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EXHIBIT A

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
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MICHAEL BROWN, XAVIER J. GRANT, MICHAEL LOUIS BROWN, BOBBY WELLS, EDGAR TURNER, and KEITH ANDERSON, on Behalf of Themselves and Others Similarly Situated,
PI aintiffs,
-against-

05-CV-5442 (SAS)
SECOND AMENDED CLASS ACTION COMPLAINT AND JURY DEMAND

RAYMOND W. KELLY, Commissioner of the New York City Police Department (NYPD); BARRY M. BUZZETTI, Captain and Commanding Officer, NYPD 48'" Precinct; JAMES ESSJG,lnspector and Commanding Officer, NYPD 44'" Precinct; RONALD MERCANDETTI, Captain and Commanding Officer, NYPD 40'" Precinct; DWAYNE MONTGOMERY, Deputy Inspector and Commanding Officer, NYPD 28'" Precinct, JOHN/JANE DOES 1-50 (NYPD Supervisory, Training and Policy Personnel); CJTY OF NEW YORK; Police Officers SHAWN RJCKER, THOMAS J. ACITO, JOHN PICONE, CHRJSTOPHER LAGRASTA, DENNIS PALINKAS, GERALD McCOY, KARL HARRIS, JOHN/JANE DOES 51-l 00 (police officers); ROBERT JOHNSON, District Attorney of Bronx County; JOHN/JANE DOES l 01-125 (Supervisory, Training and Policy Personnel within the district attorneys offices); JOHN/JANE DOES 126-165,
Defendants.
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Plaintiffs Michael Brown, Xavier J. Grant, Michael Louis Brown, Bobby Wells,

Edgar Turner, and Keith Anderson ("the Named Plaintiffs"), on behalf ofthemselves and others

similarly situated, for their Second Amended Complaint, allege as follows:

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1NTRODUCTJON

1.

ln 1993, the United States Court of Appeals for the Second Circuit

declared unconstitutional, on First Amendment grounds, New York Penal Law§ 240.35(1),

which provided that a person is guilty of"loitering" when he "loiters, remains or wanders about

in a public place for the purpose of begging." See Loper v. New York City Police Department,

999 F.2d 699, 701 (2d Cir. l 993).

2.

The Second Circuit also affirmed U.S.D.J. Robert W. Sweet's 1992

injunction permanently barring the NYPD's, and then Police Commissioner Lee Brown's, future

enforcement ofP.L. § 240.35(1 ). See Loper v. New York City Police Department, 999 F.2d 699

(2d Cir. 1993).

3. Notwithstanding the clear command ofLoper, the New York City Police Department ("NYPD"), the District Attorneys in New York City, and indeed Jaw enforcement officers and prosecutors throughout the entire State ofNew York, have willfully continued to arrest, summons, and prosecute thousands of individuals such as plaintiffs Michael Brown, Xavier J. Grant, Michael Louis Brown, Bobby Wells, Edgar Turner, and Keith Anderson for violations ofP.L. § 240.35(1 ). This is inexcusable. lt is stunningly inept. lt must be stopped.
4. This bi-lateral class action seeks to end- finally, for all time- this pattern and practice of unconstitutional conduct by law enforcement officers and prosecutors throughout New York State (the "Arrest & Prosecution Policy"). lt defies belief that defendants- the very institutions and individuals with responsibility for enforcing the Jaw- have continued to routinely violate it by arresting, charging and prosecuting citizens for peaceful expressive conduct under a void criminal statute.

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5.

Plaintiffs Michael Brown, Xavier J. Grant, Michael Louis Brown, Bobby

Wells, Edgar Turner, and Keith Anderson 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 arrested, charged and/or prosecuted for violations of a nullified criminal

statute, P.L. § 240.35(1), and to redress defendants' violations of their rights under the First,

Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. Plaintiffs seeks an

appropriate remedial order to ensure an end to the utterly lawless enforcement of a criminal

statute that was adjudicated unconstitutional in 1992.

J1JRJSDJCT10N AND VENUE

6.

This action arises under the First, Fourth, and Fourteenth Amendments to

the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983.

1343(a).

7.

The jurisdiction ofthis Court is predicated upon 28 U.S.C. §§ 1331, and

8.

Many ofthe acts complained of occurred in the Southern District ofNew

York and venue is lodged in this Court pursuant to 28 U.S.C. § 1391 (b).

JlJRY DEMAND 9. Plaintiffs demand trial by jury in this action.

THE PARTIES 10. Plaintiff MICHAEL BROWN is a citizen of the United States and was a resident of Bronx County at the time of the incidents alleged in this action. II. PlaintiffXAVIER J. GRANT is a citizen of the United States and was a resident of Bronx County at the time of the incidents alleged in this action.

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12. PlaintiffMICHAEL LOUIS BROWN is a citizen of the United States and was a resident of Bronx County at the time of the incidents alleged in this action.
13. Plaintiff BOBBY WELLS is a citizen ofthe United States and was a resident of Bronx County at the time of the incidents alleged in this action.
14. Plaintiff EDGAR TURNER is a citizen of the United States and was a resident of Queens County at the time of the incidents alleged in this action.
15. PlaintiffKElTH ANDERSON is a citizen of the United States and was a resident of Bronx County at the time of the incidents alleged in this action.
16. Defendant CJTY OF NEW YORK ("City") is a municipality organized and existing under the laws of the Stale ofNew York. At all times relevant hereto, defendant City, acting through the New York 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 of the United States and of the State ofNew York.
17. At all times relevant hereto, defendant City, acting through the Bronx District Attorney's Office ("Bronx DAO"), was responsible for the administration, policy, practice, supervision, implementation, and conduct of all Bronx DAO matters and was responsible for the appointment, training, supervision, and conduct of all Bronx DAO personneL In addition, at all relevant times, defendant City was responsible for enforcing the rules of the
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Bronx DAO Office, and for ensuring that Bronx DAO personnel obey the laws of the United States and of the State ofNew York.
18. ln addition to the facts alleged in the following subparagraphs, the following defendants all acted within the scope of their employment and under color oflaw, including the statutes, ordinances, regulations, policies, customs and usages of the City ofNew York, State of New York, and/or Bronx County. The following defendants are all sued in their individual and official capacities.
19. At all relevant times defendant RAYMOND W. KELLY was the Police Commissioner of the City ofNew York and, as such, made and enforced policy of the NYPD, including without limitation the 48th, 44th, 47t", 28th and 40th Precincts in the City ofNew York, 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.
20. At all relevant times defendant BARRY M. BUZZETTI was a Captain and Commanding Officer of the 48th Precinct in the County of Bronx, New York, acting in the capacity of agent, servant, and employee of defendant City, within the scope ofhis employment as such, and acting under color of state law. As Captain and Commanding Officer, he is the highest ranking uniformed member of the 48th Precinct, and is responsible for setting policy, and for the supervision, oversight, and discipline of the uniformed police officers in his precinct. As Captain and Commanding Officer, Buzzetti is provided on a daily basis with reports of arrests and summonses in his Precinct.
21. At all relevant times defendant JAMES ESSIG was an Inspector and Commanding Officer of the 44th Precinct in the County ofBronx, New York, acting in the
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capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color of state Jaw. As Inspect and Commanding Officer, he is the highest ranking uniformed member of the 44'" Precinct, and is responsible for setting policy, and for the supervision, oversight, and discipline of the uniformed police officers in his precinct. As Inspector and Commanding Officer, JAMES ESSIG is provided on a daily basis with reports of arrests and summonses in his Precinct.
22. At all relevant times defendant RONALD MERCANDETTJ was a Captain and Commanding Officer of the 40'" Precinct in the County of Bronx, New York, acting in the capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color of state law. As Captain and Commanding Officer, he is the highest ranking uniformed member of the 40'" Precinct, and is responsible for setting policy, and for the supervision, oversight, and discipline of the uniformed police officers in his precinct. As Captain and Commanding Officer, RONALD MERCANDETTl is provided on a daily basis with repm:ts of arrests and summonses in his Precinct.
23. At all relevant times defendant DWAYNE MONTGOMERY was a Deputy Inspector and Commanding Officer of the 28'" Precinct in the County ofNew York, New York, acting in the capacity of agent, servant, and employee of defendant City, within the scope of his employment as such, and acting under color ofstate Jaw. As Deputy Inspector and Commanding Officer, he is the highest ranking uniformed member of the 28'" Precinct, and is responsible for setting policy, and for the supervision, oversight, and discipline of the uniformed police officers in his precinct. As Deputy Inspector and Commanding Officer, DWAYNE
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MONTGOMERY is provided on a daily basis with reports of anests and summonses in his Precinct.
24. At all relevant times, defendants "Jane/John Does 1-50" were training, supervisory and policy making personnel within the NYPD who implemented, enforced, perpetuated and/or allowed the unconscionable Anest & Prosecution Policy that is the subject of this action, 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 Supervisory defendants at this time and thus sues them under a fictitious designation.
25. At all relevant times, defendant NYPD Police Officers SHAWN RICKER, No. 2615, THOMAS J. ACITO, No. 31053, JOHN PICONE, No. 9836, CHRISTOPHER LAGRASTA, No. 12176, DENNIS PALINKAS, No. 9924, GERALD McCOY, No. 922739, and KARL HARRIS, No. 937821, were police officers acting in the capacity of agents, servants, and employees of defendant City, and within the scope of their employment as such. On information or belief, these officers are or were assigned to the 48'", 44'", 40'", 47'\ and 28'" Precincts in the County of Bronx, New York.
26. At all relevant times, defendants "Jane/John Does 51-100" were NYPD police officers who anested and/or charged members of the plaintiff class pursuant to the Anest & Prosecution 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.
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27. Defendant ROBERT JOHNSON was at all relevant times District Attorney of Bronx County, and, as such, made and enforced policy with respect to the Bronx DAO. Defendant Johnson is sued in his individual capacity, and with respect to plaintiff's claims for prospective injunctive relief, in his official capacity.
28. At all relevant times, defendants "Jane/John Does I 01-25" were training, supervisory and policy making personnel within the offices of the district attorneys for the five counties in the City of New York, including the Bronx DAO, who implemented, enforced, perpetuated and/or allowed the unconscionable Arrest & Prosecution Policy that is the subject of this action, 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 DAO Supervisory defendants at this time and thus sues them under a fictitious designation. The DAO supervisory defendants are sued in their individual capacities, and with respect to plaintiff's claims for prospective injunctive relief, in their official capacities.
29. At all relevant times, defendants "Jane/John Does 126-165" were police officers acting in the capacity of agents, servants, and employees of defendant City, and within the scope of their employment as such. On information or belief, these officers are or were assigned to the same command as the individual officer defendants and assisted them in arresting, charging and/or prosecuting the Named Plaintiffs.
30. During all times mentioned in this complaint, the defendants together 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 of the plaintiffs, and while these acts were carried out under color oflaw, they had no justification or
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excuse, and were instead gratuitous, illegal, improper and unrelated to any activity in which Jaw enforcement officers may appropriately and legally engage in the course of protecting persons and property and/or ensuring civil order.
PLAINTIFF CLASS ACTION ALLEGATIONS 31. Plaintiffs Michael Brown, Xavier J. Grant, Michael Louis Brown, Bobby Wells, Edgar Turner, and Keith Anderson (the "Named Plaintiffs") bring this case as a class action under Fed. R. Civ. P. 23(b)(2) for violations of their constitutional and rights. The Rule (b)(2) Class consists of all persons who have been or will be arrested, charged or prosecuted for a violation ofP.L. § 240.35(1) in the State ofNew York from 1992 onward. 32. 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. 33. The proposed Rule (b)(2) class includes thousands of members. They are so numerous that joinder of all Class members is impracticable. 34. The Named Plaintiffs also bring this case as a class action under Fed. R. Civ. P. 23(b)(3), on behalf of themselves and other individuals similarly situated who have been subjected to enforcement ofP.L. § 240.35( l), for violations of their constitutional law rights. 35. The Named Plaintiffs seek to represent a plaintiffsubclass pursuant to Fed. R. Civ. P. 23(b)(3) consisting of all persons arrested, charged or prosecuted for a violation of P.L. § 240.35( 1), by employees, agents or representatives of the City of New York, from 1992 onward.
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36. All of the members of the Rule (b)(3) subclass were injured as a result of defendants' conduct.
37. The Rule (b)(3) subclass includes thousands of individuals, many of whom are homeless and accordingly, difficult to locate. They are so numerous that joinder of all Class members is impracticable.
38. The questions oflaw and fact presented by plaintiffs Michael Brown, Xavier J. Grant, Michael Louis Brown, Bobby Wells, Edgar Turner, and Keith Anderson are common to other members of the class. Among others, the questions of law and fact common to the Class are: (I) whether defendants enforced or failed to prevent the enforcement ofP.L. § 240.35(1), including without limitation wrongfully arresting, detaining, charging, summonsing, imprisoning and/or prosecuting class members for violations ofP.L. § 240.35(1 ), after the statute had already been declared unconstitutional and its enforcement enjoined; (ii) the existence of a pattern and practice of enforcement ofP.L. § 240.35(1) or failure to prevent its enforcement, including but not limited to wrongful arrests, charges and prosecutions of violations ofP.L. § 240.35(1 ); (iii) the acquiescence ofsupervisory personnel in the NYPD and Bronx DAO 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 Arrest & Prosecution Policy is terminated in every respect and (b) that its harmful effects are nullified.
39. Common issues oflaw and fact such as those set forth above (and many others) predominate over any individual issues.
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40. The Arrest & Prosecution Policy has resulted in the wrongful detention,

charging, arrest, confinement and prosecution of citizens engaged in lawful First Amendment activity, 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.

41. The violations suffered by the Named Plaintiffs are typical of those suffered by the class. The entire class will benefit from the remedial and monetary relief sought.

42. The Named Plaintiffs have no conflict of interest with any Class members, and will fairly and adequately protect the interests of the class. Counsel 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 Jaw firm specializing in criminal defense practice with extensive experience in police and prosecutoriaJ practices, and experience in civil rights litigation.

43. 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 nature of the members of the proposed subclass. The damages suffered by

members of the subclass, although substantial, are small in relation to the extraordinary expense and burden of individual litigation and therefore it is highly impractical for such subclass

members to attempt redress for damages incurred due to their wrongful arrest and confinement

44. a class action.

There will be no extraordinary difficulty in the management of this case as

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45. The Named Plaintiffs continue to engage in the activity of peaceful begging on the streets ofNew York City and/or peacefully associating with others on the sidewalks and public byways of New York City and will continue to do so for the foreseeable future.
DEFENDANT CLASS ACTION ALLEGATIONS 46. Plaintiffs also bring this action as a defendant class action under Fed. R. Civ. P. 23(b)(2) to redress violations oftheir constitutional rights. Plaintiffs seek to certify a defendant class, to be represented by defendants City of New York, Raymond Kelly and Robert Johnson, and consisting of all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge or prosecute a person with a violation under the New York Penal Law. 47. The proposed defendant class includes hundreds, and perhaps thousands, of members. They are so numerous that joinder of all Class members is impracticable. 48. There are questions oflaw and fact common proposed defendant class representatives, Kelly, Johnson and the City ofNew York, and the proposed class members that they would represent. These include: (I) whether defendants enforced or failed to prevent the enforcement ofP.L. § 240.35(1 ), after the statute was declared unconstitutional; (2) whether defendants' enforcement ofP.L. § 240.35(1), after the statute was declared unconstitutional, violated and continues to violate the First, Fourth, and Fourteenth Amendments; and (3) whether, and in what manner, defendants should be enjoined to ensure that the Statute will no longer be enforced.
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49. The defenses, insofar as there are any, of putative class representative Kelly, Johnson and the City of New York are typical of those of the absent class members. The entire class will benefit from the remedial and monetary relief sought.
50. Defendants Kelly, Johnson and the City of New York have no conflict of interest with any putative absent class members, and will fairly and adequately protect the interests of the class. Competent counsel represent the defendant class. The New York City Law Department is the largest municipal Jaw firm in the State and its attorneys have extensive experience in actions similar to this.
51. This action is superior to any other method for the fair and efficient adjudication of this legal dispute, as joinder of all defendant class members is impracticable.
52. There will be no extraordinary difficulty in the management of the Class action.
FACTS 53. Before its nullification, P.L. § 240.35(1) provided, in relevant part, that a person is guilty of"loitering" when he ''loiters, remains or wanders about in a public place for the purpose ofbegging." 54. On October 7, 1992, United States District Judge Robert W. Sweet entered a declaratory judgment in the United States District Court for the Southern District ofNew York, and an injunction that permanently barred the New York City Police Department, and the Commissioner of the New York City Police Department, from enforcing P.L. § 240.35( l ). 55. In 1993, the United States Court of Appeals for the Second Circuit affirmed Judge Sweet's ruling and declared, on First Amendment grounds, that subdivision one
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ofP.L § 240.35, loitering in a public place for the purpose of begging, was unconstitutional. See Loper v. New York City Police Department, 999 F.2d 699 (2d Cir. 1993).
56. Peaceful begging is an activity entitled to the full protection of the First Amendment.
57. Since at least 1992, loitering for the purpose of begging has not been a crime, offense, or violation in New York State.
Michael Brown 58. Plaintiff Michael Brown is a 46 year-old African-American man. 1n order to obtain money for transportation and other necessities of life, Mr. Brown peacefully begs for money on the streets of New York City. Mr. Brown often conducts this peaceful begging activity in the County of the Bronx. 59. On at least one occasion in 2003, while plaintiffMichael Brown was peacefully standing on the streets of the Bronx, and engaged in activities fully protected by the First Amendment, he was wrongfully arrested by uniformed officers employed by the NYPD, charged with loitering in violation ofP.L § 240.35(1 ), and subjected to prosecution by the Bronx District Attorney's Office for this charge. 60. On June 14, 2003, Mr. Brown was peacefully begging at or about 149'h Street and Courtland! Avenue, Bronx, New York, when defendants police officers SHAWN RICKER and John/Jane Does 126 through 130 arrested and charged Mr. Brown with loitering in violation ofP.L § 240.35(1). Mr. Brown was taken to the 40th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Brown with a violation ofP.L. § 240.35(1). At
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arraignment on June 14, 2003, Mr. Brown pleaded guilty to the charge and he was sentenced to a term of conditional discharge of one year, a $60 surcharge and civil judgment for the surcharge.
61. As a result of the aforesaid wrongful arrest and prosecution for loitering in violation ofP.L. § 240.35(1), Mr. Brown was incarcerated for at least one day. Mr. Brown was required to make court appearances in order to defend himself against prosecution for constitutionally defective charges. Mr. Brown felt compelled to plead guilty to violations ofP.L. § 240.35( 1), and this now appears on his criminal history and is in the public record.
62. Court files and computer databases- including for arrests, charges, convictions, sentences, fines, bail and surcharge- concerning Michael Brown are available to the public and report the unconstitutional conviction for P.L. § 240.35(1 ).
Xavier J. Grant 63. Plaintiff Xavier J. Grant is a 23 year-old African-American man. Mr. Grant grew up in the Bronx. 64. On at least one occasion in 2003, while Mr. Grant was peacefully standing on the street in the Bronx, and engaged in activities fully protected by the First Amendment, he was wrongfully arrested by uniformed officers employed by the NYPD, and charged via a summons with loitering in violation ofP.L. § 240.35(1 ). 65. On or about July 17, 2003, Mr. Grant was standing on the comer of an intersection in the Bronx, peacefully conversing with friends. 66. Defendant police officers John/Jane Does 131 through 135 stopped their car in front of Mr. Grant's location, go out, stopped Mr. Grant, searched him, and demanded identification. Defendants police officers GERALD McCOY of the 47"' Precinct and John/Jane
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Does 131-135 then charged Mr. Grant, via a summons, with loitering in violation ofP.L. § 240.35(1 ). Defendants John/Jane Does 131-135 also told Mr. Grant to "move along," and stated "you can't be here."
67. Mr. Grant was summoned to appear in court on August 25,2003. When Mr. Grant failed to appear to answer the unconstitutional invalid charge, a warrant was issued for his arrest.
68. ln or around November 2006, Mr. Grant applied for a job at TOYS R US. As a result of a background check conducted by the store, Mr. Grant learned that he had an active warrant for the invalid loitering summons issued in 2003.
69. On or around November 22, 2006, Mr. Grant went to the Bronx Criminal Court in an effort to resolve the open warrant for the invalid loitering charge. At that time, Mr. Grant appeared before a Bronx criminal court judge, Judge Hecht, at which time he received an Adjournment in Contemplation of Dismissal. This case will not be dismissed until May 21, 2007.
70. As a result of the aforesaid wrongful arrest and charge for loitering in violation ofP.L. § 240.35(1 ), Mr. Grant was required to make court appearances in order to defend himself against prosecution for constitutionally defective charges. A warrant was issued for his arrest in conjunction with this invalid charge. Mr. Grant also was required to pay court fines and surcharges. ln addition, Mr. Grant felt compelled to accept an "ACD" for a violation of P.L. § 240.35(1), and this currently appears on his criminal history and is in the public record.
71. Court files and computer databases- including for arrests, charges, convictions, sentences, fines, bail and surcharge- concerning Xavier J. Grant are currently
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available to the public- such as his potential employer TOYS R US- and report the unconstitutional charge ofP.L. § 240.35(1).
Michael Louis Brown 72. Plaintiff Michael Louis Brown is a 48 year-old African-American man. In order to obtain money for transportation and other necessities oflife, Mr. Brown peacefully begs for money on the streets of New York City. Mr. Brown often conducts this peaceful begging activity in the County of the Bronx. 73. On at least one occasion in 2004, while Mr. Brown was peacefully standing on the streets of the Bronx, and engaged in activities fully protected by the First Amendment, he was wrongfully arrested by uniformed officers employed by the NYPD, charged with loitering in violation ofP.L. § 240.35(1), and subjected to prosecution by the Bronx District Attorney's Office for this charge. 74. On or about March l, 2004, Mr. Brown was peacefully begging at or about ]89th Street and Park Avenue, Bronx, New York, when defendants police officers THOMAS ACJTO, Shield No. 31053, and John/Jane Does 136-40 arrested and charged Mr. Brown with loitering in violation ofP.L. § 240.35(1) and with disorderly conduct in violation ofP.L. § 240.20(5). Mr. Brown was taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Brown with a violation ofP.L. § 240.35(1) and with disorderly conduct. At arraignment on March l, 2004, Mr. Brown pleaded guilty to both charges and was sentenced to a term of imprisonment of time served. He was also sentenced to a $95 surcharge and civil judgment for the surcharge.
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75. As a result of the aforesaid wrongful arrest and prosecution for loitering in violation ofP.L. § 240.35(1 ), Mr. Brown was incarcerated for at least one day. Mr. Brown felt compelled to plead guilty to violations ofP.L. § 240.35( 1), and this now appears on his criminal history and is in the public record.
76. Court files and computer databases - including for arrests, charges, convictions, sentences, fines, bail and surcharge- concerning Michael Louis Brown are available to the public and report the unconstitutional conviction for P.L. § 240.35( 1).
Bobbv Wells 77. Plaintiff Bobby Wells is a 49 year-old African-American man. 78. On at least one occasion in 2004, and on another occasion in 2005, while Mr. Wells was peacefully standing on the streets of the Bronx, and engaged in activities fully protected by the First Amendment, he was wrongfully arrested by uniformed officers employed by the NYPD, charged with loitering in violation ofP.L. § 240.35(1), and subjected to prosecution by the Bronx District Atlomey's Office for this charge. 79. On or about April 21,2004, Mr. Wells was peacefully walking around his neighborhood, at 1201 Webster Avenue in the Bronx, New York, when defendants police officers JOHN PICONE and John/Jane Does 141 through 145 arrested and charged Mr. Wells with loitering in violation ofP.L. § 240.35(1) and with disorderly conduct in violation ofP.L. § 240.20(5). Mr. Wells was taken to the 44th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Wells with a violation ofP.L. § 240.35(1) and with disorderly conduct in violation ofP.L. § 240.20(5). At arraignment, Mr. Wells pleaded guilty to both charges and
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was sentenced to a tenn of conditional discharge of one year for each charge. He was also sentenced to a $60 surcharge, and civil judgment for the surcharge.
80. On or about March 30, 2005, Mr. Wells was again, as is his wont, peacefully walking around his neighborhood, at 1201 Webster Avenue in the Bronx, New York, when defendants police officers JOHN PICONE and John/Jane Does 146 through 150 arrested and charged Mr. Wells with loitering in violation ofP.L. § 240.35(1) and with disorderly conduct in violation ofP.L. § 240.20(5). Mr. Wells was taken to the 44th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Wells with a violation ofP.L. § 240.35(1). At arraignment, Mr. Wells pleaded guilty to P.L. § 240.35(1) and was sentenced to a term of conditional discharge of one year. He was also sentenced to $95 in fees and surcharges, and civil judgment for these amounts.
81. As a result of the aforesaid wrongful arrests and prosecutions for loitering in violation ofP.L. § 240.35(1), Mr. Wells was incarcerated for long periods. Mr. Wells felt compelled to plead guilty to violations ofP.L. § 240.35(1 ), and this now appears on his criminal history and is in the public record.
82. Court files and computer databases- including for arrests, charges, convictions, sentences, fines, bail and surcharge- concerning Mr. Wells are available to the public and report the unconstitutional conviction for P.L. § 240.35(1 ).
Edgar Turner 83. Plaintiff Edgar Turner is a 48 year-old Afiican-American man. 84. On at least one occasion in 2006, while Mr. Turner was peacefully standing on the street in Manhattan, and engaged in activities fully protected by the First Amend-
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menl, he was wrongfully arrested by uniformed officers employed by the NYPD, and charged, via a summons, with loitering in violation ofP.L. § 240.35(1).

85. ln or about October 2006, Mr. Tumerwas peacefully standing at 1141"

Street

and

81 "

Avenue

in

New

York

County,

wailing

for an

office

in

the

building

at

241

West

1141" Street to open.

86. Defendants police officers KARL HARRJS, Shield No. 937821 and

John/1 ane Does

151

through

155, who were

assigned

to

the

28

1 "

Precinct,

slopped

their car in

front of Mr. Turner, got out, stopped him, searched him, and demanded identification.

Defendants John/Jane Does 151-155 then charged Mr. Turner, via a summons, with loitering in

violation of P.L. § 240.35(1 ).

87. Mr. Turner was summoned to appear in court on December 8, 2006. 88. When Mr. Turner dutifully appeared to answer the summons for violating an unconstitutional, long void, statute, in Manhattan Criminal Court after former plaintiff Eddie Wise had asked a federal court to find defendants in contempt, the ticket was dismissed. 89. As a result of the aforesaid wrongful arrest and charge for loitering in violation ofP.L. § 240.35(1 ), Mr. Turner was required to appear in court in order to defend himself against prosecution for constitutionally defective charges.

KeithAnderson

90. Plaintiff Keith Anderson is a 42 year-old African-American man. ln order to obtain money for food, transportation and other necessities of life, Mr. Anderson peacefully begs for money on the streets ofNew York City. Mr. Anderson occasionally conducted this peaceful begging activity in the County ofthe Bronx.

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91. From time to time from 2002 to date, Mr. Anderson has also been casually employed by some business owners on Fordham Road in the Bronx to perform odd jobs, cleaning and errands.
92. On at least one occasion in 2002, and on another occasion in 2004, while Mr. Anderson was peacefully standing on the street in the Bronx, and engaged in activities fully protected by the First Amendment, he was wrongfully arrested by uniformed officers employed by the NYPD, charged with loitering in violation ofP.L § 240.35{1), and subjected to prosecution by the Bronx District Attorney's Office for this charge.
93. On August 20, 2002, Mr. Anderson was peacefully standing at or about 544 Fordham Road, Bronx, New York, when defendants police officers CHRISTOPHER LAGRASTA and John/Jane Does 156 through 160 arrested and charged Mr. Anderson with loitering in violation ofP.L § 240.35(1). Mr. Anderson was taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Anderson with a violation ofP.L § 240.35(1) and with A.C. § 10-136. At arraignment, Mr. Anderson pleaded guilty to the violation ofP.L § 240.35(1 ), and he was sentenced to a term of conditional discharge of one year. He was also sentenced to a $120 surcharge and civil judgment for that amount.
94. On or about September 8, 2004, Mr. Anderson was working at a checkcashing establishment, where he was casually employed to clean the store, at or about 544 Fordham Road, Bronx, New York. Mr. Anderson was carrying cleaning equipment including a broom, when defendants police officers DENNIS PALINKAS and John/Jane Does 161 through 165 arrested and charged Mr. Anderson with loitering in violation ofP.L § 240.35(1) and with disorderly conduct in violation ofP.L § 240.20(5). Mr. Anderson informed the police officers
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that he was actually working for the store as a cleaner. Upon information and belief, the store manager also told the police that Mr. Anderson was working there. Nonetheless, Mr. Anderson was arrested, taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Anderson with a violation ofP.L. § 240.35(1) and with P.L. § 240.20(5). At arraignment, Mr. Anderson pleaded guilty to the violation ofP.L. § 240.35(1), and he was sentenced to a term of imprisonment. He was sentenced to one day in jail, $95 in fees and surcharges, and civil judgments for these amounts.
95. As a result of the aforesaid wrongful arrests and prosecutions for loitering in violation ofP.L. § 240.35(1), Mr. Anderson was incarcerated for many days. Mr. Anderson was required to make court appearances in order to defend himself against prosecution for constitutionally defective charges. Mr. Anderson fell compelled to plead guilty to violations of P.L. § 240.35(1 ), and this now appears on his criminal history and is in the public record.
96. Court files and computer databases- including for arrests, charges, convictions, sentences, fines, bail and surcharge- concerning Keith Anderson are available to the public and report the unconstitutional conviction for P.L. § 240.35(1 ).
* * *
97. As a result of defendants' repeated unlawful and unconstitutional conduct described above, the Named Plaintiffs and members of the plaintiff class have suffered physical injuries, emotional distress, mental anguish, and psychological trauma.
98. The above-described wrongful, unjustifiable, and unlawful arrests, imprisonments, charges and prosecutions of the Named Plaintiffs were carried out without valid warrants, without plaintiffs' consent, and without probable cause.
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99. In arresting, confining, charging and prosecuting the Named Plaintiffs for loitering in violation ofP.L. § 240.35{1), or failing to prevent these occurrences, all defendants acted with malice, in that they knew or should have known that P.L. § 240.35(1) was long ago declared unconstitutional. Unconstitutional Po!icv and Practice in the NYPD
100. At all relevant times, the City, acting through the NYPD, maintained a de facto policy, custom and practice of enforcement ofP.L. § 240.35( 1), and of failing to train, supervise, or discipline police officers regarding their obligation to cease any enforcement ofP.L. § 240.35(1 ).
101. According to records maintained by the New York State Office of Court Administration, from October 7, 1992 to December 6, 2005, the New York City Police Department made 3,473 arrests and arraignments charging the Statute.
102. These same arrests resulted in 2,609 criminal prosecutions by District Attorneys' Offices in all five New York City Counties ("DAOs") charging the Statute that were filed in New York City courts.
I 03. As recently as December 2006, the Kings County DAO prosecuted someone for violation of the Statute, arising from an arrest on October 23, 2006.
104. These arrest and prosecution numbers do not include anyone who was arrested for, and charged, via summons or otherwise, with violating the Statute, but whose records have since been sealed pursuant to N.Y. Criminal Procedure Law Section 160.55.
105. New York City police officers have arrested and charged, via summons, thousands ofpeople for violating the Statute since 1992.
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106. According to records maintained by the New York State Office of Court Administration, from 1999 to 2005, defendants issued 3,602 summonses charging violations of the Statute.
107. On information and belief, countless more unlawful arrests and charges for violating P.L. § 240.35( 1) have occurred but no longer appear in the record due to the decisions oflhe NYPD to void the arrest, the decisions of the District Allomey's Offices not to prosecute, or due to various other dispositions.
108. On information and belief, officers in the NYPD rely upon P.L. § 240.35( 1) as a basis for issuing "move-on" orders to individuals who are peacefully standing or peacefully begging on the streets of New York City.
109. Since 1992, multiple arrests and charges for violating P.L. § 240.35(1) were made in police precincts all over New York City, including without limitation the following precincts: the 1", 5'", 6'', 7'", 9'", 10'11, 13th, 14'", 17'', 18'", 19'", 20'", 22"", 23'", 24'", 25'\ th, 28'",
30th'32"' " 3' 3'' 34th,40', " 4, 1" 42"',43,d 44'",45'",46'",47, '" 48, '" 49, '" 5, 0'" 52""'60'"'61' " 62' ""
63'', 66'\ 67'", 68'", 69'", 70'", 71", 72"", 73'", 75'", 76'", 77'", 78'", 79'", 81", 83'", 84'", 88'", 90'", 94'", 100'", 101", 102"", 103'", 104'", 106'", 107'", J08ll', 109'", 110'", 111'", 112'", 113'", 114'", 115'", 120'", and 122"".
110. In light of the many thousands of arrests and charges throughout New York City for violations ofP.L. § 240.35(1), defendants knew, or should have known, that many police officers were engaging in the lawless and unconstitutional practice of arresting people for violations of a void and unenforceable statute; yet defendants have repeatedly failed to take any action to end this conduct.
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111. The arrests of the Named Plaintiffs were made by police officers assigned to the 28'", 40'", 44'", 47'", and 48'" Precincts, including Defendants Ricker, Acito, Titone, Lagrasta, Palinkas, McCoy, and Harris. The pattern of unconstitutional arrests by police officers assigned to the 28'", 40'";44'" and 48'" Precinct and other NYPD Police Precincts has been condoned by supervisors in those precincts and supervisors in other NYPD Police Precincts, and by defendants City of New York, Buzzetti, Essig, Mercandetti, Montgomery, and Kelly.
112. On information and belief, supervisors in the 28'", 40'", 44'", and 48'" Precinct and all NYPD police precincts receive or received daily a compilation of reports documenting the bases for arrests and summonses effected in the previous day. These reports have for years documented, and continue to document, the arrests and summonses complained of here. Accordingly, defendants City, Buzzelli, Essig, Mercandetti, Montgomery, Kelly, and other Jane/John Doe supervisory members of the NYPD (the "NYPD Supervisory Defendants") have been aware of the arrests and summons for violations ofP.L. § 240.35(1) and the continuing violation of rights attendant to these acts; yet, have failed to take any action to end this conduct.
113. In light ofthe history of arrests and summonses throughout New York City for violations ofP.L. § 240.35(1), the NYPD Supervisory Defendants knew to a moral certainty that police officers under their supervision, including Defendants Ricker, Acito, Titone, Lagrasta, Palinkas, McCoy, and Harris would confront the situation wherein they would need to exercise discretion regarding whether or not to arrest individuals or issue summonses for violation ofP.L. § 240.35( 1), and that there was a history ofpolice officers mishandling this situation. Yet, on information and belief, the NYPD Supervisory Defendants did not take any action to require or
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provide proper training or re-training on how police officers should exercise their discretion in the above-described situation.
114. Even after this case was commenced on June 10, 2005, and the Court directed defendants to "cease enforcement" of P.L. § 240.35( 1), defendants continued to arrest and charge individuals for violating P.L. § 240.35( 1).
115. Since June 23, 2005, for example, defendants arrested 56 people in New York City for violations ofP.L. § 240.35( 1).
116. Since June 23, 2005, defendants have arrested and charged, via a summons, approximately 641 people for violating P.L. § 240.35(1 ). These charges have resulted in the issuance of approximately 50 warrants of arrest.
117. The NYPD Supervisory Defendants' failure to train, discipline or supervise police officers regarding their obligation not to arrest individuals or issue summonses for violations ofP.L. § 240.35(1 ), and their obligation not to enforce this statute, exhibited gross and wanton deliberate indifference to the constitutional rights of the Named Plaintiffs and members ofthe Class.
118. On information and belief, the arrest of citizens and issuance of summonses for violations of a void 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
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existence, and the failure of the supervisory defendants to take remedial action, constitute deliberate indifference to the rights of the Named Plaintiffs and the Class.
119. The NYPD Supervisory Defendants conduct has, moreover, been a substantial factor in the continuance of such arrests and charges and is a proximate cause of the constitutional violations alleged in this complaint.
120. Because the pattern or practice of arresting and charging individuals for violating P.L. § 240.35(1) has existed for many years, 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.
121. Because, upon information and belief, a pattern or practice existed of arresting and charging individuals for violating P.L. § 240.35(1 ), 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. Defendants' Race-Based and Discriminatory Enforcement ofthe Statute
122. Defendants have used race and/or national origin as determinative factors in deciding to enforce the Statute.
123. Defendants have enforced the Statute in a discriminatory and race-based manner by singling out Afiican-American and Latino New Yorkers for arrest under the Statute.
124. Defendants have disproportionately targeted people of color for arrest under the Statute: out of the 3,417 arrests and arraignments that are thus far documented from
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1992 to 2005 for the Statute, approximately 70% of those arrested were African-American, and about 17% were Latino.

Unconstitutional Enforcemellt Out o[the Statute Outside o(New York City

I25. According to limited OCA data, there have been no fewer than 673 criminal prosecutions by District Attorneys' Offices charging the Statute that have been filed in counties outside ofNew York City. The OCA data does not include sealed cases. Sealed cases are basically any cases that did not result in a conviction. OCA only maintains date for 13

counties in New York State (New York, Kings, Queens, Richmond, Bronx, Nassau, Suffolk, Erie, Rockland, Dutchess, Orange, Putnam and Westchester). OCA has no date for the remaining 49 counties around the State.

126. Accordingly, on information and belief, there are many hundreds and likely thousands of other arrests, charges and/or prosecutions that have occurred outside the City ofNew York. TI1is is also confirmed by news reports based on the unsealed OCA database, for a shorter period, which indicate that there were at least 5 I2 cases in Erie County alone. See Hundreds Busted Under Bogus Law, N.Y. DAILY NEWS, July 3, 2005.

I 27. Moreover, when asked by a reporter whether anything would be done to overturn these wrongful convictions, Erie County Deputy District Attorney Yvonne Vertlieb's response was: "I would say we're pretty much going to do nothing." ld.

State.

128. Enforcement of the Statute is thus a widespread problem across New York

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Unconstitutional Pa/icv allll Practice in the District Attomev's Offices 129. At all relevant times, defendant City, acting through the DAOs in all five
counties, and the DA Supervisory Defendants, who include defendant Robert Johnson and supervisors employed by the DAOs who are sued as Jane/John Does 101-125 (the "DA Supervisory Defendants"), maintained a policy, custom and practice whereby they prosecuted individuals for violations of the Statute and failed to train, supervise or discipline assistant district attorneys regarding their obligation not to prosecute individuals for violations of New York Penal Code 240.35( 1).
130. At all relevant times, the DA Supervisory Defendants maintained a policy, custom and practice whereby they prosecuted individuals for violations of the Statute, and failed to train, supervise or discipline assistant district attorneys regarding their obligation not to prosecute individuals for violations of New York Penal Code 240.35(1).
131. At all relevant times, defendant Johnson was responsible for the management and administration of the Bronx DAO, including decisions regarding supervision, training, and discipline of assistant district attorneys employed therein. As the Bronx District Attorney, defendant Johnson knew or should have known that an arrest, summons, or prosecution of a citizen for violation ofP.L. § 240.35(1) would cause the deprivation of that citizen's constitutional rights.
132. TheDA Supervisory Defendants and Defendant Johnson's failure to train or supervise assistant district attorneys in the Bronx DAO regarding their obligation not to prosecute individuals for violations ofP.L. § 240.35(1) exhibited gross and wanton deliberate
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indifference to the constitutional and common law rights of the Named Plaintiffs and members of the Class.
133. The pattern or practice of prosecuting individuals for violations of P.L. § 240.35(1) commenced as early as 1992, and since 1992, there have been multiple prosecutions for violations ofP.L. § 240.35( I), defendant Johnson and the DA Supervisory Defendants knew, or should have known, that assistant district attorneys were engaging in the unlawful practice of prosecuting people for violations of a void and unconstitutional statute, yet defendant Johnson and the DA Supervisory Defendants failed to take any action to end it.
134. Defendant Johnson and the DA Supervisory Defendants knew or should have known that assistant district attorneys assigned to their offices required training, supervision, and discipline regarding their obligations to refuse to prosecute individuals for violations of a void statute.
135. In light of the history of unjustified prosecutions, defendant Johnson and the DA Supervisory Defendants knew to a moral certainty that assistant district attorneys would confront the situation wherein they would need to exercise discretion regarding whether or not to prosecute individuals for violation ofP.L. § 240.35(1 ).
136. Defendant Johnson and the DA Supervisory Defendants' failure to train and supervise assistant district attorneys in the DAOs concerning their obligation not to prosecute individuals for violations ofP.L. § 240.35( I) exhibited gross and wanton deliberate indifference to the Named Plaintiffs' constitutional and common law rights. The failure of the DA Supervisory Defendants to train and supervise assistant district attorneys has, moreover, been a
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substantial factor in the continuance of such prosecutions and a proximate cause of the constitutional violations alleged in this complaint.
137. On information and belief, the failure of defendant Johnson and the DA Supervisory Defendants 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 these supervisory defendants to take remedial action, constitutes deliberate indifference to the rights of these citizens. These defendants' conduct has been a substantial factor in the continuance of such arrests and a proximate cause of the constitutional violations alleged in this complaint. Liabilitv ofthe City o(New York
138. Currently, as well as prior to and at the time of the arrests of the Named Plaintiffs, there exists and existed in the NYPD and the DAOs throughout the City ofNew York, a pattern and practice of arrest, issuance ofsummonses, confinement, and prosecution for violations ofP.L. § 240.35(1) by police officers, and assistant district attorneys.
139. The pattern of unconstitutional arrests, summons, and prosecutions for violations of a void statute; the failure to train staff regarding the nullity of the statute; 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 ofP.L.§ 240.35(1 ), that caused the deprivation of the Named Plaintiffs' rights and those of the Class.
140. The NYPD and DAOs, through their supervisory staff, police officers and prosecuting attorneys, have failed or refused to hold accountable high-ranking supervisors -
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commanding officers, supervising attorneys - 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 the Named Plaintiffs and by other individuals arrested or charged for violations of P.L.§ 240.35(1). The continuing inaction of the NYPD Supervisory Defendants and the DA Supervisory Defendants (collectively the "Supervisory Defendants") exposes current and future citizens, including the Named Plaintiffs and members of the class to a pervasive risk of being arrested, charged and prosecuted for a void crime.
141. The pattern of unconstitutional arrests and charges pursued 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 of the NYPD and the DAOs to supervise these employees properly and to take action to curb the misconduct, demonstrate a policy of deliberate indifference which tacitly authorizes the unconstitutional arrests of citizens like the Named Plaintiffs who are engaged in constitutionally protected First Amendment activity.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983; First, Fourth, Fifth,
and Fourteenth Amendments (Against the Individual NYPD Defendants)
142. 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.
143. By repeatedly falsely arresting, falsely imprisoning, and maliciously prosecuting the Named Plaintiffs and members of the class without probable cause or allowing
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such arrests to occur, defendants Ricker, Acito, Picone, Lagrasta, Palinkas, McCoy, Harris, Jane/John Does 51-100, and Jane/John Does I26-155 (the "Individual NYPD Defendants") 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.
144. By repeatedly harassing, stalking, falsely arresting, falsely imprisoning, and/or maliciously prosecuting the Named Plaintiffs and members of the plaintiff class and thus inhibiting their free speech activities, the Individual NYPD Defendants deprived plaintiffs and the putative plaintiff class of their rights, remedies, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the United States Constitution.
145. By arresting, summonsing, arraigning, and prosecuting the Named Plaintiffs and members of the plaintiff class under an unconstitutional and void Statute, defendants acted in an arbitrary, conscience-shocking and oppressive manner in violation of plaintiffs' rights to due process oflaw under the Fourteenth Amendment to the United States Constitution.
146. By singling out the Named Plaintiffs and members of the plaintiff class for enforcement of the Statute because of their race and/or national origin, the Individual NYPD Defendants deprived plaintiffs and the putative plaintiff class of their rights, remedies, privileges, and immunities guaranteed by the Equal Protection Clause of the United States Constitution.
I47. The Individual NYPD Defendants acted under pretense and color of state Jaw and in their individual and official capacities and within the scope of their employment.
148. The Individual NYPD Defendants acted beyond the scope of their jurisdiction, without authority oflaw, and abused their powers.
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149. The Individual NYPD Defendants acted willfully, knowingly, and with the specific intent to deprive plaintiffs and members of the Class of their constitutional rights.
150. 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 and hereinafter alleged.
SECOND CAUSE OF ACTION 42 U.S.C. § 1983 Supervisory Liability; First, Fourth and Fourteenth Amendments (against the NYPD Supervisory Defendants) 151. 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.
152. 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, charged and imprisoned plaintiffs and members of the Class, and violated their constitutional rights.
153. On information and belief, the NYPD Supervisory Defendants were aware and well-informed ofthe Individual NYPD Defendants' conduct of false arrest, false imprisonment and malicious prosecution perpetrated against plaintiffs and others.
154. 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 of the Named Plaintiffs and others.
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155. The NYPD Supervisory Defendants failed to protect the Named Plaintiffs 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.
156. 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 of the Individual NYPD Defendants.
157. 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.
158. 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.
THIRD CAUSE OF ACTION 42 U.S.C. § 1983 Supervisory Liability; First, Fourth and Fourteenth Amendments (against the DA Supervisory Defendants including Defendant Johnson) 159. 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.
160. TheDA Supervisory Defendants at all relevant times had oversight responsibility over the assistant district attorneys employed in their office and were responsible for their training, instruction, supervision and discipline, including for the assistant district attorneys who wrongfully prosecuted the Named Plaintiffs and members of the Class.
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161. TheDA Supervisory Defendants had actual or constructive knowledge that assistant district attorneys had repeatedly violated the constitutional rights of the Named Plaintiffs and members of the Class and were engaged in conduct that posed a pervasive and unreasonable threat to those rights.
162. The response of the DA Supervisory Defendants was so inadequate as lo show deliberate indifference or tacit approval of the conduct of the assistant district attorneys who were wrongfully prosecuting plaintiffs and/or members of the Class based on a constitutionally invalid statute.
163. The failure of the DA Supervisory Defendants lo supervise and discipline the assistant district attorneys who prosecuted the Named Plaintiffs and members of the Class for loitering under a constitutionally invalid statute amounted to gross negligence, deliberate indifference, and/or intentional misconduct.
164. 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.
FOURTH CAUSE OF ACTION 42 U.S.C. § 1983- Municipal Liability/NYPD
(Against defendant City) 165. Plaintiffs repeal, 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.
166. Since all east 1992, defendant City has permitted, tolerated and been deliberately indifferent to a pattern and practice of illegal behavior by members of the NYPD.
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167. Defendant City had knowledge to a moral certainty that members of the NYPD named as defendants in this case had falsely arrested, charged and imprisoned plaintiffs for the constitutionally invalid charge ofloitering in violation ofP.L. § 240.35(1), in violation of plaintiffs' First, Fourth, Fifth, and Fourteenth Amendment rights, and in retaliation for plaintiffs' free speech activities. 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.
168. 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.
169. Defendant City has failed to train police officers that arrests and summonses made under P.L. § 240.35(1) are invalid because the statute had been declared unconstitutional.
170. Defendant City's failure to train police officers that arrests and summonses made under P.L. § 240.35(1) were invalid constituted deliberate indifference to the federally protected rights of plaintiffs and the Class.
171. 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.
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172. Defendant City maintained a de facto policy, custom and practice of enforcement ofP.L. § 240.35(1) that constituted deliberate indifference to the federally protected rights ofplaintiffs and the Class. As a result, plaintiffs and members of the Class were exposed to their illegal acts, which Jed to serious injury.
I 73. 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.
174. As a direct and proximate result of the aforesaid acts, omissions, systematic flaws, policies, and customs of defendant City, the Named Plaintiffs and members of the Class suffered and continue to suffer serious actual injuries, including without limitation, emotional and mental distress, degradation and humiliation.
FIFTH CAUSE OF ACTION 42 U.S.C. § 1983 -Municipal Liability/DA
(Against defendant City)
175. 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.
176. Since at least 2002, the City, acting through the DAOs for all five counties, has permitted, tolerated and been deliberately indifferent to a pattern and practice of illegal behavior by assistant district attorneys employed in the DAOs.
I 77. The City, through the DAOs, had knowledge to a moral certainty that assistant district attorneys were prosecuting the Named Plaintiffs and other individuals for the
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constitutionally invalid charge of loitering in violation of P.L. § 240.35(1 ), in violation of plaintiffs' First, Fourth, and Fourteenth Amendment rights.
178. Permitting such outrageous behavior has resulted in violations of the federal and stale constitutional rights of plaintiffs and members of the Class.
179. The City, through the DAOs, failed to train assistant district attorneys that prosecutions under P.L. § 240.35(1) were invalid because the statute was unconstitutional.
180. The City's and its DAOs' failure to train assistant district attorneys that prosecutions under P.L. § 240.35(1) were unconstitutional constituted deliberate indifference to plaintiffs' federally protected rights.
181. The City, through the DAOs, failed to supervise, investigate, and discipline the assistant district attorneys who engaged in the behavior of unconstitutionally prosecuting citizens. As a result, plaintiffs and members of the Class were exposed to illegal acts that Jed to serious injury.
182. As a direct and proximate result of the aforesaid acts, omissions, systematic flaws, policies, and customs ofthe DAOs, the Named Plaintiffs and members of the Class suffered and continue to suffer serious actual injuries, including without limitation, emotional and mental distress, degradation, humiliation, and other damages as hereinbefore alleged.

WHEREFORE, the Named Plaintiffs and members of the Class requests the following reliefjointly and severally as against all of defendants:

l.

A judgment declaring that defendants have committed the violations oflaw

alleged in this action;

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2.

An order certifying this case as a bilateral class action pursuant to Fed. R. Civ. P.

23; including certifYing a Rule 23(b)(2) plaintiff class consisting of all persons

who have been or will be arrested, charged or prosecuted for a violation ofP.L.

§ 240.35(1) in the State ofNew York from 1992 onward; and a Rule 23(b)

plaintiff subclass consisting of all persons arrested, charged or prosecuted for a

violation of P.L. § 240.35(1 ), by employees, agents or representatives of the City

ofNew York, from 1992 onward; and a Rule 23(b)(2) defendant class, to be

represented by defendants City ofNew York, Raymond Kelly and Robert

Johnson, and consisting of all political sub-divisions and all law

enforcement/prosecutorial policy-making officials in the State ofN ew York with

authority to arrest, charge or prosecute a person with a violation under the New

York Penal Law.

3.

An order permanently enjoining and directing defendants and all members of the

defendant class to cease enforcement of New York Penal Law § 240.35( l ); and to

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

charged or prosecuted for violations of New York Penal Law § 240.35(1 ),

including without limitation:

A. Directing defendants City, Johnson and Kelly to routinely communicate to all members of the NYPD and the assistant district attorneys within the City ofNew York that P.L. § 240.35(1) is void and unenforceable;

-40-

Case 1:05-cv-05442-SAS Document 63-3 Filed 02/02/07 Page 42 of 44

B. Directing defendants City, Johnson and Kelly to routinely communicate to all court personnel within the City of New York, including judges and clerks, that P.L. § 240.35(1) is void and unenforceable;

C. Directing that ongoing remedial training concerning P.L.

§ 240.35(1) be provided to all members of the defendant class,

including current members of the NYPD, all future members of the

NYPD (via training at the police academy), and all supervisory

members of the NYPD through a dedicated mandatory training;

D

Directing that ongoing remedial training concerning P.L.

§ 240.35(1) be provided to all current assistant district attorneys

and all future assistant district attorneys throughout the State (via

new hire training), including any specific training for supervisors

deemed necessary;

E. Directing all members of the defendant class to put in place a system for tracking all arrests or charges for P.L. § 240.35(1) in a contemporaneous manner so that any arrest or charge can be immediately terminated;

F.

Directing all members of the defendant class to program any and

all databases including but not limited to the NYPD computerized

arrest and complaint system, the OCA Criminal Records

Information Management System ("CRJMS") and summonses

-41-

Case 1:05-cv-05442-SAS Document 63-3 Filed 02/02/07 Page 43 of 44

databases, and the DCJS fingerprint inquiry and criminal history databases, to reject P.L. § 240.35(1) as a valid charge and generate an error report;

G. Directing all members of the defendant class to issue policies and procedures to ensure that P.L. § 240.35(1) is not enforced, including without limitation, NYPD Patrol Guide procedures and training manuals; and

H. Directing all defendant class members to disgorge all fees,

surcharges and fines paid by plaintiffs and members of the plaintiff

class in connection with enforcement ofthe Statute.

3.

An order preliminarily and permanently enjoining all defendant class members to

take any and all remedial measures necessary to completely remove all records of

any arrest, charge, prosecution or conviction ofP.L. § 240.35(1) that occurred

after October 7, 1992, 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 a P.L. § 240.35(1) arrest, charge,

prosecution or conviction;

B. directing that any convictions and/or warrants contained in any criminal records concerning violations ofP.L. § 240.35(1) be immediately expunged;

-42-

Case 1:05-cv-05442-SAS Document 63-3 Filed 02/02/07 Page 44 of 44

C. directing that all outstanding warrants concerning violations of P.L.

§ 240.35( 1) be immediately vacated and expunged;

4.

Compensatory damages against all named defendants in an amount to be proven

at trial;

5.

Punitive damages against all named 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: February 1, 2007 New York, New York

EMERY CELLI BRJNCKERHOFF &ABADYLLP
By:~O~ Matthew D. Brinckerhoff (3552) Katherine Rosenfeld (8525) 75 Rockefeller Plaza- 20'" Floor NewYork,NewYork 10019 (212) 763-5000

THE BRONX DEFENDERS
J. McGregor Smyth, Jr. (JS 9995) 860 Courtland! Avenue Bronx, New York 10451
(718)838-7878

Attomeysfor Plaintiffs and the Putative Class

-43-

 
 ' ;

.. ..

Case 1:05-cv-05442-SAS Document 5 Filed 06/24/05. : P~ ·-age 1 of 3

:::n ·:.. UNITED STATES DISTRICT COURT

\ ·. ~- -·

\t SOUTHERN DISTRICT OF NEW YORK

1_·' . .. .'•. -

J.~. :~-·~·:·.--~:···-- ----------------------------------------------------------------------- X

\\ ,,..,.:' ;.

.• ,_ ~- ~- " . T :~--~.r
. . ··-· . ,. --- ~...

~ '

..........J,..,.......-,;.--hr-;;= l

EDDIE WISE, on Behalf of Himself and Others Similarly

t_:.::-.-. \ 1) l! 't~ j~,-~j:.'~-'~~~·.·-)-.)~!".r..-"·--·-·--_-.~.,.-..--·-

Situated,

Plaintiffs,

[) s 0 c, STIPULATION

AND
If

ORDER /r ).
t.fLj o1 '-\JdS

-against-

RAYMOND W. KELLY, Commissioner ofthe New York

City Police Department (NYPD); BARRY M. BUZZETTI,

Captain and Commanding Officers, NYPD 48th Precinct;

JOHN/JANE DOES 1-50 (NYPD Supervisory, Training,

and Police Personnel); CITY OF NEW YORK; Police

.. '.- ~ :.

Officers MICHAEL CURLEY, COREY HARRIS,

MIGUEL MUSSE, KEVIN LYNCH, JOHN BRENNAN,

JOHN/JANE DOES 51-100 (police officers); ROBERT

JOHNSON, District Attorney of Bronx County; and

JOHN/JANE DOES 101-125 (Supervisory, Training, and

Policy Personnel within the district attorney's offices);

JUDITH KAYE, in her capacity as Chief Judge of the State

of New York and Chief Judicial Officer of the Unified

Court System; JONATHAN LIPPMAN, in his official

capacity as Director of Criminal Justice and Commissioner

of the New York State Division of Criminal Justice

Services ("DCJS"),

Defendants.

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

IT IS HEREBY STIPULATED AND AGREED, upon the district court's full and complete review of the terms of the Stipulation, by and between the defendants Raymond W. Kelly, Commissioner of the New York City Police Department; City of New York; and Robert Johnson, District Attorney ofBronx County, (hereinafter "City Defendants"), and Plaintiff Eddie Wise, and without prejudice to plaintiff's right to seek further injunctive relief:
1. The City of New York, Robert Johnson, and their respective employees shall cease enforcement of New York Penal Law§ 240.35(1).

Case 1:05-cv-05442-SAS Document 5 Filed 06/24/05 Page 2 of 3 2. On June 9, 2005, City Defendants sent immediate notices to all NYPD precincts and commands and to their respective employees that New York Penal Law § 240.35(1) is void
and unenforceable. 3. Additionally, on June 10, 2005, a FINEST message was sent to all NYPD
precincts reminding them that New York Penal Law § 240.35 (1) is unconstitutional and directing members of the service not to enforce it. A copy of the June 10, 2005 FINEST message is annexed hereto and made a part hereof as Exhibit "A."
4. To insure that all members of the service were made aware of the FINEST message, the message was read at 10 consecutive roll calls which are conducted at the time officers report for duty at the start of their assigned tour.
5. On June 9, 2005, notification was sent to the Chief of the Criminal Bureau and Deputy Chief of the Complaint Room of the Bronx District Attorney's Office.
6. Notification in the form annexed hereto as Exhibit "B" will be sent to all Assistant District Attorneys in the Office of the District Attorney of Bronx County informing them that New York Penal Law§ 240.35(1) is void and unenforceable.
7. Notification in the form annexed hereto as Exhibit "C" was sent to the Offices of the District Attorneys of Queens, New York, Richmond, and King Counties informing them that New York Penal Law§ 240.35(1) is void and unenforceable.
8. Robert Johnson shall seek to dismiss any and all charges and summonses pending solely under Penal Law § 240.35(1) including conditional discharges and violations thereof related to prior charges and/or convictions solely under Penal Law § 240.35(1); City Defendants shall immediately release from custody anyone held solely on the charge of violating Penal Law § 240.35(1) or, on a charge of violating the terms of a conditional discharge relating solely to § 240.35(1 ); and City Defendants shall immediately seek to vacate all warrants relating to charges or summonses solely for Penal Law§ 240.35(1).
-2-

9. CaTsehe1C:0o5u-rctvs-h0a5ll4r4e2ta-iSnAjuSrisdDioctciounmoevnetr5theFSilteipdu0la6ti/o2n4/a0n5d OPrdaegrefo3r oefn3forcement

purposes and to ensure compliance with its terms.

Dated:

New York, New York June 22, 2005

EMERY CELLI BRINCKERHOFF & ABADY
LLP Attorneys for Plaintiff 545 Madison Avenue New York, New York 10022
By:~~
Katherine Rosenfeld (8525) Matthew D. Brinckerhoff (3552)

Dated:

New York, New York June 22, 2005

BRONX DEFENDERS J. McGregor Smyth (9995)

Dated:

New York, New York June 22, 2005

MICHAEL A. CARDOZO Corporation Counsel of the City ofNew York Attorney for City Defendants 100 Church Street, Room 3-226 New York, New York 10007
By:
achel A. Sehgman (RS 6674) Leticia Santiago (LS 1573)

. Scheindlin
;).-3 2005 J
- 3-

 
 NYC LACI.UaDsEePA1R:T0M5E~-clTv-0544F2a-xS=A21S2-7D88o-c1u91m5ent 54 Filed 12/14/06 Page 1 of 2

TJNITEP STATES DISTRICT COURT SOUTHERN DISTRlCT OF NEW YORK

EDDIE WISE and MICHAEL BROWN,
onBehalfofThemselves and Others Similarly Situated,

05 Civ.

-against-

Plaintiffs,

RAYMOND W. KELLY, et al.,

Defendants.

--------~--------------------------------------------------------X

. ~

. ·~'

t: i.' /'· .

U:..---:.::.:.;.:;.: .~·:. ,·

Upon the December 6, 2006 proceedings before this Court, the transcript of the November

29, 2006, the letter submitted to the Court by defendants' counsel dated November 9, 2006, and all

pleadings and proceedings relevant to this action, it is hereby ORDERED that:

1. Within the next thirty (30) days, defendants shall send letters to all police officers in the New

York City Police Department ("NYPD") who have issued summonses or made arrests under

New York Penal Law§ 240.35(1) ("the Statute") since J1.me 23, 2005, informing said officers

the Statute is unconstitutional and cannot be charged, and warning these officers that future

enforcement of the Statute may lead to disciplinary action being taken against them by the

NYPD. Defendants shall send a copy of said letter to these officers' commanding officers;

2. By I anuary 1, 2007, defendants shall perform in-service training for Training Sergeants

within the NYPD to reinforce that the Statute is unconstitutional and should not be enforced;

3. By January 1, 2007, defendants shall complete training in the 75th Precinct of the NYPD

to reinforce that the Statute is unconstitutional and should not be enforced;

4. By March 1, 2007, defendants shall complete in-service training for~police officers at the

NYC LACWasDeEPA1R:0TM5!-::cNvT-05442-S:A21S2-7D88o-c1u9m15ent 54 FiledDe1c2/1144/200606 Pa15g=e522 of 2 P.04

preci.rict level throughout the NYPD to reinforce that the Statute is unconstitutional and

should not be enforced;

5. Defendants shall conduct training at the promotional class for Lieutenants scheduled for

December 2006 and at the next scheduled promotional class for Sergeants to reinforce that

the Statute is unconstitutional and should not be enforced; and

6. Upon defenda:nts' receipt and review ofperiodic updates regarding the NYPD's enforcement

of the Statute from the New York State Office of Court Administration, defendants shall

periodically send letters to officers in the NYPD who have made arrests or issued
'- i
summonses for the Statute, reinforcing that the Statute is unconstitutional and should not be

enforced, and warning these officers that future enforcement of the Statute may lead to

disciplinary action being taken against them by the NY'PD. In the case ofofficers who have

received one letter and continue to enforce the Statute thereafter, defendants may initiate

appropriate disciplinary action against these officers.

-t£-, Dated: December

2006

 
 Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------)(
MICHAEL BROWN,

Plaintiff, -againstRAYMOND KELLY, et al.,

MEMORANDUM OPINION AND ORDER
05 Civ. 5442 (SAS)

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

By letter dated April 6, 2007, plaintiff moves for a protective order,

pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, prohibiting further

discovery of the medical/psychiatric/disability records of putative class

representatives, in the above-captioned putative class action, on the ground that

such discovery serves no legitimate purpose and is being demanded solely to

annoy, embarrass and oppress the putative class representatives. Defendants filed

a response by letter dated April 10, 2007, and plaintiff responded by letter dated

April 12, 2007. Based on these submissions and my review of the citations

contained in these letters, plaintiffs motion is GRANTED.

The named and putative class plaintiffs seek to represent a class made

up of "all persons who have been or will be arrested, charged, or prosecuted for a

-1-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 2 of 9

violation ofP.L. § 240.35(1) in the State of New York from October 7, 1992 onward ...." 1 This statute, which criminalized loitering in a public place for the purpose ofbegging, was declared unconstitutional in 1992.2 Despite this, there is no dispute that the New York City Police Department has continued to arrest people engaging in peaceful begging, and that these arrests continue to result in charges being brought by local prosecuting authorities.
The parties are now engaged in discovery with respect to the question of class certification. Defendants demand that putative class representatives' medical records and other records retlecting any other disabilities (drug treatment records, social security records, etc.) be produced for two purposes. First, defendants assert that putative representatives' past histories of psychiatric illness and/or treatment (and drug use, if any) are relevant to the question of whether they are adequate to act in the capacity of class representatives. Second, defendants claim that plaintiff has put their psychiatric condition in issue by seeking damages for emotional distress.
Plaintiff, in tum, resists the demand for releases and records on both

See Memorandum ofLaw in Support of Plaintiffs Motion to Amend the Complaint and for Class Certification (filed Feb. 1, 2007), at 2.

2
1993).

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

-2-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 3 of 9
grounds. With respect to adequacy, plaintiff notes that the putative class necessarily consists of "poor and homeless New Yorkers, who often rely on panhandling for subsistence [and] will therefore include many mentally ill individuals."3 Indeed, plaintiff cites a report from the Coalition for the Homeless, which states that "as many as 75% of the homeless suffer from severe and persistent mental illness."4 Plaintiff also notes that the putative class is not suing for either the intentional or negligent infliction of emotional distress, but rather seeks damages for the limited emotional distress caused by their unlawful arrests. They do not allege that these arrests have caused them permanent or continuing harm. They have agreed not to call an expert at trial to testify to any emotional injuries resulting from the arrests. They describe their requested damages as "garden-variety" claims for emotional distress.5
Plaintiff is right in both of his arguments and accordingly, plaintiffs motion for a protective order is granted. While it is true that Rule 23(a)(4) requires that "[t]he representative parties will fairly and adequately represent the
3 April 6, 2007 Letter from Katherine Rosenfeld, counsel to plaintiff, to Rachel Seligman, counsel to defendants ("4/6/07 Rosenfeld Letter"), at 3.
4 Coalition for the Homeless, State ofthe Homeless Report 2004, at 22, available at www.coalitionforthehomeless.org.
5 4/6/07 Rosenfeld Letter, at 5. -3-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 4 of 9
interests of the class," this rule cannot be rigidly applied.6 As one court has noted,
"[i]f the courts prevent persons with questionable moral characters from acting as
class representatives, [classes of] prisoners, mental patients, juvenile offenders, or
others capable of socially deviant behavior could never ... be certified. This is an
unacceptable result."7 As this Court also noted in a previous decision, an 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
6 Fed. R. Civ. P. 23(a)(4). 7 Jane B. by Martin v. New York City Dep 't ofSoc. Servs., 117 F.R.D. 64,71 (S.D.N.Y. 1987). Accord Sparks v. Seltzer, No. 05 Civ. 1061,2005 WL 3116635 (E.D.N.Y. Nov. 22, 2005) (finding psychiatric patient at mental hospital adequate to represent a class of patients challenging the constitutionality of visitation practices); Cortigiano v. Oceanview Manor Horne for Adults, 227 F.R.D. 194, 199 (E.D.N.Y. 2005) (finding mentally disabled residents of adult home adequate as class representatives in disability discrimination suit); Noble v. 93 Univ. Place Cmp., 224 F.R.D. 330 (S.D.N.Y. 2004) (finding that representative plaintiffs who had difficulty speaking or reading English, and who therefore might have difficulty supervising class counsel, were nonetheless adequate to represent a class oflow-income kitchen workers); Ingles v. City ofNew York, No. 01 Civ. 8279, 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003) (finding mentally ill inmate adequate to represent a class of abused inmates); Daniels v. City ofNew York, 198 F.R.D. 409,418 (S.D.N.Y. 2001) (rejecting attempt to disqualify putative class representative based on his alleged "lack of mental competence"); Hirschfeld v. Stone, 193 F.R.D. 175 (S.D.N.Y. 2000) (finding incapacitated criminal defendants confined to state psychiatric hospital adequate class representatives); Monaco v. Stone, 187 F.R.D. 50 (E.D.N.Y. 1999) (approving class representative who was involuntarily confined to state psychiatric hospital).
-4-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 5 of 9
individual action."8 As a result, given the makeup of this putative classprimarily homeless people panhandling for subsistence- the fact that individuals have suffered from mental illness andJor drug addiction is not relevant to their adequacy to act as class representatives. Defendants have had the opportunity to question each putative class representative with respect to their understanding of this action, as well as their mental illnesses and current or prior drug use. Poring over their medical records is not going to add anything to the picture, which is already quite clear. Defendants have enough ammunition to attack adequacy on these grounds, an attack that, given the case law cited below, is unlikely to persuade the Court that these individuals cannot adequately represent the putative
Putative class representatives have not waived their patientpsychotherapist privilege by bringing this action. As noted earlier, they are not seeking damages for permanent or long-lasting emotional distress arising from these unlawful arrests. Indeed, many, if not all of them, have conceded that they
8 Noble, 224 F.R.D. at 344. 9 Representation is adequate if there is no conflict of interest between the named plaintiffs and the other class members and if named plaintiffs' attorneys are qualit1ed, experienced and capable. See Baffa v. Donaldson, Lufkin & Jenrette Sees. Corp.,, 222 F.3d 52, 60 (2d Cir. 2000).
-5-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 6 of 9
have long suffered from psychiatric conditions (e.g. schizophrenia) unrelated to
these arrests. They are only seeking emotional damages for the immediate distress
caused by an unlawful arrest. Several courts have held that where a plaintiff seeks
damages for "garden-variety" emotional distress, the plaintiff has not put his medical history in issue, nor has he waived his physician-patient privilege. 10
Defendants cite many cases for the proposition that where a plaintiff seeks
damages for emotional distress he places his medical condition in issue and thus
waives his privilege with respect to his medical records evidencing treatment for any mental condition or illness. 11 While this is generally the rule, the cases relied
on by defendants are distinguishable. In those cases, plaintiffs either voluntarily
waived their privilege, were suing defendants for either the intentional or
10 See, e.g., Greenberg v. Smolka, No. 03 Civ. 8572,2006 WL 1116521, at *8 (S.D.N.Y. Apr. 27, 2006) (holding that "the fact that plaintiff is in treatment for a condition unrelated to the distress that was triggered by the misconduct does not, by itself, provide a basis for suggesting either that the treatment is in issue as a result of the plaintiffs claim or that access to treatment records is in any sense necessary or even significant for evaluating such a claim"); Jessamy v. Ehren, 153 F. Supp. 2d 398, 401 (S.D.N.Y. 2001) ("[M]any courts distinguish between psychiatric injuries, such as PTSD, and 'garden variety' claims of emotional distress."); Ruhlmann v. Ulster County Dep 't ofSoc. Servs., 194 F.R.D. 445,450 (N.D.N.Y. 2000) (holding that "a party does not put his or her emotional condition in issue by merely seeking incidental, 'garden variety,' emotional distress damages").
11 See April 10, 2007 Letter from Seligman to the Court, at 3-5.
-6-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 7 of 9
negligent infliction of emotional distress, or were alleging that defendants'
misconduct caused them to seek treatment for an ongoing or permanent
mental/emotional condition. 12 None of those circumstances are present here. As a
result, this case is more akin to those cases in which courts have held that for a
garden variety claim of emotional distress resulting from the incident itself and
causing no long-tem1 or lasting effect, there is no need to examine plaintiffs full
medical history or require a waiver of all physician-patient or psychotherapist-
patient confidentiality. As the court noted in Ruhlman v. Ulster County
Department ofSocial Services, "the [psychotherapist-patient] privilege promotes
the important private interest in successful psychiatric treatment .... [and] serves
12 See, e.g., Karl v. Asarco, Inc., 166 F.3d 1200 (2d Cir. 1998) (affirming district court's finding that plaintiff waived his patient-psychotherapist privilege by asserting a cause of action for intentional and negligent infliction of emotional distress); James v. Federal Reserve Bank, No. 01 Civ. 1106,2006 WL 1229109, at *1 (E.D.N.Y. May 8, 2006) (holding that plaintiff who alleged that defendants caused physical and emotional injuries that had lasted twenty years, and who wished to introduce evidence in court concerning her mental injuries, had placed her mental health at issue and had to release her medical records); Cuoco v. U.S. Bureau ofPrisons, No. 98 Civ. 9009,2003 WL 1618530, at *3 (S.D.N.Y. Mar. 27, 2003) (finding that plaintiff, who asserted "more than a mere 'garden variety' claim of emotional distress," had waived her privilege, and holding that "where the emotional harm alleged is at the heart of the litigation, plaintiff waives her privilege"); McKenna v. Cruz, No. 98 Civ. 1853, 1998 WL 809533 (S.D.N.Y. Nov. 19, 1998) (holding that plaintiff who seeks recovery for "serious and possible pem1anent emotional injuries [and] grievous mental and emotional distress" waives his patient-therapist privilege).
-7-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 8 of 9
the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem."13 This could not be more true here. For the good of all residents of this City, these particular individuals should not be discouraged from obtaining the medical care and benefits they so badly need. And they certainly should not be discouraged from doing so as a result of their participation in a lawsuit necessitated by the City's abject failure to abide by the terms of a 1993 decision of the United States Court of Appeals for the Second Circuit.
Plaintiffs motion for a protective order is GRANTED.
SO ORDERED:

Dated:

New York, New York April 16, 2007

13 194 F.R.D. at 451 (citations omitted).
-8-

Case 1:05-cv-05442-SAS-THK Document 88 Filed 04/16/2007 Page 9 of 9
- Appearances For Plaintiff: Katherine Rosenfeld, Esq. Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza New York, New York 10019 (212) 763-5000 For Defendants: Rachel Seligman Assistant Corporation Counsel 100 Church Street New York, New York 10007 (212) 788-0784
-9-

 
 Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 1 of 22

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------)(
MICHAEL BROWN, on Behalf of Himself and Others Similarly Situated,

USDCSDNY
DOCUMENt

I

ELECfRONICA.LLY FILED I

DDAOTCE#F:I-LE_n_:_5;_2_,..1/-.Z......,a_r_/

Plaintiff,
-against-
RAYMOND W. KELLY, Commissioner of the New York City Police Department, : the CITY OF NEW YORK, et al.,

OPINION & ORDER 05 Civ. 5442 (SAS)

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

I. INTRODUCTION

In 1993, the Second Circuit declared New York Penal Law § 240.35(1) unconstitutional on First Amendment grounds. 1 This statute provides

that a person is guilty of "loitering when he ... [l]oiters, remains or wanders about in a public place for the purpose of begging ...."2 Plaintiff Michael Brown brings

this putative class action against, inter alia, New York City Police Commissioner

Raymond W. Kelly and the City ofNew York, alleging that they have unlawfully

continued to arrest, summons and prosecute individuals such as himself for

violating this statute. It is undisputed that for more than a decade after the Second

See Loper v. New York City Police Dep 't, 999 F.2d 699, 70 I (2d Cir. 1993). 2 N.Y. Penal Law§ 240.35(1) (McKinney 2007).

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 2 of 22
Circuit's ruling, enforcement of section 240.35(1) continued largely unabated. And notwithstanding an Order of this Court dated June 23, 2005, which directed defendants once and for all to cease enforcing the statute, enforcement continues to this day.3 Plaintiff now moves for a judgment of civil contempt against defendants and for the imposition of coercive sanctions for each prospective incident of enforcement. For the reasons that follow, plaintiffs motion is denied. II. BACKGROUND
A. Continued Enforcement of Section 240.35(1) In 1992, Judge Robert W. Sweet of this Court issued a permanent
injunction barring the NYPD from enforcing section 240.35(1 ), which the Second Circuit affirmed in Loper v. New York City Police Department.4 Nevertheless, on multiple occasions from 2002 to June 2005, uniformed police officers wrongfully arrested former plaintiff Eddie Wise for peacefully begging on the streets of the Bronx.5 Wise was charged with loitering in violation of section 240.35( 1) and

3 By defendants' own admission, from January 2, 2007 through March 14, 2007, members of the New York City Police Department ("NYPD") issued summonses for section 240.35(1) at an average rate of approximately one every other day. See Memorandum of Law in Opposition to Plaintiffs Motion for Contempt ("Def. Mem.") at 11.

4 999 F.2d at 706.

5

See First Class Action Complaint~ 2.

2

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 3 of 22
prosecuted for this offense by the Bronx District Attorney's Office.6 On June 9, 2005, Wise commenced the instant action by filing an Order to Show Cause and Temporary Restraining Order seeking relief against municipal and state defendants for unlawfully enforcing section 240.35(1 ).7 Soon thereafter, the municipal defendants entered into a stipulation in which they agreed to take steps aimed at preventing future enforcement of the statute.8 This Court "so ordered" that stipulation on June 23, 2005 (hereafter "June 23, 2005 Order").9 Pursuant to that Order, defendants notified various New York City law enforcement officials and employees that section 240.35(1) had been declared unconstitutional. That Order

6 See id.

7 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. Prior to the dismissal, Wise received leave to amend his complaint to add Michael Brown as a plaintiff and class representative. See 11122/06 Stipulation and Order, Docket No. 49.

8

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 ). Hereafter, I use the term "defendants" to refer to the remaining

municipal defendants.

9 See June 23, 2005 Order, Docket No. 5.

3

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 4 of 22
further stated that the City ofNew York and its employees "shall cease enforcement of [section 240.35(1 )]."10
Notwithstanding the clear command of the June 23, 2005 Order,
defendants continued to arrest, prosecute, issue bench warrants and issue an
alarming number of summonses for violations of section 240.35(1 ). The following statistics of section 240.35(1) enforcement are undisputed: 11
• During the nineteen months preceding the June 23, 2005 Order, from January 2002 to May 2005, NYPD officers issued 821 summonses.
• During the nineteen months following the June 23, 2005 Order, from July 2005 to January 2007, NYPD officers issued 772 summonses.
• At the time plaintiff filed this motion, the most up-to-date available data showed that 4 summonses were issued as recently as February 21, 2007 in Queens and Richmond Counties. 12
• Since June 23, 2005, NYPD officers have arrested 51 people for violating the statute, and District Attorney's Offices within New York
10 ld. ~ 1. II This data comes from OCA reports cited in plaintiffs Memorandum of Law ("Pl. Mem.") and accompanying exhibits. See Pl. Mem. at 3-4; Exs. L-Q to Declaration of J. McGregor Smyth, Jr., counsel for plaintiff ("Smyth Decl."). The information concerning summonses was taken from the Summons Automation Management System ("SAMS") database, which is the official New York City database for summons data maintained by OCA. The infon11ation concerning arrests comes from the OCA data, as well as from discovery provided by defendants. 12 There is approximately a one-month delay between the issuance of a summons and its entry into the SAMS database.
4

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 5 of 22
City have brought 55 prosecutions under the statute. 13 Most recently, an individual was prosecuted under section 240.35(1) in Kings County, arising from an October 23, 2006 arrest.
• 171 of the unlawful summonses issued since the June 23, 2005 Order resulted in the issuance ofbench warrants, 88 of which remained outstanding at the time plaintiff filed this motion. Most recently, a bench warrant associated with a section 240.35(1) summons was issued on March 9, 2007 in Queens County.
Even these revealing statistics do not give a full picture of the number
of unlawful arrests that have occurred because in December 2005, the NYPD
implemented a computer program that removed section 240.35(1) as an option on
the "drop-down" menu from which police officers select the appropriate charge for
arrestees. 14 Thus, statistics on arrests for violations of section 240.35(1) do not
reflect the number of times citizens have been unlawfully arrested on the street,
taken to the station house and released without ever being charged. 15 Although
13 This includes 23 prosecutions brought in New York County, 27 in Kings County, 1 in Richmond County and 4 in Bronx County. The fact that prosecutions have occurred at all in the Bronx is particularly vexing because the June 23, 2005 Order specifically enjoined the Bronx District Attorney from enforcing section 240.35(1). See June 23,2005 Order~ 1. 14 See Declaration of Rosemary DeBellis, counsel for NYPD ("DeBellis Decl.") ~ 2. 15 Defendants assert that since this computer program was installed on December 9, 2005, there have been no arrests for violations of section 240.35(1) and offer this as evidence that their conduct has not been contumacious. See Def. Mem. at 9. While the implementation of this program was indeed a positive step, defendants should have realized that it would nonetheless frustrate plaintiff's ability to track attempts to charge section 240.35(1) and thereby monitor
5

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 6 of 22
defendants insist they are in the process of developing a computer program that will track attempts to charge section 240.35( 1), there never has been a mechanism for monitoring the number of times citizens have been detained but never formally charged.
These statistics, of course, cannot convey the emotional or psychological effect that an unlawful summons, arrest, prosecution or bench warrant may have on an individual. Plaintiffs counsel offers anecdotal accounts of people feeling constrained to stay in their homes because they are afraid, understandably, of being arrested on bench warrants that relate solely to charges brought under section 240.35(1 ). 16
B. Plaintiff's Motion for Contempt In June and July 2005, defendants took various steps aimed at ending
the unlawful enforcement of section 240.35(1 ). These steps included, inter alia: sending notices to all NYPD precincts and commands and respective employees that section 240.35(1) is void and unenforceable; reading FINEST messages 17 at
defendants' compliance with the June 23, 2005 Order. That no record exists when individuals are unlawfully arrested for violating section 240.35(1) is disconcerting to the Court. At best, such an arrest briefly interrupts the day; at worst, someone placed in handcuffs suffers a frightening deprivation of liberty. 16 See 5/17/07 Oral Argument Transcript ("5/17/07 Tr.") at 23-24. 17 A FINEST message is a written department-wide communication that, per standard operating procedures, is required to be read at ten consecutive roll calls.
6

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 7 of 22
police officer roll calls; sending notices to the Offices of the District Attorneys;
and immediately seeking to vacate all outstanding warrants relating to charges or summonses based on section 240.35(1). 18 But defendants seem to have done little
thereafter.
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 enforcement of section 240.35(1) has always been carried by plaintiff. 19 It has also been defendants' modus operandi to cast
See Declaration of Steven M. Anger, Executive Officer of the NYPD Patrol Services Bureau ("Anger Decl.") 'J3.
18 See June 23, 2005 Order 'il'il 2-8.
19 See, e.g., 11115/06 Letter from Assistant Corporation Counsel Rachel A. Seligman to the Court ("Defendants are currently analyzing the extensive OCA data that was recently provided to this office by plaintiffs counsel .... Defendants, however, remind the Court and plaintiffs counsel that [the relevant databases] are maintained by [OCA] and not by the NYPD. Thus, plaintiffs request to be provided with [data concerning continued enforcement] on a monthly basis is inappropriate and instead, plaintiff should be seeking this information from OCA directly. Likewise, plaintiffs request for [copies of the summonses] should be made directly to OCA, as this information is not maintained by the NYPD ... "") ~
7

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 8 of 22
suspicion on plaintiffs data demonstrating the pervasiveness of the continuing enforcement. 20
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.21 In reliance upon defendants' assurances that plaintiff was going to get the necessary relief, the Court denied plaintiffs request to move for a judgment of contempt.22 Soon thereafter, the Court entered an order ("December 14, 2006 Order") directing defendants to take the additional remedial
20 See id. (commenting that plaintiffs spreadsheets documenting that over 500 summonses were "allegedly" issued since June 2005 lacked specificity such that defendants "still do not know upon which summonses plaintiff relies"). 21 See 11/29/06 Conference Transcript ("Conf. Tr.") at 29-30. 22 See id. at 37.
8

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 9 of 22
steps they had promised in order to halt the unconstitutional enforcement of section 240.35(1 ).23 These steps included sending letters to offending officers after they improperly issued a summons for a violation of section 240.35(1) and providing members of the NYPD with additional training reiterating that section 240.35(1) was not to be enforced. 24
By letter dated February 26, 2007, plaintiff informed the Court that notwithstanding defendants' promises and in the face of the December 14, 2006 Order, an additional 23 unlawful bench warrants and 96 unlawful summonses had been issued to New Yorkers between November 1, 2006 and February 21,2007.25 In light of this new information, the Court granted plaintiff leave to file this motion. 26 III. APPLICABLE LAW
"Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or
23 See December 14, 2006 Order, Docket No. 54. 24 See id. ~~ 1-6. 25 See 2/27/07 Letter from Katherine R. Rosenfeld, counsel for plaintiff, to the Court. 26 See 3/2/07 Conf. Tr. at 15.
9

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 10 of 22
damage sustained by reason ofnoncompliance."27 A court may hold a party in civil contempt for failure to comply with a court order if "(1) 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."28 "It need not be established that the vi.o1at1.0n was w1'llful."29 VI. DISCUSSION
A. Defendants' Past Contumacious Conduct Defendants concede that plaintiff satisfies the first two requirements
for civil contempt, in that the Court's June 23, 2005 Order clearly and unambiguously directs defendants to cease enforcing section 240.35( 1), and the bare statistics concerning summonses, arrests, and warrants constitute clear and convincing proof of defendants' noncompliance.30 Defendants' sole defense to contempt is that they are now, and have always been, "reasonably diligent and
27 McComb v. Jacksonville Paper Co., 336 U.S. 187, 191 (1949). 28 Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 655 (2d Cir. 2004). Accord Powell v. Ward, 643 F.2d 924, 931 (2d Cir. 1981) (requiring, as to the third prong, that the contemnor failed to be "reasonably diligent and energetic in attempting to accomplish what was ordered"). 29 Paramedics, 369 F.3d at 655 (citation omitted). 30 See Def. Mem. at 6.
10

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 11 of 22

energetic" in complying with the June 23, 2005 Order.31 This 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.32 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."33
Additionally, plaintiffs contention that defendants failed diligently to comply with the June 23, 2005 Order and demonstrated a flippant attitude toward violations of that Order is well supported by the record.34 For example, at a

31

I d.

32 See Pl. Mem at 8.

33 3/2/07 Conf. Tr. at 5.

34 See Plaintiffs Reply Memorandum of Law in Further Support of Plaintiffs Motion ("Pl. Reply Mem.") at 3.

11

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 12 of 22
February 17, 2006 conference, defendants resisted aiding plaintiffs efforts to track ongoing arrests based on section 240.35(1 ). In response to plaintiffs suggestion that the Bronx District Attorney's office run a search on an internal computer database for arrests, defense counsel complained that "what plaintiff is trying to do is babysit the City and babysit the Bronx District Attorney's Office."35 In response to the Court's observation that running electronic searches is usually a quick and painless enterprise, defense counsel resisted further, stating: "When is it going to end, your Honor? .... There's no reason to believe we haven't stopped at this point."36 In light of data received from OCA, however, it is now clear that had defendants made the slightest effort to obtain the relevant records, their noncompliance would have been self-evident.
By letter to plaintiffs counsel dated March 10, 2006, defendants acknowledged their noncompliance, conceding that since June 23, 2005, fifty-eight citizens had been unlawfully arrested for peacefully panhandling.37 Yet defendants still did nothing to address the NYPD's ongoing enforcement of section 240.35(1 ); nor were defendants spurred to investigate or self-monitor further violations of the
35 See 2116/06 Conf. Tr. at 18. 36 !d. 37 See id. at 10.
12

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 13 of 22
Court's June 23, 2005 Order.38 Rather than take affirmative steps to identify the
systemic failures giving rise to this continued enforcement, defendants engaged in
months of stonewalling. They shrugged their shoulders at plaintiffs repeated
requests for hard copies of the unlawful summonses.39 More egregiously,
defendants dragged their feet in vacating the bench warrants that had been issued
solely as a result of section 240.35(1) summonses. According to defendants' own
submissions, defendants were aware in November 2006 of outstanding warrants,
but initiated no action to vacate them until March 2007. Defendants offer no legitimate excuse for their four months of inactivity.40 Such passive indifference is
suggestive of contempt.
38 See id. (by letters dated June 13, July 20 and July 25, 2006, plaintiff repeatedly requested that defendants implement a system that would track attempts to charge section 240.35(1 )). 39 See, e.g., 11/15/06 Letter from Assistant Corporation Counsel Seligman to the Court (stating that the NYPD maintains no information concerning summonses issued by its own officers and thus plaintiff should direct its inquiries solely to OCA). According to the NYPD Patrol Guide, however, defendants do in fact maintain file copies of summonses. See Pl. Mem. at 11 (citing NYPD Patrol Guide 209-05 Processing Summonses, Ex. H to Smyth Decl., at 1). 40 By letter dated March 13, 2007, Assistant Corporation Counsel Seligman informed Administrative Judge Juanita Bing Newton of the New York City Criminal Court that "any summonses and/or warrants issued for violations of [section 240.35(1)] are void" and requested that any such summonses be dismissed and warrants vacated. Def. Mem. at 14; Ex. E to Declaration of Rachel A. Seligman ("Seligman Decl."). On or about March 23, defendants received a response from Judge Bing Newton stating that the criminal court would begin (i) screening for new cases charging section 240.35(1) and dismissing those cases; (ii)
13

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 14 of 22
B. Defendants' Present Compliance Sometime during December 2006, defendants turned their behavior
around. They started taking responsibility for their noncompliance with the June 23, 2005 Order and became proactive in seeking to end the unlawful enforcement of the statute. As part of the December 14, 2006 Order, defendants agreed to conduct supplemental training to reinforce that section 240.35(1) is unconstitutional. To facilitate this training, on November 20, 2006, a lesson plan was created for command level training on "Panhandlers," which reiterated section 240.35(1 )'s unenforceability.41 Since December 2006, this additional training has been given twice for sergeants and twice for lieutenants.42 The lesson plan was also disseminated at the Command Level Training Session, a monthly mandatory training session held at the Police Academy, and the training personnel there were instructed to teach the lesson plan to their respective commands by March 1,
reviewing all bench warrants charging only section 240.35(1 ), vacating those warrants and dismissing those cases; and (iii) reviewing court files to identify cases where individuals were convicted solely for violating section 240.35(1) and dismissing those cases. See 3/23/07 Letter from the Honorable Bing Newton to Assistant Corporation Counsel Seligman, Ex. F to Seligman Decl. 41 Section 240.35(1) is still "on the books" in that it appears in current editions of the New York State Penal Law, to which police officers refer when making charge determinations. Legislative action is required to formally repeal section 240.35(1). See N.Y. Stat. Law.§ 1 (McKinney 2007). 42 See Declaration ofNYPD Sergeant Anthony D'Amico ("D'Amico Decl.") ~ 6.
14

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 15 of 22
2007.43 Additional training was targeted to officers at the 75th Precinct, which consistently has had the highest issuance rate of summonses.44 Three rounds of letters have also been sent by the NYPD to offending officers based on the summons data received from OCA,45 including letters to recidivist offending officers informing them that any repeated enforcement of section 240.35( 1) will result in discip1inary action.46
In late March 2007, defendants also followed the Court's suggestion and included a reminder in every paycheck distributed to a uniformed officer that section 240.35(1) is unconstitutional.47 This reminder also reiterated that any continued enforcement of section 240.35(1 ), including the issuance of summonses, may result in disciplinary action. Over forty thousand copies of this reminder were distributed. 48
43 See id. 44 See id. ~10. 45 See DeBellis Decl. ~~ 3-8. 46 See Recidivist Mailing List; affixed to the Affidavit ofNYPD Detective Sean Healy, Docket No. 96. 47 See Operations Order #17, "Prohibited Enforcement of New York State Penal Law Section 240.35(1) 'Loitering for Purposes of Begging,"' Ex. G to Anger Decl. 48 See Anger Decl. ~ 14.
15

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 16 of 22

As a backstop against continued enforcement of section 240.35(1 ), on

March 28, 2007, the NYPD Chief of Patrol issued a written directive to the

commanding officers of all patrol boroughs containing a list of all uniformed

police officers who had issued an unlawful section 240.35(1) summons since June 2005.49 This directive requires Patrol Borough Commanders to have Precinct/Unit

Commanders personally instruct offending officers that the issuance of summonses

under section 240.35(1) is forbidden, and also to document and report that this

instruction took place.5° The "NYPD expects to continue this procedure until

summons writing has ceased."51

The

above

summary

of

defendants'

recent

efforts

is

not

exhaustive,

2 5

but it paints an accurate picture of defendants' newfound diligence. Granted, this

came approximately seventeen months late, and the unconstitutional enforcement

of section 240.35(1) undoubtedly could have been minimized or avoided altogether

had defendants been proactive about their compliance from the start. At this point,

49 See 3/28/07 Letter from NYPD Chief of Patrol Nicholas Estavillo to Patrol Boroughs' Commanding Officers, Ex. H to Anger Dec1. 50 See id. 51 Def. Mem. at 15. 52 See, e.g., id. at 16-17 (discussing another FINEST message announced in December 2006 and promising to implement a computer program that will track attempts to charge section 240.35( 1)).
16

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 17 of 22

however, with respect to a contempt citation, the issue of whether their apathy

would have persisted but for plaintiffs steady pressure and the threat of contempt

is moot. Punitive civil sanctions are not permitted, and in light of defendants'

recent efforts to comply with the June 23, 2005 Order, publicly labeling defendants contemnors w1'11 serve no purpose.53

Even if this Court were inclined to hold defendants in contempt and

impose coercive sanctions, there is no reason to believe that doing so would have

the desired effect of halting the issuance of further summonses by patrolling

officers. Nowhere does plaintiff suggest any additional step defendants could take

- or should be coerced into taking- that would be effective in this respect. Rather,

plaintiff argues for the imposition of a coercive sanction of $10,000 payable to the

Court for each prospective violation of the June 23, 2005 Order, with a "purge"

provision permitting defendants to avoid contempt and fines if they file and

publish an affirmation of their intention to abide by the Order, and then abide by

it.

4 5

But these

sanctions,

which ultimately would be paid by taxpayers, appear to

be more of a fine than a deterrent. At this point, it is clear that Commissioner

Kelly, the New York City Law Department and the overwhelming majority of

53 See Benjamin v. Sielaff, 752 F. Supp. 140, 149 (S.D.N.Y. 1990) ("[T]he sole and only permissible basis for imposing the sanction is to assure compliance."). 54 See Pl. Mem. at 20-21.
17

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 18 of 22

officers in the NYPD understand and respect that section 240.3 5(1) is

unenforceable. 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 successfully prevent one of these outliers from issuing an unlawful summons.55 Additionally, on May 17, 2007, defendants represented to the Court

that all outstanding warrants predicated on unlawful summonses have been vacated, and all outstanding summonses have been dismissed.56

Although plaintiffs motion is denied, I note that the issues it raised

were

not

clear-cut.

7 5

The steady rate of unlawful enforcement of section 240.35(1)

that has persisted for almost thirteen years after Loper is simply unacceptable.

Defendants' long-standing apathy towards this problem was offensive.

55 SeeAspira ofNY., Inc. v. Board ofEduc., 423 F. Supp. 647,651 (S.D.N.Y. 1976) ("The court is not empowered to command, any more than it can pretend for itself to achieve, performance approximating perfection.").
56 See 5117107 Tr. at 27-28. The only remaining outstanding warrants are those predicated on arrests, as opposed to summonses, and the Court has no basis for discrediting defendants' protestations that they are working in conjunction with OCA and Judge Bing Newton, see supra note 40, to vacate these warrants as soon as possible. See id. at 28.
57 "Better late than never" compliance will not in itself rescue a party from a judgment of civil contempt. See Benjamin v. Fraser, No. 75 Civ. 3073, 2002 WL 31845111, at *7 (S.D.N.Y. Dec. 16, 2002) (correction department's "'eleventhhour' attempts at compliance" failed to save the department from contempt); Sielaff, 752 F. Supp. at 147 (holding defendants in contempt for failing to cure violations even though defendants had achieved compliance since the filing of the contempt motion; defendants efforts were "too little, too late").

18

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 19 of 22
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 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.
C. Attorneys' Fees Courts sitting in equity have '"broad discretionary power' . . . to
fashion equitable remedies which are 'a special blend of what is necessary, what is fair, and what is workable. "'58 To this end, even 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."59 Here,
58 Class v. Norton, 376 F. Supp. 496, 501 (D. Conn.) (quoting Lemon v. Kurtzman, 411 U.S. 192, 200 (1973)), aff'd in part, rev 'din part, 505 F.2d 123 (2d Cir. 1974) (denying contempt citation but granting attorneys' fees to party prosecuting contempt motion). 59 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
19

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 20 of 22
defendants' defiance of the June 23, 2005 Order necessitated the bringing of this contempt proceeding and warrants the imposition of attorneys' fees and costs. 60
Until December 2006, defendants' failure to comply was unreasonable and harmful; but for plaintiffs persistence in monitoring and investigating the continued enforcement of section 240.35(1), defendants' noncompliance would have continued indefinitely. It is also clear from the record that but for the specter of contempt- precipitated by plaintiffs repeated request to file this motion - defendants would not have taken the actions that saved them from coercive sanctions. Plaintiff is thus entitled to reasonable costs and attorneys' fees for its efforts with respect to this motion.
considerations of compensation and deterrence"' (quoting Fogerty v. Fantasy, 510 U.S. 517, 534 n.l9 (1994)). 60 See Commodity Futures Trading Comm 'n v. Sirras, Misc. No. M 31, 1984 WL 391, at *1 (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). See also Thompson v. Johnson, 410 F. Supp. 633, 642-44 (E.D. Pa. 1976) (same).
20

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 21 of 22
V. CONCLUSION For the reasons stated above, plaintiffs motion for an order adjudging
defendants in contempt is denied. Plaintiff is directed to submit a fee application by June 20, 2007. The Clerk of Court is directed to close this motion [Docket No. 78].
SO ORDERED:
Dated: New York, New York May 31, 2007
21

Case 1:05-cv-05442-SAS Document 97 Filed 05/31/07 Page 22 of 22
- Appearances -
For Plaintiff: Matthew D. Brinckerhoff, Esq. Katherine R. Rosenfeld, Esq. Emery Celli Brinckerhoff & Abady, LLP 75 Rockefeller Plaza New York, New York 10019 (212) 763-5000 J. McGregor Smyth, Jr., Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, New York 10451 (718) 838-7878 For Defendants: Rachel Seligman Assistant Corporation Counsel 100 Church Street New York, New York 10007 (212) 788-0784
22

 
 Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 1 of 56

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------------}( MICHAEL BROWN, on Behalf of Himself and : Others Similarly Situated,
Plaintiff,

J ',tsnc snNY
DOCUMENT ELECfRO~TtCAllY FILED I DOC #: _ _.,.,...-;---:-r::-.: DATE FILED:

-'against-

RAYMOND W. KELLY, Commissioner of the New York City Police Department {NYPD); BARRY M. BUZZETTI, Captain and Commanding Officer, NYPD 48th Precinct; JOHN/JANE DOES 1-50 (NYPD Supervisory, Training and Policy Personnel); CITY OF NEW YORK; Police Officers MICHAEL CURLEY, COREY HARRIS, MIGUEL MUSSE, KEVIN LYNCH, JOHN BRENNAN, SHAWN RICKER, JOHN/JANE DOES 51-100 : (Police Officers); ROBERT JOHNSON, District Attorney of Bronx County; JOHN/ JANE DOES 101-125 (Supervisory, Training and Policy Personnel within the District Attorneys Offices); JOHN/ JANE DOES 126-130,

OPINION & ORDER 05 Civ. 5442 (SAS)

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

Michael Brown brings this putative class action against, inter alia,
..::?"t.

New York City Police Commissioner Raymond W. Kelly and the City of New

• ~

~

York, alleging that they have unlawfully continued to arrest, summons and

prosecute individuals such as himself for violating ~ statute that was declared

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 2 of 56

unconstitutional by the Second Circuit in 1993. 1 This statute, New York Penal Law§ 240.35(1), provides that a person is guilty of"loitering when he ... [l]oiters, remains or wanders about in a public place for the purpose of begging ... •" 2 It is undisputed that for over a decade, notwithstanding the Second Circuit's
l
ruling, defendants continued to enforce section 240.35(1) at a largely unabated rate.3 Although to this day, a handful of officers ofthe New York City Police Department (''NYPD") persist in issuing unconstitutional summonses for violations of section 240.35(1), in an Opinion dated May 31, 2007, familiarity with which is assumed, the Court denied plaintiffs motion for an Order adjudging municipal defendants in civil contempt.4
Plaintiff now requests leave to amend his First Amended Class Action Complaint and moves for class certification, pursuant to Federal Rule of Civil Procedure 23. By his proposed Second Amended Class Action Complaint ("Complaint"), plaintiff seeks to add the following six individuals as plaintiff class representatives: Xavier J. Grant, Bobby Wells, Michael Louis Brown, Edgar

See Loper v. New York City Police Dep 't, 999 F.2d 699, 701 (2d Cir. 1993).
-=?'t.

2 N.Y. Penal Law§ 240.35(1).

,.

3

'
See Brown v. Kelly ("Brown f'), No. 05 Civ. 5442, 2007 WL 1573957, at

*1-2 (S.D.N.Y. May 31, 2007) (providing statistics on the unlawful enforcement of

section 240.35(1 )).
I

4

See id.

2

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 3 of 56
Turner, Keith Anderson and Llewellyn Rudy ("named plaintiffs").5 Additionally, the Complaint adds nine individual police officers as defendants,6 supplements plaintiffs allegations against the proposed defendant class, adds a cause of action for violations of the Equal Protection Clause of the United States Constitution, and updates allega•tions to reflect data adduced in discovery and remedial relief to date.7
Plaintiff seeks certification of the following classes: (1) a plaintiff class consisting of all persons who have been or will be arrested, charged or prosecuted for a violation of section 240.35(1) in the State ofNew York from October 7, 1992 onward; (2) a plaintiff subclass of all persons arrested, charged or prosecuted for a violation of section 240.35(1) by employees, agents or representatives ofNew York City ("City") from October 7, 1992 onward; and (3) a defendant class of "all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State ofNew York with authority to arrest, charge or
5 See Memorandum of Law in Support of Plaintiffs Motion to Amend the Complaint and for Class Certification ("Pl. Mem.") at 2. 6 These individuals are James Essig, Ronald Mercandetti, Dwayne Montgomery, Thomas J. Acito, John Picone, Christopher Lagrasta, Dennis Palinkas, Gerald McCoy and Karl Harris. All nine are members of the NYPD who either wrongfully arrested or summoned plaintiffs, or supervised officers who did. See id.
I
7 See id.
3

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 4 of 56
prosecute a person with a violation under New York Penal Law."8 For the reasons stated below, plaintiffs motion is granted in its entirety. I. BACKGROUND
A. Continued Enforcement of Section 240.35(1) The background facts of this case are thoroughly set forth in Brown I
and therefore I summarize them only briefly.9 In 1992, Judge Robert W. Sweet of this Court issued a permanent injunction barring the NYPD from enforcing section 240.35(1 ), which the Second Circuit affirmed in Loper v. New York City Police Department.10 Nevertheless, on multiple occasions from 2002 to June 2005, uniformed police officers wrongfully arrested former plaintiff Eddie Wise for peacefully begging on the streets of the Bronx.11 Wise was charged with loitering in violation of section 240.35(1) and prosecuted for this offense by the Bronx District Attorney's Office.12 On June 9, 2005, Wise commenced the instant action by filing an Order to Show Cause and Temporary Restraining Order seeking relief

8

!d.

9 See 2007 WL 1573957, at *1-2.

10 999 F.2d at 706.

~
t
'

11 See First Amended Class Action Complaint~ 2.
I
12 See id.

4

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 5 of 56
against City and state defendants for unlawfully enforcing section 240.35(1 ). 13
Soon thereafter, the municipal defendants entered into a stipulation in which they agreed to take steps aimed at preventing future enforcement of the statute. 14 This
Court "so ordered" that stipulation on June 23, 2005 (hereafter "June 23, 2005 Order"). 15 Pu~suant to that Order, defendants notified various City law enforcement officials and employees that section 240.35(1) had been declared
unconstitutional. That Order further stated that the City and its employees "shall cease enforcement of [section 240.35(1 )]."16
Notwithstanding the clear command of the June 23, 2005 Order,
defendants continued to arrest, prosecute, issue bench warrants and issue an alarming number of summonses for violations of section 240.35(1). Beginning in
13 On November 22, 2006, Wise accepted defendants' Rule 68 Offer of Judgment, subsequent to which a judgment was entered dismissing all of his claims. Prior to the dismissal, Wise requested and received leave to amend his complaint to add Michael Brown as a plaintiff and class representative. See 11/22/06 Stipulation and Order, Docket No. 49. 14 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~ electronic data system, which tracks and stores summonses issued pursuant to section 240.35(1). Hereafter, I use the term "defendants" to refer to the remaining City defendants. 15 See June 23, 2005 Order, Docket No.5. 16 Id. ~ 1.
5

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 6 of 56
December 2006, however, City law enforcement officials began taking affirmative steps to quash enforcement, including vacating all outstanding bench warrants based solely on violations of section 240.35(1) and sending notices to officers reminding them that the statute is unenforceable. 17 As a result, prosecutions and
t
arrests for section 240.35(1) have dwindled, although summonses for violations of section 240.35(1) were still being issued regularly as recently as March of this year. 18
B. Proposed Plaintiff Class Representatives19 Michael Brown is a forty-six year-old African-American man. On June 14,2003, he was peacefully begging on the streets of the Bronx when he was arrested and charged with violating section 240.35(1 ). The police took Brown to the precinct, where he was held pending arraignment. At arraignment, Brown pled guilty and was sentenced to a term of conditional discharge of one year. Xavier J. Grant is a twenty-three year-old African-American man. On July 17, 2003, he was standing at an intersection in the Bronx, peacefully talking
17 See Brown I, 2007 WL 1573957, at *4-5. 18 By defendants' own admission, from January 2, 2007 through March 14, 2007, members of the NYPD issued summonses for section 240.35(1) at an average rate of approximately one every other day. See Memorandum of Law in Opposition to Plaintiff's Motion for Contempt (filed April 14, 2007) at 11.
I
19 The following facts are taken from the Complaint.
6

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 7 of 56
with his friends, when police officers approached and told him to "move along" because "you can't be here." The officers then issued Grant a summons charging him with loitering in violation of section 240.35(1) and directing him to appear in court on August 25, 2003, to answer to the charge. When Grant failed to appear on the summons,•a bench warrant was issued for his arrest. Grant did not learn of this until November 2006, when he applied for a job at TOYS 'R' US, which conducted a background check that revealed the active warrant. Soon thereafter, in an effort to resolve this outstanding warrant, Grant went to the Bronx Criminal Court, where the judge sentenced him to an Adjournment in Contemplation of Dismissal on the still extant charge.
Bobby Wells is a forty-nine year-old African-American man who was peacefully walking around his neighborhood in the Bronx on April 21, 2004, when he was stopped by a police officer, arrested and charged with loitering in violation of section 240.35(1) and disorderly conduct. At arraignment, Wells pleaded guilty and received conditional discharges of one year for each charge, to be served concurrently. Thereafter, on or about March 30, 2005, Wells was again arrested
~
and charged with violating section 240.35(1) and disorderly conduct, towhich he again pleaded guilty.
Michael Louis Brown is a forty-eight year-old African-American
I
man. On March 1, 2004, Michael Louis Brown was peacefully asking passers-by
7

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 8 of 56
for money in the Bronx when he was stopped by police officers, arrested and charged with loitering in violation of section 240.35(1) and with disorderly conduct. The officers took Michael Louis Brown to the police station, where he was held pending arraignment. Later that day, Michael Louis Brown pleaded guilty to both~charges and was sentenced to a term of imprisonment of time served.
Keith Anderson is a forty-two year-old African-American man who was peacefully standing on a street in the Bronx on August 20, 2002, when he was arrested and charged with loitering in violation of section 240.35(1 ). He was taken to the precinct and held pending arraignment. The Bronx prosecutor charged Anderson with loitering and aggressive solicitation. At arraignment, Anderson pleaded guilty to violating section 240.35(1) and received a sentence of a conditional discharge of one year. On September 8, 2004, Anderson was again arrested and charged with violating section 240.35(1) and with disorderly conduct; he pleaded guilty to those charges and was sentenced to one day in jail, niney-five dollars in fees and surcharges, and civil judgments for these amounts.
Edgar Turner is a forty-eight year-old African-American man. In October 2006, Turner was standing at an intersection in Manhattan, walMg for an office in a nearby building to open, when he was approached by police, questioned and ordered to produce identification. He was then issued a summons charging
I
him with loitering in violation of section 240.35(1). On December 8, 2006, Turner
8

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 9 of 56
appeared in Manhattan Criminal Court to answer the charge, and the summons was dismissed. II. APPLICABLE LAW
A. Leave to Amend a Complaint
(
Leave to amend a complaint "will be freely given when justice so requires."20 The liberality in granting leave to amend applies to requests to amend a complaint to add new parties.21 "The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith."22
B. Rule 23 Class Certification Requirements 1. Rule 23(a) Rule 23 of the Federal Rules of Civil Procedure governs class
certification. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a). Plaintiffs bear the burden of demonstrating that the class meets these requirements- commonly referred to as numerosity, commonality,
20 Fed. R. Civ. P. 15(a).
;
'
21 See Staggers v. Otto Gerdau Co., 359 F.2d 292, 296-97 (2d Cir. 1966). 22 Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). Accord Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (it is "rare" that leave to amend should be denied).
9

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 10 of 56
typicality, and adequacy. 23 The numerosity requirement mandates that the class be "so numerous that joinder of all members is impracticable."24 Commonality requires a showing that common issues of fact or law affect all class members.25
Typicality exists where the named plaintiffs' claims and the absent class members'
claims arise from "the same course of events," and where each class member makes "similar legal arguments" to prove defendant's liability.26 The adequacy
requirement demands that "the representative parties will fairly and adequately protect the interests of the class."27 Finally, although "'Rule 23(a) does not
expressly require that a class be definite in order to be certified[,] a requirement that there be an identifiable class has been implied by the courts. "'28
2. Rule 23(b)
23 See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 573 (2d Cir. 2000). 24 Fed. R. Civ. P. 23(a)(l). 25 See Fed. R. Civ. P. 23(a)(2). See also Triefv. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992). 26 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001) (citingMarisol A. v. Giuliani, 126 F.3d 372,376 (2d Cir. 1997)). 27 Fed. R. Civ. P. 23(a)(4).
,. 28 In re Methyl Tertiary Butyl Ether Prods. Liab. Lftig., 209 F.R.D. 323, 336 (quoting Zapka v. Coca-Cola Co., No. 99 Civ. 8238, 2000 WL 1644539, at *2 (N.D. Ill. Oct. 27, 2000)). This implied requirement is often referred to as "'ascertainability. "' !d. (quoting Van West v. Midla-nd Nat '1 Life Ins. Co., 199 F.R.D. 448,451 (D.R.I. 2001)).
10

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 11 of 56
In addition to showing that the proposed class satisfies the four prerequisites of Rule 23(a), plaintiffs must also show that the class is "maintainable" under Rule 23(b). A class satisfies this requirement if it in fits into one of the three alternative categories delineated by Rule 23 (b), subdivisions (1 ), (2) and (3). .!\class may be certified under more than one category, and in the case at bar plaintiff moves for class certification pursuant to subdivisions (b)(2) and (b)(3).
Under Rule 23(b)(2), class litigation is appropriate where "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."29 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."30
Although subdivision (b)(2) was designed with an eye towards equitable relief, certification of a class seeking both equitable and monetary relief may be appropriate ''in light of the relative importance of the remediesit\lght,
,.
• 29 Fed. R. Civ. P. 23(b)(2). 30 1966 Advisory Committee Note to Rule 23(b)(2).
11

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 12 of 56
given all of the facts and circumstances of the case."31 The Second Circuit has instructed that in assessing whether subdivision (b)(2) applies, a district court's first inquiry is whether '"even in the absence ofpossible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought. '~'32 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. "'33
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 the court finds that class litigation "is superior to other available methods for the fair and efficient adjudication of the controversy."34 Generally, the "'predominance inquiry tests whether proposed

31 Parker v. Time Warner Entm 't Co., 331 F.3d 13, 20 (2d Cir. 20~

(quotation marks and citation omitted).

,.

32 !d. (quoting Robinson, 267 F.3d at 164).

'

33 !d. (quoting Robinson, 267 F.3d at 164).
I
34 Fed. R. Civ. P. 23(b)(3).

12

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 13 of 56
classes are sufficiently cohesive to warrant adjudication by representation. "'35 The Second Circuit has observed that this subdivision
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.36 "Regardless of whether [an action] as a whole satisfies Rule 23(b)(3)'s predominance requirement," courts may employ Rule 23(c)(4)(A) to certify a class on a particular issue.37 In determining whether the class action mechanism is the most "fair and efficient" method of resolving a case, courts must consider the following four nonexclusive factors: (1) class members' interest in maintaining individual actions; (2) "the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;" (3) "the desirability or undesirability of concentrating the litigation of the claims in the particular forum;"
35 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,Th> (2d Cir. 2001)). 36 I d. (quotations and citation omitted). 37 !d. at 227. Rule 23(c)(4)(A) provides that "[w]hen appropriate ... an action may be brought or maintained as a class action with'respect to particular issues ... "
13

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 14 of 56

and (4) "the difficulties likely to be encountered in the management of a class action."38
3. Standard of Proof
Prior to certifying a class, a court must assess "all the relevant
evidence adm1tted at the class certification stage" and find that "each of the Rule 23 requirements has been met."39 Furthermore,
such determinations can be made only if the [court] resolves factual disputes relevant to each Rule 23 requirement and finds that whatever underlying facts are relevant to a particular Rule 23 requirement have been established and is persuaded to rule, based on the relevant facts and the applicable legal standard, that the requirement is met.40
A court's "obligation to make such determinations is not lessened by overlap
between a Rule 23 requirement and a merits issue" - even where the two are "identical."41 In making this determination, courts should refrain from considering "aspect[s] of the merits unrelated to a Rule 23 requirement.',42
III. DISCUSSION

38 !d. at 230 (quotation marks omitted) (citing Fed. R. Civ. P. 23(b~).

39

. Miles v. Merrill Lynch, 471 F.3d 24, 41 (2d Cir. 2006). ,.

40 !d.

41 !d.
I
42 !d.

14

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 15 of 56
A. Leave to Amend Defendants have failed to show that plaintiffs request to amend the
First Amended Class Action Complaint should be denied on grounds of prejudice, bad faith or futility. Accordingly, leave to amend is granted.
(
B. Proposed Plaintiff Class and Subclass 1. Rule 23(a) Prerequisites a. Numerosity The named plaintiffs seek to represent a (b)(2) injunctive class
"consisting of all persons who have been or will be arrested, charged, or prosecuted for a violation of [section 240.35(1)] in the State ofNew York from Oct. 7, 1992 onward."43 They also seek to represent a (b)(3) damages subclass "consisting of all persons arrested, charged, or prosecuted for a violation of [section 240.35(1)], by employees, agents, or representatives of the City of New York" during that same time period.44 By conservative assessments of available
43 Pl. Mem. at 11. 44 Id. at 21. As a threshold consideration, I find plaintiffs proposed class definitions sufficiently definite. Both OCA and the NYPD maintain databases which collectively make it "administratively feasibl~" to identify nearly all members of the class and subclass. Rios v. Marshall, 100 F.R.D. 395,403 (S.D.N.Y. 1983).
15

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 16 of 56

data, both proposed classes consist of thousands of people and therefore easily satisfy the numerosity requirement.45
b. Commonality and Typicality Although commonality and typicality are two separate criteria, in this action they "tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)."46 They are also well-suited for joint discussion here because defendants present an umbrella theory addressing both requirements. The thrust of defendants' opposition is that "the substantive law underlying plaintiffs claims requires individualized, highly fact-specific analysis to establish liability for each individual claim."47 Defendants assert that each plaintiffs claims must be analyzed individually in order to determine distinct legal issues such as each defendant's liability and/or unique defenses vis-a-vis each claimant.48 These arguments, however, all derive from defendants' erroneous

45 It is undisputed that thousands of people have been unlawfully charged with

violating 240.35(1) by City law enforcement. Although plaintiff lacks

comprehensive information on non-City incidents of enforcement, available data

shows that since 1992, over six hundred individuals have been charged with

violating section 240.35(1) elsewhere in New York State. See Complaint~~ 125-

128.

~

46 Marisol A., 126 F.3d at 373.

,.
'

47 Defendants' Memorandum of Law in Opposition to Plaintiffs Motion for Class Certification ("Def. Mem.") at 9.

48 See id. at 10-11.

16

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 17 of 56

assumption that merely because "all class members were charged with [section
240.35(1)] does not make their claims common or typica1."49 While it is true that a
handful of "individual" issues exist, these issues do not undermine the commonality and typicality of plaintiff's core claims.
(
Defendants start with the conclusion that their liability (if any) cannot be established solely on the basis that the enforcement of section 240.35(1) is per se unlawful in light of Loper. As a result, defendants insist that the fact that a person is charged with violating section 240.35(1) should not automatically identify him as a class member.50 Defendants theorize as to how each claim alleged in the Complaint could turn on the particular facts and circumstances surrounding each arrest, summons, and prosecution predicated on section 240.35(1 ).51 For example, the Complaint includes a class claim under the Fourth and Fourteenth Amendment that defendants' practice of arresting and prosecuting individuals for section 240.35(1) violations- referred to as defendants' "Arrest & Prosecution Policy"- resulted in individuals being falsely arrested, imprisoned, and maliciously prosecuted without probable cause.52 Seizing on the term

49 !d. at 9.

,..

'

50 See id. at 3.

51 See id. at 4-6. I

52

See Complaint~ 40.

17

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 18 of 56

"probable cause," defendants argue that since the existence of probable cause is a fact-specific inquiry,53 if class certification is granted the fact-finder will be forced to engage in mini-trials in order to determine the extent of defendants' liability as to each putative class member. Defendants contend the same is true of plaintiffs
• substantive due process claims- burdensome mini-trials will be required in order to determine whether defendants' conduct during each episode of enforcement was so deliberate and unjustifiable so as to "shock the conscience."54
Defendants also argue that plaintiffs proposed classes fail to satisfy the commonality and typicality requirements because they improperly amalgamate individuals who received summonses with those who were arrested and prosecuted. In support, defendants point out that a summons cannot be the basis for a malicious prosecution claim,55 and that in order to prevail on a claim of

53 See Jaegly v. Couch, 439 F.3d 149, 154 (2d Cir. 2006) (concluding that a claim for false arrest turns on whether or not probable cause existed for the arrest, as opposed to the actual charges invoked by the arresting officer).

54 Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007) (citing County of

Sacramento v. Lewis, 523 U.S. 833, 849 (1998)).

~

55 See Def. Mem. at 5 (citing Garrett v. Port Auth. pfN. Y. and N.J., No. 04 Civ. 7368, 2006 WL 2266298, at *7 (S.D.N.Y. Aug. 8, 2006) ("Absent the initiation of proceedings, a court appearance pursuant to the summons alone cannot give rise to a malicious prosecution claim.")). See also Katzev v. Newman, No. 96 Civ. 9138, 2000 WL 23229, at *4 (S.D.N.Y. Jan. 12, 2000) ("[A] charge and a warrantless arrest- concluding with the issuance of the desk appearance ticketmay be a sufficient deprivation of liberty to support a claim for false arrest, but do

18

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 19 of 56

malicious prosecution, each plaintiff will have to show that the underlying action

resulted

in

a

favorable

disposition

indicative

of

innocence.

6 5

But if such 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.

This is an unacceptable result. As the Supreme Court has instructed, "class relief

is consistent with the need for case-by-case adjudication," especially where "[i]t is

unlikely that differences in the factual background of each claim will affect the outcome of the legal issue."57 With respect to commonality, Rule 23(a)(2) does not require all questions of law or fact be common to the class.58

not amount to a prosecution and cannot alone support a claim for malicious prosecution.").

56 See Def. Mem. at 5 (citing Fulton v. Robinson, 289 F.3d 196 (2d Cir. 2002)).

57 Califano v. Yamasaki, 442 U.S. 682, 701 (1979). Accord In re NTL Sec.

Litig., No. 02 Civ. 3013, 2006 WL 33013, at *6 (S.D.N.Y. Feb. 14, 2006)

(commonality requirement met if the class shares even one common question of

law or fact).

.:rt-

58 Injunctive classes governed by Rule 23(b)(2) "have been certified in a legion of civil rights cases where commonality findings were b' ased primarily on the fact that defendant's conduct [was] central to the claims of all class members irrespective of their individual circumstances and the disparate effects of the conduct." Baby Neal ex rei. Kanter v. Casey, 43 F.~d 48, 58 (3d Cir. 1994) (citation omitted).

19

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 20 of 56
Although not all prospective class members experienced the same
constitutional violation, their central claim is '"that their injuries derive from a unitary course of conduct by a single system. "'59 Specifically, plaintiff alleges that
defendants' blanket Arrest & Prosecution Policy chilled free speech and facilitated the unlawful e' nforcement of an unconstitutional statute. It follows from this
premise that this class action involves numerous common questions of both law and fact. 60
As plaintiff observes, many of the distinctions defendants draw
between putative class members' claims actually support certification. For
instance, defendants argue that because named plaintiffs Rudy and Grant were
issued summonses but never charged at arraignment, they cannot establish Fourth
59 Daniels v. City ofNew York, 198 F.R.D. 409,417 (S.D.N.Y. 2001) (quoting Marisol A., 126 F.3d at 377). 60 See, e.g., Port Auth. Police Benevolent Assoc., Inc. v. Port Auth. ofNY. & N.J., 698 F.2d 150, 154 (2d Cir. 1983) (certification improperly denied where plaintiffs challenged a practice of defendants, as opposed to defendants' conduct with respect to each individual plaintiff); Mitchell v. County ofClinton, No. 06 Civ. 0254,2007 WL 1988716, at *2 (N.D.N.Y. July 5, 2007) (in civil rights class action challenging correctional facilities' strip search policy, common ~es included "what strip search policy and practice existed, whether the policy and/or practice was unconstitutional, and whether some or all :of the defendants are liable"); Ventura v. New York City Health and Hosps. Corp., 125 F.R.D. 595, 600 (S.D.N.Y. 1989) ("Several other courts in this Circuit similarly have held that the existence of individualized factors or variations does not preclude [a] finding of [the] existence of common questions where pattern; practice or policy exists.") (collecting cases).
20

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 21 of 56
Amendment violations.61 But this is a legal question- whether a summons
charging an unconstitutional statute violates the Fourth Amendment that is
common to thousands of proposed class members.62 Quite clearly, the named
plaintiffs' complained-of injuries arose from the same practice/policy which now
(
gives rise to the claims of absent class members, and thus proves the existence of
common factual and legal issues. Common questions of fact include:
(i) whether defendants enforced or failed to prevent the enforcement of [section] 240.35(1), after the statute was declared unconstitutional; (ii) the existence of a widespread pattern, policy or practice of enforcement ... (iii) whether defendant Kelly had knowledge of the unlawful acts of his subordinates; (iv) whether [the City] failed to train supervise, and discipline the personnel in the NYPD and district attorneys' offices such that they are liable to members of the subclass for damages; ... and [(v)] what protocols existed in the NYPD regarding enforcement of [section 240.35(1)].63
Common questions of law include:
(i) whether defendants' enforcement of the statute during the class period violated class members' First and Fourteenth Amendment rights;
(ii) whether liability against the City is appropriate pursuant to controlling precedent on the basis of either (a)
61 See Def. Mem. at 4. 62 See Pl. Mem. at 12-13 (arguing that all putative class members have Fourth Amendment claims regardless of whether they were summoned, arrested or prosecuted under 240.35(1)).
I
63 !d. at 16.
21

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 22 of 56
defendants' custom, pattern and practice or (b)
supervisory policy-maker liability;64
(iii) whether individual defendants are entitled to qualified immunity or liable for punitive damages;65
(iv) whether the City is collaterally estopped from contesting liability in light of its admissions as to instances of wrongful enforcement of section 240.35(1 );
(v) whether defendants' conduct was discriminatory m violation of the Equal Protection Clause; and
(vi) whether plaintiffs are entitled to various forms of equitable relief, such as a disgorgement of fines paid or the exrounging of unlawful arrests from the public record. 6
Whether certain common issues are legal or factual or a mixture of both is
irrelevant for present purposes; the critical point is that they are common.
Nor do the legal and factual distinctions drawn by defendants vitiate
the typicality of putative class members' claims. Typicality is determined by the
64 See Monell v. New York City Dept. ofSoc. Servs., 436 U.S. 658, 693-95 (1978). 65 Curiously, defendants argue that qualified immunity defenses will require mini-trials to determine the reasonableness of each defendant's actions vis-a-vis each plaintiff in light of the "established law at the time." Def. Mem. ~ (citing Saucier v. Katz, 533 U.S. 194, 203-03 (2001)). However, because plaintiffs proposed class definitions concern only post-Loper enforcement, and Loper clearly established the unconstitutionality of section 240.35(1 ), to the extent that qualified immunity does become an issue in this case it will likely be amenable to class-wide adjudication. 66 See Pl. Mem. at 16.
22

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 23 of 56

nature of the claims brought by the class representatives, not by the particular fact patterns from which they arose. This is particularly true with respect to plaintiffs request for (b)(2) certification, for "where plaintiffs request declaratory and injunctive relief against a defendant engaging in a common course of conduct toward them.' .. [there is] no need for individualized determinations of the propriety of injunctive relief."67
The named plaintiffs' claims are typical of those of the absent class members because they arise from the same course of unconstitutional conduct the post-Loper enforcement of section 240.35(1)- that affected all class members. If absent class members were to assert their claims individually, they would presumably rely on the same legal theories plaintiff espouses here.68 And if plaintiff succeeds on his claims, all members of the putative class will benefit.69

67 !d.

68 See Robinson, 267 F.3d at 155 (typicality present where proposed class representative's claims arise from the same general "course of events" as those of the absent class members and rely on "similar legal arguments" to prove defendant' liability); Mitchell, 2007 WL 1988716, at *3 (typicality satisfied where named plaintiff and all putative plaintiffs had strip searched pursuant t~ defendants' blanket policy and practice).

69

•
See Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993) (typicality present

where employer discriminated "in the same general fashion" against proposed

class representatives and putative class). See also Baby Neal, 43 F.3d at 58

("[C]ases challenging the same unlawful conduct which affects both the named

plaintiffs and the putative class usually satisfies the typicality requirement.");

Ouellette v. International Paper Co., 86 F.R.D. 476,480 (D. Vt. 1980) ("Proof of

23

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 24 of 56
Moreover, the fact that some absent class members may have suffered greater injuries than their proposed representatives or fellow class members (i.e., by virtue of being jailed or prosecuted for violating section 240.35(1), as opposed to merely receiving a summons), and are thus able to bring additional claims or seek greater damages, doe8 not make the proposed representatives' claims atypical. As a result, plaintiffs proposed class and subclass satisfy Rule 23(a)(3)'s typicality requirement.
c. Adequacy Defendants have attacked both the adequacy of class counsel and the proposed class representatives. As to the former, defendants assert that The Bronx Defenders is inadequate because it has a conflict of interest with putative class members who it represented in criminal actions, including prosecutions occurring after 1992 where the class member pled guilty to violating section 240.35(1 ).70 Defendants assert that they (as defendants) are entitled to discover whether The Bronx Defenders was on notice of Loper at the time it represented these individuals because this information is potentially relevant to the City's defense
defendant's liability ... will benefit all members oftherproposed classes." (citation omitted)); Sanders v. Faraday Labs., Inc., 82 F.R.D. 99, 101 (E.D.N.Y. 1979) (the fact that damages could reach a de minimis level at some point among the absent class members did not make class representatives' claims atypical). 70 See Def. Mem. at 18.
24

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 25 of 56
against plaintiffs' claims of deliberate indifference. If such relevance is adduced, defendants may call The Bronx Defenders as a fact witness, who would then be in violation of ethical rules forbidding lawyers from acting as witnesses.71 Additionally, information adduced at discovery may suggest that The Bronx
(
Defenders are contributorily liable for damages, giving rise to an additional conflict of interest proscribed by the disciplinary rules.72
Defendants' sudden concern for the best interests of the class is as ironic as it is unconvincing. First, it must be remembered that The Bronx Defenders are appearing as co-counsel. The class is also represented by Emery Celli Brinckerhoff & Abady LLP, a preeminent civil rights firm that defendants do not challenge. Second, The Bronx Defenders represented forty clients who were charged with section 240.35(1) at arraignments in forty-nine cases; only seventeen of these resulted in convictions under the statute.73 Out of a putative class numbering in the thousands, this number is de minimis. And even assuming, arguendo, that the defense attorneys appearing in those seventeen actions were or should have been on notice of Loper, the circumstances surrounding their
71 See id. (citing 22 N.Y. Comp. Codes R. & Regs3§ 1200.21(b)). 72 See id. 73 See Reply Declaration of J. McGregor SmytlY, counsel for plaintiff, in
Support of Plaintiff's Motion for Class Certification ("Smyth Reply Decl.") ,-r 30.
25

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 26 of 56
Moreover, the fact that some absent class members may have suffered greater injuries than their proposed representatives or fellow class members (i.e., by virtue of being jailed or prosecuted for violating section 240.35(1), as opposed to merely receiving a summons), and are thus able to bring additional claims or seek greater
l
damages, does not make the proposed representatives' claims atypicaL As a result, plaintiffs proposed class and subclass satisfy Rule 23(a)(3)'s typicality requirement
c. Adequacy Defendants have attacked both the adequacy of class counsel and the proposed class representatives. As to the former, defendants assert that The Bronx Defenders is inadequate because it has a conflict of interest with putative class members who it represented in criminal actions, including prosecutions occurring after 1992 where the class member pled guilty to violating section 240.35(1).70 Defendants assert that they (as defendants) are entitled to discover whether The Bronx Defenders was on notice of Loper at the time it represented these individuals because this information is potentially relevant to the City's defense
defendant's liability ... will benefit all members ofthe:proposed classes." (citation omitted)); Sanders v. Faraday Labs., Inc., 82 F.R.D. 99, 101 (E.D.N.Y. 1979) (the fact that damages could reach a de minimis level at some point among the absent class members did not make class representatives' claims atypical).
/
70 See Def. Mem. at 18.
24

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 27 of 56
against plaintiffs' claims of deliberate indifference. If such relevance is adduced, defendants may call The Bronx Defenders as a fact witness, who would then be in violation of ethical rules forbidding lawyers from acting as witnesses.71 Additionally, information adduced at discovery may suggest that The Bronx
(
Defenders are contributorily liable for damages, giving rise to an additional conflict of interest proscribed by the disciplinary rules.72
Defendants' sudden concern for the best interests of the class is as ironic as it is unconvincing. First, it must be remembered that The Bronx Defenders are appearing as co-counsel. The class is also represented by Emery Celli Brinckerhoff & Abady LLP, a preeminent civil rights firm that defendants do not challenge. Second, The Bronx Defenders represented forty clients who were charged with section 240.35(1) at arraignments in forty-nine cases; only seventeen of these resulted in convictions under the statute.73 Out of a putative class numbering in the thousands, this number is de minimis. And even assuming, arguendo, that the defense attorneys appearing in those seventeen actions were or should have been on notice of Loper, the circumstances surrounding their
71 See id. (citing 22 N.Y. Comp. Codes R. & RegsJ§ 1200.2l(b)). 72 See id. 73 See Reply Declaration of J. McGregor Smytll, counsel for plaintiff, in Support of Plaintiff's Motion for Class Certification ("Smyth Reply Decl.") ,-r 30.
25

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 28 of 56
representation have no bearing on the illegality of the summonses and arrests underlying those prosecutions.74 Furthermore, disqualification on these ethical
grounds requires "a high standard of proof" that the court's usurpation of a party's
right to choose his counsel freely is necessary in order to maintain the highest
(
standards of the profession.75 Defendants do not meet this burden.
As to the adequacy of the proposed class representatives, defendants
provide a litany of purported reasons why the named plaintiffs are too unreliable or
incompetent to represent absent class members. These reasons boil down to two
primary concerns - missed court appearances and/or past substance abuse. 76
74 Defendants also contend that Bronx Defender McGregor Smyth has breached the "advocate-witness" rule by submitting declarations to the Court containing summaries and analyses of OCA's statistical data. See Def. Mem. at 19 ("[T]o the extent that Mr. Smyth is acting in the capacity of an expert, the ethical rules prohibit his involvement as both an advocate and witness." (citation omitted)). This argument is frivolous. Defendants' counsel submitted similar declarations summarizing the same data, see, e.g., Declaration of Rachel A. Seligman, Assistant Corporation Counsel, in Opposition to Plaintiffs Motion to Amend the Complaint and for Class Certification ("Seligman DecI.") at ~~ 9-1 0. 75 Government ofIndia v. Cook Indus., Inc., 569 F.2d 737,739 (2d Cir. 1978). 76 Rudy admitted to missing two scheduled court appearances, one:m\.sing from an unpaid ticket, the other from an assault charge. See 3/27/07 Deposition of Llewelyn Rudy ("Rudy Dep."), Ex. J to Seligman Dec]:;, Ex. F to Smyth Reply Decl., at 150-52. Wells admitted to missing approximately ten court appearances, including those arising out of his April2004 and March 2005 arrests for violating section 240.35(1). See 3/29/07 Deposition ofBobby Wells, Ex. K to Seligman Decl., Ex. H to Smyth Reply Decl., at 268. Two proposed class representatives have been in drug treatment programs. See Def. Mem. at 14.
26

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 29 of 56
Neither of these concerns disqualify any of the named plaintiffs from adequately
representing the proposed classes. Indeed, if this Court were to rule out proposed
class representatives on these grounds there would likely be nobody left to bring suit on behalf of persons charged with "loitering for the purpose ofbegging."77
• Such rigidity would undermine "a principal objective of the class action mechanism- to facilitate recovery for those least able to pursue an individual action."78
Moreover, in the course of a discovery dispute, defendants had
already raised the issue of named plaintiffs' prior use of illegal drugs. At that time,
the Court held that "given the makeup of this putative class- primarily homeless people panhandling for subsistence- the fact that individuals have suffered from .. . drug addiction is not relevant to their adequacy to act as class representatives."79
Neither the facts nor law have changed since that explicit and unambiguous ruling.
77 N.Y. Penal Law§ 240.35(1). 78 Noble v. 93 University Place Corp., 224 F.R.D. 330, 344 (S.D.N.Y. 2004). 79 Brown v. Kelly, No. 05 Civ. 5442, 2007 WL 1138877, at *2 (S.D.N.Y. April 16, 2007) (collecting cases). This Court has previously expressed its reruEtance to deny class certification based on allegations of immorality or improper conduct not "arising out of or touching upon the very prosecution of the lawsuit." Jane B. ex rei. Martin v. New York City Dep 't ofSoc. Servs., 117 F.R.D. 64, 71 (S.D.N.Y. 1987). For "[i]f the courts prevent persons with questionable moral characters from acting as class representatives, [classes of] pri~oners, mental patients, juvenile offenders, or others capable of socially deviant behavior could never ... be certified. This is an unacceptable result." !d.
27

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 30 of 56
Defendants further argue, without explanation, that because the named
plaintiffs' claims arose in New York City, an impermissible conflict of interest
exists between them and absent class members whose claims arose outside of the City.80 This argument is without merit. The critical purpose of the adequacy
(
inquiry is to determine whether a class representative's interests are antagonistic to those of absent class members.81 That some absent class members were charged
with violating section 240.35(1) elsewhere in New York may lead to a geographically dispersed class, but suggests no antagonism whatsoever.82 To the
contrary, it is obvious that the named plaintiffs' motives for pursuing this litigation
are commensurate with those of all proposed class members, and satisfY the requirements ofRule 23(a)(4).83
80 See id. at 17. 81 See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 (1997) ("The adequacy inquiry under Fed. R. Civ. P. 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. A class representative must be part of the class and possess the same interest and suffer the same injury as the class members."). See also In re Visa Check, 280 F.3d at 142. 82 Adequacy is not defeated by "conclusory assertions [that] raise~ hypothetical rather than an actual, conflict." Burley v. City ofNew York, No. 03 Civ. 735, 2005 WL 668789, at *4 (S.D.N.Y. Mar. 23, 4005). 83 The Court is also satisfied that the named plaintiffs are sufficiently familiar with this case and their role as class representatives. See, e.g., 3/28/07 Deposition of Michael Brown, Ex. G to Smyth Reply Decl., at '!J, 65 ("I'm representing it for those that can't be here today ... I just really want the police to stop arresting us for panhandling because I don't see it as no crime."); Rudy Dep. at 128 ("I
28

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 31 of 56

2. Rule 23(b)(2) Certification of a state-wide plaintiff class falls squarely within the purview of Rule 23(b)(2), for even in the absence of possible monetary recovery, reasonable individuals charged with violating an unconstitutional and unenforceable' criminal statute would bring suit to obtain the extensive injunctive relief plaintiff seeks.84 They would seek to have their wrongful criminal convictions and bench warrants expunged, and to have their fines repaid.85 Civicminded citizens would also, quite reasonably, seek ongoing monitoring of police officer training and any continuing enforcement of section 240.35(1).86 Plaintiff seeks a declaratory judgment that all post-Loper instances of enforcement of section 240.35(1) violated class members' federal, state and constitutional rights.87 Although it may be true that plaintiff seeks this judgment as

understand that I have to be reliable, that it's up to me to see that this does not

happen to anyone else and that the law is properly followed by the NYPD and to

set an example ...."); 3/30/07 Deposition of Keith Anderson, Ex. E to Smyth

Reply Decl., at 52, 68 ("[W]hat happened to me I don't want it to happen to

anybody else .... [I]t is against the law to lock people up for pan handling, that

was what the whole fight was all about."). See also Pl. Mem. at 3 (quoting

additional deposition excerpts).

~

84 See Parker, 331 F.3d at 20.

85 See Pl. Mem. at 21.

86 See id. I
87 See Complaint at 39, "Wherefore" Clause, 1.

29

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 32 of 56
a prelude to a request for damages, such declaratory relief is nevertheless
'"reasonably necessary and appropriate were plaintiff to succeed on the merits. "'88
This is par for the course in civil rights cases where a plaintiff class seeks
systematic reform through injunctive relief in addition to monetary relief.89 • Defendants oppose (b)(2) certification on the ground that plaintiff
lacks standing to seek injunctive relief under Galvan v. Levine, a seminal case in
which the Second Circuit found class certification unnecessary because the state
defendant, prior to judgment, withdrew the challenged rule and represented that it
had no intention of reinstating it.90 The court explained that
88 Parker, 331 F.3d at 20 (quoting Robinson, 267 F.3d at 164). Accord Berger v. Xerox Corp. Ret. Income Guar. Plan, 338 F.3d 755, 764 (7th Cir. 2000) (noting that "a declaratory judgment is normally a prelude to a request for other relief," as "[nobody] wants an empty declaration"). Accord Marisof A., 27 F.3d at 164 (certification under 23(b)(2) appropriate where a claim seeks both injunctive relief and non-incidental money damages). 89 See Marisol A., 126 F.3d at 378 ("'[C]ivil rights cases seeking broad declaratory or injunctive relief for a large and amorphous class ... fall squarely into the category' of 23(b)(2) actions." (quoting Jeanine B. ex rei. Blondis v. Thompson, 877 F. Supp. 1268, 1288 (E.D. Wise. 1995))); Latino Officers Ass 'n of New York v. City ofNew York, 209 F.R.D. 79, 93 (S.D.N.Y. 2002) (certifying a 23(b)(2) class where plaintiffs sought "significant" injunctive relief incm'8ing training ofNYPD officers). There is indeed a "long line of cases in the Second Circuit allowing class actions that seek to enjoin governmental actions." Alexander A. v. Novello, 210 F.R.D. 27, 34 (E.D.N.Y. 2002) (collecting cases). See also Fed. R. Civ. P. 23(b)(2), Advisory Committee Notes to 1966 Amendment (civil-rights actions "illustrative" of those well-suited for (b)(2) certification).
I
90 490 F.2d 1255 (2d Cir. 1973).
30

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 33 of 56

insofar as the relief sought is prohibitory, an action seeking declaratory or injunctive relief against state officials on the ground of unconstitutionality of a statute or administrative
practice is the archetype of one where class action designation
is largely a formality, at least for the plaintiffs. As we have recently noted in Vulcan Society v. Civil Service Comm 'n, 490 F.2d 387, 399 ([2d Cir.] 1973), what is important in such a case fpr the plaintiffs or, more accurately, for their counsel, is that the judgment run to the benefit not only of the named plaintiffs but of all others similarly situated ... as the judgment did here. The State has made clear that it understands the judgment to bind it with respect to all claimants; indeed even before entry of the judgment, it withdrew the challenged policy even more fully than the court ultimately directed and stated it did not intend to reinstate the policy.91
A number of lower courts have applied Galvan in denying class
certification.92 On the other hand, many lower courts have distinguished Galvan

91 !d. at 1261 (citations omitted). The Second Circuit has re-affirmed the

Galvan doctrine on several occasions. See, e.g., Berger v. Heckler, 771 F.2d 1556

(2d Cir. 1985) (class certification unnecessary where defendant agreed to the

enforcement of a decree in favor of nonparties); Forts v. Ward, 621 F.2d 1210,

1217 (2d Cir. 1980) (class certification "largely a formality" where State

defendants explicitly indicated a willingness to comply with the court's order);

Davis v. Smith, 607 F.2d 535, 540 (2d Cir. 1978) ("Where retroactive monetary

relief is not at issue and the prospective benefits of declaratory and injunctive 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, a district court

may decline certification.").

~

92 See, e.g., Daniels, 198 F.R.D. at 420 (collecting pases). See also Langer v. New York State Office ofCourt Admin., No. 98 Civ. 413, 1998 WL 799153, at *6 (W.D.N.Y. Nov. 13, 1998) ("The doctrine that class certification is unnecessary in these circumstances arises out of the presumption that the State and its agents will not act to enforce against any person a regulation which has been found and declared to violate the Constitution, whether or not that person participated in the action which resulted in such declaration."); Green v. Borg-Warner Protective

31

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 34 of 56
and granted class certification.93 Judge Charles S. Haight of this Court addressed
this issue in Blecher v. Department ofHousing Preservation and Development of
the City ofNew York:
Courts have focused on four factors in determining whether cJass certification is necessary under Galvan. 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 of the challenged action or nonenforcement 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 action from becoming moot.94
Servs. Corp., No. 95 Civ. 10419, 1998 WL 17719, at *4 (S.D.N.Y. Jan. 16, 1998) ("The declaratory and injunctive relief sought against the State and Municipal defendants would make class action designation largely a formality si~he relief sought, if warranted, would confer a benefit on all persons similarly situated without any class designation."); Feld v. Berger, 424 R Supp. 1356, 1363 (S.D.N.Y. 1986) (finding class certification superfluous because the court "assumes these public officials, mindful of their responsibilities, will apply the determination here made equally to all persons similarly situated").
I
93 See, e.g., Daniels, 198 F.R.D. at 421 (collecting cases).
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Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 35 of 56
Focusing on the third factor, numerous courts have distinguished Galvan on the basis of the type of relief sought, namely whether it is prohibitionary or affirmative. Although this distinction is often "somewhat illusory,"95 it is useful and illuminatipg as applied here. Defendants argue that in light of their recent efforts to cease the continuing enforcement of section 240.35(1 ), plaintiff "cannot hope to achieve more [equitable relief] via a (b)(2) class."96 Yet clearly he does, for the Complaint expressly seeks complex affirmative relief which neither state nor municipal law enforcement has ever agreed to provide either to him or to all persons similarly situated.97 The NYPD's recent actions aimed at ceasing enforcement do not moot, for example, plaintiffs prayer for the disgorgement of fines that were levied under section 240.35(1), or for the expungement of wrongful convictions from public records.

94 No. 92 Civ. 8760, 1994 WL 144376, at *4-5 (S.D.N.Y. April 19, 1994) (citations omitted).

95 Daniels, 198 F.R.D. at 421.

. ,

96 Def. Mem. at 22

97 See Jane B., 117 F.R.D. at 72 (Galvan inapplicable where plaintiffs sought more than merely prohibitory relief declaring a statUte or administrative practice unconstitutional).

33

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 36 of 56
Another way to frame the Galvan test is by looking at "the level of commitment expressed by the defendants."98 With respect to the City defendants,
the record in this case establishes their patterned unwillingness to voluntarily modify internal procedures in order to ensure compliance with court orders.99 In
t
view of this past resistance to redressing constitutional wrongs, I harbor serious doubts that all potential plaintiffs whose claims arose in New York City will automatically benefit (i.e., have their criminal records expunged) absent additional action on their part. 100
With respect to the proposed absent defendants who are scattered around the State, although they have never been ordered to cease enforcing section 240.35(1 ), the record suggests that absent a court-issued mandate, they will not take affirmative action to remedy past incidents of illegal enforcement of the
98 Daniels, 198 F.R.D. at 421. 99 See Brown I, 2007 WL 1573957, at *4-5. 100 See Connecticut State Dep 't ofSoc. Servs. v. Shalala, No. 03 Civ. 99, 2000 WL 436616, at *3 (D. Conn. Feb. 28, 2000) (Galvan inapplicable whe~l) plaintiff sought an order requiring state defendant to take corrective action in addition to ceasing conduct; and (2) state defendant had neither committed to granting class-wide relief nor taken affirmative steps to address plaintiff's concerns); Brown v. Giuliani, 158 F.R.D. 251, 269 n.23 (E.D.N.Y. 1994) (class certification necessary where defendants, who had a history of failing to abide by court orders, did not agree that underlying judgment against them would bind them with respect to all putative class members).
34

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 37 of 56

statute. 101 According to available OCA data, notwithstanding Loper, over six hundred individuals have been prosecuted for violating section 240.35(1) in Rockland, Suffolk, Erie and Nassau Counties. 102 Quite simply, the class action device is the most efficient and appropriate method for vindicating the rights of
• individuals throughout New York who were subject to an unlawful section 240.35(1) charge. Additionally, as 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. 103 Bringing non-City parties into this litigation via bilateral (b)(2) class certification is the only way to achieve uniformity of equitable relief for past enforcement, and to effectively prevent any future enforcement across the state.

101 See Hundreds Busted Under Bogus Law, N.Y. Daily News, July 3, 2005 (Erie County deputy District Attorney indicating that her office would "go along" with anyone who sought to overturn a conviction based on section 240.35(1 ), but would otherwise "do nothing" with respect to hundreds of unjust convictions).

102 See Declaration of J. McGregor Smyth in Support of Plaintiff's Motion for Class Certification ("Smyth Decl.") ~~ 16-17 (citing OCA data). See r.i1!S'U supra

Part III.C.2.

~

103

'
See Cutler v. Perales, 128 F.R.D. 39,47 (S.D.N.Y. 1989) (certifying a class

of all New York City Medicaid applicants where defendants "have made no

representation of willingness to change internal procedures" and "most putative

class members [were] either [too] old or infirm" to effectively bring individual

actions).

35

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 38 of 56
In sum, certification of a state-wide (b)(2) plaintiff class is appropriate because law enforcement agencies throughout New York State, including New York City, continued charging individuals with violating section 240.35(1) after it was declared unconstitutional. Given the import and necessity of plaintiff's prayers for affirmative injunctive relief, Galvan does not preclude certification here.
3. Rule 23(b)(3) a. Predominance
Certification of a damages subclass consisting of all persons arrested, charged, or prosecuted for a violation of section 240.35(1) by employees, agents or representatives of the City of New York, from October 7, 1992 onward, is appropriate because core common issues predominate over individual issues. Two predominating issues at the heart of this litigation are: (1) whether defendants maintained an unconstitutional policy of enforcing a void statute that criminalized "loitering for the purpose of begging," and (2) whether defendants violated individuals' constitutional rights by arresting, summoning, or prosecuting them
under this same statute. 104 These central questions predominate, requi~o
• ~
104 See Reply Memorandum of Law in Further SUpport of Plaintiff's Motion for Class Certification ("Pl. Reply Mem.") at 10.
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Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 39 of 56
individualized analysis, and are common to the entire subclass, making them ideally suited for resolution in a (b)(3) class action.
Defendants oppose (b)(3) certification with the same arguments they
. employed in attempting to defeat commonality and typicality under (a)(4), to wit,
l
that common issues fail to predominate because each incident of enforcement requires an individualized analysis. As set forth above, this argument is a red herring in light of the core constitutional issues underlying the claims of each putative plaintiff.105 That some claimants may prevail on more constitutional claims than others "does nothing to alter the fundamental cohesion of the proposed class, which is the central concern of the predominance requirement." 106
With respect to predominance, defendants reargue their earlier point that established law requires a case-by-case determination of whether probable cause to arrest existed based on any criminal activity regardless of whether or not it was charged. In presenting this argument, defendants ignore leading Circuit law on 23(b)(3) Fourth Amendment class actions. This case is remarkably similar to In re Nassau County Strip Search Cases, where the Second Circuit rejected
.:;-t.
defendants' argument that predominance was defeated by the individualized
~
liability issue of whether each plaintiff had been strip-searched based on
105 See supra Part III.B.l.a. 106 In re Nassau County Strip Search Cases, 461 F.3d at 228.
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Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 40 of 56
reasonable suspicion. 107 The court concluded that "[i]n light of the pervasive
character of the common liability issues and the admittedly de minimis nature of
individualized liability issues," the district court erred in finding that individual issues predominated. 108 Defendants are correct that probable cause is a ~omplete defense to a fa'lse arrest claim, but the fact that this defense "may arise and affect
different class members differently does not compel a finding that individual issues predominate over common ones."109 Here, the common liability issues (Fourth
Amendment, First Amendment, Due Process) are so pronounced and pervasive
they overwhelmingly outweigh the more narrow inquiries that may be required to resolve a subset of certain Fourth Amendment claims. 110
In arguing that predominance is lacking, defendants also reassert their
earlier contention that plaintiff's First Amendment claims will require mini-
107 See id. at 229. 108 !d. 109 In re Visa, 280 F.3d at 138. 110 One hotly contested Fourth Amendment issue that is common to hundreds of class members is whether the issuance of a summons without probabl~se violates the Fourth Amendment. Compare Pl. Reply Mem. at 12-13 (arguing that "all putative class members have uniform claims that defendants violated their Fourth Amendment rights" no matter how they were charged and citing Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir. 1997)), with Def. Mem. at 17 (concluding that because named plaintiffs Rudy and Grant received summonses but were never arrested, they "cannot establish that [their] Fourth Amendment rights were violated").
38

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 41 of 56
hearings to detennine whether each claimant was actually panhandling at the time he was charged with violating section 240.35(1 ). But regardless of whether or not each putative class member was engaging in protected speech or expression at the time he was charged, by virtue of the charge itself, he was accused of engaging in
• such activity and penalized based on that accusation. Under Rule 23, plaintiff may allege on behalf of himself and others similarly situated that these charges sent a message to all New Yorkers that peaceful begging was a criminal offense and thereby had the effect of chilling future protected speech and expression. This First Amendment claim is sufficient for class certification. 111
In sum, the gravamen of plaintiffs claims attacks the systemic enforcement of a single unconstitutional statute by police officers and district attorneys in New York City. All members of the damages subclass "will presumably rely on the same proof to establish the existence and legality, or lack of legality of this practice," and thus their claims are ideally suited for (b)(3) certification. 112
111 See Latino Officers Ass 'n, 209 F.R.D. at 86 (granting class certiftntion where only some members of putative plaintiff class were subject to employer retaliation, but complaint alleged that "all class members were chilled in the exercise of their First Amendment rights by the threat of retaliation"). 112 Coco v. Village ofBelle Terre, 233 F.R.D. 109, 115-16 (E.D.N.Y. 2005) (certifying a plaintiff class alleging that defendants,""without authority to do so, purported to enforce traffic and other laws and collect purported fines for alleged violations of those laws"). Accord In re Visa Check, 280 F.3d at 146 (where
39

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 42 of 56
b. Superior Method of Adjudication
Plaintiff is also correct in his contention that given the demographics of the proposed subclass, the class action device is not just a superior method of adjudication, it is the "only method of adjudication."113 As noted above, most members of th'e damages subclass lack the resources necessary to bring individual lawsuits and therefore, absent class certification, their rights will go unvindicated.114 However, even assuming that some subclass members possess the means and initiative to file individual actions, certification will allow them to enforce their rights in unison, thereby avoiding the expense and burden of duplicative lawsuits.
C. Proposed Bilateral 23(b)(2) Defendant Class Plaintiffs proposed defendant class encompasses "all political sub-
divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge or prosecute a person with a violation
plaintiffs are "aggrieved by a single policy of the defendants," the action "presents precisely the type of situation for which the class actioll device is suited"). 113 Pl. Mem. at 26. 114 See, e.g., D'Alauro v. GC Servs. Ltd. P'ship,168 F.R.D. 451,458 (E.D.N.Y. 1996) (appropriate to consider the "inability of the poor or uninformed").
40

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 43 of 56
under New York Penal Law." 115 This includes all sixty-two counties throughout New York State as well as an estimated 553 law enforcement agencies. 116
1. Named Plaintiffs' Standing to Sue Non-City (Absent) Defendants
As a threshold issue, defendants argue that because all named (
plaintiffs were charged by the NYPD with violating section 240.35(1 ), they do not have a live case or controversy with any non-City agency or official, and thus lack standing to prosecute class claims against the absent members of the proposed defendant class. 117 This is a specious argument. Although prior to seeking class certification putative class representatives must first demonstrate individual
115 Complaint~ 46. 116 See Pl. Mem. at 30 (citing to the New York State Division of State Police website, at http://www.troopers.state.ny.us/.). 117 See Def. Mem. at 16. Most courts certifying bilateral (b)(2) classes never address the issue of whether the representative plaintiff has standing to prosecute class claims against each absent member of the defendant class. Court:S'."that have addressed this issue have often done so in the context of analyzing whether the proposed plaintiff class satisfies Rule 23(a), although tpey variously frame the issue as being relevant to commonality (a)(2), typicality (a)(3), or adequacy (a)(4). See generally Newberg on Class Actions § 3: 19 (4th ed.) (collecting cases). From a standing perspective, these criteria certainly overlap. For ease of discussion, I raise the standing issue here because it arises only with respect to named plaintiffs' standing to sue absent members of the proposed (b)(2) defendant class.
41

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 44 of 56
standing to sue,118 it is well-established that traditional standing requirements do
not apply to absent parties when a representative party brings suit on behalf of- or
against- similarly situated absent class members. 119 "In a class action context,
adequate representation and typicality of claims or defenses, as required by procedural du'e process and Rule 23 standards, serve as a substitute for application
of normal standing requirements with respect to the relationship between absent
class members and the party representing or opposing the class."120 Because I find
118 See Allee v. Medrano, 416 U.S. 802, 829 (1974) (Burger, J., concurring in part, dissenting in part) ("Standing cannot be acquired through the back door of a class action."). 119 Compare Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds, 442 U.S. 915 (1979) (approving a statewide plaintiff class of pretrial detainees, to be represented by two inmates of the Monroe County Jail, and a statewide defendant class of county sheriffs, to be represented by the sheriff of Monroe County) with Henson v. East Lincoln Twp., 814 F.2d 410 (7th Cir. 1987) (plaintiff class representative lacked standing to sue absent class defendants with whom plaintiff had no business contact). See generally Newberg on Class Actions § 4:53 (citing, inter alia, Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)). 120 See Marcera, 595 F.2d at 1235 (finding that the named defendant sheriff would adequately represent absent defendant sheriffs scattered across titetstate and embracing the bilateral class action as means by which court could finally extend the "practical impact" of its decrees on inmates' rightsheyond "one institution at a time"). See generally Newberg on Class Actions§ 4:53' (citing, in support, Supreme Court rulings on mootness avoidance in situations where the claims of the representative plaintiff became moot prior to class certification). See id. (characterizing as "questionable" cases that deny class certification on the ground that absent class members failed traditional standing tests and advising courts to "not lose sight of the fact that class actions are special types of litigation that
42

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 45 of 56

that the proposed defendant class satisfies each Rule 23(a) criterion, the fact that

under a traditional standing analysis no representative plaintiff has suffered

personal injuries with respect to each absent defendant does not preclude bilateral

certification.
l
2.

Rule 23(a)

The requirements of Rule 23 apply "equally to plaintiff and defendant classes."121 The proposed defendant class satisfies the four criteria of Rule 23(a).

Because the proposed defendant class encompasses hundreds of law

enforcement agencies which are scattered throughout New York State, the numerosity prerequisite is satisfied. 122 The commonality prong is also easily

satisfied, as the central issues of this litigation- i.e., whether the continued

enforcement of section 240.35(1) violates individuals' constitutional rights- are

common to all class members. Accordingly, the simple fact that section 240.35(1)

remains on the books and subject to state-wide enforcement provides the requisite

represent an exception to normal personal jurisdiction due process safeguards

before a judgment may be entered against an absent party").

~

121 Consolidated Rail Corp. v. Town ofHyde, 47 F.Jd 473,483 (2d Cir. 1995) (affirming certification of a (b)(3) defendant class).

122 According to OCA data, between 1992 and May 9, 2006, over six hundred prosecutions charging violations of section 240.35(i) were brought by prosecutors outside the City. See Smyth Decl. ~~ 16-17.

43

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 46 of 56
commonality. 123 In light of the common legal issues, I need not find that there are
also questions of fact common to the class. Nonetheless, I note that because
plaintiff seeks to have all members of the proposed defendant class enjoined from
enforcing section 240.35(1 ), to the extent that they ultimately refrain from doing
(
so, their practices and procedures will mirror each other in respects pertinent to plaintiff's clairns. 124
As to Rule 23(a)'s typicality and adequacy requirements, both are satisfied here under the juridical link doctrine. 125 A juridical link is "some
independent legal relationship which relates all defendants in such a way that a
123 See Gibbs v. Titelman, 369 F. Supp. 38, 52 (B.D. Pa. 1973) ("The validity of the statutory scheme ... as it pertains to both classes, comprises the substance of the action .... It is the same procedures [authorized by the statute] that form the bond of legal commonality between the plaintiffs and defendants."), rev'd on other grounds, 502 F.2d 1107 (3d Cir. 1974). 124 See Luyando v. Bowen, 124 F.R.D. 52, 58 (S.D.N.Y. 1989) (finding certification a (b)(2) defendant class appropriate where each class member was required by law to enforce the regulations being challenged and holding that minor differences in enforcement did not defeat commonality); CBS Inc. v. Smith, 681 F. Supp. 794, 801 (S.D. Fla. 1988) (certifying (b)(1) defendant class of almxty-seven county supervisors of elections, where one core question of law - whether a statute violated the First Amendment was common to the class). 125 See La Mar v. H & B Novelty & Loan Co., 489 F.2d 461,466 (9th Cir. 1973) (describing the bond between members of a defendant class who are 'juridically related in a manner that suggests a single resolution of the dispute would be expeditious").
44

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 47 of 56
single resolution of the dispute is preferred to a multiplicity of similar actions." 126
A particularly strong juridical relationship exists in cases "'[w]here all members of
the defendant class are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional. "'127 That section 240.35(1) has already been found unconstitutional does not sever this link.
The City defendants assert that they are inadequate class representatives because they are unable to raise a defense that is unique to absent members of the defendant class. Specifically, because the City defendants were parties to Loper and are currently enjoined from enforcing section 240.35(1), they are precluded from arguing what non-City defendants could argue, namely that Loper is merely persuasive rather than binding authority on state courts. 128 Regardless of the viability of this defense, the fact that an absent defendant
126 DeAllume v. Perales, 120 F.R.D. 299,303 (S.D.N.Y. 1986) (citation omitted) (juridical link between commissioners who promulgated the same policy state-wide). Accord Monaco v. Stone, 187 F.R.D. 50,66 (E.D.N.Y. 1999) (juridical link between all criminal court judges bound to enforce same statute).
~
127 Thompson v. Board ofEduc. ofthe Romeo Cmty. Schs., 709 F.2d 1200, 1205 (6th Cir. 1983) (quoting Mudd v. Busse, 68 F.R.D. 522; 527-28 (N.D. Ind. 1975)). 128 See Def. Mem. at 28-29 (citing New York v. Kin Kan, 78 N.Y.2d 54, 60 (1991 ), for the proposition that the interpretation of a federal constitutional question by a lower federal court is persuasive but not binding authority on state courts).
45

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 48 of 56
possibly could or would raise it does not destroy the City defendants' adequacy as class representatives. 129 State law enforcement agencies will be put on notice of this litigation, and if any wish to oppose a permanent injunction on the ground that they are not bound by Loper, they may do so.
R' ule 23(a)(4) "does not require a willing representative but merely an adequate one."130 The City defendants, including Commissioner Kelly, will adequately represent the interests of the absent defendants. The City has been a named party in this lawsuit since the day it was filed, and its thorough familiarity with the factual background and legal issues of this litigation will enable it to effectively represent the defendant class. 131 It is not surprising that defendants object to representing a class, for "named defendants almost never choose their role as class champion [as] it is a potentially onerous one thrust upon them by their opponents."132 But acceding to the wishes of defendants and allowing them to
129 Defenses need not be identical in order to maintain a defendant class action. See Oneida Indian Nation of Wis. v. New York, 85 F.R.D. 701, 705 (N.D.N.Y. 1980). 130 Marcera, 595 F.2d at 1239. 131 See Marcera v. Chinlund, 91 F.R.D. 579, 584 (W.D.N.Y. 1981). 132 Marcera, 595 F.2d at 1239. Accord Consolidated Rail Corp., 47 F.3d at 474 (the appropriate inquiry is whether, "in defending their own interests, the designated representatives will adequately and fairly protect the interests of the remaining class members").
46

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 49 of 56
abdicate this responsibility so easily would gut the effectiveness of Rule 23(b)(2) as an instrument for preventing the recurrence of unconstitutional conduct.133 Because the overwhelming number of incidents of unlawful enforcement of section 240.35(1) were carried out by the NYPD, the City defendants have the greatest
(
stake in this litigation. Quite naturally then, they have the greatest incentive to litigate vigorously, which makes them and their counsel more than adequate representatives of the defendant class.
Defendants also argue, against no Rule 23(a) criterion in particular, that the proposed defendant class is so overly broad it raises due process concerns which caution against certification. 134 While a heightened sensitivity to due process is warranted in the class action context, it does not dictate a denial of certification here. First, defendants' assertion that procedural due process is lacking because absent defendants were not on notice of Loper is at best a frivolous argument. At worst, this argument pushes the envelope of hypocrisy, for defendants elsewhere argue that absent plaintiffs should be deemed on notice of Loper as of October 1992 because the story received "significant coverage in the
.
'
133 See Marcera, 595 F.2d at 1239.
!
134 See Def. Mem. at 33.
47

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 50 of 56
local New York City newspapers."135 Second, defendants argue that the defined defendant class is "so over-broad and unfair that it amounts to a deprivation of due process," but offer no examples or reasoning in support of this conclusion. 136 If there are counties in New York State that have never unlawfully enforced section
(
240.35(1 ), any remedies imposed on these defendants will do them no harm. Third, what constitutes procedural fairness to absent defendants varies with respect to different types of defendant class suits. In a civil rights class action such as this - where certification of a defendant class will achieve uniform injunctive relief and avoid enforcement problems; 137 where exposing absent defendants to liability will not impose upon them a significant out-of-pocket financial risk; and where adequate representation is ensured - due process is satisfied and the defendant class can be maintained.
3. Rule 23(b)(2)
135 !d. at 10 n.l4. The idea that a class of mostly homeless individuals knew and appreciated the ramifications of Loper, but that state law enforce.rrri3it officials did not, is untenable. 136 See id. at 33. 137 See Markel v. Blum, 509 F. Supp. 942,948 (N.D.N.Y. 1981) (certifying defendant class of administrators ofNew York's public assistance program in order to avoid enforcement problems).
48

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 51 of 56
There is currently a split in the circuits as to whether defendant c1asses
are pennissible in class actions governed by Rule 23(b)(2). 138 Courts ascribing to a
literal reading of the Rule have held that it only pennits plaintiff classes to seek
injunctive and declaratory relief from individual defendants, as opposed to
defendant cla~ses. 139 However, the Second Circuit - the only appellate court that
binds this Court has expressly rejected such a narrow interpretation of the Rule.
In Marcera v. Chinlund, the court affirmed certification of a defendant class of
county sheriffs and stated "it is now settled that 23(b)(2) is an appropriate vehicle
for injunctive relief against a class oflocal public officials."140 Although it is
138 The Supreme Court has not spoken on this issue. In Zablocki v. Redhail, 434 U.S. 374, 380 n.6 (1978), the Court noted that the appellant had not appealed the district court's certification of a (b)(2) defendant class, but did not otherwise address this point. 139 See Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir. 1980) ("As is clear from the language of the Rule, it is applicable to situations in which a class of plaintiffs seeks injunctive relief against a single defendant .... To proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as 'the party opposing the c1ass,' and would create the anomalous situation in which the plaintiffs' own actions or inactions could make injunctive relief against the defendants appropriate."). Accord Tilley v. TJXCos., Inc., 345 F.3d 34,40 (1st Cir. 2003); Henson, 814 F.2d at 415-17; Thompson, 709 F.2d at 1204.~
a 140 595 F.2d at 1238. Accord Southern Ute Indian Tribe v. Amoco Prod. Co., 2
F.3d 1023 (lOth Cir. 1993) (affirming certification of (b)(2) defendant class); Baker v. Wade, 743 F.2d 236,244 (5th Cir. 1984) (certification of a (b)(2) defendant class was proper where the named defendants would adequately represent the class and "the true interest at stake" was "that of the State of Texas in the constitutionality of its duly enacted legislation"). See also Luyando, 124 F.R.D. at 58 (certifying a (b)(2) defendant class); Follette v. Vitanza, 658 F. Supp.
49

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 52 of 56
employed rarely for this purpose, both before and after Marcera, Rule 23(b)(2) has
been the cornerstone of bilateral civil rights class actions.
Defendants also balk at the size of plaintiff's proposed defendant
class, but a large class is not an uncommon feature of (b)(2) civii rights classes. 141 •
Nor is the size of this defendant class surprising given the particular circumstances
492, 506 (N.D.N.Y. 1987) (same); DeAllume, 110 F.R.D. at 304 (same). The Second Circuit's decision in Marcera was vacated on grounds completely distinct from the court's holding with respect to certification of the (b)(2) defendant class. See Marcera, 442 U.S. at 915 (remanding the case for further consideration in light of recent precedent regarding inmate confinement facilities). Indeed, on remand, the district court, in applying the new substantive law, again certified a (b)(2) defendant class, which was not disturbed on appeal. Accordingly, Marcera remains good law in this Circuit and is binding on this Court.
141 See, e.g., Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) (defendant class ofjustices of the peace, sheriffs and state troopers); Monaco, 187 F.R.D. 50 (defendant class of local criminal court judges); Ragsdale v. Turnock, 734 F. Supp. 1457 (N.D. Ill. 1990) (defendant class of all State's Attorneys in Illinois's 102 counties), aff'd, 941 F.2d 501 (7th Cir. 1991); Luyando, 124 F.R.D. at 58 (voicing agreement with the Fourth and Sixth Circuits, but nonetheless certifying a defendant class of all commissioners of social service districts in New York State on the ground that it is bound by the Second Circuit's interpretation of Rule 23(b)(2)); Akron Ctr.for Reprod. Health v. Rosen, 110 F.R.D. 576 (N.D. Ohio 1986) (defendant class of state prosecutors); Harris v. Graddick, 593 F. Supp. 128 (M.D. Ala. 1984) (defendant class of state election officials); Lake v. Speziale, 580 F. Supp. 1318 (D. Conn. 1984) (defendant class of state court judges); Doss v. Long, 93 F.R.D. 112 (N.D. Ga. 1981) (defendant class of state courtj~s); Leist v. Shawano County, 91 F.R.D. 64 (E.D. Wis. 1981) (defendant class of municipalities); Hobson v. Pow, 434 F. Supp. 362 (N.ij. Ala. 1977) (defendant class of voting registrars); Redhail v. Zablocki, 418 F. Supp. 1061 (E.D. Wis. 1976) (defendant class of county clerks), aff'd, 434 U.S. 374 (1978); Kidd v. Schmidt, 399 F. Supp. 301 (E.D. Wis. 1975) (defendant class of state commitment officials). See generally Note, Defendant Class Actions and Federal Civil Rights Litigation, 33 UCLA L. Rev. 283 (1985).
50

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 53 of 56

Nor is the size of this defendant class surprising given the particular circumstances of this case, namely that the criminal statute at issue was declared unconstitutional over a decade ago but still remains on the books. 142 While the City has taken positive steps toward vacating all outstanding bench warrants issued under section 240.35(1) and'by removing it as a chargeable offense from the NYPD's computer program (thereby precluding any future arrests and prosecutions), as noted above, this does not vitiate plaintiff's request for further affirmative relief. 143
Furthermore, certification of a state-wide defendant class is appropriate because incidents of unlawful enforcement of section 240.35(1) are not limited to the NYPD. According to available OCA data, since 1992 there have been at least 673 criminal prosecutions by District Attorneys' Offices charging violations of section 240.35(1) in Rockland, Suffolk, Erie and Nassau Counties. 144 Repealing section 240.35(1) is the province of the New York State Legislature, not the federal courts. Nonetheless, this Court may issue a permanent injunction

142 Cf Callahan, 466 F.2d at 60-61 (upholding a defendant class of all justices

of the peace, sheriffs and state troopers in the State of Alabama where plaintiff

class - comprised of approximately 50,000 persons fined in justice courts for

highway law violations - sought an injunction against all defendants wfit)t-

continued to engage in a law enforcement practice after the Supreme Court had

declared it unconstitutional).

;

143 See supra Part III.B.2.

144 This data does not include sealed cases, which are largely those that failed to result in a conviction. See Smyth DecI. lj!lj! 16-1 7.

51

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 54 of 56
barring all state law enforcement officials from enforcing 240.35(1) so as to foster state-wide uniformity of protection and respect for free expression. Rule 23(b)(2) allows plaintiff to seek state-wide injunctive relief that will not only vacate outstanding warrants, dismiss pending prosecutions and overturn unlawful
convictions, b~t also prevent further illegal actions before they occur. 145
~
145 See Akron Ctr. for Reprod. Health, 110 F.R.D. at 580 (recognizing "the utility of [defendant class] actions to enjoin government officials from enforcing locally-administered state statutes which are defective~'); Redhail, 418 F. Supp. at I066 ("Where ... a statute with statewide application is challenged on the ground of its unconstitutionality, allowing the action to proceed against the class of officials charged with its enforcement is in accordance with the interests ofjudicial administration and justice which Rule 23 is meant to further.").
52

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 55 of 56
IV. CONCLUSION For the reasons stated above, plaintiffs request to amend the
complaint is granted. Plaintiffs motion for certification of bilateral state-wide classes under Rule 23(b)(2) and for certification of a City-wide plaintiff subclass
• under Rule 23(b)(3) is also granted. The Clerk of Court is directed to close this motion [Docket No. 63]. A conference in this action is scheduled for July 30, 2007, at 4:30p.m.
SO ORDERED:
Dated: New York, New York July 24, 2007
53

Case 1:05-cv-05442-SAS-THK Document 112 Filed 07/24/2007 Page 56 of 56
~ Appearances -
For Plaintiff:
Matthew D. Brinckerhoff, Esq. Katherine R. Rosenfeld, Esq. Emery Celli Brinckerhoff & Abady, LLP 75 Rockefelle.r Plaza New York, New York 10019 (212) 763-5000 J. McGregor Smyth, Jr., Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, New York 10451 (718) 838-7878
For Defendants:
Rachel Seligman Assistant Corporation Counsel 100 Church Street New York, New York 10007 (212) 788-0784
' •
I
54

 
 Case 1:05-cv-05442-SAS Document 51 Filed 12/05/06 Page 1 of 3

>
·, j >

' ·.;-- -·

-'

·,

,.-,
J

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
EDDIE WISE and MICHAEL BROWN, on Behalf of Themselves and Others Similarly Situated

05 Civ. 5442 (SAS)

-against-

Plaintiffs,

JUDGMENT I<'OR PLAINTIFF EDDIE WISE

RAYMOND W. KELLY, Commissioner of

the New York City Police Department (NYPD);

et al., BARRY M. BUZZETTI, Captain and

Commanding

Officer,

NYPD

48

1
h

Precinct;

JOHN/JANE DOES 1-50 (NYPD Supervisory,

Training and Policy Personnel); CITY OF NEW

YORK; Police Officers MICHAEL CURLEY,

COREY HARRIS, MIGUEL MUSSE, KEVIN

LYNCH, JOHN BRENNAN, SHAWN RICKER,

JOHN/JANE DOES 51-100 (police officers);

ROBERT JOHNSON, District Attorney of Bronx

County; and JOHN/JANE DOES 101-125

(Supervisory, Training and Policy Personnel

within the district attorneys offices), and

JOHN/JANE DOES 126-130

'·~-- .,:
,'·,
r f
t '
•. ,

Defendants.
-------------------------------------------------------X
Defendant the City of New York in the above-entitled action having offered on

November 9, 2006, pursuant to Rule 68 of the Federal Rules ofCivi1 Procedure, to take judgment

against it in favor of plaintiff Eddie Wise in the amount of One Hundred Thousand and One

Dollars ($1 00,00 1.00), plus reasonable attorneys' fees, costs and expenses accrued to the date of

the offer (see Ex. A), and plaintiff Wise having accepted this offer ofjudgment on November 22,

2004, (see Ex. B), it is hereby ORDERED, ADJUDGED and DECREED that:

Page 1 of 3

Case 1:05-cv-05442-SAS Document 51 Filed 12/05/06 Page 2 of 3
Judgment is entered in favor of the plaintiff Eddie Wise and against Defendant City ofNew York;
This judgment shall be in full satisfaction of all claims or rights that plaintiff Wise may have to damages, or any other form of relief, arising out of the alleged acts or omissions of the defendants, or any official or employee, either past or present, of the City of New York or any agency thereof, in connection with the facts and circumstances that are the subject of this action; and;
Defendant City of New York's offer ofjudgment is made for the purposes specified in Rule 68 of the Federal Rules of Civil Procedure and is not to be construed as an admission of liability by an defendant, official, employee, representative or agent, past or present, of the City ofNew York, or any agency thereof; nor is it an admission that plaintiffWise has suffered any damage; and
Acceptance of Defendant City ofNew York's offer ofjudgment will act to release and discharge defendants City ofNew York, Raymond Kelly, Robert Johnson, Kevin Lynch, John Brennan, Michael Curley, Barry Buzzetti, Corey Harris and Miguel Musse, their successors or assign; and all past and present officials, representatives and agents of the City ofNew York, or any other agency thereof; and the City of New York from any and all claims that were or could have been alleged by plaintiff Eddie Wise in the above-referenced action. By accepting the offer ofjudgment, plaintiff Wise agrees to waive any claim of post-judgment interest; and
Page 2 of 3

Case 1:05-cv-05442-SAS Document 51 Filed 12/05/06 Page 3 of 3 Defendant City of New York is to pay plaintiff Eddie Wise the amount of One
Hundred Thousand and One Dollars ($100,00 1.00) plus reasonable attorneys' fees, costs and expenses accrued to the date of defendant City of New York's offer ofjudgment. So Ordered, Enter Judgment. New York, New York Nov~~,2006
];e~S"
Judgment entered . - - - - - - ' 2006 Clerk of the Court
Page 3 of 3

 
 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
19 


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
27

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,
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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
30 


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,
35

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.

37 


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.
39 


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
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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 


 
 Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 1 of 20

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

EDDIE WISE, on Behalf of Himself and Others Similarly Situated,
Plaintiffs,
-against-

05

cv 5442 CLASS ACTION COMPLAINT AND JURY DEMAND

RAYMOND W. KELLY, Commissioner of the New York City Police Department (NYPD); BARRY M. BUZZETTI, Captain and Commanding Officer, NYPD 481h Precinct; JOHN/JANE DOES1-50 (NYPD Supervisory, Training and Policy Personnel); CITY OF NEW YORK; Police Officers MICHAEL CURLEY, COREY HARRIS, MIGUEL MUSSE, KEVIN LYNCH, JOHN BRENNAN, JOHN/JANE DOES 51-100 (police officers); ROBERT JOHNSON, District Attorney of Bronx County; and JOHN/JANE DOES 101-125 (Supervisory, Training and Policy Personnel within the district attorneys offices); JUDITH KAYE, in her capacity as Chief Judge of the State of New York and Chief Judicial Officer of the Unified Court System; JONATHAN LIPPMAN, in his capacity as Chief Administrative Judge of the Unified Court System; and CHAUNCEY G. PARKER, in his capacity as Director of Criminal Justice and Commissioner of the New York State Division of Criminal Justice Services ("DCJS"),
Defendants.
---- ------------··-----·-- --·------ -------------------- --·--- ------····---X

r~~~;;o;J~
U.S.D.C. S.D. N.Y. CASHTERS

Plaintiff Eddie Wise ("Plaintiff'), on behalf of himself and others similarly situated, for his Complaint, alleges as follows:

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 2 of 20

INTRODUCTION

1. More than a decade ago, the United States Court of Appeals for the

Second Circuit declared unconstitutional, on First Amendment grounds, New York Penal Law

§ 240.35(1), which provided that a person is guilty of "loitering" when he "loiters, remains or

wanders about in a public place for the purpose of begging," and affirmed U.S.D.J. Robert W.

Sweet's 1992 injunction permanently barring the NYPD's, and then Police Commissioner Lee

Brown's, future enforcement ofP.L. § 240.35(1). See Loper v. New York City Police

Department, 999 F.2d 699 (2d Cir. 1993).

2. Notwithstanding the clear command of Loper, the New York City Police

Department ("NYPD") and the Bronx District Attorney's Office continue to arrest, summons,

and prosecute individuals such as plaintiff Eddie Wise for violations of P.L. § 240.35(1 ), and

judges, clerks and other court and Division of Criminal Justice Services ("DCJS") employees

continue to process these charges through the judicial system. This is inexcusable. It is

stunningly inept. It must be stopped.

3.

On multiple occasions from 2002 to date, while plaintiff Eddie Wise was

peacefully begging on the streets of the Bronx, an activity fully protected by the First Amend-

ment, he was wrongfully arrested by uniformed officers employed by the NYPD, charged with

loitering in violation of P.L. § 240.35(1), and subjected to prosecution by the Bronx District

Attorney's Office for this charge.

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

unconstitutional conduct by police officers in the NYPD, and prosecutors in the Bronx District

Attorney's Office (the "Arrest & Prosecution Policy"). This action also seeks to end the pattern

-2-

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 3 of 20
and practice of unconstitutional conduct by judges, clerks, other court employees and DCJS personnel whereby individuals charged with violations of P.L. § 240.35(1) are routinely processed through the court system. It defies belief that defendants continue to arrest, summons, and prosecute citizens, many of them homeless, who, in a lawful exercise of their First Amendment rights, peacefully beg on the public streets of New York City.
5. Plaintiff Eddie Wise brings this action for injunctive and declaratory relief, and for money damages, on behalf of himself and other individuals similarly situated who have been wrongfully arrested, summonsed, and/or prosecuted for violations of a nullified criminal statute, P.L. § 240.35(1 ), and to redress defendants' violations of his rights under the First, Fourth, Fifth, and Fourteenth Amendments of the United States. Plaintiff seeks an appropriate remedial order to ensure an end to the utterly lawless enforcement of a criminal statute that was adjudicated unconstitutional in 1992.
JURISDICTION AND VENUE 6. This action arises under the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution and the Civil Rights Act of 1871, 42 U.S.C. § 1983. 7. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331, and 1343(a). 8. 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. § 139l(b).
JURY DEMAND 9. Plaintiff demands trial by jury in this action.
-3-

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 4 of 20
THE PARTIES 10. Plaintiff EDDIE WISE is a citizen of the United States and was a resident of Bronx County at the time of the incidents alleged in this action. 11. 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 York 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 of the United States and of the State of New York. 12. At all times relevant hereto, defendant City, acting through the Bronx District Attorney's Office ("Bronx DAO"), was responsible for the administration, policy, practice, supervision, implementation, and conduct of all Bronx DAO matters and was responsible for the appointment, training, supervision, and conduct of all Bronx DAO personnel. In addition, at all relevant times, defendant City was responsible for enforcing the rules of the Bronx DAO Office, and for ensuring that Bronx DAO personnel obey the laws of the United States and of the State of New York. 13. In addition to the facts alleged in the following subparagraphs, 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 York, State of New York, and/or Bronx County. With the exception of defendants Kaye,
-4··

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 5 of 20

Lippman and Parker, who are sued in their official capacities only, the following defendants are

all sued in their individual and official capacities.

14. At all relevant times defendant RAYMOND W. KELLY was the Police

Commissioner of the City of New York and, as such, made and enforced policy of the NYPD,

including without limitation the 48th Precinct in the County of Bronx, New York, 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.

15. At all relevant times defendant BARRY M. BUZZETTI was a Captain and

Commanding Officer of the 48th Precinct in the County of Bronx, New York, acting in the

capacity of agent, servant, and employee of defendant City, within the scope of his employment

as such, and acting under color of state law. As Captain and Commanding Officer, he is the

highest

ranking

uniformed

member

of

the

48

1 h

Precinct,

and

is

responsible

for

setting

policy,

and

for the supervision, oversight, and discipline of the uniformed police officers in his precinct. As

Captain and Commanding Officer, Buzzetti is provided on a daily basis with reports of arrests

and summonses in his Precinct.

16. At all relevant times, defendants "Jane/John Does l-50" were training,

supervisory and policy making personnel within the NYPD who implemented, enforced,

perpetuated and/or allowed the unconscionable Arrest & Prosecution Policy that is the subject of

this action, acting in the capacity of agents, servants and employees of defendant City and within

the scope of their employment as such. Plaintiff is unable to determine the names of these

NYPD Supervisory defendants at this time and thus sues them under a fictitious designation.

-5-

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 6 of 20
17. At all relevant times, defendant NYPD Police Officers MICHAEL CURLEY, Shield or Tax LD. Number ("No.") 29121, COREY HARRIS, No. 1499, MIGUEL MUSSE, No. 02497, KEVIN LYNCH, No. 26904, and JOHN BRENNAN, No. 25119 were police officers acting in the capacity of agents, servants, and employees of defendant City, and within the scope of their employment as such. On information or belief, all of these officers are or were assigned to the 48th Precinct command in the County of Bronx, New York.
18. At all relevant times, defendants "Jane/John Does 51-100" were NYPD police officers who arrested and/or summonsed plaintiff and/or members of the plaintiff class pursuant to the Arrest & Prosecution 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. Plaintiff is unable to determine the names of these NYPD police officers at this time and thus sues them under a fictitious designation.
19. Defendant ROBERT JOHNSON was at all relevant times District Attorney of Bronx County, and, as such, made and enforced policy with respect to the Bronx DAO. Defendant Johnson is sued in his individual capacity, and with respect to plaintiffs claims for prospective injunctive relief, in his official capacity.
20. At all relevant times, defendants "Jane/John Does 101-25" were training, supervisory and policy making personnel within the offices of the district attorneys for the five counties in the City of New York, including the Bronx DAO, who implemented, enforced, perpetuated and/or allowed the unconscionable Arrest & Prosecution Policy that is the subject of this action, acting in the capacity of agents, servants and employees of defendant City and within the scope of their employment as such. Plaintiff is unable to determine the names of these DAO
-6-

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 7 of 20
Supervisory defendants at this time and thus sues them under a fictitious designation. The DAO supervisory defendants are sued in their individual capacities, and with respect to plaintiffs claims for prospective injunctive relief, in their official capacities.
21. Defendant JUDITH KAYE is the Chief Judge of the New York State Court of Appeals, Chief Judicial Officer of the Unified Court System, and Chair of the Administrative Board of the New York Courts, with offices at 25 Beaver Street, New York, New York. Pursuant to Article VI,§ 28 of the Constitution ofthe State of New York, and§§ 210 and 211 of the New York Judiciary Law, the Chief Judge is responsible for the establishment and enforcement of the administrative policies of the Unified Court System, including the Supreme Court of the State of New York and the New York City Criminal Court, and for these courts' compliance with law. Defendant KAYE is sued in her official capacity for prospective relief, and as an indispensable party, whose presence is necessary to provide full and complete relief to plaintiffs for the City defendants' violation of plaintiffs' rights.
22. Defendant JONATHAN LIPPMAN is the Chief Administrator and Chief Administrative Judge of the Unified Court System of the State of New York with offices at 25 Beaver Street, New York, New York. Pursuant to Article VI,§§ 28 and 30 of the Constitution of the State of New York, and§§ 212 of the New York Judiciary Law, the Chief Administrator is responsible, on behalf of the Chief Judge, for supervising the administration and operation of the Unified Court System, and for promulgating rules of conduct for judges. Defendant LIPPMAN is sued in his official capacity for prospective relief, and as an indispensable party, whose presence is necessary to provide full and complete relief to plaintiffs for the City defendants' violation of plaintiffs' rights.
-7-

Case 1:05-cv-05442-SAS-THK Document 1 Filed 06/09/05 Page 8 of 20
23. Defendants KAYE and LIPPMAN are designated hereinafter as the "Court Administrator Defendants."
24. Defendant CHAUNCEY G. PARKER is the Director of Criminal Justice and Commissioner of the New York State Division of Criminal Justice Services ("DCJS") with offices at 4 Tower Place, Albany, New York. The Director of Criminal Justice oversees New York State's criminal justice agencies. Pursuant to Article 35 of the New York State Executive Law, the Commissioner ofDCJS is responsible for maintaining the state's criminal history fingerprint files, training of prosecutors and law enforcement, and collecting statewide crime data. Defendant PARKER is sued in his official capacity for prospective relief, and as an indispensable party, whose presence is necessary to provide full and complete relief to plaintiffs for the City defendants' violation of plaintiffs' rights.
25. 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 of the plaintiff, and while these acts were carried out under color of law, 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 26. Plaintiff Eddie Wise brings this action as a class action under Fed. R. Civ. P. 23(b)(2) for violations of his constitutional and common law rights. The Rule (b)(2) Class is comprised of all persons who beg on the public streets of New York City, and intend to engage in
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this activity in the future, and accordingly, who are threatened with future unlawful enforcement of P.L. § 240.35(1).
27. 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.
28. 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.
29. Plaintiff Eddie Wise also brings this action as a class action under Fed. R. Civ. P. 23(b)(3), on behalf of himself and other individuals similarly situated who have been subjected to enforcement of P.L. § 240.35(1), for violations of his constitutional and common law rights. The Rule (b)(3) Class is comprised of all persons subjected to enforcement of P.L. § 240.35(1) 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, for violations of P.L. § 240.35(1 ).
30. All of the members of the Rule (b)(3) class were injured as a result of defendants' conduct.
31. On information and belief, the Rule (b)(3) class includes hundreds of individuals, many of whom are homeless and accordingly, difficult to locate. They are so numerous that joinder of all Class members is impracticable.
32. The questions of law and fact presented by plaintiff Eddie Wise are common to other members of the class. Among others, the questions of law and fact common to the Class are: (i) whether (and which) defendants enforced or failed to prevent the enforcement
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of P.L. § 240.35( 1), including without limitation wrongfully arresting, detaining, charging, summonsing, imprisoning and/or prosecuting class members for violations of P.L. § 240.35(1 ), after the statute had already been declared unconstitutional and its enforcement enjoined; (ii) the existence of a pattern and practice of enforcement of P.L. § 240.35(1) or failure to prevent its enforcement, including but not limited to wrongful arrests, summonses, and prosecutions of violations of P.L. § 240.35(1); (iii) the acquiescence of supervisory personnel in the NYPD, Bronx DAO, Unified Court System and DCJS in the known unlawful acts of subordinates; and the failure of supervisory defendants to train, supervise, and discipline police officers, assistant district attorneys, court and DCJS personnel in their respective institutions; and (iv) the appropriate injunctive remedies that will be needed to ensure (a) that the Arrest & Prosecution Policy is terminated in every respect and (b) that its harmful effects are nullified.
33. Common issues of law and fact such as those set forth above (and many others) predominate over any individual issues.
34. The Arrest & Prosecution Policy has resulted in the wrongful detention, summonsing, charging, arrest, confinement and prosecution of citizens engaged in lawful First Amendment activity, 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.
35. The violations suffered by plaintiff Eddie Wise are typical of those suffered by the class. The entire class will benefit from the remedial and monetary relief sought.
36. Plaintiff Eddie Wise has no conflict of interest with any Class members, and will fairly and adequately protect the interests of the class. Counsel competent and
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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.
37. 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 of the 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 wrongful arrest and confinement.
38. There will be no extraordinary difficulty in the management of the Class action.
FACTS 39. Plaintiff Eddie Wise is 44 year-old homeless man. In order to obtain money for food, shelter, clothing, transportation, medicine, and other necessities of life, Mr. Wise peacefully begs for money on the streets of New York City. Mr. Wise often conducts this peaceful begging activity in the County of Bronx, on or around different locations on Fordham Road.
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40. Before its nullification, P.L § 240.35(1) provided, in relevant pmt, that a person is guilty of "loitering" when he "loiters, remains or wanders about in a public place for the purpose of begging."
41. On October 7, 1992, United States District Judge Robert W. Sweet entered a declaratory judgment in the United States District Court for the Southern District of New York, and an injunction that permanently barred the New York City Police Department, and the Commissioner of the New York City Police Department, from enforcing P.L. § 240.35( 1).
42. In 1993, the United States Court of Appeals for the Second Circuit affirmed Judge Sweet's ruling and declared, on First Amendment grounds, that subdivision one of P.L. § 240.35, loitering in a public place for the purpose of begging, was unconstitutional. See Loper v. New York City Police Department, 999 F.2d 699 (2d Cir. 1993).
43. Peaceful begging is an activity entitled to the full protection of the First Amendment.
44. Since at least 1992, loitering for the purpose of begging has not been a crime, offense, or violation in New York State.
45. On multiple occasions since September 2002, uniformed members of the NYPD have arrested, detained, or summonsed Mr. Wise on the charge of loitering in violation of P.L. § 240.35( 1).
46. On multiple occasions since September 2002, the Bronx DAO has prosecuted Mr. Wise on the charge ofloitering in violation of P.L. § 240.35(1).
47. On multiple occasions since September 2002, DCJS has processed fingerprint inquiries for Mr. Wise on the charge of loitering in violation of P.L. § 240.35(1 ).
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48. On multiple occasions since September 2002, court personnel have processed charges, entered convictions and sentences, and set bail, fines and surcharges for Mr. Wise on the charge of loitering in violation of P.L. § 240.35(1 ).
49. On multiple occasions since September 2002, Mr. Wise has been subjected to criminal sanctions pursuant to his convictions for violations of P.L. § 240.35(1), including but not limited to fines and periods of incarceration.
50. Plaintiff intends to engage in the activity of peaceful begging on the streets of New York City in the future.
The Unconstitutional Arrests o(Mr. Wise The September 12, 2002 Arrest
51. On September 12, 2002, Mr. Wise was peacefully begging at or about 400 E. Fordham Road, Bronx, New York, when defendant police officer Corey Harris arrested and charged Mr. Wise with loitering in violation of P.L. § 240.35(1 ). Mr. Wise was taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Wise with a violation of P.L. § 240.35(1 ). At arraignment on September 13, 2002, Mr. Wise plead guilty to the charge and he was sentenced to a term of imprisonment of time served and fines and surcharges of at least $95 were imposed. The February 7, 2003 Arrest
52. On February 7, 2003, Mr. Wise was peacefully begging at or about the intersection of Fordham Road and Arthur Avenue, Bronx, New York, when defendant police officer Michael Curley arrested and charged Mr. Wise with loitering in violation of P.L. § 240.35(1). Mr. Wise was taken to the 48th Precinct and held there pending arraignment. The
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Bronx DAO charged Mr. Wise with a violation of P.L. § 240.35(1). At arraignment on February 8, 2003, Mr. Wise plead guilty to the charge and he was sentenced to a term of imprisonment of five days, and fines and surcharges of at least $95 were imposed. The July 6, 2003 Arrest
53. On July 6, 2003, Mr. Wise was peacefully begging in front of the White Castle, 550 East Fordham Road, Bronx, New York, when defendant police officer Miguel Musse, arrested and charged Mr. Wise with loitering in violation ofP.L. § 240.35(1). Mr. Wise was taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Wise with a violation of P.L. § 240.35(1). At arraignment on February 8, 2003, Mr. Wise plead guilty to loitering. The January 4, 2004 Arrest
54. On January 4, 2004, Mr. Wise was peacefully begging in front of 550 East Fordham Road, Bronx, New York, when defendant police officer Kevin Lynch arrested and charged Mr. Wise with loitering in violation of P.L. § 240.35(1). Mr. Wise was taken to the 48th Precinct and held there pending arraignment. The Bronx DAO charged Mr. Wise with a violation ofP.L. § 240.35(1). At arraignment on January 4, 2004, Mr. Wise plead guilty to the charge and was sentenced to time served and fines and surcharges of at least $95 were imposed. The January 25, 2004 Arrest
55. On January 25, 2004, Mr. Wise was peacefully begging at or about 574 Fordham Road, Bronx, New York, when defendant Curley, the officer responsible for Mr. Wise's unlawful arrest on Febmary 7, 2003, arrested and charged Mr. Wise with loitering in violation of
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P.L. § 240.35(1 ). Mr. Wise was taken to the 48th Precinct and he was then transferred to Central Booking in the Bronx for processing.
56. At arraignment on January 26,2004, the Bronx DAO charged Mr. Wise with a violation ofP.L. § 240.35(1) and he was released on his own recognizance.
57. On February 13, 2004, counsel for Mr. Wise filed a motion to dismiss defendant Curley's January 25, 2004 complaint in Criminal Court of the State of New York, County of the Bronx, for failure to charge him with a crime or with conduct that is proscribed under the New York State Penal Law.
58. By a superceding complaint filed by defendant Curley on March 1, 2004, and received by Mr. Wise's defense counsel on March 15, 2004, Mr. Wise was charged with disorderly conduct in violation of P.L. § 240.20(5).
59. On March 15, 2004, counsel for Mr. Wise filed a motion to dismiss the superceding complaint on the ground that the added count of disorderly conduct, P.L. § 240.20(5) was facially insufficient.
60. On March 17, 2004, the Bronx DAO submitted an affidavit in opposition to Mr. Wise's motion to dismiss, by Assistant District Attorney Dimitri Maisonet, arguing that "[i]t is the People's position that Loper v. N.Y. City Police Dep't, 999 F.2d 669 (2d Cir. 1993) does not control in that (1) said case was a civil case and not a criminal case and (2) that § 240.35(1) remains included in the Penal Law of New York."
61. On information and belief, at the oral argument of Mr. Wise's motion to dismiss, held before Judge Joseph J. Dawson of the Bronx County Criminal Court on or about
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March 18, 2004, a supervising attomey from the Bronx District Attomey's Office was in attendance in court to assist Assistant District Attomey Maisonet.
62. On information and belief, during the course of the hearing before Judge Dawson, the supervisor from the Bronx DAO also defended the propriety of the prosecution of Mr. Wise for a violation of P.L. § 240.35(1).
63. In a Decision and Order dated May 5, 2004, Judge Dawson granted Mr. Wise's motion to dismiss the P.L. § 240.35(1) loitering charge. Subsequently, Judge Dawson also dismissed the remaining charge of disorderly conduct. The March 9, 2004 Arrest
64. On March 9, 2004, Mr. Wise was standing at or about 595 East Fordham Road, Bronx, New York when defendant police officer John Brennan arrived in a patrol car with defendant Curley. Defendant Brennan arrested and charged Mr. Wise with loitering in violation of P.L. § 240.35( I). After his arrest, Mr. Wise was taken to the 48th Precinct and held there pending arraignment. He was then held at another precinct before being transferred to Central Booking for processing.
65. The Bronx DAO declined to prosecute because there was "insufficient evidence to sustain a charge ofP.L. § 240.35(1)." The March 31, 2004 Arrest
66. On March 31,2004, Mr. Wise was peacefully begging at the comer of East 189th Street and Webster Avenue in the Bronx, New York, when defendants Curley and Brennan arrived in their patrol car. Defendant Curley arrested and charged Mr. Wise with loitering in
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violation of P.L. § 240.35(1 ). Mr. Wise was taken to the 48th Precinct and then to Central Booking for processing.
67. The Bronx DAO charged Mr. Wise with a violation ofP.L. § 240.35(1), and a Bronx County criminal court judge even set bail for Mr. Wise based on this unconstitutional charge.
68. Mr. Wise was detained at a New York City detention center in the vicinity of Hunts Point in the Bronx until his release on April 5, 2004.
69. After the March 31, 2004 arrest, counsel for Mr. Wise moved to the dismiss the complaint on the ground that the enforcement ofP.L. § 240.35(1) was unconstitutional. Nonetheless, the Bronx DAO continued to prosecute the loitering charge. The complaint was not dismissed until a May 5, 2004 Decision and Order of Judge Joseph J. Dawson of the Bronx County Criminal Court.
70. On multiple other occasions in addition to the particular incidents recounted above, Mr. Wise has been arrested and charged with loitering in violation of P.L. § 240.25(1). On information and belief, these arrests occurred on the following dates: June 14, August 5, September 24, and November 15 of2002; January 30, February 14, March 2, March 29, April24, October 18, November 6, December 27 of 2003; and March 27, 2004.
71. Mr. Wise was detained, arrested, summonsed, and/or charged with violations of P.L. § 240.35(1) on at least twenty occasions since June 2002, by different members of the NYPD and the Bronx DAO. Thus, the NYPD's and Bronx DAO's enforcement of this statute is part of a widespread and lawless pattern of enforcement of P.L. § 240.35(1 ).
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72. As a result of the aforesaid wrongful arrests, summons, and prosecutions for loitering in violation of P.L. § 240.35(1), Mr. Wise was incarcerated for many days on multiple occasions. Mr. Wise was required to make many court appearances in order to defend himself against prosecution for constitutionally defective charges. Mr. Wise was required to pay court fines and surcharges. In addition, on certain occasions, Mr. Wise felt compelled to plead guilty to violations ofP.L. § 240.35(1), and this now appears on his criminal history and is in the public record.
73. As a result of defendants' repeated unlawful and unconstitutional conduct described herein, plaintiff and members of the plaintiff class suffered physical injuries, emotional distress, mental anguish, and psychological trauma.
74. The above-described wrongful, unjustifiable, and unlawful arrests, summonses, imprisonments, and prosecutions of plaintiff Mr. Wise were carried out without valid warrants, without plaintiff's consent, and without probable cause.
75. In arresting, confining and prosecuting Eddie Wise for loitering in violation of P.L. § 240.35(1), or failing to prevent these occurances, all defendants acted with malice, in that they knew or should have known that P.L. § 240.35(1) was long ago declared unconstitutional.
76. The Court Administrator Defendants and defendant Parker actively maintain court files and computer databases - including for arrests, summonses, charges, convictions, sentences, fines, bail and surcharge- concerning Eddie Wise that are available to the public and report more than seventeen unconstitutional convictions for P.L. § 240.35( 1).
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Unconstitutional Policy and Practice in the NYPD 77. At all relevant times, the City, acting through the NYPD, maintained a de
facto policy, custom and practice of enforcement of P.L. § 240.35(1), and of failing to train, supervise, or discipline police officers regarding their obligation to cease any enforcement of P.L. § 240.35(1).
78. On information and belief, in 2003 and 2004 alone, according to records maintained by the New York State Office of Court Administration, there were a minimum of 150 arrests in New York City for violations ofP.L. § 240.35(1) that resulted in criminal charges in court.
79. On information and belief, countless more unlawful arrests and summonses occurred for violations of P.L. § 240.35(1) 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.
80. On information and belief, officers in the NYPD rely upon P.L. § 240.35(1) as a basis for issuing "move-on" orders to individuals who are peacefully begging on the streets of New York City.
81. In 2003 and 2004, multiple arrests and summonses for violations of P.L. § 240.35(1) were made in police precincts all over New York City, including without limitation the following precincts: the 14th, the 23rd, the 40th, the 4P\ the 44th, the 46th, the 47th, the 48th, the 49th, the 52nd, the 83rd, the 94th, the lOOth, the 103rd, the 1061\ the 113th and the 115th.
82. According to the New York State Division of Criminal Justice Services ("DCJS"), at least eleven individuals were convicted in Bronx County, between January and
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March 2004 alone, for violations of P.L § 240.35(1). These eleven convictions in three months in 2004 does not include anyone who was arrested for, summonsed, or charged with this violation but whose records have since been sealed pursuant to N.Y. Criminal Procedure Law Section 160.55. Nor does it account for most summonses or any arrest or charge disposed of with a favorable termination and sealed under N.Y. Criminal Procedure Law Section 160.50.
83. Thus, on information and belief, the number of individuals atTested for, summonsed or charged with violating of P.L § 240.35(1) in the Bronx between January and March 2004 is far greater than eleven.
84. In light of the many hundreds of arrests and summonses throughout New York City for violations ofP.L. § 240.35(1), defendants knew, or should have known, that many police officers were engaging in the lawless and unconstitutional practice of arresting people for violations of a void and unenforceable statute; yet defendants have repeatedly failed to take any action to end this conduct.
85. Many of the unlawful arrests and summonses described above were effected by police officers assigned to the 48th Precinct, including Defendants Brennan, Curley, Harris, Lynch, Musse and Torres. Some of the unlawful arrests and summonses described above were effected by police officers assigned to the other NYPD Police Precincts. The pattern of unconstitutional arrests and summonses by police officers assigned to the 48th Precinct and other NYPD Police Precincts has been condoned by supervisors in the 48th Precinct and supervisors in other NYPD Police Precincts, and by defendants City of New York, Buzzetti and Kelly.
86. On information and belief, supervisors in the 48th Precinct and all NYPD police precincts receive or received daily a compilation of reports documenting the bases for
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arrests and summonses effected in the previous day. These reports have for years documented, and continue to document, the arrests and summonses complained of here. Accordingly, defendants City, Buzzetti, Kelly, and other Jane/John Doe supervisory members of the NYPD (the "NYPD Supervisory Defendants") have been aware of the arrests and summons for violations of P.L. § 240.35( 1) and the continuing violation of rights attendant to these acts; yet, have failed to take any action to end this conduct.
87. In light of the history of arrests and summonses in the 48th Precinct and throughout New York City for violations ofP.L. § 240.35(1), the NYPD Supervisory Defendants knew to a moral certainty that police officers under their supervision, including Defendants Brennan, Curley, Harris, Lynch, Musse and Torres, would confront the situation wherein they would need to exercise discretion regarding whether or not to arrest individuals or issue summonses for violation of P.L. § 240.35(1), and that there was a history of police officers . mishandling this situation. Yet, on information and belief, the NYPD Supervisory Defendants did not take any action to require or provide proper training or re-training on how police officers should exercise their discretion .in the above-described situation.
88. The NYPD Supervisory Defendants' failure to train, discipline or supervise police officers regarding their obligation not to arrest individuals or issue summonses for violations of P.L. § 240.35( 1), and their obligation not to enforce tills statute, exhibited gross and wanton deliberate indifference to the constitutional rights of pla.intiff and members of the Class.
89. On information and belief, the arrest of citizens and issuance of summonses for violations of a void statute was and is well known throughout the NYPD.
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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 plaintiff and the Class.
90. 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.
91. Because the pattern or practice of arresting individuals and issuing summonses for violations of P.L. § 240.35( 1) has existed for many years in the 48th and other NYPD Precincts, 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.
92. Because, upon information and belief, a pattern or practice existed of arresting individuals and issuing summonses for violations of P.L. § 240.35(1), 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.
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Unconstitutional Policy and Practice in the District Attorney's Office 93. At all relevant times, defendant City, acting through the Bronx DAO and
the DA Supervisory Defendants, who include defendant Robert Johnson and supervisors employed by the Bronx DAO and/or other City DAOs who are sued as Jane/John Does 101-125 (the "DA Supervisory Defendants"), maintained a policy, custom and practice whereby they prosecuted individuals for violations of the Statute and failed to train, supervise or discipline assistant district attorneys regarding their obligation not to prosecute individuals for violations of New York Penal Code 240.35(1).
94. At all relevant times, the DA Supervisory Defendants maintained a policy, custom and practice whereby they prosecuted individuals for violations of the Statute, and failed to train, supervise or discipline assistant district attorneys regarding their obligation not to prosecute individuals for violations of New York Penal Code 240.35( 1).
95. At all relevant times, defendant Johnson was responsible for the management and administration of the Bronx DAO, including decisions regarding supervision, training, and discipline of assistant district attorneys employed therein. As the Bronx District Attorney, defendant Johnson knew or should have known that an arrest, summons, or prosecution of a citizen for violation of P.L. § 240.35( 1) would cause the deprivation of that citizen's constitutional rights.
96. TheDA Supervisory Defendants and Defendant Johnson's failure to train or supervise assistant district attorneys in the Bronx DAO regarding their obligation not to prosecute individuals for violations of P.L. § 240.35( 1) exhibited gross and wanton deliberate
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indifference to the constitutional and cmmnon law rights of plaintiff Wise and members of the Class.
97. Because, on information and belief, the pattern or practice that existed in the Bronx DAO of prosecuting individuals for violations of P.L. § 240.35( I) commenced as early as 2002, and since 2002, there have been multiple prosecutions for violations of P.L. § 240.35(1), defendant Johnson and the DA Supervisory Defendants knew, or should have known, that assistant district attorneys were engaging in the unlawful practice of prosecuting people for violations of a void and unconstitutional statute, yet defendant Johnson failed to take any action to end it.
98. Defendant Johnson and the DA Supervisory Defendants knew or should have known that assistant district attorneys assigned to his office required training, supervision, and discipline regarding their obligations to refuse to prosecute individuals for violations of a void statute.
99. In light of the history of unjustified prosecutions, defendant Johnson and the DA Supervisory Defendants knew to a moral certainty that assistant district attorneys would confront the situation wherein they would need to exercise discretion regarding whether or not to prosecute individuals for violation of P.L. § 240.35( 1).
100. Defendant Johnson and the DA Supervisory Defendants' failure to train and supervise assistant district attorneys in the Bronx DAO concerning their obligation not to prosecute individuals for violations ofP.L. § 240.35(1) exhibited gross and wanton deliberate indifference to plaintiffs' constitutional and common law rights. The failure of the DA Supervisory Defendants to train and supervise assistant district attorneys has, moreover, been a
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substantial factor in the continuance of such prosecutions and a proximate cause of the constitutional violations alleged in this complaint.
101. On information and belief, the failure of defendant Johnson and the DA Supervisory Defendants 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 these supervisory defendants to take remedial action, constitutes deliberate indifference to the rights of these citizens. These defendants' conduct has been a substantial factor in the continuance of such arrests and a proximate cause of the constitutional violations alleged in this complaint. Liability o{the City o(New Y.ork
102. Currently, as well as prior to and at the time of the arrests of Mr. Wise, there exists and existed in the NYPD and Bronx DAO a pattern and practice of arrest, issuance of summonses, confinement, and prosecution for violations of P.L. § 240.35(1) by police officers, and assistant district attorneys.
103. The pattern of unconstitutional arrests, summons, and prosecutions for violations of a void statute; the failure to train staff regarding the nullity of the statute; 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 P.L.§ 240.35(1), that caused the deprivation of plaintiffs rights and those of the Class.
104. The NYPD and Bronx DAO, through its supervisory staff, police officers and prosecuting attorneys, has failed or refused to hold accountable high-ranking supervisors -
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commanding officers, supervising attorneys - 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. Wise and by other individuals arrested or summonsed for violations of P.L.§ 240.35(1). The continuing inaction of the NYPD Supervisory Defendants and the DA Supervisory Defendants (collectively the "Supervisory Defendants") exposes current and future citizens, including Mr. Wise and members of the Class who beg for money on the streets of the Bronx to a pervasive risk of arrest, summons, and prosecution for a void crime.
105. 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 of the NYPD and Bronx DAO to supervise these officers properly and to take action to curb the misconduct, demonstrate a policy of deliberate indifference which tacitly authorizes the unconstitutional arrests of citizens like Mr. Wise who are engaged in constitutionally protected First Amendment activity. Unconstitutional Acts By Court Administrator Defendants and Parker.
106. At all relevant times, the Chief Judge of the State of New York and the Chief Administrator were responsible for the administration and operation of the Unified Court System and the Office of Court Administration, among other duties relevant to this action.
107. The Court Administrator Defendants establish and enforce the rules and practices for processing criminal cases and summonses in the Supreme Court of the State of New York and the Criminal Court of the City of New York. These rules and practices include the formal and informal rules and practices followed by the court clerks and other court employees
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(including judges and justices) concerning all aspects of day-to-day operations of the Unified Court System, including, but not limited to: the procedure for filing criminal charges and summonses, determinations of bail amounts, collection of fines and surcharges, issuance of warrants, entry of pleas and convictions, judicial training and discipline, and issuance of sentences.
108. As a result of the formal and informal procedures of the Court Administrators and their employees, citizens charged with violations of P.L.§ 240.35(1) are processed through the court system on the basis of unconstitutional and void charges, and denied their constitutional rights. This denial is the result of the combined effect of a number of mles and practices including but not limited to: the acceptance of papers charging individuals with violations of P.L.§ 240.35(1), the imposition of bail, fines and surcharges based on P.L. § 240.35(1 ), the acceptance of pleas for P.L. § 240.35(1 ), the entry of convictions for P.L.§ 240.35(1), the issuance of warrants based on P.L.§ 240.35(1), the maintenance and public dissemination of court records related to violations of P.L. § 240.35( 1), and the failure to train court employees that arrests, summonses, prosecutions, warrants, sentences and other court actions taken pursuant to a P.L. § 240.35(1) are invalid because the statute was declared unconstitutional.
109. At all relevant times, defendant Parker was responsible for the management and administration of DCJS. As a result of the formal and informal procedures of the defendant Parker and his employees, citizens charged with violations of P.L.§ 240.35(1) are processed through the court system on the basis of unconstitutional and void charges, and denied their constitutional rights. This denial is the result of the combined effect of a number of mles
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and practices including but not limited to, the acceptance and processing of fingerprinting inquiries for individuals charged with violations of P.L.§ 240.35(1 ), the maintenance and public dissemination of records related to prosecutions of P.L.§ 240.35(1), and the failure to train DCJS, law enforcement and prosecutorial personnel.
110. On information and belief, the Court Administrator Defendants and defendant Parker receive regular reports documenting the charges and dispositions of all arrests, cases, and summonses processed by DCJS and adjudicated by the Unified Court System. These reports have for years documented the unconstitutional Arrest and Prosecution Policy. As Chief Judge and Chief Administrative Judge of the Unified Court System and Commissioner of DCJS, defendants knew or should have known that an arrest, prosecution or conviction of a citizen for violation of P.L. § 240.35( 1), or the setting of bail or fines, or the issuance of warrants based on such charges, was unconstitutional and would cause the deprivation of plaintiffs constitutional rights.
111. In light of the history of prosecutions since at least 2002, the Court Administrator Defendants and Parker knew to a moral certainty that court and DCJS personnel would confront the situation wherein they would need to exercise discretion regarding whether or not to enforce P.L§ 240.35(1), and that there was a history of mishandling the situation. Defendants' failure to train and supervise court and DCJS personnel regarding their obligation not to enforce P.L. § 240.35(1) exhibited gross and wanton deliberate indifference to plaintiff's constitutional and common law rights, and an acquiesence in the known unlawful behavior of their subordinates.
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112. The Comt Administrator Defendants and defendant Parker's practices in failing to establish and enforce procedures for court employees in the Unified Court System sufficient to ensure that citizens charged with violations of P.L.§ 240.35(1) are not processed through the criminal justice system on the basis of a void and unconstitutional statute violates the constitutional rights of Eddie Wise and other members of the class. Moreover, this failure has been a substantial factor in the continuance of such prosecutions and a proximate cause of the constitutional violations alleged in this complaint.
FIRST CAUSE OF ACTION 42 U.S.C. § 1983; First, Fourth,
and Fourteenth Amendments (Against the Individual NYPD Defendants) 113. Plaintiff repeats and reiterates each and every allegation contained in the foregoing paragraphs of this complaint with the same force and effect as though set forth herein. 114. By repeatedly falsely arresting, falsely imprisoning, and maliciously prosecuting Mr. Wise and members of the class without probable cause or allowing such arrests to occur, defendants Curley, Harris, Musse, Lynch, Brennan, and Jane/John Does 51-100 (the "Individual NYPD Defendants") deprived plaintiff and the putative class of their rights, remedies, privileges, and immunities guaranteed by the Fourth and Fourteenth Amendments to the United States Constitution. 115. By repeatedly harassing, stalking, falsely arresting, falsely imprisoning, and/or maliciously prosecuting plaintiff and members of the plaintiff class and thus inhibiting their free speech activities, the Individual NYPD Defendants deprived plaintiff and the putative plaintiff class of their rights, remedies, privileges, and immunities guaranteed by the First and Fourteenth Amendments to the United States Constitution.
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 10 of 20
116. 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.
117. The Individual NYPD Defendants acted beyond the scope of their jurisdiction, without authority of law, and abused their powers.
118. The Individual NYPD Defendants acted willfully, knowingly, and with the specific intent to deprive plaintiff and members of the Class of their constitutional rights.
119. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiff 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) 120. Plaintiff 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. 121. 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 plaintiff and members of the Class, and violated their constitutional rights. 122. On information and belief, the NYPD Supervisory Defendants were aware and well-informed of the lndividual NYPD Defendants' conduct of false arrest, false imprisonment and malicious prosecution perpetrated against plaintiff and others.
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 11 of 20
121. 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 of Mr. Wise and others.
124. The NYPD Supervisory Defendants failed to protect Mr. Wise 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.
125. 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 of the Individual NYPD Defendants.
126. 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.
127. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiff and members of the class sustained the damages herein before alleged.
THIRD CAUSE OF ACTION 42 U.S.C. § 1983 Supervisory Liability; First, Fourth,
and Fourteenth Amendments (against the DA Supervisory Defendants including Defendant Johnson)
128. Plaintiff 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.
129. TheDA Supervisory Defendants at all relevant times had oversight responsibility over the assistant district attorneys employed in their office and were responsible
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 12 of 20
for their training, instmction, supervision and discipline, including for the assistant district attorneys who wrongfully prosecuted Mr. Wise and members of the Class.
130. TheDA Supervisory Defendants had actual or constructive knowledge that assistant district attorneys had repeatedly violated the constitutional rights of Mr. Wise and members of the Class and were engaged in conduct that posed a pervasive and unreasonable threat to those rights.
131. The response of the DA Supervisory Defendants was so inadequate as to show deliberate indifference or tacit approval of the conduct of the assistant district attorneys who were wrongfully prosecuting plaintiff and/or members of the Class based on a constitutionally invalid statute.
132. The failure of the DA Supervisory Defendants to supervise and discipline the assistant district attorneys who prosecuted Mr. Wise and members of the Class for loitering under a constitutionally invalid statute amounted to gross negligence, deliberate indifference, and/or intentional misconduct.
133. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiff and members of the Class sustained the damages herein before alleged.
FOURTH CAUSE OF ACTION 42 U.S.C. § 1983 -Municipal Liability/NYPD
(Against defendant City) 134. Plaintiff 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.
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135. Since at least 2002, defendant City has permitted, tolerated and been deliberately indifferent to a pattern and practice of illegal behavior by members of the NYPD.
136. 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 plaintiff for the constitutionally invalid charge of loitering in violation of P.L. § 240.35(1 ), in violation of plaintiffs First, Fourth, Fifth, and Fourteenth Amendment rights, and in retaliation for plaintiffs free speech activities. Although the behavior of police officers towards plaintiff 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.
137. 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.
138. Defendant City has failed to train police officers that arrests and summonses made under P.L. § 240.35(1) are invalid because the statute had been declared unconstitutional.
139. Defendant City's failure to train police officers that arrests and summonses made under P.L. § 240.35(1) were invalid constituted deliberate indifference to the federally protected rights of plaintiff and the Class.
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 14 of 20
140. Defendant City failed to supervise, investigate and discipline the individual police officer defendants. As a result, plaintiff and members of the Class were exposed to their illegal acts, which led to serious injury.
141. Defendant City maintained a de facto policy, custom and practice of enforcement of P.L. § 240.35(1) that constituted deliberate indifference to the federally protected rights of plaintiff and the Class. As a result, plaintiff and members of the Class were exposed to their illegal acts, which led to serious injury.
142. 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.
143. As a direct and proximate result of the aforesaid acts, omissions, systematic flaws, policies, and customs of defendant City, plaintiff Eddie Wise and members of the Class suffered and continue to suffer serious actual injuries, including without limitation, emotional and mental distress, degradation and humiliation.
FIFTH.CAUSE OF ACTION 42 U.S.C. § 1983- Municipal Liability/DA
(Against defendant City) 144. Plaintiff 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.
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 15 of 20
145. Since at least 2002, the City acting through the Bronx DAO has permitted, tolerated and been deliberately indifferent to a pattern and practice of illegal behavior by assistant district attorneys employed in the Bronx DAO.
146. The Bronx DAO had knowledge to a moral certainty that assistant district attorneys were prosecuting Mr. Wise and other individuals for the constitutionally invalid charge of loitering in violation ofP.L. § 240.35(1), in violation of plaintiff's First, Fourth, Fifth, and Fourteenth Amendment rights.
147. Permitting such outrageous behavior has resulted in violations of the federal and state constitutional rights of plaintiff and members of the Class.
148. The Bronx DAO failed to train assistant district attorneys that prosecutions under P.L. § 240.35(1) were invalid because the statute was unconstitutional.
149. The Bronx DAO's failure to train assistant district attorneys that prosecutions under P.L. § 240.35(1) were unconstitutional constituted deliberate indifference to plaintiff's federally protected rights.
150. The Bronx DAO failed to supervise, investigate, and discipline the assistant district attorneys who engaged in the behavior of unconstitutionally prosecuting citizens. As a result, plaintiff and members of the Class were exposed to illegal acts that led to senous Injury.
151. As a direct and proximate result of the aforesaid acts, omissions, systematic flaws, policies, and customs of the Bronx DAO, plaintiff and members of the Class suffered and continue to suffer serious actual injuries, including without limitation, emotional and mental distress, degradation, humiliation, and other damages.
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 16 of 20
SIXTH CAUSE OF ACTION 42 U.S.C. § 1983
(Against Defendants Kaye, Lippman and Parker) 152. Plaintiff repeats and realleges the foregoing paragraphs as if the same were fully set forth at length herein. 153. The Court Administrator Defendants and defendant Parker failed to train, supervise or discipline court or DCJS employees that arrests, summonses, prosecutions, warrants, sentences and other court actions made under P.L. § 240.35(1) are invalid because the statute had been declared unconstitutional. 154. The Court Administrator Defendants and defendant Parker failed to establish and enforce procedures for employees in the Unified Court System and DCJS sufficient to insure that citizens charged with violations ofP.L.§ 240.35(1) are not processed through the criminal justice system. 155. The Court Administrator Defendants and defendant Parker's failure to train court employees that arrests, summonses, prosecutions, warrants, sentences and other court actions made under P.L. § 240.35( 1) were invalid, and to establish and enforce procedures in the Unified Court System and DCJS sufficient to insure that such enforcements were not processed, constituted deliberate indifference to the federally protected rights of plaintiff and the Class, gross negligence and/or intentional misconduct. 156. As a direct and proximate result of the misconduct and abuse of authority detailed above, plaintiff and members of the Class sustained the damages herein before alleged.
WHEREFORE, plaintiff and members of the Class requests the following relief jointly and severally as against all of defendants:
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 17 of 20
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 of New York Penal Law § 240.35(1 ); and to take all appropriate ameliorative measures to ensure that no one is arrested, summonsed or prosecuted for violations of New York Penal Law§ 240.35(1), including without limitation: A. Directing defendants to immediately communicate to all members of the NYPD and the assistant district attorneys within the City of New York that P.L. § 240.35(1) is void and unenforceable; B. Directing defendants to immediately communicate to all court personnel within the City of New York, including judges and clerks, and to all DCJS personnel, that P.L. § 240.35(1) is void and unenforceable; C. Directing that immediate remedial training concerning P.L. § 240.35(1) be provided to all current members of the NYPD, all future members of the NYPD (via training at the police academy), and all supervisory members of the NYPD through a dedicated mandatory training; D Directing that immediate remedial training concerning P.L. § 240.35(1) be provided to all current assistant district attorneys
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 18 of 20
and all future assistant district attorneys (via new hire training), including any specific training for supervisors deemed necessary; E. Directing that immediate remedial training concerning P.L. § 240.35(1) be provided to all to all court personnel within the City of New York, including judges and clerks, and to all DCJS personnel and to all future court personnel within the City of New York, including judges and clerks, and to all future DCJS personnel (via new hire training), including any specific training for supervisors deemed necessary; F. Directing defendants to put in place a system for tracking all arrests or charges for P.L. § 240.35(1) in a contemporaneous manner so that any arrest or charge can be immediately terminated; G. 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 P.L. § 240.35(1) as a valid charge and generate an error report; and H. Directing defendants to issue policies and procedures to ensure that P.L. § 240.35( 1) is not enforced, including but limited to NYPD Patrol Guide procedures, training manuals, Unified Court System
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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 19 of 20

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 P.L. § 240.35(1) that occurred after October

7, 1992, 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 a P.L. § 240.35(1) arrest, charge,

prosecution or conviction;

B. directing that any convictions and/or warrants contained in any

criminal records concerning violations of P.L. § 240.35(1) be

immediately expunged;

C. directing that all outstanding warrants concerning violations of P.L.

§ 240.35(1) be immediately vacated and expunged;

4. Compensatory damages against all defendants, except Kaye, Lippman and Parker,

in an amount to be proven at trial;

5. Punitive damages against all defendants, except the City, Kaye, Lippman and

Parker, 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

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Case 1:05-cv-05442-SAS-THK Document 1-2 Filed 06/09/05 Page 20 of 20 7. Such other and further relief that may be just and proper.
Dated: June 8, 2005 New York, New York EMERY CELLI BRINCKERHOFF &ABADYLLP
B~~(j'j-~ Matthew D. Brinckerhoff (3552) Katherine Rosenfeld (8525) 545 Madison Avenue New York, New York 10022 (212) 763-5000
ERS cGre r Smyth, Jr. (JS 9995) 860 ourtlandt Avenue Bronx, New York 10451 (718)838- 7878 Attomeys for Plaintiffand the Putative Class
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 Brown  v.  Kelly,  609  F.3d  467  (2010)   77  Fed.R.Serv.3d  69  
  
609 F.3d 467 United States Court of Appeals,
Second Circuit.
Michael BROWN, on behalf of himself and others similarly situated, Plaintiff–Appellee, v.
Police Commissioner Raymond W. KELLY, as commissioner of the New York City Police
Department (N.Y.PD), Barry M. Buzzetti, Captain and Commanding Officer of NYPD 48th Precinct,
John & Jane Does, police officers, City of New York, Michael Curley, Corey Harris, Miguel Musse,
Kevin Lynch, John Brennan, Shawn Ricker, and Robert Johnson Jr., District Attorney of Bronx
County, Defendants–Appellants.* Docket No. 07–3356–cv. | Argued: Dec. 19, 2008. | Decided: June 24, 2010.
Synopsis Background: Arrestee brought putative class action against police commissioner, city, District Attorney (DA), individual police officers and supervisors, and individual DA’s Office personnel, and putative defendant class of statewide political subdivisions and law enforcement and prosecutorial personnel, alleging that they engaged in unlawful enforcement of statute prohibiting loitering with purpose of begging which had been declared unconstitutional as violative of First Amendment. Plaintiff moved to amend complaint and for class certification. The United States District Court for the Southern District of New York, Shira A. Scheindlin, J., 244 F.R.D. 222, granted motions. Defendants appealed.
Holdings: The Court of Appeals, Sack, Circuit Judge, held that:
[1] district court erred in certifying statewide defendant class because defendant class representatives did not meet adequacy and typicality requirements;
[2] certification of statewide plaintiff class was also inappropriate; and
[3] district court properly certified citywide plaintiff class.
  
  

  
Affirmed in part and vacated and remanded in part.
West Codenotes
Recognized as Unconstitutional McKinney’s Penal Law § 240.35(1).
Attorneys and Law Firms
*469 Fay Ng (Pamela Seider Dolgow, Rachel Seligman, Linda Donahue, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants–Appellants.
Matthew D. Brinckerhoff, Emery Celli Brinckerhoff & Abady LLP, New York, N.Y. (Katherine R. Rosenfeld, Emery Celli Brinckerhoff & Abady LLP, New York, *470 NY, J. McGregor Smyth, Jr., The Bronx Defenders, Bronx, NY, on the brief), for Plaintiff–Appellee.
Monica Wagner (Barbara D. Underwood, Benjamin N. Gutman, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, for Amicus Curiae State of New York, in support of Defendants–Appellants.
Anthony J. Servino, Steven A. Bender, for James A. Murphy III, District Attorney of Saratoga County, New York (on submission), for Amicus Curiae New York State District Attorneys Association, in support of Defendants–Appellants.
Dennis J. Saffran, for Lorna B. Goodman, County Attorney of Nassau County, New York (on submission), for Amicus Curiae Nassau County, in support of Defendants–Appellants.
Christopher A. Jeffreys, for Christine Malafi, County Attorney of Suffolk County, New York (on submission), for Amicus Curiae Suffolk County, in support of Defendants–Appellants.
Max Minzer, Benjamin Cardozo School of Law, New York, NY, Kenneth E. Aldous, Proskauer Rose LLP, New York, N.Y. (on submission), for Amici Curiae Law Professors who Study Federal Civil Procedure and Class Actions, in support of Plaintiff–Appellee.
William M. Brooks, Touro College, Central Islip, NY, for Amicus Curiae Mental Disability Law Clinic, in support of Plaintiff–Appellee. Before SACK and KATZMANN, Circuit Judges.**
Opinion
1  

Brown  v.  Kelly,  609  F.3d  467  (2010)   77  Fed.R.Serv.3d  69  
  
SACK, Circuit Judge:
Defendants-appellants appeal from a July 24, 2007, order of the United States District Court for the Southern District of New York (Shira A. Scheindlin, Judge ) granting plaintiff-appellee Michael Brown’s motion (1) to certify a New York City-wide plaintiff class (the “City Plaintiff Class”) for damages pursuant to Federal Rule of Civil Procedure 23(b)(3), consisting of persons who have been or will be arrested, summonsed, or prosecuted under New York Penal Law § 240.35(1), a New York State statute previously declared unconstitutional by this Court; (2) to certify a statewide plaintiff class (the “State Plaintiff Class”) for injunctive relief pursuant to Federal Rule of Civil Procedure 23(b)(2), also consisting of individuals against whom this statute has been or will be enforced; and (3) to certify a statewide defendant class (the “State Defendant Class”) pursuant to Federal Rule of Civil Procedure 23(b)(2), consisting of all New York State political subdivisions and law enforcement and prosecutorial policy-making officials with authority to arrest, charge or prosecute under this statute. The defendants argue both that certification of defendant classes is not ordinarily permitted under Rule 23(b)(2) and, particularly, that none of the certified classes in this action meet the requirements of Rule 23.
We decline to revisit our holding in Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979), that Rule 23(b)(2) permits certification of a defendant class where a plaintiff seeks “injunctive relief against a class of local public officials,” 595 F.2d at 1238, even though, *471 the judgment having been vacated, the decision in Marcera is not binding on us. With respect to whether class certification was appropriate under Rule 23, we conclude that the district court abused its discretion in certifying the State Plaintiff and Defendant Classes under Rule 23(b)(2), but we affirm the district court’s certification of the City Plaintiff Class pursuant to Rule 23(b)(3). Accordingly, we vacate the portion of the district court’s order certifying the Rule 23(b)(2) State Plaintiff and Defendant Classes and remand to the district court for further proceedings.
BACKGROUND

  
Allegations Plaintiff Michael Brown brings this putative class action against New York City Police Commissioner Raymond W. Kelly, the City of New York, the Bronx County District Attorney, individual New York City police officers and supervisors, and individual District Attorney’s Office personnel in New York City (the “City Defendants”), and a putative defendant class of statewide political subdivisions and law enforcement and prosecutorial personnel—the State Defendant Class—alleging that the defendants have unlawfully continued to arrest, summons, and prosecute individuals such as Brown pursuant to New York Penal Law § 240.35(1), a statute that was declared unconstitutional by this Court in 1993. See Loper v. N.Y. City Police Dep’t, 999 F.2d 699, 705–06 (2d Cir.1993).1
New York Penal Law § 240.35(1) addresses loitering for the purpose of begging, and provides that a person is guilty of “loitering when he ... [l]oiters, remains or wanders about in a public place for the purpose of begging.” N.Y. Penal Law § 240.35(1). In Loper, we held that section 240.35(1) violates the First Amendment and therefore affirmed a district court order permanently enjoining the City of New York from enforcing the statute. See 999 F.2d at 706. Brown alleges that he was nonetheless arrested and prosecuted under section 240.35(1) in 2003 and that section 240.35(1) has continued to be enforced both within New York City and elsewhere throughout New York State after, and despite, this Court’s decision in Loper. He therefore asserts claims of: (1) false arrest, false imprisonment, and malicious prosecution in violation of the Fourth and Fourteenth Amendments; (2) inhibition of class members’ free speech activities in violation of the First and Fourteenth Amendments; (3) violation of class members’ due process rights under the Fourteenth Amendment; and (4) violation of the Equal Protection Clause of the Fourteenth Amendment. The Complaint seeks injunctive relief against the State Defendant Class, including an order directing the members of the State Defendant Class to cease enforcement of the statute and an order mandating various remedial measures including training, the establishment of an arrest tracking system, disgorgement of fines, expungement of convictions, vacating of warrants, and the issuance of new policies. It also seeks a declaratory judgment that the State Defendant *472 Class has committed the violations of law alleged in this action. Finally, the Complaint seeks damages against the named City Defendants on behalf of the City Plaintiff Class.

  

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Brown  v.  Kelly,  609  F.3d  467  (2010)  
77  Fed.R.Serv.3d  69  
  
Litigation History On June 9, 2005, former plaintiff Eddie Wise instituted this action by obtaining an order to show cause and temporary restraining order against the New York City and State defendants for unlawfully enforcing section 240.35(1). On multiple occasions from 2002 through June 2005, uniformed police officers allegedly wrongfully arrested Wise for begging peacefully on the streets of the Bronx. Wise was charged with loitering in violation of section 240.35(1) and prosecuted for this offense by the Bronx County District Attorney’s Office.
Soon thereafter, the City Defendants entered into a stipulation in which they agreed to take steps aimed at preventing future enforcement of the statute. The district court “so ordered” that stipulation on June 23, 2005. Pursuant to the order, the City Defendants were to notify various City law-enforcement officials and employees that section 240.35(1) had been declared unconstitutional, which they did. The order further provided that the City and its employees “shall cease enforcement of [section 240.35(1) ].”
In January 2006, Wise settled his claims with the New York State defendants, including the Office of Court Administration (“OCA”).2 The City Defendants were left as the only remaining defendants in that action.
On November 22, 2006, Wise accepted the City Defendants’ Offer of Judgment pursuant to Federal Rule of Civil Procedure 68, subsequent to which a judgment was entered dismissing all of his claims. Prior to this dismissal, Wise had requested and received leave to amend his complaint to add Brown as a plaintiff and plaintiff class representative. Accordingly, although Wise was dismissed from the litigation as a plaintiff, the class action was permitted to continue with Brown as the lead plaintiff and class representative.
In March 2007, Brown, now the class representative, moved to hold the City Defendants in contempt for their alleged failure to comply with the district court’s June 2005 order to cease enforcement of section 240.35(1). In an order dated May 31, 2007, the district court denied the motion, citing improvements in the City’s compliance subsequent to December 2006 and concluding that holding the City in contempt would not “have the desired effect of halting the issuance of further summonses by patrolling officers.” Brown v. Kelly, No. 05 Civ. 5442, 2007 WL 1573957, at *5, 2007 U.S. Dist. LEXIS 39527, at *23 (S.D.N.Y. May 31, 2007). The district court found, however, that “notwithstanding an Order of this Court dated June 23, 2005, which directed defendants once and for all to cease enforcing the statute, enforcement
  
  

  
continues to this day.” Id., 2007 WL 1573957, at *1, 2007 U.S. Dist. LEXIS 39527, at *2.3
*473 Earlier, on February 2, 2007, Brown had moved for class certification and for leave to amend the Complaint. He sought to have the following classes certified: (1) a Rule 23(b)(2) plaintiff class consisting of all persons who have been or will be arrested, charged or prosecuted for violating section 240.35(1) in the State of New York from October 7, 19924 onward; (2) a Rule 23(b)(3) plaintiff subclass of all persons who have been or will be arrested, charged or prosecuted by employees, agents or representatives of New York City for violating section 240.35(1) from October 7, 1992 onward; and (3) a Rule 23(b)(2) defendant class of “all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge or prosecute a person with a violation under New York Penal Law.” The corresponding proposed amended complaint sought preliminary and permanent injunctive relief against all defendant class members, compensatory damages against all the named City Defendants, and punitive damages against all named City Defendants except the City of New York.
The State and City Plaintiff Classes were to be represented by Brown and six other plaintiffs who were added to the proposed amended complaint. These class representatives were all either issued summons or arrested and charged under section 240.35(1) in the Bronx or Manhattan. The State Defendant Class was to be represented by the City of New York, New York City Police Commissioner Raymond Kelly, and Bronx County District Attorney Robert Johnson (the “Defendant Class Representatives”). In support of certification, Brown pointed to uncontested evidence that from January 2, 2007, through March 14, 2007, members of the New York City Police Department issued section 240.35(1) summonses at an average rate of one every other day. Brown also cited OCA data reflecting the fact that since 1992 there had been at least 673 criminal prosecutions by district attorney’s offices charging violations of section 240.35(1) in Rockland, Suffolk, Erie, and Nassau Counties.
On July 24, 2007, the district court granted Brown’s motion in its entirety. Brown v. Kelly, 244 F.R.D. 222, 225 (S.D.N.Y.2007). The court found, inter alia, that the State and City Plaintiff Classes met the commonality and typicality *474 requirements of Rule 23(a)5 because their injuries all “derive from a unitary course of conduct by a single system”: an arrest and prosecution policy throughout New York State pursuant to section 240.35(1), which “chilled” their speech and facilitated the unlawful
3  

Brown  v.  Kelly,  609  F.3d  467  (2010)  
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enforcement of an unconstitutional statute. Id. at 231–32 (internal quotation marks omitted). The court also found that the plaintiffs “easily satisfy the numerosity requirement” of Rule 23(a), id. at 229, and that the adequacy requirement was met because “the named plaintiffs’ motives for pursuing this litigation are commensurate with those of all proposed class members,” id. at 234.
The district court concluded that certification of the State Plaintiff Class was warranted pursuant to Rule 23(b)(2)6 because “law enforcement agencies throughout New York State, including New York City, continued charging individuals with violating section 240.35(1) after it was declared unconstitutional” and “the class action device is the most efficient and appropriate method for vindicating the rights of individuals throughout New York who were subject to an unlawful section 240.35(1) charge.” Id. at 237. It also approved certification of the City Plaintiff Class pursuant to Rule 23(b)(3), concluding that the common liability issues were “so pronounced and pervasive [that] they overwhelmingly outweigh the more narrow inquiries that may be required to resolve a subset” of claims. Id. at 238. The court concluded that in light of the demographics of the proposed subclass, the class action device was not only superior to alternative methods of adjudication, but was the “only method of adjudication.” Id. (internal quotation marks omitted, emphasis in original). The court noted that certification *475 would permit many class members who did not possess the resources to bring individual actions to vindicate their rights in unison and would avoid the burden and expense of duplicative lawsuits. Id. at 238–39.
With respect to the proposed State Defendant Class, the district court concluded, inter alia, that in light of the fact that section 240.35(1) has been held to be unconstitutional, the “simple fact that [it] remains on the books and subject to statewide enforcement provides the requisite commonality.” Id. at 240. The court found typicality and adequacy based on the fact that all of the members of the State Defendant Class “are officials of a single state and are charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional.” Id. (quotation marks and citation omitted). The court decided that certification under Rule 23(b)(2) was appropriate because, inter alia, incidents of unlawful enforcement have occurred statewide, rendering injunctive relief appropriate. Id. at 243.
On August 3, 2007, the City Defendants filed a timely petition pursuant to Rule 23(f) for leave to appeal to this Court the district court’s order granting the motion for
  
  

  
class certification. By order dated November 7, 2007, we granted the petition.
DISCUSSION
I. Standard of Review [1] [2] [3] A district court’s certification of a class under Rule 23 is reviewed for abuse of discretion, provided that, as here, the court applied the proper legal standards. In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 31–32 (2d Cir.2006) (“In re IPO ”). This abuse-of-discretion standard applies both to the district court’s ultimate decision on class certification and to its rulings as to the individual Rule 23 requirements. Id. To the extent that the district court’s ruling on an individual Rule 23 requirement is supported by a finding of fact, that finding is reviewed under the “clearly erroneous” standard. Id. at 40–41. To the extent such a ruling involves an issue of law, we review it de novo. Id. at 41.
II. Standards for Class Certification [4] [5] Class certification is governed by Rule 23 of the Federal Rules of Civil Procedure. To be certified, a putative class must first meet all four prerequisites set forth in Rule 23(a): numerosity, commonality, typicality, and adequacy. Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201–02 (2d Cir.2008) (“Teamsters ”). The numerosity requirement provides that the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1). The commonality requirement is met if there is a common question of law or fact shared by the class. Fed.R.Civ.P. 23(a)(2); see also Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997). Typicality requires that the claims or defenses of the class representatives be typical of the claims or defenses of the class members. See Fed.R.Civ.P. 23(a)(3). This requirement “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Marisol A., 126 F.3d at 376 (internal quotation marks omitted). The commonality and typicality requirements often “tend to merge into one another, so that similar considerations animate analysis” of both. Id. The adequacy requirement is that “the
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representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a)(4).
*476 Not only must each of the requirements set forth in Rule 23(a) be met, but certification of the class must also be deemed appropriate under one of the three subdivisions of Rule 23(b). The district court granted certification to the State Plaintiff and Defendant Classes under Rule 23(b)(2), and to the City Plaintiff Class under Rule 23(b)(3).
Under Rule 23(b)(2), class certification is appropriate if “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.” Fed.R.Civ.P. 23(b)(2).
Under Rule 23(b)(3), class certification is appropriate if “the questions of law or fact common to class members predominate over any questions affecting only individual members, and ... a class litigation is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “As a general matter, the Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir.2006) (internal quotation marks omitted).
The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
Fed.R.Civ.P. 23(b)(3).
[6] In evaluating a motion for class certification, the district court is required to make a “definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits issues,” and must resolve material factual disputes relevant to each Rule 23 requirement. In re IPO, 471 F.3d at 41. The Rule 23 requirements must be established by at least a preponderance of the evidence. Teamsters, 546 F.3d at 202.
  
  

  
III. Applicability of Rule 23(b)(2) to a Defendant Class The City Defendants argue at the threshold that the district court erred in certifying a statewide defendant class because Rule 23(b)(2) does not authorize defendant classes. A panel of this Court resolved that question in Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds sub nom. Lombard v. Marcera, 442 U.S. 915, 99 S.Ct. 2833, 61 L.Ed.2d 281 (1979). Relying on Lee v. Washington, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968) (per curiam), we concluded that Rule 23(b)(2) is “an appropriate vehicle for injunctive relief against a class of local public officials.” Marcera, 595 F.2d at 1238. The City Defendants conceded during oral argument before us that a three-judge panel of this Court should not revisit Marcera’s holding. We agree.
Because the Supreme Court vacated our decision in Marcera, it is not technically binding on us. See O’Connor v. Donaldson, 422 U.S. 563, 577 n. 12, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (“Of necessity our decision vacating the judgment of the Court of Appeals deprives that court’s opinion of precedential effect, leaving this Court’s opinion and judgment as the sole law of the case.”); Russman v. Bd. of *477 Educ. of the Enlarged City Sch. Dist. of the City of Watervliet, 260 F.3d 114, 122 n. 2 (2d Cir.2001) (noting in dicta that “[w]hen imposed by the Supreme Court, vacatur eliminates an appellate precedent that would otherwise control decision on a contested question throughout the circuit”); Durning v. Citibank, N.A., 950 F.2d 1419, 1424 n. 2 (9th Cir.1991) (“A decision may be reversed on other grounds, but a decision that has been vacated has no precedential authority whatsoever.”) (emphasis in original). We nonetheless treat Marcera as persuasive authority.
Marcera addressed a difficult question of statutory interpretation. Under Rule 23(b)(2), “[a] class action may be maintained if Rule 23(a) is satisfied and if ... 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.” Fed.R.Civ.P. 23(b)(2) (emphasis added).7 The circuits are divided as to whether and under what circumstances this provision permits the certification of a defendant class.8 The Supreme Court has not offered guidance on the matter.
The question whether defendant classes can be certified under Rule 23(b)(2), and if so under what circumstances, does not admit of an easy answer. On the one hand, there
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is a strong textual argument that Rule 23(b)(2) does not countenance defendant classes because in a defendant class action, the party opposing the class—the plaintiffs—would not be the party who has allegedly “acted or refused to act on grounds that apply generally to the class.” This argument is buttressed by the fact that the illustrative examples of Rule 23(b)(2) actions in the Advisory Committee Notes to Rule 23 include no cases involving *478 defendant classes. See Fed.R.Civ.P. 23 adv. comm. n. of decisions.
On the other hand, as a commentator has pointed out, Rule 23(b)(2) can be read consistently with the certification of a bilateral (plaintiff and defendant) class,9 permitting certification when “the party [defendant or defendant class] opposing the [plaintiff] class has acted or refused to act on grounds that apply generally to the [plaintiff] class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 2 Newberg on Class Actions § 4:66 (4th ed.2009). This interpretation follows from Rule 23’s general authorization of defendant classes, see Fed.R.Civ.P. 23(a) (stating that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members” (emphasis added)), and from Rule 23(b)(2)’s use of the phrase, “the party opposing the class,” rather than language explicitly limiting this provision to plaintiff classes. It also gains support from cases interpreting Rule 23 prior to the 1966 amendments that created Rule 23(b)(2) in its current form.10
[7] In Lee, moreover, which we relied upon in Marcera, the Supreme Court affirmed a district court’s certification of a bilateral class under the pre–1966 Rule 23, see 390 U.S. at 333, 88 S.Ct. 994, which, if considered for certification today, would most easily fit under Rule 23(b)(2): “[T]he 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.” Fed.R.Civ.P. 23(b)(2). As described in the district court opinion in Lee, the defendant class consisted of all county sheriffs and city and town wardens and jailers in the state of Alabama, and the action sought to enjoin the state’s policy of segregating prisoners by race. Washington v. Lee, 263 F.Supp. 327, 328–29 (M.D.Ala.1966). Because the Advisory Committee Notes to the 1966 amendments do not indicate an intention for the post–1966 rule to limit the types of classes that were held permissible under the pre–1966 rule, Lee provides support for interpreting Rule 23(b)(2) to permit the certification of defendant classes, at least in a bilateral class action seeking injunctive relief against a class of local public officials.11
  
  

  
*479 Thus, we perceive strong arguments on both sides of the issue, particularly in the context of a bilateral class action challenging a governmental practice or policy. Marcera resolved the question by concluding that “although a literal reading of [Rule 23(b)(2) ] might indicate otherwise, ... it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials.” 595 F.2d at 1238 (citing, inter alia, Lee, 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212). Although Marcera’s analysis was limited, we conclude that it reflects a reasonable interpretation of Rule 23(b)(2). Marcera has been relied upon by lower courts in this Circuit for some thirty years. See, e.g., Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL 4104460, at *23, 2008 U.S. Dist. LEXIS 70684, at *67–68 (E.D.N.Y. Aug. 29, 2008); Monaco v. Stone, 187 F.R.D. 50, 64 (E.D.N.Y.1999); DeAllaume v. Perales, 110 F.R.D. 299, 304 (S.D.N.Y.1986); see also Marcera v. Chinlund, 91 F.R.D. 579, 583–84 (W.D.N.Y.1981) (certifying a defendant class on remand after the Supreme Court vacated this Court’s judgment in Marcera); cf. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995) (citing Marcera for the proposition that the Rule 23(a) requirements apply equally to plaintiff and defendant classes).
We have no need to revisit, or to ask the Court to revisit en banc, Marcera’s holding here. Inasmuch as we ultimately conclude that the State Defendant Class was, in any event, improperly certified here, we need not decide the vitality of Marcera in order to resolve this appeal. We have offered these observations nonetheless because, were we of a contrary view as to the governing law regarding defendant class certification, we might well have decided this appeal on that basis, in light of the vigor with which the issue of Marcera’s continued viability was contested before us, and because it may be of some assistance to district courts that continue to rely upon its holding.
IV. Abuse of Discretion in Certifying Rule 23(b)(2) Defendant Class Turning now to the merits of the district court’s decision to certify a Rule 23(b)(2) State Defendant Class in the instant case, we conclude that certification was inappropriate because the Defendant Class Representatives do not meet the adequacy requirement of Rule 23(a) and there is insufficient evidence that they meet the typicality requirement.
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A. Adequacy [8] [9] In order for a class representative to meet the adequacy requirement of Rule 23(a), “the class members must not have interests that are antagonistic to one another.” In re Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir.1996) (internal quotation marks omitted). The Defendant Class Representatives inadequately fill the role of class representatives because (1) the action involves a host of legal and factual issues unique to them that are likely to distract from their representation of the class, and (2) they possess weaker incentives to defend against the injunctive relief sought by the plaintiffs than do the remaining members of the State Defendant Class.
First, unlike the remainder of the State Defendant Class, the Defendant Class Representatives—all of whom are affiliated with New York City and among the named City Defendants—are subject to claims for damages, including in some cases punitive damages, as well as injunctive relief. Such claims raise many issues that may well be central to their defense strategy, including whether New York City is liable for damages under Monell v. *480 Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), based on its alleged custom, policy and practice of unlawful enforcement of section 240.35(1); whether any city officials have qualified or absolute immunity or face possible liability for punitive damages; and whether New York City is collaterally estopped from contesting liability in light of its admissions as to instances of wrongful enforcement of section 240.35(1) in prior proceedings. These issues, in which the remainder of the State Defendant Class do not share an interest, risk dominating the class representatives’ attention during litigation such that it will not be the case that by “defend[ing] [their] own interests [they] will also be protecting the interests of the class.” Consol. Rail Corp., 47 F.3d at 483–84; cf. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir.2000) (“ ‘While it is settled that the mere existence of individualized factual questions with respect to the class representative’s claim will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation.’ ”) (quoting Gary Plastic Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 903 F.2d 176, 180 (2d Cir.1990)).
Second, because New York City is already subject to existing court orders with respect to its continued enforcement of section 240.35(1), and has indeed recently been judged to be in contempt of court for violating them,12 it would have little incentive to oppose or defend
  
  

  
against injunctive relief that went no further than the injunctions presently in place. Its interests are thus in tension with those of the remaining class members, against whom there are, to the best of our knowledge, no existing court orders. We therefore conclude that the Defendant Class Representatives are not adequate representatives of the State Defendant Class.
B. Typicality [10] We also conclude that there is insufficient evidence that the Defendant Class Representatives’ defenses are typical of those at the disposal of other members of the State Defendant Class. See In re IPO, 471 F.3d at 41 (“[T]he district judge must receive enough evidence, by affidavits, documents, or testimony, to be satisfied that each Rule 23 requirement has been met.”). The district court found that the typicality requirement was satisfied because the members of the State Defendant Class are all “charged with enforcing or uniformly acting in accordance with a state statute, or common rule or practice of state-wide application, which is alleged to be unconstitutional.” Brown v. Kelly, 244 F.R.D. at 240 (internal quotation marks omitted). In the circumstances of this case, where we declared the statute at issue unconstitutional many years ago and where the plaintiffs seek relief that would require positive action by the State Defendant Class, the facts before the district court were insufficient to support a finding of typicality.
[11] Prosecutors and law enforcement agencies throughout New York State have discretion over whether to enforce applicable statutes. See People v. Zimmer, 51 N.Y.2d 390, 394, 434 N.Y.S.2d 206, 414 N.E.2d 705 (1980) (describing the scope of prosecutorial discretion). Here, it is uncontested that arrests and prosecutions under section 240.35(1) continued in New York City after Loper, persisting even after the district court’s 2005 order directing the City Defendants to cease and desist enforcement. See *481 Brown v. Kelly, 2007 WL 1573957, at *1–2, 2007 U.S. Dist. LEXIS 39527, at *1–2; see also Casale v. Kelly, 710 F.Supp.2d 347, ––––, 2010 WL 1685582, at *6 (S.D.N.Y.2010). By contrast, there was no evidence before the district court of which we are aware that the other State Defendant Class members had enforced the statute post-Loper in substantial numbers or in any consistent manner. The only evidence relied upon by the district court in this regard was OCA data that since 1992 there had been at least 673 criminal prosecutions by district attorney’s offices charging violations of section 240.35(1) in Rockland, Suffolk, Erie, and Nassau Counties. This data did not set forth violations
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by county, however, nor did it address the practices in the more than fifty other counties included in the State Defendant Class. We therefore conclude that the district court was not free to decide, based on the limited information before it, that enforcement or the risk of enforcement of this unconstitutional statute was a statewide phenomenon.13
The lack of a statewide practice of enforcement would be fatal to a finding of typicality under the circumstances of this case. The central issues facing the State Defendant Class are whether enforcement has persisted and what the scope of injunctive relief, if any, should be.14 Because it is uncontested that New York City continued regular enforcement of section 240.35(1) even in the face of court orders, its possible defenses to the injunctive relief sought by Brown are more limited than the defenses that other defendants might have. Indeed, the scope of injunctive relief appropriate against State Class Defendants who have not enforced the statute, or who have done so only rarely, would likely be different from the scope of appropriate injunctive relief that could reasonably be imposed against the City Defendants. Under these circumstances, the Defendant Class Representatives’ defenses are not typical.15
The district court responded to these typicality concerns by requiring that state law-enforcement agencies be put on notice of the class action, and stating that if any *482 wished to oppose a permanent injunction on individualized grounds, they may do so. See Brown v. Kelly, 244 F.R.D. at 241. We think this to be inadequate. The State Defendant Class lacks typicality with respect to the central issues before the district court. The matter before us is therefore unlike instances in which we have permitted class certification with notice when “the presumption of class cohesion falters” in only a “portion[ ] of the proceedings.” Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 166 (2d Cir.2001). To allow notice to class members to overcome the absence of a Rule 23(a) prerequisite in this case would be to undermine Rule 23’s deliberate balance between facilitating class actions and protecting the interests of absent class members.
For the reasons set forth above with respect to the adequacy and typicality requirements of Rule 23(a), we conclude that the district court abused its discretion in certifying the State Defendant Class. We therefore vacate that portion of the district court’s order.16
  
  

  
V. Abuse of Discretion in Certifying Rule 23(b)(2) Statewide Plaintiff Class [12] Turning to the district court’s certification of a State Plaintiff Class, we conclude that because Brown sought certification of such a class only as part of a bilateral action seeking equitable relief against a statewide class of defendants, our rejection of the State Defendant Class is fatal to the certification of the counterpart State Plaintiff Class.
Having rejected the certification of a State Defendant Class, we can certify a State Plaintiff Class only if the named defendants, all of whom are associated with New York City, have acted or refused to act on grounds that apply generally to the State Plaintiff Class, rendering injunctive relief appropriate with respect to that class as a whole. See Fed.R.Civ.P. 23(b)(2). Because the State Plaintiff Class is defined as plaintiffs who have been or will be arrested, charged, or prosecuted anywhere in New York State, this proposed class seems clearly to include members who are not at risk of injury by the City Defendants. Accordingly, injunctive relief against the City Defendants is not appropriate with respect to the statewide class as a whole, and certification under Rule 23(b)(2) is improper. Indeed, both Brown and the district court recognized that the equitable relief sought in this action was possible only with the certification of both a statewide plaintiff and defendant class. See Brown v. Kelly, 244 F.R.D. at 237 (certifying a plaintiff class under Rule 23(b)(2) because “[b]ringing non-City parties into this litigation via bilateral (b)(2) class certification is the only way to achieve uniformity of equitable relief for past enforcement, and to effectively prevent any future enforcement across the state.”).
In light of our ruling that the State Defendant Class is an inappropriate defendant class, we conclude that certification of the State Plaintiff Class under Rule 23(b)(2) is also inappropriate.
VI. Certification of Rule 23(b)(3) City Plaintiff Class [13] The City Defendants also challenge the district court’s certification of a *483 City Plaintiff Class pursuant to Rule 23(b)(3). We conclude that the district court did not abuse its discretion in certifying the City Plaintiff Class.17
The City Defendants argue that the City Plaintiff Class does not meet Rule 23(b)(3)’s requirement that “the questions of law or fact common to the class members predominate over any questions affecting only individual members.” We have said that “[t]he predominance
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requirement is met if the plaintiff can establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, ... predominate over those issues that are subject only to individualized proof.” Cordes & Co. Fin. Servs., Inc. v. A.G. Edwards & Sons, Inc., 502 F.3d 91, 107–08 (2d Cir.2007) (internal quotation marks omitted, ellipsis in original). 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.” Fed.R.Civ.P. 23(b)(3) adv. comm. n. to 1966 amend. Although “a defense may arise and may affect different class members differently[, this] does not compel a finding that individual issues predominate over common ones.” In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 138 (2d Cir.2001) (internal quotation marks omitted), overruled on other grounds by In re IPO, 471 F.3d 24 (2d Cir.2006), and superseded by statute on other grounds as stated in Attenborough v. Const. and Gen. Bldg. Laborers’ Local 79, 238 F.R.D. 82, 100 (S.D.N.Y.2006). “As long as a sufficient constellation of common issues binds class members together, variations in the sources and application of a defense will not automatically foreclose class certification under Rule 23(b)(3).” Id. (internal quotation marks omitted and alterations incorporated).
The City Defendants argue that Rule 23(b)(3) certification is inappropriate because the claims at issue in this case require individualized inquiries to establish liability. We acknowledge that the district court will be required to make individualized inquiries with respect to some of the plaintiffs and some of the claims. We conclude, however, that it was within the district court’s discretion to find that common issues predominated.
First, there are several common questions of law and fact that are shared by all of the plaintiffs and are central to the damages action against the City Defendants. They are likely to include: (1) whether New York City has a policy of enforcing section 240.35(1), or whether the City failed to train officers and prosecutors that this statute was unconstitutional; (2) whether the individual defendants are entitled to qualified immunity; (3) whether defendant Kelly had knowledge of the unlawful acts of his subordinates; (4) whether the individual defendants are liable for punitive damages; (5) whether the City Defendants are estopped from arguing that they did not violate a plaintiff’s First *484 Amendment rights when they arrested, summonsed, or prosecuted him under section 240.35(1) because the plaintiff was not actually engaged in begging; and (6) whether plaintiffs who were
  
  

  
not engaged in begging but who were nonetheless arrested, summonsed, or prosecuted under section 240.35(1) have a colorable claim under the First Amendment because the enforcement of section 240.35(1) deterred their speech. Because these issues are likely to be central to all of the plaintiffs’ cases and could be dispositive to the resolution of some claims, the district court did not abuse its discretion in certifying the City Plaintiff Class. See In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 145, 165–67 (2d Cir.1987) (concluding that class certification of a plaintiff class in a mass tort action was justified under Rule 23(b)(3) because of the “centrality of the [defendants’] military contractor defense,” despite “few, if any, [other] common questions of law” and the need for “highly individualistic” inquiries into causation).
[14] Second, the City Plaintiff Class members’ claims all arise from the same core allegation: that the City Defendants have continued to enforce section 240.35(1) despite our holding that doing so violates the First Amendment. As we have noted, where plaintiffs were “allegedly aggrieved by a single policy of the defendants,” and there is “strong commonality of the violation and the harm,” this “is precisely the type of situation for which the class action device is suited.” In re Visa Check, 280 F.3d at 146; see also In re Nassau County Strip Search Cases, 461 F.3d at 227 (noting that “because the predominance analysis tests whether the class is a sufficiently cohesive unit, all factual or legal issues that are common to the class inform the analysis” (internal quotation marks and citation omitted)).
The City Defendants argue that the claims in the Complaint—particularly those for false arrest—require individualized factual inquiries. With respect to false arrest, they point out that probable cause is an absolute defense, and that it is determined by the existence of probable cause for any crime at the time of the arrest. See Jaegly v. Couch, 439 F.3d 149, 152, 153–54 (2d Cir.2006). The City Defendants could thus defend an individual plaintiff’s false arrest claim by arguing that there was a legitimate reason for it beyond the loitering charge.
Although we recognize that the City Defendants may raise a probable cause defense outside the loitering charge to some of the plaintiffs’ claims, the fact that some defendants may have a probable cause defense in some cases does not render certification inappropriate in light of the common central issues in this action.18 Rule 23(b)(3) requires that common questions predominate, not that the action include only common questions.
Nor do we agree with the City Defendants that the district
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court misapplied In re Nassau County Strip Search Cases, 461 F.3d 219. There, we decided that a district court had erred in concluding that common issues did not predominate in a case challenging a blanket strip-search policy. Although some plaintiffs may have been searched based on reasonable suspicion, thereby creating a defense to liability with respect to those plaintiffs, we concluded that “[i]n light of the pervasive character of the common liability issues and the admittedly de minimis nature of *485 individualized liability issues, ... the District Court erred by holding that individual liability issues predominated over common ones.” Id. at 230.
The City Defendants argue that the district court erroneously relied upon In re Nassau County Strip Search Cases despite the fact that the individualized inquiries that will be required in this case are not de minimis. But we do not read the district court’s opinion to suggest that the City Defendants’ probable cause defense affected only a de minimis portion of the plaintiffs. The court’s analysis centered instead on its view that despite the existence of individual issues in this action, the common issues were “so pronounced and pervasive [that] they overwhelmingly outweigh the more narrow inquiries that may be required to resolve a subset of certain Fourth Amendment claims.” Brown v. Kelly, 244 F.R.D. at 238. This was not an abuse of discretion.
[15] We think that the City Defendants also overstate the scope of In re Nassau County Strip Search Cases. It does not stand for the proposition that any individualized liability issues must be de minimis in order for Rule 23(b)(3) class certification to be permissible. Rather, we concluded that the district court acted outside of its discretion in denying class certification, in light of the fact that individualized liability issues were de minimis. Because we are “noticeably less deferential when the district court has denied class status than when it has certified a class,” In re Nassau County Strip Search Cases, 461 F.3d at 225 (internal quotation marks omitted), the decision does not establish the outer boundaries of the circumstances under which a district court may find that common issues predominate. Indeed, the decision itself proffers a much broader standard for finding predominance: “[A]lthough ‘a defense may arise and may affect different class members differently, [this] does not compel a finding that individual issues predominate over common ones.’ ” Id. (quoting In re Visa Check, 280 F.3d at 138).
With respect to the remaining claims in this action, the amount of individualized inquiry required varies significantly. For example, the Complaint asserts a substantive due process claim based on the City
  
  

  
Defendants’ enforcement of an unconstitutional statute against the plaintiffs. Although the City Defendants argue that an individualized inquiry as to whether the actions against each plaintiff “shock the conscience,” see Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir.2005), will be required, the same theory—that enforcement of a void statute in contravention of court orders shocks the judicial conscience—is at issue for each plaintiff. Other claims could also potentially require individualized inquiries, but only if the district court agrees with the defendants on common threshold legal questions.
The plaintiffs’ malicious prosecution claim is illustrative. The parties dispute whether the plaintiffs who were prosecuted under section 240.35(1) must establish that the proceedings against them were terminated in their favor—a traditional element of a malicious prosecution claim—in light of the fact that the statute had already been declared void at the time of prosecution. Cf. Singleton v. City of N.Y., 632 F.2d 185, 193 (2d Cir.1980) (holding that proceedings are “terminated in favor of the accused” for the purpose of a malicious prosecution claim only if their final disposition is such as to indicate the accused is not guilty) (internal quotation marks omitted). If the district court agrees with the plaintiffs that prosecution under section 240.35(1) was necessarily “malicious” because the statute had already been declared void, and therefore *486 that each plaintiff need not demonstrate that the proceedings were terminated in his or her favor, then every plaintiff who was prosecuted under section 240.35(1) would have essentially the same malicious prosecution claim. Even if the district court ultimately agrees with the defendants that the plaintiffs must still establish termination in their favor, however, this threshold legal question is itself a common preliminary issue.
Similarly, although the defendants argue that the district court must determine whether the plaintiffs were actually engaged in begging before finding that the enforcement of section 240.35(1) constituted a First Amendment violation, the district court must first decide (1) whether the defendants are estopped from making such an argument in light of the fact that they charged the plaintiffs with the crime of begging, and (2) whether the plaintiffs’ alternative First Amendment theory based on the deterrent effect of an arrest, applicable to all plaintiffs regardless of actual begging, has a legal basis. We conclude that when the claims are considered together, particularly in light of the common factual and legal questions that cut across them, the district court did not abuse its discretion in concluding that common issues predominated.
10  

Brown  v.  Kelly,  609  F.3d  467  (2010)  
77  Fed.R.Serv.3d  69  
  
[16] The district court, of course, possesses tools with which to manage the individualized inquiries that this action may require, including creating subclasses, decertifying the class with respect to claims where individualized inquiries become too burdensome, and holding separate trials for plaintiffs subject to individual defenses that remain after the common questions of law and fact are resolved. We leave the management of these issues to the sound discretion of the court.

  
CONCLUSION For the foregoing reasons, we affirm the certification of a Rule 23(b)(3) City Plaintiff Class, but vacate the certification of the Rule 23(b)(2) State Plaintiff and Defendant Classes. We remand the matter to the district court for further proceedings.
All Citations

609 F.3d 467, 77 Fed.R.Serv.3d 69
  

Footnotes  

  

*  

The  Clerk  of  the  Court  is  respectfully  directed  to  amend  the  official  caption  to  appear  as  set  forth  in  this  opinion.  

  

  

**   The  Honorable  Sonia  Sotomayor,  originally  a  member  of  the  panel,  was  appointed  to  the  Supreme  Court  on  August  8,  2009.  The  

  

two  remaining  members  of  the  panel,  who  are  in  agreement,  have  determined  the  matter.  See  28  U.S.C.  §  46(d);  IOP  E(b);  United   States  v.  Desimone,  140  F.3d  457,  458–59  (2d  Cir.1998).  

  

1  

We  note  that,  on  June  10,  2010,  during  the  pendency  of  this  appeal,  the  Appellate  Term  of  the  New  York  State  Supreme  Court  for  

  

the  9th  and  10th  Judicial  Districts,  a  state  intermediate  appellate  court,  held,  in  conformity  with  our  decision  in  Loper,  that  New   York  Penal  Law  §  240.35(1)  is  unconstitutional.  See  People  v.  Hoffstead,  28  Misc.3d  16,  905  N.Y.S.2d  736,  739,  2010  WL  2331432,  

at   *2   (N.Y.Sup.App.Term   2010)   (“We   agree   that   Penal   Law   §   240.35(1)   is   unconstitutional   because   it   violates   the  

freedom-­‐of-­‐speech   guarantee   of   the   First   Amendment.”).   This   development   does   not,   however,   affect   our   resolution   of   this  

appeal.  

  

2  

Pursuant  to  that  settlement,  OCA  was  subpoenaed  to  produce  information  contained  in  its  electronic  data  system,  which  tracks  

  

and  stores  summonses  issued  under  section  240.35(1).     

3  

Recently,  however,  in  response  to  a  renewed  motion  filed  by  the  plaintiffs  during  the  pendency  of  this  appeal,  the  district  court  

  

issued   an   order  on   April   26,   2010,   holding  the   City   of  New  York  to   be   in  contempt   of   court   for   failing  to   act   with   reasonable   diligence   to   eliminate   enforcement   of   section   240.35(1)   and   two   related   loitering   provisions   in   the   Penal   Code   that   have   been  

ruled  unconstitutional,  sections  240.35(3)  and  240.35(7),  after  being  ordered  by  the  court  on  June  23,  2005  and  May  2,  2008  to  

do  so.  See  Casale  v.  Kelly,  710  F.Supp.2d  347,  ––––,  2010  WL  1685582,  at  *12  (S.D.N.Y.2010).  

Despite  the   various   measures  undertaken   by   the   City,   pursuant   to   the  court’s  direction,   to  eliminate   enforcement   of   these  

unconstitutional   provisions,   the   court   found   that   enforcement   has   continued   to   an   unacceptable   degree   more   than   18   years  

since  section  240.35(1)  was  invalidated  and  that  “the  City  has  done  little  on  its  own  initiative  or  with  reasonable  conviction  and  

speed  to  end  the  illegal  enforcement.”  Id.,  at  ––––,  2010  WL  1685582,  at  *1.  Indeed,  since  the  court’s  denial  of  the  plaintiffs’  

previous  motion  for  contempt  in  June  2007,  the  City  has  issued  upwards  of  110  unlawful  citations  under  section  240.35(1).  Id.,  

at   1685582,   2010   WL   1685582,   at   *6.   After   declining   to   impose  sanctions   in   the   past,  the   court   found   the   City’s  continued  

“obstinance  and  uncooperativeness”  to  be  “offensive  to  the  rule  of  law”  and,  in  light  of  the  fact  that  the  City  “has  proven  itself  

to  only   act   responsibly   and  energetically  when  threatened   with   sanctions,”   concluded   that   “the  time  for  promises,   excuses,  

and  judicial  forbearance  is  over.”  Id.,  at  1685582,  2010  WL  1685582,  at  *1.  

  

4  

In   Loper,   we   affirmed   the   decision   of   the   district   court   in   Loper   v.   N.Y.   City   Police   Dep’t,   802   F.Supp.   1029,   1048   (S.D.N.Y.1992),  

  

declaring   N.Y.   Penal   Law   §   240.35(1)   unconstitutional   and   enjoining   its   enforcement.   See   Loper,   999   F.2d   at   706.   The   district   court’s  decision  was  entered  on  September  30,  1992,  and  the  resulting  injunction  issued  on  October  7,  1992.  

  

5  

Rule  23(a)  provides:  

  

(a)   Prerequisites.   One   or   more   members   of   a   class   may   sue   or   be   sued   as   representative   parties   on   behalf   of   all   members   only  if:  

(1)  the  class  is  so  numerous  that  joinder  of  all  members  is  impracticable;  

(2)  there  are  questions  of  law  or  fact  common  to  the  class;  

  

11  

  

Brown  v.  Kelly,  609  F.3d  467  (2010)  

  

77  Fed.R.Serv.3d  69  

  

(3)  the  claims  or  defenses  of  the  representative  parties  are  typical  of  the  claims  or  defenses  of  the  class;  and  

(4)  the  representative  parties  will  fairly  and  adequately  protect  the  interests  of  the  class.  

  

6  

Rule  23(b)  provides:  

  

(b)  Types  of  Class  Actions.  A  class  action  may  be  maintained  if  Rule  23(a)  is  satisfied  and  if:   (1)  prosecuting  separate  actions  by  or  against  individual  class  members  would  create  a  risk  of:  

(A)   inconsistent   or   varying   adjudications   with   respect   to   individual   class   members   that   would   establish   incompatible  

standards  of  conduct  for  the  party  opposing  the  class;  or  

(B)  adjudications  with  respect  to  individual  class  members  that,  as  a  practical  matter,  would  be  dispositive  of  the  interests  

of  the  other  members  not  parties  to  the  individual  adjudications  or  would  substantially  impair  or  impede  their  ability  to  

protect  their  interests;  

(2)   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;  or  

(3)  the  court  finds  that  the  questions  of  law  or  fact  common  to  class  members  predominate  over  any  questions  affecting  

only   individual   members,   and   that   a   class   action   is   superior   to   other   available   methods   for   fairly   and   efficiently  

adjudicating  the  controversy.  The  matters  pertinent  to  these  findings  include:  

(A)  the  class  members’  interests  in  individually  controlling  the  prosecution  or  defense  of  separate  actions;  

(B)  the  extent  and  nature  of  any  litigation  concerning  the  controversy  already  begun  by  or  against  class  members;  

(C)  the  desirability  or  undesirability  of  concentrating  the  litigation  of  the  claims  in  the  particular  forum;  and  

(D)  the  likely  difficulties  in  managing  a  class  action.  

  

7  

Although  this  case  was  filed  in  2005,  this  text  reflects  the  December  2007  amendments  to  Rule  23(b)(2),  which  were  intended  to  

  

be  stylistic  only.  See  Fed.R.Civ.P.  23(b)(3)  adv.  comm.  n.  to  2007  amend.     

8  

The   Seventh   Circuit   has   concluded   that   Rule   23(b)(2)   does   not   permit   the   certification   of   defendant   classes.   See   Henson   v.   E.  

  

Lincoln   Twp.,   814   F.2d   410,   415–17   (7th   Cir.1987).  The   Fourth   Circuit  is   of   the   view   that   while  defendant  classes   are   generally   impermissible  under  Rule  23(b)(2),  an  exception  exists,  in  relevant  part,  when  there  is  a  challenge  to  “a  statewide  [governmental]  

rule  or  practice  so  that  relief  is  available  if  the  rule  or  practice  is  invalid.”  Bazemore  v.  Friday,  751  F.2d  662,  669–70  (4th  Cir.1984)  

(interpreting   Paxman   v.   Campbell,   612   F.2d   848   (4th   Cir.1980)   (en   banc),   which   had   held   that   “[t]o   proceed   under   23(b)(2)  

against  a  class  of  defendants  ...  would  create  the  anomalous  situation  in  which  the  plaintiffs’  own  actions  or  inactions  could  make  

injunctive  relief  against  the  defendants  appropriate,”  id.  at  854,  to  turn  on  the  fact  that  it  was  “uncontradicted  [in  Paxman  that]  

there  was  no  statewide  policy  in  force,  centrally  directed  or  otherwise”),  aff’d  in  part,  vacated  in  part  on  other  grounds,  478  U.S.  

385,  106  S.Ct.  3000,  92  L.Ed.2d  315  (1986).  The  Fifth  Circuit  has  upheld  the  certification  of  a  defendant  class  in  a  mass  tort  action  

under   Rule   23(b)(2),   although   it   noted   in   doing   so   that   the   parties   had   not   challenged   the   propriety   of   such   certification   on  

appeal.  In  re  Asbestos  Litig.,  90  F.3d  963,  991  n.  20  (5th  Cir.1996),  vacated  on  other  grounds  sub  nom.  Flanagan  v.  Ahearn,  521  

U.S.  1114,  117  S.Ct.  2503,  138  L.Ed.2d  1008  (1997)  (Mem.).  

Other   circuits   have   held   that   the   certification  of   defendant   classes   is   ordinarily   not   permitted   under  Rule   23(b)(2),   but   have  

explicitly   declined   to   rule   on   whether   Rule   23(b)(2)   applies   to   suits   for   injunctive   relief   against   a   class   of   local   public   officials.  

See   Tilley   v.   TJX   Cos.,   Inc.,   345   F.3d   34,   39–40   (1st   Cir.2003);   Thompson   v.   Bd.   of   Educ.   of   Romeo   Cmty.   Schs.,   709   F.2d   1200,  

1203–04  (6th  Cir.1983);  cf.  Akron  Ctr.  for  Reprod.  Health  v.  Rosen,  110  F.R.D.  576,  583  (N.D.Ohio  1986)  (interpreting  Thompson  

to   endorse   certification,   under   Rule   23(b)(2),   of   a   defendant   class   of   officials   who   were   required   to   enforce   an   allegedly  

unconstitutional  statute).  

  

9  

We  use  the  term  “bilateral  class”  throughout  this  opinion  to  refer  to  the  certification  of  both  a  plaintiff  and  a  defendant  class.  

  

  

10   We   also   note   that   “the   party   opposing   the   class”   could   refer   to   the   party   opposing   class   certification,   rather   than   the   party  

  

opposing   the   class   in   the   litigation.   Under   this   reading,   class   certification   is   permissible   when   the   party   opposing   class   certification—the  defendants—has  acted  or  refused  to  act  on  grounds  that  apply  generally  to  the  defendant  class.  

  

11   The   City   Defendants   argue   that   Lee   is   inapposite   because   it   involved   the   certification   of   a   “spurious   class”   under   then-­‐Rule  

  

23(a)(3),  which  applied  to  actions  seeking  common  relief  but  did  not  bind  absent  class  members.  See  Fed.R.Civ.P.  23  adv.  comm.   n.   to   1966   amend.  We   are  not  persuaded.   Although  the   class  was   certified   under   then-­‐Rule   23(a)(3),  the   relief   granted   did,   in  

fact,   serve   to   bind   absent   class   members.   See   Washington   v.   Lee,   263   F.Supp.   at   333–34   (ordering   defendant   class   members   to  

completely   desegregate   the   town   and   city   jails   and  furnish   reports   to  the  Commissioner   of   the   Board   of   Corrections).  And  the  

Advisory   Committee   Notes   to   the   1966   amendments   found   that   courts   had   not   consistently   followed   the   former   Rule   23(a)’s  

distinctions,  categorizing  classes  as  spurious  when  “it  would  seem  fitting  for  the  judgments  to  extend  to  the  class.”  Fed.R.Civ.P.  

  

12  

  

Brown  v.  Kelly,  609  F.3d  467  (2010)  

  

77  Fed.R.Serv.3d  69  

  

23  adv.  comm.  n.  to  1966  amend.  (citing,  e.g.,  Knapp  v.  Bankers  Securities  Corp.,  17  F.R.D.  245  (E.D.Pa.1954),  aff’d,  230  F.2d  717  

(3d   Cir.1956);   Giesecke   v.   Denver   Tramway   Corp.,   81   F.Supp.   957   (D.Del.1949);   York   v.   Guaranty   Trust   Co.,   143   F.2d   503   (2d  

Cir.1944),  rev’d  on  other  grounds,  326  U.S.  99,  65  S.Ct.  1464,  89  L.Ed.  2079  (1945)).  

  

12   See,  supra,  note  2.  

  

  

13   Indeed,  amicus  briefs  submitted  to  this  Court  on  appeal  indicate  that  some  class  defendants  dispute  that  they  have  consistently  

  

enforced  the  statute  after  Loper.  For  example,  Nassau  County  asserts  that  according  to  its  data,  it  has  utilized  the  statute  on  only   three   occasions   in   the  past   ten   years,   involving   a   total  of   six   arrests.  Its   most   recent   instance  of   enforcement   was   in   October  

2001,  and  the  reference  to  section  240.35(1)  in  that  instance  appears  to  have  been  a  typographical  error.  New  York  State  alleges  

that  its  State  police  officers  have  made  only  twenty  arrests  pursuant  to  section  240.35(1)  between  1992  and  March  2007.  

  

14   The  City  Defendants  argue  that  the  state  class  defendants  might  have  a  defense  that  they  are  not  bound  by  Loper’s  holding  that  

  

section  240.35(1)  is  unconstitutional,  which  applied  directly  against  the  City.  Although  New  York  State  courts  may  not  be  bound   by  Loper’s  holding,  see  Lockhart  v.  Fretwell,  506  U.S.  364,  376,  113  S.Ct.  838,  122  L.Ed.2d  180  (1993)  (Thomas,  J.  concurring),  the  

district  court  is  and  state  actors  likely  are.  And  in  any  event,  the  opinion  issued  during  the  pendency  of  this  appeal  by  the  New  

York   Supreme   Court   Appellate   Term   in   People   v.   Hoffstead,   28   Misc.3d   16,   905   N.Y.S.2d   736,   2010   WL   2331432  

(N.Y.Sup.App.Term  2010),  now  apparently  binds  the  state  defendants.  

  

15   Although  the  district  court  observed  that  “[i]f  there  are  counties  in  New  York  State  that  have  never  unlawfully  enforced  section  

  

240.35(1),   any   remedies  imposed   on  these  defendants   will   do  them   no  harm,”  Brown   v.   Kelly,   244   F.R.D.   at   241,   we   find   this   reasoning   unpersuasive.   First,   the   injunctive   relief   sought   by   the   plaintiffs   includes   affirmative   obligations,   thereby   imposing  

burdens   on   the   State   Defendant   Class.   Second,   an   injunction   places   the   defendants   under   the   contempt   power   of   the   court,  

exposing  them  to  risk  of  sanction  for  future  violations  of  the  statute.  See,  e.g.,  Casale,  710  F.Supp.2d  347,  2010  WL  1685582.  

  

16   At   oral   argument,  Brown   suggested   that  he   was   seeking   only   an   order   directing   the   defendant   class   to  cease   enforcement   of  

  

section  240.35(1).  This  characterization  differs  from  the  relief  described  in  the  Amended  Complaint  and  discussed  by  the  district   court,  and  we  do  not  now  speculate  on  how  limiting  the  form  of  relief  might  affect  the  district  court’s  class  certification  analysis  

on  remand.  

  

17   Because  the  City  Defendants’  arguments  focus  on  whether  the  class  is  maintainable  under  Rule  23(b)(3),  we  do  not  separately  

  

discuss   the   requirements   of   Rule   23(a).   To   the   extent   that   the   City   Defendants   contend   that   Brown   failed   to   establish   commonality  and  typicality  under  Rule  23(a)  because  individualized  questions  will  arise,  we  address  these  arguments  infra  in  the  

context  of  the  predominance  requirement  of  Rule  23(b)(3).  See  In  re  Visa  Check/MasterMoney  Antitrust  Litig.,  280  F.3d  124,  136  

n.  6  (2d  Cir.2001),  overruled  on  other  grounds  by  In  re  IPO,  471  F.3d  24  (2d  Cir.2006),  and  superseded  by  statute  on  other  grounds  

as  stated  in  Attenborough  v.  Const.  and  Gen.  Bldg.  Laborers’  Local  79,  238  F.R.D.  82,  100  (S.D.N.Y.2006).  

  

18   Further,   as   Brown   points   out,   the   City   Defendants’   probable   cause   defense   itself   raises   common   legal   questions,   including  

  

whether  the  issuance  of  a  summons  always  constitutes  a  single  charge.     

  

  

  

  

  

  

  

13  

  

 
 Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 1 of 28
CLOSED,CASREF,ECF,MOTREF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:05−cv−05442−SAS

Wise et al v. Kelly et al Assigned to: Judge Shira A. Scheindlin Referred to: Magistrate Judge James L. Cott (Settlement) Related Cases: 1:08−cv−02173−SAS
1:11−cv−05125−SAS Cause: 28:1331cv Fed. Question: Other Civil Rights
Plaintiff

Date Filed: 06/09/2005 Date Terminated: 01/03/2013 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Eddie Wise on behalf of himself TERMINATED: 12/05/2006

represented by J. McGregor Smyth , Jr The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−838−7885 Fax: 718−665−0100 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

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

Plaintiff
Eddie Wise on behalf of all others similarly situated TERMINATED: 12/05/2006

represented by 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

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 2 of 28

Plaintiff Michael Brown On behalf of himself and others similarly situated
Plaintiff Michael Brown

Matthew D. Brinckerhoff (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mariana Louise Kovel (See above for address) ATTORNEY TO BE NOTICED
represented by 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
represented by 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 as commissioner of the New York City Police Department (NYPD)
Defendant Barry M. Buzzetti Captain and Commanding Officer of NYPD 48th Precinct

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

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 3 of 28

ATTORNEY TO BE NOTICED

Defendant
Barry M. Buzzetti commanding officer of NYPD 48th Precinct TERMINATED: 11/27/2006

Defendant
1−50 John Does NYPD Supervisory, Training and Policy Personnel

Defendant
51−100 John/Jane Doe police officers

Defendant City of New York

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Police Officer Michael Curley

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Police Officer Curley Harris TERMINATED: 11/27/2006

Defendant Police Officer Miguel Musse

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Police Officers Kevin Lynch

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Police Officers John Brennan

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
1−50 John/Jane Doe Police Officers

Defendant
Robert Johnson District Attorney of Bronx County

represented by Rachel Amy Seligman (See above for address)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 4 of 28

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
101−125 Jane/John Doe police officers

Defendant
Judith Kaye in her capacity as Chief Judicial Officer of the Unified Court System TERMINATED: 01/17/2006

represented by Monica Anne Connell New York State Office of the Attorney General (24th Floor) 120 Broadway, 24th Floor New York, NY 10271 212−416−8965 Fax: 212−416−6009 Email: Monica.Connell@ag.ny.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Judith Kaye in her official capacity as Chief Judge of the State of New York TERMINATED: 01/17/2006

represented by Monica Anne Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jonathan Lippman in his capacity as Chief Administrative Judge of the Unified Court System TERMINATED: 01/17/2006

represented by Monica Anne Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chauncey G. Parker in his capacity as Director of Criminal Justice TERMINATED: 01/17/2006

represented by Monica Anne Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Chauncey G. Parker Commissioner of the New York State Division of Criminal Justice Services (DCJS) TERMINATED: 01/17/2006

represented by Monica Anne Connell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Corey Harris

represented by Rachel Amy Seligman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
John/Jane Doe 126−130

Defendant Shawn Ricker

All Defendants Shawn Ricker

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 5 of 28

Date Filed 06/09/2005
06/09/2005
06/09/2005 06/09/2005 06/09/2005 06/09/2005 06/09/2005 06/20/2005 06/21/2005
06/22/2005
06/22/2005 06/24/2005

# Docket Text
1 COMPLAINT against Jane Does, City of New York, Michael Curley, Curley Harris, Miguel Musse, Kevin Lynch, John Brennan, John Does, Jane Does, Robert Johnson, Jane Does, John Does, Judith Kaye, Judith Kaye, Jonathan Lippman, Chauncey G. Parker(in his capacity as Director of Criminal Justice), Chauncey G. Parker(Commissioner of the New York State Division of Criminal Justice Services (DCJS)), Raymond W. Kelly, Barry M. Buzzetti(Captain of NYPD 48th Precinct), Barry M. Buzzetti(commanding officer of NYPD 48th Precinct), John Does. (Filing Fee $ 250.00, Receipt Number 546087)Document filed by Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated).(laq, ) Additional attachment(s) added on 6/23/2005 (laq, ). (Entered: 06/09/2005)
SUMMONS ISSUED as to Jane Does, City of New York, Michael Curley, Curley Harris, Miguel Musse, Kevin Lynch, John Brennan, John Does, Jane Does, Robert Johnson, Jane Does, John Does, Judith Kaye, Judith Kaye, Jonathan Lippman, Chauncey G. Parker(in his capacity as Director of Criminal Justice), Chauncey G. Parker(Commissioner of the New York State Division of Criminal Justice Services (DCJS)), Raymond W. Kelly, Barry M. Buzzetti(Captain of NYPD 48th Precinct), Barry M. Buzzetti(commanding officer of NYPD 48th Precinct), John Does. (laq, ) (Entered: 06/09/2005)
CASE REFERRED TO Judge Robert W. Sweet as possibly similar to 1:90−cv−7546. (laq, ) (Entered: 06/09/2005)
CASE DECLINED AS NOT RELATED. Case referred as related to 1:90−cv−7546 and declined by Judge Robert W. Sweet and returned to wheel for assignment. (laq, ) (Entered: 06/28/2005)
Magistrate Judge Theodore H. Katz is so designated. (laq, ) (Entered: 06/28/2005)
6 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. Judge Unassigned no longer assigned to the case. (laq, ) (Entered: 06/28/2005)
Case Designated ECF. (gf, ) (Entered: 08/01/2005)
2 TRANSCRIPT of proceedings held on 6/10/05 @ 11:15 a.m. before Judge Shira A. Scheindlin. (kco, ) (Entered: 06/20/2005)
8 ORDER. Plaintiffs are hereby ordered to show cause why defendants Chief Judge Judith Kaye, Justice Lippman and Chauncey B. Parker should not immediately be dismissed from this case for the reasons further set forth in this Order. Plaintiffs should submit a response of no more than 15 pages, no later than Friday, 6/24/05 at 12:00 p.m. Plaintiff may also submit a reply to the State of New York's opposition to plaintifffs' request for entry of a restraining order, of no more than 10 pages, no later than Friday, 6/24/05 at 12:00 p.m. (Signed by Judge Shira A. Scheindlin on 6/21/05) (yv, ) (Entered: 06/30/2005)
3 AFFIDAVIT OF SERVICE of Summons and Complaint,,. Chauncey G. Parker(in his capacity as Director of Criminal Justice) served on 6/21/2005, answer due 7/11/2005. Service was accepted by Monica Connell, Assistant Attorney General. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 06/22/2005)
4 NOTICE of Appearance by Katherine R. Rosenfeld on behalf of all plaintiffs (Rosenfeld, Katherine) (Entered: 06/22/2005)
5 STIPULATION AND ORDER; Robert Johnson shall seek to dismiss any and all charges and summoneses pending solely under Penal Law 240.35(1) including conditional discharges and violations thereof related to prior charges and/or convictions solely under Penal Law 240.35(1); City Defendants shall immediately release from custody anyone held solely on the charge of violating Penal Law 240.35(a) or, on a charge of violating the terms of a conditional discharge relating solely to 240.35(1); and the City Defendants shall immediately seek to vacate all warrants relating to charges or summonses solely for Penal Law 240.35(1). (Signed by Judge Shira A. Scheindlin on 6/23/05) (sac, ) (Entered: 06/27/2005)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 6 of 28

06/25/2005
06/28/2005 07/01/2005
07/06/2005 07/06/2005
07/07/2005 07/07/2005 07/07/2005
07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/07/2005 07/20/2005 07/21/2005 07/27/2005 07/27/2005

7 ENDORSED LETTER addressed to Judge Scheindlin from Monica Connell dated 6/27/05 re: request for leave to submit a 5 page reply to plaintiff's 6/24/05 letters submitted pursuant to the Court's 6/21/05 Order. Defendant's request is granted. Defendant may submit a reply, not to exceed 5 pages, by 6/29/05 (Signed by Judge Shira A. Scheindlin on 6/27/05) (yv, ) (Entered: 06/29/2005)
Mailed notice to the attorney(s) of record. (laq, ) (Entered: 06/28/2005)
9 ORDER that the court reserves decision regarding its 6/21/05 order to show cause pending the State dfts' submission of and the plaintiffs' opposition to motion to dismiss (Signed by Judge Shira A. Scheindlin on 7/1/05) (dle, ) (Entered: 07/05/2005)
10 NOTICE of Appearance by Monica Anne Connell on behalf of Judith Kaye, Judith Kaye (Connell, Monica) (Entered: 07/06/2005)
11 NOTICE of Appearance by Monica Anne Connell on behalf of Judith Kaye, Judith Kaye, Jonathan Lippman, Chauncey G. Parker(in his capacity as Director of Criminal Justice), Chauncey G. Parker(Commissioner of the New York State Division of Criminal Justice Services (DCJS)) (Connell, Monica) (Entered: 07/06/2005)
12 NOTICE of Appearance by Matthew C. Brinckerhoff on behalf of all plaintiffs (Brinckerhoff, Matthew) (Entered: 07/07/2005)
13 AFFIDAVIT OF SERVICE. Raymond W. Kelly served on 6/30/2005, answer due 7/20/2005. Service was accepted by D. Cruz, Officer. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
14 AFFIDAVIT OF SERVICE. Barry M. Buzzetti(Captain of NYPD 48th Precinct) served on 7/5/2005, answer due 7/25/2005. Service was accepted by Mundo, Officer. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
15 AFFIDAVIT OF SERVICE. Kevin Lynch served on 7/5/2005, answer due 7/25/2005. Service was accepted by Mundo, Officer. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
16 AFFIDAVIT OF SERVICE. Miguel Musse served on 7/5/2005, answer due 7/25/2005. Service was accepted by Mundo, Officer. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
17 AFFIDAVIT OF SERVICE. Robert Johnson served on 7/5/2005, answer due 7/25/2005. Service was accepted by Yolanda Oliveri. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
18 AFFIDAVIT OF SERVICE. Judith Kaye served on 7/6/2005, answer due 7/26/2005. Service was accepted by Jonathan Lippman, OCA. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
19 AFFIDAVIT OF SERVICE. Jonathan Lippman served on 7/6/2005, answer due 7/26/2005. Service was accepted by Jonathan Lippman, OCA. Document filed by Eddie Wise(on behalf of himself). (Brinckerhoff, Matthew) (Entered: 07/07/2005)
Set/Reset Deadlines: Motion to dismiss due by 7/29/2005. (jp, ) (Entered: 07/22/2005)
20 ORDER; State defts time to serve and file a motion to dismiss is extended by one week from 7/22/2005 to 7/29/2005. (Signed by Judge Shira A. Scheindlin on 7/19/2005) (jp, ) (Entered: 07/22/2005)
21 AFFIDAVIT OF SERVICE. City of New York served on 7/25/2005, answer due 8/15/2005. Service was accepted by Linda Lawyer/Process Clerk. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 07/27/2005)
22 AFFIDAVIT OF SERVICE. Curley Harris served on 7/25/2005, answer due 8/15/2005. Service was accepted by Lieutenant Green. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 07/27/2005)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 7 of 28

07/27/2005 07/29/2005 08/18/2005
08/19/2005
08/19/2005 09/09/2005 09/15/2005 09/19/2005 09/19/2005
09/19/2005 09/28/2005

23 AFFIDAVIT OF SERVICE. John Brennan served on 7/25/2005, answer due 8/15/2005. Service was accepted by Officer Richards. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 07/27/2005)
24 ORDER: State defendants' time to serve and file a motion to dismiss is extended by three weeks from July 29, 2005 to August 19, 2005. No further extensions will be granted. (Signed by Judge Shira A. Scheindlin on 7/28/05) Copies Faxed By Chambers.(kw, ) (Entered: 08/01/2005)
25 ENDORSED LETTER addressed to Judge Scheindlin from Rachel A. Seligman dated 8/15/05 re: Theh City defendants' request is hereby granted. The City defendants shall file an answer or otherwise respond to the complaint no later than 09/15/05. In addition, provided that the defendant police officers have been properly served, these defendants shall also file an answer or otherwise respod to the complaint by 09/15/05. No further extensions shall be granted. (Signed by Judge Shira A. Scheindlin on 8/17/05) (djc, ) (Entered: 08/19/2005)
26 MOTION to Dismiss Complaint. Document filed by Judith Kaye, Judith Kaye, Jonathan Lippman, Chauncey G. Parker(in his capacity as Director of Criminal Justice), Chauncey G. Parker(Commissioner of the New York State Division of Criminal Justice Services (DCJS)). Return Date set for 9/30/2005 09:30 AM. (Attachments: # 1 Supporting Declaration of Monica Connell# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H)(Connell, Monica) (Entered: 08/19/2005)
27 MEMORANDUM OF LAW in Support re: 26 MOTION to Dismiss Complaint.. Document filed by Judith Kaye, Judith Kaye, Jonathan Lippman, Chauncey G. Parker(in his capacity as Director of Criminal Justice), Chauncey G. Parker(Commissioner of the New York State Division of Criminal Justice Services (DCJS)). (Connell, Monica) (Entered: 08/19/2005)
28 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckerhoff dated 9/9/05 re: the plaintiffs request is hereby granted. The plaintiff opposition is due no later than 10/3/05. The State dfts respond is due no later than 10/17/05. (Signed by Judge Shira A. Scheindlin on 9/9/05) (pl, ) (Entered: 09/12/2005)
29 ANSWER to Complaint with JURY DEMAND. Document filed by City of New York, Robert Johnson, Raymond W. Kelly.(Seligman, Rachel) (Entered: 09/15/2005)
30 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 9/15/05 re: the plaintiffs request is hereby granted. The City is directed to either (1) provide plaintiff with defendant Carley's consent for service through the NYPD legal division no later than 9/23/05; or (2) provide plaintiff with defendant Carley's last known home address by no later than 9/23/05. (Signed by Judge Shira A. Scheindlin on 9/15/05) (db, ) (Entered: 09/20/2005)
31 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel A. Seligman dated 9/15/05 re: It is unprofessional to request an extension of time on the day a filing is due. Nevertheless, understanding the situation regarding the individual police officer defendants, the COurt hereby grants a fourteen−day (14) day enlargement of time, and no more. Thus, Officers Buzzetti, Lynch, Masse, Brennan and Harris shall answer or otherwise respond to the complaint no later than 9/29/05. (Signed by Judge Shira A. Scheindlin on 9/15/05) (db, ) (Entered: 09/20/2005)
Set Answer Due Date purs. to 31 Endorsed Letter,, as to Curley Harris answer due on 9/29/2005; Miguel Musse answer due on 9/29/2005; Kevin Lynch answer due on 9/29/2005; John Brennan answer due on 9/29/2005; Barry M. Buzzetti(Captain of NYPD 48th Precinct) answer due on 9/29/2005; Barry M. Buzzetti(commanding officer of NYPD 48th Precinct) answer due on 9/29/2005. (db, ) (Entered: 09/20/2005)
32 AFFIDAVIT OF SERVICE. Michael Curley served on 9/26/2005, answer due 10/17/2005. Service was accepted by Michael Curley. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 09/28/2005)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 8 of 28

09/29/2005 10/06/2005 01/17/2006 01/17/2006
03/06/2006 03/09/2006 03/09/2006
03/28/2006 04/11/2006
04/12/2006
04/27/2006 06/21/2006 06/23/2006

33 ANSWER to Complaint with JURY DEMAND. Document filed by Michael Curley, Curley Harris, Miguel Musse, Kevin Lynch, John Brennan, Barry M. Buzzetti(Captain of NYPD 48th Precinct), Barry M. Buzzetti(commanding officer of NYPD 48th Precinct).(Seligman, Rachel) (Entered: 09/29/2005)
34 STIPULATION AND ORDER OF DISMISSAL that the State Defendants withdraw their pending motion to dismiss, without prejudice and with leave to re−file. So Ordered. (Signed by Judge Shira A. Scheindlin on 9/28/05) (jco, ) (Entered: 10/07/2005)
35 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 1/17/06) (js, ) (Entered: 01/18/2006)
36 STIPULATION AND ORDER OF VOLUNTARY DISMISSAL, IT IS HEREBY STIPULATED AND AGREED by and between the parties, through their counsel, that plaintiff Eddie Wise hereby voluntarily withdraws and consents to the dismissal of this action as against Judge Judith Kaye, Chief Judge of the New York State Court of Appeals, Justice Jonathan Lippman, Chief Administative Judge of the New York State Unified Court System and Chauncey Parker, Commissioner of the New York State Division of Criminal Justice Services. (Signed by Judge Shira A. Scheindlin on 1/13/05) (dt, ) (Entered: 01/20/2006)
37 TRANSCRIPT of proceedings held on 02/17/06 before Judge Shira A. Scheindlin. (es, ) (Entered: 03/06/2006)
38 STIPULATED PROTECTIVE ORDER: regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Shira A. Scheindlin on 3/9/06) (db, ) (Entered: 03/09/2006)
39 UNSEALING ORDER that the Bronx County District Attorney's Office and the NYC Police Department provide Corporation Counsel of the City of NY, re records of any criminal actions pertaining to individuals who were arrested, summonsed, and/or charged with Penal Law 240.35(1) from 6/9/02 and 6/9/05, as further set forth in this document. (Signed by Judge Shira A. Scheindlin on 3/9/06) (cd, ) (Entered: 03/10/2006)
40 TRANSCRIPT of proceedings held on 3/23/06 @ 10:15 a.m. before Judge Shira A. Scheindlin. (kco, ) (Entered: 03/28/2006)
41 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 Michael A. Cardozo, Corporation Counsel of the City of New York, or his authorized representative, records of any criminal actions pertaining to individuals who were arrested, summonsed, and/or charged with Penal Law 240.35(1) from 10/7/92 until 4/11/2006. (Signed by Judge Shira A. Scheindlin on 4/11/2006) (lb, ) (Entered: 04/12/2006)
42 ORDER: By April 14, 2006, the Bronx County District Attorney's Office shall produce to the Office of Corporation counsel of City of New York a complete list of the electronic data fields used by the Bronx County District attorney's office, including but not limited to the fields contained in the case Tracking System, Folder Tracking System and the Complaint Typing System. (Signed by Judge Shira A. Scheindlin on 4/12/06) (js, ) (Entered: 04/13/2006)
43 TRANSCRIPT of proceedings held on 4/10/2006 before Judge Shira A. Scheindlin. (jar, ) (Entered: 04/27/2006)
44 ORDER; that by 7/24/06, dfts. shall produce to plaintiff, in electronic "Excel" format as agreed to by the parties, all electronic data, using all data fields contained in BADS regarding enforcement of N.Y. Penal Law section 240.35(1) from the N.Y.C.P.D. for the time period 6/9/02 to 6/9/05 (Signed by Judge Shira A. Scheindlin on 6/20/06) (pl, ) (Entered: 06/22/2006)
45 TRANSCRIPT of proceedings held on 6/19/06 before Judge Shira A. Scheindlin. (tro, ) (Entered: 06/23/2006)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 9 of 28

09/22/2006
10/26/2006
10/26/2006 11/07/2006
11/22/2006 11/27/2006
12/05/2006 12/13/2006 12/13/2006 12/14/2006
12/19/2006 12/19/2006 12/28/2006

46 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from J. McGregor Smyth, Jr. dated 9/21/06 re: Counsel writes to request an adjournment of the status conference be−calendared any time between 11/1 and 11/3/06. The parties' request is hereby granted. The status conference scheduled for September 25 will be postponed until 11/1/06, at 11 a.m. So Ordered. (Signed by Judge Shira A. Scheindlin on 9/22/06) (jco, ) (Entered: 09/22/2006)
47 ENDORSED LETTER addressed to Judge Shira A. Scheindlin f from Katherine Rosenfeld dated 10/26/2006 re: requesting a brief adjournment of the parties' status conference with the Court, currently scheduled for 11/1/2006 at 1:00 p.m. ENDORSEMENT: 11/1 Conference is adjourned to 11/22 at 4:30. Plaintiffs may submit two three−page premotion letters. So Ordered. (Signed by Judge Shira A. Scheindlin on 10/26/2006) (lb, ) (Entered: 10/27/2006)
Set/Reset Hearings: Status Conference set for 11/22/2006 04:30 PM before Judge Shira A. Scheindlin. (lb, ) (Entered: 10/27/2006)
48 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel A. Seligman dated 11/6/06 re: a request by the City defendants for an adjournment of the status conference presently scheduled for 11/22/2006. ENDORSEMENT: Request granted. The conference previously scheduled for 11/22/2006 is adjourned to 11/29/2006 at 2:30 p.m. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 11/7/06) (kco, ) (Entered: 11/08/2006)
49 STIPULATION AND ORDER AMENDING COMPLAINT: It is hereby stipulated and agreed that defendants consent to the filing of the first amended complaint and that plaintiffs be granted leave to file and serve the first amended complaint. (Signed by Judge Shira A. Scheindlin on 11/22/2006) (lb, ) (Entered: 11/27/2006)
50 AMENDED CLASS ACTION COMPLAINT amending 1 Complaint, against Corey Harris, John/Jane Doe, Jane Does, City of New York, Miguel Musse, Kevin Lynch, John Brennan, John Does, Robert Johnson, Raymond W. Kelly, Barry M. Buzzetti(Captain and Commanding Officer of NYPD 48th Precinct), John Does.Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). Related document: 1 Complaint, filed by Eddie Wise.(jco, ) (Entered: 11/30/2006)
51 JUDGMENT #06,2604 in favor of Eddie Wise against City of New York in the amount of $ 100,001.00. (Signed by Judge Shira A. Scheindlin on 12/5/06) (Attachments: # 1 notice of right to appeal)(ml, ) (Entered: 12/07/2006)
52 TRANSCRIPT of proceedings held on 11/29/06 before Judge Shira A. Scheindlin. (jbe, ) (Entered: 12/13/2006)
53 TRANSCRIPT of proceedings held on 11/20/2006 before Judge Shira A. Scheindlin. (aba, ) (Entered: 12/13/2006)
54 ORDER: It is hereby ordered that: within the next 30 days, defendants shall send letters to all police officers in the New York City Police Department who have issued summonses or made arrests under New York Penal Law 240.35(1) (the Statute) since 6/23/2005, informing said officers the Statue is unconstitutional and cannot be charged, and warning these officers that future enforcement of the Statue may lead to disciplinary action being taken against them by the NYPD. All other rulings are set forth in this order. (Signed by Judge Shira A. Scheindlin on 12/14/2006) (lb, ) (Entered: 12/15/2006)
55 STIPULATION AND ORDER: plaintiff Eddie Wise's time to move for reasonable attorneys' fees, expenses and costs, pursuant to FRCP 54(d)(2)(B) is extended to 2/15/07. (Signed by Judge Shira A. Scheindlin on 12/18/06) (db, ) (Entered: 12/20/2006)
Set/Reset Deadlines: Motions due by 2/15/2007. (db, ) (Entered: 12/20/2006)
56 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckernoff dated 12/27/06 re: parties write to the court regarding proposed schedule for plaintiffs motion for class certification as follows: Plaintiffs' motion due by 2/1/2007. Responses due by 3/15/2007 Replies due by 3/20/2007. (Signed

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 10 of 28

12/28/2006
12/28/2006 01/17/2007 01/19/2007 01/25/2007 01/26/2007
02/01/2007 02/02/2007 02/02/2007 02/05/2007

by Judge Shira A. Scheindlin on 12/28/06) (pl, ) (Entered: 12/29/2006)
57 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Matthew D. Brinckernoff dated 12/28/06 re: Parties propose: (1) a schedule for resolving the discovery dispute raised in defendants' letter dated 12/22/06 and (ii) a revised schedule for plaintiff's motion for class certification; Plaintiff's motion for class certification shall be modified so that plaintiff's time to move is extended from 1/15/07 to 2/1/07, and defendants' time to oppose the motion is extended and expanded from 2/15/07 to 3/15/07, followed by plaintiff's reply papers on 3/30/07; The proposed schedule is hereby So Ordered. (Signed by Judge Shira A. Scheindlin on 12/28/06) (ae, ) (Entered: 12/29/2006)
Set Deadlines/Hearings: Plaintiff's motion for class certification due by 2/1/2007. Defendants' Reply due by 3/30/2007. Plaintiff's Response due by 3/15/2007 (ae, ) (Entered: 12/29/2006)
58 TRANSCRIPT of proceedings held on 12/6/06 before Judge Shira A. Scheindlin. (tro) (Entered: 01/17/2007)
59 ANSWER to Amended Complaint. Document filed by City of New York, Michael Curley, Miguel Musse, Kevin Lynch, John Brennan, Corey Harris, Robert Johnson, Raymond W. Kelly, Barry M. Buzzetti(Captain and Commanding Officer of NYPD 48th Precinct).(Seligman, Rachel) (Entered: 01/19/2007)
60 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 1/24/07 re: Application GRANTED. The page limitations for plaintiff's Memorandum of Law in Support of the Motion for Class Certification is expanded to fifty (50) pages and defendants reply expanded to twenty−five (25) pages. (Signed by Judge Shira A. Scheindlin on 1/25/07) (db) (Entered: 01/26/2007)
61 ENDORSED LETTER addressed to Judge Shire A. Scheindlin from Katherine Rosenfeld dated 1/24/2007 re: to grant an extension of the page limits for plaintiffs' memorandum of law in support of our motion for class certification.ENDORSEMENT: Request denied. Counsel would be surprised to learn that almost every case thinks that it is the "unique" case that requires briefing beyond the court's page limits. If the Court granted every such request, there would be no page limits, and exceptions would swallow the rule. That said, plaintiffs may have a 10−page inccrease (to 35) pages; undoubtedly defendants will ask for said, plaintiffs may have the same; and plaintiffs may have a 5− page increase (to 15) pages. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 1/25/2007) (jmi) (Entered: 01/29/2007)
62 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION to Certify Class and Amend Complaint. Document filed by Michael Brown(On behalf of himself and others similarly situated).Responses due by 3/15/2007 (Attachments: # 1 Memorandum of Law In Support of Motion to Amend and Certify Class)(Rosenfeld, Katherine) Modified on 2/2/2007 (Allen, Kathleen). (Entered: 02/01/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Katherine R. Rosenfeld to RE−FILE Document 62 MOTION to Certify Class and Amend Complaint. ERROR(S): Filing Error of Attachment#1 and Supporting Declartion. Supporting Documents must be filed individually. Event codes located under Replies, Opposition and Supporting Documents. (kg) (Entered: 02/02/2007)
63 FIRST MOTION to Certify Class and Amend Complaint. Document filed by Michael Brown(On behalf of himself and others similarly situated).Responses due by 3/16/2007 (Attachments: # 1 Affidavit Declaration of McGregor Smyth# 2 Exhibit Ex A: Second Amended Complaint# 3 Exhibit Ex. B: Stipulation and Order# 4 Supplement Memorandum of Law)(Rosenfeld, Katherine) (Entered: 02/02/2007)
64 ACKNOWLEDGMENT OF SERVICE. Shawn Ricker served on 1/25/2007, answer due 2/14/2007. Service was accepted by John Payne. Document filed by Michael Brown. (Rosenfeld, Katherine) (Entered: 02/05/2007)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 11 of 28

02/13/2007
02/13/2007
02/13/2007 02/13/2007 02/28/2007 03/12/2007
03/13/2007 03/13/2007
03/13/2007 03/14/2007 03/14/2007

65 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute. Plaintiff's motion for attorney's fees.. Referred to Magistrate Judge Theodore H. Katz. Plaintiff Eddie Wise's time to file his motion for attorney's fees was extended to March 15, 2007 Defendants opposition is due April 15, any reply is due May 1. (Signed by Judge Shira A. Scheindlin on 2/13/07) (js) (Entered: 02/14/2007)
66 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 2/12/07 re: Request that the Court extend plaintiff Eddie Wise's time alloted under Fed. R. Civ. P. 54 (d)(2)(b) for bringing any motion for attorneys' fees until March 15, 2007 with defendants opposition due by April 15, 2007, and any reply be submitted May 1, 2007. This schedule would permit briefing of the fees motion without impining on the time alloted for either side's submissions to this Court on the pending class certification motion. ENDORSEMENT: So Ordered. (Signed by Judge Shira A. Scheindlin on 2/13/07) (js) (Entered: 02/14/2007)
Set Deadlines/Hearings: Responses due by 4/15/2007 (js) (Entered: 02/14/2007)
67 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for Specific Non−Dispositive Motion/Dispute: Attorneys' Fees. Referred to Magistrate Judge Theodore H. Katz. (Signed by Judge Shira A. Scheindlin on 2/8/07) (ae) (Entered: 02/14/2007)
68 TRANSCRIPT of proceedings held on 1/9/2007 before Judge Shira A. Scheindlin. (jsa) (Entered: 02/28/2007)
69 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Katherine Rosenfeld dated 3/1/2007 re: to we hope to avoid burdening this Court with any motion practice on this issue. However, the parties have reached a stalemate with respect to this fee dispute. We believe that a conference with Your Honor would be extremely useful to assist the parties in negotiation a resolution. For these reasons, we respectfully request that the Court:(1)schedule a conference with the parties in an attempt to resolve the parties' fee dispute without formal motion practice; and (2) in light of the requested conference, extend plaintiff's time to file motion for attorneys' fees until May 15,2007. The conference is to take place on March 21st. Any response to be filed by June 11,2007 Any reply by June 20,2007.Responses due by 6/11/2007.,Replies due by 6/20/2007. SO ORDERED. (Signed by Judge Theodore H. Katz on 3/12/2007) (jmi) (Entered: 03/13/2007)
70 TRANSCRIPT of proceedings held on 2/8/07 before Judge Shira A. Scheindlin. (jbe) (Entered: 03/13/2007)
71 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel A. Seligman dated 3/12/07 re: Accordingly, defendants request an enlargement of time from March 15, 2007 until May 1, 2007 to serve their opposition to plaintiff's motion for class certification and motion to amend. ENDORSEMENT: Defendants' request for an extension to May 1, 2007 is DENIED. Defendants are granted a four week extension to serve their opposition to plaintiff's motion for class certification. Accordingly, defendants shall file their opposition by April 16, 2007 and plaintiff shall file its reply by April 27, 2007. No further adjournments will be granted. So Ordered. (Signed by Judge Shira A. Scheindlin on 3/13/07) (js) (Entered: 03/14/2007)
Set Deadlines/Hearings: Replies due by 4/27/2007.,Responses due by 4/16/2007 (js) (Entered: 03/14/2007)
72 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 3/14/07 re: Request for an extension of time for plaintiff's to file reply papers until May 7, 2007. ENDORSEMENT: request GRANTED. Plaintiff's time to reply is extended to and including May 7, 2007. So Ordered (Signed by Judge Shira A. Scheindlin on 3/14/07) (js) (Entered: 03/15/2007)
Set Deadlines/Hearings: Replies due by 5/7/2007. (js) (Entered: 03/15/2007)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 12 of 28

03/15/2007 03/15/2007 03/16/2007
03/21/2007 03/23/2007
03/26/2007 03/27/2007 03/27/2007
03/29/2007
03/29/2007

73 TRANSCRIPT of proceedings held on 3/2/2007 at 4:40 p.m. before Judge Shira A. Scheindlin. (mbe) (Entered: 03/15/2007)
74 STIPULATED PROTECTIVE ORDER...regarding procedures to be followed that shall govern the handling of confidential material.... (Signed by Judge Shira A. Scheindlin on 3/15/07) (cd) (Entered: 03/16/2007)
75 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel A. Selgman dated 3/15/07 re: We request that the April 16, 2007, due date for defendants opposition for class certification be extended to April 27, 2007, and plaintiff's time for reply be extended from May 7, 2007, to May 11, 2007. ENDORSEMENT: This Court previously informed Defendants that no further extensions of their time to oppose plaintiffs' class certification motion would be granted. Defendants request is DENIED. (Signed by Judge Shira A. Scheindlin on 3/16/07) (js) (Entered: 03/19/2007)
Minute Entry for proceedings held before Judge Theodore H. Katz : Settlement Conference held on 3/21/2007. (cd) (Entered: 03/26/2007)
76 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION to Comply Plaintiff's Motion for Contempt. Document filed by Michael Brown(On behalf of himself and others similarly situated).Motions referred to Theodore H. Katz. (Attachments: # 1 Exhibit # 2 Affidavit Smyth Declaration ISO Motion# 3 Exhibit # 4 Exhibit # 5 Exhibit # 6 Memo of Law Part 1# 7 Memo of Law Part 2# 8 Exhibit # 9 Exhibit # 10 Exhibit # 11 Exhibit # 12 Exhibit # 13 Exhibit # 14 Exhibit # 15 Exhibit # 16 Exhibit # 17 Exhibit # 18 Exhibit # 19 Exhibit # 20 Exhibit # 21 Exhibit)(Rosenfeld, Katherine) Modified on 3/26/2007 (KA). (Entered: 03/23/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Katherine R. Rosenfeld to RE−FILE Document 76 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. ERROR(S): Filing Error of Supporting Documents. Supporting Documents must be filed individually. Event codes located under Replies, Opposition and Supporting Documents. (KA) (Entered: 03/26/2007)
77 ORDER; that Plaintiffs Edgar Turner, Llewellyn Rudy, Bobby Wells, Xavier Grant, Keith Anderson, and Michael L. Brown, shall be compelled to apepar for their depositions at the Office of the Corporation Counsel, 100 Church Street, New York, NY 10007, in accordance w/ the schedule as set forth in this Order. (Signed by Judge Shira A. Scheindlin on 3/26/07) (ae) (Entered: 03/28/2007)
82 ORDER plaintiffs Edgard Turner, Llewellyn Rudy, Bobby Wells, Xavier Grant, Keith Anderson, and Michael L. Brown be compelled to appear for their depositions at the Offices of the Corporation Counsel, 100 Church Street, in accordance with the following schedule, agreed upon by the parties and confirmed by plaintiffs' counsel: Llewallyn Rudy: 3/27/07, Michael L. Brown: 3/28/07, Bobby Wells 3/29/07, Xavier Grant: 3/29/07, Keith Anderson: 3/30/07, Edgar Turner: 4/4/07. (Signed by Judge Shira A. Scheindlin on 3/26/07) (jco) (Entered: 03/30/2007)
78 FILING ERROR − DEFICIENT DOCKET ENTRY − FIRST MOTION to Comply Plaintiff's Motion for Contempt. Document filed by Michael Brown(On behalf of himself and others similarly situated).Motions referred to Theodore H. Katz. (Attachments: # 1 Affidavit Affirmation of McGregor Smythe# 2 Exhibit Exhibit A# 3 Exhibit Exhibit B# 4 Exhibit Exhibit C# 5 Exhibit Exhibit D# 6 Exhibit Exhibit E# 7 Exhibit # 8 Exhibit Exhibit G# 9 Exhibit Exhibit H# 10 Exhibit Exhibit I# 11 Exhibit Exhibit J# 12 Exhibit Exhibit K# 13 Exhibit Exhibit K# 14 Exhibit Exhibit M# 15 Exhibit Exhibit N# 16 Exhibit Exhibit O# 17 Exhibit Exhibit P# 18 Exhibit Exhibit Q)(Rosenfeld, Katherine) Modified on 3/30/2007 (KA). (Entered: 03/29/2007)
79 FILING ERROR − WRONG DOCUMENT TYPE SELECTED FROM MENU − FIRST BRIEF re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt. (Memorandum of Law in Support of Motion for Contempt). Document filed by Michael Brown(On behalf of himself and others similarly situated).(Rosenfeld, Katherine) Modified on 3/30/2007 (KA). (Entered: 03/29/2007)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 13 of 28

03/30/2007
03/30/2007 03/30/2007 03/30/2007 04/13/2007 04/13/2007 04/13/2007 04/13/2007 04/14/2007 04/16/2007 04/23/2007
04/23/2007 04/24/2007

***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Katherine R. Rosenfeld to RE−FILE Document 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt. ERROR(S): Filing Error of Supporting Declaration. Supporting Declaration must be filed individually. Event code located under Replies, Opposition and Supporting Documents. (KA) Modified on 3/30/2007 (KA). (Entered: 03/30/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DOCUMENT TYPE ERROR. Note to Attorney Katherine R. Rosenfeld to RE−FILE Document 79 Brief. Use the document type Memorandum of Law in support of motion found under the document list Replies, Opposition and Supporting Documents. (KA) (Entered: 03/30/2007)
80 AFFIDAVIT of McGregor Smythe in Support re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 03/30/2007)
81 FIRST MEMORANDUM OF LAW in Support re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 03/30/2007)
83 DECLARATION of Steven M. Anger in Opposition re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York, Raymond W. Kelly. (Attachments: # 1 Exhibit A through K)(Seligman, Rachel) (Entered: 04/13/2007)
84 DECLARATION of Rosemary DeBellis in Opposition re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York, Raymond W. Kelly. (Attachments: # 1 Exhibit A through G)(Seligman, Rachel) (Entered: 04/13/2007)
85 DECLARATION of Anthony D'Amico in Opposition re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York, Raymond W. Kelly. (Attachments: # 1 Exhibit A (Part 1)# 2 Exhibit A (Part 2)# 3 Exhibit A (Part 3)# 4 Exhibit B through D)(Seligman, Rachel) (Entered: 04/13/2007)
86 DECLARATION of Rachel A. Seligman in Opposition re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York, Raymond W. Kelly. (Attachments: # 1 Exhibit A through I)(Seligman, Rachel) (Entered: 04/13/2007)
87 MEMORANDUM OF LAW in Opposition re: 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) (Entered: 04/14/2007)
88 MEMORANDUM OPINION AND ORDER # 94563: for reasons further set forth in said Order, plaiintiff's 4/6/07 letter motion for a Protective Order is GRANTED. (Signed by Judge Shira A. Scheindlin on 4/16/07) (db) Modified on 4/18/2007 (rw). (Entered: 04/17/2007)
89 REPLY AFFIDAVIT of J. McGregor Smyth, Jr. in Support re: 76 FIRST MOTION to Comply Plaintiff's Motion for Contempt., 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Brinckerhoff, Matthew) (Entered: 04/23/2007)
90 REPLY MEMORANDUM OF LAW in Support re: 76 FIRST MOTION to Comply Plaintiff's Motion for Contempt., 78 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown. (Brinckerhoff, Matthew) (Entered: 04/23/2007)
91 DECLARATION of Rachel A. Seligman in Opposition re: 63 FIRST MOTION to Certify Class and Amend Complaint.. Document filed by City of New York.

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 14 of 28

04/24/2007 04/26/2007 05/07/2007
05/07/2007 05/17/2007 05/31/2007
06/21/2007 06/21/2007 06/21/2007 06/26/2007 06/27/2007
06/27/2007 06/27/2007
07/05/2007

(Attachments: # 1 Exhibit A through F# 2 Exhibit G through N)(Seligman, Rachel) (Entered: 04/24/2007)
92 MEMORANDUM OF LAW in Opposition re: 63 FIRST MOTION to Certify Class and Amend Complaint.. Document filed by City of New York. (Seligman, Rachel) (Entered: 04/24/2007)
93 MEMORANDUM OF LAW in Opposition re: 63 FIRST MOTION to Certify Class and Amend Complaint. revised with TOA and TOC. Document filed by City of New York. (Seligman, Rachel) (Entered: 04/26/2007)
94 REPLY AFFIDAVIT of J. McGregor Smyth, Jr. in Support re: 62 MOTION to Certify Class and Amend Complaint., 63 FIRST MOTION to Certify Class and Amend Complaint.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit Exhibits A−D# 2 Exhibit Ex. E−I)(Rosenfeld, Katherine) (Entered: 05/07/2007)
95 REPLY MEMORANDUM OF LAW in Support re: 62 MOTION to Certify Class and Amend Complaint., 63 FIRST MOTION to Certify Class and Amend Complaint.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 05/07/2007)
96 AFFIDAVIT of NYPD in Support re: 76 FIRST MOTION to Comply Plaintiff's Motion for Contempt.. Document filed by City of New York. (Seligman, Rachel) (Entered: 05/17/2007)
97 OPINION AND ORDER # 94737: for the reasons stated, plaintiff's motion for an order adjudging defendants in contempt is denied. Plaintiff is directed to submit a fee application by 6/20/2007. The Clerk of the Court is directed to close this motion [docket no. 78]. (Signed by Judge Shira A. Scheindlin on 5/31/07) (kco) Modified on 6/4/2007 (rw). (Entered: 05/31/2007)
98 MOTION for Attorney Fees. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Affidavit of Matthew D. Brinckerhoff In Support of Motion For Attorneys' Fees# 2 Exhibit A−B# 3 Exhibit C)(Brinckerhoff, Matthew) (Entered: 06/21/2007)
99 DECLARATION of J. McGregor Smyth, Jr. in Support re: 98 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit A−B)(Brinckerhoff, Matthew) (Entered: 06/21/2007)
100 MEMORANDUM OF LAW in Support re: 98 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Brinckerhoff, Matthew) (Entered: 06/21/2007)
101 TRANSCRIPT of proceedings held on 05/17/07 before Judge Shira A. Scheindlin. (es) (Entered: 06/26/2007)
102 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel A. Seligman dated 6/27/07 re: a request that the Court refer the plaintiff's application for attorneys' fees sought for their attempt to hold defendant in contempt to Magistrate Judge Katz. ENDORSEMENT: Request granted. The application for fees in connection with the motion for contempt is hereby referred to Magistrate Judge Katz. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/27/07) (kco) (Entered: 06/28/2007)
MOTIONS REFERRED: 98 MOTION for Attorney Fees. Motions referred to Theodore H. Katz. (kco) (Entered: 06/28/2007)
103 ORDER REFERRING CASE TO MAGISTRATE JUDGE. Order that case be referred to the Clerk of Court for assignment to a Magistrate Judge for attorneys' fees in connection with contempt motion. Referred to Magistrate Judge Theodore H. Katz. (Signed by Judge Shira A. Scheindlin on 6/27/07) (kco) (Entered: 06/28/2007)
104 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Katherine Rosenfeld dated 6/27/07 re: counsel for plaintiffs request resolution by Your Honor

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 15 of 28

07/12/2007
07/13/2007 07/13/2007 07/19/2007 07/23/2007 07/23/2007 07/23/2007 07/24/2007
08/02/2007
08/08/2007 08/14/2007 08/14/2007 08/22/2007

of the contempt fees' application that plaintiff filed last week. ENDORSEMENT: Plaintiff's request is denied. The matter is referred to Magistrate Judge Katz. So Ordered. (Signed by Judge Shira A. Scheindlin on 7/3/07) (dle) Modified on 7/17/2007 (Lewis, Diahan). (Entered: 07/06/2007)
105 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Katherine Rosenfeld dated 7/11/07 re: a request that the Court grant plaintiff an additional two weeks to file moving papers until 7/30/07. ENDORSEMENT: Plaintiffs' Rule 68 for application shall be filed by 7/23/2007. Defendants' response shall be filed by 8/23/2007. Any reply shall be filed by 9/5/2007. SO ORDERED. (Signed by Judge Theodore H. Katz on 7/12/07) Copies Faxed By Chambers.(kco) (Entered: 07/13/2007)
106 MEMORANDUM OF LAW in Opposition re: 98 MOTION for Attorney Fees.. Document filed by City of New York. (Seligman, Rachel) (Entered: 07/13/2007)
107 DECLARATION of Rachel Seligman in Opposition re: 98 MOTION for Attorney Fees.. Document filed by City of New York. (Attachments: # 1 Exhibit A through H)(Seligman, Rachel) (Entered: 07/13/2007)
108 STIPULATED PROTECTIVE ORDER: regarding procedures to be followed that shall govern the handling of confidential material. (Signed by Judge Shira A. Scheindlin on 7/19/07) (dle) (Entered: 07/20/2007)
109 MOTION for Attorney Fees. Document filed by Eddie Wise(on behalf of himself). (Attachments: # 1 Affidavit Matthew D. Brinckerhoff# 2 Exhibit A−G# 3 Exhibit H−L# 4 Exhibit M−P# 5 Exhibit Q−W)(Rosenfeld, Katherine) (Entered: 07/23/2007)
110 MEMORANDUM OF LAW in Support re: 109 MOTION for Attorney Fees.. Document filed by Eddie Wise(on behalf of himself). (Rosenfeld, Katherine) (Entered: 07/23/2007)
111 DECLARATION of J. McGregor Smyth in Support re: 109 MOTION for Attorney Fees.. Document filed by Eddie Wise(on behalf of himself). (Attachments: # 1 Exhibit A−C)(Rosenfeld, Katherine) (Entered: 07/23/2007)
112 OPINION AND ORDER # 94962: Plaintiff's request to amend the complaint is granted. Plaintiff's motion for certification of bilateral state−wide classes under Rule 23(b)(2) and for certification of a City−wide plaintiff subclass under Rule 23(b)(3) is also granted. The Clerk of Court is directed to close this motion [Docket No. 63]. Status Conference set for 7/30/2007 at 04:30 PM before Judge Shira A. Scheindlin. (Signed by Judge Shira A. Scheindlin on 7/24/2007) (jpo) Modified on 7/26/2007 (rw). (Entered: 07/25/2007)
113 ENDORSED LETTER addressed to Magistrate Judge Theodore Hl Katz from J. McGregor Smyth, Jr. dated 8/1/07 re: plaintiffs requests a 1−week adjournment to 8/13/07 to reply to dfts' opposition to the motion for attorney's fees in connection with plaintiffs contempt motion. ENDORSEMENT: the request is granted. (Signed by Judge Theodore H. Katz on 8/1/07) (pl) (Entered: 08/03/2007)
114 TRANSCRIPT of proceedings held on 7/30/07 before Judge Shira A. Scheindlin. (jbe) (Entered: 08/08/2007)
115 REPLY MEMORANDUM OF LAW in Support re: 98 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Smyth, J.) (Entered: 08/14/2007)
116 REPLY AFFIRMATION of MATTHEW D. BRINCKERHOFF in Support re: 98 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit A−B, Brinck. Reply Decl.)(Smyth, J.) (Entered: 08/14/2007)
117 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Rachel A. Seligman dated 8/21/07 re: Counsel for defendants request an additional two weeks to file defendants opposition to plaintiff's attorneys fee application in connection with defendants Rule 68 offer. ENDORSEMENT: Defendants' opposition to the fee request shall be filed by September 7, 2007. Plaintiff's reply

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 16 of 28

09/07/2007 09/17/2007
09/18/2007 09/18/2007 10/11/2007
10/19/2007 10/19/2007 10/19/2007 10/22/2007 10/22/2007

shall be filed by September 21, 2007. (Signed by Judge Theodore H. Katz on 8/22/07) (js) (Entered: 08/23/2007)
118 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Rachel A. Seligman dated 9/6/07 re: a request for a brief two day enlargement of time until 9/11/07 to file defendants' opposition to plaintiff's attorneys' fees application in connection with defendants' Rule 68 offer. ENDORSEMENT: Granted. SO ORDERED. (Signed by Judge Theodore H. Katz on 9/7/07) (kco) (Entered: 09/07/2007)
119 ENDORSED LETTER addressed to Judge Theodore H. Katz from Rachel A. Seligman dated 9/11/07 re: Counsel writes to request an enlargment of time from the present date until 9/18/07 to file defendants' opposition to plaintiff's attorneys' fee application in connection with defendants' Rule 68 offer. ENDORSEMENT: Granted. The reply shall be filed by 10/5/07. So Ordered., Set Deadlines/Hearing as to 98 MOTION for Attorney Fees., 109 MOTION for Attorney Fees. : Responses due by 9/18/2007 Replies due by 10/5/2007. (Signed by Judge Theodore H. Katz on 9/17/07) (jco) (Entered: 09/17/2007)
120 DECLARATION of Rachel A. Seligman in Opposition re: 109 MOTION for Attorney Fees.. Document filed by City of New York. (Attachments: # 1 Exhibit C and D)(Seligman, Rachel) (Entered: 09/18/2007)
121 MEMORANDUM OF LAW in Opposition re: 109 MOTION for Attorney Fees. (Rule 68). Document filed by City of New York. (Seligman, Rachel) (Entered: 09/18/2007)
122 ENDORSED LETTER addressed to Magistrate Judge Theodore H. Katz from Matthew D. Brinckerhoff dated 9/28/07 re: Counsel writes to request that reply papers in support of plaintiffs' motion for attorneys' fees motion be extended to 10/19/07. ENDORSEMENT: So Ordered., Set Deadlines/Hearing as to 98 MOTION for Attorney Fees. 109 MOTION for Attorney Fees. Replies due by 10/19/2007. (Signed by Judge Theodore H. Katz on 10/11/07) (jco) (Entered: 10/11/2007)
123 REPLY MEMORANDUM OF LAW in Support re: 109 MOTION for Attorney Fees. Plaintiff Eddie Wise's Reply Memorandum of Law In Further Support of Motion for Attorneys' Fees in Connection with Defendant's Rule 68 Offer and Judgment. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 10/19/2007)
124 FILING ERROR − DEFICIENT DOCKET ENTRY − REPLY AFFIRMATION of Matthew D. Brinckerhoff in Support re: 109 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) Modified on 10/22/2007 (sn). (Entered: 10/19/2007)
125 FILING ERROR − DEFICIENT DOCKET ENTRY − REPLY AFFIRMATION of Matthew D. Brinckerhoff in Support re: 109 MOTION for Attorney Fees.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit AA# 2 Exhibit CC# 3 Exhibit DD# 4 Exhibit EE# 5 Exhibit FF)(Rosenfeld, Katherine) Modified on 10/22/2007 (sn). (Entered: 10/19/2007)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Katherine Rosenfeld to RE−FILE Documents 124 Reply Affirmation in Support of Motion, 125 Reply Affirmation in Support of Motion,. ERROR(S): Duplicate docket entry / Missing exhibits. (sn) (Entered: 10/22/2007)
126 REPLY AFFIRMATION of Matthew D. Brinckerhoff in Support re: 109 MOTION for Attorney Fees.. Document filed by Michael Brown. (Attachments: # 1 Exhibit AA# 2 Exhibit BB Part 1# 3 Exhibit BB Part 2# 4 Exhibit BB Part 3# 5 Exhibit CC# 6 Exhibit DD# 7 Exhibit EE# 8 Exhibit FF)(Rosenfeld, Katherine) (Entered: 10/22/2007)

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11/28/2007
11/29/2007 01/31/2008
01/31/2008 01/31/2008 02/21/2008
02/21/2008 02/21/2008 02/21/2008 02/22/2008

USCA Appeal Fees received $ 455.00, receipt number E 634553 on 11/28/2007 re: 127 USCA Order Non−Dismissal,. Fee paid by John/Jane Doe(police officers), City of New York, Michael Curley, Miguel Musse, Kevin Lynch, Michael Brown, Corey Harris, John/Jane Doe, John/Jane Doe(Police Officers), Robert Johnson, Jane/John Doe, Shawn Ricker, Raymond W. Kelly, Barry M. Buzzetti(Captain and Commanding Officer of NYPD 48th Precinct), John Does. (nd) (Entered: 11/29/2007)
127 ORDER of USCA (Certified Copy) USCA Case Number 07−3356−mv. Petitioners, through counsel, move, pursuant to Federal Rule of Civil Procedure 23(f), for leave to appeal the district court`s order granting Respondent`s motion for class certification. Upon due consideration, it is hereby ORDERED that the petition is GRANTED and the Clerk shall issue a briefing schedule. Catherine O'Hagan Wolfe, Clerk USCA. Certified: 11/7/2007. (nd) (Entered: 11/29/2007)
128 REPORT AND RECOMMENDATIONS re: 98 MOTION for Attorney Fees, filed by Michael Brown, 109 MOTION for Attorney Fees filed by Eddie Wise. For the reasons set forth above, this Court recommends that (1) Plaintiff Brown be awarded $48,741.00 in attorneys fees on the Contempt Motion, to be paid by the Municipal Defendants, and (2) Plaintiff Wise be awarded $275,604.56 in attorneys fees, and $4,733.72 in costs, on the Rule 68 Motion, to be paid by the Municipal Defendants. Pursuant to 28 U.S.C. 636 (b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have 10 days from service of this report to file written objections. Such objections shall be filed with Clerk of the Court, with extra copies delivered to the chambers of the Honorable Shira A. Scheindlin, united States District Judge, and the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections will result in a waiver of those objections for purposes of appeal. Objections to RRdue by 2/13/2008 (Signed by Magistrate Judge Theodore H. Katz on 1/31/2008) (jmi) (Entered: 01/31/2008)
***DELETED DOCUMENT. Deleted document number 129 Report &Recommendation. The document was incorrectly filed in this case. (pl) (Entered: 02/07/2008)
Motion No Longer Referred: re: 98 MOTION for Attorney Fees filed by Michael Brown, 109 MOTION for Attorney Fees filed by Eddie Wise. (dw) (Entered: 02/19/2008)
129 ORDER re: 128 Report and Recommendations 98 Motion for Attorney Fees, filed by Michael Brown, 109 Motion for Attorney Fees filed by Eddie Wise. I find the amounts awarded to be reasonable and therefore adopt the RRin full. The Clerk of the Court is directed to prepare a Judgment in accordance with the RThe Clerk of the Court is further directed to close plaintiffs' motions [Documents #98 and 109]. (Signed by Judge Shira A. Scheindlin on 2/21/08) (tro) Modified on 2/21/2008 (tro). (Entered: 02/21/2008)
Transmission to Judgments and Orders Clerk. Transmitted re: 129 Order Adopting Report and Recommendations,to the Judgments and Orders Clerk. (tro) (Entered: 02/21/2008)
130 ORDER; that based on my independent review, I find the amounts awarded to be reasonable and therefore adopt the RRin full. The Clerk of the Court is directed to prepare a Judgment in accordance with the RThe Clerk of the court is further directed to close plaintiffs motions [Documents #98 and 109] (Signed by Judge Shira A. Scheindlin on 2/21/08) (pl) (Entered: 02/21/2008)
Transmission to Judgments and Orders Clerk. Transmitted re: 130 Order,, to the Judgments and Orders Clerk. (pl) (Entered: 02/21/2008)
131 CLERK'S JUDGMENT # 08,0285 That for the reasons stated in the Court's Order dated February 21, 2008, the report is adopted and plaintiff Michael Brown is awarded $48,741.00 in attorneys fees to be paid by the Municipal Defendants; and plaintiff Eddie Wise is awarded $275,604.56 in attorneys fees and $4,733.72 in costs to be paid by the Municipal Defendants. (Signed by J. Michael McMahon, clerk on 2/22/08) (Attachments: # 1 notice of right to appeal)(ml) (Entered: 02/22/2008)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 18 of 28

06/09/2009
06/09/2009 12/22/2009 12/23/2009 12/23/2009 12/23/2009 12/23/2009

132 UNSEALING ORDER: IT IS HEREBY ORDERED THAT THE NEW YORK CITY POLICE DEPARTMENT provide the Office of the Corporation Counsel of the City of New York, or its authorized representative, records of any criminal actions pertaining to individuals who were arrested, summonsed, and/or charged with Penal Law 240.35(1) from May 1, 2007 until today, June 4, 2009, and ongoing throughout the pendency of this action. IT IS FURTHER ORDERED that the person designated above as a person to whom the records may be made available is not bound by the statutory sealing requirements of CPL 160.50 and/or C.P.L. 160.55. IT IS FURTHER ORDERED that the records made available to the person designated above comprise all records and papers pertaining to the arrests, summonses, and prosecutions in the criminal actions identified herein on file with any court, police agency, prosecutor's office or state or local agency that were ordered to be sealed under the provisions of CPL 160.50. IT IS FURTHER ORDERED that the custodians of the records named above shall provide the records to the Office of the Corporation Counsel of the City of New York within thirty (30) days of receipt of this Order; that the Office of the Corporation Counsel of the City of New York shall notify plaintiffs counsel in the event that said records are not received within thirty (30) days of receipt of this Order; and that the Office of the Corporation Counsel of the City of New York shall produce the records to plaintiff's counsel pursuant to the Federal Rules of Civil Procedure within thirty (30) days of receipt of the records. IT IS FURTHER ORDERED that the use of the above−referenced records is restricted to use in the above−entitled civil rights action and in accordance with the terms of the Stipulation and Protective Order dated March 9, 2006 and all addendums thereto. (Signed by Judge Shira A. Scheindlin on 6/8/2009) (jfe) (Entered: 06/09/2009)
133 ADDENDUM TO MARCH 9, 2006 STIPULATION AND PROTECTIVE ORDER: "Confidential Materials" within the meaning of paragraph 1 of the March 9, 2006 Order shall include any records pertaining to individuals who were issued summonses for New York Penal Law § 240.35(1) that are provided at any time by defendants in response to document requests by plaintiffs for such material. (Signed by Judge Shira A. Scheindlin on 6/8/2009) (jpo) (Entered: 06/10/2009)
138 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. 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)
134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions. Document filed by Michael Brown(On behalf of himself and others similarly situated).(Rosenfeld, Katherine) (Entered: 12/23/2009)
135 MEMORANDUM OF LAW in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 12/23/2009)
136 DECLARATION of J. McGregor Smyth in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (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)
137 DECLARATION of Katherine Rosenfeld in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, Part 1, # 9 Exhibit 8, Part2, # 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)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 19 of 28

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

139 REPLY AFFIRMATION of Katherine Rosenfeld, Esq. in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit Exhibit I, # 2 Exhibit Exhibit J, # 3 Exhibit Exhibit K)(Rosenfeld, Katherine) (Entered: 02/22/2010)
140 REPLY MEMORANDUM OF LAW in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Rosenfeld, Katherine) (Entered: 02/22/2010)
141 REPLY AFFIRMATION of J. McGregor Smyth, Esq. in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit A)(Rosenfeld, Katherine) (Entered: 02/22/2010)
142 DECLARATION of Katherine Rosenfeld in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Rosenfeld, Katherine) (Entered: 04/13/2010)
143 DECLARATION of Rosemary Debellis in Opposition re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) (Entered: 04/13/2010)
144 DECLARATION of J. McGregor Smyth Jr. in Support re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Smyth, J.) (Entered: 04/23/2010)
145 FILING ERROR − ELECTRONIC FILING FOR NON−ECF DOCUMENT (LETTER) − RESPONSE to Motion re: 134 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)
***NOTE TO ATTORNEY THAT THE ATTEMPTED FILING OF Document No. 145 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)
146 RESPONSE in Opposition re: 134 MOTION for Preliminary Injunction Contempt, and Discovery Sanctions. Requested by Court. Document filed by City of New York. (Donahue, Linda) (Entered: 04/26/2010)
147 OPINION AND ORDER: For the reasons set forth above, plaintiff's 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 5/3/2010 (jfe). (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)
148 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)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 20 of 28

05/10/2010 05/10/2010 05/11/2010
05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/11/2010 05/22/2010 05/22/2010 05/22/2010

149 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 City of New York, Raymond W. Kelly.(Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/10/2010)
150 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Rachel Seligman Weiss in Support re: 149 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/10/2010)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − EVENT TYPE ERROR. Note to Attorney Rachel Seligman to RE−FILE Document 149 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order. Use the event type Memorandum of Law in Support found under the event list Replies, Oppositions, Supporting Documents. NOTE: A Motion for Reconsideration/Reargument has not been entered on the docket. (jar) (Entered: 05/11/2010)
***NOTE TO ATTORNEY TO RE−FILE DOCUMENT − DEFICIENT DOCKET ENTRY ERROR. Note to Attorney Rachel Seligman to RE−FILE Document 150 Declaration in Support of Motion. ERROR(S): A document cannot be linked to a filing error. (jar) (Entered: 05/11/2010)
151 FILING ERROR − WRONG EVENT TYPE SELECTED FROM MENU (Motion for Reconsideration) − NOTICE of Motion for Reconsideration. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/11/2010)
152 FILING ERROR − DEFICIENT DOCKET ENTRY − MEMORANDUM OF LAW in Support re: 149 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/11/2010)
153 FILING ERROR − DEFICIENT DOCKET ENTRY − DECLARATION of Rachel Seligman Weiss in Support re: 149 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Contempt Order. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) Modified on 5/11/2010 (jar). (Entered: 05/11/2010)
154 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order. Document filed by City of New York, Raymond W. Kelly.(Seligman, Rachel) (Entered: 05/11/2010)
155 MEMORANDUM OF LAW in Support re: 154 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) (Entered: 05/11/2010)
156 DECLARATION of Rachel Seligman Weiss in Support re: 154 MOTION for Reconsideration /Reargument of the Court's April 26, 2010 Order.. Document filed by City of New York, Raymond W. Kelly. (Seligman, Rachel) (Entered: 05/11/2010)
157 MOTION for Attorney Fees pursuant to Court's Order dated 4/26/10. Document filed by Michael Brown(On behalf of himself and others similarly situated).(Smyth, J.) (Entered: 05/22/2010)
158 DECLARATION of J. McGregor Smyth Jr. in Support re: 157 MOTION for Attorney Fees pursuant to Court's Order dated 4/26/10.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Attachments: # 1 Exhibit A−C)(Smyth, J.) (Entered: 05/22/2010)
159 DECLARATION of Katherine Rosenfeld in Support re: 157 MOTION for Attorney Fees pursuant to Court's Order dated 4/26/10.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (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)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 21 of 28

05/22/2010 05/22/2010 07/01/2010 07/06/2010
08/04/2010 08/04/2010 08/12/2010 10/12/2010
10/27/2010

160 DECLARATION of Matthew Brinckerhoff in Support re: 157 MOTION for Attorney Fees pursuant to Court's Order dated 4/26/10.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Smyth, J.) (Entered: 05/22/2010)
161 MEMORANDUM OF LAW in Support re: 157 MOTION for Attorney Fees pursuant to Court's Order dated 4/26/10.. Document filed by Michael Brown(On behalf of himself and others similarly situated). (Smyth, J.) (Entered: 05/22/2010)
162 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)
163 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)
164 MANDATE of USCA (Certified Copy) USCA Case Number 07−3356−cv. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the certification of Rule 23(b)(3) City plaintiff class is AFFIRMED, the certification of Rule 23(b)(2) State plaintiff and defendant classes is VACATED and case is REMANDED to the district court for further proceedings in accordance with the opinion of this Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 08/03/2010. (nd) (Entered: 08/04/2010)
Transmission of USCA Mandate/Order to the District Judge re: 164 USCA Mandate,. (nd) (Entered: 08/04/2010)
165 TRANSCRIPT of proceedings held on 6/29/2010 before Judge Shira A. Scheindlin. (ab) (Entered: 08/12/2010)
166 ORDER denying 154 Motion for Reconsideration ; denying 157 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)
167 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Rachel Seligman Weiss dated 10/19/2010 re: Defendants respectfully request that the 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: 11/05/2010)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 22 of 28

11/16/2010
12/13/2010 04/06/2011 04/21/2011 04/22/2011 05/31/2011 07/26/2011

168 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)
169 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)
170 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)
171 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)
172 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)
173 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)
174 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)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 23 of 28

10/31/2011 11/29/2011 12/22/2011
02/06/2012 02/06/2012 02/22/2012
02/22/2012

175 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 10/28/2011) (ab) (Entered: 10/31/2011)
176 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)
177 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)
178 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)
179 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)
180 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 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: 180 Order,,,,,, to the Sealed Records Clerk for the sealing or unsealing of document or case. (jfe) (Entered: 02/23/2012)

Case: 1:05-cv-5442 As of: 01/24/2016 11:01 AM EST 24 of 28

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

181 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) Modified on 2/24/2012 (djc). (Entered: 02/24/2012)
182 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)
183 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)
184 NOTICE OF REDESIGNATION TO ANOTHER MAGISTRATE JUDGE. The above entitled action has been redesignated to Magistrate Judge James L. Cott. Please note that this is a reassignment of the designation only. (pgu) (Entered: 06/13/2012)
185 NOTICE OF REASSIGNMENT OF A REFERRAL TO ANOTHER MAGISTRATE JUDGE. The referral in the above entitled action has been reassigned to Magistrate Judge James L. Cott, for Settlement. Magistrate Judge Theodore H. Katz no longer referred to the case. (pgu) (Entered: 06/13/2012)
186 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)
187 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)
188 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. (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:

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10/25/2012 11/15/2012
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10/12/2012)
199 Letter addressed to Ms. Krajick from M. Brown dated 10/22/2012 re: requests that attention be granted to his requests. Document filed by Michael Brown(On behalf of himself and others similarly situated).(djc) (Entered: 12/28/2012)
189 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)
190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). Return Date set for 12/14/2012 at 04:30 PM.(Rosenfeld, Katherine) (Entered: 11/19/2012)
191 DECLARATION of April Hyduk in Support re: 190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (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)
192 DECLARATION of J. McGregor Smyth in Support re: 190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Rosenfeld, Katherine) (Entered: 11/19/2012)
193 DECLARATION of Katherine Rosenfeld in Support re: 190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Attachments: # 1 Exhibit Exhibit 1 Part 1, # 2 Exhibit Exhibit 1 Part 2, # 3 Exhibit Exhibit 2)(Rosenfeld, Katherine) (Entered: 11/19/2012)
194 DECLARATION of Matthew D. Brinckerhoff in Support re: 190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Attachments: # 1 Exhibit Exhibit AA, # 2 Exhibit Exhibit BB, # 3 Exhibit Exhibit CC)(Rosenfeld, Katherine) (Entered: 11/19/2012)

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195 MEMORANDUM OF LAW in Support re: 190 MOTION to Approve Stipulation of Settlement and Plaintiffs' Request for Attorneys' Fees and Costs.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Rosenfeld, Katherine) (Entered: 11/19/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 12/14/2012. (cd) (Entered: 12/20/2012)
197 NOTICE OF APPEARANCE by Mariana Louise Kovel on behalf of Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated) (Kovel, Mariana) (Entered: 12/17/2012)
198 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)
200 TRANSCRIPT of Proceedings re: CONFERENCE held on 12/14/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Carol Ganley, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 1/28/2013. Redacted Transcript Deadline set for 2/7/2013. Release of Transcript Restriction set for 4/8/2013.(Rodriguez, Somari) (Entered: 01/03/2013)
201 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 12/14/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 01/03/2013)
202 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. (Signed by Judge Shira A. Scheindlin on 1/3/13) (Attachments: # 1 Notice of Right to Appeal)(dt) (Entered: 01/03/2013)
203 NOTICE OF CHANGE OF ADDRESS by J. McGregor Smyth, Jr on behalf of All Plaintiffs. 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)
204 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

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06/14/2013
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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)
205 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. 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)
206 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 Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated).(Rosenfeld, Katherine) (Entered: 10/07/2013)
207 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 Michael Brown(On behalf of himself and others similarly situated), Michael Brown, Eddie Wise(on behalf of himself), Eddie Wise(on behalf of all others similarly situated). (Attachments: # 1 Text of Proposed Order)(Rosenfeld, Katherine) (Entered: 01/21/2014)
208 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)
209 MOTION for Katherine R. Rosenfeld to Withdraw as Attorney for Plaintiff and Class. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown.(Rosenfeld, Katherine) (Entered: 08/28/2014)
210 AFFIRMATION of Katherine R. Rosenfeld in Support re: 209 MOTION for Katherine R. Rosenfeld to Withdraw as Attorney for Plaintiff and Class.. Document filed by Michael Brown(On behalf of himself and others similarly situated), Michael Brown. (Rosenfeld, Katherine) (Entered: 08/28/2014)
211 MEMO ENDORSEMENT granting 209 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)

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01/14/2015 04/23/2015

212 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)
213 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)