in a transportation facility, or is found sleeping
therein, and is unable to give a satisfactory e)(planation ofhis presence." See People v. Bright,
71 N.Y.2d 376, 526 N.Y.S.2d 66 (1988).
2. Five years earlier, in 1983, the New York State Court of Appeals declared
unconstitutional New York Penal Law § 240.35(3), which provided that a person is guilty of
'"loitering" when he ""loiters or remains in a public place for the purpose of engaging, or soliciting

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another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of

a deviate nature." See People v. Uplinger. 58 N.Y.2d 936,460 N.Y.S.2d 514 (1983).

3. Notwithstanding the clear commands ofUplinger and Bright, the New

York City Police Department ("NYPD") has continued to arrest, summons, charge and prosecute

individuals such as plaintiffs Paul Casale and Anthony Garcia for violations of unconstitutional

subsections of the loitering statute P.L. § 240.35, including P.L. § 240.35(3) and§ 240.35(7).

This is inexcusable. It is stunningly inept. It must be stopped.

4.

On March 4, 2007, while plaintiff Paul Casale was peacefully standing in

the vicinity of 42nd Street and Eighth Avenue, New York, New York, he was wrongfully

summoned and charged by uniformed officers employed by the NYPD, with loitering in violation

ofP.L. § 240.35(7).

5. On March 4, 2007, while plaintiffAnthony Garcia was peacefully standing

in the vicinity of 42nd Street and Eighth Avenue, New York, New York, he was wrongfully

summoned and charged by uniformed officers employed by the NYPD, with loitering in violation

ofP.L. § 240.35(7).

6. This action seeks to end- finally, for all time- this pattern and practice of

unconstitutional conduct by pobce officers in the NYPD (the "Loitering Charges Policy."). It

defies belief that defendants continue to arrest, summons, and prosecute citizens for loitering

under the authority of void statutes struck down as unconstitutional more than two decades ago.

7. Plaintiffs Paul Casale and Anthony Garcia bring this action for injunctive

and declaratory relief, and for money damages, on behalf of themselves and other individuals

similarly situated who have been wrongfully charged under a subsection ofP.L. § 240.35

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(including but not limited to P.L. § 240.35(3) and P.L. § 240.35(7)) after that subsections was declared unconstitutional by the New York State Court of Appeals (hereinafter the "unconstitutional subsections ofP.L. § 240.35"), and to redress defendants' violations of their rights under the Fourth, Fifth, and Fourteenth Amendments ofthe United States. 1 Plaintiffs seeks an appropriate remedial order to ensure an end to the utterly lawless enforcement of criminal statutes that were adjudicated unconstitutional in the 1980s.
JURISDICTION AND VENUE 8. This action arises under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983, and state law. 9. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, 1343(a) and 1367. 10. The acts complained of occurred in the Southern District of New York and venue is lodged in this Court pursuant to 28 U.S.C. § 1391 (b).
JURY DEMAND 11. Plaintiffs demand trial by jury in this action.
THE PARTIES 12. PlaintiffPAUL CASALE is a citizen ofthe United States and was a resident of New York County at the time of the incidents alleged in this action. 13. Plaintiff ANTHONY GARCIA is a citizen ofthe United States and was a resident of Kings County at the time of the incidents alleged in this action.
1 This action does not challenge the wrongful enforcement of New York Penal Law § 240.35(1) which is the subject of another pending action in this district. See Brown v. Kelly, et al., 05 Civ. 5442.
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14. Defendant CITY OF NEW YORK ("City") is a municipality organized and existing under the laws of the State of New York. At all times relevant hereto, defendant City, acting through the New Yark City Police Department ("NYPD"), was responsible for the policy, practice, supervision, implementation, and conduct of all NYPD matters and was responsible for the appointment, training, supervision, and conduct of all NYPD personnel, including the defendants referenced herein. In addition, at all relevant times, defendant City was responsible for enforcing the rules of the NYPD, and for ensuring that NYPD personnel obey the laws ofthe United States and ofthe State ofNew York.
15. In addition to the facts alleged in the following paragraphs, the following defendants all acted within the scope of their employment and under color of law, including the statutes, ordinances, regulations, policies, customs and usages of the City of New Yark, State of New Yark, and/or New York, Bronx, Kings, Queens and Richmond Counties. The following defendants are all sued in their individual and official capacities.
16. At all relevant times defendant RAYMOND W. KELLY was the Police Commissioner ofthe City ofNew York and, as such, made and enforced policy ofthe NYPD, and acted in his capacity as agent, servant, and employee of defendant City, within the scope of his employment as such, and under color of state law.
17. At all relevant times, defendants "Jane/John Does 1-50" (hereinafter "NYPD Supervisory Defendants") were training, supervisory and policy making personnel within the NYPD who implemented, enforced, perpetuated and/or allowed the unconscionable Loitering Charges Policy that is the subject of this action, acting in the capacity of agents, servants and employees of defendant City and within the s~ope of their employment as such.
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Plaintiffs are unable to determine the names of these NYPD Supervisory defendants at this time and thus sues them under a fictitious designation.
18. At all relevant times, defendants "Jane/John Does 51-1 00" (hereinafter "NYPD Individual Defendants") were NYPD police officers who charged plaintiffs and/or members of the plaintiff class pursuant to the Loitering Charges Policy and/or failed to prevent others from doing so, acting in the capacity of agents, servants and employees of defendant City and within the scope of their employment as such. Plaintiffs are unable to determine the names of these NYPD police officers at this time and thus sues them under a fictitious designation..
19. During all times mentioned in this complaint, the defendants and each of them, separately and in concert, engaged in acts and/or omissions which constituted deprivations of plaintiffs' constitutional rights, and the privileges and immunities ofthe plaintiffs, and while these acts were carried out under color oflaw, they had no justification or excuse, and were instead gratuitous, illegal, improper and unrelated to any activity in which law enforcement officers may appropriately and legally engage in the course of protecting persons and property and/or ensuring civil order.
CLASS ACTION ALLEGATIONS 20. Plaintiffs Paul Casale and Anthony Garcia bring this action as a class action under Fed. R. Civ. P. 23(b)(2) for violations of their constitutional and common law rights. The Rule (b)(2) Class is comprised of all persons who were or will be wrongfully charged under a subsection ofP.L § 240.35 after that subsection was declared unconstitutional by the New York State Court of Appeals, and accordingly, who are threatened with future unlawful enforcement of an unconstitutional subsection ofP.L § 240.35.
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21. Defendants have acted, or failed to act, on grounds generally applicable to the Rule (b)(2) Class, thereby making appropriate final injunctive relief with respect to the Rule (b)(2) Class as a whole.
22. On information and belief, the Rule (b)(2) class includes hundreds of members. They are so numerous that joinder of all Class members is impracticable.
23. Plaintiffs Paul Casale and Anthony Garcia also bring this action as a class action under Fed. R. Civ. P. 23(b)(3), on behalf of themselves and other individuals similarly situated who have been wrongfully charged under a subsection ofP.L. § 240.35 after that subsection was declared unconstitutional by the New York State Court of Appeals, for violations of their constitutional and common law rights. The Rule (b)(3) Class is comprised of all persons charged with a subsection ofP.L. § 240.35 after that subsection was declared unconstitutional by the New York State Court ofAppeals, during the fullest period permitted by the applicable statute of limitations, including but not limited to all persons detained, arrested, charged, or to whom summons were issued.
24. All of the members of the Rule (b)(3) class were injured as a result of defendants' conduct.
25. On information and belief, the Rule (b)(3) class includes hundreds of individuals. They are so numerous that joinder of all Class members is impracticable.
26. The questions oflaw and fact presented by plaintiffs Paul Casale and Anthony Garcia are common to other members of the class. Among others, the questions oflaw and fact common to the Class are: (i) whether (and which) defendants enforced or failed to prevent the enforcement of unconstitutional subsections ofP.L. § 240.35, including without
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limitation wrongfully arresting, detaining, charging, summonsing, imprisoning and/or prosecuting class members for violations ofP.L. § 240.35(3) and P.L. § 240.35(7), after these statutes had already been declared unconstitutional by the New York State Court of Appeals; (ii) the existence of a pattern and practice of enforcement of unconstitutional subsections of P .L. § 240.35 or failure to prevent their enforcement, including but not limited to wrongful arrests, summonses, and prosecutions of violations ofP.L. § 240.35(3) and P.L. § 240.35(7); (iii) the acquiescence of supervisory personnel in the NYPD in the known unlawful acts of subordinates; and the failure of supervisory defendants to train, supervise, and discipline police officers and assistant district attorneys in their respective institutions; and (iv) the appropriate injunctive remedies that will be needed to ensure (a) that the Loitering Charges Policy is terminated in every respect and (b) that its harmful effects are nullified.
27. Common issues oflaw and fact such as those set forth above (and many others) predominate over any individual issues.
28. The Loitering Charges Policy has resulted in the wrongful detention, summonsing, charging, arrest, confinement and prosecution of citizens engaged in lawful activities, and the infliction of physical and psychological injuries on those individuals. The claims and practices alleged in this complaint are common to all members of the class.
29. The violations suffered by plaintiffs Paul Casale and Anthony Garcia are typical of those suffered by the class. The entire class will benefit from the remedial and monetary relief sought.
30. Plaintiffs Paul Casale and Anthony Garcia have no conflict of interest with any Class members, and will fairly and adequately protect the interests of the class. Counsel
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competent and experienced in federal class action and federal civil rights litigation has been retained to represent the class. Emery Celli Brinckerhoff & Abady LLP is a law firm with offices in New York City with extensive experience in civil rights litigation and class action lawsuits against state and local governments and the NYPD. The Bronx Defenders is a not-for-profit law firm specializing in criminal defense practice with extensive experience in police and prosecutorial practices, and experience in civil rights litigation. Earl Ward Esq. is a civil rights and criminal defense attorney with offices in New York City with extensive experience in civil rights and police misconduct litigation.
31. This action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all members is not only impracticable, but impossible given the often peripatetic nature of the members of the Class. The damages suffered by certain members ofthe Class, although substantial, are small in relation to the extraordinary expense and burden of individual litigation and therefore it is highly impractical for such Class members to attempt redress for damages incurred due to their wrong:fi.1l arrest and confinement.
32. There will be no extraordinary difficulty in the management of the Class action.
FACTS 33. PlaintiffPaul Casale is a 50-year old man. 34. Plaintiff Anthony Garcia is a 33-year old man. 35. Before its nullification, P.L. § 240.35(7) provided, in relevant part, that a person is guilty of "loitering" when he "loiters or remains in a transportation facility, or is found sleeping therein, and is tmable to give a satisfactory explanation ofhis presence."
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36. ·In 1988, in People v. Bright 71 N.Y.2d 376, 526 N.Y.S.2d 66 (1988), the New York State Court of Appeals held that P.L. § 240.35(7) was unconstitutional.
37. Before its nullification, P.L. § 240.35(3) provided, in relevant part, that a person is guilty of"loitering" when he "loiters or remains in a public place for the purpose of engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature."
38. In 1983, in People v. Uplinger, 58 N.Y.2d 936,460 N.Y.S.2d 514 (1983), the New York State Court of Appeals held that P.L. § 240.35(3) was unconstitutional.
39. Since these decisions, loitering under subsections (3) and (7) ofP.L. § 240.35 has not been a crime, offense, or violation in New York State.
The Unconstitutional Charges Lodged Against Mr. Casale and Mr. Garcia 40. On March 4, 2007, Mr. Casale was peacefully standing in a public place at
or about 42nd Street and Eighth Avenue, County ofNew York, New York, waiting to meet a friend, when defendant police officers John Does Nos. 1 and 2 stopped, detained and charged Mr. Casale with loitering in violation ofP.L. § 240.35(7).
41. Mr. Casale was verbally and mentally abused by defendant police officers John Does Nos. 1 and 2.
42. Mr. Casale was subjected to an unlawful strip search by defendants. 43. On April 4,2007, the criminal prosecution against Mr. Casale was terminated favorably to Mr. Casale when the case was dismissed in the Criminal Court of the City of New York.
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44. On March 4, 2007, Mr. Garcia was peacefully standing in a public place at or about 42nd Street and Eighth Avenue, County of New York, New York, after dropping off a friend, when defendant police officers John Does Nos. 1 and 2 stopped, detained and charged Mr. Garcia with loitering in violation ofP.L. § 240.35(7).
45. Mr. Garcia was verbally and mentally abused by defendant police officers John Does Nos. 1 and 2.
46. Mr. Garcia was subjected to an unlawful strip search by defendants. 47. On April 4, 2007, the criminal prosecution against Mr. Garcia was terminated favorably to Mr. Garcia when the case was dismissed in the Criminal Court of the City ofNew York. 48. As a result of the aforesaid wrongful charges brought against Mr. Casale and Mr. Garcia for loitering in violation ofP.L. § 240.35(3), plaintiffs were wrongfully detained and charged without reason or probable cause. 49. As a result of defendants' repeated tmlawful and unconstitutional conduct described herein, plaintiffs and members of the plaintiff class suffered physical injuries, emotional distress, mental anguish, humiliation, and psychological trauma. 50. The above-described wrongful, unjustifiable, and unlawful arrests, summonses, imprisonments, and prosecutions of plaintiffs Mr. Casale and Mr. Garcia were carried out without valid warrants, without plaintiffs' consent, and without probable cause. 51. In charging Mr. Casale and Mr. Garcia with loitering in violation ofP.L. § 240.35(3), or failing to prevent these occurrences, all defendants acted with malice, in that they knew or should have known that P.L. § 240.35(3) was long ago declared unconstitutional.
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Unconstitutional Policy and Practice in the NYPD 52. At all relevant times, the City, acting through the NYPD, maintained a de
facto policy, custom and practice of enforcement ofparticular subsections ofP.L. § 240.35 after these subsections were declared unconstitutional by the New York State Court of Appeals, and of failing to train, supervise, or discipline police officers regarding their obligation to cease any enforcement of an unconstitutional subsection ofP.L. § 240.35.
53. On information and belief, there were a minimum of 125 outstanding warrants for arrests for violations of subsections ofP.L. § 240.35 that were previously held unconstitutional by the New York State Court of Appeals as of March 2007.
54. On information and belief, countless more unlawful arrests and summonses occurred for violations of unconstitutional subsections ofP.L. § 240.35 in all five counties ofthe City ofNew York, between the dates that the Court of Appeals invalidated these subsections of the loitering law and today.
55. On information and belief, countless more unlawful arrests and summonses occurred for violations of unconstitutional subsections ofP.L. § 240.35 but no longer appear in the record due to the decisions of the NYPD to void the arrest, the decisions of the District Attorney's Offices not to prosecute, or due to various other dispositions.
56. In light ofthe many hundreds of arrests and summonses throughout New York City for violations of unconstitutional subsections of P.L. § 240.35, defendants knew, or should have known, that many police officers were engaging in the lawless and unconstitutional practice of arresting people for violations of void and unenforceable statutes; yet defendants have repeatedly failed to take any action to end this conduct.
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57. The NYPD Supervisory Defendants' failure to train, discipline or supervise police officers regarding their obligation not to charge individuals for violations of unconstitutional subsections ofP.L. § 240.35, and their obligation not to enforce these subsections of the statute, exhibited gross and wanton deliberate indifference to the constitutional rights of plaintiffs and members ofthe Class.
58. On information and belief, the arrest of citizens and issuance of summonses for violations of void subsections of the loitering statute was and is well known throughout the NYPD. Nevertheless, the NYPD Supervisory Defendants continue to allow police officers to continue the practice, and tolerated these unconstitutional practices. The failure to take measures to curb this unconstitutional conduct constitutes an acquiescence in the known unlawful behavior of their subordinates. The prevalence of these arrests and summonses and general knowledge of their existence, and the failure of the supervisory defendants to take remedial action, constitute deliberate indifference to the rights of plaintiffs and the Class.
59. The NYPD Supervisory Defendants conduct has, moreover, been a substantial factor in the continuance of such arrests and summonses and a proximate cause of the constitutional violations alleged in this complaint.
60. Because the pattern or practice of arresting individuals and issuing summonses for violations of unconstitutional subsections ofP.L. § 240.35 has existed for many years in the NYPD, the NYPD Supervisory Defendants knew, or should have known, that police officers were engaging in the lawless and unconstitutional practice of arresting people and issuing summonses for violations of a void statute, yet defendants repeatedly failed to take any action to end this conduct by the police officers.
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61. Because, upon information and belief, a pattern or practice existed of arresting individuals and issuing summonses for violations of unconstitutional subsections of P.L. § 240.35, the NYPD Supervisory Defendants knew or should have known that police officers assigned to these precincts required training, supervision, and discipline regarding their obligations not to enforce this void statute. Liability oftlze City o(New York
62. Currently, as well as prior to and at the time ofthe arrests of Mr. Casale and Mr. Garcia, there exists and existed in the NYPD a pattern and practice of enforcing unconstitutional subsections ofP.L. § 240.35 by police officers.
63. The pattern of unconstitutional arrests, summons, and prosecutions for violations of void statutes; the failure to train staff regarding the nullity of the statutes; and the failure to supervise and/or discipline staff responsible for the unconstitutional arrests, summonses, and prosecutions, are so institutionalized as to represent a policy or custom of unconstitutional arrests and summonses for violations of unconstitutional subsections of P.L.§ 240.35, that caused the deprivation of plaintiffs' rights and those ofthe Class.
64. The NYPD, through its supervisory staff and police officers, has failed or refused to hold accountable high-ranking supervisors - commanding officers - in the face of frequent misconduct, over a period of years, by these supervisors and by the staff they supervise. This failure is a proximate cause of the injuries sustained by Mr. Casale, Mr. Garcia and by other individuals charged with tmconstitutional subsections of P.L.§ 240.35. The continuing inaction of the NYPD Supervisory Defendants exposes current and future citizens, including Mr. Casale,
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Mr. Garcia and members of the Class to a pervasive risk of arrest, summons, and prosecution for a void crime.
65. The pattern of unconstitutional arrests and summonses by police officers, and resulting prosecutions by assistant district attorneys; the extent to which these unlawful practices have been adopted by significant numbers of staff; and the persistent failure ofthe NYPD to supervise these officers properly and to take action to curb the misconduct, demonstrate a policy of deliberate indifference which tacitly authorizes the unconstitutional charges lodged against citizens like Mr. Casale and Mr. Garcia.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983; Fourth, Fifth
and Fourteenth Amendments (Against the Individual NYPD Defendants) 66. Plaintiffs repeat, reiterate and reallege each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though set forth herein. 67. By falsely arresting, falsely imprisoning, charging, and maliciously prosecuting Mr. Casale, Mr. Garcia and members of the class without probable cause or allowing such arrests to occur, defendants Jane/John Does 51-100 deprived plaintiffs and the putative class of their rights, remedies, privileges, and immunities guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. 68. By arresting, summonsing, charging, arraigning, and prosecuting the named Plaintiffs and members of the plaintiff class under unconstitutional and void statutes, defendants acted in an arbitrary, conscience-shocking and oppressive manner in violation of
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plaintiffs' rights to due process oflaw under the Fifth and Fourteenth Amendment to the United States Constitution.
69. The Individual NYPD Defendants acted under pretense and color of state law and in their individual and official capacities and within the scope of their employment.
70. The Individual NYPD Defendants acted beyond the scope oftheir jurisdiction, without authority oflaw, and abused their powers.
71. The Individual NYPD Defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs and members of the Class oftheir constitutional rights.
72. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiffs and members of the Class sustained the damages hereinbefore alleged.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 Supervisory Liability (against the NYPD Supervisory Defendants) 73. Plaintiffs repeat, reiterate and reallege each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though fully set forth herein. 74. The NYPD Supervisory Defendants were, at the relevant times, supervisory personnel of the New York City Police Department, with oversight responsibility over the Individual NYPD Defendants. They were responsible for the training, instruction, supervision and discipline of the Individual NYPD Defendants, who falsely arrested and imprisoned plaintiffs and members of the Class, and violated their constitutional rights. 75. On information and belief, the NYPD Supervisory Defendants were aware and well-informed of the Individual NYPD Defendants' conduct of false arrest, false
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imprisonment, malicious prosecution, strip-searches, and violations of their constitutional rights perpetrated against plaintiffs and others.
76. The NYPD Supervisory Defendants had actual or constructive knowledge that the Individual NYPD Defendants were engaged in conduct that posed a pervasive and unreasonable threat to the constitutional rights ofMr. Casale, Mr. Garcia and others.
77. The NYPD Supervisory Defendants failed to protect Mr. Casale, Mr. Garcia and members of the Class despite their knowledge that the Individual NYPD Defendants violated their constitutional rights and posed a serious threat to their being allowed to freely exercise their constitutionally protected rights.
78. The response of the NYPD Supervisory Defendants to their knowledge of this threat was so inadequate as to show deliberate indifference or tacit approval of the conduct ofthe Individual NYPD Defendants.
79. The failure of the NYPD Supervisory Defendants to supervise and discipline the Individual NYPD Defendants amounted to gross negligence, deliberate indifference, and/or intentional misconduct.
80. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiffs and members of the class sustained the damages herein before alleged.
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THIRD CAUSE OF ACTION 42 U.S.C. § 1983- Municipal Liability/NYPD
(Against defendant City) 81. Plaintiffs repeats, reiterates and realleges each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though fully set forth herein. 82. Since the New York State Court of Appeal declared certain subsections of the loitering statute P.L. § 240.35 unconstitutional, defendant City has permitted, tolerated and been deliberately indifferent to a pattern and practice of illegal behavior by members of the NYPD. 83. Defendant City had knowledge to a moral certainty that members of the NYPD named as defendants in this case had falsely arrested, summonsed, and imprisoned plaintiffs for constitutionally invalid subsections ofP.L. § 240.35, in violation ofplaintiffs' Fourth, Fifth, and Fourteenth Amendment rights. Although the behavior of police officers towards plaintiffs and members of the Class was improper, outrageous, and shocking to the conscience, on information and belief, none of the police officers involved has been prosecuted, disciplined or subjected to retraining. 84. Permitting such outrageous behavior has resulted in frequent violations of federal constitutional rights. The violations of these rights have been known to defendants, who have failed to maintain a proper system for investigation of all incidents of illegal actions by defendants. 85. Defendant City has failed to train police officers that arrests and summonses made under unconstitutional subsections ofP.L § 240.35 are invalid.
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86. Defendant City's failure to train police officers that arrests and summonses made under unconstitutional subsections ofP.L. § 240.35 were invalid constituted deliberate indifference to the federally protected rights of plaintiffs and the Class.
87. Defendant City failed to supervise, investigate and discipline the individual police officer defendants. As a result, plaintiffs and members of the Class were exposed to their illegal acts, which led to serious injury.
88. Defendant City maintained a de facto policy, custom and practice of enforcement of unconstitutional subsections ofP.L. § 240.35 that constituted deliberate indifference to the federally protected rights of plaintiffs and the Class. As a result, plaintiffs and members of the Class were exposed to their illegal acts, which led to serious injury.
89. The foregoing acts, omissions, systematic flaws, policies and customs of defendant City caused the members of the NYPD to believe that their illegal and improper actions would not be properly investigated and corrected, with the foreseeable result that officers are most likely to act improperly and to arrest people for constitutionally invalidated offenses.
90. As a direct and proximate result of the aforesaid acts, omissions, systematic flaws, policies, and customs of defendant City, plaintiffs Paul Casale, Anthony Garcia and members of the Class suffered and continue to suffer serious actual injuries, including without limitation, emotional and mental distress, degradation and humiliation.
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FOURTH CAUSE OF ACTION False Arrest and False Imprisonment (Against the Individual NYPD Defendants and the City) 91. Plaintiffs repeats, reiterates and realleges each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though fully set forth herein. 92. By the actions described above, the NYPD Individual Defendants falsely arrested, falsely imprisoned and detained Plaintiffs and members of the Class without reasonable or probable cause, illegally and without a warrant, and without any right or authority to do so. The acts and conduct of defendants were the direct and proximate cause of injury and damage to Plaintiffs and members of the Class and violated their statutory and common law rights as guaranteed to him by the 1aws and Constitution of the State ofNew York 93. The City, as the employer of each of the NYPD Individual Defendants, is responsible for their wrongdoing under the doctrine of respondeat superior. 94. As a direct and proximate result of the misconduct and abuse of authority detailed above, Plaintiffs and members of the Class sustained the damages hereinbefore alleged.
FIFTH CAUSE OF ACTION Malicious Prosecution
(Against the NYPD Individual Defendants and the City) 95. Plaintiffs repeat, reiterate and reallege each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though fully set forth herein.
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96. The NYPD Individual Defendants charged Plaintiffs and members ofthe Class with violations ofunconstitutional subsections ofP.L. § 240.35 falsely, maliciously, in bad

faith, and without probable cause. 97. All charges against Mr. Casale and Mr. Garcia were terminated in their

favor.

98. Defendant City, as employer of the NYPD Individual Defendants, is

responsible for this wrongdoing under the doctrine ofrespondeat superior. 99. As a direct and proximate result of the misconduct and abuse of authority

detailed above, Plaintiff sustained the damages hereinbefore alleged. WHEREFORE, plaintiffs and members of the Class requests the following relief

jointly and severally as against all of defendants: 1. A judgment declaring that defendants have committed the violations of law

alleged in this action;

2.

An order preliminarily and permanently enjoining and directing defendants to

cease enforcement ofthose subsections ofNew York Penal Law§ 240.35 that

have been declared unconstitutional by the New York State Court of Appeals; and

to take all appropriate ameliorative measures to ensure that no one is arrested,

summonsed or prosecuted for violations of an unconstitutional subsection ofNew

York Penal Law§ 240.35, including without limitation: A. Directing defendants to immediately communicate to all members ofthe NYPD and the assistant district attorneys within the City of

New York that subsections ofP.L. § 240.35 held unconstitutional

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by the New York State Court of Appeals are void and unenforceable; B. Directing defendants to immediately communicate to all court personnel within the City of New York, including judges and clerks, that subsections ofP.L. § 240.35 held unconstitutional by the New York State Court of Appeals are void and unenforceable; C. Directing that immediate remedial training that subsections of P.L. § 240.35 held unconstitutional by the New York State Court of Appeals are void and unenforceable be provided to all current members of the NYPD, all future members ofthe NYPD (via training at the police academy), and all supervisory members of the NYPD through a dedicated mandatory training; D. Directing defendants to put in place a system for tracking all arrests or charges for unconstitutional subsections ofP.L. § 240.35 in a contemporaneous manner so that any arrest or charge can be immediately terminated; E. Directing defendants to program any and all databases including but not limited the NYPD computerized arrest and complaint system, the OCA Criminal Records Information Management System ("'CRIMS") and summonses databases, and the DCJS fingerprint inquiry and criminal history databases, to reject
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unconstitutional subsections ofP.L. § 240.35 as valid charges and generate an error report; and F. Directing defendants to issue policies and procedures to ensure that unconstitutional subsections ofP.L. § 240.35 are not enforced, including but limited to NYPD Patrol Guide procedures, training manuals, Unified Court System procedures and policies; Administrative Judge orders; and DCJS policies and procedures. 3. An order preliminarily and permanently enjoining defendants to take any and all remedial measures necessary to completely remove all records of any arrest, charge, prosecution or conviction of an unconstitutional subsection ofP.L. § 240.35, including without limitation: A. directing defendants to destroy all mug shots (or other photographs), fingerprints, and all paper and electronic data or files making any reference to an arrest, charge, prosecution or conviction under an unconstitutional subsection ofP.L. § 240.35; B. directing that any convictions and/or warrants contained in any criminal records concerning violations of an unconstitutional subsection ofP.L. § 240.35 be immediately expunged; C. directing that all outstanding warrants concerning violations of an unconstitutional subsection ofP.L. § 240.35 be immediately vacated and expunged; 4. Compensatory damages against all defendants in an amount to be proven at trial;
-22-

Case 1:08-cv-02173-SAS Document 1 Filed 03/04/08 Page 23 of 23

5. Punitive damages against all defendants, except the City, in an amount to be

proven at trial;

6.

An order awarding disbursements, costs, and attorneys' fees pursuant to 42

U.S.C. § 1988; and

7. Such other and further relief that may be just and proper.

Dated: March 3, 2008 New York, New York

EMERY CELLI BRJNCKERHOFF
B&yA: ~AIJLL\PN\~ D~~~ ,JJ atth~w D.""BrinckerhoffCMB..,3552) Katherine Rosenfeld (KR 8525) 75 Rockefeller Plaza- 201h Floor New York, New York 10019 (212) 763-5000
EARL WARD -ATTORNEY AT LAW Earl Ward (EW 2875)
75 Rockefeller Plaza- 20th Floor New York, New York 10019 (212) 763-5000
THE BRONX DEFENDERS 1. McGregor Smyth, Jr. (JS 9995)
860 Courtlandt Avenue Bronx, New York 10451 (718)838-7878
Attorneys for Plaintiffs and the Putative Class

-23-

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

PAUL CASALE and ANTHONY GARCIA, on Behalf of Themselves and Others Similarly Situated,
Plaintiffs,
-against-
RAYMOND W. KELLY, Commissioner of the New York City Police Department, et al.,
Defendants.

OPINION AND ORDER 08 Civ. 2173 (SAS)

---------------------------------------------------- )(

MICHAEL BROWN, on Behalf of Himself and Others Similarly Situated,
Plaintiff,
-against-
RAYMOND W. KELLY, Commissioner of the New York City Police Department, et al.,
Defendants.
---------------------------------------------------- )(

05 Civ. 5442 (SAS)

1

SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
The City of New York, operating principally through the New York
City Police Department ("NYPD"), has continuously enforced three
unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary. 1 While arrests,
summonses, and prosecutions under the void statutes generally have diminished
over time, the City's description of its anti-enforcement efforts as "'reasonably diligent and energetic"'2 simply does not comport with reality.3 Over time, the
City has implemented a variety of measures to halt enforcement of the statutes.
However, the City has done little on its own initiative or with reasonable
conviction and speed to end the illegal enforcement; indeed, the City has actively
Though there are many defendants in these actions, including Raymond Kelly, the Commissioner of the NYPD, and a variety of known and unknown NYPD personnel, I generally refer to "the City" for ease of reference.
2 Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Contempt, a Preliminary Injunction, and Discovery Sanctions ("Def. Mem.") at 7 (quotingPowellv. Ward, 643 F.3d 924,931 (2d Cir. 1981)).
3 Accord Brown v. Kelly ("Brown f'), No. 05 Civ. 5442, 2007 WL 1573957, at *3 (S.D.N.Y. May 31, 2007) (declining to hold the City in contempt for continued enforcement ofNew York Penal Law section 240.35(1) but describing as "a gross overstatement" the City's characterization that it was "reasonably diligent and energetic" in stopping enforcement of this statute).
2

dragged its feet. Year after year, the Court and plaintiffs have pushed and prodded
the City into meaningful action. The City's obstinance and uncooperativeness
throughout the present actions is offensive to the rule of law. 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. More
disturbing still, it appears that the laws - which target panhandling, remaining in a
bus or train station, and "cruising" for sex have been enforced particularly
against the poor and gay men.4
This Court has consistently and clearly declared that enforcement of
the void statutes must end no matter how difficult or tedious the task, and has
repeatedly raised the specter of contempt of court. Thus far, however, I have
declined to impose sanctions, trusting that the City was devoting "urgent attention"
4 See, e.g., Casale v. Kelly, 257 F.R.D. 396,415 n.132 (S.D.N.Y. 2009) ("Insofar as [N.Y. Penal L. §] 240.35(3) has been used to harass gay men seeking to engage in consensual sexual activity ... it is likely that some potential plaintiffs would not choose to come forward individually to publicly challenge past prosecution. This does not lessen the gravity of their claims." (citing William N. Eskridge, Jr., Challenging the Apartheid ofthe Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981,25 Hofstra L. Rev. 817,860-61 (1997))); Brown v. Kelly ("Brown If'), 244 F.R.D. 222,237 (S.D.N.Y. 2007) ("[A]s a consequence of being poor and homeless, most absent plaintiffs are uninformed, disenfranchised and without the means to bring individual actions in the hope of having their convictions overturned or their extant warrants vacated.").
3

to these matters. 5 I also recognized that rooting out this unlawful practice from the nation's largest police force would take a reasonable length of time. Today, after twenty-seven, twenty-two, and nearly eighteen years since the three laws, respectively, were struck down, the City appears to have finally instituted a multifaceted program to eliminate enforcement of the unconstitutional laws once and for all.
Nonetheless, the time for promises, excuses, and judicial forbearance is over- enough is enough. Because the City was not reasonably diligent in reaching this point and because the City has proven itself to only act responsibly and energetically when threatened with sanctions, the City is adjudged to be in contempt of court and is subject- following a six-month grace period- to a progressively-large fine for each future enforcement of the void laws. Because the contempt citation and attendant monetary sanction furnish sufficient incentive for the City not to enforce the statutes, I deny plaintiffs' request for a preliminary injunction without prejudice. Additionally, the City is subject to discovery sanctions for losing at least thirty-four hard copy summonses issued pursuant to the void laws.
5 Brown I, 2007 WL 1573957, at *6.
4

II. BACKGROUND
The present two actions are related in that both challenge the City's
enforcement of three unconstitutional subsections ofNew York's loitering statute
-section 240.35 of the New York Penal Law. As described more fully below,
Brown v. Kelly concerns subsection 1 and Casale v. Kelly concerns subsections 3
and 7 (collectively "the Statutes"). Though unconstitutional and unenforceable, the
Statutes remain on the books because the New York Legislature has not repealed
them. 6
A. Judicial Invalidation of the Statutes
In 1983, in People v. Uplinger, the New York Court of Appeals
6 While it is unclear why the New York Legislature has not repealed these void provisions, there can be no question that formal repeal of the Statutes would in all likelihood decrease enforcement of them. One cannot help but wonder whether the Legislature's decades-long failure to rescind these unconstitutional laws is but another example of that body's notorious dysfunction. See, e.g., Editorial, Albany's Madhouse, N.Y. Times, June 10, 2009, at A28 ("By the time the dysfunctional body that passes for a Legislature in New York State gets through the 2009 session, calling someone an Albany reformer will be an insult. In a display of chutzpah that startled even old political hands, the Senate Republicans and two of the least-reputable Democrats in a deeply disreputable place brazenly declared themselves to be a reform coalition and staged a palace coup against the Democratic majority. We're still puzzling out how these defections came about and what tawdry promises were made. But make no mistake: Reform and bipartisanship had nothing to do with it. Two weeks until the end of the 2009 session, lawmaking has shuddered to a maddening standstill. The passing of bills, the raising of funds, the discussion of issues have all been put far back on the back burner.").
5

declared section 240.35(3) unconstitutional on due process grounds.7 This
provision provides that a person is guilty of "loitering" - a criminal violation -
when he "loiters or remains in a public place for the purpose of engaging, or
soliciting another person to engage, in oral sexual conduct, anal sexual conduct or
other sexual behavior of a deviate nature."8
In 1988, in People v. Bright, the New York Court of Appeals struck
down section 240.35(7) on due process grounds.9 This provision provides that a
person is guilty of loitering when he "loiters or remains in a transportation facility,
or is found sleeping therein, and is unable to give a satisfactory explanation for his
presence." 10
7 See 460 N.Y.S.2d 514, 515 (1983) ("The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose.").
8 N.Y. Penal L. § 240.35(3). 9 See 526 N.Y.S.2d 66, 68 (1988) ("We hold that this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest."). 10 N.Y. Penal L. § 240.35(7).
6

And in 1992, in Loper v. New York City Police Department, Judge
Robert W. Sweet of this Court declared section 240.35(1) unconstitutional on First Amendment grounds, and permanently enjoined enforcement of the statute. 11 The Second Circuit affirmed. 12 This provision provides that a person is guilty of loitering when he "[l]oiters, remains or wanders about in a public place for the purpose ofbegging."13
B. Brown v. Kelly, Casale v. Kelly, and the City's Efforts to Cease Enforcement of the Statutes14 Notwithstanding Uplinger, Bright, and Loper, the City, operating
through the NYPD, has unlawfully enforced the Statutes tens of thousands of times. 15 On June 9, 2005, Eddie Wise commenced a putative class action

11 See 802 F. Supp. 1029, 1047 (S.D.N.Y. 1992) C'While the Government has a valid interest in preventing fraud, preserving public order, and protecting and promoting the interests of audiences and bystanders, the interest in permitting free speech and the message begging sends about our society predominates. Section 240.35(1) is therefore unconstitutional under the First Amendment to the United States Constitution, as applied to the states.").

12
1993).

See Loper v. New York City Police Dep 't, 999 F.2d 699, 701 (2d Cir.

13 N.Y. Penal L. § 240.35(1).

14 The following summary is not exhaustive; however, it accurately captures both the significant events and the general course of these actions.

15 See Casale, 257 F.R.D. at 413 (observing that between 1983 and 2007, the City illegally enforced subsections 3 and 7 over 15,000 times); Brown II, 244 F.R.D. at 229 n.45 ("It is undisputed that thousands of people have been
7

subsequently recaptioned Brown v. Kell/ 6 - seeking relief against municipal and
state defendants for unlawfully enforcing section 240.35(1 ). 17 Soon thereafter, the
City entered into a stipulation aimed at preventing future enforcement of the
statute.18 On June 23, 2005, this Court "so ordered" that stipulation and directed
the City to cease enforcing section 240.35(1 ). 19 The Court retained jurisdiction to
unlawfully charged with violating 240.35(1) by City law enforcement."); Brown I, 2007 WL 1573957, at *1 ("It is undisputed that for more than a decade after the Second Circuit's ruling [in Loper], enforcement of section 240.45(1) continued largely unabated.").
16 On November 22, 2006, Wise accepted defendants' Rule 68 Offer of Judgment, subsequent to which a judgment was entered dismissing any and all of his claims. See 12/05/06 Judgment, Brown v. Kelly, No. 05 Civ. 5442, Docket No. 51. Prior to the dismissal, Wise received leave to amend his Complaint to add Michael Brown as a plaintiff and class representative. See 11/22/06 Stipulation and Order, Brown v. Kelly, Docket No. 49.
17 On July 24, 2007, I certified a plaintiff class consisting of all persons who have been or will be arrested, charged, or prosecuted for violation of section 240.35(1) in the State of New York after the section was declared unconstitutional. See Brown II, 244 F.R.D. at 237. I also certified a damages subclass. See id. at 238. Finally, I certified a defendant class encompassing all political subdivisions and all law enforcement/prosecutorial policy-making officials in the State ofNew York with authority to arrest, charge, and prosecute a violation under New York Penal Law. See id. at 239-43.
18 In January 2006, plaintiff Wise settled his claims with the State defendants, including the Office of Court Administration ("OCA"). Pursuant to that settlement, OCA was subpoenaed to produce information contained in its electronic data system, which tracks and stores summonses issued pursuant to section 240.35(1 ).
19 See Stipulation and Order, Brown v. Kelly, Docket No.5 ("June 23, 2005 Order")~ 1.
8

ensure compliance with the terms of the June 23, 2005 Order.20
In June and July 2005, the City took various steps to stop enforcement
of section 240.35(1 ). These steps included sending notices to all NYPD precincts
and commands and respective employees that section 240.35(1) is void and
unenforceable; reading FINEST messages at police officer roll calls;21 sending
notices to the Offices of the District Attorneys; and immediately seeking to vacate
all outstanding warrants relating to charges or summonses under section
240.35(1 ).22
The City, as I have previously explained, "seem[s] to have done little
thereafter."23 More specifica11y:
Defendants failed to take the reins on monitoring their own compliance with the June 23, 2005 Order. It is for this reason that defendants are able to assert in their defense that it was not until November 2006, when plaintiff confronted them with hard data, that defendants knew of the frequency with which section 240.35(1) continued to be enforced i.e., that hundreds of summonses and over eighty warrants had been issued since the June 23, 2005 Order. The burden of tracking the continued unlawful
20 See id. ~ 9. 21 A FINEST message is a written department-wide communication that, per standard operating procedures, is required to be read at ten consecutive roll calls. See Brown I, 2007 WL 1573957, at *3 n.l7. 22 See June 23, 2005 Order~~ 2-8. 23 Brown I, 2007 WL 1573957, at *2.
9

enforcement of section 240.35(1) has always been carried by plaintiff. It has also been defendants' modus operandi to cast suspicion on plaintiff's data demonstrating the pervasiveness of the continuing enforcement.
As a result of defendants' continuing failure to comply with court orders, by letter to the Court dated November 9, 2006, plaintiff requested leave to file a contempt motion against defendants. At a pre-motion conference held on November 29, 2006, defendants promised to undertake a plan of action that would curb the continued enforcement of section 240.35(1). This plan included sending targeted notices to those NYPD officers who had issued unlawful summonses. Defendants also proposed additional training for police officers to be held between November 2006 and March 2007, and for sergeant and lieutenant promotional classes to remind all officers that the statute is unenforceable. Additionally, defendants promised to take steps necessary to vacate all warrants issued as a result of section 240.35(1) summonses. In reliance upon defendants' assurances that plaintiff was going to get the necessary relief, the Court denied plaintiff's request to move for a judgment of contempt. 24
On December 14, 2006, the Court ordered the City to take a number
of additional remedial actions - ones the City had promised to take in order to
halt continued enforcement of section 240.35(1), including increased training and
letter notification to officers who had illegally enforced the statute.25
Though the June 23, 2005 Order was crystal clear that enforcement of
the statute must cease, "defendants continued to arrest, prosecute, issue bench
24 Id. at *2-*3 (footnotes omitted).
25 See Order, Brown v. Kelly, Docket No. 54. 10

warrants, and issue an alarming number of summonses for violations of section 240.35(1 )."26 During the nineteen months following the June 23, 2005 Order, from July 2005 to January 2007, NYPD officers issued 772 summonses under the statute.27 By comparison, during the nineteen months preceding the June 23, 2005 Order, from January 2002 to May 2005, NYPD officers issued 821 summonses.28
On February 26, 2007, plaintiff Brown informed the Court that notwithstanding defendants' promises and in the face of the December 14, 2006 Order, an additional twenty-three unlawful bench warrants and ninety-six unlawful summonses had been issued to New Yorkers between November 1, 2006 and February 21,2007. In light of this new information, the Court granted plaintiff leave to move for civil contempt.
From January 2, 2007 through March 14, 2007, NYPD officers issued summonses under section 240.35(1) at an average rate of approximately one every other day.29 On March 13, 2007, the City's counsel contacted the OCA and requested that the court system take action "on cases charging unconstitutional
26 Brown I, 2007 WL 1573957, at *1. 27 See id. 28 See id.
29 See id. at *1 n.l.
11

subsections of Penal Law § 240.3 5." 30 The OCA agreed to take a number of steps
including vacating bench warrants and dismissing cases.31
On March 30, 2007, plaintiff Brown moved for a judgment of civil
contempt against the City and for the imposition of coercive sanctions for each
prospective incident of enforcement. On May 31, 2007, in Brown I, this Court
denied the motion, concluding that civil sanctions were not warranted because the
City appeared to have "turned [its] behavior around" in December 2006, taking
"responsibility for [its] noncompliance with the June 23, 2005 Order and
be[coming] proactive in seeking to end the unlawful enforcement of the statute."32
Yet I emphasized:
Although plaintiffs motion is denied, I note that the issues it raised were not clear-cut. The steady rate of unlawful enforcement of section 240.35( l) that has persisted for almost thirteen years after Loper is simply unacceptable. Defendants' long-standing apathy towards this problem was offensive. Nevertheless, the Court is convinced that defendants have made avoiding contempt a top priority and are now striving to fully comply with the June 23, 2005 Order. Certainly, this includes treating the issuance of a
30 3/23/07 Letter from Juanita Bing Newton, Deputy Chief Administrative Law Judge for Justice Initiatives, Criminal Court of the City of New York, to Rachel Seligman, Defendants' Counsel, Ex. 1 to Declaration of
Katherine Rosenfeld, Plaintiffs' Counsel, in Support of Plaintiffs' Motion for
Contempt, a Preliminary Injunction, and Discovery Sanctions ("Rosenfeld Decl."). 31 See id. 32 2007 WL 1573957, at *4. 12

single summons under section 240.35(1) as a serious problem deserving urgent attention. To this end, the Court is prepared to revisit the issue of defendants' diligence every two months, until every outstanding bench warrant has been vacated and no more summonses for violations of an unconstitutional statute are issued.33
On June 19, 2007, the NYPD circulated a memorandum to
commanding officers instructing them that "Penal Law 240.35, subdivisions I, 3,
and 7 have been declared unconstitutional" and that "arrests made and summonses
issued for these offenses are unenforceable."34 In addition, the First Platoon Desk
Officer was directed to review all summonses for section 240.35 to ensure
compliance with department voidance procedures.35 A similar memorandum was
circulated among Housing Bureau Commanders on June 27, 2007.36
Also in June 2007, the Chief of Patrol's office began to investigate
summonses issued under the Statutes, which entailed interviewing the offending
33 ld. at *6 (footnote omitted). 34 6/19/07 Memo #36-07 from Chief of Patrol Nicholas Estavillo to Commanding Officers, Ex. 2 to Rosenfeld Decl. 35 See id. 36 See 6/27/07 Memo #474s.07 from Joanne Jaffe, Chief of Housing, to Housing Borough Commanders, Ex. H to Declaration of Rosemary DeBellis, Office of the Deputy Commissioner for the NYPD, in Support of Defendants' Opposition to Plaintiffs' Motion for Contempt, Injunctive Relief, and Discovery Sanctions ("DeBellis Decl.").
13

officer and instructing him or her not to issue summonses under the Statutes.37 "[T]he officer could be issued a Schedule A Command Discipline, at the discretion of the Commanding Officer."38
In March 2008, plaintiffs filed Casale v. Kelly, a putative class action contending that the City ofNew York, operating through the NYPD, willfully continued to enforce subsections 3 and 7 of New York Penal Law section 240.35.39 Following the filing of Casale, on April 21, 2008, the City sent a FINEST message to all NYPD officers instructing them not to enforce the Statutes.40 This message also contained a directive that all copies of the Penal Law maintained by commands, including those maintained in the command library, must have the Statutes stricken by drawing a line through them in black ink.41
On May 1, 2008, the Court "so ordered" a stipulation requiring the

37 See DeBellis Decl. ~~ 20-21.

38

!d.~ 21.

39 On June 1, 2009, I certified two plaintiff classes in Casale- one consisting of all persons who have been or will be arrested, charged, or prosecuted for violation of subsections 3 or 7 in New York City after those statutes were declared unconstitutional; and a second class consisting of all persons who have been arrested, charged, or prosecuted for a violation of subsections 3 or 7 in New York City within the applicable statute of limitations. See Casale, 257 F.R.D. at 415. I also certified a number of subclasses to address potential defenses. See id.

40 See Ex. I to DeBellis Decl.

41 See id. 14

City to take action to stop future NYPD enforcement of subsections 3 and 7, including contacting the criminal court system and the District Attorneys for the five boroughs.42 The May 1, 2008 Order also directed the City to "abide by and reinforce" its "policy [against] enforcement of [sections 240.35(3) and (7)]."43 The City also agreed to provide plaintiffs with monthly reports on all the summonses issued under the subsections 3 and 7.44
In July 2008, a lesson plan for Command Level Training was issued that reiterated that the Statutes are unconstitutional and should not be enforced.45 In January 2009, during a training on panhandling, officers were reminded that subsection 1 is unenforceable.46
In May 2009, plaintiffs informed the Court at a conference that the NYPD's enforcement of the statutes was "trending up."47 Consequently, the Court

42 See 5/1/08 Stipulation and Order, Casale v. Kelly, No. 08 Civ. 2173, Docket No. 9 ("5/1/08 Order") ~,f 3-4. On May 9, 2008, the City's counsel sent letters to the District Attorneys and the criminal court system. See Exs. B & C to Declaration ofRachel Seligman Weiss, Defendants' Counsel, in Opposition to Plaintiffs' Motion for Contempt, Injunctive Relief, and Discovery Sanctions ("Seligman Weiss Decl.").

43

5/1/08 Order~ 1.

44 See id. ~ 5.

45 See Ex. J to DeBellis Decl.

46 See DeBellis Decl. ~ 13 & Ex. K.

47 5/6/09 Transcript of Conference at 4. 15

questioned whether plaintiffs wished to pursue contempt proceedings. However, plaintiffs "did not bring a motion for contempt at that time ... because defendants had presented a proposed remedial plan to plaintiffs (on the same day as the court conference) that provided for training and discipline for issuing officers."48
In June 2009, the City distributed a memo to training sergeants reiterating the unconstitutionality of the Statutes and advising that continued enforcement would result in disciplinary action.49 On June 3, 2009 and September 3, 2009, the City sent FINEST messages regarding the unenforceability of subsections 1, 3, and 7.50 The June 3 message also reiterated the April 21, 2008 directive to strike the Statutes from all copies of the Penal Law maintained by commands, including those maintained in the command library.51
In October 2009, the NYPD conducted a review of precinct libraries to determine if the three subsections had been stricken from all copies of the penal law. "According to the NYPD's report on this process, the commands with copies
48 Rosenfeld Decl. ~ 12. 49 See Ex. L to DeBellis Decl. 50 See Exs. M & N to DeBellis Decl. Additionally, in September and November 2009, the City circulated to patrol, housing, and transit commands memoranda similar to the memoranda issued in June 2007. See Exs. 0, P, & Q to DeBellis Decl. 51 See Ex. M to DeBellis Decl.
16

still containing the Statutes as of October 2009 were: 90th, 94th, BNTF, 60th, TD #34, 41st, BXTF, 26th, 1st, 5th, 6th, 7th, 9th, lOth, 13th, Midtown South, 17th, 26th, 104th, 109th, I lOth, lOOth, lOlst, 103rd, 106th, 107th, 113th, Hwy 3, QSTF, TO #20."52
Also in October 2009, the Police Commissioner instructed the NYPD's Internal Affairs Bureau ("lAB") to take over investigation into summonses issued for the Statutes.53 When lAB determines that an unconstitutional summons has been issued, the issuing officer is interviewed and "lAB sends a memo to the issuing officer's Commanding Officer instructing the Commanding Officer to issue the officer a Schedule B Command Discipline, with a minimum of the [sic] loss of one day's vacation time."54
In October 2009, plaintiffs conducted expedited depositions ofNYPD officers who had recently issued summonses under the Statutes. These depositions revealed the widespread use of"cheat sheets" or "Master C Summons Lists", which are unofficial lists of summonsable offenses carried by many NYPD officers inside their official NYPD summons books often written and distributed

52 Rosenfeld DecI. ~ 23 (citing Bates No. NYC0002239).

53 See DeBellis Decl. ,-; 27. According to the City, "[t]he function of lAB is to investigate allegations of corruption and misconduct committed by members of the service." /d. ~ 28.

54

!d.~ 30.

17

informally amongst police officers - that the officers use in the field to determine

what charges to

issue

in

a

summons.

5 5

The depositions

further revealed that many

of these sheets contained the unconstitutional loitering subsections at issue in this

case. 56

Following plaintiffs' uncovering of the cheat sheets, plaintiffs

demanded the City take a number of actions to remove the unconstitutional laws

from those documents. Though the City agreed to undertake various measures to

review and correct the cheat sheets, the City rejected plaintiffs' demand for

production of the cheat sheets. Plaintiffs applied to the Court for a preservation

order on December 1, 2009.57 The City opposed the application, arguing that the

cheat sheets were not relevant or discoverable. On December 9, 2009, the Court

rejected the City's position, and ordered the City to preserve the cheat sheets, to

55 See, e.g., 10101109 Deposition of Dorian Dowe ("Dowe Dep.") at 4142, 72 (estimating that approximately fifty to sixty percent of officers in a command use cheat sheets), Ex. 4 to Rosenfeld Decl.; 10/01109 Deposition of Charles Burke ("Burke Dep.") at 58-59 (describing use of cheat sheets as "standard practice"), Ex. 5 to Rosenfeld Decl.; 10/15/09 Deposition ofMichael Nazario ("Nazario Dep.") at 130, Ex. 6 to Rosenfeld Decl; see also Ex. 8 to Rosenfeld Decl. (examples of cheat sheets).
56 See, e.g., Dowe Dep. at 39; Burke Dep. at 50-51; Nazario Dep. at 43, 101-02; 10/15/09 Deposition of Ronald Pereira ("Pereira Dep.") at 33-34, Ex. 7 to Rosenfeld Decl.; Investigating Officer's Report, Ex. 15 to Rosenfeld Decl.
57 See 12/1/09 Letter from Katherine Rosenfeld, Plaintiffs' Counsel, to the Court, Ex. 13 to Rosenfeld Decl.
18

produce to plaintiffs any page that contained the void laws, to disseminate notice of
a review process to all NYPD officers, and to complete this review by a date
certain.58 The City completed this review process in January 2010, finding nearly
1,400 cheat sheets containing the void laws.59
According to the City, additional efforts are underway to affix a
sticker warning officers not to issue summonses under the laws to each new book
of summonses signed out by officers, and to require certain officers, including
supervisors, to a carry a new memo book insert of Common Summonsable
Offenses that does not reference the laws and specifically warns not to enforce the
58 See 12/9/09 Transcript at 26-30. 59 On February 12,2010, the City produced 1,361 cheat sheets to plaintiffs. According to plaintiffs' preliminary review of the sheets, out of the approximately 350 officers who issued summonses for the Statutes after June 1, 2007, at least 18, and as many as 85, carried cheat sheets containing the void Statutes. See Plaintiffs' Reply Memorandum of Law in Further Support of Motion for Contempt, a Preliminary Injunction, and Discovery Sanctions at 5. Plaintiffs state that the officer's name was not legible on 141 cheat sheets, and request that the Court order the City to log the cheat sheet review into the COGNOS database and provide plaintiffs with the data. See id. According to the plaintiffs, such data entry would permit the parties to determine if all 85 officers issued void summonses because they relied upon inaccurate cheat sheets and to determine the identity of the 141 officers whose names were illegible. See id. The City is so ordered. Additionally, the City is ordered to state- as as additional data fields (attached to the relevant member of service) in the monthly reports of recent enforcement data provided to plaintiffs whether the issuing officer used a cheat sheet that included any of the Statutes.
19

laws.60 According to the City, "[t]hese measures are aimed to communicate the message to the officer at the time when he or she is close in time to issuing summonses."61
C. The City's Recent Enforcement of the Statutes62 The City reports that 462 unlawful summonses were issued pursuant
to sections 240.35(1), (3), and (7) from June 2007- that is, following Brown I through February 2010.63 Plaintiffs report 480 such summonses.64 Excluding from

60 See Def. Mem. at 3.

61

!d.

62 Though this section focuses on summonses, enforcement of the Statues has historically taken a variety of additional forms, including arrests, prosecutions, warrants, and fines. See, e.g., Casale, 254 F.R.D. at 401-02 (detailing various manners of enforcement of sections 240.35(3) and (7)); Brown I, 2007 WL 1573957, at* 1-*2 (same as to section 240.35(1 )). Furthermore, summons data do not reflect attempts to charge the void laws, such as where "citizens [are] unlawfully arrested on the street, taken to the station house, and released without ever being charged." Brown I, 2007 WL 1573957, at *2.

63 See 4/26/10 Letter from Linda Donahue, Defendants' Counsel, to the Court ("Donahue Letter") at 2.

64 See Supplemental Declaration of J. McGregor Smyth, Jr. in Support of Plaintiffs' Motion for Contempt, a Preliminary Injunction, and Sanctions ("Smyth Supp. Decl.") ~ 3. The parties disagree about whether to count a number of specific summonses. Though I need not decide any such dispute at this time, I observe that the integrity of the NYPD's data- and, more generally, the City's ability to accurately track its enforcement of the Statutes - is questionable. Plaintiffs raise three major concerns: (1) consistent failure to list the relevant subsection on the charging instrument; (2) consistent failure to enter the correct subsection into the NYPD database; and (3) failure to enter the summons
20

these totals enforcement of subsections 3 and 7 before May 2008 (when the City
was first ordered by this Court to cease enforcement of those subsections), the City
reports 241 and plaintiffs report 256 unlawful summonses.65
For subsection 1, from June 2007 through February 2010, the City
reports 110 and plaintiffs report 123 unlawful summonses.66 For the recent six-
month period from September 2009 through February 2010, the City reports four
and plaintiffs report sixteen unlawful summonses under this provision.67
For subsection 3, from May 2008 through February 2010, the City and
plaintiffs both report 125 unlawful summonses.68 For the period September 2009
prosecution into the NYPD database entirely. See Reply Declaration of J. McGregor Smyth, Jr. in Support of Plaintiffs' Motion for Contempt, a Preliminary Injunction, and Sanctions ~ 13. Plaintiffs' concerns are serious and genuine. The City admits that there are data entry problems. See, e.g., DeBellis DecI. ~ 6 (claiming 21 data entry errors and reducing the City's total accordingly). Even more troubling, the City admits a large number of unlawful summonses do not even appear in the database. See Donahue Letter at 1 ("Defendants apologize to the Court for their previous oversight in not including in their calculations summonses produced by OCA which did not appear in the NYPD database ...."). Additionally, the City states that its calculations do not include any of 20 summonses for loitering, because OCA was unable to determine if those summonses were issued under one of the void subsections (as opposed to a lawful subsection) of the loitering statute. See id.
65 See Donahue Letter at 4; Smyth Supp. Decl. ~ 5. 66 See Donahue Letter at 4; Smyth Supp. Decl. '1!6. 67 See id. 68 See Donahue Letter at 5; Smyth Supp. Decl. '1!7.
21

through February 2010, the City reports ten and plaintiffs report twelve unlawful summonses under this provision.69
For subsection 7, from May 2008 through February 2010, the City
reports 6 and plaintiffs report 8 unlawful summonses.7° For the period September
2009 through February 2010, the City and plaintiffs both report three unlawful summonses under this provision. 71
The parties agree that, most recently, an NYPD officer enforced
subsection 3 on February 2, 2010, and that another officer twice enforced subsection 7 on February 27, 2010.72 Additionally, the City's Parks Department issued two summonses for violations of subsection 3 on April6, 2010.73
In summary, though the parties dispute the precise extent of recent
enforcement of the Statutes, it is undisputed that hundreds of summonses have
69 See id. 70 See Donahue Letter at 6; Smyth Supp. Decl. ~ 8. 71 See id. 72 See Supplemental Declaration of Katherine Rosenfeld in Further Support of Plaintiffs' Motion for Contempt, a Preliminary Injunction, and Discovery Sanctions ("Rosenfeld Supp. Decl.") ~~ 3-4; Supplemental Declaration of Rosemary DeBellis in Support of Defendants' Opposition to Plaintiffs' Motion for Contempt, Injunctive Relief, and Discovery Sanctions ("DeBellis Supp. Decl.") ~~ 2. 73 See DeBellis Supp. Decl. ~~ 2.
22

issued in violation of this Court's Orders. It is likewise clear that summonses
continue to issue under the void laws, albeit at a much lower rate than in years past.
III. DISCUSSION Plaintiffs now move for civil contempt, a preliminary injunction, and
discovery sanctions. A. Contempt 1. Applicable Law
"[I]t is firmly established that the power to punish for contempts is inherent in all courts."74 "Civil as distinguished from criminal contempt is a
sanction to enforce compliance with an order of the court or to compensate for losses or damage sustained by reason of noncompliance."75 A court may hold a
party in civil contempt for failure to comply with a court order if"'(l) the order the
contemnor failed to comply with is clear and unambiguous, (2) the proof of
noncompliance is clear and convincing, and (3) the contemnor has not diligently attempted to comply in a reasonable manner. "'76 While "[t]he failure to meet the
74 Chambers v. Nasco, Inc., 501 U.S. 32,44 (1991) (quotation marks and alteration omitted).
75 McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). 76 Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004) (quoting King v. Allied Vision, Ltd., 65 F.3d 1051,1058 (2dCir. 1995)). Accord Powell, 643 F.2dat931 (requiring, as to the third prong, that the contemnor failed to be "reasonably diligent and
23

strict requirements of an order does not necessarily subject a party to a holding of contempt,"77 civil contempt "includes failures in meaningful respects to achieve substantial and diligent compliance."78 "Reasonable diligence, at the very least, requires a party to develop and execute reasonable methods of compliance."79 "It need not be established that the violation was willful."80
2. Analysis The City does not dispute that plaintiffs satisfy the first requirement for civil contempt, in that the Court's June 23, 2005 Order and May 2, 2008 Order (the "Orders") clearly and unambiguously direct the City to cease enforcing sections 240.35(1 ), (3), and (7).81 Nor does the City contest that its own tracking data (among other evidence) constitute clear and convincing proof of

energetic in attempting to accomplish what was ordered").

77
1995).

Dunn v. New York State Dep 't ofLabor, 47 F.3d 485, 490 (2d Cir.

78 Aspira v. Board ofEduc., 423 F. Supp. 647, 649 (S.D.N.Y. 1976).

79 Zino DavidoffSA v. CVS Corp., No. 06 Civ. 15332, 2008 WL 1775410, at *8 (S.D.N.Y. Apr. 17, 2008).

80 Paramedics, 369 F.3d at 655 (citing Donovan v. Sovereign Sec. Ltd., 726 F.2d 55, 59 (2d Cir. 1984)).

81 See NBA v. Design Mgmt. Consultants, Inc., 289 F. Supp. 2d 373, 377 (S.D.N.Y. 2003) ("[An order is] clear and unambiguous where it is specific and definite enough to apprise those within its scope of the conduct that is being proscribed or required.").
24

noncompliance.82 Thus, as was the case when the Court last opined on the issue of
contempt,83 the City's single defense against contempt is that it has made
"reasonably diligent and energetic efforts to comply with all court orders ....''84
The City's characterization of its efforts as reasonably diligent is an
overstatement. 85
In the decades since the laws were invalidated, the City has
implemented a number of anti-enforcement measures, including: trainings of
82 See Levin v. Tiber Holding Co., 277 F.3d 243, 250 (2d Cir. 2002) ("In the context of civil contempt, the clear and convincing standard requires a quantum of proof adequate to demonstrate a reasonable certainty that a violation occurred. (quotation marks omitted)).
83 See Brown I, 2007 WL 1573957, at *3 ("Defendants' sole defense to contempt is that they are now, and have always been, 'reasonably diligent and energetic' in complying with the June 23, 2005 Order.").
84 Def. Mem. at 6.
85 Accord Brown I, 2007 WL 1573957, at *3 ("[Defendants' characterization that they were reasonably diligent and energetic] is a gross overstatement. There is no question that for a long period of time, from approximately July 2005 to December 2006, Defendants were in contempt of this Court's June 23, 2005 Order. Although defendants went through the motions of carrying out the specific remedial measures set forth in that Order, the numbers of arrests, bench warrants and prosecutions predicated on section 240.35(1) declined only slightly; the decline in summonses was demonstrably negligible. While, as a practical matter, one would expect a de minimis number of enforcement actions to persist, the 772 unconstitutional summonses for violations of section 240.35(1) issued by the NYPD in the nineteen-month period after the Order only six percent fewer than the number of summonses issued during the nineteen-month period before the Order- tell 'a sorry tale of noncompliance."').
25

recruits and officers; FINEST messages reinforcing NYPD policy not to enforce the laws; use of a computer database to identify summonses issued under the laws; investigation of summonses issued under the laws, now conducted by the lAB; discipline of officers who issue summonses, now requiring a mandatory "B" Command Discipline with a minimum loss of one day's vacation time; striking out of all references to the laws in any NYPD copies of the New York Penal Law; deletion of references to the laws in any non-NYPD reference materials carried by officers; distribution to officers in their paychecks of an official written order not to enforce the laws; and reinforcement of the Patrol Guide requirement that a supervisor review all summonses and tlag any written under the laws. The NYPD is also writing to recipients of summonses issued under the laws informing them that the summons was issued improperly.
This catalog of the actions taken by the City masks and obscures the City's generally lethargic approach to compliance with the Orders. Nearly every measure that the City has undertaken has been at the direction of the Court, the prodding of plaintiffs, andJor under the threat of sanctions. For example, it was only under court order that the City implemented a letter notification program.86 And it was only under the Court's explicit direction that the City distributed
86 See Rosenfeld Decl. ~ 3.
26

paycheck warnings.87 It was only after a May 2009 conference, wherein the Court
raised the specter of contempt proceedings, that Commissioner Kelly advocated
repeal of the Statutes.88
In fact, prior to this most recent threat of contempt, and since Brown I,
the City did relatively little proactively or with reasonable dedication to curb its
consistent enforcement of the Statutes. On September 14, 2009, plaintiffs wrote to
the Court as follows:
[T]he City of New York continues to enforce the unconstitutional loitering laws at issue here . . . . Plaintiffs intend to conduct immediate Rule 30(b)(6) and other depositions in order to craft remedial solution to this enforcement crisis, and to pursue possible remedies for a finding of contempt against the City of New York .... [W]hatever "plan" the City claims to have adopted in the
wake of these lawsuits is clearly not working. More than
150 summonses have issued since this Court's contempt ruling in Brown in May 2007 . . . . These depositions will allow us to recommend concrete steps the City can take to actually stop charging innocent people under void laws.89
Immediately thereafter, the City suddenly enacted new initiatives.
Two weeks later, Police Commissioner Kelly first assigned the NYPD' s lAB to

87 88 89
Decl.").

See Brown I, 2007 WL 1573957, at *5. See Exs. U & V to DeBellis Decl. Ex. I to Reply Declaration of Katherine Rosenfeld ("Rosenfeld Reply
27

investigate summonses for violation of the Statutes.90 The NYPD also began imposing a B Command Discipline~ "which stays in the officer's personnel file permanently and requires a minimum loss of one vacation day."91 According to the City, "[s]ince lAB typically investigates serious misconduct, the message sent by its investigation and the enhanced penalty is likely to affect not only the subject officer but sends a message throughout the entire department about the seriousness of the conduct."92 The City therefore concedes that, until October 2009, lAB's non-involvement communicated to its officers that enforcement of the Statutes was not serious misconduct.
Prior to October 2009, the NYPD 's investigatory and disciplinary process appears to have been both discretionary and toothless: "the officer could be issued a Schedule A Command Discipline," and "the Commanding Officer might also order the command's Training Sergeant to re-instruct."93 Detective Nicholas Rizzuti, who was assigned on October 2, 2009 to run the lAB investigations, could
90 See DeBellis Decl. ~ 27. 91 Def. Mem. at 10. 92 !d. at 11. 93 DeBellis Decl. ~ 27.
28

state little about the previous program.94 Although he conceded that it would be important (as the person responsible for the current investigation), he did not know who was previously in charge of investigations, he inherited no policies or procedures, and he did not know how many officers were disciplined.95 Even the sufficiency of the lAB's current program is unclear. As far as the Court is aware, no written policies or procedures govern its operation or dictate that officers who issue summonses for the Statutes will receive B Command Disciplines, or state that supervisors who fail to train officers will be disciplined.96 The new system appears to be ad hoc.
The City also points to its December 2009/January 20 I0 review of officers' cheat sheets as an example of its diligence. Quite the opposite is true. Plaintiffs, not the City, discovered the widespread use of cheat sheets during depositions in October 2009, and demanded a department-wide review. While the City agreed that action needed to be taken with respect to the cheat sheets - the threat of contempt looming at this time- the City's abject failure to previously identify the widespread use of cheat sheets containing the void Statutes is

94 See Deposition ofNicholas Rizzuti at 16, Ex. J to Rosenfeld Reply Decl. ("I was aware that there was an investigation prior, but I honestly didn't know what it entailed.").

95

See id. at 17, 26-28.

96

See id. at 16, 60-61, 64, 87.

29

incomprehensible. That the City has not been monitoring and correcting these sheets demonstrates the City's lax approach to ending enforcement of the Statutes. That the cheat sheets are not official NYPD documents is no excuse, for not only have they been in use for years, but supervising officers were well aware of their usage. 97
The City points to other actions to demonstrate reasonable diligence, such as striking out all references to the Statutes in any NYPD copies of the New York Penal Law. But, once again, in context, the City's weak effort to end the illegal enforcement is exposed. Via FINEST messages dated April 21, 2008 and June 3, 2009, the NYPD ordered that all copies of the Penal Law maintained in all NYPD commands were to be redacted to omit the Statutes. However, the City never confirmed whether its directive had been executed. Not until October 19, 2009 did the City conduct a systematic survey of all NYPD precinct libraries in order to ensure that the Statutes were deleted from their copies of the New York Penal Law. This review revealed that dozens of commands still contained copies of the Penal Law with the offending Statutes, in violation of the order in the two FINEST messages. Evidence in the record reveals that officers consult these
97 See, e.g., Pereira Dep. at 128 ("[Supervisor] was aware that I had that sheet on me" when issuing a summons for section 240.45(3)).
30

books,98 thereby establishing the importance of redacting the void Statutes from
them. Failure to confirm that the Statutes had been deleted from the NYPD's
copies of the New York Penal Law demonstrates the City's lack of diligence. The City narrowly escaped sanctions in 2007, and it was the Court's
genuine hope at that time that such a close call would motivate the City to meaningfully persevere to end the illegal enforcement - that is, to act with urgency to uncover and root out the reasons why enforcement had not yet ceased. This the City failed to do. In the years since the City was ordered to stop enforcing the Statutes, the City appears to have made little effort to understand and address
the mechanisms underlying continued enforcement of the Statutes. Only when threatened with sanctions in September 2009 did the City begin to act with reasonable energy and diligence toward the desired goal. But where such a last minute frenzy was key to the avoidance of contempt in 2007, this time, it's too little, too late.99 However effective the newest measures are, the City's spurt of activity on the heels of the beginning of the latest contempt proceedings cannot
98 See Burke Dep. at 71. 99 See, e.g., Benjamin v. Fraser, No. 75 Civ. 3073,2002 WL 31845111, at *7 (S.D.N.Y. Dec. 16, 2002) ("[S]uch 'eleventh-hour' attempts at compliance with my order fail to rescue defendants from contempt."); Benjamin v. Sielaff, 752 F. Supp. 140, 147 (S.D.N.Y. 1990) (holding defendants in contempt for failing to cure violations even though defendants had achieved compliance since the filing of the contempt motion).
31

save the City from the consequences of its previous indifference. The long history
of the City's apathetic behavior cannot be ignored, nor can the Court overlook the
fact that only the prospect of sanctions energizes the City to act responsibly and
diligently against enforcement of the ° Statutes. 10 For all of these reasons, the City
is adjudged to be in contempt of court. 3. Remedy
A sanction imposed on a party held in civil contempt may serve either
or both of two purposes: to coerce the contemnor to comply in the future with the
court's order, or to compensate the complainant for losses resulting from the contemnor's past non-compliance. 101 Sanctions for "indirect" civil contempt-
contempt resulting from actions occurring outside the courtroom - are designed to
compel future compliance with a court order and are avoidable through compliance. 102 In assessing sanctions for civil contempt, the district court "is
100 I have not recounted each aspect of the City's conduct that warrants the contempt citation issued herein; rather, I have only provided several illustrative examples.
101 See Weitzman v. Stein, 98 F.3d 717, 719 (2d Cir. 1996); New York State Nat'! Org.for Women v. Terry ("NOW 1989"), 886 F.2d 1339, 1351-53 (2d Cir. 1989).
102 See International Union, United Mine Workers ofAm. v. Bagwell, 512 U.S. 821, 828 (1984) (explaining that the contemnor must have the opportunity to "reduce or avoid the fine through compliance").
32

vested with wide discretion in fashioning a remedy(,]"103 though "a court is obliged to use the least possible power adequate to the end proposed."104
A court may impose a fine as a sanction only if"the contemnor is able
to purge the contempt ... by committing an affirmative act, and thus carries the keys of his prison in his own pocket."105 "The district court is counseled to
consider several factors in calculating a fine, including 'the character and
magnitude of the harm threatened by continued contumacy,' the 'probable
effectiveness of any suggested sanction in bringing about [compliance],' and the contemnor's ability to pay."106 "The ultimate consideration is whether the coercive sanction- here, a fine- is reasonable in relation to the facts." 107 "[A] financial
penalty may be the most effective means of insuring compliance" if a city refuses to adhere to a court order. 108
103 Weitzman, 98 F.3d at 719 (quotation marks omitted). 104 Spallone v. United States, 493 U.S. 265, 276 (1990) (quotation marks omitted). 105 ACLI Gov 't Securities, Inc. v. Rhoades, No. 81 Civ. 2555, 1995 WL 731627, at *3 (S.D.N.Y. Dec. 11, 1995) (quotation marks omitted). 106 Paramedics, 369 F.3d at 657-58 (quoting Peifect Fit Indus. v. Acme Quilting Co., 673 F.2d 53, 57 (2d Cir. 1982) (alteration in original). 107 NOW 1989, 886 F.2d at 1353. 108 United States v. Yonkers, 856 F.2d 444, 458 (2d Cir. 1998), rev 'don other grounds, Spallone, 493 U.S. 265. at 276-80.
33

Here, as sanctions for the City's civil contempt, plaintiffs request a
coercive sanction of$5,000 for each prospective violation of the Court's Orders.
The City argues that prospective coercive sanctions are unnecessary because the
most recent statistics show reduced enforcement. 109 This misses the point. Over
the long history of these lawsuits, the City has, if anything, shown itself to lack the
resolve to end the illegal enforcement on its own. Like clockwork, the City's anti-
enforcement actions correlate directly to its apparent concern that the Court may
find it in contempt. This pattern makes clear that prospective sanctions will
accomplish the desired result of eliminating the City's enforcement of the
Statutes. 110 Indeed, to keep enforcement numbers down, the various steps
implemented must continue, systematically and with vigor. And if these measures
109 The City also argues that prospective coercive sanctions are inappropriate against a municipality. The Supreme Court and the Second Circuit have held otherwise. See Spallone, 493 U.S. at 276 (concluding that it was appropriate for the district court to hold in contempt and fine the City of Yonkers); Yonkers, 856 F.2d at 460 ("Obviously, the City [ofYonkers] believes that there is a price it is willing to pay to avoid compliance with the order of the District Court. The District Court was entitled to establish a schedule of fines that would secure compliance with its orders ....").
110 In Brown I, this Court observed that sanctions would not stave off the issuance of summonses by patrolling officers. See 2007 WL 1573957, at *5 ("The problem is that some individual officers on patrol have yet to grasp the idea. It is unlikely that imposing a pecuniary sanction on defendants would sufficiently prevent one of the outliers from issuing an unlawful summons."). Since then, however, it has become evident that responsibility for halting enforcement lies not only with those officers who issue illegal summonses, but also with those who train, oversee, and control the officers' work.
34

prove insufficient, additional action will be required. Without the prospect of sanctions, the City's attention will wane and enforcement will surely rise again.
I agree with plaintiffs that a monetary fine per future incident of enforcement is the only remedy that will bring about true, long-term compliance with the Orders. Given the City's long history of non-compliance and routine apathetic attitude toward ending the illegal enforcement, the City has demonstrated that nothing less than the prospective threat of immediate and severe consequences will motive it to comply with the Court's Orders. The City is therefore prospectively fined for each future violation of the Orders, payable to the Court. To ensure compliance in the long-term, the fine shall grow progressively. The fine
shall begin at $500 per incident of enforcement. Every three months thereafter, the fine shall increase by $500. The maximum fine shall be $5,000 per incident of enforcement. 111
As a "purge" provision, the City shall avoid fines if it files and publishes within 60 days, an affirmation of its intention to abide by the Orders, and
111 The City's operating budget for the fiscal year ending June 30, 2010 is $59.5 billion. See The City ofNew York, Office of Management and Budget, Frequently Asked Questions, http://www.nyc.gov/html/omblhtml/faq/faq.shtml (last visited Apr. 22, 201 0). Therefore, the City certainly has the means to pay the modest fine imposed herein. The magnitude of the City's budget also makes clear that the fine is intended to coerce compliance with the Court's Orders, rather than to serve punitive purposes.
35

then abides by them. If the City conforms its conduct to the Court's Orders, it will escape an obligation to pay fines. "It is therefore clear that punishment for past wrongdoing is not the objective of the fines, but rather coercion of the defendants to conform their conduct to the court's order."112 Thus, the City holds "the proverbial 'key' to [its] prison."113 As an additional purge provision, no fine shall accrue during the 6 months following this Order, so that the City is furnished a grace period in which to comply with the Court's Orders before financial penalties are assessed.
B. Preliminary Injunction Plaintiffs seeks an order preliminary enjoining the City to take
numerous remedial steps to halt enforcement of the Statutes once and for all and to institutionalize the City's anti-enforcement program. 114 However, because the contempt citation and attendant monetary sanction for future unlawful summonses create a sufficient incentive for the City to fully eliminate enforcement of the Statutes, further injunctive relief is not warranted at this time. Accordingly, I deny plaintiffs' request for a preliminary injunction without prejudice.
112 New York State Nat 'l Org. For Women v. Terry, 159 F.3d 86, 95 (2d Cir. 1998).
113 ACLI, 1995 WL 731627, at *4. 114 See Pl. Mem. at 24-29 (outlining requested injunctive relief).
36

C. Discovery Sanctions
Pursuant to Federal Rule of Civil Procedure 37(d) and/or the Court's
inherent power, plaintiffs seek discovery sanctions against the City for failing to
preserve hard copies of at least 34 summonses issued under the Statutes from June
2007 to date.
1. Applicable Law
"It is well established that the duty to preserve evidence arises when a
party reasonably anticipates litigation."115 As I have stressed elsewhere, "parties
need to anticipate and undertake document preservation with the most serious and
thorough care, if for no other reason than to avoid the detour of sanctions."116
Responsibility for adherence to the duty to preserve lies not only with the parties
but also, to a significant extent, with their counsel. 117 Depending on the extent and
circumstances of any loss of evidence, also known as spoliation, the spoliator may
115 Pension Comm. ofMontreal Pension Plan v. Bane ofAm. Sec. ("Pension Comm."), F. Supp. 2d No. 05 Civ. 9016,2010 WL 184312, at *4 (S.D.N.Y. Jan. 15, 2010). Accord Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423,436 (2d Cir. 2001); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212,218 (S.D.N.Y. 2003) ("Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents.").
116 Pension Comm., 2010 WL 184312, at *7. 117 See Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) ("Counsel must oversee compliance with the ligation hold, monitoring the party's efforts to retain and produce the relevant documents.").
37

be subject to a range of sanctions, from cost-shifting or fines, to adverse inferences or preclusion of evidence, to dismissal or default judgment. 118
To prove spoliation, the innocent party must establish three elements: "that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party's claim or defense." 119 "Relevance and prejudice may be presumed when the spoliating party acted in bad faith or in a grossly negligent manner. ... However, when the spoliating party was merely negligent, the innocent party must prove both relevance and prejudice in order to justify the imposition of a severe sanction."120
2. Analysis The City's duty to preserve with respect to section 240.35(3) arose in at least January 2003 when the City was sued by an individual wrongfully arrested under that provision, and the City subsequently compensated that individual to settle the case. The City's duty to preserve with respect to section 240.35(1) arose
118 See Pension Comm., 2010 WL 184312, at *6-*7 (discussing remedies for spoliation).
119 Id. at *5 (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
120 I d. 38

in at least June 2005, when the Brown litigation was commenced. And the City's duty to preserve with respect to section 240.35(7) arose in at least March 2007, when the NYPD's Chief of Patrol circulated a memorandum to all Commanding Officers stating that subsections 1, 3, and 7 were unconstitutional and unenforceable.
The City does not dispute that, notwithstanding this duty, it failed to produce at least thirty-four hard copies of summonses issued for the Statutes since June 2007. Instead, the City argues that it should not be sanctioned because it has produced to plaintiffs approximately 680 summonses in hard copy, and because OCA was in possession of the missing summonses when they were lost. It is undisputed, however, that each of the summonses originated with the NYPD; therefore, the City had possession and control over the lost summonses despite their later having been sent to OCA. Once the duty to preserve arose, the City was under an obligation to retain copies of all summonses issued under the Statutes.
Turning to the City's culpability, I conclude that this loss of evidence was the result of negligent- as opposed to grossly negligent, willful, or intentional - conduct. 121 As noted, the City has produced approximately 680 hard copy summonses to plaintiffs, meaning the missing thirty-four account for
121 See id. at *2-*3 (defining negligence, gross negligence, and willfulness in the discovery context).
39

approximately five percent of the total production of hard copy summonses from June 2007 forward. 122 Of course, the omission of a small number of documents from a large production may support a finding of greater culpability where other evidence or context suggests a selective production. However, plaintiffs have not shown the City to have had a state of mind more culpable than negligence and, indeed, the City represents that the NYPD's standard practice is "not [to] retain the top copy of the summons which contains the narrative since NYPD must send this copy to OCA."123
Because the City was negligent in losing hard copy summonses, plaintiffs must prove relevance and prejudice in order to justify a harsh sanction. Relevance is obvious. As to prejudice, the hard copy of a summons is the only document containing the "narrative" portion of a summons that describes the alleged misconduct. Without the hard copy, the only contemporaneous evidence of what the officer alleges occurred is lost. Plaintiffs are prejudiced as a result. For example, the City argues with respect to the merits of this case that "[t]o the extent that plaintiffs have alleged that a summons issued under the Statutes per se resulted in a Fourth Amendment violation, their argument fails ... if there was probable cause to believe that the person summonsed was involved in any criminal activity
122 See DeBellis Decl. ~ 54. 123 Def. Mem. at 23 (citing DeBellis Decl. ~53).
40

at the time, not necessarily the activity contemplated under the Statues."124 Assuming the City's argument is legally sound, one important way that plaintiffs can refute such a contention is by pointing to the narrative portion of the summons itself. Plaintiffs can no longer do this for the missing hard copy summonses.
Having shown that the City committed spoliation, plaintiffs are entitled to a remedy. Plaintiffs request an "adverse inference that for every one of the 34 (and perhaps more) summonses not produced by defendants, the record would have revealed no legal basis for the summons being issued other than the violation of the unconstitutional loitering law."125 This is an entirely reasonable sanction in the circumstances: Because the narrative portion of the missing summonses are no longer available due to the City's negligence, it is appropriate to infer that these narratives would not have been favorable to the City. Monetary sanctions in the form of attorneys' fees are also appropriate. 126
124 Id. at 19 (citing Devenpeck v. Alford, 543 U.S. 146 (2004)). 125 Pl. Mem. at 31-32. 126 See Pension Comm., 2010 WL 184312, at *7 ("Monetary sanctions are appropriate to punish the offending party for its actions and to deter the litigant's conduct, sending the message that egregious conduct will not be tolerated. Awarding monetary sanctions serves the remedial purpose of compensating the movant for the reasonable costs it incurred in bringing a motion for sanctions." (quotation marks, alterations, and footnote omitted)).
41

D. Attorneys' Fees and Costs
Courts have "'broad discretionary power' ... to fashion equitable
remedies which are 'a special blend of what is necessary, what is fair, and what is
workable."'127 A court "may award appropriate attorney fees and costs to a victim
of contempt."128 "[E]ven where a court declines to issue a citation of contempt for
violations of the court's orders, attorneys' fees and costs may be recoverable where
the 'bringing of the action should have been unnecessary and was compelled by ...
unreasonable, obdurate obstinacy. "'129 In Brown I, though I declined to hold the
City in contempt, I nonetheless awarded plaintiff Brown reasonable fees and costs
because "defendants' defiance of the June 23, 2005 Order necessitated the bringing
of [that] contempt proceeding ...." 130 The present citation of contempt and
127 Class v. Norton, 376 F. Supp. 496,501 (D. Conn. 1974) (quoting Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)), aff'd in part, rev 'din part, 505 F.2d 123 (2d Cir.) (denying contempt citation but granting attorneys' fees to party prosecuting contempt motion).
128 Weitzman, 98 F.3d at 719. 129 Brown I, 2007 WL 1573957, at *6 (quoting Class, 505 F.2d at 127). Accord Crescent Publ'g Grp. v. Playboy Enters., 246 F.3d 142, 147 (2d Cir. 2001) (emphasizing that "the decision to award fees rests in the court's equitable discretion" and noting that "nonexclusive factors" courts may consider include "'frivolousness, motivation, objective unreasonableness ... and the need in particular circumstances to advance considerations of compensation and deterrence"' (quotingFogerry v. Fantasy, 510 U.S. 517,534 n. 19 (1994)). 130 Brown I, 2007 WL 1573957, at *6 (citing, for example, Commodiry Futures Trading Comm 'n v. Sirras, Misc. No. M 31, 1984 WL 391, at *1
42

discovery sanctions warrant the imposition of reasonable attorneys' fees and costs to plaintiffs for their efforts with respect to this motion. IV. CONCLUSION
For the reasons set forth above, plaintiffs' motion for contempt and discovery sanctions is granted. Plaintiffs' motion for a preliminary injunction is denied without prejudice. Plaintiffs are directed to submit a fee application by May 14, 2010. The Clerk of the Court is directed to close this motion (document number 36). A conference is scheduled for May 12,2010 at 2:30p.m.
SO ORDERED:

Dated:

New York, New York April 26, 2010

(S.D.N.Y. Apr. 27, 1984) (finding no need to adjudge party in contempt to assure future compliance with court order, but awarding proponent reasonable attorneys' fees and costs)).
43

- Appearances -
For Plaintiffs:
Katherine Rosenfeld, Esq. Matthew D. Brinckerhoff, Esq. Emery Celli Brinckerhoff LLP 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5000
J. McGregor Symth, Jr., Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, New York 10451 (718) 838-7878
Earl Ward, Esq. 75 Rockefeller Plaza, 20th Floor New York, New York 10019 (212) 763-5070
For Defendants:
Rachel Seligman Weiss Linda Donahue Assistant Corporation Counsel New York City Law Department 100 Church Street New York, New York 10007 (212) 788-0784 (212) 788-0892
44

 
 Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 1 of 88

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MICHAEL BROWN, et al., 
 on behalf of themselves and all others simiJ.arly 
 situated, 

Plaintiffs,
-against-
RA YMOND W. KELLY, et al.,

05 Civ. 05442 (SAS) FINAL JUDGMENT

Defendants.
PAUL CASALE AND ANTHONY GARCIA, on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
RA YMOND W. KELLY, et al.,
Defendants.

08 Civ. 2173 (SAS)

HONORABLE SHIRA A. SCHEINDLIN UNITED STATES DISTRICT JUDGE
It is hereby ORDERED, ADJUDGED, and DECREED that for the reasons set forth in the Order signed by the Court on December 21, 2012 and entered December 26, 2012 (Ex. A), that:
The January 26, 2012 Stipulation of Settlement (Ex. B) is hereby approved; The parties shall abide by all the terms of the Stipulation of Settlement and the Court's December 21, 2012 Order; The City of New York shall make all payments set forth in the December 21, 2012 Order in accordance with the terms set forth in that Order;

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 2 of 88 The Court retains jurisdiction over this action to enforce the terms of the
December 21, 2012 Order and the Stipulation of Settlement. Dated: New York, New York
January~, 2013 JUDGMENT ENTERED _ _ _ _ _ _, 2013
2 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 3 of 88
Exhibit A 


Case 1:05-cv-05442-SAS

Document 202

Filed 01/03/13 Page 4 of 88 '_......

, ... J

\

.:.,.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
MICHAEL BROWN, et al., 

on behalf of themselves and all others similarly 
 situated, 

Plaintiffs,
-againstRAYMOND W. KELLY, et al.,
Defendants.
PAUL CASALE AND ANTHONY GARCIA, on behalf ofthemselves and all others similarly situated,
Plaintiffs,
-against-
RAYMOND W. KELLY, et al.,

05 Civ. 05442 (SAS)
Order Approving the January 26, 2012 Stipulation of Settlement
08 eiv. 2173 (SAS)

HONORABLE SHIRA A. SCHEINDLfN UNITED STATES DISTRICT JUDGE
WHEREAS, the District Court preliminarily approved the Stipulation and Order of Settlement ("the Settlement") on February 7, 2012~
WHEREAS, on March 8,2012, the District Court approved the plan for notifying the Settlement Class, as well as the Claim Packet (which included, inter alia, a Class Notice and Claim Form) and Summary Notices for posting;
WHEREAS, the Parties have fully briefed a motion in support of Final District Court Approval of the Settkmcnt;

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 5 of 88
WHEREAS, the District Court found at the faIrness hearing on December 14,
2012 that the settlement was fair and adequate, and ordered final approval pursuant to Fed. R.
Civ. P. nee):
WHEREAS, the Settlement sets forth the agreement, terms and conditions for the proposed settlement and dismissal of this action;
WHEREAS, the Settlement provides for, inter alia, monetary relief for members of the classes ("Settlement Class Members" or "SCMs"), who are defined as: "as all individuals who are listed in the Ne\\! York State Office of Court Administration's Criminal Records and Information Management System (HCRIMS") or Summons Automation Management System ("SAMS") databases; or in the New York City Police Department's Booking Arraignment Disposition System (HBADS") or in the Criminal Court Summons (HC-Summons") databases; or in a Report derived from New York City Police Department databases identifying Attempts to Charge ("Attempts to Charge Report"); or in summonses produced in discovery or in connection with a Claim Form up to the Bar Date, as having been charged in the City of New York prior to the Bar Date: (I) with a violation ofN.V. Penal Law § 240.35(1) after September 30, 1992; or (2) with a violation ofN.V. Penal Law § 240.35(3) after February 23, 1983; or (3) with a violation ofN.V. Penal Law § 240.35(7) after February 17, 1988.";
WHEREAS, the Settlement provides for the creation of a Class Fund in the amount of $15 Million ($15,000,000);
WHEREAS the Settlement provides for equitable relief, including a joint omnibus New York State court proceeding to vacate, dismiss, and seal all cases charging the Statutes within New York City that have "qualifying dispositions" as defined in the Parties' and the DAOs' letter agreement dated January 18,2012; assurance that all qualifying cases under the
2 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 6 of 88
Statutes are appropriately maintained in compliance with state sealing laws, including by certifying the destruction of all related fingerprints and photographs; a joint fonnal written request to OCA and the New York State Division of Criminal Justice Services CDCJS") to create a pennanent notation of unconstitutionality attached to electronic records of all Loitering Charge Incidents; and prevention policies for a period of two years from Final District Court Approval;
WHEREAS, the Parties have agreed that $12 Million ($12,000,000) of that Class Fund shall be paid to members of the Settlement Class who timely filed a signed valid Claim Fonn, according to the Distribution Formula set forth in paragraph 52 of the Settlement and with appropriate deductions specified in paragraphs 56 and 69 of the Settlement, and the amount paid to each valid claimant shall be called the Award Amount;
WHEREAS, the Parties agree and recommend that the Distribution Fommla as defined in paragraph 52 of the Settlement should be applied by the Administrator;
WHEREAS, the Parties have agreed that a total of$3 Million ($3,000,000 or "Settlement Costs") of that Class Fund shall be paid to Class Counselor to the Administrator to make the following payments: (1) to Class Counsel, incentive payments of $25,000 each to the eight class representatives of the Settlement Class (Michael Brown, Michael Louis Brown, Bobby Wells, Xavier Grant, Keith Anderson, Paul Casale, Anthony Garcia and Llewellyn Rudy) as defined in paragraph 75 of the Settlement ("Named Plaintiffs") (totaling $200,000), and payments to Class Counsel for its own past, present, and future fees and costs in the above­
captioned action; and (2) to the Administrator, all payments to administer the Settlement;
WHEREAS, the City previously paid the Administrator $239,993.55 in Settlement Costs for administering the Settlement;
3 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 7 of 88
WHEREAS, the Parties agree that Class Counsel's reasonable attorneys' fees, costs and expenses shall be the $3 Million in Settlement Costs less amounts paid to the Administrator and the Named Plaintiffs, in addition to the $560,800.53 previously paid for attorneys' fees, costs and expenses;
WHEREAS, the Administrator has averred that it sent a Claim Packet to each Class Member on June 8, 2012 at the last known addressees) (with re-mailing of returned Claim Packets), and Class Members were given until November 8,2012 to file a Claim FOlTI1;
WHEREAS, the submissions of the Parties indicate that one-page Spanish and one-page English Summary Notices were posted in places likely to be seen by Class Members in accordance with the Settlement;
WHEREAS, the Settlement was widely publicized on the radio, television, the internet, and in newspapers;
WHEREAS, the Settlement was negotiated with the assistance of fanner
Magistrate Judge Theodore J. Katz;
WHEREAS, the Parties agree that persons who submit late claims after the date of this Order but on or before January 8, 2013 will be given 30 days from January 8, 2013 to provide a "good cause" explanation for their late filing as set forth in paragraph 56 of the Settlement;
WHEREAS, no objections to the Settlement or requests for exclusion from the Settlement were received by the Court, the Parties or the Administrator;
WHEREAS, upon reading the papers submitted in support of the motion for Final District Court Approval of the Settlement, and after hearing argument trom both Parties on December 14, 2012:
4 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 8 of 88
~OW, it is HEREBY ORDERED that:
(a) The Settlement meets the requirements of Fed. R. Civ. P. 23(e) because it is procedurally and substantively fair, reasonable, and adequate;
(b) The factors set f0l1h in City ofDetroit v. Grinnell Corp., 495 F.2d 448, 463 (2d eir. 1974) weigh in favor of approval of the Settlement;
(c) The $25,000 service awards to the eight Named Plaintiffs, totaling $200,000, from the Settlement Costs are fair and reasonable given the time and effort they expended assisting in the prosecution of this litigation;
(d) The agreed total amount of $3 Million in Settlement Costs for past and future attorneys' fees, costs and expenses (in addition to $560,800.53 previously paid), Administrator fees and costs, and Named Plaintiff awards ($200,000) is approved as fair and reasonable;
(e) Notice to the Settlement Class was the best practicable notice under the circumstances and complied with Fed. R. Civ. P. 23(c)(2);
(f) The Settlement is therefore finally approved; (g) Pursuant to Paragraph 44 of the Settlement, the City is required to pay the
Administrator within 61 days of the date of this Order the amount of $12,000,000, less deductions due to valid timely claimants' child support liens (hereinafter the amount to be paid to the Administrator is cal1ed the "Remainder"), and those amounts deducted tor child support liens shall be sent to the beneficiary of the child support lien; (h) Prior to the payment orthe Remainder to the Administrator, the City in consultation with the Administrator, shall make its best good faith estimate of
5 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 9 of 88
the maximum amount that should be deducted due to child support liens, and shall pay the Administrator $12,000,000 less that amount; (i) If additional money is detennined to be owed to the City due to child support liens due to a change in the Award Amount, acceptance of late claims, or for any other reason, the Administrator shall return that amount to the City; U) Ifless money is deternlined to be owed due for child SUpp0I1 liens due to a change in the Award Amount, or for any other reason, the City shall pay the Administrator that additional money and that amount shall be added to the Remainder; (k) Pursuant to Paragraph 56 ofthe Settlement, the Administrator shall place $100,000 of the Remainder in reserve to pay late claims filed after the date of the Order but on or before January 8, 2013 for "good cause" shown; (l) The Administrator shall distribute the Remainder to timely valid claimants in accordance with the tenns of the Settlement; (m)Within 61 days of the date of this Order, the City shall pay Class Counsel $2,760,006.45; (n) From this $2,760,006.45, Class Counsel shall pay: (1) the eight Named Plaintiffs $25,000 each, for a total of $200,000; and (2) themselves the remaining amount for attorneys' fees, costs and expenses. (0) All checks mailed to Class Members shall bear the notation, "CASH PROMPTLY, VOID AND WILL NOT BE RE-ISSUED 120 DAYS AFTER DATE OF ISSUANCE":
6 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 10 of 88
(p) Claims postmarked after the date of this Order shall be denied as late and shall not be paid as part of the initial distribution from the Class Fund. Persons who submit late claims postmarked after the date of this Order but on or before January 8, 2013 will be given 30 days to provide a "good cause" explanation for their late filing. Class Counsel shall determine if the person had "good cause" to file a latc claim, and persons shall have the right to appeal any such determination to the Magistrate Judge. All persons with good cause for filing a late claim after the date of this Order but on or before January 8, 2013 shall be paid a pro-rata share up to the Award Amount - of the amount remaining in the Remainder due to the failure of claimants to timely cash their checks within 120 days of issuance, as well as from the $100,000 held in reserve to pay late claims, except that Class Counsel, upon notice to the Court, may decide to reserve some portion of the remaining funds to pay persons who failed to cash their checks within 120 days;
(q) All late claims that are approved as showing "good cause" will also be subject to the deduction of any valid child support liens:
(r) Claims postmarked after January 8, 2013 shall be denied and shaH not be considered; and
(s) Ifmoney remains in the Remainder, or in the $100,000 reserve after the payment oflate claims filed after the date of this Order but on or before JanualY 8, 2013 for "good cause," or because of uncashed checks issued to claimants, and as set forth in paragraph 55 of the Settlement, Class CounseL on written notice to the City and the Court, shall have the discretion to (a)
7

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 11 of 88 reissue the checks, or (b) add the amount of the voided checks back to the
Class Fund to be divided pro rata amongst eligible SCMs, or (c) issue checks to persons who make late claims for good cause shown pursuant to the immediately following paragraph, or (d) seek an award by the Court consistent with cy pres principles. Dated: New York, Ne\v York December 21, 2012
8 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 12 of 88
Exhibit B 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 13 of 88

U::-JITED SlATES DISTRICT COURT SOUTHER::-J DISTRICT OF NEW YORK ------------------------------------------------------------------------x MICHAEL BROW~, et al.,
on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
RAYMOND W. KELL Y, el 01.,
De fendants.
---------------- ---------- ------ ---- --- ------- -- -------- -- -- ---- ----- -----x
PAUL CASALE and ANTHONY GARCIA, on behalf of themselves and all others similarly situated,
Plaintiffs,
-against-
RA YMOND W. KELLY, et a1.,
Defendants. ------------------------------------------------------------------------x

05 Civ. 05442 (SAS)(THK)

USDCSDNY

DOCUMENT ELECfnON1CAtLY

""'1 I rt.

_rt:;.Lr1\

,I I·

I.

08 Civ. 2173 (SAS)(THK)

STIPULATION AND ORDER OF SETTLEMENT

This Stipulation and Order is made and entered into on tbis 26th day of January 2012 between the City of New 'ITork (hereinafter "the City"), New York City Police Department Commissioner Raymond Kelly and Bronx District Attorney Robert Johnson, ("collectively "Detendants"), and Plaintiffs (hereinafter "Plaintiffs") Michael Brown, Keith Anderson, Michael Louis Brown, Xavier J. Grant, Llewellyn Rudy, Bobby Wells, Paul Casale, and Anthony Garcia, on behalf of themselves and all others similarly situated (collectively the "Parties"), and is
made and entered into with reJer<!nce to the following facts.
WHEREAS, on June 9, 2005, in an action now entitled Brown v. Kell)l, 05 Civ.

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 14 of 88
5442 (SAS) ("JJrown ") and pending before the Honorable Shira A. Scheindlin, a plaintitl flled a putative class action lawsuit alleging that the City of New York, operating inter alia through the New York City Police Department ("NYPD") and the District Attorneys' Offices ("DADs"), continued to charge thousands of individuals for violations of N. Y. Penal Law § 240.35( I), although that the statute had been declared unconstitutional on First Amendment grounds in 1992. See Loper v. New York City Police Dep't, 999 F.2d 699, 701 (2d Cir. 1993);
WHEREAS, on March 4, 2008, in an action entitled Casale v. Kelly, 08 Civ. 2173 (SAS) ("Casale"), and pending before the Honorable Shira A. Scheindlin, a group of plaintiffs filed a putative class action lawsuit alleging that the City of New York, operating inler alia through the NYPD and DAOs, continued to charge thousands of individuals for violations of N.Y. Penal Law § 240.35(3) and N.Y. Penal Law § 240.35(7), although the statutes were declared unconstitutional in 1983 and 1988, respectively. See People v. Uplinger, 460 N.Y.S.2d 514 (1983); see also People v. Bright, 526 N.Y.S.2d 66 (1988);
WHEREAS, in Brown, a class was certified pursuant to Fed. R. Civ. P. 23(b)(3) consisting of all persons who have becn or will be arrested, charged or prosecuted by employees, agents or representatives of New York City for violating N.Y. Penal Law § 240.35(1) from October 7, 1992 onward, and af1irmed by Order of the United States Court of Appeals for the Second Circuit (see Brown v. Kel~v, 609 FJd 467, 473 (2d Cir. 2010»;
WHEREAS, in Casale, a class was certified pursuant to Fed. R. eiv. P. 23(b)(2) consisting of aU persons who have been or will be arrested, charged, or prosecuted for a violation of N.Y. Penal Law §§ 240.35(3) or 240.35(7) in New Yor~ City after these statutes were declared unconstitutional and a class was certified pursuant to Fed. R. Civ. P. 23(b)(3) consisting or all persons who have been arrested, charged, or prosecLlted for a violation of

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 15 of 88
either N.Y. Penal Law §§ 240.35(3) or 240.35(7) in New York City within the applicable
statute of limitations. Subclasses were certified to address potential defenses applicable only to plaintiffs who were never prosecllted and to those charged with additional criminal offenses at the time they were charged with a violation of N. Y. Penal Law §§240.35(3) or 240.35(7) (see Casale v. Kelly, 257 F.R.D. 396 (S.D.N.Y. 2009));
WHEREAS, by Opinion and Order dated April 26, 2010, over the objection of defendants, the District Court adjudged uefendant the City of New York to be in contempt of court based on the fact that City of New York Jaw enforcement officers charged individllals with violations of N.Y. Penal Law § 240.35(1), N.Y. Penal Law § 240.35(3), and N.Y. Penal Law § 240.35(7) after the filing of the above-captioned Brown and Casale actions;
WHEREAS, on or about August 3, 2010, by Order of the United States Court of Appeals for the Second Circuit in the matter of Brmt'n v. Kelly, the District Court's certifications pursuant to Fed. R. Civ. P. 23(b)(2) of a state-wide plaintiff class and a defendant class were vacated (sec Brown v. Kelly, 609 F.3d 467, 482 (2d Cir. 2010»;
WHEREAS, N. Y. Penal Law §§ 240.35(1), (3), and (7) were repeaJed by the New York State legislature on July 30, 2010 (2010 N.Y. Laws Ch. 232);
WHEREAS, defendants deny any and allliability and maintain that they have not had at allY time and do not have now a policy, practice or custom to enforce N.Y. Penal Law §§ 240.35(1), (3), and/or (7) since the statutes \vere respectively declared unconstitutional;
WHEREAS, the Parties, seeking to avoid additional protracted, expensive, and unnecessary litigation, agree to the entry of this Stipulation and Order of Settlement (hereinafter "Stipulation") to resolve all issues that were raised in these class actions by the
J 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 16 of 88
Plaintiffs individually or as class rtpresentatives;
NOW, THEREFORE, with the agreement of all Parties, it is hereby ORDERED,
ADJUDGED AND DECREED as follows: INTRODUCTION
A. The parties enter into this Stipulation for the purpose of avoiding the burdens of further litigation, and mutually to support vigorous, lawful, and nondiscriminatory enforcement of the law. Settlement of this action under the terms stated in this Stipulation is in the public interest because the Stipulation avoids diversion of private and City resources to further adversarial action by the parties.
B. Plaintiffs enter into this Stipulation for the purpose of addressing the allegations in the Complaints filed in the Brown and Casale actions. Plaintiffs and Class Counsel believe the terms of this Stipulation are in the public interest because they believe they are designed to prevent future unconstitutional enforcement of1\.Y. Penal Law §§ 240.35(1), (3) and (7) in the City of New York.
e. Defendants deny any and all liability and deny that they had or currently have a
policy or engaged in or currently engage in a pattern or practice of conduct that deprived persons of rights, privileges, or immunities secured or protected by the Constitution and la\vs of the United States.
D. This Stipulation does not and shall not be deemed to constitute any admission by defendants as to the validity or accuracy of any of the allegations, assertions, or claims made by plaintiffs. No dete/ruinations have been issued by the COlIrt concerning the merit or lack of merit of the allegations made by plaintiffs in their pleadings. This Stipulation docs not constitute an admission, adjudication, or finding on the merits of the above-captioned action.
4

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 17 of 88

E. This Court has jurisdiction over this action under 28 U.S.c, §§ 133] and 1343. Venuc is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391.

DEFINITIONS 1. The "Settlement Class" is defined as all individuals who are listed in the New
York Statc Office of Court Administration's Criminal Records and Information Management System ("CRIMS") or Summons Automation Management System ("SA~lS") databases; or in the New York City Police Department's Booking Arraignment Disposition System ("BADS") or in the Criminal Court Summons ("C-Summons") databases; or in a Report derived from New York City Police Department databases identifying Attempts to Charge ("Attempts to Charge Report"); or in sllmmonses produced in discovery or in connection with a Claim Form lip to the Bar Date, as having been charged in the City of New York prior to the Bar Date: (l) with a violation of N.Y. Penal Law § 240.35(1) after September 30, 1992; or (2) with a violation of N.Y. Penal Law § 240.35(3) after February 23,1983; or (3) with a violation ofN.V. Penal Law § 240.35(7) after February 17, J988. 1

2.

"Subsection One Group" means all persons in the Settlement Class who were

charged w·jth a violation of N.Y. Penal Law § 240.35(1) on or after September 30, 1992 and

before the Bar Dute.

3.

"Subsection One Recent Group" means all persons in the Subsection One Group

who were charged with a violation of N.V. Penal Law § 240.35(1) on or aBer June 9, 2002 or

whose criminal case arising [rom such a charge on or before June 8, 2002 was favorably

I The Settlement Class does not include claims of fonner plaintiff Eddie Wise extinguished by the judgment entered against the City of Nt:w York on December 5, 2006. The Settlement Class does not include individuals who are only listed in the databases with a charge under the Statutes due to a clerical data entry error, as proven by documentary evidence.

5

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 18 of 88
terminated within the meaning ofN. Y.c.P,L. § 160.50 on or after June 9. 2002 and before the Bar
Date. 4. "Subsection One Older Group" mCflns all persons in the Subsection One Group
who were charged with a violation of N.Y. Penal Law § 240.35(1) on or before June 8, 2002 and (i) whose criminal ease arising from such a charge was disposed of in any way on or before June 8, 2002; or (ii) whose criminal case was not favorably terminated within the meaning of N. Y.c.P.L. § ]60.50 on or after June 9, 2002; or (iii) whose criminal case was favorably tem1inated within the meaning ofN,y'C.P.L. § 160.50 on or after the Bar Date,
S. "Subsection Three Group" means all persons in the Settlement Class who were charged with a violation of N.Y. Penal Law § 240.35(3) on or after February 23, 1983 and before the Bar Date.
6. "Subsection Three Recent Group" means all persons in the Subsection Three Group who were charged with a violation of N. Y. Penal Law § 240.35(3) on or after March 4, 2005 or whose criminal case arising from such a charge on or before March 3, 2005 was favorably terminated within the meaning ofN.Y,C.P.L. § 160.50 on or after March 4, 2005 and before the Bar DJte.
7. "Subsection Three Older Group" means all persons in the Subsection Three Group who were charged with a violation of:-l.Y. Penal Law § 240.35(3) on or before March 3, 2005 and (i) whose crimina] case arising from such a charge was disposed of in any way on or before March 3, 2005; or (ii) whose criminal case was not favorably terminated within the meaning of N. Y.c.P.L. § 160.50 on or after March 4. 2005; or (iii) whose criminal case was favombly terminated within the meaning ofN.Y.CP.L. § 160.50 on or after the Bar Date.
6 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 19 of 88

8. "Subsection Seven Group" means all persons in the Settlement Class who were charged with a violation of N.Y. Penal Lnv § 240.35(7) on or arrer February 17, 1988 and before
the Bar Date.

9.

"Subsection Seven Recent Group" means all persons in the Subsection Seven

Group who were charged with a violation of ::.I.Y. Penal Law § 240.35(7) on or after March 4,

2005 or whose criminal case arising from such a charge on or before March 3, 2005 was

favorably terminated within the meaning ofN.Y.C.P.L. 160.50 on or after March 4, 2005 and

before the Bar Date.

10. "Subsection Seven Older Group" means all persons in the Subsection Seven Group who were charged with a violation of N. Y. Penal Law § 240.35(7) on or before March 3, 2005 and (i) whose criminal case arising from such a charge was disposed of in any way on or before March 3, 2005; or (ii) whose criminal case was not favorably terminated within the meaning of N,Y.C.P.L. § 160.50 on or after March 4, 2005; or (iii) whose criminal case was favorably tenninated within the meaning of N. Y.c.P. L. § 160.50 on or after the Bar Date.

11. "Favorably tenllinated" means any criminal action or proceeding relating to a Loitering Charge Incident that is terminated as defined in N.Y.C.P.L. § 160.50(3).

12. "Final Class List" means all of the persons in the Settlement Class, as determined by the Administrator after the Administrator performs an analysis to ensure that persons are not listed twice or incorrectly included. All individuals on the Final Class List will be given notice of this Stipulation.

13. "Named Plaintiff"," means Michael Bro'vV11, Keith Anderson, Michael Louis I1rovm, Xavier J. Grant, Llewellyn Rudy, Bobby Wells, Paul Casale, and Anthony Garcia. These persons

7

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 20 of 88
represent alJ or part of the Settlement Class. 14. "Class Counsel"' means Emery Celli Brinckerhoff & Abady LLP and The Bronx
Delenders. 15. 1\ "Settlement Class M~mber" ("SCM") means any member of the Settlement
Class who does not file a valid and timely Request for Exclusion as provided in paragraph 73 of this Stipulation.
16. An "Opt-Out" is any potential SO'll who files a timely Request for Exclusion as specified in paragraph 73.
17. "Date of Class l\otice" is the date when the Administrator first mails out the Claim Packets to the persons on the Final Class List, which must occur within ninety (90) days of Prel iminary District Court Approval.
18. The "Bar Date" is the date established by the Court by which any SCM who wishes to receive payments pursuant to the Stipulation must tile his/her Claim Form{s). The Parties agree that this date should be 120 days from the Date of Class Notice.
19. The "Claim Form" is a document, in a form approved by the Court, that SCMs must complete and sign in order to be considered for payment pursuant to this Stipulation.
20. i\ "Claim Packet" means a "Claim Form," together with a notice in a form approved by the Court. The Claim Packet will be mailed by the Administrator to all persons on the final Class List.
21. "Summary Notices" means a one-page English and a one-page Spanish summary of this Stipulation in a form approved by [he Court.
22. "Administrator" means the person or organization designated by Class Counsel 8

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 21 of 88
and appointed by the Coun to administer the Class Fund, disseminate the Claim Packets, and review and determine the validitv, and amount of claims submitted by SCMs, according to the procedures set forth herein. Defendants shall be permitted 10 make non-binding suggestions to Class Counsel regarding the sel cction of the designated Administrator.
23. "Class fund" means the amount to be paid by the City for all claims of SCMs, service awards 10 Named Plaintiffs, administrative costs, and attorneys' fees and costs. That amount shall be $15 Million Dollars.
24. "Settlement Costs" means a portion of the Class Fund to be detemlined prior to a fairness hearing on this Stipulation, which shall be paid directly to Class Counsel. From this amount, Class Counsel shall pay service awards to Named Plaintiffs, Administrator's costs, and Class Counsel's own past, present and future fees and costs. This amount does not include the attorneys' fees and costs previously paid to Class Counsel.
25. The "Remainder" means that majority portion of the Class Fund that shall be sent to the Administrator to pay SCMs' claims. That amount shall be $15 Million Dollars minus the amount approved by the Court for Settlement Costs and the amount retained by the City of New York for transmittal to the Office of Child Support Enforcement for distribution to the beneficiaries ofthe Child Support Liens as referenced in paragraph 53(c).
26. "Class Settlement fund Account" ("CSFA") means a bank account or accounts to be established by the Administrator for the benetlt of the Settlement Class. The CSFA shall be interest bearing if the costs associated with making it interest bearing (such as tux preparation and bank fees) and secured arc less than the likely interest earned. If the CSFA is an interest bearing account, any amount remaining after the costs described in this paragraph will be subject to the conditions of paragraph 83 herein.
9

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 22 of 88
27. "Prdiminary District Court Approval" means the date, following the submission of this Stipulation, executed, to the District Court by the Parties, but prior to a fairness hearing on this StipUlation, on which the District Court grants preliminary approval of the StipUlation.
28. "Final District Court Approval" means the date, following the submission of this StipUlation, executed, to the District COUlt by the Purties, and ufter a fairness hearing on this StipUlation, on which the District Court grants final approval of this StipUlation.
29. The "Effective Date for Payment" (or "Effective Date") is the date when the City's obligation to pay the Class Fund of $15 ~1ill ion Dollars (minus sums advanced for costs of notice pursuant to paragraph 43) becomes efTective. It is one duy following entry of the Final District Court Approval of the Stipulation by an Order from the District Court.
30. The "Funding Date" is the date sixty (60) days after the Effective Date for Payment and is the date by which the City agrees to comply with the obligations stated at paragraph 44 herein, provided no appeals are pending.
3). An "Approved Claim" means a claim form received, reviewed and verified by the Administrator.
32. '[lle "Distribution Fonnula" means the process by which each Approved Claim will be awarded points after review and after such verification as the Administrator deems appropriate of the information provided on the Cluim Form.
33. "The Statutes" shall mean N.Y. Penal Law § 240.35(1), N.Y. Penal Law § 240.35(3), and N.Y. Penal Law § 240.35(7).
34. "Arrested" means that an SCM appears in the New York Stat~ Office of Court l\dministration's Criminal Records and Information Management System ("CRI,\:1S") or the
10 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 23 of 88
New York City Police Department's Booking Arraignment Disposition System CI1ADS")or in a
New York City Police Department's Attempts to Charge Report, as having been charged under the Statutes. 2
35. "Released Parties" means any and all of the Defendants, namely the City, Raymond W. Kelly, and Robert Johnson as well as their past, present, or future affiliates, subsidiaries, parents, successors and predecessors, officers, directors, agents, agencies, employees, attomeys, advisors, insurers and any person, firm, tnlst, corporation, officer, director or other individual or entity in which any Defendant has a controlling interest or which is related to or affiliated with any Defendant, and the legal representatives, heirs, predecessors in interest, successors in interest or assigns of the Defendants. Released parties shall also include the Offices of the District Attomeys within the City of New York, namely the Counties of Kings, Queens, Richmond, Bronx and New York, (the "OA Offices"), as well as its past, present, or future affiliates, subsidiaries, parents, successors and predecessors, officers, directors, agents, agencies, employees, attorneys, advisors, insurers and any person, firm, trust, corporation, officer, director or other individual or entity in which any DA Office has a controlling interest or which is related to or affiliated with any DA Office, and the legal representatives, heirs, predecessors in interest, Sllccessors in interest or assigns of the OA Oflices.3
36. "Sel1lcd Class Claims" mean any and all claims, debts, demands, rights, or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest,
"for purposes of this Stipulation, "charge" or "charged" includes any attempt to charge the Statutes recorded in the New York City Police Department's databases, as retlected in an Attempts to Chmge Report. J Thl! Office of the District Attorney for Bronx County is it named party represented by the New York City Law Department, Office of the Corporation Counsel ("Corporation Counsel"). The Corporation Counsel has also represented the District Attorney Offices of the Counties of New York, Kings, Queens and Richmond to the extent that they have participated in this Stipulation of Settlement, that they have agreed to the terms described in the Lerter Agreement annexed hereto as Exhibit A and to the extent that they have otherwise participated, whether or not as defendants, in the Casale and Brown litigations.
1 I

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 24 of 88
attorneys' iCes, administratiun fees, expert or consulting fees, and any other costs, expenses, or liabilities whatsoever), whether based on federal, state, local, statutory, or common law or any other law, nile, or regulation, whether fixed or contingent, accI11ed or un-accnlcd, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature, that arise out of charges in the City of New York prior to the Bar Date: (1) for a violation of N.Y. Penal La\', § 240.35( I) after September 30, 1992; (2) for a violation of N. Y. Penal Law § 240.35(3) after February 23, 1983; and/or (3) for a violation of N. Y. Penal Law § 240.35(7) after February 17, 1988.
37. "Settled Named Plaintiff Claims" mean any and all claims, debts, demands, rights, or causes of action or liabilities whatsoever (including, but not limited to, any claims for damages, interest, attorneys' fees, administration fees, expert or consulting fees, and any other costs, expenses, or liabilities whatsoever), whether based on federal, state, local, statutory, or common law or any other law, rule, or regulation, whether fixed or contingent, accrued or un­ accrued, liquidated or un-liquidated, at law or in equity, matured or un-matured, whether class or individual in nature, that have been asserted in this action by the Settlement Class ancVor Named Plaintiffs against any of the Released Parties.
38. "Loitering Charge Incident" means any arrest, summons, prosecution or other charging incident or criminal proceeding charging a person within the five boroughs of New York City at any time up to two years from the Effective Date: (I) with a violation ofN.V. Penal Law § 240.35(1) after September 30, 1992; (2) with a violation of N. Y. Penal Law § 240.35(3) after February 23, 1983; or (3) with a violation of N.Y. Penal Law § 240.35(7) after February 17, 1988.
39. "Sealed Loitering Charge Incident" means any Loitering Charge Incident
12

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 25 of 88

terminated in favor of the accused person as defined by N. Y. Crim. Proc. L. § 160.50(3) or in a conviction for a non-criminal offense as defined by N.Y. Crim. Proc. L. § 160.55(1).

FUND1~G AND RESOl,UTION 01.1' SETTLEMENT COSTS
40. Subject to the tenns and conditions of this Stipulation, the City agrees to pay Fifteen Million Dollars ($15,000,000.00) as the Class fund, which shall be used to pay atl claims of SCMs and the Settlement Costs. The Class Fund docs not include the $560,800,53 in attorneys' fees and costs previously paid to Class Counsel.

41.

Wbile the parties have agreed to a Class Fund of $15 Million Dollars, the parties

have not agreed on the amount to be subtracted from the Class Fund to pay the Settlement Costs.

CJass Counsel will not seek more than $3.5 yfillion Dollars to pay the Settlement Costs.

Defendants reserve all rights to assess, analyze and object to the amount of Settlement Costs upon

defendants' receipt of all infonnation that they deem relevant to the final detennination of the

Settlement Costs, including billing records that they believe are necessary to assess the

reasonableness of Class Counsel's past attorneys' fees. Apart from past attorneys' fees, the parties

also have not agreed, as of the signing of this Stipulation, on the amount of Class Cmillsel's future

attorneys' fees, the amount of the Administrator's fee, and on the amount or means of calculating

Class Counsel's total fee recovery, but the parties will endeavor to resolve these issues in good

faith prior to the fairness hearing,

42. In the event that the parties do not agree upon the amount of the Settlement Costs to be subtracted from the Class Fund prior to the fairness hearing, the parties agree to submit their dispute to the Court for resolution on or before the fairness hearing.

43. Within thirty (30) days after Preliminary District Court Approval, the City shall cause to be deposited into a bank account designated by the Administrator an amount equal to

13 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 26 of 88
the amount approved by the District Court for payment to the Class Administrator to cover the costs of notice agreed to by the Parties and/or ordered by the Court, and \\fill provide additional funds to the Administrator as approved by the Court, except that the total of said funds shall not exceed Four Htmdred Thousand Dollars ($400,000). Any such payment shall be debited against the Settlement Costs. If the Stipulation is not ultimately approved by the Court, then all such funds paid to the Administrator, to the extent Lhey are available after payment of all accrued class administration expenses, shall be returned to the City. The Administrator will submit monthly bills to the Parties and may pay itself from these funds in accordance with its bill if the Parties do not object to the bill within thirty (30) days of receipt of the monthly bilL
44. Subject to the terms and conditions of this Stipulation and the approval of the Court, on or before the Funding Date, the City shall cause to be deposited into the Class Settlement Fund Account C"CSFA") the Remainder. On or before the Funding Date, the City shall cause to be deposited to the trust account of Class Counsel the Settlement Costs less the amount already advanced under the tenns of the immediately preceding paragraph.
a. Prior to the payment of the Remainder to the Administrator, the City in consultation with the Administrator, shall make its best good faith estimate of the maximum amount that should be deducted due to Child Support Liens, and shall pay the Administrator $15 Million less the Settlement Costs and less the amount retained by the City of New York for transmittal to the OlIice of Child Support Enforcement for distribution to the beneficiaries of the Child Support Liens as referenced in paragraph 53c;
14

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 27 of 88
b. If additional money is determined to be owed to the City due to Child Support Liens due to a change in the Award Amount, acceptance of late claims, or for any other reason, the Administrator shall return that amount to the City;
c. If less money is determined to be owed due for Child Support Liens due to a change in the Award Amollnt (or for any other reason) the City shall pay the Administrator that additional money and that amount shall be added to the Remainder.
45. Should the settlement not he linally approved after exhaustion of all appellate avenues, the City shall have no claims against the Named Plaintiffs, the Settlement Class, Class Counsel, or the Administrator for reimbursement of funds advanced to the Administrator for notice, except that any advanced funds shnll be credited towards any subsequent settlement in this action.
46. The City will join Class Counsel in seeking the Court's approval of the StipUlation, exclusive of the Settlement Costs as set forth in paragraphs 41 and 42 above.
47. No payment shall be made to eligible SCl''''1s before the Funding Date. Claims will be processed to determine eligibility for payment by the Effective Date for Payment. Upon the Funding Date, claims determined to be eligible for payment may be paid.
48. No additional payments shall be paid to Class Counsel for fees and eosts before the Funding Date. Aftcr the City caus~s the Settlement Costs 10 be deposited, as set forth in paragraph 44, Class Counsel may immediately withdraw money from the Settlement Costs to pay its 0\\11 fces and costs before a final accounting, as long as sufticient money is reserved to pay the Administrator's costs, and service awards to Named Plaintiffs. If the Administrator's
15 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 28 of 88
final bill is less than the amollnt previously advanced, the Administrator shall refund to Class Counsel the remainder. A copy of the Administrator's final accounting, as well as monthly bills, shall be provided to the City. PAYMENTS TO THE SETTLE.MENT CLASS
49. The amollnt awarded to SCMs who submit Claim Forms shall be calculated as follows. First, the amount paid to the Administrator for costs; to Class Counsel for anorneys' fees and costs; and to Named Plaintiffs for service awards (collectively "Settlement Costs") shall be subtracted from the Class Fund.
50. In an effort to promote both efficiency and fairness, the Administrator will award each Approved Claim points after review and after such verification as the Administrator deems appropriate of the information provided Oll the Claim Form ("the Distribution Formula"). The details of the Distribution Fonnula to be applied are subject to Court approval on recommendation by Class Counsel after Claim Forms are received. The Distribution Formula shall be applied unifom1iy, will not be discretionary after approval, and may be amended only by Court Order.
51. The total points awarded to each Approved Claim pursuant to the Distribution Fonnula will be aggregated and each SCiv1's share of the total points will be determined. The SCM shall then be allocated a commensurate proportion of the Class Fund minus the Settlement Costs based on the number of points awarded to the SC.r.-1. The resulting amount of payment to the SCM for an Approved Claim based on application of the Distribution FOm1ula shall be the "Award Amollnt."
52. The Distribution Formula shall be as follows:
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 29 of 88
(1, Pool One will be comprised of all SeMs from the Subsection One Recent Group,
the Subsection Three Recent Group or the Subsection Seven Recent Group who submit an Approved Claim and who either (1) were arrested and charged with a violation of the Statutes; or (2) were issued a summons (the court records of which include an arrest or bench warfant recorded in CRIMS or SAMS) charging a violation of the Statutes. Every SCIV! in Pool One will receive 12 points.
b. Pool Two will be comprised of all SCMs from the Subsection One Recent Group, the Subsection Three Recent Group or the Subsection Seven Recent Group who submit an Approved Claim, and who were issued a summons (the court records of which do not include an arrest Of bench warrant recorded in CRIMS or SAMS) charging a violation of the Statutes. Every SCM in Pool Two will receive 4 points.
c. Pool Three wil! be comprised of all SCMs from the Subsection One Older Group, the Subsection Three Older Group or the Suhsection Seven Older Group who submit an Approved Claim and who either (l) were arrested and charged with a violation of the Statutes; or (2) \vere issued a summons (the court records of which include an arrest or hench warrant recorded in CR1MS or SAMS) charging a violation of the Statutes. Every SCM in Pool Three will receive 2 points.
d. Pool Four will be comprised of all SCMs from the Subsection One Older Group> the Subsection Three Older Group or the Subsection Seven Older Group who submit an Approved Claim and who were issued a summons (the court records of which do not include an arrest or bench warrant recorded in CRIMS or SAMS)
17

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 30 of 88
charging a violation of the Statutes. Every SCM in Pool Four will receive 1 point. 53. SCMs who timely file :3 completed and signed Claim Form and who are eligible for an award shall each be entitled to receive an Award Amount from the Class Fund in compensation for their claims, subject to the following provisions:
a. Each SCM shall receive an !\ward !\mount for only one incident of enforcement for which the SOv! was charged \vith a violation of the Statutes, notwithstanding the fact that an SCM m,ty have been charged wi th a violation of the Stalutes on more than one occasion. For those SCvtS who were charged with a violation of the Statutes on more than one occasion, that SCM shall be compensated for the singJe incident of enforcement of the Statutes against him or her that is eligible to receive the highest number of points under the Distribution Formula.
b. In addition to the Award Amount, the Named Plaintiffs in this action shall receive additional service awards as set forth in paragraph 75 below. The additional amounts referred to in this sub-paragraph shall be paid from the Settlement Costs.
c. If an SCM who submitted a Claim FornI has a 0Jew York City Child Support Lien for arrears (hereinafter "Child Support Lien"), the Award Amount shall be deducted to satisfy the Child Support Lien, pursuant to the provisions in paragraph 69. The amount paid by the Administrator to these SCMs will be their share of the Class Fund minus the Settlement Costs, minus the amount of any Child Support Lien. The City of New York shall retain the aggregate amount of the Child Support Liens for transmittal to the Office of Child Support Enforccmenl for distribution to the beneficiaries of the Child Support Liens.
54. Based on good faith calculations made by the Parties, the parties believe that as of
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 31 of 88
January 26, 2012, the Settlement Class contains SCMs who were subjected to approximately 22,800 incidents where the Statutes were charged.
55. Class Counsel has the discretion to void checks mailed to SCMs and not cashed within 120 days of issuance, Notice of this procedure will be provided at the time the checks are issued. Class Counsel, on written notice to the City and the Court, shall have the discretion to (a) reissue the checks, or (b) add the amount of the voided checks back to the Class Fund to be divided pro rata amongst eligible SCMs, or (c) issue checks to persons who make late claims for good cause shown pursuant to the immediately following paragraph, or (d) seek an award by the Court consistent with cy pres principles.
56. The Administrator shall place $100,000 of the Remainder in reserve to pay late claims filed for "good cause" shown. Persons who submit late claims wiJ] be given 30 days from a date to be determined by the Court at the fairness hearing to provide a "good cause" explanation for their late filing. Class Counscl shall determine if the person had "good cause" to tile a late claim, and persons shall have the right to appeal any such determination to the Magistrate Judge. All pcrsons with good calise for filing a latc claim shall be paid a pro-rata share under the Distribution Formula - up to their Award Amount - of the amount remaining in the Class Fund due to the failure of cJaimants to timely cash their cheeks within 120 days of issuance, as well as from the SIOO,OOO held in reserve to pay late claims, except that Class Counsel, upon notice to the Court, may decide to reserve some portion of the remaining funds to pay persons who failed to cash their checks within 120 days for "good cause" shown. All late claims that are approved as showing "good ~ause" will also be subject to the deduction of any
valid Child Slipport Liens. If money remains in the Remainder (including the $} 00,000 reserve
after the payment of late claims filed for "good cause," and the rcissuancc of uncashed checks
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 32 of 88
for "good cause"), the parties shall confer and seek an order from the Court as to how to distribute same consistent with cy pres principles.
57. The Administrator is permitted for good cause shown (including proper documentation and proof of authority) to issue checks in the name of a person other than the SCM.
ADMINISTRATOR
58. The Administrator's duties shall include administering the Class Fund, including but not limited to the following matters: (l) issuing notice, including information about the right to object or opt out of the settlement; (2) locating class members; (3) distributing Claim Packets to and receiving exeeuted original Claim Forms of same from those on the Final Class List; (4) establishing and administering the Class Fund and upon conclusion of the process, closing the Fund; (5) paying all income taxes, if any, owed by the Class Fund; (6) determining eligibility for awards on the basis of information provided by counsel for the Parties and the SCMs, validating the claims, and providing the Parties a list of those persons found preliminarily eligible every 30 days; (7) calculating the amounts of awards; (8) issuing and mailing checks to eligible SCMs, and issuing and filing all required tax forms and statements; (9) developing procedures and responding to inquires from SCMs and Opt-Outs about this Stipulation and the procedures contained herein, including by the use of a toll-free number; (10) creating a database of SCMs who have filed timely and valid Claim Forms; (11) establishing a toll-free number and toll number (for incarcerated SCMs), \vhich will be included in the Claim Packet and on the Summary Notices; (12) creating a database of Opt-Outs; and (13) providing the Parties with monthly bills and a final accounting.
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 33 of 88
59. The City agrees to Lqcilitatc the work of the Administrator by, among other things, obtaining and providing to the Administrator, information, data: documents, and records in the City's possession, which is relevant and uppropriatc to facilitate the administration of the Class Fund, to the extent such information is disclosable to the Administrator under federal, state and/or local laws.
60. Within fifteen (15) days of the Preliminary District Court Approval, Class Counsel will provide the City and the Administrator with an Excel spread sheet containing the full names of all the SCMs and any and all identifiers available to Class Counsel, which may include Social Security Number, date of birth, NYSID number, arrest number, arrest date and summons date. Upon receipt, the City shall check certain databClses to which it has access, including DOC records of more recent admissions, the New York City Department of Probation records, Human Resource Administration records, and Department of Homeless Services records, for updated address information. The City shall also check DOC and NYPD databases in order to locate social security numbers of SC~vls. Where necessary andlor appropriate, the Parties shall cooperatively seek appropriate court orders to obtain the addresses of SCMs. The City's obligation regarding the information listed in this paragraph only extends to the extent SCMs provided accurate and complete information. Within sixty (60) days of the Preliminary District Court Approval, the City will provide the Administrator and Class Counsel with an Excel spread sheet containing any additional identifying information about the SCMs located through its database search including where available, date of birth, NYS]D number, driver's license, social security number (from DOC and NYPD databases only), and last-known address, On behalf of Plaintiffs, Class Counsel reserves the right to seek orders from the Court directing defendants to provide additional identifying information as necessary in order to efTectuate
21

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 34 of 88
notice to the class. In addition. at lenst sixty (60) days prior to tht> Bar Date, the City agrees to join Plaintiffs in making a formal written request to OCA to provide the Parties with one final update of all data in OCA's custody relating to the Statutes.
61. To the extent that the Administrator and/or Class Counsel receive inquiries that they cannot resolve, the Administrator and/or Class Counse 1 shall group such inquires and submit them in writing to a designated person at the Office of Corporation Counsel on a recurring basis, but not more often than a weekly basis. Results of the investigations will be provided in writing.
62. Intormation provided to Class Counsel and the Administrator by the City of New York pursuant to the preceding two paragraphs shall be confidential, and may not be disclosed to anyone except Class Counsel, Defendants' Counsel, certain City agencies (including DOC, Department of Probation, Department of Homeless Services, !-hllnan Resources Administration, and the Comptroller's 011ice), the Administrator, or the Court under seal. Class Counsel and the Administrator shall not disclose the confidential information to any person not a member of their stafr. To the extent Class Counselor the Administrator seck to disclose this information to any other person or entity, they must first seek Defendants' Counsel's consent in writing. Defendants' Counsel shall not unreasonably withhold consent. In addition, after consent is given, but before disclosing the confidential information to anyone else, including, any agent, contractor, or expert, the Administrator or Class Counsel shall first have such person or org,mization sign the confidentiality agreement attached hereto as Exhibit B. A signed copy of Exhibit B shall be provided to Defendants' Counsel by expedited transmission immediately but
no later than two business days after execution. Class Counsel and the Administrator shall take
ad reasonable steps to insure that the confidential information concerning all proposed class

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 35 of 88

members and SCMs, remain private and confidential. In addition, the information provided to Class Counsel and the Administrator regarding the proposed class members and SCMs will not be lIsed for any other purpose other than in this iitigation and for the administration of this Stipulation. Similarly, the City will not usc any infonnation concerning SeMs or proposed class members that is provided by the Administrator or Class Counsel for any other purpose other than in this litigation and for the administration of this Stipulation, and the City shall keep such information confidential.

63. The Administrator will apply for a tax ID number, if necessary, and take all

necessary

steps

for

the

timely

creation

of

the

CSFA

prior

to

the

torty-fifth

(45

Ih )

day

from

the

Pinal District Court Approval.

64. The Administrator shall provide the City with the Employer Identification Number for the CSFA, and a completed W-9 Form and bank routing information for the trust fund account, within forty-five (45) days from the Final District Court Approval.

65. The Administrator will treat income taxes as the first priority for payment, and therefore, shall, on a quarterly basis, set aside an amount sufficient to pay all income taxes, if any, owed by the CSFA on interest eamed to date. The Administrator shall pay all income taxes, if any, on a quarterly basis. The City Comptroller shall have the right to inspect and copy all tax forms (and worksheets), and monthly bank statements of the CSFA. The Administrator will provide to Class Counsel, Defendants' Counsel, and the City Comptroller with a monthly statement of expenses paid. The City will not be responsible for taxes, penalties, or interest incurred on the Class Fund. The Administrator shall issue all required IRS forms.
66. \Vithin thirty (30) days of receiving the additional identifying information about the SCMs from the City as described in paragraph 60 above, the Auministrator shall generate the

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 36 of 88
Final Class List, and the Administrator shall mail a copy of the Claim Packet by tirst class mail,
postage prepaid, to all persons on the final Class List for whom an address is availabie. 67. Subject to approval from the District Court, the Administrator and Class Counsel
shall be responsible for determining a plan to ensure that as many SCMs as reasonably possible receive the Claim Packet and see the Summary Notices. A copy of the plan should be sent to Defendants' Counsel.
68. The SCM must submit a completed Claim Form to the Administrator by the Bar Dale unless such date is extended by order of the Court. The Administrator shall reject claims that are untimely. A Claim Foml is deemed subnlitted upon deposit in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the U.S. Post Of11ce, or when submitted for delivery by a commercial express carrier, or when actually received by the Administrator, or if a Claim Forn1 is submitted to the Administrator by electronic means, upon successful transmission of the Claim form as indicated by an electronic receipt provided by the Administrator, whichever date is earlier.
69. Every thirty (30) days, after the Preliminary District Court Approval, the Administrator shall provide the Panics a list of those persons who are preliminarily eligible so that the City mayan a rolling basis determine whether that person's Award Amount will need to be reduced due to :New York City Child Support Liens. The City wiJI not exercise its right to reduce the payments set fonh in this StipUlation by exercising its right to recover any other amounts, including but not limited to amounts due for unpaid City taxes including personal income tax, real estate related taxes, unpaid parking tickets, unpaid Enviroruncntal Control Board fines, or any Medicaid costs correctly paid against bills from the ~e\v York City Health and Hospitals Corporation. No benefits currently received by SCMs may be terminated or
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 37 of 88
reduced as a result of Award Amounts unless mandated by federal or state law or regulation,
This does not constitute a waiver of any right to separately recoup overpayments or any amounts owed solely to federal or statc governments if such is rcquircd by fcderal or state law or regulation. Within thilty ()O) days of receiving what the Administrator identifies as the last list of those persons eligible to receive an :\ward Amount, the City shall provide the Administrator and Class Counsel with a list of those persons who have New York City Child Support Liens and the amount that shall be deducted from each persons' A ward Amount to pay, satisfy and/or partially satisfy the Child Support Lien, with subtotals for the amount owed to a governmental entity and the amount to be forwarded to the custodial parent (non-governmental) beneficiary of the Child Support Lien. Prior to providing this lis!' the City shall send each person owing Child Support Liens, and to Class Counsel, a notice describing that they owe these liens and information on how to file a challenge regarding the deduction of the Child Support Liens from the Award Amount. If the City later determ ines that the amount of the liens was incorrect, the City shall directly pay that person the over-deduction of the amount that was withheld from that person's Award Amount.
70, Any SCM who fails to submit a Claim Porm by the Bar Dale or any courtmandated extension, shall be forever barred from receiving payments pursuant to the Stipulation. Such person shall be bound by all or the terms of the Stipulation, and the Judgment entered herein, including but not limited to the release of all Released Persons of all Settled Class Claims, as defined in paragraph 106.
71. The .Administrator shall mail letters and/or otherwise contact SCMs who by the Bar Date submit partially completed Claim Fomls that are deficient to provide them up to forty­ tive (45) additional days to validate lheir Claim Forms. The absence of a social security number
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 38 of 88

or other identifying information shall not be a basis for not issuing an award to a SCM jf the

"

..-

'-'

;...;

Administrator can otherwise confirm the identity of the SCM.

72. Rights and claims hereunder shall survive the death of SCMs. If a SCM who is eligible to receive monetary relief under this Stipulation is deceased, the amount payable to such deceased SCM shall be paid to the appropriate representative of hislher estate. The representative of the estate shaH provide proof of death and appropriate documentation to show that she/he is properly a representative of the estate. If the Administrator determines, after reasonable opportunity has been given, that there is insufficient information or proof regarding the deceased person's estate to permit such payment, the deceased person's share shall be distributed in accordance with the terms set forth in paragraph 55 for the distribution of returned checks.

EXCLUSION FROM THE SETTLEMENT CLASS 73. Any potential SCM who wishes to be excluded from the Settlement Class must by
the Bar Date mail a request to be excluded from the Settlement Class ("Request for Exclusion") to the Administrator. Any Request for Exclusion must be in writing and state the name, date of birth, address, and telephone number (if any) of the person requesting exclusion and contain a clear statement communicating that such person elects to be excluded from the Settlement Class. Originals of alJ Requests for Exclusion shall be retained by the Administrator until such originals are filed with the Court. Named Plaintiffs \.\'ill not request exclusion pursuant to this paragraph. A list of all exclusions, as well as a copy of the written Requests for Exclusions sent to the Administrator, shall be provided to Class Counsel and Defendants' Counsel.
74. Any SCM who does not timely fiJe a Request for ExclUSion shall conclusively be deemed to have become a SCM and to be bound by this StipUlation and by all subsequent

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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 39 of 88
proceedings, orders, and judgments herein. SERVICE AWARDS FOR NAMED PLAINTIFFS
75. In addition to the Award Amount, each of the Named Plaintiffs will be paid an additional $25,000 each as an award for services provided to the class and for any inconvenience, pain, suffering, and other non-pecuniary loss experienced as a result of having been a Named Plaintiff in this action. Class Counsel shall pay these service awards from the Settlement Costs. ADDITIONAL NOTICE
76. To augment the Administrator's efforts to ensure that as many persons as reasonably possible receive notice, the Parties will work cooperatively together to ensure that the Summary Notices are posted in places where SCMs are likely to see them. The Administrator will provide the Parties with the requested number of copies of the Summary Notices, and will email the Parties a PDP version of the Summary Notices.
77. The City agrees to ensure that the Summary Notices are posted in the following locations within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later:
a. NYC Department 0/ Correcfion: In the intake areas and law libraries of all of its
housing facilities, and in the court pens at the state courthouses that are under DOC control.
b. Departmenf 0/ Homeless Services: In the entrance areas of all shelter intake areas
and in all shelters run by the Department of Homeless Services, in areas where legal notices regularly appear. c. New York Stale Department of Correctional Services: The City agrees to join
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 40 of 88
plaintiffs in making a formal written request to NYS DOCS, to be disseminated on official City of New York letterhead, forwarding a copy of the Stm1.mary Notices to NYS DOCS ond requesting that NYS DOCS post the Summary Notices as extensively as reasonably possible, in locations where individuals incarcerated in their facilities are likely to see them. d. New York City Department of Probation ("DOl'''): In the waiting areas of the adult supervision office for each borough in ~ew York City in locations where individuals on probation are likely to see them, and as extensively as reasonably possible. e. NYC Human Resources Administration: Prominently in one place in each client contact location (this does n01 include administrative ot!ices), for example, Job Centers, Food Stamp offices, Medicaid offices and HI VIAJDS Services Administration locations. f. NYC Administration for Children's Services: Prominently in a central public location in each field office location where clients will able to see the notice. g. New York City Housing Authority (NYCfJA): The City agrees to join Plaintiffs in making a formal v"Titten request to NYCHA, to be disseminated on official City of New York letterhead, forwarding a copy of the Summary Nolice to NYCHA and requesting that NYCHA post the Summary Notices as extensively as reasonably possible, in locations where residents of their facilities are likely to see them. h. New York City Human Services Contracfors: The City agrees to join PlaintifJs in making a fom1al written request to a rdevant group of the City's human services
28 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 41 of 88
contractors appearing in Exhibit C, to be dissemin<lled by plaintiffs on official City of New York letterhead, forwarding copies of the Summary Notices to all of
the City's human services contractors and requesting that each post the Summary Notices as extensively as reasonably possible, in locations where participants in their programs arc likely to see them, 78. Within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later, Class Counsel will forward copies of the Summary Notices to the New York State Office of Court Administration (including local administrative judges) and the New York State Division of Parole (including regional Parole offices) and request that they post the Summary Notices as extensively as reasonably possible, throughout
offices and/or locations where arrestees, detainees or individuals on probation are likely to see
them. 79. Within two weeks of the initial mailing of the Claim P[1ckets and approval of the
Summary Notices, whichever date is later, Class Counsel will mail a letter to the following public defender offices requesting that they post the Summary Notices: The Legal Aid Society (in each borough), 'lbe Bronx Defenders, New York County Defenders, Queens Law Associates, Brooklyn Defender Services, Neighborhood Defender Services, Appellate Advocates, Center for Appellate Litigation, Office of the Appellate Defender, and the Assigned Counsel Plans for the First and Second Departments.
80. Within two weeks of the initial mailing of the Claim Packets and approval of the Summary Notices, whichever date is later, Class Counsel will mail a letter to the following non­ profits requesting that they post the Summary Notices: Coalition for the Homeless, Partnership for the Homeless, Osborne Association, East Harlem Life Plan, Phoenix House, GreenHope,
29 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 42 of 88
Fortune Society, Center for Employment OppOJ1unitil;!s, STRIVE, Doc fund, Odyssey House,
Jericho Project, Exodus Transitional Community, Bowery Residents Committee, Fifth Avenue Committee, Legal Action Center, Women's Prison Association, Palladia, GylHC, Empire State Pride Agenda, New York City Anti-Violence ProJect, {,GBT Community Centers, Bronx Community Pride Center, Ali Forney Center, I-lousing Works, Legal Services-NYC, Part of the Solution (POTS), Seedco, Bronx\Vorks, HELP USA, Lift Communities, Good Shepherd Services, Catholic Charities, CAMBA, Urban Justice Center, MFY Legal Services, Northern Manhattan Improvement Corporation, Lennox Hill Neighborhood HOllse, Goddard Riverside Community Center, Settlement Houses, .:-Teighborhood Association for Intercultural Affairs (NAICA), FEPS providers, Create, Inc., Daytop Village, Project Renewal, Samaritan Village, and Center for Urban Community Services (CUCS). Summary Notices also may be placed by Class Counsel in locations comparable to those set forth in this section in an effort to give notice to as many SCMs as is reasonably practicable.
81. Nothing in this section shall limit further appropriate efforts to provide notice. 82. Within thirty (30) days after Preliminary District Court Approval, Class Counsel shaH provide the Claim Form and the Summary Notices to the Court for approval. At least fifteen (15) days prior to submission to the Court for approval, Class Counsel shall provide Defendants with copies of the proposed Claim Form and Summary Notices for review. Defendants reserve the right to object to the proposed Claim Form and Summary Notices should the parties not agree on the hmguage proposed by Class Counsel. EXCESS FUNDS 83. Any amount remaining in the Remainder shall be distributed to the Settlement Class. If funds are not sunicient for distribution, then Class Counsel will petition the Court for
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 43 of 88
an order consislcll\ \vilh cy pres principles. EQUITABLE RELIEF
Vacatur of Qualifying Dispositions 84. Defendants and the DA.os agree to consent to and cooperate in and make best,
vigorous, and timely efforts in an omnibus New York state court proceeding initiated by Class Counsel, in a process to be determined in consultation with the New York State Office of Court Administration COCA"), to vacate, dismiss, and seal all cases charging the Statutes within the tive boroughs of New York City thtlt have "qualifying dispositions" us defined in the parties' and lhe DAOs' letter agreement dated January 18,2012.
85. The parties' and DAOs' letter agreement dated January 18, 2012, is hereby incorporated by reference and attached hereto as Exhibit A.
86. As part of the District COllrt's ongoing jurisdiction over the Parties to enforce and administer the terms of this Stipulation, the parties agree thaI any disputes regarding cooperation in the omnibus New York state court proceeding shall be resolved by the Honorable Theodore S. Katz or by another Magistrate Judge selected by the Court.
87. The provisions of this section at paragraphs 84~86 shall remain in effect until the omnibus state court proceeding is completed. Plaintiffs will use best efforts to submit the omnibus motion no later than six months after Final District Court Approval. Sealing
88. Defendants agree to comply with N.Y. Cdm. Proc. L. §§ 160.50 and 160.55 concerning any and all Loitering Charge [ncidcllts either terminated in fiwor of the accused person as defined by N.Y. Crim. Proc. L. § 160,50(3) or terminated in a conviction for a non-criminal
J I 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 44 of 88
otIensc as defined by N. Y. Crim. Proc. L. § ]60.55(1), including but not limited to Loitering Charge Incidents where (a) following the arre~t of such person, the arresting police agency, prior
to the filing of an accusatory instrument in a local criminal court, elects not to proceed further; (b) prior to the filing of an accusatory instnllnent in a local criminal court against such person, the prosecutor elects not to prosecute such person; or (c) a court has issued an order dismissing the action, as follows.
a. Pursuant to N.Y. Crim. Proc. L. §§ 160.50(1)(a) and 160.55(1)(a), defendants agree to destroy every photograph and photographic plate or proof taken or made in regard to the action or proceeding of a person charged in a Sealed Loitering Charge Incident, and all duplicates and copies thereof.
b. Pursuant to N.Y. Crim. Proc. §§ 160.50(1)(3) and ]60.55(1)(a), defendants agree to destroy every palmprint and fingerprint taken or made 111 regard to the action or proceeding of a person charged in a Sealed Loitering Charge Incident, and all duplicates and copies thereof except digital fingerprint images where authorized byN.Y. Crim. Proc. L. §§ 160.50(1)(e) or 160,55(l)(e),
c, Pursuant to N.Y, Crim. Proc, L. §§ 160.50(1)(b) and J60,55(1)(b), that for any Sealed Loitering Charge Incidents for which NYPD transmitted or othenvise forwarded to any agency of the Cnited States or of any other state or of any other jurisdiction outside the state of New York copies of any such photographs, photographic plates or proofs, paJmprints and fingerprints, NYPD will fonnalJy request in writing that all such copies be destroyed or returned to NYPD, and, if returned, NYPD shall destroy them.
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 45 of 88
d. Pursuant to ~.Y. Crim. Pmc. L. §§ 160.50(1)(c) and J60.55(J)(c), all official . records and papers, (including, for §160.50( 1)(c) only, judgments and orders of a .
conrt but not including published court decisions or opinions or records and briefs on appeal), relating to the Sealed Loitering Charge Incidents, including all duplicates and copies thereof on tile with any police agency or prosecutor's office shall be senled and will not be made available to any person or public or private agency except as permitted by N.Y. Crim. Proc. L. §§ 160.50(l)(d) or 160.55(1)(d). The provisions of paragraph 88 shall remain in effect until the deadline for the certification in paragraph 89 expires, or two years from the Effective Date, whichever is later. 89. Within 30 days after a final granting of the plaintiffs' omnibus state court motion as defined in paragraph 84, plaintiffs will provide detcndants with a list, in electronic or digital format, of Loitering Charge Incidents by Arrest Number that should be sealed under state law. Within 180 days of receipt of this list from plaintiffs, defendants, through an appropriate official, will conduct a review and certify in writing as follows: a. Pursuant to N.Y. Crim. Proc. L. §§ 160.50(1)(c) and J60.55(1)(c), the City of New York certifies that all official records and papers stored digitally or electronically relating to the arrest Loitering Charge Incidents on the lists provided by plaintiffs on file with any police agency or prosecutor's office have been sealed and will not be mude available to any person or public or private agency except as permitted by N.Y. Crim. Proc. L §§ 160.50(1)(d) or ]60.55(1 )(d). b. Pursuant to N. Y. Crim. Proc. L. §§ 160.50(1 )(a) and 160.55( I)(a), the City
33 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 46 of 88
of New York certiiies that it bas destroyed every photograph and photographic
plate or proof and every palmprint and fingerprint, taken or made in regard to the action or proceeding of a person charged in tbe arrest Loitering Charge Incidents on the lists provided by plaintiffs, and stored digitally or electronically, and all duplicates and copies thereof, except as authorized by N.Y. Crim. Proc. L. §§ 160.50(l)(e) or 160.55(1)(e). c. The City of New York certifies that all official records and papers stored digitally or electronically in NYPD computer databases relating to summons Loitering Charge Incidents are maintained as sealed and will not be made available to any person or public or private agency except as pennitted by N.Y. Crim. Proc. L. §§ 160.S0(1)(d) or 160.SS(l)(d). 90. Nothing in this Stipulation is intended to create a cause of action under N.Y. Crim. Proc. L. §§ 160.50 or 160.55 or otherwise. Plaintiffs in no way 'Naive their rights to enforce the tem1S of this StipUlation and Order of Settlement consistent 'with the procedures set forth herein. Notation of Unconstitutionalitv 91. Defendants agree to join Plaintiffs in making a formal written request to OCA and the New York State Division of Criminal Justice Services ("DCJS") to create a pennanent notation of unconstitutionality, the language of which shall be jointly agreed upon by the parties subject to OCA and neJS approval. attached to electronic records of all Loitering Charge Incidents. This permanent notation would accompany any repOJi or record containing or referencing Loitering Charge Incidents, including but not limited to an individual's criminal history, produced by OCA or DCJS to any person or public or private agency.
34

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 47 of 88
92. The formal request will include, at a minimum, tl joint letter from the palties agreeable to the parties and may include reasonnble meetings and reusonable contacts with state agency personnel in support of the request.
93. Under no circumstances will the provisions in the preceding two paragraphs remain in effect for longer than two years trom the Eflective Date. JOint Request to DCJS to Notify FBI and Request Removal
94. Defendants agree to join Plaintifls in making a formal written request to DClS to officially notify the Federal Bureau of Investigation ("FBI") regarding the unconstitutionality of the Statutes and to request removal of all records related to Loitering Charge Incidents, including records of arrest, conviction, fingerprints, and photographs, from databases maintained by the FBI and other federal agencies, including but not limited to the National Criminal History Record File, Integrated Automated Fingerprint Identification System (lAFIS), Next Generation Identification (NGI), Interstate Identification Index (III), National Crime Infommtion Center (NCIC), Law Enforcement National Data Exchange (N-DEx), Automated Biometric Identification System (IDENT), and National Instant Criminal Background Check System (NICS).
95, The formal request to DClS wiI! include, at a minimum, a joint letter from the parties agreeable to the parties and may include reasonable meetings and reasonable contacts with sWte agency personnel in support of the request.
96. Under no circumstances will the provisions ll1 the preceding two paragraphs remain in effect for longer than two years from the Effective Date,
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 48 of 88

Prevention Policies 97. De'f'endants agree to continue for two (2) years from the Effective Date to do the

following:

a.

Continue to provide automated notifications from the NYPD Chief of

Department's office in the event of any nc\\' Loitering Charge Incident entered into

data systems maintained by Defendants,4 except with respect to notifications of any

attempts to charge the Statutes, in which case, NYPD agrees to provide Attempts to

Charge Reports. Defendants shall provide Class Counsel on a monthly basis with a

copy of the reports referenced in this subsection.

b.

The NYPD Internal Affairs Bureau ("IAU") will investigate any Loitering

Charge Incident occurring after the date of this Stipulation in a process consistent

with and at least equivalent to that described in the Declaration of Rosemary DeBellis

In Support of Defendants' Opposition to Plaintiffs' Motion for Contempt, Injunctive

Relief and Discovery Sanctions dated February 8,20 I0, '\27 et seq. Defendants shall

provide Class Counsel with the complete documentation of lAB's investigation and

report of any Loitering Charge Incident within sixty (60) days of completion by lAB.

c.

In a process consistent with the procedures set forth in the preceding sub­

paragraph (b), the NYPD Internal Affairs Bureau ("lAB") will investigate any

attempt to charge any of the Statutes that appears in an Attempts to Charge Report

and occurs after the date of this StipUlation, so long as an arrest rep0l1 for any other

charge is not prepared in connection with the same incident. For all other attempts to

charge any of the Statutes that are recorded in an NYI'D Attempts to Charge Report

4 Declaration of Rosemary DeBellis In Support of Defendants' Opposition to Plaintiffs' \'Iotion for Contempt, Injunctive Relief and Discovery Sanctions dated February 8. 2010 at "19.
36

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 49 of 88

and occur after the date of this Stipulation, the Office of the Deputy Commissioner of

LegaJ ~jIatters of the NYPD will send a letter to the Commanding Officer of any

officer who attempts to charge any of the Statutes, requesting that the Commanding

Officer or his or her delegate instruct the officer regarding the unconstitutionality of

the Statute, review any cheat sheets in the officer's possession to delete the Statutes

from that item if found there, and consider any discipline appropriate under

Departmental guidelines, Defendants shall provide Class Counsel with a copy of all

letters issued pursuant to this paragraph within sixty (60) days of issuance,

d,

Affix a notation to all new packages of summonses issued to NYPD

containing a warning that the Statutes cannot be enforced,

e,

Should a summons issue under any of the Statutes, the NYPD command to

which the officer who issued the summons is assignetl shal I review the "cheat sheets,"

"Master C-Summons lists," or any other non-NYPD issued compilations of common

summonsable offenses in the possession of police officers assigned to the command;

delete the Statutes from these items; document the officer to whom the item

belonged; and photocopy the relevant page that contained the Statute at issue,

Defendants shall provide Class Counsel with a report documenting the results of this "cheat sheet" review within sixty (60) days of its completion.

f.

Conduct training, in a manner determined by Defendants, including annual

in-service training at NYPD, informing NYPD police ofticers that the Statutes are

unconstitutional and unenforceable, and that any charge incident under the Statutes may result in disciplinary action.

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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 50 of 88
Prospective Obligations 98. Defendants agree that they will maintain a commitment not to enforce the Statutes
for a period of two years from the Effective Date. 'rhis commitment will be enforceable pursuant to the terms of this Stipulation for a period of two years from the Effective Date.
99. Upon Preliminary District Court Approval, this Stipulation and Order resolves all prospective obligations pursuant to the Court's April 26, 2010 Opinion in the Brown and Casale matters. Administration of Agreement and Dispute Resolution
100. The District Court shall retain jurisdiction over the Parties to enforce and administer the terms of this Stipulation and Order of Settlement during the period it, or any of its provisions, remain in effect, upon the filing of an appropriate motion by any party.
101. The parties shall endeavor in good faith to resolve informally any differences regarding interpretation of and compliance with this StipUlation and Order of Settlement prior to bringing such matters to the Court for resolution.
102. Upon the finding of good cause shown, the Court may grant such relief as it deems just and proper.
103. Equitable. Relief: At any time prior to the expiration of this StipUlation, should Class Counsel have determined that the Defendants have failed to comply with any term of the Stipulation regarding Equitable Relief only, as set forth above in Paragraphs 84-97, Class Counsel shall forward written notification of such non-compliance to the Deputy Commissioner for Legal Matters of the NYPD and to the Office of the Corporation Counsel.
a. Should the Defendants agree that they have not complied with the specified term(s), the Defendants shall specifically perform said term(s) within a
38

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 51 of 88
reasonable period of (ime, to be mutually agreed upon (hrough the good fai(h dforts ofthe parties and their counsel. b. Should the Defendants dispute the Class Counsel's determination of the Defendants' non-compliance, or if the parties cannot agree on a time frame within which the Defendants are to perform an obligation with which they agree they have not complied, or in the event the Defendants fail to perform an obligation they have agreed to perfom1 in accordance with the provisions of paragraph 103(a) above, Class Counsel may apply to the Court for an order directing specific performance of that term or terms. Such application may not be made fewer than thirty days after the initial notification of non-compliance to the NYPD and Office of the Corporation Counsel. c. In no event shall any of the Defendants be adjudged in contempt for proven non-compliance with any of the terms or provisions of this Stipulation, relating to Equitable Relief only as set forth above in paragraphs 84-97, unless and until the Defendants fail to comply with an order from the Court directing specific performance of such terms or provisions, obtained by the Class Representati ves and/or class members in compliance with the provisions of this paragraph. EXPIRATlON OF AGREEMENT 104. Unless otherwise noted herein at paragraphs 84-89, this StipUlation shall expire two (2) years from the Effective Date.
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 52 of 88
J;-:FFECT O"F STIl>ULATION 105. Within live (5) business days of the Funding Date, all claims in the aboyc­
referenced action will be dismissed, with prejudice, and without costs, expenses, or fees in excess of the amount authorized by the paragraphs above.
106. The Stipulation, as of the Effective Date for Payment, resolves in full all claims, with prejudice, against the Released Persons by SCMs, including the Named Plaintiffs, arising out of any charges under the Statutes before the Bar Date. When the Stipulation is final, as of the Effective Date for Payment, all SCMs, including the Named Plaintiffs, hereby release all such claims, except for claims against the DA Offices. All SCMs, including the Named Plaintiffs, hereby release all such claims against the DA Offices as of the date that the omnibus state court motion described in Exhibit A is fully submitted to the state court for decision.
107. This Stipulation contains all the terms and conditions agreed upon by the Parties, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Stipulation shall be deemed Lo exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein.
108. As of the Effective Date for Payment, the SCMs, including the Named Plaintiffs, hereby waive any and all rights to pursue, initiate, prosecute, or commence any action or proceeding before any court, administrative agency, or other tribunal, or to file any complaint \vith regard to acts of commission or omission by the Released Persons respecting Settled Class Claims.
109. Each SCM shall be deemed to have submitted to the jurisdiction of the Court.
110. No Opt-Out shall share in any monetary benefits provided by this Stipulation
III. The Parties will take all necessary and appropriate steps to obtain approval of the Stipulation and dismissal of the action with prejudice. If the District COllI1 approves this
40 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 53 of 88
Stipulation, and if there is an appeal from such decision by a non-party, Defendants will join Class Counsel in defense of this Stipulation on any such appeal or subsequent proceeding.
112. The Parties hereby agree that a Final Judgment may be entered against the City of
New York in accordance with the teons of this Stipulation within five (5) days after the date of Final District Court Approval.
113. The Parties hereby agree not to appeal any aspect of this Stipulation, under any condition or circumstance, or to otherwise collaterally attack or challenge this Stipulation.
114. The District Court shall retain jurisdiction over the Parties to enforce and administer the terms of this StipUlation and Order during the period it, or any of its provisions, remain in effect.
41 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 54 of 88

115. Signnl1lres on nn electronically transmitted copy of this Stipulation £llld Order shall be de~med to be original signatures.

Dated; New York, NY 
 January 26, 2012 

EMERY CELLI BRlNCKERHOFF & ABADYLLP 

C 75 Rockefeller Plaza, 201l! Floor
New York, Ne~v Y(Irk 10019
BY:~~~#"
Katherine Rosenfeld Matthew D. Brinckerhoff

MICHAEL A. CARDOZO

Corporation Counsel of the City ofNew York

i Nc1o0ou0wnCs¥eh'.l,TCok.rN~DS(th/;r/1i.eCY.I"dUrklifS10


/
67

By/~A._l. .. ~atel Seligm 1 Weiss

Assistant Corporation Counsel

/

42 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 55 of 88
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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 56 of 88

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January 18,2012

Rachel Seligman Weiss Linda Donahue Assistant Corporation Counsel The City of New York Law Department 100 Church Street New York, NY 10007

Re: Casale v. Kelly, 08 Civ. 02173 (SAS) (THK) Brown v. Kelly, 05 Civ. 05442 (SAS) (THK)

Dear Counsel:

We writt: to memorialize the agreement between all parties to the above-captioned litigations and the five District Attorneys' Offices of Bronx, Kings, Queens, New York and Richmond Counties ("the five District Attorneys' Offices of the City of New York") to consent and cooperate in nn omnibus New York state COUlt proceeding brought pursuant to N.Y. C.P.L § 440.10 in order to vac[lle, dismiss, and seal all qualifying dispositions for cases charging loitering pursllanilo N.Y. Penal Law § 240.35(1), N.Y. Penal Law § 240.35(3), and N.Y. Penal L<lW § 240.3 5(7) ("the Statutes"). This letter agreement sets forth Ihe terms of the agreement. This letter agreement is subject to advice and guidance from the New York State Office of Coun Administration ("OCA") regarding the appropriate procedural vehicle and process by which the goals olltlined herein shall best be achieved.

1. Purpose of Agreement

N.Y. Penal Law § 240.35(3) and N.Y. Penal Law § 240.35(7) were declared unconstitlltionai in 1983 and 1988, respectively. See People v. Uplinger, 460 KY.S.2d 514 (1983); see also People v. Bright, 526 N.Y.S.2d 66 (1988). The Second Circuit declared N.Y.
Penal Law § 240.35(1) unconstitutional in 1992. See Loper v. New York City Police Dep't, 999 F.2d 699, 701 (2d Cir. 1993). AHer being dec:ared unconstitutional, thousands of people were convicted of violations of the Statutes. Many more received other dispositions that were less lhan fully fhvorable or did not qualify for sealing under C.P.L. § 160.50, such as dismissals pursuant [0 C.P.L. § 730.40. Because these convictions and non-conviction dispositions other

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 57 of 88
EM(:RY C~LLI BRNCKF.?.HOFF & AB!\DY LLI' Page 3
III. Omnibus State Court Procecding to Vacatc, Seal, and Dismiss
The parties and the five District Attorneys' Offices of the City of New York agree 10 utilize the following general procedure to address all existing qualifying dispositions for violations of the Statutes.
Plaintiffs will file an omnibus motion in state court requesting vacatur and dismissal of all qualifying convictions and other qualifying non-conviction dispositions as follows:
• For cases involving a qualifying conviction and no convictions for other charges, the court should (1) vacate the judgment of conviction, (2) dismiss the entire accusatory instrument, and (3) order sealing pursuant to C.P.L § 160.50, I
• For cases involving a qualifying conviction and another, non-qualifying conviction charge, the court should (l) vacate the judgment of the qualifying conviction, (2) dismiss the unconstitutional loitering charge(s), and (3) expressly order that the non­ qualifying convictions remain valid judgments nunc pro tunc.
• For cases involving a qualifying non-conviction disposition and no convictions for other charges, the court should (I) vacate the disposition, (2) dismiss the entire accusatory instrument, and (3) order sealing pursuant to C.P.L § 160.50?
Plaintiffs will also request sealing of any and all cases charging the Statutes that have qualifYing case dispositions under c.P.L. § ]60.50(3) or C.P.L. § 160.55(]) but are not currently sealed due to error or court order,
Plaintiffs' motion will be filed "on consent" of the five District Attorneys' Offices of the City of New York to the requested relief. Venue will be determined pending further discussions with OCA.
IV. Procedure for Identifying Qualifying Dispositions
Plaintift:~ will draft a motion for the requested relief. Attached as an exhibit to the motion will be a comprehensive list by defendant name, docket number, county alld category of
relief (from Section m, supra) or all qualifying dispositions for which vacatur, dismissal, and
(where appropriate) scaling is sought ("list of qualifying dispositions by name and docket
I It is agreed that the signatories to this letter agreement do not intend to fe-open any charges in the same accusatory instrument "covered" by a guilty plea to a qualifying conviction, or otherwise disposed with a non-conviction, and that no known mechanism exists ror doing so.
lW ith the exception of a case held in abeyance pursuant to c.P.L. § 730.50 involving n feiony and within the time prescribed by the statllte, it is agreed that the signatories to this letter agreement do not intenu to re-open any charges in the same accllsatory instrument that were disposed ,'lith a non-conviction, and that no known mechanism exists for doing so. Notwithstanding the possibility that a case may be re-opened under C.P.L. § 730.50, the DAOs will dismiss the loitering offense in accordance with the procedures set forth herein.

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 58 of 88
E1vlERY CELLI BRINCKElUlOFF & Al3f\DY LLP 
 Page <I 

number"). Plaintiffs will generate the list of qualifying dispo:;ilion:i by name and docket number with OC/\'s assistance, based on counsel's review orthe OCA and NYPD databases produced in this litigation to date.
Plaintiffs will provide the Jist of qualifying dispositions by name and docket number to defendants and the five District Attorneys' Offices of the City of New York at least one hundred fifty (150) days prior to the filing of the motion and within 60 days of the Preliminary District Court Approval. Prior to filing, the five District Attorneys' Offices of the City of New York shall first have the opportunity to review the list of qualifying convictions by name and docket number to confirm that the dockets charge the Statutes and are in appropriate categories (as defined by the remedies in Section III, supra) and that the docket numbers are correct. On a rolling basis (at least every thirty (30) days after receipt of the list of qualifying dispositions), tht; five District Attorneys' Offices of the City of New York will provide Plaintiffs with a list of cases that they believe do not fit into the categories of qualifying dispositions and the reasons for that position.} The five District Attorneys' Offices of the City ofNew York shall notifY Plaintiffs of aJl cases that they believe do not fit into the categories of qualifYing dispositions by no later than one hundred twenty (120) days after their first receipt from Plaintiffs of the proposed list of qual ifying dispositions,
To the extent that Plaintiffs receive updated information from OCA which contains new prosecutions, Plaintiffs will provide a list of only the new qualifying dispositions by name, docket number, county and category of relief ("Updated List") to defendants and the five District Attorneys' Offices of the City of New York. The Updated List must be provided more than 45 days before tht; filing of the omnibus motion. Within 30 days of receipt of an Updated List from Plaintiffs, the live District Attorneys' Offices of the City of New York will notifY Plaintiffs of any cases they do not believe fit into the categories of qualifYing dispositions and the reasons for that position. If Plaintiffs seek to add any new cases arising from new prosecutions to the Updated List after the motion is submitted to the court but while it is still pending, the parties shall follow the procedures set forth in this paragraph.
The deadlines set forth in this letter agreement reflect the parties' and the District Attorneys' Offices' best current estimates for how long it will take to complete the tasks described herein. As necessary, plaintiffs will agree to reasonable extensions of time to allow the District Altornt;ys' Offices to complete the agreed-upon tasks. The signatories will endeavor in good faith to resolve informally any differences regarding the constitution of the final list of qualifying dispositions and of interpretation of and compliance with this letter agreement. As part of the District Court's ongoing jurisdiction over the Parties to enforce and administer the terms of the Stipulation and Order of Settlement, the signatories agree that any disputes regarding coopcration in the omnibus New York slate court proceeding shall be resolved by the Honorable Theodore S. Katz, or by another Magistrate Judge selected by the Court.
) The DAOs also rescrve their right to object to a case being included in the omnibus motion if, upon review, it is determined that thc procedures sct forth herein may present unanticipated or unexpected legal issues which could impact on 11 valid conviction. Any such objections and the reason(s) for the objection will be made on a rolling basis (at least every 30 days after n receipt of the list of qtlalifying dispositions).

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 59 of 88
f'!(~il'~ :.i&;o b.~l'.l1\ Il' :ndiLilte \ Our ;lgrt:~rn~'t11 I,~ 11)(' pr~Ces(; DU!IiI\f.d ~b()H Sl,'!fi11l):f~'; .111 :1" ~:~W';)I'i';<.lI::· lrtUl$1'lli1!(.'d <::lJP:·· QJ lhi~ k'lI~r $\),,\1 hI! dt~cmcd 10 be nrigillul
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'.JE\V '>on" C()tJ~HY ufSTRfCT ,I..Tl"OlU,T:''l'S OFfICF 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 60 of 88

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Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 61 of 88

Et-.1ERY CELL[ 8RINCK~RHOrF & AUADY Lll'

Accepted and Agreed to: BByR:O_NX_CO_UN_TY_D_ IST_ RIC_T _ ATT_OR_NE_Y'S OFP1CE
Nflme: ~~_, __ 
 Tille: _ ,.....-~ _ _ __ 
 Dille: --.-_ _ _ _ _ _ _ _ _ __ 


Accepted nnd Agreed to: 


QUEENS COUNTY DISTRICT ATIORNBY'S OFFICE 


By; ____ ~_~__ ~.______.__~_ 


Name:

........ 


Title: '-'-"c-'-~-----'-.~.,..r~~

Accepted and Agreed to: 
 KfNOS COUNTY DISTRICT ATIORNEY'S OPFICE 
 By: _____ .____ .. 
 Name: _____~ Title: ----~----_r_-Date: _ _ _ _ _~_~_ _--'-_
Accepted and Agreed to: 
 RICHMOND COUNTY DlSTRTC'T ATTORNEY'S OFFICE 
 By: ____. ______ ..__ ._.___ ..._ ..___ 
 Name: 
 Title: ________._... ____. 
 Date: 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 62 of 88

Name; __~_---"'_----_' 
 Title: ___________ _ 
 Date: __________ " _, ___ ,_______ 


Accepted lind Agreed 10: 
 QUEENS COUNTY DISTRICT AITORNEY'S OFFICE 
 Oy: ______~ ________ Name: _ _ _ _ _ _ __
T!tle: Date: _ __

Accepted and Agreed to: 


KINGS COUNTY DISTRlCT AITORNEY'S OFFICB 


By:__

__~~_ _ __

Name: _ _ _ __ 


TItle: ­ Dale: 


Acceptee and Agreed to; 


RICHMOND COUNTY DlSTRJCT AITORNEY'S OFFICB 
 8y: _______ ,_

Name: __.______~_____..__,_____

Title:

_______________________ ,___

Date: _____,_,,,,,_

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 63 of 88
EMERY CELL) BRINCKERHOPI' & ABADY LLP
Pug~ 6 Name: Title: Dille:
Accepted llnd Agreed to; 
 BRONX COUNTY DlSTRJCT ATIORNEY'S OFFICB 
 By: __._______ _ Name: ______ .__________ Tille: ~____.___ . ____________ ....____.._ Date:

Accepted lind Agreed 10;

KINOS COUNTY DISTRlCT ATTORNEY'S OPF1CE 


By: .

._~_____..._.._.. ___ 


Name; 


TJtle: 
 Date; _____.____.

Accepted and Agreed to:

RlCHMOND COUNTY DfSTRICT ATTORNEY'S OFPICE 


By; ______

.__...______ . ___ _ 


NOllle: ___...~___

______ .___ _ 


TItle: __ ._. ___~_._.~. ___ . __..___ _. __._ 


Date: 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 64 of 88
EtI-mRY CELLI BRINCKEfU10FF & AOADY Ltl' Pngc6
Name: Title: Dato:
Accepted and Agreed to: 
 BRONX COUNTY DISTRICT AITORNEY'S OFFICE 
 By: _"___._ _~."" .___...._ _.... 
 Name: _______"..__ .~___. 
 Title: _ _ ........~."_.________ 
 Date: 

Accepted and Agreed to; 
 QUEENS COUNTY DISTRICT ATTORNBY'S OfFICE 
 By; _'_ _.,._ _......______..~___ 
 Nnmc: _ _ _ _ _ _ _ _ _ _ __ Tltle: _ _ _ _ _ _ _ _ _ __ Date: _ _ _ "",._______..~____
Accepted and Agreed to: RlCHMOND COUNTY DISTRICT ATIORNEY'S OFFICE 
 By: ,_ _ _.____ ... _._..___.._ 
 Nume: _ __ 
 Title: ______..__ ....._ __ 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 65 of 88

EMERY CELLI BfUNCKE!U10i'r & AB.!\DY LLf' 
 I)ugc G 

Nllme:
Tltk 

DUlt: 


Accepted and Agreed to: 


BRONX COUNTY DISTRICT t\ TTORl'I'EY'S OFfICE 


By:

Name:.

..

Title: .. __ ._ ......_.. .

Dole:

Acccp!~d and Agreed to: 
 QUEENS COUNTY D1STRlCT A1·roRNEY'S OFFICE 

By: 

Nam~:
TItle: .__ ... _ ... _ ..•_....___..... 
 Dote: .___.. . 


Accepted Dnd Agreed to: 

KfNGS COUNTY DISTRICT ATTORNEY'S OrrlCB 
 By: __ . ___._~_.~ 

Nflme: _____...__. 

Title: 
 Date: 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 66 of 88

F,XHIBIT B 

The undersigned hereby ackn()\vledges that I have read paragraphs 60-62 of the Stipulation of Settlement, dated January 26, 2012, in Casale v. City of New York, 08 Civ. 2173 (S.D.N.Y) and Brown v. City of New York, 05 Civ. 5442, and understands that the information provided to me pursuant to this settlement is confIdential, and may not be disclosed to any other person or entity except Class Counsel, Defendants' Counsel, the Administrator, or the Court under seal. The undersigned agrees not to use this confidential information for any purpose other than in connection with the administration of this senlcment in this lawsuit, and \vill not disclose any of the confidential infonnation in any fonn to any other person or entity except Class Counsel, Defendants' Counsel, the Administrator, or the Court under seal.

Date

Signature

Print Name

Occupation

43 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 67 of 88 EXHIBIT C 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 68 of 88

Accelerated Childhood Education, Inc,

Action Center for Education and Community Development, Inc

ACTION FOR PROGRESS, INC,

ACTION NURSERY, INC,

Addicts Rehabilitation Center Foundation, Inc.

ADVENT COMMUNITY SERVICES DAY CARE CENTER, INC.

Advocate, Intervene, Mentor RFP

African Services Committee

AFRO-AMERICAN PARENTS DAY CARE CENTER, INC,

Agudath Israel of America Community Services, Inc.

AGUDATH ISRAEL OF AMERICA/BORO PARK

AGUDATH MORIAH LUNCHEON

Aguila, Inc,

AlA/BAY/EDEN SENIOR CENTER

AIDS Center of Queens County, Inc,

Alcoholism Council of Greater NY

Ali Famey Center Inc,

ALiANZA DOMINICANA, INC

ALLEN AME SENIOR TRANSPOR

ALLEN AME TRANSPORTATION

ALLEN COMMUNITY SENIOR CI

Allied Medix Resources

ALONZO A. DAUGHTRY MEMORIAL DAY CARE CENTER, INC,

I

ALPHA KAPPA ALPHA SORORITY EPSILON PI OMEGA CHPT DCC, INC,

ALPHA PHI ALPHA SENIOR CTR

'Amenca Works of New York

American Italian Coalition of Organizations, Inc,

AMERICAN LUNG ASSOCIATION OF NEW YORK

Amethyst House, Inc,

Amistad Early Childhood Educational Center Inc

ANNA LEFKOWITZ DAY CARE CENTER, INC,

Appellate Advocates

ARAB·AMERICAN FAMIL Y SUPPORT CENTER 77266, THE

Arbor E&L LLC

Arbor E&T

ARC XVI Ft Washington Senior

IAREA 145, INC,

AS THE TWIG IS BENT CHILDRENS

INC.

Exhibit C Page 1 of 21

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 69 of 88
Asian Americans for Equality Asian Professional Extension, Inc. Asociaciones Dominicanas, Inc
ASDira of New York Inc
Assn. for Neurologically Impaired BLACK SOC. WRKERS 

Association for Children with Down Syndrome, Inc. 
 Association for Metroarea Autistic Children, Inc Association for Rehabilitative Case Management Association to Benefit Children, Inc. Astella Development Corp. Astor Home for Children (Services for Children & Families) ASTOR SERVICES FOR CHILDREN & FAMILIES Ateres Mordechai IATLED, INC. AUXILIARY ENTERPRISE BOARD OF NYC TECHNICAL COLLEGE , INC Bailey House Baltic Street AEH, Inc. Bank Street College of Education Barrier Free Living, Inc Basic Housing, Inc, Battiste, Aronowsky and Suchow Bay Ridge Physical Therapy BEDFORD HARRISON DAY CARE CENTER, INC Bedford Park Multi-Service Center for Senior Citizens, Inc Bedford Stuyvesant Restoration Corporation Be'er Hagolah Institutes
, BELLEVUE DAY CARE CENTER, INC. BELMONT COMMUNITY DAY CARE CENTER, INC, Belmont-Arthur Ave LDC BERGEN BASIN COMM DEV/ABE STARK BERGEN BASIN COMM DEV/MIDWOOD BERGEN BASIN COMM DEVNANDAUA Bergen Basin Community Development Corp Bergen Beach Youth Organization, Inc. BETANCES EARLY CHILDHOOD DEVELOPMENT CENTER BETH ABRAHAM HEALTH SERVICES BETH EMETH HOMECARE Beth Israel Medical Center BETH JACOB DAY CARE CENTER, INC. BETHANY DAY NURSERY, INC. BETHEL MISSION STATION CHURCH BETHESDA DAY CARE CENTER OF BROOKLYN. INC BETHLEHEM EVANGELICAL/BAY RIDGE CENTER FOR OLDER BIG FIVE BLOCK ASSOCIATION, INC. Bilinguals, Inc. BILLY MARTIN CHILD DEVELOPMENT DAY CARE CENTER, INC, BIRCH FAMILY SERVICES (HERBERT G. BIRCH SERVICES INC.) Bklyn Hsg and Family Svcs Black Veteran's for Social Justice, Inc BLANCHE COMMUNITY PROGRESS DAY CARE CENTER, INC.
Exhibit C 
 Page 2 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 70 of 88

BMCC EARLY CHILDHOOD CENTER INC.

BNOSZIONOF~B~O~B~O~V~,I~N~C.~_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _~_ _ _ _ _ _ _ _ _ _ _ _~_ _ _ _ _ _~

BORO PARK YM·YWHA SR CTR

BOULEVARD NURSERY SCHOOL, INC.

Bowe Residents' Committee, Inc.

Bo s & Girls Harbor, Inc

Bo s Town New York Dean (Bk)

Bo s Town New York -Ber en (BK)

BOYS TOWN NEW YORK INC IBoys Town New York -Richmond Hill (Qu)

Broadway Housing Communities, Inc.

Bronx Arts Ensemble

Bronx Council On The Arts, Inc.

Bronx Defenders

BRONX HOUSE - PELHAM PKWY NO LUNCH

BRONX JEWISH COMMUNITY COUNCIL

Bronx Lebanon Hospital

Bronx River Art Center, Inc.

BRONXDALE TENANTS LEAGUE DAY CARE CENTER, INC.

BRONXWORKS E. ROBERTS MOORE SC

BRONXWORKS MORRIS SENIOR CENTER

BronxWorks, Inc.

BRONXWORKS/EAST CONCOURSE SC

Brooklyn AIDS Task Force, Inc.

Brooklyn Bureau of Community Services

Brooklyn Childrens Museum

Brooklyn Chinese American Association

Brooklyn Community Housing & Services, Inc

Brooklyn Defender Services

BROOKLYN DEVELOPMENT CENTER EARLY CHILDHOOD SERVICES, INC.

Brooklyn Hospital Cemter

Brooklyn Housing and Family Services, Inc.

BROOKLYN KINDERGARTEN SOCIETY, INC.

Brooklyn Neighborhood Improvement Association

BROOKLYN SECTION NATIONAL CNCL

BROOKS SENIOR CENTER

Brownsville Community Development

BUSHWICK COMMUNITY ACTION ASSOCIATION, INC.

Bushwick Economic Development Corp 


BUSHWICK IMPROVEMENT SOCIETY, INC. 


BUSHWICK UNITED HOUSING DEVELOPMENT CORP 


CAMBA, Inc. 


Camelot of Staten Island Inc

,CANAAN SENIOR SERVICE CEN

EIP, Inc.

CARDINAL MCCLOSKEY SCHOOL AND HOME FOR CHILDREN, INC.

Cardinal McCloskey Services

._....... 


Career and Educational Consultants

CAREER BRIDGE FOe NETWORK

CARING COMMUNITY/OUR LADY

CARTER BURDEN LUNCHEON CLUB

Exhibit e 
 Page 3 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 71 of 88

CASC CASE ASSISTANTCEfTRANS

CASES CEP

CASES Nathaniel ACT

CASES/Day Custody Program

'Casita Maria, Inc.

Catholic Charities

Catholic Charities (Beacon of Hope)

Catholic Charities Comm Svcs Stapleton

Catholic Charities Comm Svcs Wbrighton

ICATHOLIC CHARITIES COMM SVS/CYO

,Catholic Charities Community Service, Archdioc,"se of N Y

CATHOLIC CHARITIES NEIGHBORHOOD SERVICES, INC

Catholic Charities Neighborhood Svcs. (BFFY)

CATHOLIC GUARDIAN SOCIETY AND HOME BUREAU

CAYUGA HOME FOR CHILDREN INC

CCNS BAYSIDE SENIOR CENTER

CCNS GLENWOOD SENIOR CTR

CCNS HILLCREST SR CTR

CCNS MCGUINESS NOSIDE SR C

CCNS NARROWS SENIOR CENTE

CCNS ST CHARLES JUBILEE SR C

CCNS ST LOUIS SENIOR CENTER 62A

CCNS STEINWAY SENIOR CENT

CCNS THE BAY SENIOR CENTER

CCNS/wOODHAVEN SENIOR CENTER

Center for Alternative Sentencing and Employment Services, Inc.,

Center for Appellate Litigation

Center for Community Alternatives(YAP)

i

Center for Community Alternatives/Crossroads

Center for Employment Opportunities

,Center for Family Representation

Center for Hearing and Communication

!CENTER FOR INTEGRATION AND ADVANCEMENT OF NEW AMERICANS I

Center for the Elimination of Violence In the Family

Center for the Integration & Advancement of New Americans

Center for Urban Community Services, Inc.

Central Brooklyn Economic Development Corporation

CENTRAL HARLEM SENIOR CEN

Central Queens YM & YWHA, Inc

CENTRO CIVICO Y CULTURAL AGUADILLANO, iNC.

'CHARLES A WALBURG MULTi SERVICE ORG

CHARLES JIN MEDICAL SERVICES

CHARLES WALBURG/JACKIE ROBINSON SR CTR

CHILD DEVELOPMENT CENTER

Child Development Ctr of the Mosholu Montefiore Comm Center

Children At Play Early Intervention Center, Inc.

Childrens Art Carnival Childrens Arts & Science Workshops, Inc.

Children'S Home Intervention Program, Inc.

Children'S Place Management, Inc.

,Chinatown Manpower Project, Inc.

Exhibit C 
 Page 4 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 72 of 88

Jchinese American Planning Council Home Attendant Program, Inc

CHINESE-AMERICAN PLANNING COUNCIL INC

i

Christian Herald HDFC

Church Avenue Merchants Block Assn.

CITIZENS CARE DAY CARE CENTER INC ~ENS CARE SENIOR CENTER
ro Group. Inc. CLAREMEONT NEIGHBORHOOD CENTER. INC. Clarke School for the Deaf d/b/a Clarke NYC Auditgry/Oral Center CLIFFORD GLOVER DAY CARE CENTER. INC.

Clinton Housing Development Co.

Coalition for Hispanic Family Services COALITION FOR HUMAN HOUSING, INC.

Coalition for the Homeless

COBO MT CARMEL CENTER 12M

COLLEGE COMMUNITY CHILD CARE CENTER

COLONY-SOUTH BROOKLYN HOUSES, INC.

Columba Services, Inc. COMMITTEE FOR HISPANIC CHILDREN & FAMILIES

Common Ground Community

Community Access, Inc.

COMMUNITY AGENCY FOR SENIOR CIT/NEW LANE

COMMUNITY AGENCY FOR SENIOR CITZ

COMMUNITY AGENCY/FOREVER YOUNG SENIOR

COMMUNITY AND PARENTS FOR CHILD WELFARE, INC.

Community Association of Progressive Dominicans. Inc.

COMMUNITY COUNSELING AND MEDIATION SERVICES, INC.

Community Mediation Services. Inc.

COMMUNITY ROUNDTABLE OF BUSHWICK, INC.

ComuniLife (HIRE)

Conceots of Independence

CONCERNED PARENTS OF JAMAICA

CONCOURSE DAY CARE CENTER, INC

CONCOURSE HOUSE HDFC, INC.

,

CONEY ISLAND COMMUNITY DAY CARE CENTER. INC.

Conscientious MUSical Revues

CONSELYEA STREET BLOCK ASSOCIATION, INC.

CONSELYEA/SWINGING 60S SENIOR CENTER

IContemporary Guidance Services

CONVENT AVE/HAMIL TON GRANGE SENIOR CE

i

Cooper Square Community Development & Business Association

Cooperative Home Care Associates CORNERSTONE DAY CARE CENTER. INC. 


CORONA/FLORENCE SMITH SENIOR SERV 


COTHOA LUNCHEON CLUB SENI 


Council of Jewish Organizations of Flatbush, Inc. 
 ,Council of Neighborhood Organizations, Inc. 
 County of Westchester Covenant House New York/Under 21, Inc. ICovenant House/Under 21 CPC QUEENS NAN SHAN SENIOR

Exhibit C 
 Page 5 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 73 of 88

CPC/NY CHII\JATOWN SENIOR CENTE 


CRAWFORD COMMUNITY EARLY LEARNING CENTER. 


Create, Inc. 


CRF House East 


Crossroads School for Child Development

i

Crown Heights HDFC

1

Crown Heights Jewish Community Council

Crown Heights Preservation

CUNY-Research Foundation CYPRESS HILLS CHILD CARE CORPORATION CYPRESS HILLS FULTON STREET

Cypress Hills Local Development Corporation

Darby Nutrition Dietetics Practice DAWNING VILLAGE, INC.

DAY CARE COUNCIL OF NEW YORK INC

DB Grant Associates Inc

1

Dennelise Corp

Directions For Our Youth, Inc.

i

Discipleship Outreach Ministries, Inc.

1

DOE Fund, Inc. DOMINICAN SISTERS FAMILY HEALTH SERVCES

Dominican Women's Development Center

DORCHESTER SENIOR CITIZENS

DOROT INC

DreamYard Project, Inc.

Dynamic Center

E. Sholom, Inc 


Early Childhood Associates, LLC 


Early Sprout, Inc. 


Early Start, Inc. 


EAST BROOKLYN DAY CARE CENTER, INC. 


EAST CALVARY DAY CARE CENTER, INC. 


EAST ELMHURST DAY CARE CENTER, INC. 


EAST HARLEM BLOCK NURSERY, INC. 


East Harlem Council For Community Improvement 


EAST HARLEM COUNCIL FOR HUMAN SERVICES, INC. 


East Harlem Employment Services, Inc. 


East Harlem Tutorial Program, Inc. 


EAST NEW YORK FAMILY DAY CARE PROCESSING CENTER, INC. 


East New York Urban Youth Corps 


I

East NY Development Corporation

EAST RIVER CHILDRENS CENTER COMMITTEE, INC

EAST SIDE COMMUNITY GROUP

East Side House, Inc.

EAST TREMONT CHILD CARE AND DEVELOPMENT CENTER, INC.

Easter Seals New York Ecumenical Community Development Organization Eden II School for Autistic Children, Inc. Edith and Carl Marks Jewish Community House of Bensonhurst

EDSI

Education and Assistance Corp

Exhibit C 
 Page 6 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 74 of 88

Educational Alliance, Inc.

I

Edwin Gould Services for Children & Families, Inc.

Edwin Gould/Steps

EILEEt\1 DUGAN SENIOR CITIZE

EI Barrio's Operation Fiqhtback, Inc.

EI Puente De Williamsburg

Ellen Cooper Associates, Inc.

ELMCOR SENIOR CENTER

Emilia's Kids, Inc.

EMMANUEL DAY CARE CORPORATION

Employment ProCjram for Recovered ...

Employment Works Initiative

ENCORE COMMUNITY SERVICES

ENCORE LUNCHEON CLUB

EPISCOPAL COMMUNITY SERVICES LONG ISLAND 1927

Episcopal Health Services, Inc.
•
Episcopal Social Services, of New York, Inc.

Esperanza NY Inc.

FAITH HOPE & CHARITY COMMUNITY SERVICE DAY CARE CTR, INC

Faith Mission Alcohol Crisis Center, Inc.

FAMILY CARE SERVICES

FAMILY CENTER INC, THE

Farmers Market Federation of New York

FedCap Rehabilitation Service

Federation Employment and Guidance Service, Inc.

Federation of Italian-American Organizations of Brooklyn

Federation of Organizations for the New York State Mentally Disabled, Inc.

FEGS

Fifth Avenue Committee, Inc.

FIND AID/PROJECT FIND CLINTON SENIO

FIND AID/PROJECT FIND HAMILTON HOUSE

FIND AID/PROJECT FIND WOODSTOCK

First Steps

FLATBUSH ACTION BOARD OF DIRECTORS

Flatbush Action Community Day Care Center, Inc.

Flatbush Development Corporation

Flemister HDFC

Floating Hospital

FLUSHING DAY CARE CENTER, INC.

Flushing Hospital & Medical Center

Food First, Inc.

FORDHAM BEDFORD CHILDRENS SERVICES,INC

I

FORESTDALE INC

1

Fort Green Senior Citizen Council, Inc.

FORT GREENE COUNCIL, INC.

Fortune Society

Fountain House, Inc.

Fresh Youth Initiatives

Friends Housing Dev.

FRIENDS OF CROWN HEIGHTS EDUCATIONAL CENTERS, INC.

FT GREENE COUNCIL/ALBANY SENIOR CT

Exhibit C 
 Page 7 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 75 of 88

FT GREENE COUNCIL/GRACE AGARD

FT GREENE COUNCIL/HAZEL BROOKS SR

FT GREENE COUNCIL/MARIA LAWTON

FT GREENE COUNCIL/REMSEN CENTER

FT GREENE COUNCILfTERESA MOORE 23Y

FT GREENEfCHRISTOPHER C. BLENMAN SE

I

FT GREENEfH. GILROY SENIOR CENTER

FT GREENEIWILLOUGHBY SENIOR CENTER

Functional life Achievement

Fund for the City of New York/Center for Court Innovation

Fund for the City of New York/Center for Court Innovation (Bronx Community Solutions)

G & Y Kids Power, Inc.

GAN DAY CARE CENTER. INC.

Gay

Men of ,

African

Des.c.ent,

Inc.

Geel Communit SeNices, Inc.

!General Development and Orientation Council, Inc.

GEORGE C. CONLIFFE CHILD CARE CENTER INC.

GirIs Educatlona I an d Mentonng SeNlces Inco (GEMS)

i

Global Kids, Inc.

GODDARD RIVERSIDE COMMUNITY CENTER

Good Shepherd SeNices

IGood Shepherd SeNices - Mandela House (Bx)

GOOD SHEPHERD SERVICES - SHARP HOUSE

Goodwill Industries of Greater New York and Northern New Jersey, Inc.

Gotham Per Diem, Inc.

I

GRACE PRE-SCHOOL DAY CARE CENTER, INC.

GRAHAM WINDHAM INC.

Grand Street Settlement, Inc.

GREATER FLUSHING COMMUNITY COUNCIL, INC.

:

Greater Ridgewood Youth Council, Inc.

Greenhope SeNlces For Women, Inc.

Greenwich House, Inc.

Groundwork Inc.

Guardians of the Sick, Inc.

GUSTAVUS ADOLPHUS LUTHERAN

HEL.P. DAY CARE CORPORATION

HAITIAN-AMERICAN DAY CARE CENTER, INC

I

HALLET COVE CHILD DEVELOPMENT CENTER. INC.

I

HAMILTON-MADISON HOUSE, INC.

HANAC ANGELO PETROMELIS S

'HANAC Inc

I

HANAC RAVENSWOOD SENIOR CENTER

Hand In Hand Development, Inc.

Happy Dragon of New York

I

Happy Dragon USA

HARLEM CHILDREN'S ZONE INC

Harlem Commonwealth Council Inc

HARLEM DOWLING WESTSIDE CTR FOR CHILDREN & FAMILY SERVICES

Harlem RBI (Reviving Baseball in Inner Cities

Harlem United

Exhibit C 
 Page 8 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 76 of 88

Harlem United AIDS

Harlem United Community AIDS Center

HARTLEY HOUSE, INC.

HAVVTHORNE CORNERS DAY CARE CENTER. INC.

,Health and Hospitals Corp. I Elmhurst Hospital

iHEALTH RESEARCH. INCORPORATED

.Hear Me S eak

Heartshare Human Services HEARTSHARE HUMAN SERVICES OF NE.:.-W_Y'--'O:....:.R..:.:..K~_ _ _ _ _ _ _ _ _ _ _ _ _ _---i

Hebrew Academy for Special Children Inc.

Hebrew Educational Society

HEBREW INSTITUTE FOR THE DEAF & EXCEPTIONAL CHILDREN, INC. HEBREW KINDERGARTEN & INFANTS HOME=,-I-N-C.----------~--------------------~

HEIGHTS AND HILLS COMMUNITY CNCL

Helen Keller Services for the Blind

HELLENIC AMERICAN NEIGHBORHOOD ACTION

Hellenic American Neighborhood Action Committee (HANAC)

HELP Bronx

HELP Social Services Corp.

Henkels & McCoy. Inc.

HENRY ST/GOOD COMPANIONS NUTRITIO

HENRY STREET SETrLEMENT, INC.

Herbert G. Birch Family Services, Inc

HHC - Queens Hospital Center

HHC - Renaissance Healthcare Network

HIGHBRIDGE ADVISORY COUNCIL FAMILY SERVICES, INC.

Highbridge Community Life Center (HCLC)

Highland Park Community Corporation

,HILLCREST EDUCATIONAL CENTER, INC.

!HMH/CITY HALL SENIOR CENTER

Home Life! Starbright

Home Services System

Homecrest Community Services, Inc

HOMES FOR THE HOMELESS, INC.

Hope Community. Inc.

HOPE OF ISRAEL

•Hospital Audiences, Inc.

Housing Works. Inc.

,

HTA of New York

Hudson Guild

HUDSON GUILD SENIOR SVCS

HUNTS POINT MULTI·SERVICE CENTER, INC.

HUNTS PTIDOUGLAS LEON SENIOR CENTER

HUNTS PT/MARIA ISABEL SENIOR CTR

Icahn House East, LLC

ICD International Center for the Disabled (Not in FMS)

Imani House. Inc.

Imeinu, Inc.

i

Immaculata Hall HDFC

Immigrant Social Services, inc.

Important Steps, Inc.

Exhibit C 
 Page 9 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 77 of 88

Included Educational Services

I

Indochina Sino American Community Center

,

Institute for Basic Research Development Disabilities

Institute for Community Living, Inc.

Institute for Mediation and Conflict Resolution, Inc

Institute For Puerto Rican Hispanic Elderly, Inc.

INSTITUTE FOR THE PUERTO RICAN HISPANIC ELDERLY/CARVER

INSTITUTE FOR THE PUERTO RICAN HISPANIC ELDERLY/ARTHURO

INSTITUTE FOR THE PUERTO RICAN HISPANIC ELDERLY/BETANCES

Institutes of Applied Human Dynamics

Inwood Community Services, Inc.

INWOOD HOUSE, INC.

IPRHE CORONA SENIOR CENTER

I

,IPRHE/BRONX RIVER SENIOR CENTER

i IPRHE/ELMHURST JACKSON HEIGHTS

IPRHE/JAMES MONROE SENIOR CTR

IPRHE/LEONARD COVELLO SENIOR CE

ISABELLA GERIATRIC CENTER

Island Peer Review Organization

Italian American Civil Rights League

Italian Senior Citizens

Jackson Children's Services

JACOB A RIIS/QUEENSBRIDGE

Jacob A Riis Neighborhood Settlement, Inc.

JAMAICA CHILD CARE CENTER, INC.

JAMAICA NAACP DAY CARE CENTER, INC.

Jamaica Service Proqram for Older Adults, Inc.

JAMAICA SERVICES PROGRAM FOR OLDER ADULTS/FRIENDSHIP

JAMES L. VARICK COMMUNITY CENTER, INC.

JAPANESE AMERICAN SOCIAL SVCS

JASA BROOKDALE

JASA BX SPECL NEEDS UNIT

JASA CANARSIE

JASA LEGAL SERVICES

JASA ROCKAWAY PAR SENIOR CEN

JASA ROY REUTHER

,JASA SENIOR CENTERS

.JASA SR. ALLIANCE/LUNA PARK

iJASA THROGS NECK SENIOR CE

JASACO-OP CITY

JASAIVAN CORTLANDT SENIOR CENT

JCC OF GCI/HABER HOUSES SENIOR CENTE

JCC OF GCI/MARLBORO SENIOR CENTER

JCC OF GCI/OCEAN PARKWAY SENIOR CITI

JCC OF GCI/SURF SOLOMON SENIOR CENTE

JCC OF GREATER CONEY ISLAND

JCC OF GREATER CONEY ISLAND SHOREFRONT

JCC of Rockaway Peninsula

JCC SR KOSHER NUTRITION SE

Jericho Project

Jericho-Residence IV HDFC

Exhibit C 
 Page 10 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 78 of 88

JEWISH ASSOCIATION FOR SERVICES FOR THE AGED

JEWISH ASSOCIATION FOR SERVICES FOR THE AGED IMANHATTAN BEACH

JEWISH ASSOCIATION FOR SERVICES FOR THE AGED ISHOREFRONT

JEWISH BOARD OF FAMILY AND CHILDREN'S SERVICES INC

Jewish Care of Services of LonC1 Island

JEWISH CHILD CARE ASSOC. INC.

Jewish Child Care Association of New York

Jewish Community Center of Staten Island, Inc.

JEWISH COMMUNITY COUNCIL OF GCI

JEWISH COMMUNITY COUNCIL OF GCI/JAY

Jewish Community Council of Greater Coney Island, Inc.

Jewish Institute of Queens

John A Coleman School

JOHN EDWARD BRUCE DAY CARE CENTER, INC.

JSPOA ROCKAWAY BLVD SR CT

JSPOA THEODORA JACKSON SR.

JSPOA TRANSPORTATION

Just Us, Inc.

Kennedy Child Study Center

Kidcare Associates, Inc.

KIDS ETCETERA DAY CARE CENTER, INC.

KidsKare, LLC

KINGSBRIDGE HEIGHTS COMMUNITY CENTER, THE

Kips Bay Boys & Girls Club

KIPS BAY CASTLE HILL SR CTR

KOREAN COMMUNITY SERVICES OF METROPOLITAN NY

La Asociacion Benefica Cultural Father Billini

LABOR BATHGATE COMMUNITY CHILD CARE BOARD

Lantern Community Services, Inc

LAUREL TON SPRINGFIELD COMMUNITY DAY CARE, INC.

LEAGUE FOR BETTER COMMUNITY LIFE, INC.

LEAKE AND WATTS SERVICES, INC.

Learning Through An Expanded Arts Program, Inc.

Legal Aid Society

Legal Outreach, Inc

LEGAL SERVICES FOR NEW YORK

Legal Services New York City

LENOX HILL NEIGHBORHOOD HOUSE, INC.

LENOX HILL SR CTR

Lesbian & Gay Community Services Center, Inc.

LEXINGTON CHILDREN CENTER, INC.

Lexington Hearing & Speech Center Inc.

I

Lifespire, Inc.

Lighthouse International

LINCOLN SQUARE NEIGHBORHOOD CENTER, INC.

UTTLE FLOWER CHILDREN'S & FAMILY SERVICES OF NEW YORK

Little Meadows Early Childhood Center

Little Sisters of the Assumption Family Health Service, Inc.

LITTLE SUN PEOPLE, INC.

Little Wonders, Inc.

Long Island Center for Child Development. Inc.

Exhibit C 
 Page 11 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 79 of 88

Long Island Jewish Medical Center

ILong Island University

ILos Ninos Services, Inc.

!LOWER EAST SIDE FAMilY UNION

I Lower East Side Service Center

Lower West Side Household Services Cop

LSA FAMILY HEAL TH SERVICE, INC.

LSNY-BRONX CORPORATION

Lutheran Medical Center

!

LUTHERAN SOCIAL SERVICES OF METROPOUTAN NY

i

.Madison Square Boys & Girls Club

I

Make the Road New York

MALCOLM X DAY CARE CENTER OF CORONA - EAST ELMHURST, INC.

I

Manhattan Legal Services

I

Manhattan Youth Recreation and Resources, Inc.

MAPLETON MIDWOOD GERIAT

I

Marathon Infants & Toddlers, Inc.

MARBLE HILL NURSERY SCHOOL, INC.

!

MARC ACADEMY AND FAMILY CENTER, INC.

I

Marion K SaIomon

MARY MCLEOD BETHUNE DAY CARE CENTER, INC.

Maspeth Town Hall, Inc

MEALS ON WHEELS OF STATEN ISLAND

MENTAL HEALTH ASSOCIATION OF NYC INC THE

IMental Health Providers of Western Queens

MERCYFIRST

.MERRILL PARK CIVI CASSOCIATION

,
:

Metro Children's Services, Inc.

Metro Therapy, Inc.

Metropolitan NY Coord. Council on Jewish Poverty

MFY LEGAL SERVICES INC

IMID BRONX CCRP EARLY CHILDHOOD CENTER. INC.

MID BRONX SENIOR CITIZENS COUNCIL INC

Mid Island Therapy Associates, LLC d/b/a All About Kids

Midwood Development Corporation

Milestone Early Intervention Center

Momentum Project

MONTEFIORE MEDICAL CENTER

MONTESSORI PROGRESSIVE LEARNING CENTER, INC.

I

Morningside Center for Teaching Social Responsibility, Inc.

i

MORNINGSIDE RETIREMENT & HEALTH

Morris Heights Health Center, Inc.

Morrisania Revitalization Corporation

MOSDOTH DAY CARE CENTER, INC.

MOSHOLU MONTEFIORE COMMUNITY CENTER. INC

Mount Hope Housing Company

Msgr. Robert Fox Memorial Shelter

Mt. Sinai Hospital

NADAP

NASRY MICHELEN DAY CARE CENTER, INC.

National Alliance for the Mentally III of New York City, Inc.

Exhibit C 
 Page 12 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 80 of 88

INational Society for Hebrew Day School

'NATIONAL SORORITY OF PHI DELTA KAPPA BETA OMICRON CHAPTER

!

Neigh Initiative De\!. Corp.

Neighborhood Association for Inter-Cultural Affairs (NAICA)

NEIGHBORHOOD DAY I\JURSERY OF HARLEM, INC.

t'-jeighborhood Initiatives Development Corporation

Neighborhood Self-Help by Older Persons Projects, Inc.

NEIGHBORHOOD SHOPP CASA B

~HBORHOOD SHOPP-SNAP

I

ALTERNATIVES FOR CHILDREN INC

New Ufe Child Development Corporation

New Settlement Apartments

New York Asian Women's Center, Inc. New York Center for Child Development

I ,

New York Center for Interpersonal Development

iNew York Child Resource Center Inc.

New York City Department of Education

,

New York City Gay &Lesbian

New York City Housing Authority

New York City Mission Society

New York Count Defender Services

NEW YORK FOUNDATION FOR SENIOR CITIZENS

ORK FOUNDATION FOR SENIOR/MOTT

ORK FOUNDLING HOSPITAL

Inc.

Non-Profit Assistance Cor

Nontraditional Emplo ment for Women

NORTH BRONX NCNW CHILD DEVELOPMENT CENTER, INC.

North Brookl n Development Corporation

,North General

NORTHEAST BRONX DAY CARE CENTERS, INC.

NORTHEAST BRONX SENIOR CITIZENS

i Northern Manhattan Improvement Corp
I
NORTHFIELD COMMUNITY LDC OF SI

Northside Center for Child Development

=HSIDE CENTER FOR CHILD DEVELOPMENT INC

TROS NINOS DAY CARE CENTER, INC.

1

Number One SRO, HDFC

NY Center for Infant & Toddlers

,

NY FDTN HOME SHARING

NY Society for the relief of the Ruptured & Crippled dba Hospital for Special Surqerv .

NY Urban League

:NYC Criminal Justice Agency

NYF/DYCKMAN SENIOR CENTER

NYF/LA GUARDIA SENIOR CENTER

NYSARC, INC.

Exhibit C 
 Page 13 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 81 of 88

NYSARC, lnG, - New York City Chapter (AHRC)

i

Odyssey House HDFC

Odyssey House, Inc:

Office of the Appellate Defender

OHEL CHILDRENS HOME AND FAMILY SERVICES INC

iOHEL SARAH DAY CARE CENTER, INC. 


OMEGA PSI PHI FRATERNITY NU-OMICRON CHAPTER ECEC 


On Your Mark, Inc.

ONE STOP SENIOR SERVICES

OPEN DOOR ASSOCIATES INC

Opportunities for a Better Tomorrow

l

Osborne Treatment Services/E I Rio

Palladia, Inc.

i

PAMELA C, TORRES DAY CARE CENTER, INC.

1

PARK SLOPE COMMUNITY CENTER, INC.

IPARK SLOPE NORTH CHILD DEVELOPMENT CENTER, INC,

PARK SLOPE SENIOR CITIZENS CTR

Partnership for the Homeless/ Prevention

i

Partnership for the Homeless, Inc.

l

Pathways to Housinq, Inc.

I

Pediatric Occupational Therapy Associates, P.C.

PENN SOUTH SOCIAL SERVICES

PEOPLE CARE

PEQUENOS SOULS DAY CARE CENTER, INC.

Per Scholas Inc

Personal Touch Home Care, Inc.

Personal Touch, Inc.

PETER CARDELLA SENIOR CITZEN CENTER

PHILIP H. MICHAELS CHILD CARE CENTER, INC.

I

Phipps Community Development

!

PHS Dental

PHS Medical

Pibly Residential Programs, Inc.

Planned Parenthood of NYC

PLEASANT AVENUE DAY CARE CENTER. INC.

i

Police Athletic League, Inc.

POLISH & SLAVIC/JOHN PAUL II FRIENDSHIP CLUB

POLISH & SLAVIC/KRAKUS LUNCHEON CLUB

Polonians Organized to Minister to Our Community

POMOC

Postgraduate Center for Mental Health

Pratt Area Comm, Cncl

Premier Home Health

Presbyterian Senior Services

PRESBYTERIAN SENIOR SERVICES/ANDREW JACKSON

PRESBYTERIAN SENIOR SERVICES/CITY ISLAND

PRESBYTERIAN SENIOR SERVICES1HIGHBRIDGE

PRINCE HALL SERVICE FUND, INC.

Exhibit C 
 Page 14 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 82 of 88

PROMESA, INC.

Prospect Park YMCA New Americans Welcome Center

~P~SS~/~PA~R~K~S-ID-E-S-E-N-IO-R-C-E-N-T-E-R---------------------------------------I.

Public Health Solutions

.

PUERTO RICAN COUNCIL DAY CARE CENTER, INC

PUERTO RICAN FAMILY INSTITUTE

QSAC, Inc.

QUEENS COMMUNITY HOUSE , INC

QUEENS COMMUNITY HOUSE/POMONOK SENIOR CENTER

QUEENS COUNTY EDUCATORS FOR TOMORROW INC.

Queens Law Associates

Queens Legal Services, Corp.

QUEENSBORO COUNCIL FOR SOCIAL WELFARE

QUEENSBRIDGE DAY CARE CENTER, INC.

QUO VADIS MONTESSORI DAY CARE CENTER. INC.

RAIN BOSTON SECOR SENIOR

RAIN EASTCHESTER SENIOR 12H

IR.AI.N. GUNHILL SENIOR CENT

RABBI ISRAEL/MIDDLE VILLAGE

RAICES CORONA SENIOR CENT

RAICES RED HOOK SENIOR CENTER

RAICESIWYCKOFF GARDENS SENIOR CE

RAIN

RAIN COLLEGE AVE SENIOR CENTER

RAIN East Tremont

RAIN ONE-STOP SERVICES TO T

RAIN PARKCHESTER SENIOR CE

,

.RAIN/BOSTON EAST

•RAIN/BOSTON RD

RBSCC

RBSCC DIANA JONES SENIOR CENTER

RBSCC/ATLANTIC SENIOR CENTER

RECREATION ROOMS AND SETILEMENT

RED BALLOON DAY CARE CENTER INC

Red Hook Initiative, Inc.

REGIONAL AID FOR INTERIM NEEDS

Regional Aid For Interim Needs, Inc. (RAIN)

REGIONAL AID FOR INTERIM NEEDS/INWOOD

REGIONAL AID FOR INTERIM NEEDS/MIDDLETOWN

REGIONAL AID FOR INTERIM NEEDS/NEREID

•

Rehab Care Professionals, Inc.

I

RENA DAY CARE CENTER, INC.

Research Foundation of CUNY

I Research Foundation of CUNY on Behalf of Bronx Comm. College

Research Foundation of CUNY/ CUNY Creative Arts Team Inc

Research Foundation of CUNY/Brooklyn College

Research Foundation of CUNY/Medqar Evers Colleqe

RESERVE ELDER SERVICE

Restaurant Opportunities Center of NY

RICHMOND HOME NEED SERVICES

Richmond University Medical Center

Exhibit C Page 15 of 21

Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 83 of 88

IRidgewood Bushwick

RIDGEWOOD BUSHWICK HOME

RIDGEWOOD BUSHWICK SENIOR CIT/BORINQUEN

i Rid ewood Bushwick Senior Citizens Council

RIDGEWOOD BUSHWICK SENIOR CITIZENS/HOPE

RIDGEWOOD BUSHWICK SENIOR CITIZENS/ROUNDTABLE

RIDGEWOOD BUSHWICKICASE MANAGEMENT

IRIDGEWOOD OLDER ADUL T CT

IRight Start

Riverdale Community Center, Inc.

RIVERDALE SENIOR CENTER 


I RIVERDALE SENIOR SERVICES 


RIVERSTONE SENIOR LIFE

•Riverstone Senior Life Services, Inc.

ROCHDALE VILlAGE NURSERY SCHOOL, INC.

ROCHDALE VILlAGE SOCIAL SERVICES

Rockaway Artist Alliance, Inc.

Rockaway Development & Revitalization Corporation

Rocking the Boat, Inc.

Rockland Child Development Services Inc.

•ROOSEVELT ISlAND SENIORS ASSOCIATION

Rosalia-Regina Pacis Neighborhood Improvement Associatio

!Ryer Ave

SAFE HORIZON, INC. (VICTIM SERVICES)

Safe Space NYC, Inc.

Saint Dominic's Home

SAINT JOHNS DAY CARE CENTER, INC.

Sakhi for South Asian Women

SALEM COMMUNITY SERVICE COUNCIL, INC.

!

SaIvaIIon Army

Samaritan Village

SAMARITANIWOODSIDE SENIOR CENTER

Samuel Field YM & YWHA, Inc.

Samuel Proctor HDFC

Sanctuary for Families, Inc.

SAUTI YETU CENTER FOR AFRICAN WOMEN INC

Sauti Yetu Center for African Women, Inc.

SCAN - NY (SUPPORT CHILDRENS ADVOCACY NETWORK) INC.

I 


SCAN (SUPPORTIVE CHILDREN'S ADVOCACY NETWORK) NY VOLUNT

I 


School Settlement Association

SCO FAMILY OF SERVICES EAST WILLlAMSBURGH

SCO FamlIlyof Servlces (SI Chrl.SIopher-Ott lIie)

SCO Family of Services, Inc.

SEABURY DAY CARE CENTER, INC.

Seamen's Society for Children & Families

SEBCO Development, Inc.

SEBCO SENIOR PROGRAMS

Second Henry Street, HDFC

SEEDCO Inc

Self Help Community Services

SELFHELP CONSOLIDATED SENI

Exhibit C 
 Page 16 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 84 of 88

SENIOR ACTION IN A GAY ENVIRONMENT INC

SENIORS HELPING SENIORS

Sephardic Community Center

I

SEPHARDIC MULTI SERVICE CENTER

I

SEPHARDIC MULTI SERVICE CENTER/HOUSE OF JACOB

SeNices for the UnderseNed, Inc.

I

SERVICES NOW FOR ADULT PERSONS

Sesame Flyers International, Inc

SHARON BAPTIST BOARD OF DIRECTORS, INC.

SHELTERING ARMS DAY CARE SERVICES, INC.

Shema Kolainu - Hear Our Voices

SHIRLEY CHISHOLM DAY CARE CENTER, INC.

Shorefront Jewish Community Council

Shorefront YM-YWHA

I

SI COMM SVS/NEW DORP FRIENDSHIP CLUB

I

SI COMM SVS/STATEN ISLAND FRIENDSHIP CL

i

Simpson Street Development Association, Inc.

Sky Light Center, Inc.

South Bronx Action Group

South Bronx Overall Economic Development Corp.

South Brooklyn Legal SeNices

I

South Queens Boys & Girls Club

South Street Secport Museum

Southeast Bronx Neighborhood Center, Inc. (SEBNC)

SOUTHEAST BRONX NEIGHBORHOOD CENTERS, INC.

SOUTHEAST QUEENS MULTI SERVICE

SOUTHERN QUEENS PARK ASSOC. INC.

Southside United Development Fund Corp

SOUTHSIDE/LOS SURES SR CTR

Sports and Arts In Schools Foundation, Inc.

:

SR CITIZENS LEAGUE OF FLATB

ST DOMINIC'S HOME

ST GABRIELS EPISCOPAL CHURCH

ST JOHN ST MATIHEW/PROSPECT HILL SR SVS

ST JOHNS PLACE FAMILY CENTER HOUSING DEVELOPMENT FUND CORP

ST JOHNS/FT HAMILTON-ST JOHNS NUTRI

ST LUKE'S-ROOSEVELT HOSPITAL CENTER

ST VINCENT'S SERVICES II\JC

S!. Anthony's Residence HDFC

S!. Barnabas Hospital

Sl. Cabrini Home

S1. CHRISTOPHER'S, INC.

St. John's Residence (Qu)

S!. John's University

St. Mary:s Community SeNices, Inc.

St. Mary's HDFC

SI. Mary's Hospital for Children, Inc.

!

SI. Nicholas NPC

Sl. Nicks Alliance Corp.

S!. Raymond Community Outreach

Sl. Rosalia-Regina Pacis Neighborhood Improvement Associatio

Exhibit C 
 Page 17 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 85 of 88

ST VINCENT'S HOSPITALIMEDICAL CENTER

STANLEY M ISAACS NEIGHBORHOOD CENTER

i

Staten Island Aid for Retarded Children, Inc. dba Community Resources

I

Staten Island Behavioral Network, Inc

,

Staten Island Mental Health Society. Inc

i

Staten Island University Hospital

Steinway Child and Family Services, Inc.

Step by Step Infant development Center

Stepping Stone Day School, Inc.

StriVright, Inc.

Stryckers Bay Neighborhood Council, Inc.

Sunny Days Early Childhood Developmental Services, Inc.

Sunnyside Community Service, Inc.

SUNNYSIDE HOME CARE

Sunset Bay Community Services, Inc

SUNSET BAY/SUNSET PARK SENIOR CITIZENS

Supportive Childrens Advocacy Network (SCAN)

TABERNACLE CHURCH OF GOD, INC.

iTADA! Theatre and Dance Alliance, Inc ~b Center for Refugees

American Family Support Center

The Bridge, Inc.

The Carter Burden Center

The Child Center of NY, Inc.

The Children's Aid Society

The Children's Center for Early Intervention, Inc.

The Children's Village

The Coalition of Behavioral Health Agencies, Inc.

:

The Crenulated Company Ltd

THE DENNELISSE CORP.

The Doe Fund

The Door - A Center of Alternatives

The East New York Learning Center, Inc

THE EDUCATIONAL ALLIANCE, INC.

i

THE EDUCATIONAL ALLIANCE/SIROVICH SENIOR CENTER/SIROVICH

The Floating Hospital

The Fortune Society, Inc.

The Fortune Society/DAMAS

The Fortune Society/Flametree

The Fortune Society/Freedom

The Friends of Crown Hei hts Educational Center

Korean American Family Services Center

:

Mental Health Association of New York City, Inc.

NEW LIFE CHILD DEVELOPMENT CENTER. INC

and Ear Infirmary

The Osborne Association, Inc.

The Partnership for the Homeless. Inc.

The Research Foundation of State University of New York

The Salvation Army

The Samaritans of New York, Inc.

Exhibit C 
 Page 18 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 86 of 88

The Spanish Speaking Elderly

THE SPANISH SPEAKING ELDERLYfTlMES PLAZA

The Young Womens Christian Association of Queens

TheraCare of New York, Inc.

I

Therapeutic Imprints, Inc.

Therapeutic Resources Physical Therapy, LLP

i

Therapy and LearninQ Center

These Our Treasures, Inc.

THROGGS NECK CHilD CARE CENTER

Thursday's Child, Inc.

Toddler-Infant Program for Special Education, Inc.

Tolentine-Zeiser Community Life Center, Inc

Tourette Syndrome Association, Inc.

i

Transitional Services for New York, Inc.

!

TREMONT COMMUNITY SENIOR

Tremont Crotona Day Care Center, Inc

TREMONT MONTEREY DAY CARE CENTER INC.

TRUSTEES OF COLUMBIA

Turning Point

Turning Point HDFC

TWIN PARKS CHILD CARE CENTER, INC.

UBA BEATRICE lEWIS SENIOR

UBA/A PHILIP RANDOLPH SENIOR CE

UBA/M MCLEOD

UBA/MAN HATTANVI LLE -RIVERDALE

UJC ADULT LUNCHEON CLUB

UJO of Williamsburg Inc

!

Under 21 New York City

UNION SETTLEMENT ASSOCIATION, INC.

i

UNION/CORSI HOUSE SENIOR CENTER

!

UNITAS THERAPEUTIC COMMUNITY

United Activities Unlimited, Inc.

UNITED BRONX PARENTS,INC.

United Cerebral Palsy of Queens, Inc.

i

United Community Centers

i

United Community Day Care Center, Inc

!

UNITED FEDERATION OF BLACK COMMUNITY ORGANIZATIONS, INC

UNITED HINDU CULTURAL COUNCIL 


I

UNITED INTERFAITH ACTION COUNCil OF BROOKLYN, INC. 


United Jewish Organization of Williamsburg

~
I

UNITED lUBAVITCHER YESHIVA

UNITED PARENTS COMMUNITY CORPORATION

UNITED SENIOR CITIZENS CTR OF SUNSET PARK

UNIV SETTLEMENT SOCIETY / NUTRITION

UNIVERSITY BEHAVIORAL ASSOCIATES,INC.

University Consutation & Treatment

University Settlement Society of New York, Inc

i

Up Wee Grow, Inc.

UPPER BRONX NEIGHBORHOOD ASSOCIATION FOR PR AFFAIRS, INC

Urban Justice Center

Urban Pathways, Inc.

Exhibit C 
 Page 19 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 87 of 88

Urban Strategies, Inc.

Urban Youth Alliance International

I

UTOPIA CHILDRENS CENTER, INC.

Vannguard Urban Improvement Association, Inc.

iVariety Boys & Girls Club of Queens, Inc.

Venture House, Inc.

Violence Intervention Program

I

VIP Health Care

;

VIP HEALTH CARE / KWIK CARE LTD

VIP Health Care Services

I

VIsion Urbana, Inc.

IVisiting Nurse Association Health Care Services, Inc.

I

Visiting Nurse Service of New York Home Care

I

VOCATIONAL INSTRUCTIONAL PROJECT COMMUNITY SERVICES INC

Volunteers of America, Inc.

I

WASH HGTS COMMUNITY SVC

l

WASHINGTON HEIGHTS CHILD CARE CENTER INC

Washington Heights- Inwood Coalition, Inc

Wayside Out Reach Development, Inc

WAYSIDE/ROSETTA GASTON SENIOR CEN

WAYSIDEITILDEN SENIOR CENTER

WAYSIDENAN DYKE SR CTR

West End Interqenerational

West Side Campaign Against Hunger/ Chruch of st. paul

WEST SIDE FEDERATION FOR SENIOR & SUPPORTIVE HOUSING INC

WEST SIDE FEDERATION FOR SENIOR 32Y

WEST SIDE MONTESSORI SCHOOL

WESTCHESTER TREMONT DAY CARE CENTER, INC.

Weston United Community Renewal, Inc.

IWestside Federation For Senior & Suportive

William F. Ryan Community Health Center

WILLIAM HODSON SENIOR CEN

WILLlAMSBRIDGE NAACP EARLY CHILDHOOD EDUCATION CENTER, INC

Wllhamsburg Infant & Early Childhood Development Center, Inc.

,Women In Need Inc

Women's Housinq and Economic Development Corporation (WHEDCO

!

Women's League Community Residences Inc.

I

Women's Prison Association

Women's Prison Association (WPA)

Woodside On The Move, Inc.

l

Woodstock HDFC

Woodycrest Center For Human Development

Yeled V'Yalda Early Childhood Center, Inc,

YESHIVA KEHILATH YAKOV

Yeshiva Kehilath Yakov (Parent Hdqtrsl

YESHIVA TIFERETH MOSHE, INC.

Yeshiva Univ., Albert Einstein Collel=le of Medicine

iYMCA OF GREATER NEW YORK

YMCA of Greater New York - Virtual Y

YMCA of Greater New York/Bedford Stuyvesant

iYMCA of Greater New York/Bronx

Exhibit C 
 Page 20 of 21 


Case 1:05-cv-05442-SAS Document 202 Filed 01/03/13 Page 88 of 88
YMCA of Greater New York/Chinatown YMCA of Greater New York/Corporate YMCA of Greater New York/Eastern District YMCA of Greater New York/Flatbush Branch YMCA of Greater New YorklFlushin YMCA of Greater New YorklProspect Park YMCA of Greater New YorkNanderbilt YMYWHA OF THE BRONX RIVERDALE/DORA YM-YWHA of Washin ton Heights Inwood You Participate In Solutions/ New York Center for Interpersonal Development Young AduIt Justlce Program RFP Young Athletes, Inc. Young Dancers In Repertory, Inc . .YOUNG ISRAEL FOREST HILLS S YOUNG ISRAEL OF BEDFORD BAY YOUNG ISRAEL PROGRAMS/MIDWOOD YOUNGISRAELPROGRAMS/wAVECREST YOUNG ISRAEL QUEENS VALLEY Youth Development Institute A program of the Tides Center Youth Ministries for Peace and Justice IYWCA OF THE CITY OF NEW YORK YWCA of the City of New York (Main Branch)
Exhibit C 
 Page 21 of 21 


 
 ORJGI~JAL Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 1 of 44

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

PAUL CASALE and ANTHONY GARCIA, on Behalf of Themselves and Others Similarly Situated,

Plaintiffs, -against-

AMENDED OPINION AND ORDER

RAYMOND W. KELLY, Commissioner of the New York City Police Department (NYPD); CITY OF NEW YORK; JOHN/JANE DOES 1-50 (NYPD Supervisory, Training and Policy Personnel); and JOHN/JANE DOES 51-100 (NYPD police officers),

08 Civ. 2173 (SAS)

Defendants.

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

Paul Casale and Anthony Garcia ("named plaintiffs") assert that

' 81

i

9' Raymond W. Kelly, Police Commissioner of the New York City Police

(.]')

c.:::;)

..·--

~ Department ("NYPD"); the City ofNew York; and unnamed NYPD personnel
("')

~. ;...,.

::J! (collectively "defendants") have violated and continue to violate their Fourth,
:::::;)
-:;:)

Fifth, and Fourteenth Amendment rights and the rights of those similarly situated

- and have falsely arrested and maliciously prosecuted them by enforcing

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 2 of 44
provisions ofNew York State's loitering law declared unconstitutional over twenty years ago. This lawsuit addresses the legal consequences of an unlawful summons, the capability of a municipality to control its police and prosecutors, and the ability of the poor to bring collective actions.
Named plaintiffs now move to certify two classes pursuant to Federal Rule of Civil Procedure 23. Under Rule 23(b)(2), plaintiffs seek to represent a class consisting of "all persons who have been or will be arrested, charged, or prosecuted for a violation ofNew York Penal Law §§ 240.35(3) and/or 240.35(7) in New York City after those statutes were declared unconstitutional."1 Under Rule 23(b)(3), named plaintiffs also seek to represent a class limited to those previously arrested, charged, or prosecuted within the statute of limitations period.2 For the reasons that follow, named plaintiffs' motion is granted in full. I. BACKGROUND
A. Enforcement of New York Penal Law Section240.35(3) New York Penal Law section 240.35(3) states, "A person is guilty of
loitering when he [l]oiters or remains in a public place for the purpose of
Memorandum of Law in Support of Plaintiffs' Motion for Class Certification ("Pl. Mem.") at 2. Accord Complaint~ 20.
2 See Pl. Mem. at 2. See also Complaint ~ 23.
2

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 3 of 44
engaging, or soliciting another person to engage, in oral sexual conduct, anal sexual conduct or other sexual behavior of a deviate nature." In 1983, the New York Court of Appeals struck down the statute as unconstitutional, on the basis that the"object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy," which itself is not constitutionally punishable.3 Despite judicial invalidation, the State of New York has not formally repealed this provision. 4
Between 1983 and 2007, the District Attorneys' Offices of the five counties that make up New York City brought 4,750 prosecutions resulting from arrests that included charges under section 240.35(3), of which 2,185 charged only a violation of section 240.35(3).5 During that time period, 2,550 individuals were convicted for violating the unconstitutional provision.6 Apart from convictions, these prosecutions resulted in the issuance of 1,51 0 bench warrants,
3 People v. Uplinger, 58 N.Y.2d 936, 938 (1983). 4 See N.Y. Penal Law § 240.35(3). 5 See 12/8/08 Declaration of J. McGregor Smyth, Jr., plaintiffs' attorney ("Smyth Decl.") ~~ 13, 15. Although the Court of Appeals did not strike down the law until February 23, 1983, the total likely includes prosecutions initiated in the first two months of 1983. This does not alter the fact that prosecutions continued. 6 See id. ~ 16.
3

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 4 of 44
payment of $69,516 in cash bail, sentences of $192,981 in fees, fines, and surcharges, and 16,396 court appearances.7 Most recently, the Queens County District Attorney's Office brought a prosecution charging a violation of section 240.35(3) arising from a January 9, 2006 arrest.8
Apart from prosecutions, solely between 1999 and 2007 NYPD officers issued 9,693 summonses charging violations of section 240.35(3), resulting in the issuance of5,391 bench warrants, sentences of$71,145 in fees, fines, and surcharges, and 21,576 court appearances.9 As ofDecember 8, 2008, the most recent NYPD summons charging section 240.35(3) had been issued on November 20, 2008. 10
B. Enforcement of New York Penal Law Section 240.35(7) New York Penal Law section 240.35(7) states, "A person is guilty of
loitering when he [l]oiters or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence." In 1988, the New York Court of Appeals declared that provision unconstitutional
7 See id. ~ 17. 8 See id. ~ 18. 9 See id,l~ 22-23. Older NYPD data has not been made available to plaintiffs. 10 See id. ~ 24.
4

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 5 of 44
as well, finding it both unconstitutionally vague and "violative of a citizen's right not to answer questions posed by law enforcement officers."11 Despite judicial invalidation, the State of New York has not formally repealed this provision. 12
Between 1988 and 2007, the District Attorneys' Offices ofNew York City filed ninety-one criminal prosecutions resulting from arrests for violations of section 240.35(7). 13 Fifteen were brought only for violations of section 240.35(7), and twelve resulted in convictions for violating section 240.35(7). 14 Apart from convictions, these prosecutions resulted in the issuance of twenty-seven bench warrants, payment of$500 in cash bail, payment of sentences of$3,130 in fees, fines, and surcharges, and 1,197 court appearances. 15 Most recently, the New York County District Attorney's Office brought a prosecution charging a violation of
II People v. Bright, 71 N.Y.2d 376, 385-87 (1988). 12 See N.Y. Penal Law§ 240.35(7). 13 See Smyth Decl. ~ 27. Although the Court of Appeals did not strike down the law until February 17, 1988, the total likely includes prosecutions initiated in the first two months of 1988. Again, this does not alter the fundamental fact that prosecutions continued to be brought after the provision was declared unconstitutional. 14 See id. ~~ 29-30. 15 See id. ~ 31.
5

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 6 of 44
section 240.35(7) arising from a November 7~ 2005 arrest. 16 Apart from prosecutions~ between 1999 and 2007 NYPD officers
issued 476 summonses charging violations of section 240.35(7)~ resulting in the issuance of 306 bench warrants, sentences of $3,310 in fees, fines, and surcharges, and 1, 197 court appearances. 17 As of December 8~ 2008, the most recent NYPD summons charging a violation of section 240.35(7) was issued on July 12,2008.18
C. Named Plaintiffs and Their Attorneys Named plaintiffs Paul Casale and Anthony Garcia regularly spend
time at the Port Authority Bus Terminal in New York City. 19 Casale and Garcia allege that NYPD officers issued them summonses on March 4, 2007 for remaining in a transportation facility with no explanation of their presence, in violation of section 240.35(7).20 Within a month of the March 4 incident, police
16 See id. ~ 32. 17 See id,f~ 36-37. 18 See id. ~ 38. 19 See, e.g., 7/26/08 Deposition of Paul Casale ("Casale Dep.") at 151:325, 159:19-160:3,230:16-231:10, Ex. F to 1/12/09 Declaration ofRachel Seligman Weiss, defendants' counsel ("Seligman Weiss Decl.") & Ex. A. to 1/26/09 Declaration of Debra L. Greenberger, plaintiffs' counsel ("Greenberger Decl.").
°2 Complaint~~ 4-5. Although plaintiffs have not submitted evidence to
confirm this assertion, defendants have not challenged the truth of this incident.
6

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 7 of 44
again approached Casale at the Port Authority, questioned him, asked for identification, and searched his person and belongings?1
Some time after he received the summons, Casale initiated a complaint with the Civilian Complaint Review Board ("CCRB") concerning the incident, but he ceased pursuing the complaint on the advice of counsel.22 Instead
in his own words he brought the above-captioned lawsuit "against the City of New York for ticketing, arresting and harassing people for a statute that was declared unconstitutional in 1988."23
Casale is aware that a class action affects the rights of others who are not actively involved in the litigation.24 Casale is also aware that he has particular
See Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification ("Def. Mem.") at 13 (challenging named plaintiffs' standing to request prospective- but not retrospective relief). Garcia also verified the veracity of the factual allegations in the Complaint during his deposition. See 7/29/08 Deposition of Anthony Garcia ("Garcia Dep.") at 105:9-14, Ex. G to Seligman Weiss Decl. & Ex. B to Greenberger Decl.
21 See Casale Dep. at 102:4-22, 106: 1-24. 22 See id. at 84:12-18, 85:7-24. See also id. at 87:3-16 (describing Casale's doubts concerning the impartiality of the CCRB). 23 !d. at76:19-77:12. 24 See id. at 133:3-23.
7

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 8 of 44
duties as a class representative.25 Although he admits that he did not attend an interview that the CCRB requested,26 he has pursued this litigation despite fear of police retaliation and attended his scheduled deposition.27 Casale is aware that he suffers from depression but has ceased treatment for this conditions, believing it has not been effective.28 Casale is indigent and would not be able to pay attorneys' fees or costs without the aid of pro bono counsel.29
Garcia became involved in the lawsuit because he did not understand why the police enforce laws that are not in effect.30 He recognizes that people other than himself are affected by this policy.31 Garcia also acknowledged that he has a duty to remain involved in the lawsuie2 and takes that responsibility
25 !d. at 121:21-25. 26 See id. at 85:7-24. 27 See id. at 93:9-94:2. 28 See id. at 20:9-20, 26:4-18. Casale also believes that he suffers from paranoia, although he has not been diagnosed with the condition. See id. at 25:825, 26:19-25. 29 See id. at 138:7-140:12. 30 See Garcia Dep. atl0:11-14, Ex. G to Seligman Weiss Decl. & Ex. B to Greenberger Decl. See also id. at 108: 10-25 (questioning why the conduct for which he received a summons is a crime). 31 See id. 32 See id. at 57:11-14.
8

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 9 of 44
seriously.33 Despite difficulties reading, Garcia reviewed the complaint twice prior to his deposition.34
Garcia is unaware of some technical aspects of the case, including the name of this Court, the name of the presiding judge, the name of the firm that employs his attorneys, the precise size of the proposed class, and the arrangement governing fees and costs.35 Garcia suffers from what he describes as a "nervous condition," and as a result he has recently been unable to hold a job?6 He has also experienced episodes of claustrophobia and chest pains. 37 Finally, Garcia was arrested in 2000 for cocaine possession, pled guilty, and served four years in prison. 38
Named plaintiffs are represented by Emery Celli Brinckerhoff &
33 See id. at 100:17-22. 34 See id. at 10:2-8, 105:12-14 35 See id. at 82:3-9, 104:3-106:16. Garcia knows the names ofhis attorneys and the location oftheir office. See id. at 82:3-7. 36 !d. at 68:6-23. 37 See id. at 74:3-19 (claustrophobia); id. at 92:4-93:18 (chest pains). 38 See id. at 211:11-24,214:10-16. Garcia served an additional seven months for violations of curfew conditions of his parole. See id. at 216:4-17. He was also arrested during the 1990s for driving without a license and drinking in public -both misdemeanors and was sentenced to community service. See id. at 221:25-222:25.
9

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 10 of 44
Abady LLP, The Bronx Defenders, and the Law Office of Earl Ward. Emery Celli is "a preeminent civil rights firm" in the City ofNew York.39 The Bronx
Defenders is a defense organization in New York City that supplements its criminal defense representation with broader services and impact litigation.40
Finally, Earl Ward is a civil rights and criminal defense attorney with over twenty years of experience.41
D. Defendants' Attempts to End Enforcement Plaintiffs initiated this lawsuit on March 3, 2008. On April21, 2008,
the NYPD sent a message to all precincts and connnands requiring that officers be
informed at ten consecutive roll calls that sections 240.35(3) and 240.35(7) are unconstitutional and cannot be enforced via sunnnons or arrest.42
The NYPD also changed its computer system so that charges pursuant to these
39 Brown v. Kelly, 244 F.R.D. 222, 233 (S.D.N.Y. 2007), appeal pending sub nom., Wise v. Kelly, No. 07-3356 (2d Cir. argued Dec. 19, 2008).
40 See Press Release, N.Y. State Bar Ass'n, Pioneer in Holistic Advocacy Wins State Bar's First Indigent Defense Outstanding Achievement Award (May 31, 2007), available at http://www.nysba.org/AM/Template.cfm?Section=2007_Press Releases_through June&template=/PressRelease/PressReleaseDisplay.cfm&PressReleaseiD=707&P ressReleaseCategoryiD=2.
41 See Civilian Complaint Review Board, New York City, Earl Ward, Esq., http://www.nyc.gov/html/ccrb/html/ward.html.
42 4/21/08 FINEST Message, Ex. C to Seligman Weiss Decl.
10

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 11 of 44
provisions can no longer be processed.43 On May 1, 2008, defendants consented to a stipulation requiring further notification to the Offices of the District Attorneys of the five counties that make up New York City and the Criminal Court of New York City and monthly reporting requirements concerning summons issued pursuant to these sections.44 The required notifications were sent on May 9, 2008.45 Nonetheless, between May 2008 and December 2008, NYPD officers issued thirty-six sumn1onses charging violations of these provisions.46
E. Proposed Relief Plaintiffs seek three forms of relief. First, plaintiffs seek a broad
declaratory judgment establishing that defendants acted unlawfully by enforcing sections 240.35(3) and 240.35(7) against plaintiffs.47 Second, on behalf of those plaintiffs certified as part of a Rule 23(b)(2) class, named plaintiffs seek an
43 See Seligman Weiss Decl., 7. 44 See 5/1/08 Stipulation and Order, Ex. B to Seligman Weiss Decl. 45 See 5/9/08 Letter from Michael Cardozo, New York City Corporation Counsel, to Robert M. Morgenthau, District Attorney, New York County, et al., Ex. D to Seligman Weiss Decl.; 5/9/08 Letter from Linda Donahue, Assistant Corporation Counsel, to Hon. Juanita Bing-Newton, Administrative Judge, Criminal Court of the City ofNew York, Ex. E to Seligman Weiss Decl.
46 See Smyth DecI. ,-r 10.
47 See Complaint Request for Relief, 1.
11

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 12 of 44

injunction ordering city-wide remedial policies aimed at eliminating the

enforcement of sections 240.35(3) and 240.35(7) and expunging of plaintiffs'

criminal records relating to arrests, charges, prosecutions, or convictions pursuant to those provisions.48 Third, on behalf of those plaintiffs certified as part of a Rule 23(b)(3) class, named plaintiffs seek both compensatory and punitive damages.49

II. APPLICABLE LAW

A. Rule 23(a)

Rule 23 of the Federal Rules of Civil Procedure governs class

certification. '"Rule 23 is given liberal rather than restrictive construction, and courts are to adopt a standard of flexibility."50 To be certified, a putative class

must first meet all four prerequisites set forth in Rule 23(a), commonly referred to

as

numerosity,

commonality,

typicality,

and

adequacy.

1 5

The numerosity requirement mandates that the class be "so numerous

48 See id. ~~ 2-3.
49 See id. ~~ 4-5. Plaintiffs also broadly seek an award of costs and fees. See id. ~ 6.
50 Marisol A. v. Giuliani, 126 F.3d 372, 378 (2d Cir. 1997) (quoting Sharifex rel. Salahuddin v. New York State Educ. Dep 't, 127 F.R.D. 84, 87 (S.D.N.Y. 1989)).
51 See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196,201-02 (2d Cir. 2008).
12

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 13 of 44
that joinder of all members is impracticable."52 Impracticable does not mean impossible; joinder may merely be difficult or inconvenient, rendering use of a class action the most efficient method to resolve plaintiffs' claims.53 Sufficient numerosity can be presumed at a level of forty members or more.54 "However, an estimate that is based on speculation is insufficient."55 Nevertheless, such speculation is permitted in the case of prospective classes for injunctive relief on behalf of those who will be harmed by future allegedly wrongful conduct, at least when joined with a fixed class of individuals suffering current harm.56 Moreover, the poverty of potential class members is a relevant factor when assessing the

52 Fed. R. Civ. P. 23(a)(l).

53 See Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedea Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir. 2007). Accord Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909,913-14 (9th Cir. 1964) ("' [I]mpracticality' does not mean 'impossibility,' but only the difficulty or inconvenience of joining all members ofthe class.").

54 See Consolidated Rail Corp. v. Town ofHyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (citing 1 Newberg On Class Actions§ 3.05 (2d ed. 1985)).

55 Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001) (citing Demarco v. Edens, 390 F.2d 836, 845 (2d Cir. 1968)).

56
1999).

See Boucher v. Syracuse Univ., 164 F.3d 113, 119 n.ll (2d Cir.

13

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 14 of 44
practicality ofjoinder.57
Commonality requires a showing that common issues of fact or law affect all class members.58 "Commonality does not mandate that all class members make identical claims and arguments."59 When "common questions do
predominate, differences among the questions raised by individual members will not defeat commona1ity."60
"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
57 See Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993) (citing McDonald v. Heckler, 612 F. Supp. 293, 300 (D. Mass. 1985), modified on other grounds, 795 F.2d 1118 (1st Cir. 1986)).
58 See Fed. R. Civ. P. 23(a)(2). 59 Triefv. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) (citing Port Authority Police Benevolent Ass 'n v. Port Authority, 698 F.2d 150, 153-54 (2d Cir. 1983)).
°6 Civic Ass 'n ofthe Deafv. Giuliani, 915 F. Supp. 622, 633 (S.D.N.Y.
1996). Accord Daniels v. City ofNew York, 198 F.R.D. 409,417 (S.D.N.Y. 2001) (citing Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 56 (3rd Cir. 1994)); 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure§ 1764 (3d ed. 2008) ("To the extent that 'co-extensive' suggests that the representatives' claims must be substantially identical to those of the absent class members, it is too demanding a standard.").
14

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 15 of 44
arguments to prove the defendant's liability."'61 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."62 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"63 or the named plaintiffs' claim is subject to "specific factual defenses" atypical of the class.64
Adequacy demands that "the representative parties will fairly and adequately protect the interests of the class."65 "Generally, adequacy of representation 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
61 Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)).
62 Marisol A., 126 F.3d at 377. 63 Newman v. RCN Telecom Services, Inc., 238 F.R.D. 57, 64 (S.D.N.Y. 2006). Accord Doe v. Chao, 306 F.3d 170, 183 (4th Cir. 2002) (finding an absence of typicality where the "named claimants had not suffered 'injur[ies] similar to the injuries suffered by the other class members'" (quoting McClain v. South Carolina Nat'l Bank, 105 F.3d 898,903 (4th Cir. 1997)). 64 Oshana v. Coca-Cola Co., 472 F.3d 506,514 (7th Cir. 2006), cert. denied, 127 S.Ct. 2952 (2007). 65 Fed. R. Civ. P. 23(a)(4).
15

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 16 of 44
qualified, experienced and able to conduct the litigation."66 "[C]lass
representative status may properly be denied 'where the class representatives have
so little knowledge of and involvement in the class action that they would be
unable or unwilling to protect the interests of the class against the possibly competing interests of the attorneys. "'67 However, the Supreme Court has
"expressly disapproved of attacks on the adequacy of a class representative based on the representative's ignorance."68
Finally, the courts have added an "implied requirement of ascertainability" to the express requirements of Rule 23(a). 69 "[T]he requirement
that there be a class will not be deemed satisfied unless the class description is
sufficiently definite so that it is administratively feasible for the court to determine
66 Baffa v. Donaldson, Lufkin & Jenrette Sees. Corp., 222 F.3d 52, 60 (2d Cir. 2000) (citing In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir. 1992)).
67 !d. at 61 (quoting Maywalt v. Parker & Parsley Petroleum Co., 67 F.3d 1072, 1077-78 (2d Cir. 1995)).
68 !d. (citing Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 370-74 (1966)). Accord Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 344 (S.D.N.Y. 2004) (holding that inflexible application of the adequacy requirement "runs counter to a principal objective of the class action mechanism to facilitate recovery for those least able to pursue an individual action").
69 In re Initial Pub. Offering Sees. Litig. ("In re !PO"), 471 F.3d 24, 30 (2d Cir. 2006).
16

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 17 of 44

whether a particular individual is a member."70 '"An identifiable class exists if its members can be ascertained by reference to objective criteria. "'71
B. Rule 23(b) 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)."72
1. Rule 23(b)(2) Under Rule 23(b)(2), class litigation is appropriate 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."73 Under the doctrine established by

70 7A Wright, Miller, & Kane, supra, § 1760. Accord In re Fosamax Prods. Liab. Litig., 248 F.R.D. 389, 395 (S.D.N.Y. 2008) (quoting Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y. 1983)).

71 In re Fosamax, 248 F.R.D. at 395 (quoting In re Methyl Tertimy Butyl Ether ("MTBE") Prods. Liab. Litig., 209 F.R.D. 323, 337 (S.D.N.Y. 2002)). Accord id. at 396 ("The Court also must be able to determine the class' membership "'without having to answer numerous fact-intensive inquiries."' (quoting Daniels v. City ofNew York, 198 F.R.D. 409, 414 (S.D.N.Y. 2001))).

72
2008).

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

73 The Advisory Committee Note suggests that in this context, "[d]eclaratory relief 'corresponds' to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief." 1966

17

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 18 of 44
the Second Circuit's decision in Galvan v. Levine, certification of a Rule 23(b)(2)
class is unnecessary when "prospective 'relief will benefit all members of a
proposed class to such an extent that the certification of a class would not further
the implementation of the judgment. "'74
Courts have focused on four factors in determining whether class certification is necessary under Galvin. First, notwithstanding the presumption that government officials will abide by a court's decision as to similarly situated individuals, an affirmative statement from the government defendant that it will apply any relief across the board militates against the need for class certification. Second, withdrawal ofthe challenged action or non-enforcement of the challenged statute militates against the need for class certification. Third, the type of relief sought can affect whether class certification is necessary. Courts have found that where the relief sought is merely a declaration that a statute or policy is unconstitutional, denial of class certification is more appropriate than where plaintiffs seek complex, affirmative relief. Fourth, courts also consider whether the claims raised by plaintiffs are likely to become moot, making class certification necessary to prevent the
Advisory Committee Note to Rule 23(b)(2). 74 Berger v. Heckler, 771 F.2d 1556, 1566 (2d Cir. 1985) (quoting
Davis v. Smith, 607 F.2d 535, 540 (2d Cir. 1978), recalled and remanded on other grounds, 607 F.2d 540 (2d Cir. 1979)). Accord 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").
18

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 19 of 44

action from becoming moot.75
2. Rule 23(b)(3)
Under Rule 23(b)(3), certification is appropriate where "questions of
law or fact common to the members of the class predominate over any questions
affecting only individual members," and class litigation "is superior to other
available methods for the fair and efficient adjudication of the controversy."
The matters pertinent to these findings include the class members' interests in individually controlling the prosecution or defense of separate actions; the extent and nature ofany litigation concerning the controversy already begun by or against class members; the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and the likely difficulties in managing a class action.76
'" [T]he predominance inquiry tests whether proposed classes are
sufficiently cohesive to warrant adjudication by representation. "'77 "It is a more
demanding criterion than the commonality inquiry under Rule 23(a)."78

75 Blecher v. Department ofHousing Pres. & Dev., No. 92 Civ. 8760, 1994 WL 144376, at *4-*5 (S.D.N.Y. Apr. 19, 1994).

76 Fed. R. Civ. P. 23(b)(3)(A)-(D).

77 In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006) (quoting In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001)).

78
(1997)).

!d. (citingAmchem Prods., Inc. v. Windsor, 521 U.S. 591, at 623-24

19

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 20 of 44
"Class-wide issues predominate if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof."79 In light of the procedural safeguards required in (b)(3) class actions,80 Rule 23(b)(3)
"encompasses those cases in which a class action would achieve economies of time, effort and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results."81 "[R]egardless of whether the claim as a whole satisfies the predominance test," "courts may employ Rule 23(c)(4)(A) to certify a [(b)(3)] class on a designated issue."82 "[F]ailure to certify an action under Rule 23 (b)(3) on the sole ground that it would be unmanageable is disfavored and 'should be the exception rather

79
136).

Id. (citing In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at

80 See Fed. R. Civ. P. 23(c)(2)(B), (c)(3)(B), (e)(4).

81 Parker v. Time Warner Entm 't Co., 331 F.3d 13, 20 (2d Cir. 2003) (quoting 1966 Advisory Committee Note to Rule 23(b)(3)).

82 In re Nassau County Strip Search Cases, 461 F.3d at 230.

20

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than the rule. "'83 "It is appropriate for the court to consider the 'inability of the poor or uninformed to enforce their rights and the improbability that large numbers of class members would possess the initiative to litigate individually. "'84
3. Appropriate Subsection of Rule 23(b) "Rule 23(b) begins by saying that an action 'may' be maintained as a class action when ... a part of subdivision (b) ha[s] been satisfied; it does not say that the class must be certified under the first matching subsection."85 Although the text of subdivision (b)(2) addresses equitable relief, certification of a class seeking both equitable and legal relief may be appropriate '"in light of the relative importance of the remedies sought. "'86 The Second Circuit has instructed that in assessing whether subdivision (b)(2) applies, the first inquiry is whether '"even in the absence of possible monetary recovery, reasonable plaintiffs would bring the
83 In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 140 (quoting In reS. Cent. States Bakery Prods. Antitrust Litig., 86 F.R.D. 407, 423 (M.D. La. 1980)).
84 D'Alauro v. GC Servs. L.P., 169 F.R.D. 451,458 (E.D.N.Y. 1996) (quoting Haynes v. Logan Furniture Mart, Inc., 503 F.2d 1161, 1165 (7th Cir. 1974)).
85 Jefferson v. Ingersoll Int'l, Inc., 195 F.3d 894, 898 (7th Cir. 1999). 86 Parker, 331 F.3d at 20 (quoting Robinson, 267 F.3d at 164).
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suit to obtain the injunctive or declaratory relief sought. "'87 The court's next inquiry is whether '"the injunctive or declaratory relief would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits."88
However, where a putative class seeks injunctive relief and significant monetary damages, due process concerns do not permit maintenance of a mandatory class action absent procedural safeguards.89 A court may therefore proceed in one of three ways. The court may "certifY[] the class under Rule 23(b)(3) for all proceedings," "certifY a Rule 23(b)(2) class for the portion of the case addressing equitable relief and a Rule 23(b)(3) class for the portion of the case addressing damages," or "certify the class under Rule 23(b)(2) for both monetary and equitable remedies but exercise its plenary authority under Rules 23(d)(2) and 23(d)(5) to provide all class members with personal notice and opportunity to opt out, as though the class was certified under Rule 23(b)(3)."90
87 Id. (quoting Robinson, 267 F.3d at 164). 88 ld. (quoting Robinson, 267 F.3d at 164). 89 See Ortiz v. Fibreboard Corp., 527 U.S. 815, 846-47 (1999). 90 Lemon v. International Union ofOperating Eng'rs, 216 F.3d 577, 581-82 (7th Cir. 2000). The Second Circuit has declined to address "the precise circumstances under which a putative class requesting both injunctive and monetary relief can be certified." In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 146-47.
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C. Standard of Proof Plaintiffs bear the burden of demonstrating - by a preponderance of
the evidence that the proposed class meets the requirements described above.91 This Court must "'assess all of the relevant evidence admitted at the class certification stage' when determining whether to grant a Rule 23 motion."92 "[T]he obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue, even a merits issue that is identical with a Rule 23 requirement."93 However, "in making such determinations, a district judge should not assess any aspect of the merits unrelated to a Rule 23 requirement. " 94
D. Designation of Case-Management Subclasses "In conducting an action under [Rule 23], the court may issue orders
that determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument ... [or] deal with
91 See Teamsters Local 445, 546 F.3d at 202. 92 Id. (quoting In re IPO, 471 F.3d at 42). 93 In re IPO, 471 F.3d at 41. 94 Id.
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Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 24 of 44
similar procedural matters."95 A case-management subclass may be "created
solely to expedite resolution of the case by segregating [a distinct legal] issue [that
is] common to some members of the existing [class]."96 Case-management
subclasses are "an appropriate procedural innovation under Rule 23(d),"97 when
"there is no actual conflict among class members in the underlying claims
common to the entire class."98 When "the subclassification [is] appropriate under
Rule 23(d), it is unnecessary to evaluate it under Rule 23[(a)] for commonality,
numerosity, typicality, and adequacy ofrepresentation."99 On the other hand,
formal certification of subclasses pursuant to Rule 23(c)(5) "is the proper
95 Fed. R. Civ. P. 23(d)(l)(A), (E). 96 American Timber & Trading Co. v. First Nat 'l Bank, 690 F.2d 781, 787 (9th Cir. 1982). Accord Marisol A., 126 F.3d at 379 ("Rule 23 gives the district court flexibility to certify subclasses as the case progresses and as the nature of the proof to be developed at trial becomes clear."). 97 American Timber & Trading Co., 690 F.2d at 787. 98 Herbert Newberg & Alba Conte, Newberg on Class Actions§ 7:33 (4th ed. 2002). 99 American Timber & Trading Co., 690 F.2d at 787 n.5. Accord Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir. 1993) (suggesting that a district court may craft subclasses to confront factual distinctions even when only one plaintiff is named, which would necessitate disregarding the formal Rule 23 adequacy requirement); Newberg & Conte, supra, § 7:33 ("[T]he court can use its general supervisory Rule 23(d) discretion over class actions to create a convenient subclass for particular litigation purposes without formally designating it as a Rule 23 subclass." (emphasis added)).
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solution" "if a court discen1s a conflict" among members of a proposed class 100 or class members assert divergent claims based on non-overlapping factual circumstances, harms, and systemic failures. 101 III. DISCUSSION
A. Rule 23(a) Factors 1. Numerosity Defendants first claim that named plaintiffs cannot prove that the
proposed classes are sufficiently numerous to warrant class certification without conducting mini-trials to determine the appropriateness of including each potential class member. 102 This objection is frivolous and betrays a fundamental misapprehension of the requirements of class certification. Numerosity relates solely to the size of the proposed class and the practicality ofjoinder. Named plaintiffs propose classes consisting of thousands of individuals named in databases maintained by defendants, satisfying the numerosity requirement. 103
100 Boucher, 164 F.3d at 118-19 (quoting Payne v. Travenol Labs., Inc., 673 F.2d 798, 812 (5th Cir. 1982)).
101 See Marisol A., 126 F.3d at 379. 102 See Def. Mem. at 12. 103 Although plaintiffs' proposed Rule 23(b)(2) class includes some plaintiffs who "will be wrongfully charged" under section 240.35(3) or 240.35(7), such prospective class members are permitted.
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Moreover, joinder is particularly impractical for the individuals who form the portion of the class charged with violating section 240.35(7), as those arrested for loitering in a transit facility are likely to lack the resources or capability to press individual suits. Thus the proposed classes satisfy the numerosity requirement of Rule 23(a)(l ).
2. Commonality Defendants next challenge the commonality of the class claims on the basis that individual questions of fact predominate over common issues oflaw. 104 However, it is incontestable that a single issue of law dominates this case: whether defendants violated plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights by enforcing provisions of the penal law long deemed unconstitutional. Numerous secondary questions of law are also common to the class: • Whether the arrest, detention, and prosecution of plaintiffs violated common law prohibitions on false arrest, false imprisonment, and malicious prosecution; • Whether liability is appropriate against the City on the basis of supervisory
104 See Def. Mem. at 9-12.
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liability or a custom, policy, or practice; 105 • Whether clearly established law prohibited the conduct alleged, precluding
a qualified immunity defense; 106 • The appropriateness of proposed legal remedies - should this Court find
against defendants including municipal liability and punitive damages; 107 and • The appropriateness of proposed injunctive remedies- should this Court find against defendants - including expungement of criminal records and an injunction against future enforcement of sections 240.35(3) and 240.35(7).
Similarly, numerous common questions of fact can be efficiently resolved through class adjudication, including: • Whether defendants enforced or failed to prevent the enforcement of
105 See Monell v. New York City Dep 't ofSoc. Servs., 436 U.S. 658, 69395 (1978).
106 See In re County ofErie, 546 F.3d 222, 229 (2d Cir. 2008). The question of whether a "reasonable person" would have been aware of such clearly established law is "an objective, not a subjective, test," allowing for resolution of this issue on a class-wide basis. Id. (citing Moore v. Andreno, 505 F.3d 203, 21516 (2d Cir. 2007)). If the legal landscape shifted at some point during the class period then a portion of the class could theoretically be decertified.
107 See Smith v. Wade, 461 U.S. 30, 56 (1983) (punitive damages); Monell, 436 U.S. at 693-95 (municipal liability).
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sections 240.35(3) and 240.35(7); • The existence of a widespread pattern, policy, or practice of enforcement of
sections 240.35(3) and 240.35(7); • Whether Commissioner Kelly possessed the necessary mens rea for liability
resulting from his supervisory responsibilities; 108 • Whether the City failed to train, supervise, and discipline the personnel in
the NYPD and district attorneys' offices properly; and • What protocols existed in the NYPD concerning enforcement of sections
240.35(3) and 240.35(7). On the other hand, potentially individualized issues identified by
defendants include the statute of limitations, qualified immunity, the causal link between the City ofNew York's policies and the alleged injuries, the mental state of arresting officers, and the factual circumstances of individual arrests. However, most of these issues can be resolved on a class-wide basis. The applicable statute of limitations may be determined as a matter of law; the class then may be limited to those individuals with a viable claim. 109 Similarly, the
108 See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). 109 Plaintiffs have requested this precise limitation in the instant motion. Nor have plaintiffs suggested that the statute of limitations should be tolled, despite defendants' argument that equitable tolling would require an
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applicability of qualified immunity is "determined by reference to the case law
extant at the time of the violation" yielding "an objective, not a subjective, test"110
that is suitable for class-based adjudication. The existence of a causal link
between a policy permitting or failing to restrict enforcement of the statute and the
actual enforcement of that statute may also be determined on a city-wide basis.
Nor is an individualized assessment of the arresting officers' mental state
necessary to determine the validity of a substantive due process claim. 111 Finally,
individualized inquiry. See Def. Mem. at 10-11 (citing Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995)).
110 In re County ofErie, 546 F.3d at 229 (citing Moore, 505 F.3d at 215-16).
111 See Natale v. Town ofRidgefield, 170 F.3d 258, 263 (2d Cir. 1999) (noting that "[s]ubstantive due process standards are violated only by conduct that is so outrageously arbitrary as to constitute a gross abuse of governmental authority"). Defendants assert that the Second Circuit's decision in Natale states, "'[O]nly a substantial infringement of state law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights, qualifies for relief under § 1983. "' Def. Mem. at 7 (purporting to quote Natale, 170 F.3d at 263). Natale contains no such statement; it merely cites a decision of the D.C. Circuit that contains the falsely attributed quote. See Natale, 170 F.3d at 263 (citing Silverman v. Barry, 845 F.2d 1072, 1080 (D.C. Cir. 1998)). Defense counsel is reminded that as an officer of the Court she holds an obligation of truth, candor, and accuracy. See Oliveri v. Thompson, 803 F.2d 1265, 1267 (2d Cir. 1986); N.Y. R. Prof'l Conduct 3.3(a)(l). Moreover, the D.C. Circuit's decision is limited to the District's failure to enforce a local regulatory provision, rather than the more serious accusation of a municipality's enforcement of an unconstitutional statute. Therefore, there is no need for an individualized determination as to whether each arresting officer deliberately flouted the law
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plaintiffs' malicious prosecution claims do not require individualized analysis of
the circumstances of every arrest. 112
Whether plaintiffs' false arrest claims require individualized probable
cause inquiries is a more difficult question. The Supreme Court's recent holding
in Devenpeck v. Alford established that the "subjective reason for making the
arrest need not be the criminal offense as to which the known facts provide
probable cause."113 Probable cause is an absolute defense to most Fourth
Amendment unlawful seizure claims, as well as New York common law false
arrest and false imprisonment claims. 114 However, this does not demand the denial
when enforcing the unconstitutional loitering provisions. 112 See Posr v. Court Officer Shield No. 20 7, 180 F.3d 409, 417 (2d Cir.
1999) (noting that probable cause to initiate a prosecution is distinct from probable cause to arrest). Moreover, the malice element of a malicious prosecution claim generally does not require an individualized inquiry into the state of mind of the charging officer or prosecutor. See Ricciuti v. New York City Transit Auth., 124 F.3d 123, 131 (2d Cir. 1997) (noting that "lack of probable cause generally raises an inference of malice sufficient to withstand summary judgment" (citing Lowth v. Town of Cheektowaga, 82 F.3d 563, 573 (2d Cir. 1996))).
113 543 u.s. 146, 153 (2004).
114 See Herring v. United States, 129 S. Ct. 695, 698 (2009) (Fourth Amendment); Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir. 2006) (citing Weyant v. Okst, 101 F.3d 845,852 (2d Cir. 1996)) (false arrest). See also Jenkins v. City of New York, 478 F.3d 76,88 n.10 (2d Cir. 2007) (noting that "[f]alse arrest and false imprisonment are largely synonymous") (citing 59 N.Y. Jur. 2d False Imprisonment & Malicious Prosecution § 1 (2007)).
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of class certification. It is implausible that in more than a de minimis number of
cases did police officers have probable cause to arrest a plaintiff for another crime
but chose solely to charge violations of an unconstitutional provision. Nor have
defendants presented evidence to that effect. If such hypothetical "factual
distinctions could preclude findings of commonality and typicality under Rule
23(a), they would be the death knell for class actions challenging the systemic enforcement of an unconstitutional statute." 115 Although defendants might welcome this outcome, "[t]his is an unacceptable result."116 Where plaintiffs'
"'injuries derive from a unitary course of conduct by a single system,"' the
possibility that potential defenses might apply differently to individual plaintiffs -
absent additional evidence- is trumped by the commonality of the central claim. 117
115 Brown, 244 F.R.D. at 230. 116 Id. (citing Caifrano v. Tamaski, 442 U.S. 682, 701 (1979)). 117 Daniels v. City ofNew York, 198 F.R.D. 409,417 (S.D.N.Y. 2001) (quoting Marisol A., 126 F.3d at 377). Similar claims on behalf of a class of individuals prosecuted under a different unconstitutional loitering provision are presently before the Second Circuit. See Wise v. Kelly, No. 07-3356 (argued Dec. 19, 2008). Needless to say, this Court will modify the instant order if necessary to conform to the Circuit's decision. Moreover, these potential defenses will inevitably be addressed on a class-wide basis during merits adjudication. This
allows the common questions of law and fact to be answered in an efficient
manner. Should factual circumstances relevant to a particular inquiry differ throughout the class, the Court will either decertify particular claims or subdivide the class. See General Motors Corp. v. City ofNew York, 501 F.2d 639,661 (2d
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Nevertheless, it is important to address the effect of particular factual
distinctions within the proposed class. First, the Fourth Amendment claims of
individuals who were charged solely under the unconstitutional loitering
provisions are somewhat different from the claims of those who were arrested or
charged for violating both the void loitering provisions and other penal laws.
Second, the malicious prosecution claims of individuals against whom a criminal
proceeding was initiated are analytically distinct from those who were arrested but never prosecuted. 118
Divisions within a portion of the claims advanced by a proposed class
require the Court to designate case-management subclasses rather than to deny
class certification entirely. Here the proposed class may be divided into four
Cir. 1974) ("[N]othing prevents the district court, upon presentation of evidence, from concluding at a later point that the action must be decertified.").
118 "[T]he initiation or continuation of a criminal proceeding against plaintiff' is a necessary element of a malicious prosecution claim under New York law. Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir. 1997) (citations omitted). Defendants also contend that Fourth Amendment and false arrest claims differ depending on whether a plaintiff was merely issued a summons or was prosecuted. See Def. Mem. at 5. This analysis is not nearly as straightforward as defendants contend. See, e.g., Murphy, 118 F.3d at 946 (addressing Fourth Amendment seizure claims based on issuance of a summons without confinement). However, as this division within the proposed class is identical to the division concerning the malicious prosecution claim, there is no need to address the merit of this contention at the class certification stage.
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case-management subclasses:

1. All individuals arrested, or prosecuted by a DAO, charged solely for

violating N.Y. Penal Law § 240.35(3) or§ 240.35(7), and not charged with

other criminal offenses arising out of the same incident.

2. All individuals arrested, or prosecuted by a DAO, charged for violating

N.Y. Penal Law § 240.35(3) or§ 240.35(7), and also charged with other

criminal offenses arising out of the same incident.

3. All individuals issued summonses, charged solely for violating N.Y. Penal

Law§ 240.35(3) or§ 240.35(7), and not charged with other criminal

offenses arising out of the same incident.

4.

All individuals issued summonses, charged for violating N.Y. Penal

Law§ 240.35(3) or§ 240.35(7), and also charged with other criminal

offenses arising out of the same incident.

Commonality does not require absolute uniformity within the class,

and the use of case-management subclasses will allow this Court to address legal

distinctions relevant to plaintiffs' claims. The distinctions discussed above do not

create a conflict of interest between the subclasses, which would have necessitated

separate analysis for each subclass under the Rule 23(a) factors. Moreover, the

claims raised by all plaintiffs- as well as the alleged systemic failures that

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plaintiffs assert caused their injuries are uniform. Thus the most efficient way to address plaintiffs' claims is through the use of a single class subdivided into four case-management subclasses. Overall, the proposed class meets the commonality requirement of Rule 23(a)(2).
3. Typicality Defendants primary challenge to the typicality of named plaintiffs' claims is that neither were given summonses for violating section 240.35(3). However, defendants fail to indicate any legal difference between the claims of those putative class members charged with violating section 240.35(7) and those charged with violating section 240.35(3). Both groups claim the same constitutional violations and torts resulting from being charged with violating a law previously declared unconstitutional. Moreover, there is no evidence of any factual distinction between the two subsections concerning enforcement or training policies. Therefore, named plaintiffs satisfy the typicality requirement of Rule 23(a)(3). 4. Adequacy Defendants also vociferously argue that named plaintiffs are not adequate class representatives. Named plaintiffs are not t1awless individuals. As discussed above, Casale has a history of mental illness, and Garcia has spent time
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in correctional facilities as a result of drug use. However, these characteristics in no way render named plaintiffs interests antagonistic to the interests of the absent class members. Rather, plaintiffs have demonstrated admirable dedication to the pursuit of this lawsuit. Casale sought out representation and has pursued his claims despite a fear of retaliation. Garcia reviewed the complaint twice before attending his deposition despite difficulties reading. Casale declared that he decided to pursue the lawsuit "because [h]e felt that what happened to [him] was a grave injustice and it is something that ... shouldn't be happening to people. It shouldn't be allowed to continue." 119 Plaintiffs' knowledge of the suit is also more than sufficient to allow them to serve as class representatives, particularly in light of their professed dedication to the case and the assistance of experienced advocates.
Frankly put, defendants' assault on named plaintiffs' capability to represent the interests of similarly situated individuals is disrespectful and blatantly self-serving. It is irrelevant that Casale suffers from depression and believes he has suffered incidents of paranoia. It is also irrelevant that Garcia was once hospitalized with chest pains or had a test result indicating a possibility of untreated diabetes. It is further irrelevant that both named plaintiffs were unaware
119 Casale Dep. 93: 16-19.
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of potential liability for defendants' fees and costs, particularly as plaintiffs'
counsel are likely paying the costs of this action. And the fact that Garcia did not
know my name is only interesting to defendants' counsel. What is relevant is that
these characteristics and ailments are typical of individuals who tend to be victims
of the enforcement of unconstitutionally vague statutes- the vagabonds, the
homeless, and the destitute - who often lack the resources to enforce their
rights. 120 If individuals like Casale and Garcia were ineligible to represent a class,
the claims of those even worse off would inevitably go unheard. Therefore,
named plaintiffs meet the adequacy requirement of Rule 23(a)(4). 121
°12 Cf Noble, 224 F.R.D. at 344 ("[E]ven though Nunez arguably lacks
the ability effectively to supervise class counsel, a rigid application of this requirement is inappropriate where, as here, the class comprises relatively low-skilled laborers.").
121 Defendants also contend - in a footnote on the last page of their brief that the Bronx Defenders could theoretically be called as witnesses or brought in as third-party defendants based on their representation of some plaintiffs in criminal proceedings brought pursuant to section 240.35(3) or 240.35(7). See Def. Mem. at 25 n.29. As this Court stated in Brown v. Kelly, defendants' attempt to protect the interests of the class by impugning plaintiffs' attorneys' adequacy "is as ironic as it is unconvincing." 244 F.R.D. at 233. There is no evidence before this Court that the Bronx Defenders defended any individuals charged with violating either provision. Moreover, plaintiffs are also represented by Emery Celli Brinckerhoff & Abady, as well as Earl Ward, who are eminently qualified to represent plaintiffs without the assistance of the Bronx Defenders, should a conflict somehow develop. Plaintiffs' counsel undeniably meet the adequacy requirement of Rule 23(a)(4).
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5. Ascertainability Defendants finally argue that the proposed class fails the requirement of ascertainability. 122 Specifically, defendants assert that the class definition is "overbroad" because questions of membership would require mini-hearings. However, defendants conflate merits questions with the very simple class definition provided by plaintiffs. The proposed class does not consist of every individual who has a valid claim against defendants. Rather, the proposed classes consists of "all persons who have been or will be arrested, charged, or prosecuted for a violation ofNew York Penal Law§§ 240.35(3) and/or 240.35(7) in New York City after those statutes were declared unconstitutional" and a second class, using the same definition, limited to those arrested, charged, or prosecuted within the applicable statute of limitations. Class members may be readily identified using these objective criteria along with records maintained by the City and the Office of Court Administration. Ascertainability requires no larger inquiry. B. Rule 23(b)(2) Class123
122 See Def. Mem. at 3-8. 123 Plaintiffs have requested that this Court certify both a Rule 23(b)(2) class and a Rule 23(b)(3) class in order to achieve both equitable and legal relief. This procedural route avoids the due process concerns raised by the inclusion of
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It is indisputable that named plaintiffs have alleged that defendants have "acted or refused to act on grounds that apply generally to the class" by enforcing sections 240.35(3) and 240.35(7), by failing to implement training programs necessary to prevent unlawful enforcement, and by refusing to expunge criminal records related to the enforcement of sections 240.35(3) and 240.35(7) and refund fees and fines collected pursuant to those prosecutions. 124 Since the provisions were declared unconstitutional, defendants have enforced them more than 15,000 times.
Nevertheless, defendants challenge the certification of a Rule 23(b)(2) class on the basis that prospective relief is inappropriate now that defendants have entered a stipulation barring continued enforcement of sections 240.35(3) and 240.35(7) and have instituted procedures intended to prevent future enforcement. 125 Although cloaked in the language of standing, at the class certification phase such arguments are more properly addressed under the analytic
monetary relief under the framework of a (b)(2) class. Therefore, this Court will analyze the request for class certification under the standards for both categories of class action.
124 Fed. R. Civ. P. 23(b)(2). 125 See Def. Mem. at 18-20.
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rubric stemming from Galvin. 126 The first Galvin factor- the government's commitment to apply
requested relief on a class-wide basis -weighs in favor of class certification. Although defendants entered into a stipulation in May 2008 barring enforcement of sections 240.35(3) and 240.35(7) city-wide, there has been no similar agreement with regard to other forms of injunctive relief requested by plaintiffs. Although likely a secondary concern, expungement alone would form a sufficient basis for certification of a (b)(2) class.
The second Galvin factor - non-enforcement of the challenged statute - also militates for class certification. Defendants must first be commended for their good faith efforts to reduce enforcement via notification of police officers and modification of computer systems. Nevertheless, since defendants entered the May 2008 stipulation, thirty-six summons have been issued charging violations of section 240.35(3) or 240.35(7). Although perfection cannot be demanded of the nation's largest police force, thirty-six incidents is simply too many for this Court
126 Defendants' use of standing as a lens for analysis leads them to argue a number of merits issues. For example, defendants argue that named plaintiffs lack standing to challenge continued enforcement of sections 240.35(3) or 240.35(7) because "it cannot be said that there exists a current municipal policy or practice of enforcing the unconstitutional subsections." Def. Mem. at 20. This question of fact is not properly before the Court on a motion for class certification.
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to conclude that the problem has been solved. The third Galvin factor the complexity of the relief sought-
additionally weighs in favor of class certification. Plaintiffs seek the institution of a complex monitoring system, as well as affirmative relief in the form of expungement. Thus denial of (b)(2) class certification is less appropriate than if plaintiffs had merely requested declaratory relief.
Finally, the fourth Galvin factor the potential for plaintiffs' claims to be rendered moot- weighs against class certification. As plaintiffs request more than simply the cessation of enforcement of the unconstitutional provisions, their claims cannot be rendered moot, regardless of whether enforcement is eliminated entirely. Nevertheless, this fourth factor is insufficient to overcome the other factors weighing in favor of class certification. Therefore, plaintiffs' request for certification of a 23(b)(2) class is granted.
C. Rule 23(b)(3) Class Defendants argue that certification of an Rule 23(b)(3) class would be
inappropriate, raising the same issues of law and fact named in their challenge to commonality under Rule 23(a)(2). 127 Although predominance is a "more
127 See Def. Mem. at 21-25.
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demanding criterion than ... commonality,"128 the shared issues of law and fact laid out in the discussion of commonality are also sufficient to demonstrate predominance. As set forth above, there are many legal and factual issues common to all class members. Although factual distinctions exist among potential class members, the parade of mini-trials predicted by defendants will not be necessary to manage a (b)(3) class. Rather, necessary distinctions have been drawn through the certification of subclasses. The fact that some subclasses may prevail on more claims than others "does nothing to alter the fundamental cohesion of the proposed class, which is the central concern of the predominance requirement."129 The Second Circuit recently held in a similar Fourth Amendment class action that, "[i]n light of the pervasive character of the common liability issues and the admitted de minimis nature of individualized liability issues," a district court had abused its discretion by finding that individual issues predominated. 130 This Court will not repeat that mistake.
128 In re Nassau County Strip Search Cases, 461 F.3d at 225. 129 /d. at 229. 130 !d. Accord In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 146 (holding that where plaintiffs are "aggrieved by a single policy of the defendants," the action "presents precisely the type of situation for which the class action device is suited").
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Moreover, class litigation is undoubtedly the superior, economical method of adjudication. Class members have demonstrated no interest in individually controlling the prosecution of separate actions, and no parallel litigation has commenced. There is no difficulty litigating this case in this particular forum, and although there may be some difficulty locating all absent class members, such management issues are insufficient to preclude class certification. Moreover, it is likely that many individuals previously arrested or prosecuted under sections 240.35(3) and 240.35(7) are unaware that the provisions were unconstitutional and may have accepted plea bargains to terminate criminal proceedings as quickly as possible. 131 Perhaps most importantly, insofar as Casale and Garcia are representative of the class of individuals charged with violations of sections 240.35(3) and 240.35(7), their economic disadvantage renders it improbable that large numbers of class members are capable of litigating
131 This common sense observation is not mere speculation. See, e.g., Daniel Givelber, Punishing Protestations ofInnocence: Denying Responsibility and Its Consequences, 37 Am. Crim. L. Rev. 1363, 1395 (2000) ("Available data confirms the common sense proposition that not all guilty pleas are accurate."); John L. Barkai, Accuracy Inquiries for All Felony and Misdemeanor Pleas: Voluntary Pleas but Innocent Defendants?, 126 U. Pa. L. Rev. 88, 96 (1977) (questioning whether guilty pleas are confined to guilty defendants).
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Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 43 of 44
individually. 132 IV. CONCLUSION
For the foregoing reasons, plaintiffs' motion for class certification is granted. Specifically, pursuant to Federal Rule of Civil Procedure 23(b)(2), a class is certified consisting of all persons who have been or will be arrested, charged, or prosecuted for a violation of section 240.35(3) or 240.35(7) in New York City after those statutes were declared unconstitutional. Pursuant to Rule 23(b)(3), a class is certified consisting of all persons who have been arrested, charged, or prosecuted for a violation of either section 240.35(3) or 240.35(7) in New York City within the applicable statute of limitations. For the purpose of case management, the following subclasses are established pursuant to Rule 23(d) to address potential defenses: 1. All individuals arrested, or prosecuted by a DAO, charged solely for
violating N.Y. Penal Law§ 240.35(3) or§ 240.35(7), and not charged with other criminal offenses arising out of the same incident.
132 Insofar as section 240.35(3) has been used to harass gay men seeking to engage in consensual sexual activity, see William N. Eskridge, Jr., Challenging the Apartheid ofthe Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship, 1961-1981,25 Hofstra L. Rev. 817, 860-61 (1997) (citing N.Y. Penal L. § 240.35(3)), it is likely that some potential plaintiffs would not choose to come forward individually to publicly challenge past prosecution. This does not lessen the gravity of their claims.
43

Case 1:08-cv-02173-SAS Document 26 Filed 06/01/09 Page 44 of 44

2. All individuals arrested, or prosecuted by a DAO, charged for violating

N.Y. Penal Law § 240.35(3) or§ 240.35(7), and also charged with other

criminal offenses arising out of the same incident.

3. All individuals issued summonses, charged solely for violating N.Y. Penal

Law§ 240.35(3) or§ 240.35(7), and not charged with other criminal

offenses arising out of the same incident.

4.

All individuals issued summonses, charged for violating N.Y. Penal

Law§ 240.35(3) or§ 240.35(7), and also charged with other criminal

offenses arising out of the same incident.

The Clerk of the Court is directed to close this motion (Docket Number 16).

Dated:

New York, New York June 1, 2009

44

 
 Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 1 of 17
CLOSED,CASREF,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:08−cv−02173−SAS

Casale et al v. Kelly et al Assigned to: Judge Shira A. Scheindlin Referred to: Magistrate Judge Theodore H. Katz (Settlement) Demand: $9,999,000 Related Case: 1:05−cv−05442−SAS Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 03/04/2008 Date Terminated: 01/03/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Paul Casale on behalf of Themselves and Others Simarly Situated

represented by Debra Lea Greenberger Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 (212)−763−5000 Fax: (212)−763−5001 Email: dgreenberger@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Earl S Ward Earl S. Ward, Attorney at Law 75 Rockefeller Plaza 20th Flr. New York, NY 10019 (212)763−5000 Fax: (212)763−5001 Email: eward@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

J. McGregor Smyth , Jr New Yorl Lawyers for the Public Interest 151 West 30th Street, 11th Floor New York, NY 10001 212−244−4664 Fax: 212−244−4570 Email: msmyth@nylpi.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Katherine R. Rosenfeld Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5010 Fax: 212−763−5001 Email: krosenfeld@ecbalaw.com TERMINATED: 08/28/2014 LEAD ATTORNEY

Matthew D. Brinckerhoff Emery Celli Brinckerhoff &Abady, LLP 600 Fifth Avenue 10th Floor New York, NY 10020 212−763−5000 Fax: 212−763−5001 Email: mbrinckerhoff@ecbalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 2 of 17

Plaintiff
Anthony Garcia on behalf of Themselves and Others Simarly Situated

Mariana Louise Kovel The Bronx Defenders 860 Courtlandt Ave Bronx, NY 10451 (718)−508−3421 Fax: (718)−508−3542 Email: mollyk@bronxdefenders.org ATTORNEY TO BE NOTICED
represented by Earl S Ward (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Katherine R. Rosenfeld (See above for address) TERMINATED: 08/28/2014 LEAD ATTORNEY
Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mariana Louise Kovel (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Raymond W. Kelly Commissioner of the New York City Police Department (NYPD)
Defendant John Does 1−50 NYPD Supervisory, Training and Policy Personal Defendant City of New York
Defendant

represented by Rachel Amy Seligman New York City Law Department 100 Church Street, Room 4−114 New York, NY 10007 (212) 788−0784 Fax: (212) 788−9776 Email: rseligma@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 3 of 17
Jane Does 1−50 NYPD Supervisory, Training and Policy Personnel
Defendant John Does 51−100 NYPD Police Officers
Defendant Jane Does 51−100 NYPD Police Officers

Date Filed 03/04/2008 03/04/2008 03/04/2008 03/04/2008 03/11/2008 03/11/2008 03/11/2008 03/19/2008 03/19/2008 03/19/2008 04/04/2008
04/24/2008

# Docket Text
1 COMPLAINT against Raymond W. Kelly, John Does 1−50, City of New York, Jane Does 1−50, John Does 51−100, Jane Does 51−100. (Filing Fee $ 350.00, Receipt Number 643766)Document filed by Paul Casale, Anthony Garcia.(rdz) (Entered: 03/06/2008)
SUMMONS ISSUED as to Raymond W. Kelly, John Does 1−50, City of New York, Jane Does 1−50, John Does 51−100, Jane Does 51−100. (rdz) (Entered: 03/06/2008)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly Related to 08−cv−5442. (rdz) (Entered: 03/06/2008)
Case Designated ECF. (rdz) (Entered: 03/06/2008)
CASE ACCEPTED AS RELATED. Create association to 1:05−cv−05442−SAS−THK. Notice of Assignment to follow. (rdz) (Entered: 03/12/2008)
2 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. (rdz) (Entered: 03/12/2008)
Magistrate Judge Theodore H. Katz is so designated. (rdz) (Entered: 03/12/2008)
3 AFFIDAVIT OF SERVICE of Summons and Complaint. City of New York served on 3/13/2008, answer due 4/2/2008. Service was accepted by Madelyn Santana, Authorized to Accept. Document filed by Paul Casale; Anthony Garcia. (Rosenfeld, Katherine) (Entered: 03/19/2008)
4 AFFIDAVIT OF SERVICE of Summons and Complaint. Raymond W. Kelly served on 3/13/2008, answer due 4/2/2008. Service was accepted by Madelyn Santana, co−worker of the defendant. Document filed by Paul Casale; Anthony Garcia. (Rosenfeld, Katherine) (Entered: 03/19/2008)
5 ORDER RE SCHEDULING AND INITIAL PRETRIAL CONFERENCE: Initial Conference set for 4/11/2008 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 3/19/2008) (jpo) (Entered: 03/20/2008)
6 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 4/2/2008 re: Requesting an enlargement of time to answer or otherwise respond to plaintiffs complaint and requesting an adjournment of the initial pre−trial conference scheduled for April 11, 2008. ENDORSEMENT: Defendants request for an enlargement of time from April 2, 2008 to June 2, 2008 to move or answer plaintiffs complaint is granted pending the initial conference. Defendants request for an adjournment of the initial pretrial conference is denied. The parties must appear at the conference previously scheduled for April 11, 2008 at 3:30 p.m. (Signed by Judge Shira A. Scheindlin on 4/4/2008) (jpo) (Entered: 04/04/2008)
7 UNSEALING ORDER: It is hereby ordered that the Bronx County District Attorney's Office, the Kings County District Attorney's Office, the Queens County District Attorney's Office and the New York City Police Department provide

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04/24/2008 05/02/2008
06/02/2008 06/11/2008 08/07/2008 10/21/2008

Michael A. Cardozo, Corporation Counsel of he City of New York, or his authorized representative, records of any criminal actions pertaining to individuals who were arrested, summonsed, and/or charged with N.Y.P.L. 240.35(3) from February 23, 1983 until today, the date of this Order and/or N.Y.P.L. 240.35(7) from February 1988 until today, the date of this Order, as set forth herein. (Signed by Judge Shira A. Scheindlin on 4/24/2008) (jpo) (Entered: 04/25/2008)
8 STIPULATION AND PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Shira A. Scheindlin on 4/24/2008) (jpo) (Entered: 04/25/2008)
9 STIPULATION AND ORDER: The City Defendants' position that their current policy prohibits enforcement of New York Penal Law 240.35(3) and New York Penal Law 240.35(7). The City defendants agree to abide by and reinforce this policy. On April 21, 2008, the City defendants sent a FINEST notice to all NYPD precincts and commands to be read at ten (10) consecutive roll calls reminding them that New York Penal Law 240.35(3) and New York Penal Law 240.(7) are unconstitutional, and directing members of the service not to enforce these subsections. A copy of this FINEST notice is attached as Exhibits A. The City Defendants shall send notification to the District Attorneys of Bronx, Queens, New York, Richmond and King Counties stating that New York Penal Law 240.35(3) and New York Penal Law 240.35(7) are unconstitutional and unenforceable. The City defendants shall send notification to Judge Juanita Bing Newton, Administrative Judge, Criminal Court, New York City, stating that New York Penal Law 240.35(3) and New York Penal Law 240.35(7) are unconstitutional, and requesting that appropriate notice be disseminated throughout the court system. While this litigation is pending, the City of New York shall produce to plaintiffs on a monthly basis a report on all summonses issued from the date of the filing of the Complaint in this matter, March 4, 2008, for violations of the New York Penal Law 240.35(3) and New York Penal Law 240.(7), subject to an appropriate protective order agreed upon by the parties. (Signed by Judge Shira A. Scheindlin on 5/2/2008) (jpo) (Entered: 05/05/2008)
10 ANSWER to Complaint with JURY DEMAND. Document filed by Raymond W. Kelly, City of New York.(Seligman, Rachel) (Entered: 06/02/2008)
11 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 6/11/2008 re: Requesting a pre−motion conference. ENDORSEMENT: Plaintiffs request for a pre−motion conference is granted. A conference before the Court is scheduled for Tuesday, June 17, 2008 at 4:30 p.m. (Signed by Judge Shira A. Scheindlin on 6/10/2008) (jpo) (Entered: 06/12/2008)
12 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 8/6/2008 re: Counsel request that the following briefing schedule for the class certification be set as followed: Plaintiff's time to move for class certification to October 17, 2008. Defendant's opposition to until November 25, 2008. Plaintiff's reply on December 12, 2008. ENDORSEMENT: The following motion schedule is acceptable to the Court. Moving papers on the class certification: October 17, Response papers Nov. 25, Reply papers Dec. 12. So Ordered. (Signed by Judge Shira A. Scheindlin on 8/6/2008) (jfe) (Entered: 08/07/2008)
13 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 10/17/08 re: Counsel for Plaintiffs request that the Court (1) direct defendants to meaningfully respond to plaintiffs' months old request for feedback concerning plaintiffs' proposed stipulation and protective order governing how the parties handle the arrest and summons information obtained from the Office of Court Administration; and (2) amend the current briefing schedule so that plaintiffs' motion for class certification is served six weeks after the parties receive the data from OCA, defendants' opposition is due four weeks later, and plaintiffs' reply is due two weeks after that. ENDORSEMENT: Plaintiffs request is hereby granted. Plaintiffs motion for class certification will be due on December 8, 2008. Defendants' reply will be due on January 12, 2009. Plaintiffs' reply will be due on January 26, 2009. (Signed by Judge Shira A. Scheindlin on 10/21/08) (tro) Modified on 1/16/2009 (rw). (Entered: 10/22/2008)

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10/29/2008 10/29/2008 12/08/2008 12/08/2008 12/08/2008 01/12/2009 01/12/2009 01/26/2009 01/26/2009 04/28/2009
05/07/2009
05/26/2009 06/01/2009

14 MEMO ENDORSEMENT ON SUBPOENA IN A CIVIL CASE, To: NYS Office of Court Administration, re documents or objects described in the Subpoena Rider annexed hereto as Exhibit A, at the offices of The Bronx Defenders, 860 Courtlandt Avenue, Bronx, NY 10451: So ordered. (Signed by Judge Shira A. Scheindlin on 10/29/08) (cd) (Entered: 10/29/2008)
15 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) (cd) (Entered: 10/29/2008)
16 MOTION to Certify Class. Document filed by Paul Casale.(Greenberger, Debra) (Entered: 12/08/2008)
17 MEMORANDUM OF LAW in Support re: 16 MOTION to Certify Class.. Document filed by Paul Casale. (Greenberger, Debra) (Entered: 12/08/2008)
18 DECLARATION of J. McGregor Smyth in Support re: 16 MOTION to Certify Class.. Document filed by Paul Casale. (Greenberger, Debra) (Entered: 12/08/2008)
19 DECLARATION of Rachel Seligman Weiss in Opposition re: 16 MOTION to Certify Class.. Document filed by Raymond W. Kelly, City of New York. (Attachments: # 1 Exhibit A through G)(Seligman, Rachel) (Entered: 01/12/2009)
20 MEMORANDUM OF LAW in Opposition re: 16 MOTION to Certify Class.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 01/12/2009)
21 REPLY MEMORANDUM OF LAW in Support re: 16 MOTION to Certify Class.. Document filed by Paul Casale. (Greenberger, Debra) (Entered: 01/26/2009)
22 DECLARATION of Debra L. Greenberger in Support re: 16 MOTION to Certify Class.. Document filed by Paul Casale. (Attachments: # 1 Exhibit A: Excerpts of Casale Deposition, # 2 Exhibit B: Excerpts of Garcia Deposition)(Greenberger, Debra) (Entered: 01/26/2009)
23 OPINION AND ORDER re:# 97458 16 MOTION to Certify Class filed by Paul Casale. For the reasons set forth herein, plaintiffs' motion for class certification is granted. Specifically, pursuant to F.R.C.P. 23(b)(2), a class certified consisting of all persons who have been or will be arrested, charged, or prosecuted for a violation of section 240.35(3) or 240.35(7) in New York City after those statutes were declared unconstitutional. Pursuant to Rule 23(b)(3), a class certified consisting of all person who have been arrested, charged or prosecuted for a violation of either section 240.35(3) or 240.35(7) in New York City within the applicable stature of limitations. For the purpose of case management, subclasses are certified to address potential defenses applicable only to plaintiffs who were never prosecuted and to those charged with additional crimes at the time they were charged with a violation of section 240.35(3) or 240.35(7). The Clerk of the Court is directed to close this motion (Docket Number 16). A conference is scheduled for May 6, 2009, at 3:30 p.m. (Signed by Judge Shira A. Scheindlin on 4/28/09) (tro) Modified on 4/30/2009 (jab). (Entered: 04/29/2009)
24 SCHEDULING ORDER: A schedule for the production of documents or in accordance with Rule 34 July 6, 2009. December 15, 2009 − expert reports exchanged; January 15, 2010 − rebuttal and depositions completed by February 15, 2010. Fact discovery to be completed by December 1, 2009. Final pre−trial conference pursuant to F.R.C.P. 16(d) will be held on December 9, 2009 at 4:30 p.m. Anticipated length of trial is 3 weeks. This case is to be tried by a jury. (Signed by Judge Shira A. Scheindlin on 5/6/2009) (jfe) (Entered: 05/07/2009)
25 ORDER; For the reasons stated on the record at the conference held in the above−captioned case on 5/26/09, this Court's opinion of 4/28/09 is hereby withdrawn. (Signed by Judge Shira A. Scheindlin on 5/26/09) (tro) Modified on 6/3/2009 (jab). (Entered: 05/27/2009)
26 AMENDED OPINION AND ORDER # 97458; granting in full re: 16 MOTION to Certify Class, filed by Paul Casale. (Signed by Judge Shira A. Scheindlin on 6/1/09) (ae) (Entered: 06/19/2009)

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06/25/2009 06/26/2009 06/26/2009
06/26/2009 06/29/2009
06/29/2009
06/29/2009
06/30/2009 06/30/2009 06/30/2009 06/30/2009 10/21/2009 12/08/2009 12/22/2009

27 MANDATE of USCA (Certified Copy) USCA Case Number 09−2065−mv. IT IS HEREBY ORDERED that the motion to withdraw the petition pursuant to 23(f) for permission to appeal, filed on May 15, 2009, is GRANTED. Catherine O'Hagan Wolfe, Clerk USCA. Issued As Mandate: 6/24/2009. (nd) (Entered: 06/25/2009)
28 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009. Document filed by Raymond W. Kelly, City of New York.(Seligman, Rachel) Modified on 6/29/2009 (kco). (Entered: 06/26/2009)
29 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Rachel Seligman Weiss in Support re: 28 MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) Modified on 6/29/2009 (kco). (Entered: 06/26/2009)
30 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − NOTICE of Motion. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) Modified on 6/29/2009 (kco). (Entered: 06/26/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Rachel Seligman to RE−FILE Document 30 Notice (Other), 28 MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009. Use the event type MOTION TO REOPEN found under the event list MOTIONS. ***PLEASE FILE THIS DOCUMENT AS A MOTION FIRST*** (kco) (Entered: 06/29/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Rachel Seligman to RE−FILE Document 28 MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009. Use the event type MEMORANDUM OF LAW IN SUPPORT found under the event list REPLIES, OPPOSITIONS AND SUPPORTING DOCUMENTS. ***LINK THIS DOCUMENT TO THE CORRECTLY RE−FILED MOTION TO REOPEN*** (kco) (Entered: 06/29/2009)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Rachel Seligman to RE−FILE Document 29 Declaration in Support of Motion, ERROR(S): FILINGS CANNOT BE LINKED TO DEFICIENT DOCKET ENTRIES. ***PLEASE RE−FILE THIS DOCUMENT AND LINK IT TO THE CORRECTLY RE−FILED MOTION TO REOPEN*** (kco) (Entered: 06/29/2009)
31 MEMORANDUM OF LAW in Support re: 28 MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 06/30/2009)
32 DECLARATION of Rachel Seligman Weiss in Support re: 28 MOTION to Reopen Time to Appeal the Amended Order and Opinion dated June 1, 2009.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 06/30/2009)
33 ORDER: Therefore, the period during which defendants may file a petition for leave to appeal the Order is hereby reopened for a period of ten days. (Signed by Judge Shira A. Scheindlin on 6/29/2009) (jpo) (Entered: 06/30/2009)
34 TRANSCRIPT of proceedings held on May 6, 2009 before Judge Shira A. Scheindlin. (djc) (Entered: 07/01/2009)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Discovery Hearing held on 10/21/2009. (mro) (Entered: 10/23/2009)
35 TRANSCRIPT of proceedings held on November 9, 2009 before Judge Shira A. Scheindlin. (mro) (Entered: 12/09/2009)
40 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 12/22/09 re: Request by plaintiff to file a brief of not more than 40 pages in length. ENDORSEMENT: Parties to every case think that the issues presented in their case are unique. If that were true, rules would be irrelevant.

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12/23/2009 12/23/2009 12/23/2009 12/23/2009
01/04/2010 02/08/2010
02/08/2010 02/08/2010 02/08/2010 02/09/2010
02/11/2010

There is no basis to grant plaintiffs' substantial page−limit extension request. Each side may file briefs of no more than 33 pages. So ordered. (Signed by Judge Shira A. Scheindlin on 12/22/09) (cd) (Entered: 12/28/2009)
36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions. Document filed by Paul Casale, Anthony Garcia.(Rosenfeld, Katherine) (Entered: 12/23/2009)
37 MEMORANDUM OF LAW in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale, Anthony Garcia. (Rosenfeld, Katherine) (Entered: 12/23/2009)
38 DECLARATION of J. McGregor Smyth in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale, Anthony Garcia. (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)(Rosenfeld, Katherine) (Entered: 12/23/2009)
39 DECLARATION of Katherine Rosenfeld in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale, Anthony Garcia. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Errata 7, # 8 Exhibit 8, Part 1, # 9 Exhibit 8, Part 2, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15)(Rosenfeld, Katherine) (Entered: 12/23/2009)
41 TRANSCRIPT of proceedings held on December 9, 2009 4:47 p.m. before Judge Shira A. Scheindlin. (ajc) (Entered: 01/04/2010)
42 ENDORSED LETTER addressed to Judge Shira A.Scheindlin from Rachedl Seligman dated 2/8/10 re: Request for a 3 day extension of time from 2/8/10 until 2/11/10 for defendants to file their opposition to plaintiff's motion for contempt. ENDORSEMENT: Request DENIED. Six weeks is more than enough time to respond. And asking for an adjournment on the day a submission is due is unprofessional. The City's response is due by 11:59 pm−on 2/8/10. Any later submission will be rejected and not considered. (Signed by Judge Shira A. Scheindlin on 2/8/10) (cd) (Entered: 02/08/2010)
43 DECLARATION of Rosemary Debellis, Esq. in Opposition re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Raymond W. Kelly, City of New York. (Attachments: # 1 Exhibit Exhibit F, # 2 Exhibit G through O, # 3 Exhibit P through W)(Seligman, Rachel) (Entered: 02/08/2010)
44 DECLARATION of Rachel Seligman Weiss in Opposition re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Raymond W. Kelly, City of New York. (Attachments: # 1 Exhibit A through G, # 2 Exhibit H through L, # 3 Exhibit M through O)(Seligman, Rachel) (Entered: 02/08/2010)
45 MEMORANDUM OF LAW in Opposition re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 02/08/2010)
46 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman−Weiss dated 2/8/2010 re: ACC writes requesting permission for leave to file a declaration in opposition to plaintiff's motion for contempt, a preliminary injunction, and discovery sanctions which exceeds 10 pages in length and 15 exhibits. ENDORSEMENT: Defendant's request to file an oversize declaration is hereby granted. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 2/9/2010) (tve) (Entered: 02/09/2010)
47 ENDORSED LETTER: addressed to Judge SHira A. Scheindlin from Rachel Seligman dated 2/11/2010 re: Defendants request leave to file the attached redated Exhibit E as a substitute for the Original Exhibit E with to the Declaration of Rachel Seligman Weiss. ENDORSEMENT: Defendants' request to submit a substitute, redacted version of Exhibit E to the Declaration of Rachel Seligman

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02/22/2010 02/22/2010 02/22/2010 04/13/2010 04/13/2010 04/23/2010 04/23/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010 04/26/2010
04/27/2010

Weiss (filed February 8, 2010) is hereby granted. The Clerk of the Court is directed to replace the current, unredacted Exhibit E with redacted version to be submitted by defendants. So Ordered. (Signed by Judge Shira A. Scheindlin on 2/11/2010) (js) (Entered: 02/16/2010)
48 REPLY AFFIRMATION of Katherine Rosenfeld, Esq. in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale. (Attachments: # 1 Exhibit Exhibit I, # 2 Exhibit Exhibit J, # 3 Exhibit Exhibit K)(Rosenfeld, Katherine) (Entered: 02/22/2010)
49 REPLY MEMORANDUM OF LAW in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale. (Rosenfeld, Katherine) (Entered: 02/22/2010)
50 REPLY AFFIRMATION of J. McGregor Smyth in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale. (Attachments: # 1 Exhibit A)(Rosenfeld, Katherine) (Entered: 02/22/2010)
51 DECLARATION of Katherine Rosenfeld in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale. (Rosenfeld, Katherine) (Entered: 04/13/2010)
52 DECLARATION of Rosemary Debellis in Opposition re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 04/13/2010)
53 DECLARATION of J. McGregor Smyth Jr. in Support re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Paul Casale. (Smyth, J.) (Entered: 04/23/2010)
54 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT (LETTER) − RESPONSE to Motion re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions. Requested by Court. Document filed by City of New York. (Donahue, Linda) Modified on 4/26/2010 (jar). (Entered: 04/23/2010)
55 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT (LETTER) − RESPONSE in Opposition re: 36 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions. Requested by Court. Document filed by City of New York. (Donahue, Linda) Modified on 4/26/2010 (jar). (Entered: 04/26/2010)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 54 HAS BEEN REJECTED. Note to Attorney Linda Donahue : 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: 04/26/2010)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 55 HAS BEEN REJECTED. Note to Attorney Linda Donahue : 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: 04/26/2010)
Set/Reset Hearings: Status Conference set for 5/12/2010 at 02:30 PM before Judge Shira A. Scheindlin. (jfe) (Entered: 04/26/2010)
56 OPINION AND ORDER: #98878 For the reasons set forth above, plaintiffs' motion for contempt and discovery sanctions is granted. Plaintiffs' motion for a preliminary injunction is denied without prejudice. Plaintiffs are directed to submit a fee application by May 14, 2010. The Clerk of the Court is directed to close this motion (document number 36). A conference is scheduled for May 12, 2010 at 2:30 p.m. (Signed by Judge Shira A. Scheindlin on 4/26/2010) (jfe) Modified on 4/26/2010 (jfe). Modified on 4/28/2010 (ajc). (Entered: 04/26/2010)
57 ENDORSED LETTER: addressed to Judge Shira A. Scheindlin from Linda Donahue dated 4/23/2010 re: Defendants submit the below response to Your

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 9 of 17

04/27/2010
05/10/2010 05/10/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/21/2010 05/21/2010 05/21/2010 05/22/2010

Honor's questions of April 22, 2010. In the course of responding to Your Honor's questions a concern arose that the defendants may not have accounted for certain summonses for which OCA had provided hard copies but which did not appear in NYPD's database. While none of these summonses issued in the last six months, defendants request until 5:00 pm Monday to ascertain how this review impacts on defendants' calculations of summonses. We note that defendants had produced these summonses to plaintiffs in November 2009. ENDORSEMENT: The Clerk of Court is directed to docket this order. So Ordered. (Signed by Judge Shira A. Scheindlin on 4/26/2010) (js) (Entered: 04/27/2010)
58 ENDORSED LETTER: addressed to Judge Shira A. Scheindlin from Linda Donahue dated 4/26/2010. re: Pursuant to permission from the Court, defendants submit the below revision to defendants' April 23, 2010 responses to Your Honor's questions of April 22, 2010, which questions are reproduced below. These revisions include calculations for the last six months measured from September 2009−February 2010, per the Court's request of April 23, 2010, as well as additional summonses. ENDORSEMENT: The Clerk of Court is directed to docket this letter. So Ordered. (Signed by Judge Shira A. Scheindlin on 4/26/2010) (js) Modified on 4/27/2010 (js). (Entered: 04/27/2010)
59 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU (Memorandum of Law) − MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order. Document filed by Raymond W. Kelly, City of New York.(Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/10/2010)
60 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Rachel Seligman Weiss in Support re: 59 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/10/2010)
61 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU (Motion for Reconsideration) − NOTICE of Motion for Reconsideration. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/11/2010)
62 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order. Document filed by Raymond W. Kelly, City of New York.(Seligman, Rachel) (Entered: 05/11/2010)
63 MEMORANDUM OF LAW in Support re: 62 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 05/11/2010)
64 DECLARATION of Rachel Seligman Weiss in Support re: 62 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order.. Document filed by Raymond W. Kelly, City of New York. (Seligman, Rachel) (Entered: 05/11/2010)
65 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10. Document filed by Paul Casale.(Smyth, J.) (Entered: 05/21/2010)
66 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU − MOTION for Attorney Fees pursuant to Court's Order of 4/26/10. Document filed by Paul Casale. (Attachments: # 1 Exhibit Ex. A−C)(Smyth, J.) Modified on 5/24/2010 (db). (Entered: 05/21/2010)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney J. McGregor Smyth to RE−FILE Document 66 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10. Use the event type Declaration in Support of Motion found under the event list Replies, Opposition and Supporting Documents. (db) (Entered: 05/24/2010)
67 DECLARATION of J. McGregor Smyth Jr. in Support re: 65 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10.. Document filed by Paul Casale. (Attachments: # 1 Exhibit Ex. A−C)(Smyth, J.) (Entered: 05/22/2010)

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 10 of 17

05/22/2010 05/22/2010 05/22/2010 06/02/2010 06/03/2010
06/03/2010 07/01/2010 07/06/2010
09/30/2010 10/12/2010
10/22/2010 10/27/2010

68 DECLARATION of Matthew Brinckerhoff in Support re: 65 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10.. Document filed by Paul Casale. (Smyth, J.) (Entered: 05/22/2010)
69 DECLARATION of Katherine Rosenfeld in Support re: 65 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10.. Document filed by Paul Casale. (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)(Smyth, J.) (Entered: 05/22/2010)
70 MEMORANDUM OF LAW in Support re: 65 MOTION for Attorney Fees pursuant to Court's Order of 4/26/10.. Document filed by Paul Casale. (Smyth, J.) (Entered: 05/22/2010)
73 TRANSCRIPT of proceedings held on 5/12/2010 before Judge Shira A. Scheindlin. (tro) (Entered: 06/04/2010)
71 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 6/3/2010 re: Defendants request that their submissions of an opposition to plaintiffs' motion be held in abeyance pending the parties negotiations. ENDORSEMENT: Defendants' request is granted. The parties shall report to the Court. In June 11, 2010 regarding their fee negotiations. No further extensions will be given unless plaintiffs withdraw their motion. (Signed by Judge Shira A. Scheindlin on 6/3/2010) (jpo) (Entered: 06/03/2010)
***DELETED DOCUMENT. Deleted document number 72 ENDORSED LETTER. The document was duplicated in this case. (jfe) (Entered: 06/08/2010)
74 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 Theodore H. Katz. ENDORSEMENT: September would be best. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/29/2010) (tve) (Entered: 07/01/2010)
75 STIPULATION AND SETTLEMENT OF ATTORNEYS' FEES. Defendant City of New York shall pay to plaintiffs' counsel Emery Celli Brinckerhoff &Abady LLP the sum total of One Hundred and Seventy−Five Thousand Dollars ($175,000.00) for work conducted by ECBA and The Bronx Defenders in this action in connection with plaintiffs' motion for contempt, a preliminary injunction and discovery sanctions dated December 23, 2009. This payment shall be in full satisfaction of all claims by ECBA, The Bronx Defenders, and/or plaintiffs for attorneys' fees, costs and/or expenses accrued in connection with plaintiffs' motion for contempt, a preliminary injunction and discovery sanctions dated December 23, 2009, as reflected in plaintiffs' attorneys' timesheets submitted as exhibits to plaintiffs' motion for attorneys' fees dated May 21, 2010. In the event of any future award of attorneys' fees and costs in this action, plaintiffs' counsel and/or plaintiffs will not seek any additional compensation for attorneys' fees, costs and/or expenses accrued in connection with plaintiffs' motion for contempt, a preliminary injunction and discovery sanctions dated December 23, 2009. Relates to 08−2173, 05−5442. (Signed by Judge Shira A. Scheindlin on 7/6/10) (rjm) (Entered: 07/06/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 9/30/2010. (mro) (Entered: 10/01/2010)
76 ORDER denying 62 Motion for Reconsideration ; denying 65 Motion for Attorney Fees. For all of the reasons stated on the record at the May 12, 2010 conference, defendants' motion for reconsideration of the April 26, 2010 Opinion and Order is denied, except that the orders stated in footnote 59 of that opinion are vacated due to an agreement between parties. Plaintiffs' motion for attorney fees is denied as moot. The parties settled this issue. The Clerk of Court is directed to close these motions (Docket Entries ## 62 and 65). SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/8/2010) (jmi) (Entered: 10/12/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Initial Pretrial Conference held on 10/22/2010. (mbe) (Entered: 10/25/2010)
77 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 10/19/2010 re: Defendants respectfully request that the

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 11 of 17

11/16/2010
11/18/2010 12/07/2010 12/13/2010 12/15/2010 01/10/2011 04/06/2011 04/13/2011 04/13/2011

Court schedule a pre−motion conference to address vacating the contempt order of 4/26/2010 or in the alternative, extending the 6 month grace period for an additional 6 months or until the cases are closed. Defendants respectfully urge the Court to lift a sanction that would, at this point have only a punitive rather than a corrective effect. ENDORSEMENT: Request granted in part. The six − month grace period of the Court's contempt order is hereby extended for an additional six months through April 26, 2011. So Ordered. (Signed by Judge Shira A. Scheindlin on 10/27/2010) (jfe) (Entered: 10/27/2010)
78 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld, dated 11/12/2010, re: This office represents the plaintiffs in the above−captioned actions. On behalf all parties, we write to jointly request that the Court extend the fact discovery deadline in this case beyond the current deadline of November 30, 2010. The reason for this request is that ongoing settlement discussions could obviate the need for additional fact discovery, and in particular for the depositions of several New York City Police Department ("NYPD") supervisory officials who were noticed for their depositions in August 2010. Therefore, the parties wish to exhaust settlement discussions before completing the final segment of fact discovery relating to municipal liability under Monell v. Department of Soc. Services., 436 U.S. 658 (1978), including the depositions of the witnesses listed herein. The parties respectfully request that we be permitted to update the Court at the next scheduled conference before Your Honor on December 15,2010 at 4:30 pm regarding (1) the status of settlement; and (2) the proposed final date for the completion of fact discovery. ENDORSEMENT: The parties request for an adjournment of the fact discovery deadline, currently set for 11/13/2010, is hereby granted. A final end date will be determined at the conference, scheduled for 12/15/10 at 4:30 pm. (Status Conference set for 12/15/2010 at 04:30 PM before Judge Shira A. Scheindlin) (Signed by Judge Shira A. Scheindlin on 11/15/2010) (lnl) (Entered: 11/16/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 11/18/2010. (mro) (Entered: 11/23/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 12/7/2010. (mbe) (Entered: 12/13/2010)
79 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld, dated 12/13/2010, re: On behalf of all parties, counsel writes to jointly request that the Court adjourn the status conference before Your Honor on Wednesday, December 15th at 4:30pm. ENDORSEMENT: Conference adjourned to January 18 at 4:30. So Ordered. (Status Conference set for 1/18/2011 at 04:30 PM before Judge Shira A. Scheindlin) (Signed by Judge Shira A. Scheindlin on 12/13/2010) (lnl) (Entered: 12/13/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 12/15/2010. (mro) (Entered: 12/21/2010)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 1/10/2011. (mro) (Entered: 01/13/2011)
80 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld, dated 4/6/2011, re: Counsel for the plaintiffs write on behalf of all parties to request a brief adjournment of the conference scheduled before Your Honor on April 13, 2011. ENDORSEMENT: Plaintiffs' request is granted. The conference is adjourned to April 22, 2011 at 4:30 pm. SO ORDERED. (Status Conference set for 4/22/2011 at 04:30 PM before Judge Shira A. Scheindlin) (Signed by Judge Shira A. Scheindlin on 4/6/2011) (lnl) (Entered: 04/07/2011)
81 MANDATE of USCA (Certified Copy) USCA Case Number 09−2883−mv. Petitioners, through counsel, move, pursuant to FRCP 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: 01/06/2011. (nd) (Entered: 04/13/2011)
Transmission of USCA Mandate/Order to the District Judge re: 81 USCA Mandate,. (nd) (Entered: 04/13/2011)

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 12 of 17

04/20/2011 04/21/2011
04/22/2011
05/13/2011 05/31/2011
05/31/2011 06/13/2011
06/20/2011 07/13/2011 07/20/2011 07/26/2011
07/27/2011 08/30/2011 09/08/2011 10/31/2011

Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 4/20/2011. (mbe) (Entered: 04/26/2011)
82 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel S. Weiss dated 4/21/2011 re: defendants request that the grace period (see order) be extended for an additional six months while the parties make effort to conclude settlement negotiations. ENDORSEMENT: The "grace period" is extended for three (3) months − until 7/29/2011. (Signed by Judge Shira A. Scheindlin on 4/21/2011) (jar) (Entered: 04/21/2011)
83 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 4/22/2011 re: Requesting an adjournment of the status conferenfence presently scheduled for today at 4:30 pm. ENDORSEMENT: Defendants' request to adjourn the status conference is granted and rescheduled to May 31st, 2011 at 4:30 pm. (Signed by Judge Shira A. Scheindlin on 4/22/2011) (jpo) (Entered: 04/22/2011)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 5/13/2011. (eef) (Entered: 05/16/2011)
84 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Katherine Rosenfeld, dated 5/27/2011, re: Counsel writes to request one additional conference with the Court in mid−June to provide a useful opportunity to address any final outstanding issues. ENDORSEMENT: The next settlement conference will take place on June 14, 2011 at 10:00 AM. SO ORDERED. (Settlement Conference set for 6/14/2011 at 10:00 AM before Magistrate Judge Theodore H. Katz) (Signed by Magistrate Judge Theodore H. Katz on 5/31/2011) (lnl) (Entered: 05/31/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 5/31/2011. (mbe) (Entered: 06/06/2011)
85 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Rachel Seligman Weiss dated 6/13/11 re: Defendants request an adjournment of the settlement conference currently scheduled for 6/14/11. ENDORSEMENT: The conference is adjourned to Monday, June 20, 2011 at 2:00 P.M. (Settlement Conference set for 6/20/2011 at 02:00 PM before Magistrate Judge Theodore H. Katz.) (Signed by Magistrate Judge Theodore H. Katz on 6/13/2011) (tro) (Entered: 06/13/2011)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 6/20/2011. (eef) (Entered: 06/22/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/13/2011. (lmb) (Entered: 07/19/2011)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 7/20/2011. (eef) (Entered: 07/21/2011)
86 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 7/25/11 re: Request that the Court extend the grace period for an additional three months. ENDORSEMENT: Request granted. On plaintiffs' consent, the grace period is hereby extended until 10/28/11. (Signed by Judge Shira A. Scheindlin on 7/25/11) (cd) (Entered: 07/27/2011)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 7/27/2011. (lmb) (Entered: 08/05/2011)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Settlement Conference held on 8/30/2011. (eef) (Entered: 09/07/2011)
Minute Entry for proceedings held before Magistrate Judge Theodore H. Katz: Telephone/Pretrial Conference held on 9/8/2011. (eef) (Entered: 09/15/2011)
87 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Amy Seligman dated 10/28/2011 re: Counsel for the Defendants writes to request an extension of the grace period for an additional 30 days during which time the parties expect to finalize the Stipulation of Settlement and Dismissal in these cases. ENDORSEMENT: Request granted. (Signed by Judge Shira A. Scheindlin on

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 13 of 17

11/17/2011 11/17/2011 11/29/2011 12/22/2011
02/06/2012 02/06/2012 02/22/2012

10/28/2011) (ab) (Entered: 10/31/2011)
88 TRANSCRIPT of Proceedings re: Conference held on 9/15/2011 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/12/2011. Redacted Transcript Deadline set for 12/22/2011. Release of Transcript Restriction set for 2/18/2012.(McGuirk, Kelly) (Entered: 11/17/2011)
89 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a Conference proceeding held on 9/15/11 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: 11/17/2011)
90 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman dated 11/28/11 re: Counsel for the defendants writes with the consent of plaintiffs' counsel to request that the grace period in respect to the contempt order be extended until 12/23/11. ENDORSEMENT: The grace period with respect to the contempt order is extended to and including December 23, 2011. So ordered. (Signed by Judge Shira A. Scheindlin on 11/29/2011) (mro) Modified on 12/2/2011 (mro). (Entered: 11/29/2011)
91 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 12/22/2011 re: Senior Counsel in the office of Michael A. Cardozo, Corporation Counsel of the City of New York, attorney for the defendants in the above matter. On April 26, 2010, Your Honor issued a contempt order, against defendant's imposing a monetary penalty for the issuance of any summonses under New York Penal Law §§ 240.35(1), (3), and (7). Since then, Your Honor has granted defendants several extensions of the grace period. Accordingly, and with plaintiffs' consent, defendants respectfully request that Your Honor extend the grace period up to and until January 13, 2012. ENDORSEMENT: Request granted the "grace period" is extended to and including January 13, 2012. So Ordered. (Signed by Judge Shira A. Scheindlin on 12/22/2011) (js) (Entered: 12/23/2011)
92 STIPULATION AND ORDER OF SETTLEMENT: The parties enter into this Stipulation for the purpose of avoiding the burdens of further litigation, and mutually to support vigorous, lawful, and nondiscriminatory enforcement of the law. Settlement of this action under the terms stated in this Stipulation is in the public interest because the Stipulation avoids diversion of private and City resources to further adversarial action by the parties, as further set forth within. (Signed by Judge Shira A. Scheindlin on 2/6/2012) (ab) (Entered: 02/06/2012)
93 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld and Matthew D. Brinckerhoff dated 1/27/2012 re: The parties write to request that the grace period be extended until the Court determines whether to grant preliminary approval of the Stipulation, which under its terms would then replace and resolve all prospective obligations. ENDORSEMENT: The "grace period" is extended nunc pro tunc from 1/23/2012 through 2/6/2012. (Signed by Judge Shira A. Scheindlin on 2/6/2012) (ab) (Entered: 02/06/2012)
94 UNSEALING ORDER: NOW, THEREFORE, WITH THE AGREEMENT OF ALL PARTIES, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: The records in the possession of the NYPD and NYDOC pertaining to members of the Settlement Class, and that are sealed pursuant to the provisions of N.Y.C.P.L §§ 160.50, 160.55, 160.58, 720.15, and/or 720.35 (hereinafter "the sealed records"), are hereby unsealed for the limited purpose of allowing the NYPD and/or the NYDOC to search for and provide the sealed records to MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, or his authorized representative, so that MICHAEL A. CARDOZO, Corporation Counsel of the City of New York, or his authorized representative, may transmit any identifying information pertaining to members of the Settlement Class contained in

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 14 of 17

02/22/2012 02/24/2012 03/13/2012 05/04/2012 06/14/2012 10/09/2012
10/12/2012

the sealed records (such as their most recent addresses and social security numbers) to class counsel and the designated Administrator in the above−captioned case. The use of the sealed records is restricted to use in the above−captioned action for the limited purpose defined above and in accordance with the attached Stipulation and Order of Settlement. (Signed by Judge Shira A. Scheindlin on 2/22/2012) (jfe) Modified on 2/23/2012 (jfe). (Entered: 02/23/2012)
Transmission to Sealed Records Clerk. Transmitted re: 94 Order,,,,,, to the Sealed Records Clerk for the sealing or unsealing of document or case. (jfe) (Entered: 02/23/2012)
95 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 2/23/2012 re: Along with The Bronx Defenders, we represent the certified plaintiff classes in the above−captioned actions. With the consent of all parties, and as referenced in plaintiffs' letter to the Court dated January 27, 2012, we write to respectfully request that the Court appoint Rust Consulting Inc. ("Rust") as the Administrator of this class action. ENDORSEMENT: Request granted. Rust Consulting Inc is named as the administrator of this class action. (Signed by Judge Shira A. Scheindlin on 2/23/2012) (djc)(djc) (Entered: 02/24/2012)
96 ORDER APPROVING NOTICES AND PLAN OF ADMINISTRATION: the Agreement for the purpose of interpretation and compliance with the Agreement and this Agreed Order of Dismissal with Prejudice. The date and time of the Fairness Hearing shall be set forth in the Class Notice and Summary Notice, but the hearing may be subject to adjournment by the Court without further notice to the members of the Settlement Class other than that which may be posted by the Court. The Administrator will advise SCMs of any scheduling issues at www.nycloitering.com. (Signed by Judge Shira A. Scheindlin on 3/8/2012) (ft) (Entered: 03/13/2012)
97 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 5/3/2012 re: With the consent of all parties, we write to respectfully request that the Court extend by 30 days the Date of Class Notice provided in the Stipulation and Order of Settlement, and schedule a date for the Fairness Hearing in this action. ENDORSEMENT: Request granted. The Administrator shall mail claim packets to class members by June 8, 2012 and the Fairness Hearing is scheduled for November 15, 2012 at 4:30 p.m. ( Fairness Hearing set for 11/15/2012 at 04:30 PM before Judge Shira A. Scheindlin.)(Signed by Judge Shira A. Scheindlin on 5/3/2012) (djc) (Entered: 05/07/2012)
98 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 6/14/2012 re: Counsel respectfully request that the Court approve an additional payment of $200,000 (Two Hundred Thousand Dollars) from the City of New York to the Administrator in this class action. ENDORSEMENT: Request granted. An additional payment of $200,000 from the City to the Administrator is authorized. (Signed by Judge Shira A. Scheindlin on 6/14/2012) (jfe) (Entered: 06/15/2012)
99 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 10/5/2012 re: For the foregoing reasons, we request that the Court extend the Bar Date from October 9, 2012 to November 8, 2012, and that the Fairness Hearing be held thereafter during the week of December 10, 2012. ENDORSEMENT: Plaintiffs' request, made on consent, is hereby granted. (1) The "Bar Date" currently set in this case is hereby extended by 30 days, from Oct. 9, 2012 to Nov. 8, 2012, for the approximately 11,000 settlement class members who apparently received claims packets in the mail but who have not yet returned a claim form. (2) A similar extension is hereby ordered for the fairness hearing, from Nov. 15, 2012 (as currently scheduled) to 4:30pm on Dec. 13, 2012., ( Fairness Hearing set for 12/13/2012 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 10/9/2012) (lmb) (Entered: 10/09/2012)
100 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Linda Donahue dated 10/11/2012 re: Request for adjournment of Fairness Hearing. ENDORSEMENT: Defendants' request, made on consent, is hereby granted. The Fairness Hearing is rescheduled for Dec. 14, 2012, at 4:30 p.m. So ordered.

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 15 of 17

11/15/2012
11/19/2012 11/19/2012 11/19/2012 11/19/2012 11/19/2012 11/19/2012 12/10/2012 12/10/2012

(Fairness Hearing set for 12/14/2012 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 10/12/2012) (rjm) (Entered: 10/12/2012)
101 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 11/13/2012 re: For all the foregoing reasons, the parties request that the Court: (1) approve a briefing schedule for submissions in support of Final Approval of the Settlement of November 19, 2012 (Plaintiffs' Motion for Final Approval of the Settlement and Request for Attorneys' Fees), December 10, 2012 by 4:30pm (Defendants' Response) and December 13, 2012 by 4:30pm (Plaintiffs' Reply); and (2) approve the parties' proposal to initially submit to the Court briefing concerning the threshold legal question of whether the Court should exercise its discretion to use the common fund or the lodestar method in setting the amount of the settlement to be allocated to attorneys' fees, with later briefing to be submitted as necessary to address any detailed arguments necessary for a full lodestar analysis. With defendants' consent, Plaintiffs also request permission to submit a moving brief of no more than fifty (50) pages. ENDORSEMENT: Request granted (in part). Plaintiffs' motion is due November 19, 2012. The moving brief may not exceed thirty−five pages. With respect to fees, I accept plaintiffs' suggestion that they will initially brief the question of the method of deferring the fee award rather than the amount. Defendants' response, if any, is due December 10 (35 pg) and the reply December 13 (15 pg). No further extensions will be granted., ( Motions due by 11/19/2012., Responses due by 12/10/2012., Replies due by 12/13/2012.) (Signed by Judge Shira A. Scheindlin on 11/15/2012) (lmb) (Entered: 11/16/2012)
102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs. Document filed by Paul Casale. Return Date set for 12/14/2012 at 04:30 PM.(Rosenfeld, Katherine) (Entered: 11/19/2012)
103 DECLARATION of April Hyduk in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H, # 9 Exhibit Exhibit I, # 10 Exhibit Exhibit J)(Rosenfeld, Katherine) (Entered: 11/19/2012)
104 DECLARATION of J. McGregor Smyth in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Rosenfeld, Katherine) (Entered: 11/19/2012)
105 DECLARATION of Katherine Rosenfeld in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Attachments: # 1 Exhibit Exhibit 1 Part 1, # 2 Exhibit Exhibit 1 Part 2, # 3 Exhibit Exhibit 2)(Rosenfeld, Katherine) (Entered: 11/19/2012)
106 DECLARATION of Matthew D. Brinckerhoff in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Attachments: # 1 Exhibit Exhibit AA, # 2 Exhibit Exhibit BB, # 3 Exhibit Exhibit CC)(Rosenfeld, Katherine) (Entered: 11/19/2012)
107 MEMORANDUM OF LAW in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Rosenfeld, Katherine) (Entered: 11/19/2012)
109 MEMORANDUM OF LAW in Opposition re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by City of New York, Raymond W. Kelly. (Donahue, Linda) (Entered: 12/10/2012)
110 DECLARATION of Linda Donahue in Opposition re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by City of New York, Raymond W. Kelly. (Attachments: # 1 Exhibit Exhibit A Part I, # 2 Exhibit Exhibit A Part II)(Donahue, Linda) (Entered: 12/10/2012)

Case: 1:08-cv-2173 As of: 02/10/2016 06:54 PM EST 16 of 17

12/13/2012 12/14/2012 12/17/2012 12/21/2012
01/03/2013
02/07/2013 02/26/2013
06/13/2013

111 REPLY MEMORANDUM OF LAW in Support re: 102 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Paul Casale. (Rosenfeld, Katherine) (Entered: 12/13/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/14/2012. (cd) (Entered: 12/20/2012)
112 NOTICE OF APPEARANCE by Mariana Louise Kovel on behalf of Paul Casale, Anthony Garcia (Kovel, Mariana) (Entered: 12/17/2012)
113 ORDER APPROVING THE JANUARY 26, 2012 STIPULATION OF SETTLEMENT: The Settlement meets the requirements of Fed. R. Civ. P. 23(e) because it is procedurally and substantively fair, reasonable, and adequate. The $25,000 service awards to the eight Named Plaintiffs, totaling $200,000, from the Settlement Costs are fair and reasonable given the time and effort they expended assisting in the prosecution of this litigation. An checks mailed to Class Members shall bear the notation, "CASH PROMPTLY, VOID AND WILL NOT BE RE−ISSUED 120 DAYS AFTER DATE OF ISSUANCE". (Signed by Judge Shira A. Scheindlin on 12/21/2012) (ft) (Entered: 12/26/2012)
114 FINAL JUDGMENT that for the reaons set forth in the Order signed by the Court on December 21, 2012 and entered December 26, 2012 (Ex. A), that: The January 26, 2012 Stipulation of Settlement (Ex. B) is hereby approved; The parties shall abide by all the terms of the Stipulation of Settlement and the Court's December 21, 2012 Order: The City of New York shall make all payments set forth in the December 21, 2012 Order in accordance with the terms in that Order;The Court retains jurisdiction over this action to enforce the terms of the December 21, 2012 Order and the Stipulation of Settlement. (Original Doc.# 202 filed in 05 Civ. 5442). (Signed by Judge Shira A. Scheindlin on 1/3/12) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 01/03/2013)
115 NOTICE OF CHANGE OF ADDRESS by J. McGregor Smyth, Jr on behalf of All Parties. New Address: New York Lawyers for the Public Interest, 151 West 30th Street, 11th Floor, New York, NY, USA 10001, 212.244.4664. (Smyth, J.) (Entered: 02/07/2013)
116 ORDER: Plaintiffs' request to continue reviewing and accepting good cause explanations that may be received from the outstanding 14 eligible late claimants beyond the thirty day deadline, if they are postmarked on or before March 6, 2013 is granted. Plaintiffs' request to accept the three class members who have submitted valid claim forms postmarked after the January 8, 2013 deadline as well as any other eligible claims that are submitted by March 6, 2013, provided that the claimants provide good cause for the late filing is granted. Plaintiffs may continue to review and accept good cause explanations submitted within thirty days from the date of such requests. Permission for the six claims that had requested another claim form be mailed to them before the court−ordered late claim deadline be accepted as late claims − without further showing of good cause for late filing is granted if the claim forms are returned and postmarked by March 6, 2013. With respect to all valid claims received and accepted prior to March 6, 2013 (including the three categories of claims described above), permission is granted to include those claimants in the group of class members who are paid out of the Remainder funds. Should there be any valid claims that are not ready for payment as for the March 6, 2013 deadline, only those claimants would be paid out of the Reserve Fund of $100,000. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 2/25/2013) (ja) (Entered: 02/26/2013)
117 ORDER: Plaintiffs' request to pay three settlement class members (S. Kessoo, Johnny Williams, and J. Ruffin) who submitted late claims and timely good cause for late filing but who were not included in the initial distribution due to administrative error is GRANTED. These three settlement class members are to be paid the full award amount they would have otherwise received from the balance of the Remainder funds. Plaintiffs' request to pay two settlement class members (Jeffrey Williams, J. Zayas) who requested that a claim form be mailed to their new addresses before the deadline to submit claim forms but who were not subsequently mailed claim forms to those addresses due to administrative error is GRANTED, provided that these class members submit valid claim forms to the Administrator or Class Counsel postmarked by no later than one month from the date of this Order.

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10/07/2013 01/21/2014
01/22/2014
08/28/2014 08/28/2014 08/28/2014 10/23/2014 01/12/2015 01/14/2015 01/15/2015 04/23/2015

Should these two class members submit valid claim forms by such time, they are to be paid the full award amount they would have otherwise received from the balance of the Remainder funds. The Administrator having determined that no other settlement class members were subject to the same administrative error in the mailing process, the deadline to have submitted a claim form for all other settlement class members remains March 6, 2013, pursuant to this Court's previous Order. (Signed by Judge Shira A. Scheindlin on 6/13/2013) (ja) (Entered: 06/14/2013)
118 LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 10/7/13 re: Intention to Proceed with a Second Distrbution of Settlement Funds. Document filed by Paul Casale, Anthony Garcia.(Rosenfeld, Katherine) (Entered: 10/07/2013)
119 LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated January 21, 2014 re: Status of the Preparation and Filing of the Omnibus Motion to Vacate and Seal Unconstitutional Loitering Charges from Class Members' Criminal Records. Document filed by Paul Casale, Anthony Garcia. (Attachments: # 1 Text of Proposed Order)(Rosenfeld, Katherine) (Entered: 01/21/2014)
120 ORDER re: (207 in 1:05−cv−05442−SAS) Letter, filed by Eddie Wise, Michael Brown, (119 in 1:08−cv−02173−SAS) Letter, filed by Paul Casale, Anthony Garcia: Plaintiffs' request to pay an Award Amount to twenty−one (21) Settlement Class Members who submitted valid late Claim Forms without providing written good cause for late filing, and who were not included in the initial distribution, is GRANTED. As part of the second distribution of class funds to be made in 2014, these twenty−one Settlement Class Members are to be paid the full Award Amount they would have otherwise received. (Signed by Judge Shira A. Scheindlin on 1/21/2014) (tn) (Entered: 01/22/2014)
121 MOTION for Katherine R. Rosenfeld to Withdraw as Attorney for Plaintiffs and Class. Document filed by Paul Casale, Anthony Garcia.(Rosenfeld, Katherine) (Entered: 08/28/2014)
122 AFFIRMATION of Katherine R. Rosenfeld in Support re: 121 MOTION for Katherine R. Rosenfeld to Withdraw as Attorney for Plaintiffs and Class.. Document filed by Paul Casale, Anthony Garcia. (Rosenfeld, Katherine) (Entered: 08/28/2014)
123 MEMO ENDORSEMENT granting 121 Motion to Withdraw as Attorney. ENDORSEMENT: Motion granted. Attorney Katherine R. Rosenfeld terminated. (Signed by Judge Shira A. Scheindlin on 8/28/2014) (lmb) (Entered: 08/28/2014)
124 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 10.23.14 re: Appointment of NYLPI as Class Counsel. Document filed by Paul Casale, Anthony Garcia.(Brinckerhoff, Matthew) (Entered: 10/23/2014)
125 LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated January 12, 2015 re: Enclosed requested proposed order. Document filed by Paul Casale, Anthony Garcia.(Brinckerhoff, Matthew) (Entered: 01/12/2015)
126 ORDER: Plaintiffs' request to appoint the New York Lawyers for the Public Interest ("NYLPI") as co−Class Counsel, pursuant to Fed. R. Civ. P. 23(g)(1)(E), and with the consent of defendants, is GRANTED. (Signed by Judge Shira A. Scheindlin on 1/14/2015) (djc) (Entered: 01/14/2015)
127 NOTICE OF APPEARANCE by Katherine R. Rosenfeld on behalf of Paul Casale, Anthony Garcia. (Rosenfeld, Katherine) (Entered: 01/15/2015)
128 ORDER: NOW, THEREFORE IT IS HEREBY ORDERED, ADJUDGED AND DECREED: Class Counsel's request to conduct a cy pres distribution out of the remaining funds in the Settlement Fund, to Picture the Homeless, Ali Forney Center, Streetwise &Safe, and the Urban Justice Center Sex Workers Project, in the amount of $40,910.46 per organization, and with the consent of Defendants, is GRANTED. The Class Administrator shall distribute $40,910.46 to each of the four named non−profit organizations within ten days of this Order. (Signed by Judge Shira A. Scheindlin on 4/23/2015) (mro) (Entered: 04/23/2015)