Case 1:12-cv-02274-SAS-HBP Document 1 Filed 03/28/12 Page 1 of 52

UNITED STATES DISTRI12ûR]\l SOUTHERN DISTRICT OF NEW YORK

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JAENEAN LIGON, individually and on behalf of her minor son, J.G., FAWN BRACY, individually and on behalf of her minor son, W.B., JACQUELINE YATES, LETITIA LEDAN, ROSHEA JOHNSON, IGERON JOHNSON, JOVAN JEFFERSON, A.O., by his parent DINAH ADAMES, ABDULLAH TURNER, FERNANDO MORONTA, and CHARLES BRADLEY, individually and on behalf of a class of all others similarly situated;

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12 Civ. No.

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Plaintiffs,

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CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; POLICE OFFICER JOHNNY BLASINI; POLICE OFFICER GREGORY LOMANGINO; POLICE OFFICER JOSEPH KOCH; POLICE OFFICER IGERON RAMDEEN; POLICE OFFICER JOSEPH BERMUDEZ; POLICE OFFICER MIGUEL SANTIAGO; POLICE OFFICERS JOHN DOE 1-12;

JURY TRIAL DEMANDED ECFCASE

Defendants.

PRELIMINARY STATEMENT 1. This action, brought einbehalf of twelve N ew York City residents, one former New York City resident, and a class of similarly situated individuals, challenges the New York City Police Department's unconstitutional stop, question, search, citation, and arrest policies

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implemented pursuant to "Operation Clean Halls," a program that allows police officers to patrol inside and around thousands of private residential apartment buildings across the City. Each year this program results in thousands of illegal stops, searches, summonses, and arrests ofthose buildings' residents and their invited guests without cause.
2. The abusive stop, question, search, citation, and arrest practices of New York City Police Department ("NYPD") officers in buildings enrolled in Operation Clean Halls ("Clean Halls Buildings") stand in stark contrast to the program's professed purpose, which is to combat illegal activity in apartment buildings with records of high crime. NYPD officers routinely detain residents of Clean Halls Buildings and their visitors without individualized suspicion of unlawful activity and make arrests or issue summonses without probable cause of criminal activity.
3. For residents of Clean Halls Buildings and their visitors, merely exiting a Clean Halls Building frequently leads to being stopped, searched, and interrogated by NYPD officers on public sidewalks and in exterior courtyards. These stops typically involve full searches and questioning as to the person's reason for having been inside the building, and frequently result in arrest or the issuance of a summons if the person cannot affirmatively justify his presence to the police officer's satisfaction.
4. Such seizures also take place in the lobbies, vestibules, stairwells, hallways, and other public areas of Clean Halls Buildings, where residents are often illegally stopped, searched, questioned, issued summonses, and even arrested without cause for allegedly trespassing inside in their own buildings. They are frequently stopped and forced to produce identification while engaged in completely innocuous activities like checking their mail or taking out their garbage. To avoid arrests or summonses for trespassing, many residents of Clean Halls Buildings are
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compelled to carry identification with them whenever they exit their apartments for any purpose--including trips to the laundry room or to visit a neighbor.
5. Illegal stops inside Clean Halls Buildings sometimes occur during floor-by-floor sweeps by NYPD officers, known as vertical patrols. Upon information and belief, hundreds of thousands of vertical patrols take place annually in Clean Halls Buildings. For instance, testimony before the New York City Council Committee on Public Safety by Inspector Michael C. Phipps, the Commanding Officer of the NYPD' s Housing Borough Manhattan, indicates that the NYPD conducted approximately 240,000 vertical patrols in privately owned buildings in 2003 alone.
6. Residents of some Clean Halls Buildings are stopped, questioned, and searched by NYPD officers on a regular basis-sometimes multiple times a week. For many young men of color in particular, being searched and seized by NYPD officers in and around their homes has become normalized and is simply a routine part of their lives.
7. The NYPD's illegal stop, question, search, citation, and arrest practices in Clean Halls Buildings mirror those in properties managed by the New York City Housing Authority ("NYCHA Residences"). But while the NYPD has recently adopted new regulations and instituted limited training for officers concerning appropriate stop, search, and arrest activity at NYCHA Residences, it has ignored the problems of suspicionless stops, searches, citations, and arrests in and around Clean Halls Buildings.
8. The NYPD' s use of overzealous and baseless tactics harms not just residents of Clean Halls Buildings, but also their guests, who are often seized in and around Clean Halls Buildings by NYPD officers when they visit. Residents of some Clean Halls Buildings warn their friends, family members, and others not to visit them for fear that they will be stopped,
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questioned, searched, and issued summonses or arrested for trespassing by NYPD officers. Consequently, residents of Clean Halls Buildings are restricted in their ability to maintain familial ties, friendships, and other relationships with individuals of their choosing.
9. Upon information and belief, although Clean Halls Buildings are inhabited by N ew Yorkers of all racial backgrounds, the residents of Clean Halls Buildings are disproportionately black and Latino as compared to the City's population. Because the NYPD does not evaluate whether a building has substantial or sustained criminal activity that could justify its enrollment in Operation Clean Halls, these racial disparities persist without any meaningful correlation to actual crime levels. The NYPD selects certain Clean Halls Buildings for particularly aggressive tactics, where residents and their guests are at heightened risk of being stopped, questioned, searched, issued summonses, and arrested by NYPD officers. Upon information and belief, the residents of those targeted buildings are disproportionately black and Latino compared with the population of residents of all Clean Halls Buildings and with the population of New York City as a whole. As a result, the NYPD' s illegal stop, question, search, citation, and arrest practices in and around Clean Halls Buildings have a significant disparate impact on blacks and Latinos in their enjoyment of housing and in their receipt of municipal services connected with housing as compared to whites.
10. The NYPD's abusive practices of stopping, questioning, searching, citing, and arresting residents of Clean Halls Buildings and their visitors without adequate cause violate the United States and New York Constitutions, the Fair Housing Act, and New York common law. Plaintiffs here, who seek to represent a class of similarly situated individuals, seek a declaration that the NYPD' s practices are unlawful and an injunction against those practices.
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PARTIES Plaintiffs 11. Plaintiff JAENEAN LIGON is a black resident of the Bronx, New York. 12. Plaintiff lG. is 17 years old and appears in this action by and through his mother, JAENEAN LIGON. J.G. is black and lives in the Bronx, New York. 13. Plaintiff FAWN BRACY is a black resident ofthe Bronx, New York. 14. PlaintiffW.B. is 17 years old and appears in this action by and through his mother, FAWN BRACY. W.B. is black and lives in the Bronx, New York. 15. Plaintiff JACQUELINE YATES is a black resident of the Bronx, New York. 16. Plaintiff LETITIA LEDAN is a black resident of the Bronx, New York. 17. Plaintiff ROSHEA JOHNSON is a black resident of Schenectady, New York. 18. PlaintiffKIERON JOHNSON is ablade resident of the Bronx, New York. 19. Plaintiff JOVAN JEFFERSON is a black resident of the Bronx, New York. 20. Plaintiff A.O. is 17 years old and appears in this action by and through his mother, DINAH ADAMES. A.O. is Latino and lives in the Bronx, New York. 21. Plaintiff ABDULLAH TURNER is a black resident of the Bronx, New York. 22. Plaintiff FERNANDO MORONTA is a Latino resident ofthe Bronx, New York. 23. Plaintiff CHARLES BRADLEY is a black resident of the Bronx, New York. Defendants 24. Defendant THE CITY OF NEW YORK is a municipal corporation duly incorporated and existing pursuant to the laws of the State of New York. The City of New York has established and maintains the NYPD as a constituent department or agency.
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25. Defendant RAYMOND W. KELLY is the Police Commissioner for the City of New York, with supervisory authority over all officers and operations of the NYPD, including responsibility for training, recruiting and managing all NYPD officers. He is sued in his official capacity.
26. Defendant Police Officer JOHNNY BLASINI is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
27. Defendant Police Officer GREGORY LOMANGINO is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
28. Defendant Police Officer JOSEPH KOCH is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
29. Defendant Police Officer KIERON RAMDEEN is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
30. Defendant Police Officer JOSEPH BERMUDEZ is or was an employee of the NYPD at all relevant times. He is sued in his official and individual capacities.
31. Defendants JOHN DOES 1-12 are members of the NYPD whose full identities are not known to the Plaintiffs, but who are officers who participated in the encounters with the Plaintiffs described in paragraphs 36-142, infra. They are all sued in their official and individual capacities.
FACTS Operation Clean Halls 32. Operation Clean Halls is a citywide program operated by the NYPD that has existed in some form since 1991. In some Bronx neighborhoods, virtually every private apartment building is enrolled in the program, with hundreds of buildings in any given police
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precinct. In Manhattan alone, there are at least 3,895 Clean Halls Buildings. The program operates under the names "Trespass Affidavit Program" and "Formal Trespass Affidavit Program" in Manhattan and Brooklyn, respectively. (All references in this complaint to "Clean Halls" or "Operation Clean Halls" refer to all such programs in all five boroughs.)
33. Enrollment of a private residential building in Operation Clean Halls is accomplished simply by virtue of an executed "Clean Halls affidavit"-a boilerplate fonn on which a building's address is filled in that is signed by a landlord or managing agent. Clean Halls affidavits state that NYPD officers have permission to enter enrolled buildings and arrest anyone found within who is engaged in criminal activity. In the Bronx, Clean Halls affidavits confer authority on NYPD officers to enter enrolled buildings "into perpetuity."
34. The NYPD has a widespread practice of stopping, questioning, and searching those they encounter in Clean Halls Buildings without any suspicion of unlawful behavior, and arresting them or issuing summonses without probable cause. (A summons is sometimes referred to herein as a "citation.") All tenants of New York City's thousands of Clean Halls Buildings, their guests, and anyone in close proximity to the buildings are at risk of being subjected to these unlawful practices.
35. The rights of the individual Plaintiffs and the class they seek to represent have been infringed by the NYPD's practices of unlawfully stopping, questioning, searching, arresting, and issuing summonses pursuant to Operation Clean Halls.
Named Plaintiffs Jaenean Ligon & J.G.
36. Jaenean Ligon is a 40-year-old black woman who has lived for the past seven years at 290 East 163rd Street in the Bronx, a building that is enrolled in Operation Clean Halls.
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She lives with her three sons, lG., J.A.G., and Jerome Grant. lG. and J.A.G., twins, are 17 years old. Jerome is 19 years old.
37. Ms. Ligon and lG. have been unlawfully seized, and lG. has been unlawfully searched and arrested, pursuant to Operation Clean Halls.
38. Ms. Ligon and her sons have been stopped, questioned, and searched without cause by NYPD officers in and around their building. Police officers typically stop Ms. Ligon's sons in front of their own home on East 163rd Street, at other locations on their own block, and on surrounding blocks multiple times a week. During the course of such stops, they are usually questioned about where they live and where they are going, and are searched without cause. Many of these stops have been made in connection to their building's enrollment in Operation Clean Halls.
39. In August 2011, Ms. Ligon asked J.G. to go to a store near their home to purchase ketchup for use with the dinner she was preparing. J.G. walked to the store, purchased the ketchup, and returned to their apartment building. Four officers, Jolm Does 1-4, two in plainclothes and two in uniforms, stopped J.G. without cause just outside the front door of his building and asked him why he was going inside the building. J.G. responded that he lived in the building and produced identification. He told the officers that he had just returned from the store and showed the officers the bag in his hand, which contained ketchup. One officer asked J.G. to identify the apartment in which he lived. lG. responded, telling the officer his family's apartment number.
40. The officers then rang the bell to Ms. Ligon's apartment. Over the intercom, Ms. Ligon heard a man say that he was a police officer, and he needed her to come down to identify her son. Terrified that lG. was injured or dead, Ms. Ligon ran out of the apartment to find out
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what had happened to J.G. As she approached the lobby she saw J.G. standing just outside the vestibule near the mailboxes, surrounded by four officers. She collapsed and began weeping. One officer began laughing, asked Ms. Ligon if J.G. was her son, and handed her the ketchup.
41. During the 2011 July 4th holiday weekend, Ms. Ligon and J.AG. were stopped without justification by NYPD officers shortly after they exited their building. They got into their car, and as Ms. Ligon drove down their block, two officers in an unmarked vehicle signaled for Ms. Ligon to pull over. She complied with the order. The officers asked for permission to search J.AG.'s backpack. Ms. Ligon consented to the search, during which the officers found J.AG.'s gym shorts and driver's manual. After joking about lAG.'s driving skills, the officers let Ms. Ligon and J.AG. go. Upon information and belief, the only basis for the stop and search was their emergence from their building, which is enrolled in Operation Clean Halls.
42. Ms. Ligon's son Jerome was stopped without cause in the fall of 2010, as he retumed home from visiting Ms. Ligon's father, his grandfather. Ms. Ligon's father drove Jerome home, and when they arrived, Jerome exited the vehicle. While his grandfather looked for a parking spot, Jerome approached the front door of his family's building. Two NYPD officers approached Jerome, asked him why he was entering the building and ordered him to produce identification. Ms. Ligon's father saw that Jerome had been stopped, exited his vehicle, identified himself as Jerome's grandfather, and asked the officers why they had stopped his grandson. The officers proceeded to search Jerome without cause. The officers then let Jerome enter the building and Ms. Ligon's father left.
43. Ms. Ligon, J.G. and their friends and relatives fear and face a substantial risk of being unlawfully stopped, questioned, searched, and arrested or cited for trespassing in and
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around 290 E. 163rd Street by NYPD officers in the future because of the building's enrollment in Operation Clean Halls. Fawn Bracy & W.B.
44. Fawn Bracy is a 50-year-old black woman who has lived for the past 15 years at 363 East 163rd Street in the Bronx, a building that is enrolled in Operation Clean Halls. She lives with her 17-year-old son, W.B.
45. W.B. has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
46. W.B. is stopped unlawfully multiple times every week by NYPD officers in and around his building, particularly in the courtyard outside the building and on the sidewalk in front ofthe building. He is also regularly stopped unlawfully by NYPD officers in the vestibule near the building's mailboxes and in the building's stairwells.
47. During the course of a stop, W.B. typically is asked whether he lives in the building, ordered to produce identification, and searched, despite the lack of reasonable suspicion of any crime.
48. Police harassment in and around Ms. Bracy and W.B.'s building extends to adults as well as teenagers. Adults who live there cannot even gather in the building's courtyard. When Ms. Bracy gathers there with friends and neighbors, police officers sometimes approach them, tell them that they are not allowed to sit in the courtyard, and order them without cause to return to their apartments.
49. As a result of interactions like these with police officers in her own building, Ms. Bracy's relatives and friends are less willing to visit her at her home. She therefore receives few
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visitors at her home and is unable to socialize with her friends and neighbors in or around her apartment building.
50. Ms. Bracy's sister and nephew, who are W.B.'s aunt and cousin, used to visit Ms. Bracy and W.B. at their home regularly but in recent years have been stopped often by NYPD officers in the course of those visits. In an effort to avoid contact with police officers in Ms. Bracy's building, they now visit far less frequently.
51. Other family and friends seeking to visit Ms. Bracy and W.B. have also been unlawfully stopped, questioned, and searched in and around 363 E. 163rd Street.
52. Ms. Bracy, W.B., and their friends and relatives fear and face a substantial risk of being unlawfully stopped, questioned, searched, and arrested or cited for trespassing in and around 363 E. 163rd Street by NYPD officers in the future due to the building's enrollment in Operation Clean Halls. W.B. &J.G.
53. W.B. and J.G., who, as noted above, reside in Clean Halls Buildings, have also been subjected to suspicionless stops away from their block pursuant to Operation Clean Halls.
54. On June 15,2011, W.B. and lG. were unlawfully stopped and arrested for trespassing while leaving the apartment of their friend, Alex Lebron. Mr. Lebron's apartment is located at 1106 College Avenue in the Bronx, a building that is enrolled in Operation Clean Halls.
55. At around 5:00 p.m., shortly after arriving at Mr. Lebron's apartment, W.B., J.G., and their friend left to go to the store, intending to return immediately thereafter. Mr. Lebron stayed in the apartment.
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56. As W.B., lG., and their friend walked downstairs from Mr. Lebron's apartment, they encountered two NYPD officers, John Does 5-6, who were walking up the stairs. The officers ordered the three teenagers to produce identification. After seeing that the identifications indicated that the young men did not live in the building, the officers handcuffed all three and told them that they would be placed under arrest for trespassing.
57. W.B., lG., and their friend told the officers that they were visiting their friend Alex and told them Mr. Lebron's apartment number. While one officer remained with the teenagers in the stairwell, the other officer walked up to Mr. Lebron's floor and knocked on the wall of Mr. Lebron's apartment. Mr. Lebron's mother answered the door, and the officer showed her the identification cards of the three teenagers and asked whether she knew them. Mr. Lebron's mother replied that she did and that they had just visited her apartment.
58. After the officers left her door, Mr. Lebron's mother informed Mr. Lebron that his friends had been stopped by police officers. Mr. Lebron went downstairs in an attempt to intervene and prevent their arrest. Mr. Lebron encountered his handcuffed friends and the two police officers in the lobby of his building. He told the officers that he lived in the building and that the teens had been visiting him. The officers responded that it was "too late" and placed the three young men in a police van.
59. The arresting officers took W.B., J.G., and their friend to the 44th Precinct, where they were locked in a cell. After approximately two hours, they were given summonses for trespassing and released. The trespassing charges against W.B., J.G., and their friend were later dismissed.
60. W.B. and lG. plan to return to 1106 College Avenue to visit Mr. Lebron. They fear and face a substantial risk of being unlawfully stopped, questioned, searched and arrested or
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cited for trespassing there by NYPD officers in the future due to the building's enrollment in Operation Clean Halls. Jacqueline Yates
61. Jacqueline Yates is a 53-year-old black woman who works at a Head Start center with pre-schoolers in the Bronx. She has previously worked as a New York State correctional officer.
62. Ms. Yates has lived for the past 14 years at 361 East l63rd Street in the Bronx, a building that is enrolled in Operation Clean Halls. She lives with her two sons, l8-year-old Artemus Robinson, and l-l-year-old M.R. Clinton Robinson, Artemus and M.R.'s father, is a frequent visitor to Ms. Yates's home.
63. Artemus and Clinton Robinson are frequently stopped without cause by NYPD officers in and around 361 East l63rd Street, particularly on the sidewalks and in the building's courtyard. They are also regularly stopped without cause by NYPD officers in the building's stairwells and vestibule, where the building's mailboxes are located. M.R. has been approached by NYPD officers in and around the building and ordered to return to his apartment at least three or four times.
64. During such stops, Artemus and Clinton are usually asked whether they are residents of the building and ordered to produce identification. They are also usually searched without cause.
65. For example, the family was subjected to one incident with the police at their home in late 2010. As the family was about to depart for a baby shower, NYPD officers stopped Artemus without cause in the vestibule of 361 East I 63rd Street. Clinton saw NYPD officers speaking with Artemus as he descended the stairs to exit the building and inquired as to why the
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officers had stopped his son. The officers then instructed Clinton to stand against the wall and frisked him. The officers then released Artemus but issued Clinton a summons for possession of an open container in a public place, even though the container he was holding was closed, not open.
66. Police harassment in and around Ms. Yates's building is so pervasive that adults who live there cannot gather in their own courtyard. When Ms. Yates and Clinton Robinson gather with their friends and neighbors in their building's courtyard, police officers sometimes approach them and tell them that they are not allowed to sit in the courtyard and order them to return to their apartments.
67. As a result of interactions like these with police officers in her own building, Ms. Yates's relatives and friends are less willing to visit her at her home. She therefore receives few visitors at her home and is unable to socialize with her friends and neighbors in and around her apartment.
68. Some family members and friends of Ms. Yates and her children refrain from visiting them because they fear being stopped or otherwise harassed by police officers in and around their building. Among Ms. Yates's cousins, those who are black men are particularly reluctant to visit. At least two have been stopped and searched without cause by NYPD officers on the sidewalk adjacent to Ms. Yates's building and in the building's courtyard.
69. Ms. Yates, her children, Clinton Robinson, and her friends and relatives fear and face a substantial risk of being unlawfully stopped, questioned, searched and arrested or cited for trespassing in or around 361 E. 163rd Street by NYPD officers in the future due to the building's enrollment in Operation Clean Halls.
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Letitia Ledan & Roshea J011l1son 70. Letitia Ledan is a 41-year-old black woman who has lived since 2001 in Building
30 of River Park Towers, a private residential complex in the Bronx that is enrolled in Operation Clean Halls. Ms. Ledan works at Picture the Homeless, a non-profit organization.
71. Roshea Johnson, a 36-year-old black man, is Ms. Ledan's brother and a frequent invited guest of Ms. Ledan. Mr. Johnson previously lived in New York City and resided with Ms. Ledan at River Park Towers for over a year. He moved upstate over a year ago, in part to escape the constant harassment he faced from the NYPD. He currently resides in Schenectady, New York.
72. Ms. Ledan and Mr. Johnson have been unlawfully seized and searched, and Mr. Johnson has been unlawfully arrested, pursuant to Operation Clean Halls.
73. Ms. Ledan has often been stopped while in and around the building she lives in, without reasonable suspicion of any crime. She has been stopped while checking her mail, walking out of her building, on her way to the elevator in the lobby of her building, and on the sidewalk outside of her building. During such stops, police officers typically ask Ms. Ledan whether she lives in the complex and order her to show identification.
74. When Mr. Johnson resided in River Park Towers, he was frequently stopped without cause by NYPD officers in and around his building, usually three to four times per week over the course ofthe time he lived there. In the course of those stops, he was typically asked whether he lived in the building, ordered to produce identification, and searched, despite the lack of reasonable suspicion of any unlawful activity.
75. In June 2010, Mr. Johnson was residing elsewhere in New York City but stored most of his belongings at Ms. Ledan's apartment in River Park Towers. He had an open
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invitation from Ms. Ledan to visit. One day that month, he went to Ms. Ledan's apartment to retrieve some clothes he had left there.
76. On his way out ofthe building, as Mr. Johnson walked on the pathway leading away from Building 30, a black van pulled up in front of him. Two plain-clothes NYPD officers, Jolm Does 7-8, emerged from the van and asked him what he was doing. Mr. Johnson replied that he was coming from his sister's house, where he had gone to change his clothes but that she was not home at the moment. The officers asked if he had anything on him and searched him. The officers told Mr. Jalms on that he was not supposed to be there and that he was trespassing. Mr. Johnson said he could show the officers mail in his pocket indicating that he was authorized to be there. He tried to reach into his pocket to show the mail, but the officers refused to look at it. Instead, they handcuffed Mr. Johnson and placed him in the police van. A third NYPD officer who was in unifonn was also present.
77. After placing Mr. Johnson in the van, the officers drove around with him, during which time they interrogated him about drugs and guns. Mr. Johnson repeatedly insisted that he had no information about those topics. After driving around for approximately 30 minutes, the officers stopped the van, unfastened the handcuffs, and released Mr. Johnson onto the street. He was never formally arrested or charged with any crime.
78. Since moving away from New York City, Mr. Johnson retums approximately three times a year and stays with Ms. Ledan in River Park Towers. During those visits, he tries to avoid walking outside any more than is necessary, out of fear that he could be harassed or detained by NYPD officers.
79. Other relatives and friends of Ms. Ledan have often been stopped and ordered to show identification by NYPD officers while coming to visit her without any apparent basis. For
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example, another of Ms. Ledan's brothers, Maurice Johnson, used to visit her regularly and was frequently stopped without cause by police officers during those visits. As a result, he is no longer comfortable visiting Ms. Ledan at her apartment and has not done so in approximately one year.
80. Ms. Ledan, Mr. Johnson, and their friends and relatives fear and face a substantial risk of being unlawfully stopped, questioned, searched, and arrested or cited for trespassing in or around River Park Towers by NYPD officers in the future due to the buildings' enrollment in Operation Clean Halls. Kieron Jolmson & Jovan Jefferson
81. Kieron Johnson is a 21-year-old black man who lives in the Bronx. He resides with his wife, child, and mother-in-law at 1515 Selwyn Avenue, a building that is enrolled in Operation Clean Halls. He has resided there for two years; prior to that he lived for almost ten years in a private house on the same block. He is enrolled in a G.E.D. program at the nonprofit Bronxworks.
82. Mr. Johnson has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
83. Mr. Johnson is stopped, searched, and detained without cause by NYPD officers on the block where he resides between two and six times per week. Two particular officers from the 44th Precinct, Jolm Doe 9 (whose last name is Marquez) and John Doe 10 (whose last name is Rodriguez), frequently stop him even though they know that he resides on the block. NYPD officers also stop him while he is merely walking past buildings enrolled in Operation Clean Halls.
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84. For example, in the summer of2011, a NYPD officer stopped and searched Mr. Johnson while he was entering 1515 Selwyn Avenue, the building where he lives. He was ordered to produce identification even though he told the officer that he lived in the building. The officer took Mr. Johnson to his apartment, where his wife answered the door and verified that Mr. Johnson lived there. The officer then departed.
85. Mr. Johnson's relatives and friends are sometimes stopped, questioned, and searched without cause in and around his building while visiting him.
86. Mr. Johnson has also been stopped, questioned, and searched without cause by NYPD officers numerous times while visiting friends in Clean Halls Buildings on his block. On multiple occasions he has been unlawfully arrested or cited by NYPD officers for trespassing.
87. Jovan Jefferson is a 20-year-old black man who lives in the Bronx. He will soon begin an internship at the nonprofit Bronxworks, and is also enrolled in an online university. He lives with his mother and 13-year-old brother at 1546 Selwyn Avenue in the Bronx, a building that is enrolled in Operation Clean Halls. Mr. Jefferson has lived in that building since he was born.
88. Mr. Jefferson has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
89. NYPD officers have frequently stationed themselves behind an elevator in the lobby of 1546 Selwyn Avenue, emerging when someone enters the lobby through the building's main entrance. The person who enters the lobby is typically stopped, ordered to produce identification, questioned, and sometimes searched, cited, or arrested. NYPD officers also routinely patrol the sidewalk immediately in front of 1546 Selwyn Avenue, where they
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frequently stop, question, and search individuals, and sometimes cite or arrest them for trespassing.
90. Mr. Jefferson has been stopped without cause by police officers inside his own building on multiple occasions, including several times by John Doe 9 and Jahn Doe 10. Typically, the officers who stop him order him to produce identification and search him.
91. Mr. Jefferson's relatives and friends are frequently stopped, questioned, and searched without cause in the lobby of his building while visiting him, sometimes even while accompanied by Mr. Jefferson.
92. Approximately two to three times every month, Mr. Jefferson is unlawfully stopped and asked for identification by NYPD officers outside his building, outside his neighbor's buildings on his block, or while visiting friends who live in Clean Halls Buildings on his block. The police often search him without cause during these stops. For example, one day in early 2012 the police demanded that Mr. Jefferson take offhis shoes in the middle of the street and searched between his toes. Mr. Jefferson is often stopped by NYPD officers while merely walking past Clean Halls Buildings. NYPD officers also occasionally stop and question Mr. Jefferson's 13-year-old brother on the sidewalk outside of their building.
93. In approximately early 2009, when Mr. Jefferson was a junior in high school, NYPD officers arrested him for trespassing in his own building. As Mr. Jefferson retumed to his apartment to change clothes so he could play basketball with friends, NYPD officers stopped him without cause as he was opening the front door of his building and ordered him to produce identification. Mr. Jefferson did not have identification with him but told the officers he lived in the building and offered to go up to his apartment to get his identification. The officers did not allow Mr. Jefferson to get his identification. They instead told him he was being "detained" for
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trespassing, handcuffed him, and placed him in a police van. Mr. Jefferson's mother leamed that he was being arrested and ran downstairs to intervene. She pleaded with the officers, explaining that Mr. Jefferson was her son and lived in the building. The officers told her that it was "too late" and took Mr. Jefferson to the precinct. Mr. Jefferson spent three nights in police custody and missed school as a result. All charges against him were dismissed.
94. In another incident sometime in 2009, NYPD officers unlawfully stopped, searched, and questioned Kieran Johnson at 1546 Selwyn Avenue as he was going to visit Mr. Jefferson. Mr. Jefferson was not home and therefore could not vouch for Mr. Johnson's standing invitation to come over to his friend's apartment. Mr. Johnson was issued a summons for trespassing.
95. In another incident in or around the summer of20l0, John Doe 10 and other NYPD officers again stopped Mr. Jefferson without cause in his own building. The incident began when a friend of Mr. Jefferson's arrived to visit him and was unlawfully stopped by NYPD officers in the lobby of Mr. Jefferson's building. Without verifying whether he was indeed a legitimate visitor to 1546 Selwyn Avenue, these officers accused Mr. Jefferson's friend of trespassing and handcuffed him. The friend's girlfriend saw what was happening from outside the building and called Mr. Jefferson in his apartment to ask him to come down and help. Mr. Jefferson rushed down to the lobby with his older brother Jamel. When Mr. Jefferson protested to the officers that they were arresting his visitor, Jolm Doe 10 unlawfully detained and searched him. Jamel, who is in the Navy, complained that the officers' conduct was illegal and showed the officers his Navy identification card. Only at that point did the officers allow Mr. Jefferson, Jamel, and the friend to leave.
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96. In another incident an May 3,2011, Mr. Jefferson anived at his building with Mr. Johnson and another friend. While their friend remained outside, Mr. Jefferson and Mr. Jalms on entered the lobby ofMr. Jefferson's building. Jolm Doe 9 and John Doe 10, along with Officer Johnny Blasini and another officer, Jahn Doe 11, stepped out from behind the elevator in the lobby and stopped Mr. Jefferson and Mr. Johnson without cause. Mr. Jefferson told the officers that he lived in the building and John Doe 10 ordered him to go to his apartment. After telling the officers that Mr. Johnson was his invited guest, Mr. Jefferson complied with the order. The four officers then arrested Mr. Johnson for trespassing even though he had entered the building with Mr. Jefferson, whom the officers knew was a resident. The NYPD held Mr. Johnson at the 44th Precinct for seven hours and released him with a Desk Appearance Ticket that charged him with trespassing. Mr. Jefferson wrote a letter attesting that Mr. Johnson was his invited guest and attended Mr. Johnson's arraignment, The trespassing charge against Mr. Johnson was dismissed by the court on July 12, 2011.
97. As a result of incidents like these, Mr. Jefferson is afraid of inviting friends and relatives to his apartment, and has largely stopped doing so.
98. Mr. Jefferson and his invited guests fear and face a substantial risk of being unlawfully stopped, questioned, searched, cited and arrested in and around 1546 Selwyn Avenue and other Clean Halls Buildings on his block by NYPD· officers in the future due to the buildings' enrollment in Operation Clean Halls.
99. Mr. Johnson, his family members, and invited guests fear and face a substantial risk of being unlawfully stopped, questioned, searched, and arrested in and around 1515 Selwyn Avenue, 1546 Selwyn Avenue, and other Clean Halls Buildings on his block by NYPD officers
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in the future due to the buildings' enrollment in Operation Clean Halls. He is afraid to visit Mr. Jefferson at 1515 Selwyn Avenue unless Mr. Jefferson is with him and carrying identification. A.a.
100. A.a. is a l7-year-old Latino male who resides in the Bronx. 101. A.a. has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls. 102. On February 19, 2011, A.a. and two friends met after school and visited another friend, Mr. Justin Drinkwine, in his apartment in the Far Rockaway neighborhood of Queens. The apartment building, which is located at 22-59 Dix Avenue, is enrolled in Operation Clean Halls. Within minutes ofleaving Mr. Drinkwine's apartment, A.a. and his friends were approached and stopped on the sidewalk outside 22-59 Dix Avenue by NYPD Police Officers Gregory Lomangino and Joseph Koch. At the time, the three teenaged boys were merely walking alongside the building and were not engaged in any activity that might indicate or imply that criminal activity was afoot. 103. Officer Lomangino and Officer Koch accused the three of trespassing within the residential apartment building located at 22-59 Dix Avenue. One of the boys explained that they had just left 22-59 Dix Avenue where their friend resided and identified Mr. Drinkwine's apartment number. Officer Lomangino detained A.a. and his friends on the sidewalk while Officer Koch walked away from the group, heading in the direction of the building located at 2259 Dix Avenue. 104. During their detention and before conducting any investigation into whether A.a. or his friends had, in fact, been visiting a friend at the Dix Avenue apartment, Officer Lomangino told the three teenagers that they would be arrested, When A.a. and his friends
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asked why they were being arrested, Officer Lomangino pointed at the Operation Clean Halls sign on the building and said, "You can't fucking read that sign?"
105. Within minutes, Officer Koch retumed, stating that he had gone into the building at 22-59 Dix Avenue and no one had answered the door at the apartment A.O. and his friends had identified. A.O. explained that the teenagers had just been inside the apartment, described the various people present in the apartment, and asked whether the officer had seen those people. P.O Koch promptly changed his story, asserting that he had spoken with a man inside the apartment who informed him that no one had just left the apartment.
106. The officers then handcuffed A.O. and his friends and transported them to the 101st Precinct. The boys were held at the precinct for several hours and thereafter issued Desk Appearance Tickets charging them with criminal trespass.
107. A.O. complied with the instruction on the Desk Appearance Ticket to appear in Queens Criminal Court on March 3, 2011. When he arrived, he was informed that the Queens County District Attomey's Office had declined to prosecute his case, as well as the cases of his two friends. Abdullah Tumer
108. Abdullah Tumer is a 24-year-old black man who lives at 2249 Morris Avenue in the Bronx, a building that is enrolled in Operation Clean Halls. Mr. Tumer attends a G.E.D. program and works as a volunteer at St. Bamabas Hospital in the Bronx.
109. Mr. Tumer has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
110. In the early evening on March 26,2011, Mr. Turner left his apartment with his friend Angie Trinidad to go to an engagement party at their friend Jessica' s home.
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111. On the way to the engagement party, they stopped at the apartment building of a friend of Ms. Trinidad's so Ms. Trinidad could retum a sweater to that friend. That building, which is located at 2020 Davidson Avenue in the Bronx, is enrolled in Operation Clean Halls.
112. Ms. Trinidad went inside the building to her friend's apartment while Mr. Turner remained outside. Mr. Turner waited just outside the door of the building and called another friend on his cell phone.
113. A few minutes after Ms. Trinidad had entered the building, three NYPD officers, including Defendants Officer Kieron Ramdeen and John Doe 12, anived and approached Mr. Turner without cause. One of the two defendant-officers snatched Mr. Tumer's cell phone, which was still connected with his friend, out of his hand. The officer asked Mr. Turner what he was doing and whether he knew someone in the building. Mr. Turner responded that he was waiting for a friend who was inside the building. The officer ordered Mr. Turner to produce identification, which he did. The officer looked at the identification and said that Mr. Turner did not live at the building, to which Mr. Turner responded, "I know, I'm waiting for my friend." That officer then went inside with another officer (not named as a defendant), taking Mr. Turner's cell phone and identification with him.
114. Mr. Turner remained outside with the second defendant-officer, who continued to question him about his presence near the building. While that officer was questioning Mr. Turner, Ms. Trinidad came out of building, and Mr. Turner told the officer that she was the friend for whom he was waiting. The officer then radioed the other two officers, who returned from inside the building. The officers ordered Ms. Trinidad to show identification and questioned her.
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115. While the other officers questioned Ms. Trinidad, the first defendant-officer approached Mr. Turner, pointed to the Operation Clean Halls sign on the building, and said, "You see that? You're trespassing." He then handcuffed Mr. Turner and arrested him for trespassing. At no time had Mr. Turner entered the lobby or any other part of the building.
116. Mr. Turner was taken to the 46th Precinct and then to Central Booking. He was held for a total of approximately 24 hours before being released. Mr. Turner was charged with trespassing.
117. Mr. Turner appeared in court eight times before the prosecution voluntarily dismissed the trespassing charges against him on February 28,2012. Each appearance required Mr. Turner to spend between three and six hours at the court and often to miss school or work.
118. Mr. Turner has also been subjected to police harassment in his own building due to its enrollment in Operation Clean Halls. For example, one night in late 2011, Mr. Turner left his apartment with his younger brother, his friend, and his friend's nephew. The four walked through the courtyard oftheir apartment building and onto the sidewalk, on their way to a store to buy food. Three NYPD officers watched Mr. Turner and his companions as they walked through the courtyard and the officers approached them once they reached the sidewalk. The officers stopped them and asked what they were doing in the courtyard. Mr. Turner told the officers that he lived in the building, but the officers told him and his companions that they were not allowed to stand in the courtyard. The officers further stated that they were going to leave and then return shortly and that the four had better not be in the courtyard when the officers returned. Mr. Turner and his companions then proceeded to walk to the store as they had intended, and the officers followed slowly in a car until they entered the store.
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119. Mr. Turner and his friends and relatives fear and face a substantial risk of being unlawfully stopped, questioned and arrested or cited for trespassing in or around 2249 Morris Avenue by NYPD officers in the future due to the building's enrollment in Operation Clean Halls. Fernando Moronta
120. Fernando Moronta is a 35-year-old Latino man who resides at 2035 Marmion Avenue in the Bronx, a building that is enrolled in Operation Clean Halls. Mr. Moronta works as a store manager.
121. Mr. Moronta has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
122. On the afternoon of December 6, 2010, Mr. Moronta was walking home carrying pizza for dÍ1U1erwith his girlfriend. Mr. Moronta ran into a friend outside ofthe friend's apartment building at 2082 Crotona Parkway, a building around the corner from his own home that is also enrolled in Operation Clean Halls. Mr. Moronta said hello and shook his friend's hand as the friend entered the building. Mr. Moronta did not enter the building.
123. NYPD officer Joseph Bermudez then approached Mr. Moronta and asked, "What did you just sell him?" The officer told him that he did not care about marijuana, just crack and heroin. Mr. Moronta responded that he had not sold his friend anything and that he did not have any drugs on him. The officer then frisked Mr. Moronta and searched his pockets three times without any justification. He then ordered him to "go inside" to the lobby of 2082 Crotona Parkway. Mr. Moronta complied with the order and entered the lobby.
124. Once inside, the officer ordered Mr. Moronta to sit on the ground. Two other NYPD officers in the lobby stopped and searched two other people. After a few minutes, Officer
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Bermudez told him to stand up with his hands against the wall. Mr. Maranta complied, and the officer searched him again.
125. At that point, Mr. Maranta became upset that he was being harassed and asked Officer Bermudez why he was treating him that way. Mr. Moronta reiterated that he did not have any drugs and even took offhis shoes to demonstrate to the officer that he was not hiding any contraband. Officer Bermudez then cursed at Mr. Moranta, handcuffed him, and told him he was under arrest for trespassing.
126. At no time during the course of this encounter did Officer Bermudez find any contraband on Mr. Maranta. At no time did Mr. Maranta enter the building except when he was ordered to do so by Officer Bermudez.
127. Mr. Maranta was taken to the 48th Precinct and then to Central Booking. He was held for a total of approximately 24 hours before being released.
128. Mr. Maranta was charged with trespassing. He pled not guilty, and after ten court appearances his case was adjourned in contemplation of dismissal with immediate sealing on December 14,2011.
129. On another occasion, in the winter of 20 10, Mr. Moronta visited his brother at his brother's apartment at 1453 Walton Avenue, a building that is enrolled in Operation Clean Halls. Immediately after Mr. Maranta exited the building, NYPD officers pulled up in a vehicle, stopped him without cause, and asked what he was doing in the building. Mr. Maranta responded that he had visited his brother. The officers asked where his brother lived, and Mr. Maranta told them the apartment number.
130. The officers then ordered Mr. Maranta to accompany them to his brother's apartment to verify that he had been visiting his brother. Mr. Maranta took the elevator with
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approximately six officers to his brother's apartment on the sixth floor, where his brother verified that Mr. Moronta was in fact his brother and had just visited him. The officers then accompanied Mr. Moronta back downstairs and allowed him to leave. Mr. Moronta was not charged with any offense.
131. Mr. Moronta has also been unlawfully stopped outside of his own apartment building on several occasions. During such stops, officers typically ask him what he is doing and why he is standing in front of his building, and allow him to leave only once they are satisfied with his justification for his presence.
132. Mr. Moronta and his friends and relatives face a substantial risk of being unlawfully stopped, questioned, searched, and arrested or cited for trespassing in or around 2035 Mannion Avenue by NYPD officers in the future due to the building's enrollment in Operation Clean Halls. Charles Bradley
133. Charles Bradley is a 52-year-old black man who lives in the Bronx. He holds a security guard license issued by New York State and worked as a security officer at an apartment complex in the Bronx until January 2012. He is currently training for a new job.
134. Mr. Bradley has been unlawfully seized, searched, and arrested pursuant to Operation Clean Halls.
135. Mr. Bradley's former fiancée resides at 1527 Taylor Avenue in the Bronx, a building that is enrolled in Operation Clean Halls. Mr. Bradley previously lived with his fiancée in that building but has since moved to his own apartment.
136. On May 3, 2011, Mr. Bradley made arrangements to meet his fiancée at her apartment. Around 5:00 p.m. that day, Mr. Bradley went to her building. Another tenant who
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knew Mr. Bradley unlocked the door for him. Mr. Bradley proceeded to his fiancee's apartment on the fifth floor. He knocked on the apartment door, but there was no answer. Mr. Bradley then left the building and went outside. Mr. Bradley waited on the sidewalk outside of the building.
137. While Mr. Bradley was waiting for his fiancée to arrive home, an NYPD van drove up and stopped in front ofthe building. Police Officer Miguel Santiago, who was seated in the van, whistled at Mr. Bradley and ordered him to approach the van. Mr. Bradley walked toward the police van.
138. Officer Santiago asked Mr. Bradley what he was doing. Mr. Bradley responded that he was visiting his fiancée. Officer Santiago then searched through Mr. Bradley's pockets and ordered him to produce identification. Mr. Bradley said that he was a security officer and did not have anything on him. Officer Santiago then said, "You want to act like a fucking animal? Fuck that. You're going inside." He then arrested Mr. Bradley for trespassing.
139. Mr. Bradley was put in the police van and brought to the 43rd Precinct, where Officer Santiago strip-searched him. He was held for approximately three hours and then issued a Desk Appearance Ticket that charged him with trespassing.
140. Shortly after his arrest, Mr. Bradley feared that his job as a security guard was in jeopardy because the New York Department of State, which had issued his security guard license, sent him a letter indicating that he would be deemed ineligible to register as a security guard ifhe did not submit documentation of the status of his trespassing prosecution within 30 days. lfhe became ineligible to register as a security guard, Mr. Bradley would have been fired by his employer.
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141. Mr. Bradley was required to visit the Bronx District Attomey' s office to request that his case be heard as soon as possible so he could ensure that his security guard license would not be jeopardized. He submitted to the District Attomey a letter from his fiancée indicating that she lived at 1527 Taylor Avenue and that Mr. Bradley had been there to visit her when he was arrested. The Bronx District Attomey declined to prosecute the case on July 13, 2011.
142. Shortly thereafter, Mr. Bradley secured documentation from the criminal court indicating that the case had been dismissed. He then went to his employer's office in Manhattan, where he presented the certificate of disposition to his employer's human resources department to ensure that his job was no longer endangered by his an-est.
143. Each of the Plaintiffs has been injured proximately and directly by the Defendants, including being subjected to unlawful seizures, searches, and false charges, deprivation of liberty, interference with intimate relationships, infringement of their right to enjoy housing and to receive municipal services related to housing.
The NYPD Has a Practice of Stopping, Questioning, Searching, and Arresting Residents of Clean Halls Buildings and their Visitors Without Justification
144. The experiences of the individual Plaintiffs do not constitute isolated incidents. Rather, they are part of a larger pattem and practice that exists within private residential buildings enrolled in Operation Clean Halls. The challenged policies and practices are so widespread and frequent as to constitute a custom and usage of the NYPD.
145. The City of New York and Commissioner Kelly (together, "City-Defendants") have enforced, promoted, authorized, and sanctioned the NYPD' s customs and practices of stopping, questioning, searching, arresting, and citing individuals, including residents, for their mere presence in and around Clean Halls Buildings.
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146. NYPD officers frequently conduct suspicionless stops of people they encounter in the lobbies, vestibules, hallways, stairwells, courtyards, and other common areas in and around Clean Halls Buildings. In some Clean Halls Buildings, NYPD officers establish de facto illegal residential checkpoints at times, stopping virtually all people who enter or exit the buildings, including residents, and requiring them show identification as they enter or exit the lobby, subject themselves to a frisk or search, and justify their presence in the building to NYPD officers.
147. NYPD officers also frequently stop people on sidewalks simply because they have exited a Clean Halls Building, are entering a Clean Halls Building, or are merely standing or walking near a Clean Halls Building. During such stops, the individual is ordered to show identification, searched, and questioned about his presence in or around the building.
148. A report issued by a district attorney's office concerning a shooting that took place in a Clean Halls Building confirms that NYPD officers make suspicionless stops in and around Clean Halls Buildings. It describes NYPD practices as follows: "Authority for [Operation Clean Halls] depends upon consent by a landlord or a group of tenants that allows police to enter a particular building and the immediate area and to stop anyone found there and ask for identification. In carrying out Operation Clean Halls, the police go up and down the stairways in a building and around the grounds, stop all who are found, question them as to why they are in the building or on the grounds, and ask for identification showing that they live on the premises or for an apartment number to verify a legitimate visit." (emphases added).
149. Data collected by the NYPD on "stop, question, and frisk" activity, including in Clean Halls Buildings, confirm that tens of thousands of stops for trespassing are reported annually. According to NYPD data, police officers made 329,446 stops of individuals upon
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suspicion of trespassing between 2006 and 2010, representing approximately 12.2% of all reported stops. Upon information and belief, NYPD officers made many additional stops of individuals upon suspicion of trespassing during that period of time that were not reported.
150. Only 7.7% of reported trespass stops resulted in arrest and approximately 4.9% in the issuance of a summons. Weapons were found in only 0.2% of reported trespass stopscompared to 1.1% of reported stops made on suspicion of any other crime-and contraband was found in only 1.8% of reported trespass stops.
151. In the 10 precincts with the most reported stops made upon suspicion of trespassing in 2010, at least 28,209 such stops were made-nearly as many trespassing stops as the City's remaining 66 precincts combined. In the Bronx's 40th Precinct alone, police officers reported stopping over 5,000 people upon suspicion of trespassing that year. Suspicion of trespassing provided the basis for nearly 30% of all reported stops in the 40th Precinct.
152. A recent survey of men in the South Bronx found that residents of Clean Halls Buildings are routinely stopped by police officers in their own buildings. In October 2011 the Daily News questioned men of color on the street in three Bronx neighborhoods about their encounters with NYPD officers. A "resounding complaint" concerned patrols by NYPD officers in Clean Halls Buildings, during which "cops patrolling apartment buildings ask to see entrants' keys or IDs to make sure they are residents." One man described his recent stop by NYPD officers-while he was putting his key into the front door of his building-during which he was questioned as to his identity and forced to show identification. Another 17-year-old similarly described a recent stop that took place when he was walking into his own building, during which police officers searched his pockets.
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153. At a New York City Council hearing held on September 28,2010, officials ofthe Civilian Complaint Review Board ("CCRB"), the New York City agency responsible for investigating civilian complaint about police misconduct, presented data indicating that complaints concerning stops by NYPD officers in NYCHA Residences and Clean Halls Buildings were substantiated at a significantly higher rate than other complaints. The testimony of Mitchell G. Taylor, Board Member of the CCRB, indicated that the CCRB noticed "an escalation in complaints" concerning improper stops and questioning by NYPD officers in and around NYCHA Residences and Clean Halls Buildings. He further testified that a review of all complaints concerning police misconduct received between July 1,2008 and November 10,2009 revealed 237 complaints concerning stops by NYPD officers in NYCHA Residences and buildings enrolled in Operation Clean Halls. Ofthose that were fully investigated, 32 percent were substantiated, while only 11 percent of complaints concerning stops in other locations were substantiated.
154. People who are stopped by NYPD officers are routinely frisked and fully searched without adequate cause.
155. It is not uncommon for NYPD officers to issue summonses for trespassing to people they stop inside and just outside of Clean Halls Buildings even though there is no probable cause to believe that the stopped person has committed any crime or violation. In 2010, the NYPD filed in court more than 15,800 summonses charging trespass. Upon information and belief, many of those summonses related to Clean Halls Buildings.
156. Although only a tiny percentage of rep orted trespass stops lead to arrests or summonses, thousands are arrested for trespassing in New York City annually. Upon
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information and belief, a substantial percentage of such arrests take place in Clean Halls Buildings.
157. Residents of Clean Halls Buildings and their guests are sometimes arrested solely for failure to produce identification that matches the address of the building. Some are individuals who enter a Clean Halls building with the intent of visiting someone who tums out to not be at home; others are arrested based solely on their mere presence in or around Clean Halls Buildings. At times, individuals are arrested because they only know their friend's first name or nickname or know the apartment only by the location rather than by number. Further, upon information and belief, those who remain silent upon questioning by NYPD officers are routinely arrested or issued a summons for trespassing.
158. A police officer stationed in the Bronx's 46th Precinct described stops and arrests for trespassing as "standard practice" in Clean Halls Buildings. In swam deposition testimony provided in 2008, Police Officer Robert Bamett described Operation Clean Halls as follows: "Landlords sign up to have us patrol their buildings periodically and we're permitted to ask people coming in and out what their business is. If they cannot answer where they are coming from, we place them under arrest for criminal trespass." The officer further affirmed that it was "typical" for officers to arrest people for trespassing under these circumstances in the 46th precinct and throughout New York City.
159. This description underscores that stops conducted pursuant to Operation Clean Halls are regularly conducted without any suspicion of wrongdoing and that the outcome of an encounter with an NYPD officer in a Clean Halls building-either free to go about one's business or placed under arrest-tums on whether an officer is satisfied with a person's explanation for his presence in the building.
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160. In October 2006 NYPD Sergeant Reginald McReynolds was stopped in the stairwell of his girlfriend's apartment building, which is enrolled in Operation Clean Halls, while returning to her apartment with a take-out Chinese food order. One officer asked Sergeant McReynolds, "What fucking apartment are you going to?" McReynolds indicated that he was going to his girlfriend's apartment, and the officers threatened to arrest him for trespassing. Ivelisse Cruz, McReynolds' girlfriend, took pictures of the incident as it unfolded and called 911. Sergeant McReynolds's arrest was reported by major media outlets, including the New York Daily News, and CNN.
161. Since 2007 there have been at least 16,000 misdemeanor arrests for trespass in N ew York City annually, making it one of the highest-volume crimes charged in the City. Between 2007 and 20 10, over 37 percent of the criminal cases stemming from those arrests were resolved in favor of the accused, including dismissals, acquittals, or declination to prosecute. Upon information and belief, criminal cases that are opened against individuals arrested for trespass in New York City are dismissed at a high rate relative to similar crimes.
162. Given the high number of false arrests for trespassing, the criminal complaints and summonses filed in trespassing cases often lack sufficient detail to support a prosecution. As a result, New York City Criminal Court judges routinely dismiss as facially insufficient criminal court complaints and summonses charging individuals with criminal trespass in Clean Halls Buildings. Over four years ago, a Bronx County Supreme Court justice characterized the custom of unlawful trespassing arrests in Clean Halls Buildings as a "dreadful practice," whereby "[s]ome people get arrested simply for being in the lobby of a residential building in which they do not reside." The court further recognized the "unacceptable harm" that results from unlawful trespass arrests, including inconvenience, humiliation, lengthy pre-arraignment imprisonments,
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and a "level of intrusion upon freedom [that] is unacceptable, especially when it appears to be a result of an unlawful arrest" and specifically appealed to the NYPD to "better train its officers in the realm of Criminal Trespass so that only true trespassers will be arrested, and innocents will be spared." Over three years ago, another Bronx County court likewise noted that there are "far too many occasions where the trespass arrests are not justified and innocent individuals are simply caught in a trap while going about their everyday lives in a perfectly legal way." In both cases the court admonished prosecutors that innocent activities, such as "paying an unannounced visit to a friend," "having a standing invitation to visit a friend or relative," and being "in a lobby of a building that you don't live in" constitute lawful activities that do not support an arrest for criminal trespass.
163. Trespassing cases resulting from arrests in or around Clean Halls Buildings are also frequently not pursued after arrest because prosecutors decline to prosecute them. In many cases, prosecutors decline to prosecute individuals arrested for trespassing in or around Clean Halls Buildings because the initial stop and detention is unlawful, such as when it is premised upon mere presence in or around the building, rather than suspicious behavior. NYPD officers also frequently fail to supply information that is sufficiently detailed to support criminal prosecution. According to a 2009 law review article, from 2005 to 2008, prosecutors declined to prosecute 11.2% of trespass cases-the fifth-highest declination rate among the 19 highestvolume crimes in New York City. In 2011 prosecutors declined to prosecute over 13% of people arrested for trespassing in New York City.
164. Upon information and belief, a substantial number of trespassing arrests that take place in and around Clean Halls Buildings are made without probable cause of any unlawful conduct.
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165. The stop, question, search, citation, and arrest practices ofNYPD officers in and around Clean Halls Buildings are so customary as to constitute official municipal policy. Many residents of Clean Halls Buildings are subjected to these practices on a routine basis, including some who are stopped, questioned, and searched nearly every day. These practices constitute just one part of a citywide phenomenon of systematic suspicionless stops and arrests of individuals in and around certain low-income areas. The other locus of such activity is, collectively, the residential apartment buildings owned and operated by the New York City Housing Authority.
166. As a result of these practices, all residents of Clean Halls Buildings, their guests, and others in close proximity to the buildings are at risk of being stopped, questioned, searched, and even arrested or cited for trespassing for mere presence in or around a Clean Halls Buildings without suspicion of any criminal activity. In certain Clean Halls Buildings where the NYPD regularly deploys officers, residents, their visitors, and others in the vicinity are at heightened risk of being subjected to these practices.
167. The NYPD' s practices of stopping, questioning, searching, and arresting individuals in Clean Halls Buildings interfere with the ability of residents and their guests to maintain intimate relationships, and with the ability of residents to freely entertain guests in their homes. For example, many residents of Clean Halls Buildings feel that they are unable to extend standing invitations to visit to friends and family members because they may be unable to justify their presence in the building to police officers. Further, many residents' friends and family members are less likely to visit Clean Halls Buildings because they fear being stopped and harassed by NYPD officers.
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The NYPD's Unlawful Stop, Question, Search, Citation, and Arrest Practices In and Around Clean Halls Buildings Result from Improper and Inadequate
Training and Supervision 168. Unlawful stops, searches, summonses and trespassing arrests in and around Clean Halls Buildings result from the improper training and instruction ofNYPD officers on the appropriate bases for those actions. For example, upon information and belief, the NYPD trains officers to stop and question any person they encounter in a Clean Halls Building-even if there are no additional facts that make the person's presence in the building suspicious. Further, the NYPD has failed to implement any safeguards against unlawful arrests or citations in connection with Operation Clean Halls. 169. NYPD officers frequently fail to conduct investigations that are sufficient to determine whether there is probable cause to arrest individuals they encounter in Clean Halls Buildings. For example, when a stopped individual tells NYPD officers that he was visiting a friend in a particular apartment, the officers often refuse to accompany the stopped person to the apartment and confirm the stopped person's account. It is not uncommon for one officer to remain with the stopped person and another officer to say that he will go to the apartment identified by the stopped person as the one he was visiting. The officer who claims that he will go to the apartment does not actually go the apartment but returns quickly and says that no one answered the door at the apartment or that the person who answered did not confirm acquaintance with the stopped person. The stopped person is then placed under arrest. 170. In addition, the NYPD does not provide sufficient training to officers on conducting adequate investigations prior to arrest for trespassing. Upon information and belief, NYPD officers who patrol in and around Clean Halls Buildings are trained and instructed that when a person who has been asked or ordered to show identification or otherwise justify his
38

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presence in a Clean Halls building and the person refuses or declines to do so, such a response constitutes probable cause that the individual is trespassing.
171. The inadequacy ofNYPD officers' training and supervision are only magnified by the longstanding intense pressure on individual police officers to meet monthly numerical targets for stops, arrests and the issuance of summonses. Most recently, Defendant Commissioner Kelly directed the release ofNYPD Operations Order No. 52, which explicitly endorses the use of "performance objectives." These "performance objectives" pressure police officers to stop, cite and arrest people without regard for the applicable legal standards. This pressure is not balanced by adequate training on legal standards.
172. Operation Clean Halls includes insufficient safeguards to ensure that people are not wrongfully arrested or cited. For example, although Clean Halls affidavits state that tenant rosters of enrolled buildings must be provided to the NYPD, many are not. Even if landlords or managing agents agree to do so, it is not uncommon for them to fail to update them when tenants move into or out of the building. Moreover, rosters that are provided frequently fail to list residents who are not named on a lease, such as teenaged children.
173. NYPD officers sometimes-although rarely-review tenant rosters or consult with managing agents to ascertain whether a detained person is a resident of the building, but these practices do not enable NYPD officers to accurately identify lawful visitors to Clean Halls Buildings. Of course, no tenant roster could identity other people who may be lawfully present in a Clean Halls Building, such as residents' visitors or delivery people. Similarly, residents' nicknames, by which some invited guests might know them, are highly unlikely to be listed on tenant rosters. As a result, an NYPD's officer review of a tenant roster is insufficient to establish probable cause for trespassing.
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Deliberate Indifference in Failure to Train and Supervise 174. City-Defendants have been aware of the incidents described above and the stop, question, search, and arrest practices ofNYPD officers in and around Clean Halls Buildings for several years. Yet City-Defendants have been deliberately indifferent to these practices and have not attempted to remedy them. 175. City-Defendants have received notice of the NYPD's stop, question, search, and arrest practices in Clean Halls Buildings. City-Defendants are aware of the CCRB review of complaints lodged in connection with stops in Clean Halls Buildings that revealed a high substantiation rate compared to stops at other locations. City-Defendants are also aware of the high rate of declinations to prosecute trespass arrestees, the judicial admonitions relaying the high frequency of baseless and unlawful trespass arrests, and the class action litigation, Davis v. City of New York, No. 1O-cv-699, that has been pending in the Southern District of New York since January 2010 and challenges the NYPD's stop, question, search, and arrest practices in NYCHA Residences, which are virtually identical to those at issue in Clean Halls Buildings. 176. City-Defendants responded to complaints about suspicionless stops, searches, detentions, interrogations, and arrests in NYCHA Residences by amending the sections of the NYPD Patrol Guide, the NYPD' s official set of policies governing police actions, that address vertical patrols and investigations into trespassing in NYCHA Residences. The NYPD also instituted limited training of police officers who patrol NYCHA Residences. The NYPD has not taken any ofthose minimal steps to address the problems with its policies and practices in Clean Halls Buildings.
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177. Until June 2010, the sections ofthe NYPD Patrol Guide that governed the use of vertical patrols in Clean Halls Buildings on one hand, and NYCHA Residences on the other, were virtually indistinguishable.
178. Section 212-59 of the Patrol Guide, which remains in effect, governs vertical patrols in Clean Halls Buildings. It directs commanding officers to "[o Jbtain permission of building owner/authorized agent to conduct vertical patrol when private property is involved" and provides that unifonned patrol officers should "[c Jonduct vertical patrol of assigned location and take appropriate police action."
179. Section 212-59 of the Patrol Guide also simply directs unifornled patrol officers to "[c [onduct vertical patrol of assigned location and take appropriate police action." Section 212-60 of the Patrol Guide, which is listed as a "related procedure" and was in effect until June 2010 and concerning vertical patrols in NYCHA Residences, similarly directed uniformed patrol officers to "[b Je alert for persons loitering within the buildings, or suspicious conditions," and to "take note of unauthorized persons remaining in lobbies, basements, stair cases and rooflandings and take appropriate police action when necessary." Neither section provides any guidance as to the factors an officer may consider in determining whether a person may be lawfully stopped, seized, questioned, searched, or arrested for trespass, or the steps an officer should take when conducting an investigation into trespassing.
180. On June 8, 2010, the NYPD issued Interim Order No. 23 ("Interim Order"), which addresses vertical patrols in NYCHA Residences and which superseded Section 212-60. The Interim Order provides that "an officer may not stop (temporarily detain) a suspected trespasser unless the officer reasonably suspects that the person is in the building without authority." It further provides that following a stop an officer should "[aJpproach the persones)
41

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and ask; (1) Ifhe or she lives in the building (2) If he or she is visiting someone in the building (3) Ifhe or she has business in the building." The Interim Order also directs as follows: "When a person's authority to be present in the building is in question, take reasonable measures to verify such authority (e.g., asking for identification, a key to the building entrance doors, etc.)." The Interim Order directs, "If a person refuses to explain or is unable to explain his or her presence in the building, the officer may instruct the person that he or she must leave the building or be subject to arrest for trespass. The officer may then arrest the person for trespass if: (1) The person refuses to exit the building and does not promptly establish a right to be in the building." The NYPD began training officers to comply with the Interim Order in the fall of 2010.
181. There have not been any changes to the NYPD Patrol Guide sections addressing vertical patrols conducted pursuant to Operation Clean Halls in at least ten years. Upon information and belief, the NYPD has not conducted any specialized training concerning officers' authority to stop, question, search, and arrest any individuals upon suspicion of trespassing. Further, NYPD officers in Clean Halls Buildings frequently arrest or cite individuals for trespassing without giving them the opportunity to either exit the building or establish a right to be in the building.
182. The NYPD Patrol Guide provides no guidance to NYPD officers conducting vertical patrols pursuant to Operation Clean Halls on who is to be stopped, seized, questioned, searched, or arrested for trespass. The only guidance provided to NYPD officers in connection with Operation Clean Halls is consistent with, and reflective of, a policy, practice, and custom of stops and arrests for trespassing based on insufficient cause.
183. City-Defendants have failed to make meaningful attempts to improve the training and supervision ofNYPD officers who conduct vertical patrols and stop, question, search and
42

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arrest people in buildings enrolled in Operation Clean Halls. In contrast, City-Defendants have recognized the need for training of police officers who patrol NYCHA Residences on the appropriate standard for stopping individuals upon suspicion of trespassing as well as steps officers should take to investigate suspicions of trespassing.
184. Upon information and belief, the current training program does not include sufficient instruction on the elements of the offenses concerning trespassing in New York's Penal Law or the proper standards for and extent of frisks and searches. In particular, the current training program does not make clear that mere presence in or around a Clean Halls Building does not provide a sufficient basis to stop an individual and that mere presence in a Clean Halls building without identification that lists a matching address is insufficient to provide probable cause for arrest. Further, NYPD officers are not instructed that investigation of infannatian provided by an individual suspected of trespassing concerning the identity or location of the resident he or she claims to be visiting is required to establish probable cause for arrest.
185. City-Defendants have failed to supervise and discipline NYPD officers who unlawfully stop, question, seize, search, and arrest individuals for trespassing. Upon information and belief, City-Defendants do not monitor improper stops, seizures, and searches for trespassing in Clean Halls Buildings. Nor have City-Defendants instituted any follow up procedure or disciplinary action when charges are dismissed or where it is otherwise established that an individual was arrested without probable cause.
The NYPD's Clean Halls Program Has a Disparate Impact on Blacks and Latinos 186. The NYPD administers Operation Clean Halls and targets its stop, question,
search, citation, and arrest activities in Clean Halls Buildings in a maimer that has a disparate impact on blacks and Latinos as compared to whites.
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187. The NYPD is responsible for enrolling buildings in the program in every borough, except Manhattan, where the District Attorney's office does so. There is no centralized oversight of Operation Clean Halls by City-Defendants or their designees. Upon information and belief, no single list of all buildings enrolled in the program exists.
188. Although the purported purpose of Operation Clean Halls is to combat illegal activity in apartment buildings, buildings are enrolled and remain in the program without regard to whether there is sustained or substantial crime in the building. For example, Clean Halls Buildings in the Bronx are enrolled "into perpetuity." Therefore, residents of Clean Halls Buildings, their guests, and even people on sidewalks outside of Clean Halls Buildings are at risk of being subjected to the NYPD's practices of stopping, questioning, searching, citing, and arresting people without the requisite level of suspicion even though their buildings are not necessarily locations with sustained or substantial criminal activity.
189. Upon information and belief, the residents of all Clean Halls Buildings are disproportionately black and Latino as compared to the population of New York City as a whole. Further, NYPD officers are more likely to be deployed to certain Clean Halls Buildings where they aggressively stop, question, search, and an-est people they encounter in and around the buildings. Upon information and belief, residents of those buildings are disproportionately black and Latino as compared to all residents of Clean Halls Buildings and to the population of New York City as a whole. As a result, the NYPD' s stop, question, search, citation, and an-est practices in and around Clean Halls Buildings have a significant disparate impact on blacks and Latinos in their enjoyment of housing and in their receipt of municipal services connected with housing.
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190. NYPD data reveal that the NYPD's trespass stop practices have a disparate impact on blacks and Latinos. Blacks and Latinos are more likely than whites to be stopped by NYPD officers 'on suspicion of trespassing, and blacks and Latinos comprise a higher percentage of people stopped for trespassing than of people stopped on suspicion of all other crimes.
191. From 2006 to 2010, approximately 94.4% of those stopped for trespassing were black and Latino, although blacks and Latinos comprised approximately 52% of the New York City population. By contrast, for stops made on suspicion of all crimes other than trespassing between2006 and 2010,84.9% of those stopped were black and Latino. From2006 through 20 l O, only 4% of those stopped on suspicion of trespassing were white, although non- Latino whites comprised approximately 33% of the New York City population.
192. Thus, from2006 through 2010, blacks and Latinos in the City were six times more likely to be stopped for any reason by police than whites, Asians, and Native Americans combined, but 16 times more likely to be stopped on suspicion of trespassing than whites, Asians, and Native Americans combined.
193. Between2003 and 2011, a disproportionate number of blacks and Latinos were also arrested for trespass in New York City. During that period, blacks and Latinos constituted over 90 percent ofthose arrested for trespassing; blacks were 12 times, and Latinos 7 times, more likely to be arrested for trespassing than whites, Asians and Native Americans combined.
194. Upon information and belief, these data encompass a significant number of stops and arrests made in and around Clean Halls Buildings and reflect the disparate impact ofthe NYPD's Clean Halls practices on blacks and Latinos.
195. The NYPD has a long history of conducting excessive stops in New York City neighborhoods largely populated by racial minorities. In 1999, for example, the Office ofthe
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N ew York State Attomey General reported that stops by NYPD officers in predominately minority precincts in New York City occurred at a significantly higher rate than stops in predominately white precincts. The report also found that when stops did occur in white neighborhoods, the disparity between racial minority and white stop rates in those neighborhoods was pronounced.
196. The numbers of stops by the NYPD has continued to increase, to an all-time high of 685,724 reported stops in 2011. The racial disparities also continue. Blacks and Latinos comprised 87 percent of all reported stops and 94 percent of all reported stops on suspicion of trespassing by the NYPD in 2011.
CLASS ACTION ALLEGATIONS 197. Pursuant to Federal Rule of Civil Procedure 23(a) and (b)(2), Plaintiffs will ask the Court to certify as a class all residents of Clean Halls Buildings; all individuals, including family members, guests, and visitors of residents of Clean Halls Buildings, who seek to visit a resident of a Clean Halls Building; and all individuals who have been or are likely to be unlawfully stopped or arrested as a result oftheir presence in or around Clean Halls Buildings. All of these people are at risk of being stopped, questioned, searched, cited, and arrested as a result of City-Defendants' policies and practices. 198. This action satisfies all four requirements of Rule 23(a): a. Numerosity: Joinder of all class members is impracticable because ofthe size of the class and the fact that the class includes some members who Calmat be identified with any degree of specificity. Upon information and belief, tens of thousands of residents of Clean Halls Buildings and visitors of residents of Clean Halls Buildings have either been subjected to the
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challenged policies and practices or are at risk of being subjected to the challenged policies and

practices.

b.

Commonality: There are questions oflaw and fact common to all members of the

class, including, but not limited to, whether City-Defendants maintain a policy and practice of

unlawfully seizing, searching, citing, and arresting residents of Clean Halls Buildings, their

guests and others in violation of federal and state law.

c.

Typicality: The claims of the Named Plaintiffs are typical of those of the class.

Each named plaintiff has been subjected to the challenged policies and practices by virtue of his

or her status as a resident, or visitor of a resident, of a building enrolled in Operation Clean

Halls, or simply by virtue of having been in the vicinity of a Clean Halls Building.

d. Adequacy of Representation: The Named Plaintiffs and class counsel will fairly

and adequately represent the interests of the class. The Named Plaintiffs have no interests in this

matter that are antagonistic to other class members. Class counsel has many years of experience

in civil rights and class action litigation.

199. Class-wide declaratory and injunctive relief is appropriate under Rule 23(b)(2)

because City-Defendants have acted or refused to act on grounds generally applicable to the class

as a whole.

JURISDICTION AND VENUE

200. This action is authorized by 42 U.S.C. §§ 1983 and 3613(a). Subject matter

jurisdiction is conferred on this Court by 28 U.S.c. §§ 1331, 1343(a)(3), 1343(a)(4), and

1367(a).

201. Pursuant to 28 U.S.C. §§ 2201 and 2202, this COUlihas jurisdiction to declare the

rights of the parties and to grant all further relief deemed necessary and proper. Rule 65 of the

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Federal Rules of Civil Procedure authorizes injunctive relief. This Court has authority to award costs and attorneys' fees under 42 U.S.C. §§ 1988 and 3613(c)(2).
202. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because it is the district in which a substantial part of the events or omissions giving rise to the Plaintiffs' claims occurred.
CLAIMS FOR RELIEF FIRST CAUSE OF ACTION: VIOLATIONS OF THE FOURTH AMENDMENT TO THE U.S. CONSTITUTION 203. As a direct and proximate result of the acts and omissions of the Defendants, the Plaintiffs and members of the class they seek to represent have been deprived of their rights under the Fourth Amendment to the United States Constitution and 42 U.S.C. § 1983. SECOND CAUSE OF ACTION: INFRINGEMENTS OF THE RIGHTS OF INTIMATE ASSOCIATION, ASSEMBLY, AND SUBSTANTIVE DUE PROCESS IN VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION 204. As a direct and proximate result of the acts and omissions of the Defendants, the Plaintiffs and members of the class they seek to represent have been deprived of their rights under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. THIRD CAUSE OF ACTION: DISCRIMINATORY IMPLEMENTATION OF OPERATION CLEAN HALLS IN VIOLATION OF THE FAIR HOUSING ACT 205. As a direct and proximate result of the acts and omissions of City-Defendants, the Plaintiffs and members of the class they seek to represent have been deprived of their rights on the basis of race or national origin in violation of the Fair Housing Act, Title VIIlofthe Civil Rights Act of 1968,42 U.S.C. §§ 3601-3617.
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FOURTH CAUSE OF ACTION: VIOLATIONS OF ARTICLE 1, SECTION 12 OF THE NEW YORK CONSTITUTION
206. As a direct and proximate result of the acts and omissions of the Defendants, the Plaintiffs and members ofthe class they seek to represent have been deprived of their rights under Article l, Section 120fthe New York Constitution.
207. The unlawful stops, searches, false arrests, and false imprisomnents of the Plaintiffs were the direct and proximate result of a policy or practice ofthe City.
FIFTH CAUSE OF ACTION: VIOLATIONS OF ARTICLE I, SECTION 8 OF THE NEW YORK CONSTITUTION
208. As a direct and proximate result of the acts and omissions of the Defendants, the Plaintiffs and members of the class they seek to represent have been deprived of their rights under Article l, Section 8 of the New York Constitution.
SIXTH CAUSE OF ACTION: FALSE ARREST, FALSE IMPRISONMENT, ASSAULT AND BATTERY
IN VIOLATION OF NEW YORK COMMON LAW 209. As a direct and proximate result of the acts and omissions of the Defendants, the Plaintiffs and members of the class they seek to represent have been deprived of their rights under New York common law to be free from false arrest, false imprisomnent, assault, and battery.
SEVENTH CAUSE OF ACTION: MALICIOUS PROSECUTION IN VIOLATION OF NEW YORK COMMON LAW
210. Police Officers John Does 5-6 charged J.G. and W.B. with trespassing falsely, maliciously, in bad faith, and without probable cause.
211. Police Officers Johnny Blasini and John Does 9-11 charged Kieron Johnson and with trespassing falsely, maliciously, in bad faith, and without probable cause.
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212. Police Officers Lomangino and Koch charged A.O. with trespassing falsely, maliciously, in bad faith, and without probable cause.
213. Police Officers Ramdeen and Jolm Doe 12 charged Abudllah Turner with trespassing falsely, maliciously, in bad faith, and without probable cause.
214. Police Officer Santiago charged Charles Bradley with trespassing falsely, maliciously, in bad faith, and without probable cause.
215. The prosecutions of lG., W.B., Kieron Johnson, A.O., Abdullah Turner, and Charles Bradley were terminated in their favor.
216. The Defendants' actions violated the rights of Plaintiffs J.G., W.B., Kieron Johnson, A.O., Abdullah Turner, and Charles Bradley under New York common law to be free from malicious prosecution.
PRAYER FOR RELIEF WHEREFORE the Plaintiffs respectfully request that the Court: 1. Assume jurisdiction over this matter; 2. Certify this action as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2); 3. Declare that the Defendants' actions violate the Plaintiffs' rights under the Fourth Amendment ofthe United States Constitution, Article I, Section 12 of the New York Constitution, and New York common law; 4. Declare that the Defendants' actions violate the Plaintiffs' rights under the First and Fourteenth Amendments and Article I, Section 8 of the New York Constitution; 5. Declare that the Defendants' actions in and around Clean Halls Buildings violate the Plaintiffs' rights under the Fair Housing Act;
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6. Enjoin further violations ofthe Plaintiffs' constitutional, statutory, and common

law rights, including but not limited to an injunction that requires the Defendants to:

a. Refrain from unlawfully stopping and questioning individuals in or around

buildings enrolled in Operation Clean Halls;

b. Refrain from unlawfully searching individuals in or around buildings

enrolled in Operation Clean Halls;

c. Refrain from unlawfully arresting or otherwise charging individuals in or

around buildings enrolled in Operation Clean Halls;

d. Establish appropriate citywide standards for enrollment of privately owned

residential buildings in Operation Clean Halls;

e. Establish a system for tracking and monitoring NYPD practices in and

around buildings enrolled in Operation Clean Halls Buildings to determine

whether stops, searches, summonses and arrests have comported with

legal requirements;

f.

Establish a system for tracking and monitoring the stops, searches,

summonses, and arrests made pursuant to Operation Clean Halls,

including by race, national origin, building, precinct, and borough to

determine whether the program is being implemented in a discriminatory

manner;

g. Develop and implement appropriate training for members of the NYPD

who patrol in or around buildings enrolled in Operation Clean Halls;

h. Implement a system of reporting to the Plaintiff and the Cami about all

steps taken to cure the violations of the Plaintiffs' rights;

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7. Award compensatory damages for injuries sustained by Named Plaintiffs; 8. Award Plaintiffs reasonable attorneys' fees and costs under 42 U.S.C. §§ 1988 and 3613(c)(2); and 9. Grant any other relief the Cami deems necessary and proper.

Dated: March 28,2012 New York, New York

Respectfully submitted,

~~/.,....~=j

----

Alexis Karteron (AK 8833) Christopher Dunn (CD 3991) Daniel Mullkaff (DM 5557) New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 akatieron@nyc1u.org

J. McGregor Smyth, Jr. (JS 9995) Madana Kavel * The Bronx Defenders 860 Courtlandt Avenue Bronx, New York 10451 (718) 838-7878

Juan Cartagena (JC 5087) Foster Mael' (FM 0680) Roberto Concepcion* LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360
M. Chris Fabricant (MF 9403) 360 Clinton Avenue,.#3F Brooklyn, NY 11238 (917) 496-7859

"Not admitted in the Southern District of New York Attomeys for Plaintiffs

52

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- )(
JAENON LIGON, et al.,

USDCSDNY
DOCUMENT . ELECIT{OI~ICAlLY FIT..BD
DOC#;
DATE FI':"':LB~D::"""'."-.b.-.{..-:-I-J..'"""!i~.J,-:.2..,-

Plaintiffs, v.

MEMORANDUM OPINION AND ORDER

CITY OF NEW YORK, et at,

12 Civ. 2274 (SAS)

Defendants.

-------------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.: This putative class action challenges the New York City Police
Department's implementation of Operation Clean Halls, a program pursuant to which police officers patrol inside and around thousands of private residential apartment buildings throughout New York City. Plaintiffs allege that they and their minor children have been unlawfully stopped, questioned, frisked, and/or arrested in or around their homes or their family members' homes. The parties' first discovery dispute involves defendants' request for the unsealing of records relating to any prior arrests of plaintiffs.
In accordance with my instructions and this District's Plan for Certain

1 


§ 1983 Cases Against the City of New Yorkl , plaintiffs have already executed
releases giving defendants full access to all paperwork relating to the arrests at
issue in the case as well as a list of each plaintiffs prior arrests - a list that contains
the date of the arrest, the top charge, and whether or not the paperwork is sealed.
Defendants argue that this information is insufficient and that they are entitled to
access all paperwork relating to all of plaintiffs, prior arrests, even if those arrests
tenninated in plaintiffs' favor and are sealed pursuant to New York law.
As I explained two years ago, adjudicating disputes over the
unsealing of investigation and arrest records in New York requires a balancing of
state and federal interests that are sometimes in tension.2 New York Criminal
Procedure Law section 160.50 provides, in relevant part:
Upon the tennination of a criminal action or proceeding against a person in favor of such a person ... all official records and papers ... relating to the arrest or prosecution [shall be sealed, and shall not be] made available to any person or public or private agency ... but only to the person accused or to such person's designated agent.3
http://nysd.uscourts.gov/rules/The_Plan_and_Exhibits_201108.pdf 2 See Crosby v. City ofNew York, 269 F.R.D. 267 (S.D.N.Y. 2010). 3 N. Y. Crim. Pro. L. § 160.50. Accord Haus v. City ofNew York, No. 03 Civ. 4915, 2006 WL 1148680, at *1 (S.D.N.Y. Apr. 24, 2006) ("[Section 160.50] requires, in the case of people arrested but not convicted, that arrest records filed with the state courts or held by law-enforcement authorities be sealed and not disclosed except in limited circumstances.").
2 


"The purpose of the provision is to ensure 'that one who is charged but not
convicted of an offense suffers no stigma as a result of his having once been the
object of an unsustained accusation.",4 Similarly, Section 160.55 requires the
sealing of certain records of an individual convicted of a violation (i. e., a non­
criminal offense).5
However, in cases presenting federal questions, such as here,
discoverability, privileges, and confidentiality are governed by federal law, not
state law.6 "[S]tate statutory privileges ... must be construed narrowly, 'and must
yield when outweighed by a federal interest in presenting relevant information to a
4 MacNamara v. City ofNew York, No. 04 Civ. 9612,2006 WL 3298911, at *1 n.l (S.D.N.Y. Nov. l3, 2006) (quoting Mattu ofHynes v. Karassik, 47 N.Y.2d 659, 662 (1979)). Acrord Katherine B. v. Cataldo, 5 N.YJd 196, 202 (2005) (,"That detriment to one's reputation and employment prospects often flows from merely having been subjected to criminal process has long been recognized as a serious and unfortunate by-product of even unsuccessful criminal prosecutions. The statute's design is to lessen such consequences.'" (quoting Hynes, 47 N.Y.2d at 662)).
5 Section 160.55 specifically provides: "Upon the termination of a criminal action or proceeding against a person by the conviction of ... a violation ... all official records and papers relating to the arrest or prosecution, including all duplicates and copies thereof, on file with the division of criminal justice services, police agency, or prosecutor's office shall be sealed and not made available to any person or public or private agency" except in limited circumstances. N.Y. Crim. Pro. L. § 160.55(1).
6 See Fed. R. Evid. 501 (stating that privileges in federal-question cases are governed by federal common law); United States v. Goldberger & Dubin, 935 F.2d 501,505 (2d Qr. 1991).
3 


trier of fact. ",7 In other words, state privilege rules should not be permitted to "frustrate the important federal interests in broad discovery and truth-seeking and the interest in vindicating important federal substantive policy such as that embodied in section 1983.',g Nonetheless, "the policies underlying state evidentiary privileges must still be given serious consideration, even if they are not determinative. ,,9
Sections 160.50 and 160.55 protect "important privacy interests, and 'a strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural po1icy."'!O This Court must therefore "balance the deference to be accorded state-created privileges with the need for the information sought to be protected by the privilege."! 1
Defendants argue that they need the paperwork relating to sealed

7

Daniels v. City o/New York, No. 99 Civ. 1695,2001 WL 228091, at

*1 (Mar. 8,2001) (quoting Unit«.i States v. One Parcel o/Property at 31-33 York

Street, 930 F.2d 139, 141 (2d Cir. 1991)).

8 Kingv. Conde, 121 F.R.D. 180, 187 (E.D.N.Y. 1988).

9
1986).

Burka v. New York City Transit Auth., 110 F.RD. 660, 664 (S.D.N.Y.

10 King, 121 F.RD. at 187 (quoting Lora v. Board ofEduc., 74 F.R.D. 565, 576 (E.D.N.Y. 1977)).

11 Daniels, 2001 WL 228091, at *1.

4

arrests for three reasons: (I) to explore the adequacy of plaintiffs to serve as class representatives,12 (2) because the information is relevant to the question of plaintiffs' damages (in that plaintiffs who have previously been arrested and detained arguably suffer less emotional distress than plaintiffs who are arrested for the first time), and (3) because "past interactions with law enforcement may have influenced, at least to some extent, the interactions plaintiffs had with the police in this case. See FRE 404(b)."13
Plaintiffs respond by arguing that, as a general matter, the sealing of their arrest records pursuant to state law advances important privacy interests and to the extent that federal litigation can accommodate those state interests without hindering federal interests, it should. 14 As to defendants' three arguments, plaintiffs say: (l) The "adequacy" question is not an inquiry into plaintiffs' moral righteousness but is directed at improper or questionable conduct arising out of or touching on the prosecution of this lawsuit,15 (2) the only component of past arrests that are relevant to emotional damages is the length of time that a plaintiff was
12 See Fed. R. Civ. P. 23(a)(4). 13 5/31112 Letter from Mark Zuckerman to Court at 2. 14 See 6/4/12 Letter from Alexis Karteron to Court at 2. 15 See Friedman-Katz v. Lindt & Sprung/i (USA), Inc., 270 F.RD. 150, 160 (S.D.N.Y. 2010); Casale v. Kelly, 257 F.R.D. 396,412 (S.D.N.Y. 2009).
5 


detained in connection with an arrest, and, in contrast, the charges levied against the individual and the related police paperwork are not relevant, and (3) under Rule 404(b), only those prior bad acts that are similar to trespass - the charge at issue in this lawsuit should be discoverable and disclosure of information about prior bad acts (such as drug possession) that are completely unrelated to trespass is not reasonably calculated to lead to the discovery of admissible evidence. In short, plaintiffs agree that their past arrests on charges similar to trespass are relevant to the adequacy inquiry and that some arrest information may be admissible under Rule 404(b). But, they believe, there should not be a blanket unsealing order.
Plaintiffs are correct. Defendants have no legitimate reason to examine paperwork from an old arrest for possession of drugs or disorderly conduct that terminated in a plaintiff's favor and was sealed pursuant to important state privacy law. When it can, the federal interest in broad discovery should accommodate this New York privilege. Defendants must be provided access to prior arrest records and paperwork only for charges of trespass or related crimes for the past ten years. Plaintiffs should also disclose to defendants the length of time that they were detained and incarcerated as a result of any prior arrests and any emotional or physical injuries that they suffered as a result of those arrests. This disclosure may be made in a sworn affidavit, but does not require the unsealing of arrest records.
6

If, despite this guidance, the parties still disagree about the unsealing
of particular arrest files, I will adjudicate the disputes on a case-by-case basis.
SOWDE D:--,
I'i ,­ r)~/
I

Dated:

June 12, 2012 New York, New York

7 


- Appearances ­ For Plaintiffs:
Alexis Karteroll, Esq. New York Civil Liberties Union 125 Broad Street New York, NY 10004 (212) 607-3391
For Defendants:
Mark Zuckerman Senior Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 442-8248
8 


 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- )(
JAENON LIGON, et aI.,

Plaintiffs, v.

OPINION AND ORDER

CITY OF NEW YORK, et aI.,

12 Civ. 2274 (SAS)

Defendants.

-------------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.: This putative class action challenges the New York City Police
Department's implementation of Operation Clean Halls, a program allowing police officers to patrol inside and around thousands of private residential apartment buildings throughout New York City. Plaintiffs allege that they and their minor children have been unlawfully stopped, questioned, frisked, and/or arrested in or around their homes or their family members' homes.
Plaintiffs have informed defendants and the Court of their intention to move for a preliminary injunction to prevent police officers from "stopping people outside of Clean Halls buildings because of their proximity to a Clean Halls building (whether by virtue of their having exited, trying to enter, or simply being

1 


near the building).”1 Defendants believe that “the Court should use its equitable
powers to deny plaintiffs’ application” summarily, prior to the holding of an evidentiary hearing.2 Because plaintiffs allege an ongoing and egregious violation
of their constitutional rights, I decline to deny them the opportunity to seek a
preliminary remedy.
Preliminary injunctions, a traditional tool of courts sitting in equity,
are governed by Federal Rule of Civil Procedure 65. The Second Circuit has
explained that “[w]hen seeking a preliminary injunction that will affect
government action taken in the public interest pursuant to a statutory or regulatory
scheme, the moving party must show: (1) it will suffer irreparable harm absent the injunction and (2) a likelihood of success on the merits.”3
Plaintiffs’ Complaint alleges that
1 8/16/12 Letter to Court from Christopher Dunn, plaintiffs’ counsel, at 1 (“Dunn Letter”).
2 8/14/12 Letter to Court from Mark Zuckerman, defendants’ counsel, at 1 (“Zuckerman Letter”).
3 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (quotation marks omitted). In other instances, injunctions may be granted if the movant shows “a threat of irreparable injury and either (1) a probability of success on the merits or (2) sufficiently serious questions going to the merits of the claims to make them a fair ground of litigation, and a balance of hardships tipping decidedly in favor of the moving party.” Time Warner Cable v. Bloomberg L.P., 118 F.3d 917, 923 (2d Cir. 1997). The parties have not yet addressed whether Operation Clean Halls is conducted “pursuant to a statutory or regulatory scheme.”
2

[f]or residents of Clean Halls Buildings and their visitors, merely exiting a Clean Halls Building frequently leads to being stopped, searched, and interrogated by NYPD officers on public sidewalks and in exterior courtyards. These stops typically involve full searches and questioning as to the person’s reason for having been inside the building, and frequently result in arrest or the issuance of a summons if the person cannot affirmatively justify his presence to the police officer’s satisfaction. . . .
Residents of some Clean Halls Buildings are stopped, questioned, and searched by NYPD officers on a regular basis – sometimes multiple times a week. For many young men of color in particular, being searched and seized by NYPD officers in and around their homes has become normalized and is simply a routine part of their lives. . . .
[The NYPD] has ignored the problems of suspicionless stops, searches, citations, and arrests in and around Clean Halls Buildings. . . .
The NYPD’s abusive practices of stopping, questioning, searching, citing, and arresting residents of Clean Halls Buildings and their visitors without adequate cause violate the United States and New York Constitutions, the Fair Housing Act, and New York common law.4
These are grave allegations. Plaintiffs believe that they are at risk of
repeatedly being stopped in the absence of reasonable suspicion and being arrested
in the absence of probable cause; that is, they are at risk of suffering a violation of
their Fourth Amendment right to be free from unreasonable search and seizure.
The Supreme Court has explained that this “inestimable right of personal security
4 Complaint ¶¶ 3, 6, 7, 10.
3

belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.”5 The violation of a
constitutional right, particularly on an ongoing basis, constitutes irreparable harm for the purpose of a preliminary injunction.6
To establish their right to a preliminary injunction, plaintiffs intend to
rely on the testimony of individuals who claim they have been unlawfully stopped
and the testimony and findings of Jeffrey Fagan, a criminologist with expertise in statistics.7 According to plaintiffs’ representations, Fagan’s testimony will show
that, taking the NYPD’s stop and frisk records at face value, there have been
hundreds of unlawful stops on suspicion of no crime other than “trespass” made
5 Terry v. Ohio, 392 U.S. 1, 9 (1968). Accord Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891) (“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”).
6 See Johnson v. Miles, 355 Fed. App’x 444, 446 (2d Cir. 2009) (“an alleged violation of a constitutional right ‘triggers a finding of irreparable harm’”) (quoting Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996)). See also Hardy v. Fischer, 701 F. Supp. 2d 614, 619 (S.D.N.Y. 2010) (ongoing violations cause “quintessential” irreparable harm).
7 See Floyd v. City of New York, --- F. Supp. 2d ----, 2012 WL 1344514 (S.D.N.Y. Apr. 16, 2012) (evaluating Fagan’s qualifications and methodology in a related lawsuit under the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993)).
4

directly outside of Operation Clean Halls buildings in the Bronx.8 In response to plaintiffs’ allegations, the City makes three arguments:
First, because the allegedly unlawful stops at issue in this case are also the subject of the related – and broader – litigation in Floyd v. City of New York,9 and because any plaintiffs in this case who were stopped unlawfully are members of the class in Floyd, a preliminary injunction hearing in this case would create “a risk of additional inconsistent adjudications when [Floyd] is decided on the merits.”10 Second, plaintiffs’ desired injunction would do nothing more than instruct police officers to follow the law, which the City argues is improper under Federal Rule of Civil Procedure 65(d). Finally, a focus on the Bronx to the exclusion of other boroughs “could lead to a vastly different outcome later when the whole City is analyzed.”11 None of these arguments convince me that plaintiffs’ motion for a preliminary injunction should be denied without the opportunity to present evidence.
The City’s primary concern is that “the stops that plaintiffs are
8 See 8/9/12 Dunn Letter to the Court at 2-3. 9 No. 08 Civ. 1034 (S.D.N.Y.). 10 Zuckerman Letter at 2. 11 Id. at 1.
5

challenging are indeed a subset of [the stops] in Floyd,” that a preliminary injunction constitutes “an ‘end-run’ around the Floyd class certification appeal which remains to be decided,” and that the Court should deny or defer plaintiffs’ application because it would “prevent the inordinate amount of resources being spent by both sides on this matter from being wasted.”12
Defendants cite to Gillespie v. Crawford, in which the Fifth Circuit prohibited individual prisoner suits regarding conditions of confinement in Texas prisons because other prisoners in a class action lawsuit had already obtained a favorable judgment and the district court, with the help of a special master, was overseeing compliance with its decrees.13 The court explained that “[t]o allow individual suits would interfere with the orderly administration of the class action and risk inconsistent adjudications.”14 Judge John Elfvin of the Western District of New York later relied on Gillespie to support his decision to dismiss the claims of inmates at the Attica Correctional Facility who were confined to the special housing unit because he determined that the claims were subsumed by a
12 8/7/12 Zuckerman Letter to the Court. 13 858 F.2d 1101 (5th Cir. 1988). 14 Id. at 1103. The Fifth Circuit made clear that although they may not bring new suits, “prisoners may assert any equitable or declaratory claims they have, but they must do so by urging further action through the class representative and attorney, including contempt proceedings, or by intervention in the class action.” Id.
6

previously-filed lawsuit in which a class had been certified.15
Neither of these opinions is binding upon this Court and both are
distinguishable. Gillespie stands for the proposition that if a district court judge
and special master are overseeing a complex remedial decree, it does not make
sense for other courts to simultaneously address similar issues through new
proceedings. That situation is different from the present one in at least two
important respects: first, there has been no finding of liability in the Floyd class
action and there is therefore no decree with which a Ligon injunction could
conflict. Second, both matters are assigned to me, which reduces the likelihood of
inconsistent remedial orders in the future. If it becomes necessary, I could amend
any injunction in Ligon as a result of determinations made by the jury in Floyd.
The Young decision is not particularly useful to defendants here because the court dismissed the claims after a trial on the merits.16
15 Young v. Kelly, No. 88 Civ. 511, 1993 U.S. Dist. LEXIS 331 (W.D.N.Y. Jan. 15, 1993).
16 A complex settlement of the related class action was being negotiated in the months before and after Judge Elfvin’s January 15, 1993 decision. See Eng v. Coughlin, No. 80 Civ. 385 (W.D.N.Y.). Docket entries beginning on June 18, 1992 depict the ongoing negotiations and piecemeal settlement agreement in that case. Settlement of the class members’ prison library claim, which was the primary claim at issue in Young, was reached on December 21, 1992. Furthermore, unlike in these cases, the Attica class action was not before Judge Elfvin at the time. Finally, Judge Elfvin did permit the individual plaintiffs to present their case at trial; he dismissed the claims, after hearing the evidence, because he found that they were “couched entirely in blanket denouncements of the
7

I understand the City’s concern that preparing for and holding a preliminary injunction hearing is costly and time-consuming. But Floyd was filed four and a half years ago and the trial may be indefinitely postponed as a result of the City’s decision to appeal this Court’s class certification order. Plaintiffs in Ligon allege persistent and ongoing violations of their most cherished constitutional rights; they claim that their daily lives are being severely disrupted by the NYPD’s unconstitutional harassment. If their allegations are true, plaintiffs should not be forced to endure years of continued indignity while this litigation is effectively stayed pending the outcome in Floyd. And if the allegations are not proven, then the NYPD will be vindicated by a judicial system that permits the City – and all litigants – a full and fair hearing.
If defendants wish to minimize duplication, they may agree to preliminary injunctive relief with the plaintiffs in Ligon. Alternatively, they are free to withdraw their appeal of the class certification decision and permit a trial in Floyd without delay. But the City cannot have it both ways. Having pursued an interlocutory appeal of the Floyd class certification decision, the City may not now prevent other litigants from even requesting that the Court use its equitable power
administrative policies without any showing of specific” harm to the individuals. Young, 1993 U.S. Dist. LEXIS 331, at *4. Plaintiffs here claim that they have suffered individual harm.
8

to protect their fundamental rights.
The City’s second concern is that “[t]he injunction that plaintiffs seek
merely would have the City follow the law”17 and that such an injunction is
improper because under Federal Rule of Civil Procedure 65(d)(1), “an injunction
must be more specific than a simple command that the defendant obey the law.”18
But the City misapprehends the purpose of Rule 65. The Second Circuit has
recently fully explained this issue:
Rule 65(d) provides that “[e]very order granting an injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail – and not by referring to the complaint or other document – the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1). We have interpreted Rule 65(d) as requiring that “an injunction . . . be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.” S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240-41 (2d Cir. 2001) (internal quotation marks omitted). The Supreme Court has explained: “[T]he specificity provisions of Rule 65(d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (footnotes and citations omitted). Rule 65(d) is satisfied “only if the enjoined party can ascertain from the four

17 18
2001).

Zuckerman Letter at 2. S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir.
9

corners of the order precisely what acts are forbidden or required.” Petrello v. White, 533 F.3d 110, 114 (2d Cir. 2008) (internal quotation marks omitted).19 The purpose of Rule 65(d) is to ensure specificity, not breadth. The Rule requires that an injunction state specifically what defendants are and are not to do. In any event, plaintiffs intend to seek changes in supervision, training, and monitoring that will go “far beyond a simple command to obey the law.”20 If the evidence produced by plaintiffs warrants relief, the Court will be sure to craft an injunction that gives defendants “explicit notice of precisely what conduct is outlawed.”21 Finally, the City argues that “the decision to focus solely on the Bronx may lead to inconsistent adjudications later.”22 It is indeed possible that plaintiffs will present sufficient evidence to warrant a preliminary injunction in that borough and insufficient evidence regarding unconstitutional behavior in other parts of New York City to justify a broader injunction. Tailoring injunctions narrowly is a classic judicial function:
19 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143-44 (2d Cir. 2011).
20 Dunn Letter at 2. 21 Schmidt, 414 U.S. at 476. 22 Zuckerman Letter at 1.
10

Although a district court has "a wide range of discretion in framing an injunction in terms it deems reasonable to prevent wrongful conduct," it is nonetheless "the essence of equity jurisdiction" that a court is only empowered "to grant relief no broader than necessary to cure the effects of the harm caused by the violation." Forschner Grp., Inc. v. Arrow Trading Co., 124 F.3d 402,406 (2d Cir. 1997) (internal quotation marks omitted). We have instructed that injunctive relief should be "narrowly tailored to fit specific legal violations" Peregrine Myanmar Ltd. v. Segal, 89 F.3d 41,50 (2d Cir. 1996) (internal quotation marks omitted), and that the court must "mould each decree to the necessities of the particular case," Forschner Grp., 124 F.3d at 406 (internal quotation marks omitted).23
I do not know precisely what evidence the parties will present at the preliminary
injunction hearing. The evidence may warrant no injunction, a City-wide injunction,
or a Bronx-specific injunction. In principle, however, there is nothing improper about
the last option.
For the reasons stated above, defendants' request to summarily reject
plaintiffs' motion for a preliminary injunction is denied.

Dated:

August 21,2012 New York, New York

23 Mickalis Pawn Shop, 645 F.3d at 144.
11

For Plaintiffs:

- Appearances -

Alexis Karteron, Esq. Christopher Dunn, Esq. Daniel Mullkoff, Esq. Taylor Pendergrass, Esq. New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607-3300

John Nathanson, Esq. Mayer Grashin, Esq. Paige Berges, Esq. Tiana Peterson, Esq. Shearman & Sterling LLP (NY) 599 Lexington Avenue New York, NY 10022 (212) 848-8611

Foster Maer, Esq. Roberto Concepcion, Esq. Latinojustice Prldef 99 Hudson Street New York, NY 10013 (212) 739-7507

Juan Cartagena, Esq. Community Service Society 105 E. 22nd St., 8th Floor New York, NY 10010 (212) 254-8900

J. McGregor Smyth, Jr., Esq. Mariana Kovel, Esq. The Bronx Defenders 860 Courtlandt Ave. Bronx, NY 10451 (718) 838-7885

For Defendants:

Mark Zuckerman Heidi Grossman Joseph Marutollo Richard Weingarten Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 442-8248
12

 
 Case 1:12-cv-02274-SAS-HBP Document 57 Filed 10/11/12 Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------­ )(
JAENEAN LIGON, individually and on behalf of her minor son, J.G., FAWN BRACY, individually and on behalf of her minor son, W.B., JACQUELINE YATES, LETITIA LEDAN, ROSHEA JOHNSON, IGERON JOHNSON, JOVAN JEFFERSON, A.O., by his parent DINAH ADAMES, ABDULLAH TURNER, FERNANDO MORONTA, and CHARLES BRADLEY, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
- against-
CITY OF NEW YORK, RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICER JOHNNY BLASINI, POUCEOFnCERGREGORY LOMANGINO, POLICE OFFICER JOSEPH KOCH, POLICE OFFICER IGERON RAMDEEN, POLICE OFFICER JOSEPH BERMUDEZ, POLICE OFFICER MIGUEL SANTIAGO, and POLICE OFFICERS JOHN DOE 1-12,
Defendants.
-------------------------------------------------------­ )(

ORDER 12 Civ. 2274 (SAS)

1

Case 1:12-cv-02274-SAS-HBP Document 57 Filed 10/11/12 Page 2 of 3
SHIRA A. SCHEINDLIN, U.S.D.J.:
For the reasons stated at today's conference, plaintiffs' Motion in Limine is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 46].
SO ORDERED:

Dated:

October 11,2012 New York, New York

2 


Case 1:12-cv-02274-SAS-HBP Document 57 Filed 10/11/12 Page 3 of 3

- Appearances ­

For Plaintiffs:
Alexis Brie Karteron, Esq. 
 Christopher T. Dunn, Esq. 
 New York Civil Liberties Union 
 125 Broad Street, 17th floor 
 New York, NY 10004 
 (212) 607-3300 

Foster S. Maer, Esq. 
 Puerto Rican Legal Defense and 
 Education Fund, Inc. 
 99 Hudson Street, 14th Floor 
 New York, NY 10013 
 (212) 739-7507 

Mariana Louise Kovel, Esq. 
 The Bronx Defenders 
 860 Courtlandt Avenue 
 Bronx, NY 10451 
 (718) 508-3421 

Tiana Jeanne Peterson, Esq. 
 Shearman & Sterling LLP 
 599 Lexington Avenue 
 New York, NY 10022 
 (212) 848-5222 


For Defendants:
Heidi Grossman Joseph Anthony Marutollo Mark David Zuckerman Richard Keith Weingarten New York City Law Department 100 Church Street New York, NY 10007 
 (212) 788-1300 


3 


 
 Case 1:12-cv-02274-SAS-HBP Document 96 Filed 01/08/13 Page 1 of 157

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------- )(
JAENEAN LIGON, individually and on behalf of her minor son, J.G.; FAWN BRACY, individually and on behalf of her minor son, W.B.; JACQUELINE YATES; LETITIA LEDAN; ROSHEAJOHNSON; KIERON JOHNSON; JOVAN JEFFERSON; A.O., by his parent DINAH ADAMES; ABDULLAH TURNER; FERNANDO MORONTA; and CHARLES BRADLEY, individually and on behalf of a class of all others similarly situated,
Plaintiffs,
- against-
CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; POLICE OFFICER JOHNNY BLASINI; POLICE OFFICER GREGORY LOMANGINO; POLICE OFFICER JOSEPH KOCH; POLICE OFFICER KIERON RAMDEEN; POLICE OFFICER JOSEPH BERMUDEZ; POLICE OFFICER MIGUEL SANTIAGO; and POLICE OFFICERS JOHN DOE 1-12,
Defendants.
-------------------------------------------------------- )(

OPINION & ORDER 12 Civ. 2274 (SAS)

Case 1:12-cv-02274-SAS-HBP Document 96 Filed 01/08/13 Page 2 of 157
I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION. . . . . . . . . . . 10
III. APPLICABLE LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Sources of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. The Fourth Amendment, Stops, and Reasonable Suspicion. . . . . . . . 16 C. Criminal Trespass under New York State Law.. . . . . . . . . . . . . . . . . 20 D. De Bour. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. FINDINGS OF FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Evidence of an Unconstitutional Practice or Custom of the NYPD. . 23
1. Findings of Fact Regarding Testimony of ADA Rucker and Decline to Prosecute Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. Findings of Fact Regarding Plaintiffs’ Stops. . . . . . . . . . . . . . 32 a. Charles Bradley’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 35 b. Abdullah Turner’s Stops.. . . . . . . . . . . . . . . . . . . . . . . . 41 c. J.G.’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 d. Jerome Grant’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 e. Roshea Johnson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 54 f. Letitia Ledan’s Stops. . . . . . . . . . . . . . . . . . . . . . . . . . . 57 g. Fernando Moronta’s Stop. . . . . . . . . . . . . . . . . . . . . . . . 59 h. Kieron Johnson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 61 i. Jovan Jefferson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 63
3. Expert Testimony Regarding UF-250 Forms. . . . . . . . . . . . . . 66
B. Steps Taken by the NYPD in 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . 81
1. NYPD Recognition of a Problem in TAP.. . . . . . . . . . . . . . . . 83 2. Interim Orders 22 and 23 of 2012.. . . . . . . . . . . . . . . . . . . . . . 84 3. Absence of Steps Meaningfully Addressing Outdoor TAP
Stops. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
V. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2

Case 1:12-cv-02274-SAS-HBP Document 96 Filed 01/08/13 Page 3 of 157
A. Standing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 B. Preliminary Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
1. Clear or Substantial Likelihood of Success on the Merits. . . . 95 a. Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . 97 i. ADA Rucker’s Testimony. . . . . . . . . . . . . . . . . . 97 ii. Plaintiffs’ Stops. . . . . . . . . . . . . . . . . . . . . . . . . . 98 iii. Decline to Prosecute Forms. . . . . . . . . . . . . . . . 104 iv. Dr. Fagan’s Analysis. . . . . . . . . . . . . . . . . . . . . 106 v. Notice to Defendants. . . . . . . . . . . . . . . . . . . . . 117 vi. Legal Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . 118 b. Failure to Rebut Deliberate Indifference Claim Based on Steps Taken by NYPD in 2012.. . . . . . . . . . . . . . . . . . 120
2. Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 3. Balance of Equities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 4. Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
C. Appropriate Scope of Injunctive Relief.. . . . . . . . . . . . . . . . . . . . . . 140
1. Immediate Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 2. Proposed Additional Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . 144
a. Policies and Procedures. . . . . . . . . . . . . . . . . . . . . . . . 145 b. Supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 c. Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 d. Attorneys’ Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
APPENDIX B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
3

Case 1:12-cv-02274-SAS-HBP Document 96 Filed 01/08/13 Page 4 of 157
SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
This case, filed in 2012, is one of three cases currently before this
Court challenging aspects of the New York City Police Department’s “stop and frisk” practices.1 Of the three cases, this case is the most narrow. It deals only
with stops made by the police on suspicion of trespass outside of certain privately-
owned buildings in the Bronx. But the legal issues raised by this case have roots
that stretch back decades.
In 1964, New York adopted the first version of its stop and frisk law,
which has since been amended several times. The essence of the law is that a
police officer may stop a person in a public place when he reasonably suspects that
such person is committing, has committed, or is about to commit a crime, and the
1 Floyd v. City of New York, filed in 2008, challenges the NYPD’s stop and frisk practices in general, arguing among other things that the NYPD is systematically violating the rights of New York City’s residents and visitors under the Fourth Amendment to be free from unreasonable searches, and under the Fourteenth Amendment to be free from discrimination on the basis of race. See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012) (granting class certification). Davis v. City of New York, filed in 2010, focuses on stop and frisk practices at public housing properties run by the New York City Housing Authority (“NYCHA”). Plaintiffs in Davis argue that the NYPD uses unlawful stops, searches, and arrests to enforce the prohibitions against trespassing on public housing property. See Davis v. City of New York, — F. Supp. 2d —, 2012 WL 4813837, at *1 (S.D.N.Y. Oct. 9, 2012) (granting in part and denying in part defendants’ motions for summary judgment regarding individual plaintiffs’ arrests and tenancies).
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officer may demand of him his name, his address, and an explanation of his conduct. Upon stopping a person, if the police officer reasonably suspects that he is in danger of physical injury, he may search the person for a deadly weapon.2
This law and the policing practices associated with it have raised a host of difficult questions, including: (1) what is reasonable suspicion; (2) what constitutes a stop; (3) what is a public place; (4) when is a stopped person free to walk away from the police; and (5) when does an officer have grounds to reasonably suspect that he is danger of physical injury. None of these questions are easily answered.
In 1968, the United States Supreme Court heard a challenge to New York’s stop and frisk statute in the context of two criminal convictions, and made some important points that bear repeating today.3 First, the Court held that although states may develop their own laws on stop and frisk, they may not “authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.”4 The Court stated, in no

2 See generally New York Criminal Procedure Law (“CPL”) § 140.50.

3 See generally Sibron v. State of New York, 392 U.S. 40 (1968) (reversing conviction for failure to suppress evidence seized in an unlawful stop, and affirming conviction in a related appeal, finding that the seizure in latter case was reasonable under the Fourth Amendment).

4

Id. at 61.

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uncertain terms, that the question is not whether a particular search was authorized by state law but “‘whether the search was reasonable under the Fourth Amendment.’”5 Second, the Court held that it would not judge the constitutionality of the New York statute on its face, but rather as applied to the particular facts of the two cases it was reviewing.6 Third, the Court stressed that a police officer must have reasonable grounds before he seizes a person. In that regard the Court stated: “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries.”7
In confronting the issues addressed in this Opinion, I am keenly aware that this Court does not stand in the shoes of the Police Department and is in no way qualified or empowered to engage in policy determinations. The sole role of the Court is to interpret and apply the law — in this case the Fourth Amendment of the United States Constitution as interpreted by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit — to the
5 Id. (quoting Cooper v. State of California, 386 U.S. 58, 61 (1967)). 6 See id. (“Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.”). 7 Id. The Court continued: “Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Id.
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specific facts before it. I have endeavored faithfully to carry out that limited role. My object here is only to clarify what the law permits — and does not permit — an officer to do when initiating and conducting a stop or stop and frisk of people in the public areas outside of certain privately owned buildings in the Bronx.
Plaintiffs, all of whom are African-American or Latino residents of New York,8 argue that the Police Department has a widespread practice of making unlawful stops on suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.9 This program allows “police officers to patrol inside and around thousands of private residential apartment buildings throughout New York City.”10 Plaintiffs argue that the NYPD’s trespass stops outside TAP buildings are often made without reasonable suspicion, and thus
8 See Complaint ¶¶ 11–23. 9 See Ligon v. City of New York, No. 12 Civ. 2274, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012) (allowing preliminary injunction hearing to proceed). For the history of TAP, see infra Part IV.B. Plaintiffs’ Complaint concerns stops in and around TAP buildings throughout New York City, but plaintiffs’ motion for preliminary injunction focuses solely on outside stops in the Bronx. See Ligon, 2012 WL 3597066, at *3–4; Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (“Class Mem.”) at 1 n.1. 10 See Ligon, 2012 WL 3597066, at *1.
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violate the Fourth Amendment.11 Plaintiffs stated that such stops have caused them to feel “violated,”12 “disrespected,”13 “angry,”14 and “defenseless.”15 As the Supreme Court noted in Terry v. Ohio, even limited stops and searches represent “an annoying, frightening, and perhaps humiliating experience,”16 and thus must be based on reasonable suspicion.
On September 24, 2012, plaintiffs filed a motion for a preliminary injunction, seeking an order requiring the NYPD to create and implement new policies, training programs, and monitoring and supervisory procedures that specifically address the problem of unconstitutional trespass stops outside TAP buildings.17 The preliminary injunction hearing took place between October 15 and November 7, 2012.18 This Opinion addresses plaintiffs’ motion.
11 See Plaintiffs’ Revised Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”) ¶¶ 64–67, 69–70.
12 Transcript of Preliminary Injunction Hearing (“Tr.”) 10/16 at 275:8. 13 Id. at 349:1. 14 Tr. 10/17 at 444:2. 15 Id. at 486:1. 16 392 U.S. 1, 25 (1968). 17 See Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 21; Pl. Findings ¶¶ 72–75. 18 See Tr. 10/15 at 1; Tr. 11/7 at 1282.
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I begin by summarizing the relevant legal standards, then state my findings of fact and conclusions of law. Based on all the evidence presented at the hearing, I conclude that plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx. This conclusion is based on five categories of evidence, briefly summarized here and fully explored below: (1) the testimony of Bronx Assistant District Attorney Jeannette Rucker (“ADA Rucker”), who concluded that the NYPD frequently made trespass stops outside TAP buildings in the Bronx for no reason other than that the officer had seen someone enter and exit or exit the building; (2) a sample of “decline to prosecute” forms prepared by the Bronx District Attorneys’ Office, which revealed the alarming frequency of unlawful trespass stops in the vicinity of TAP buildings in the Bronx; (3) the testimony of eight plaintiffs and a non-party witness, who described remarkably similar encounters with the police when stopped in the vicinity of TAP buildings in the Bronx; (4) the analysis by Dr. Jeffrey Fagan, plaintiffs’ expert, of an NYPD database of recorded stops, which provided further evidence of the frequency of apparently unlawful trespass stops outside TAP buildings in the Bronx; and (5) NYPD training materials that continue to misstate the minimal constitutional standards for making stops.
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In sum, while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat.19 In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.
As a result, plaintiffs are entitled to a preliminary injunction. However, with one exception, I am not yet ordering relief pending a further hearing on the appropriate scope of such relief. II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION
“‘A preliminary injunction is an extraordinary remedy never awarded as of right.’”20 In general, to obtain a preliminary injunction, the moving party must establish: (1) “that [it] is likely to succeed on the merits,” (2) “that [it] is
19 To echo language quoted by Justice Thurgood Marshall, the evidence in this case “has evoked images of other days, under other flags, when no man traveled . . . without fear of unwarranted interruption.” Bostick, 501 U.S. at 443 (Marshall, J., dissenting) (quotation marks and citation omitted).
20 UBS Fin. Servs., Inc. v. West Virginia Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
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likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips in [its] favor,” and (4) “that an injunction is in the public interest.”21 The Second Circuit has held that the moving party may be entitled to a preliminary injunction even if the party is unable to establish a likelihood of success on the merits, provided that the party demonstrates “‘a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor.’”22 In addition, when the moving party seeks a “mandatory” injunction, that is, an injunction that commands action rather than merely prohibiting it, the standard is higher: “[W]here ‘the injunction sought will alter rather than maintain the status quo,’ the movant must show [a] ‘clear’ or
21 Winter, 555 U.S. at 20 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero–Barcelo, 456 U.S. 305, 311–12 (1982)). See also Fed. R. Civ. P. 65(a) (preliminary injunctions).
22 Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (quoting Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010)). Accord Pamlab, L.L.C. v. Macoven Pharm., L.L.C., — F. Supp. 2d —, 2012 WL 2540234, at *3 (S.D.N.Y. June 29, 2012) (recognizing that the Supreme Court in Winter “cast some doubt on the continuing viability” of the Second Circuit’s “serious questions” prong, but noting that “the Second Circuit has since held that ‘our venerable standard for assessing a movant’s probability of success on the merits remains valid’” (quoting Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010))).
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‘substantial’ likelihood of success.”23
Because plaintiffs seek mandatory injunctive relief including the
drafting and distribution of new policies, the development and implementation of
new training programs, and the implementation of new monitoring and supervision procedures,24 they must establish a clear or substantial likelihood that they will
succeed at trial.
III. APPLICABLE LAW
A. Sources of Liability
Plaintiffs bring a claim under 42 U.S.C. § 1983 alleging violations of
their Fourth Amendment rights by the City of New York and several of its employees.25 As the Supreme Court established in Monell v. New York City
23 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (quoting Jolly v. Coughlin, 76 F.3d 468, 473–74 (2d Cir. 1996)). The Second Circuit has recognized that “[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics, and that in a close case an injunction can be framed in mandatory or prohibitory terms.” Jolly, 76 F.3d at 474 (quotation marks and citations omitted).
24 See Pl. Findings ¶¶ 72–75. 25 See Compl. ¶¶ 1, 203. 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
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Department of Social Services,26 in order to have recourse against a municipality or
other local government under section 1983, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.”27
In general, “[o]fficial municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”28
One way to establish an official policy is through a showing of
“deliberate indifference” by high-level officials. “‘[W]here a policymaking official
exhibits deliberate indifference to constitutional deprivations caused by
subordinates, such that the official’s inaction constitutes a deliberate choice, that
shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 26 436 U.S. 658 (1978). Interpreting the language of section 1983 and the legislative history surrounding its passage in the Civil Rights Act of 1871, the Court in Monell held that local governing bodies could be held liable either on the basis of formally approved policy or on the basis of “‘customs’” or “‘usages.’” Id. at 690–91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970)). Later cases have “considerably broadened the concept of official municipal action.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004). 27 Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011), in turn quoting Monell, 436 U.S. at 691). 28 Connick, 131 S.Ct. at 1359 (citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986); Adickes, 398 U.S. at 167–68).
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acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.’”29 “Deliberate indifference” requires “‘proof that a municipal actor disregarded a known or obvious consequence of his action.’”30
Recognizing that “deliberate indifference” is “a stringent standard of
fault,” the Second Circuit requires “that the policymaker’s inaction was the result of ‘conscious choice’ and not ‘mere negligence.’”31 The Second Circuit has held
that municipal liability can be established “by demonstrating that the actions of
subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers.”32
29 Cash, 654 F.3d at 334 (quoting Amnesty, 361 F.3d at 126). 30 Connick, 131 S.Ct. at 1359 (quoting Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). 31 Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct at 1360; Amnesty, 361 F.3d at 128). 32 Sorlucco v. City of New York, 971 F.2d 864, 871 (2d Cir. 1992) (emphasis added), quoted with approval by Amnesty, 361 F.3d at 126; Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009). Though the Second Circuit has not explicitly reaffirmed the “constructive acquiescence” theory of Monell liability articulated in Sorlucco since the Supreme Court decided Connick, the Second Circuit noted in Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012), that the plaintiff there could have established municipal liability by showing:
a sufficiently widespread practice among police officers of abuse of the rights of black people to support reasonably the conclusion that such abuse was the custom of the officers of the Department
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A municipality may incur Monell liability based on deliberate indifference through its training practices. Although “[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,”33 the Supreme Court has held that “[w]hen city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program.”34 “[D]eliberate indifference may be inferred where ‘the need for more or better supervision to protect against constitutional violations was obvious,’ but the policymaker ‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]’”35
and that supervisory personnel must have been aware of it but took no adequate corrective or preventive measures (or some combination of the two). Jones, 691 F.3d at 82. The Second Circuit thus continues to hold that if a practice of misconduct is sufficiently widespread, the municipality may be assumed to have acquiesced in it, even in the absence of direct evidence of such acquiescence. 33 Connick, 131 S.Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)). 34 Id. (citing Bryan Cty., 520 U.S. at 407). 35 Cash, 654 F.3d at 334 (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). Cash reaffirmed the validity of the three-part framing of the failure-to-train inquiry
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B. The Fourth Amendment, Stops, and Reasonable Suspicion
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment,36 states: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .”37
As interpreted by the courts, the Fourth Amendment prohibits arrest without
probable cause, but allows the police to “‘stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
in Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992), summarized as:
(1) policymaker knows “to a moral certainty” that its employees will confront a given situation; (2) either situation presents employees with difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling situation; and (3) wrong choice by employees will frequently cause deprivation of constitutional rights.
Cash, 654 F.3d at 334. “Where the plaintiff establishes all three elements, then . . . the policymaker should have known that inadequate training or supervision was ‘so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.’” Walker, 974 F.2d at 298 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
36 See Maryland v. Pringle, 540 U.S. 366, 369 (2003) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
37 U.S. CONST. amend. IV. 16

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articulable facts that criminal activity “may be afoot,” even if the officer lacks probable cause.’”38 “This form of investigative detention is now known as a Terry stop.”39
“While ‘reasonable suspicion’ is a less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.”40 “‘The officer [making a Terry stop] . . . must
be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’”41 “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.”42
38 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Under New York law, the justifications required for different levels of police intrusion were established in People v. De Bour, 40 N.Y.2d 210 (1976). See infra Part III.D. States may impose greater restrictions on police conduct than those established by the Fourth Amendment, but “may not . . . authorize police conduct which trenches upon Fourth Amendment rights.” Sibron, 392 U.S. at 61.
39 Davis, 2012 WL 4813837, at *2 (citing Terry, 392 U.S. at 88). 40 Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 41 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7) (certain quotation marks omitted). Courts are divided over whether reasonable suspicion must be of a particular crime, or may be of criminality in general. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.5(c) (5th ed. 2012). 42 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
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It is sometimes the case that a police officer may observe “a series of acts, each of them perhaps innocent in itself, but which taken together warrant[] further investigation.”43 “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”44 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”45
Courts reviewing stops for reasonable suspicion “must look at ‘the totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”46 “[T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing.”47
The test for whether a Terry stop has taken place outdoors is whether

43 Terry, 392 U.S. at 22.

44
(1979)).

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

45 Id. (quoting Adams v. Williams, 407 U.S. 143, 144 (1972)).

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

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

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“a reasonable person would feel free ‘to disregard the police and go about his business.’”48 “‘[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.’”49 “[P]olice questioning, by
itself, is unlikely to result in a Fourth Amendment violation . . . [u]nless the
circumstances of the encounter are so intimidating as to demonstrate that a
reasonable person would have believed he was not free to leave if he had not responded.”50 The Second Circuit has held that “[a] seizure occurs when (1) a
person obeys a police officer’s order to stop or (2) a person that does not submit to an officer’s show of authority is physically restrained.”51 Both Terry stops and
48 Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). Accord United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). In an enclosed space, such as a bus, this test may be rephrased as “‘whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” United States v. Drayton, 536 U.S. 194, 202 (2002) (quoting Bostick, 501 U.S. at 436). Bostick also notes that “the ‘reasonable person’ test presupposes an innocent person.” Bostick, 501 U.S. at 438. For a comprehensive summary of the “free to leave” test as it has been interpreted and applied, see LAFAVE, SEARCH & SEIZURE § 9.4(a).
49 Brown, 443 U.S. at 50 (quoting Terry, 392 U.S. at 16). 50 INS v. Delgado, 466 U.S. 210, 216 (1984). 51 United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009) (citing Swindle, 407 F.3d at 572).
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arrests constitute “seizures” under the Fourth Amendment.52
C. Criminal Trespass under New York State Law
Criminal trespass is defined under section 140 of the New York Penal
Law. As the Appellate Division, First Department, of the Supreme Court of New
York recently stated in a case concerning alleged trespass in a Clean Halls
building:
A person is guilty of criminal trespass in the second degree when, in pertinent part, he “knowingly enters or remains unlawfully in a dwelling” (Penal Law § 140.15[1]). A person “enters or remains unlawfully” in or upon premises “when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is ‘licensed or privileged’ to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent” (People v. Graves, 76 N.Y.2d 16, 20 . . . [1990]). The prosecution bears the burden of proving the absence of such license or privilege (People v. Brown, 25 N.Y.2d 374, 377 . . . [1969]).53
The trespass law also states:
A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part
52 See Terry, 392 U.S. at 16–20. 53 In re Lonique M., 939 N.Y.S.2d 341, 343 (1st Dep’t 2012).
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of the building which is not open to the public.54
D. De Bour
In People v. De Bour, the New York Court of Appeals established a
four-level test for determining the legality of encounters between police officers
and civilians under New York state law. The more intrusive the encounter, the
more justification required:
• Level 1: Approach to Request Information: “If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality.”55
• Level 2: The Common-Law Right of Inquiry: “Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is [engaged in] a common-law inquiry that must be supported by a founded suspicion that criminality is afoot.”56
• Level 3: Forcible Stop: “Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.”57 A Level 3 stop is legally equivalent to a Terry
54 N.Y. Penal Law § 140.00. 55 People v. Hollman, 79 N.Y.2d 181, 184 (1992) (reaffirming De Bour despite case law suggesting that the Fourth Amendment does not protect against police-initiated encounters falling short of seizures). 56 Id. at 184–85 (emphasis added). 57 Id. at 185 (emphasis added).
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stop, and New York state court opinions generally refer to Level 3 De Bour stops and Terry stops interchangeably.58
• Level 4: Arrest: “Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.”59
At least in the context of police encounters inside TAP and NYCHA
buildings, New York courts have often identified requests for name and purpose in
the building as Level 1 questions.60 Mere presence in a drug-prone NYCHA
building with a history of trespassing has been identified as an objective, credible
reason justifying Level 1 questioning.61 Level 1 questioning of someone exiting a
58 See, e.g., People v. Reyes, 651 N.Y.S.2d 431, 432–33 (1st Dep’t 1996); People v. Francis, 847 N.Y.S.2d 398, 401 (Sup. Ct. Bronx Co. 2007).
59 Hollman, 79 N.Y.2d at 185. 60 See, e.g., People v. Hendricks, 841 N.Y.S.2d 94, 94 (1st Dep’t 2007) (holding that NYCHA building’s “history of drug activity and trespassing” provided “objective, credible reason” for Level 1 inquiry “to determine if defendant was legitimately in the building”); People v. Anderson, 759 N.Y.S.2d 676, 676 (1st Dep’t 2003) (holding that group of nine or ten people descending staircase in drug-prone TAP building provided objective credible reason to ask defendant whether he lived there, “‘which constituted a level one request for information and not a common-law inquiry’” (quoting People v. Tinort, 709 N.Y.S.2d 511, 511 (1st Dep’t 2000))). 61 See Hendricks, 841 N.Y.S.2d at 94. Level 1 questioning of a person in a NYCHA building requires “[a]t a minimum, . . . evidence of prior criminality” in the building. People v. Ventura, 913 N.Y.S.2d 543, 546–47 (Sup. Ct. N.Y. Co. 2010). “To the extent that . . . in public housing the police routinely engage in random, unjustified questioning — and there is evidence that they do — the practice would amount to a systematic violation of De Bour.” Id. at 547 (citing
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TAP building, on the other hand, appears to require more than a history of drug activity in the building.62
IV. FINDINGS OF FACT
A. Evidence of an Unconstitutional Practice or Custom of the NYPD
At the hearing, plaintiffs offered three categories of evidence in
support of their contention that the NYPD has a practice of making
unconstitutional trespass stops outside Clean Halls buildings in the Bronx. First,
plaintiffs offered the testimony of ADA Rucker regarding her concerns about
trespass stops and arrests at Clean Halls buildings, corroborated by “decline to
prosecute” forms from the Bronx District Attorney’s office. Second, plaintiffs
offered testimony regarding their personal experiences of having been stopped outside Clean Halls buildings.63 Third, plaintiffs offered the expert testimony of
Adam Carlis, The Illegality of Vertical Patrols, 109 COLUM. L. REV. 2002 (2009)). 62 See, e.g., People v. Kojac, 671 N.Y.S.2d 949, 953–54 (Sup. Ct. N.Y.
Co. 1998) (“The police are not justified in approaching an individual merely because he exits [a TAP building] known for its high incidence of drug activity.”). See also People v. Almonte, No. 0209/2009, 2011 WL 864940, at *2 (Sup. Ct. Bronx Co. Mar. 8, 2011) (suggesting that decisions upholding Level 1 questioning of individuals exiting TAP buildings have “noted some additional factor” other than location, such as defendant’s conduct not being innocuous).
63 Plaintiffs introduced testimony regarding eleven stops. See infra Part IV.A.2. All of the stops were of named plaintiffs except the July 2011 stop of nonparty witness Jerome Grant, a relative of two named plaintiffs. See infra Part IV.A.2.d. For convenience, when making general statements about the personal
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Dr. Jeffrey Fagan regarding the number and nature of trespass stops outside Clean Halls buildings.
I address each of these categories of evidence in turn. 1. Findings of Fact Regarding Testimony of ADA Rucker and
Decline to Prosecute Forms Since 2007, ADA Rucker has been chief of the complaint and arraignments bureau at the Bronx DA. In this position, she oversees the arrest to arraignment process, ensuring “that we evaluate all cases that are coming through and making sure we are doing the right thing.” ADA Rucker testified that around 2007 she started to become concerned about cases in which people were being stopped and then arrested based solely on their having entered or exited a Clean Halls building. Especially in 2009, judges began dismissing these cases frequently, sometimes saying that the police had no right to approach the arrested person in the first place.64 ADA Rucker also started to receive a steady stream of complaints about trespass arrests from the defense bar, the Legal Aid Society, and the Bronx
testimony of stops offered at the hearing, I will often refer to named plaintiffs and non-party witness Jerome Grant collectively as “plaintiffs.”
64 See Tr. 10/15 at 168–75. 24

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Defenders.65 At first, she ignored the complaints. But in 2010, her staff began
telling her that judges were not only dismissing trespass cases, but were finding
evidence that the defendant lived in the building where the trespass was said to have occurred.66
Finally, in 2011, ADA Rucker investigated the law governing trespass
stops based on entry to and exit from a Clean Halls building, and she determined that the office’s position on the prerequisites for a legal stop had been wrong.67
She sent memos to a number of commanders and other police officials clarifying
that, contrary to previous statements, observing someone exiting a Clean Halls building is not by itself a sufficient justification for a stop.68 ADA Rucker testified
that she sent the memos in her official capacity, and that the memos expressed the views of the Bronx DA’s office.69
65 See id. at 175:20–22. The Bronx Defenders are co-counsel for plaintiffs in this case.
66 See id. at 175:21–25, 176:2–8. 67 See id. at 176:9–23. 68 See id. at 176:14–177:22, 180:19–181:21; 7/7/11 Letter from ADA Rucker to Deputy Inspector William McSorley (“7/7/11 Rucker Letter”), Plaintiffs’ Exhibit (“Pl. Ex.”) 6. See also Tr. 10/15 at 184:7–185:17; 7/13/11 Memo from ADA Rucker to ADAs, Pl. Ex. 7 at 2 (explaining that Bronx DA would decline to prosecute trespass cases where stop was based on nothing more than entry and exit from Clean Halls building). 69 See Tr. 10/15 at 182:11–183:8.
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I find ADA Rucker’s testimony credible. It is no small matter when
an ADA publicly suggests that the NYPD has been engaged in a recurring pattern
of unlawful stops. Such testimony is entitled to significant weight. A prosecutor
has professional and institutional incentives to be skeptical of allegations that the
police are making stops and arrests without a legal basis. That ADA Rucker
overcame her skepticism says a great deal about the severity of the problem she
came to recognize. I also note that the NYPD itself found ADA Rucker
sufficiently trustworthy to allow her to train police officers regarding procedures in the complaint room.70
Yet defendants argue that ADA Rucker’s impression that a problem
existed regarding unlawful trespass stops at Clean Halls buildings was unfounded,
and in fact rested only on the two specific cases she discussed in detail at the hearing.71 Defendants’ argument is without merit. ADA Rucker made clear that
70 See id. at 170:12–173:17. Throughout this opinion, for convenience, I will refer to NYPD trainees as “officers,” though in some cases the training involves “recruits.” See Tr. 10/19 at 839:18–24.
71 See Defendants’ Proposed Findings of Fact and Conclusions of Law (“Def. Findings”) ¶¶ 11–14. One case involved an anonymous letter whose author claimed to have been arrested for trespass while leaving a friend’s building with the friend. See Tr. 10/15 at 190:17–20; Tr. 10/16 at 239:1–240:22; 3/13/12 Anonymous Letter to ADA Rucker, Pl. Ex. 11. The other involved a stop inside a Clean Halls building, and was brought to ADA Rucker’s attention by the Bronx Defenders. See Tr. 10/15 at 196:13–198:15; Tr. 10/16 at 241:5–243:2. In the latter case, according to ADA David Grigoryan, who performed an investigation at ADA
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over the years she learned of “many” cases involving unlawful trespass stops at
Clean Halls buildings,72 that “the judges kept dismissing” them,73 that “[a]t least
five” judges had dismissed Clean Halls trespass cases based on lack of probable
cause,74 and that her concerns were also based on complaints from other ADAs,
phone calls from the arraignment parts, and ADAs coming to her after leaving
court, or when sent to her by their supervisors.75 ADA Rucker explicitly stated on
cross-examination that her concerns were not based only on the anonymous letter
Rucker’s request, the defendant was stopped and questioned for no specified reason at his sister’s building, where he was apparently staying, and then the defendant was arrested because he failed to provide his sister’s name or apartment number. See Tr. 10/18 at 609:7–614:19, 617:25–619:9. ADA Grigoryan testified that in his opinion this arrest was “absolutely valid.” Id. at 611:14.
72 Tr. 10/15 at 176:7–8. 73 Id. at 176:10–11. 74 Tr. 10/16 at 234:9. 75 See id. at 237:13–238:8, 239:11–24, 240:6–7, 243:13–18, 244:6–12. Further support for ADA Rucker’s criticisms can be found in the opinions of New York state courts. See, e.g., Almonte, 2011 WL 864940, at *1 (criticizing police officer who was apparently “operating under the assumption that he had the authority to identify anyone leaving a trespass affidavit building”). Other cases describe problems with stops and arrests inside TAP buildings. See, e.g., People v. Ruiz, No. 056832C-2006, 2007 WL 1428689, at *3–4 (Sup. Ct. Bronx Co. May 15, 2007) (chastising NYPD after apparently unlawful trespass arrest inside Clean Halls building, and concluding: “One hopes the New York City Police Department will better train its officers in the realm of Criminal Trespass so that only true trespassers will be arrested, and innocents will be spared.”).
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and the indoor stop highlighted by defendants.76 To the extent that ADA Rucker’s concerns were based partly on
statements made by non-parties who did not testify at the hearing and whose statements do not fall under any hearsay exception, I give no weight to the truth of those statements. I do not accept, however, the insinuation that ADA Rucker invented the problem of unlawful Clean Halls trespass stops in order to lessen the Bronx DA’s caseload,77 or that she imagined the dismissed trespass cases under pressure from the Bronx Defenders.78 ADA Rucker’s concerns are independently corroborated by numerous “decline to prosecute” affidavit forms. As ADA Rucker explained, the Bronx DA’s office produces these affidavits after a police officer or witness is interviewed and the office declines to prosecute the case.79
The decline to prosecute forms are an important source of information and I have reviewed each of them. Plaintiffs entered into evidence twenty-six
76 See Tr. 10/16 at 237:13–16. Accord Tr. 10/15 at 202:22–203:20 (ADA Rucker rejecting mischaracterization of her views in 9/6/12 Letter from Police Commissioner Raymond W. Kelly to Bronx County District Attorney Robert Johnson, Pl. Ex. 12); Tr. 10/16 at 235:3–7 (ADA Rucker explaining that she had orally conveyed details of other cases to the NYPD).
77 See Tr. 10/16 at 246:8–248:14. 78 See id. at 222:9–224:2. 79 See id. at 213:5–7.
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forms generated by the Bronx DA’s office in support of its decision not to
prosecute cases involving arrests for trespass outside TAP buildings in the Bronx over three sample months in 2011.80 Without giving weight to the truth of any
hearsay statements attributed to arrestees in the decline to prosecute forms, the
forms persuasively show that ADA Rucker was not alone in the Bronx DA’s office
in perceiving a recurring problem involving legally unjustified trespass stops and arrests outside Clean Halls buildings.81 Defendants concede that the forms are, at
minimum, admissible “for the limited purpose of establishing that officers’
observations of entries/exits were the bases for the underlying stops,” though
defendants question whether the forms can support this finding in the absence of
80 See Pl. Findings ¶ 16 n.1; Tr. 10/16 at 210:17–220:25; Tr. 10/17 at 508:11–509:20; Bronx DA Decline to Prosecute Affidavits (“Decline Prosecute Affs.”), Pl. Ex. 74. Plaintiffs’ Exhibit 74 contains thirty-one forms, but plaintiffs later conceded that only twenty-eight forms expressly identify the building outside of which the stop took place as a TAP building. See Pl. Findings ¶ 16 n.2 (referring to Decline Prosecute Affs. at 4425, 5001, 5055). In addition, two of the forms are revisions of other forms. Compare Decline Prosecute Affs. at 2996, 3088, with id. at 3174, 3086.
81 ADA Rucker confirmed that the types of cases described in the decline to prosecute forms were, in part, what motivated the Bronx DA’s office to adopt a policy in July 2011 of declining to prosecute cases where the arresting officer had only observed someone exiting or entering and exiting a Clean Halls building. See Tr. 10/16 at 218:16–219:8. Accord Tr. 10/15 at 180:13–182:18; 7/7/11 Rucker Letter.
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testimony from the assigned ADA and further paperwork.82 Defendants were free to elicit such testimony and introduce such paperwork. They did not.83 I decline to draw inferences in defendants’ favor based on the speculative possibility that further testimony would have revealed persuasive legal justifications for the stops described in the forms.
In an Appendix to this Opinion, I have collected excerpts from the twenty-six narratives of stops and arrests that appear in the decline to prosecute forms.84 One of the shorter and less redacted narratives reads:
On January 5, 2011 the defendants were observed exiting a [C]lean [H]alls building. The defendants stated they were there to visit a tenant in the building. After being arrested[,] a tenant from the building did corroborate the defendant[s’] statements and the tenant stated that both defendants were in the building as his guests. Therefore, the People are declining to prosecute this case at this time [redacted].85 Based solely on a review of these forms, none of the stops leading to the arrests described in the forms were based on a reasonable suspicion of trespass. All were
82 Def. Findings ¶ 13. 83 Neither party attempted to determine whether the stops described in the decline to prosecute forms were recorded in UF-250s. 84 See infra Appendix A (“App. A”). 85 Decline Prosecute Affs. at 4407, excerpted at App. A ¶ 2.
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based merely on exit or entry and exit from a Clean Halls building.86 Thus, over the course of three months in 2011, there were at least twenty-six arrests for trespass outside Clean Halls buildings in the Bronx that resulted from stops lacking reasonable suspicion. As will be discussed in greater detail below, these arrests independently suggest a widespread practice of unlawful stops.87
In sum, ADA Rucker’s testimony and the supporting exhibits, including the decline to prosecute forms, contained more than enough evidence to support the conclusion that there is a clear and substantial likelihood that plaintiffs will be able to prove at trial that NYPD officers in the Bronx repeatedly stopped and questioned people on suspicion of trespass simply because they were observed exiting or entering and exiting a Clean Halls building. ADA Rucker’s testimony and the supporting exhibits show that a nexus existed between the Clean Halls program and the kinds of unlawful trespass stops described by plaintiffs and quantified by Dr. Fagan, as discussed in the sections below. That is, the stops of people exiting or entering and exiting Clean Halls buildings took place because the buildings were enrolled in Operation Clean Halls.
86 Some of the forms describe stops in which an officer eventually obtained probable cause for an arrest. See, e.g., App. A ¶ 23. But the instant case concerns the legal basis for stops, not arrests.
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2. Findings of Fact Regarding Plaintiffs’ Stops Plaintiffs offered testimony at the preliminary injunction hearing regarding their experiences in having been stopped on suspicion of trespass outside Clean Halls buildings in the Bronx. Sometimes plaintiffs’ accounts were corroborated by other plaintiffs and witnesses. In a few cases, the parties were able to identify officers who took part in the stops, and these officers testified. In other cases, neither plaintiffs nor defendants were able to identify the officers. Defendants argue that plaintiffs failed to provide sufficient information to identify the John Doe officers in the case, and that as a result this Court should not credit plaintiffs’ testimony.88 Defendants go so far as to suggest that the stops about which plaintiffs testified “may not have occurred at all.”89 Based on the testimony described below, I reject this contention. Perhaps the strongest sign of the credibility of plaintiffs’ testimony is the striking similarities among plaintiffs’ stops. A person approaches or exits a Clean Halls building in the Bronx; the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing; attempts at explanation are met with hostility; especially if the person is a
88 See Tr. 11/7 at 1298:19–22 (defendants’ summation). 89 Def. Findings ¶ 15.
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young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van in order to carry out an extended interrogation about the person’s knowledge of drugs and weapons; and in some cases the stop escalates into an arrest for trespass, with all of the indignities, inconveniences, and serious risks that follow from an arrest even when the charges are quickly dropped.
Nevertheless, while I found plaintiffs’ testimony credible, it would obviously have been valuable to hear from the unnamed officers involved in plaintiffs’ stops. The officers were never identified. I find that this was due in part to the lack of specificity in some of plaintiffs’ memories of their encounters. At the same time, I also find that defendants made inadequate efforts to identify officers based on the information plaintiffs did provide.
Defendants claim that Sgt. Robert Musick of the NYPD’s Special Litigation Support Unit “conducted an exhaustive search to determine the officers involved in the purported incidents presented by plaintiffs at the hearing.”90 Sgt. Musick’s reference to his “limited attempts” to identify the officers is closer to the mark.91 A large part of Sgt. Musick’s investigation involved searches of the
90 Id. (emphasis added). See also Tr. 10/23 at 1113:24–1114:19. 91 Tr. 10/23 at 1115:16.
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electronic UF-250 database, which contained only the addresses and birthdates — not the names — of individuals stopped after July 2010 when the stop did not result in a summons or arrest.92 Sgt. Musick conceded that he is “definitely not an expert” at using the database.93 For example, he was only able to narrow down the potential list of officers who might have stopped Jerome Grant in the summer of 2011 (discussed below) to a list of three hundred. Yet this list included officers of all ethnicities, while Grant had testified that one of the two officers was Asian. On cross-examination, Sgt. Musick explained that he had not searched for Asian officers within the list of three hundred because Grant’s description of the other officer did not specify an ethnicity.94 This makes no more sense than refusing to search a drawer for a pair of striped socks because one cannot remember which color shoes they match: there was no reason to make the search for the Asian officer contingent on obtaining more information about his partner. In the end,
92 See Chart by Sgt. Musick (“Musick Chart”), Defendants’ Exhibit (“Def. Ex.”) UU; Tr. 10/23 at 1123:23–1128:11. Officers are required to complete a UF-250 form, also known as a “Stop, Question and Frisk Report Worksheet,” after each stop. See Tr. 10/15 at 67:4–21, 69:24–70:6; Tr. 10/23 at 1110:9–11; UF250 Form, App. B to 7/27/12 Report of Plaintiffs’ Expert Dr. Jeffrey Fagan (“Fagan Report”), Pl. Ex. 4. UF-250s are discussed at greater length below. See infra Part V.B.1.a. I have attached a copy of a blank UF-250 form as Appendix B to this Opinion.
93 Tr. 10/23 at 1145:1, 1158:19–25. 94 See id. at 1153:4–1154:8.
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Sgt. Musick was unable to locate a single UF-250 for any of the eleven stops to which plaintiffs testified.95
Because I find it extremely implausible that any plaintiff simply invented the stop or stops to which he or she testified, because defendants failed to make a sufficiently persuasive effort to identify the officers involved, and because the officers who did testify failed to undermine any plaintiff’s credibility, I decline to draw speculative inferences in defendants’ favor regarding the reasons that unidentified officers might have provided for their stops.
a. Charles Bradley’s Stop On May 3, 2011, after finishing his work for the day as a security guard, Charles Bradley, a black fifty-one year old resident of the Bronx, took the subway to visit his fiancée, Lisa Michelle Rappa, as they had arranged the evening before.96 Rappa lived in the Bronx at 1527 Taylor Avenue.97 Bradley formerly lived with Rappa and had keys to her apartment, but following a disagreement Bradley had returned his keys.98 1527 Taylor Avenue is a Clean Halls building.99
95 See id. at 1125–1143. 96 See Tr. 10/16 at 257:17–258:22, 259:10–19, 261:1–24, 272:6. 97 See id. at 258:23–24, 259:23. 98 See Tr. 10/15 at 258:23–260:21. 99 See Tr. 10/16 at 260:3–7.
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When Bradley arrived at Rappa’s apartment building, a young man who lived on the first floor and knew of Bradley’s and Rappa’s relationship let Bradley into the building. Bradley then walked up the stairs to Rappa’s apartment on the fifth floor and knocked. Because Rappa is deaf in one ear, Bradley waited a minute or two. When there was still no response, he returned downstairs and left the building. Outside, he looked up toward Rappa’s window.100
While Bradley was standing on the sidewalk, an unmarked green police van approached and an officer in the passenger seat — later identified as Officer Miguel Santiago — gestured for Bradley to come over.101 After Bradley approached the van, the officer got out and asked, “What are you doing here?”102 Bradley explained he was there to see Rappa, and that he worked as a security guard. Bradley testified that the officer responded to his attempts to explain his presence by suggesting Bradley was acting “like a fucking animal,”103 searched Bradley’s pockets,104 then told Bradley to place his hands behind his back. Once
100 See id. at 262:4–264:12. 101 See id. at 264:14–265:9; Tr. 10/22 at 1079:18–19. 102 Tr. 10/16 at 266:3. 103 Id. at 266:8. 104 Though plaintiffs have not focused their arguments on the legal standard for frisks, I note that a frisk requires an additional justification beyond the reasonable suspicion for the stop. The Supreme Court held in Terry:
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Bradley was handcuffed, the officer placed him in the van, where there were two
other officers. While the van drove away, the officers began to question Bradley:
“When was the last time you saw a gun? When was the last time you got high?
When was the last time you bought some drugs?”105
After twenty or thirty minutes in the van, the officers stopped at the
station house. Bradley was taken into a room, stripped, and told to wait.106 He was
searched in “inappropriate areas.”107 For the next two hours, he waited in a cell
with other people who had been arrested. He was then fingerprinted and given a
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Terry, 392 U.S. at 30 (emphasis added). If the officer who searched Bradley had no reason to conclude that Bradley posed a danger, the officer’s frisk violated Bradley’s rights under the Fourth Amendment. See also People v. Driscoll, — N.Y.S.2d —, 2012 N.Y. Slip Op. 09097, 2012 WL 6699161, at *1 (3d Dep’t Dec. 27, 2012) (“To conduct a protective pat frisk, an officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety[.]” (quotation marks and citation omitted)).
105 Tr. 10/16 at 265:20–22, 266:1–267:17. 106 See id. at 267:16–268:1. 107 Id. at 268:5–6. Bradley later stated that his experiences on May 3 made him feel “extremely violated, to say the least.” Id. at 275:8.
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desk appearance ticket and a date to appear in court to answer the criminal charge of trespassing. Later, Bradley’s defense attorney provided the Bronx DA’s office with a notarized letter from Rappa stating that Bradley had been visiting her.108 “[A]t that point in time,” Bradley testified, “paperwork was submitted to me stating that the People of New York declined to prosecute.”109
Officer Santiago also testified at the hearing, explaining that he worked two tours on May 3, 2011, the first from 4 a.m. to 12:35 p.m. and the second from 1 p.m. to 9:30 p.m. Bradley’s arrest took place around 5:20 p.m., after Officer Santiago had been patrolling with his partner, Officer Landro Perez, for a few hours without incident.110 Officer Santiago emphasized that 1527 Taylor Avenue is in “a drug prone location” with “a lot of robberies, a lot of shootings” in the area.111 It is a “high crime neighborhood.”112
Officer Santiago’s account of Bradley’s arrest differed from Bradley’s in several respects. Officer Santiago claimed that before stopping Bradley, he had
108 See id. at 268:9–25, 269:1, 12–13, 272:3–273:7; 7/7/11 Notarized Letter from Rappa (“Rappa Letter”), Pl. Ex. 17.
109 Tr. 10/16 at 269:2–270:4. 110 See Tr. 10/22 at 1076:8–10, 1077:3–11, 1078:16–18, 1079:5–7. 111 Id. at 1081:5–6, 1082:24–25. 112 Id. at 1082:24.
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observed Bradley at the end of a hallway inside the building “suspiciously walking back and forth” for two or three minutes and “disappearing.”113 Officer Santiago claimed that he was able to see Bradley’s suspicious behavior even though he was inside a police van parked across the street, twenty to thirty feet from the front door, separated from Bradley not only by the street but by the windows of the front door, a vestibule, the windows of an inner door, and the hallway.114
Officer Santiago testified that he approached Bradley after Bradley exited the building and said: “Excuse me, sir, could you come over here?”115 In response to Officer Santiago’s questioning, Bradley could not tell him the name of his girlfriend or her apartment number, and could not produce any identification.116 After he arrested Bradley for criminal trespass, they drove five or ten minutes to the precinct.117 There was only one other officer in the van.118 Officer Santiago did not ask Bradley any questions along the way, and Bradley was not strip-searched
113 Id. at 1086:21–1087:1; Tr. 10/23 at 1097:8–9, 1101:13–15. 114 See Tr. 10/22 at 1087:2–11; Tr. 10/23 at 1101:20–25. 115 Tr. 10/22 at 1088:15–16. 116 See id. at 1088:11–1089:1; Tr. 10/23 at 1097:1–9. 117 See Tr. 10/23 at 1098:11–1099:1. 118 See Tr. 10/22 at 1080:23–25; Tr. 10/23 at 1098:19–1099:1.
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upon arrival at the station.119
The paperwork Officer Santiago completed with regard to Bradley’s stop and arrest contained numerous, self-serving errors.120 In direct contradiction
to his testimony at the hearing, Officer Santiago made the following statements on
the arrest fact sheet: first, that he observed Bradley in the building for seven
minutes; second, that he stopped Bradley inside the building; third, that he went to
the apartment Bradley said he was visiting; and fourth, that the apartment was occupied.121 By all accounts, each of these statements was false. Officer
Santiago’s credibility was further called into question by the fact that in 2002 or
2003 he lied within the scope of his police work by creating two improper summonses to help a friend.122 Finally, Officer Santiago failed to complete the UF250 form he was required to fill out for Bradley’s stop.123
119 See Tr. 10/23 at 1098:11–1099:1. 120 Officer Santiago admitted that by the time he completed the paperwork, he had worked fourteen or fifteen hours straight and was “a little tired.” Id. at 1099:11–12. See also id. at 1105:8–16. 121 See 5/3/11 Clean Halls Fact Sheet for Charles Bradley Arrest (“Bradley Fact Sheet”), Pl. Ex. 39. 122 See Tr. 10/23 at 1099:17–1100:2. Officer Santiago testified that he was trying to help a landlord friend who was having problems with a tenant, “so I issued two improper summons, one in the bus stop and one in the fire hydrant, and the car was never there.” Id. at 1099:24–1100:2. 123 See id. at 1110:9–11.
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I find Bradley’s account credible. Bradley entered a Clean Halls building based on an invitation from a tenant, walked upstairs to the tenant’s residence, found the tenant not home, then returned outside and waited on the sidewalk while considering what to do. In response to Officer Santiago’s questions, Bradley offered reasonable and unsuspicious answers. Bradley’s conduct provided no further basis for a stop.
b. Abdullah Turner’s Stops On the evening of March 26, 2011, Abdullah Turner, a black twentyfour year old, had plans to go to an engagement party in the Bronx with his close friend Anginette Trinidad.124 Both Turner and Trinidad testified at the hearing that Trinidad was carrying a sweater in a plastic bag.125 When the two had nearly arrived at the party, Trinidad told Turner she had to return the sweater to someone in the next building, 2020 Davidson Avenue, which is a Clean Halls building.126 While Trinidad went inside, Turner remained outside and called another close friend, Felisha Black, on his cell phone. During the call, he paced in
124 See Tr. 10/17 at 472:14–15, 473:9–474:9. 125 See id. at 475:8–15; Tr. 10/18 at 622:25–623:4. 126 See Tr. 10/17 at 474:13–475:7, 481:23–25.
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a circle on the sidewalk, trying to stay warm.127 It was “freezing cold” that night,
but Turner was wearing only a cardigan sweater and t-shirt with no coat or hat.128
After Turner had been pacing and talking on the phone for about five
minutes, someone “snatched the phone out of my hand.”129 When Turner turned,
he saw three police officers: one who was Hispanic and a little stocky; one who
was Indian, tall and slim; and a third officer that Turner did not “get a good look
at.”130 One of the officers, Kieron Ramdeen, testified that he was only with one
other officer, Michael Pomerantz.131 Officer Ramdeen’s testimony on this point
127 See id. at 475:21–476:25. 128 Id. at 495:5–18 (Turner’s testimony). Defendants suggest that it is implausible that Turner did not go inside the building, because he knew that the door was unlocked. See Def. Findings ¶ 23 & n.11; Tr. 10/17 at 476:7–10. But Turner testified that he liked the cold and did not need a coat. See Tr. 10/17 at 477:2–4. Accord id. at 487:20–21, 502:5–19. While Turner’s winter-weather clothing choices and apparent tolerance for the cold may be idiosyncratic, they do not undermine his credibility. There is also a facial inconsistency in defendants’ apparent attempt to suggest both that any reasonable person in Turner’s circumstances would have entered the building to warm up, and that if Turner did so, he would have provided legal grounds for a Terry stop. A reasonable person would presumably want to avoid being stopped and frisked, and thus would prefer standing in the cold to going inside, if doing so would create a reasonable suspicion of criminal trespass. 129 Tr. 10/17 at 477:8. I note that a reasonable person would not feel free to leave when his personal property has been seized by the police. 130 Id. at 477:19–23. 131 See Tr. 10/22 at 1008:20, 1012:5–25.
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was not credible, as Officer Pomerantz’s own memobook stated that he was patrolling on the night of March 26 with Officer Ramdeen and Premativo Montanez, a Hispanic officer.132
Turner testified that the Hispanic officer who took his phone began questioning him about what he was doing and whether he lived at 2020 Davidson. Turner explained that his friend was returning a sweater and they were on their way to a party in the next building. The officer asked for identification, and Turner gave him his driver’s license. After the officer saw that Turner did not live on the block, he asked again what Turner was doing at 2020 Davidson, and Turner explained again.133 Then the officer asked: “So you don’t know anybody who lives in this building?”134 When Turner said no, the officer asked him to stand against the wall.135
While Turner stood against the wall, the Hispanic officer entered 2020 Davidson with Turner’s driver’s license and cell phone still in his possession. Officer Ramdeen, now alone with Turner, continued asking Turner the same
132 See id. at 1059:11–1061:6; Page from Memobook of Officer Michael Pomerantz, Def. Ex. HHHH.
133 See Tr. 10/17 at 478:13–22, 479:8–11. 134 Id. at 479:11–12. 135 See id. at 479:12–13.
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questions as before. Eventually, Trinidad emerged from the building, no longer carrying the plastic bag, and Turner pointed to her as proof of what he had been saying. Trinidad confirmed Turner’s story while the other officers returned. The Hispanic officer asked for Trinidad’s ID, and Trinidad gave it to him.136 Then the officer asked her if she had “anything on her that she shouldn’t have,” and in response, Trinidad said she had “a little pocketknife that her husband gave her for protection and a bag of marijuana.”137
After confiscating these items, the Hispanic officer approached Turner and pointed to a sign on 2020 Davidson and asked him if he knew what the sign meant. Turner said he did not. The sign stated that 2020 Davidson was enrolled in Operation Clean Halls. The officer told Turner that he was trespassing and was going to jail. Turner asked how he could be trespassing if he was outside. The officer repeated that Turner was going to jail and placed him in handcuffs.138
After being driven to the precinct in a paddy wagon, Turner spent several hours waiting, was fingerprinted, and then was transferred to central booking, where he spent several more hours. It was not until the next day that a
136 See id. at 479:13–24, 480:12–24. 137 Id. at 481:1–3. 138 See id. at 481:7–25, 482:1–8.
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judge released Turner. He was then obligated to return to court eight to ten times before the charges were dismissed.139 Turner testified that the events on March 26 made him feel “defenseless.”140 Trinidad’s testimony at the hearing supported Turner’s account of the stop.141
Officer Ramdeen testified to a different version of events. He testified that he and Officer Pomerantz were driving past 2020 Davidson when he saw Turner in the lobby. Officer Pomerantz stopped the car and Officer Ramdeen watched as Turner paced aimlessly in the lobby for two to three minutes, occasionally looking up the stairs. Aware that 2020 Davidson was a Clean Halls building, Officer Ramdeen approached Turner, who then exited the lobby. In response to Officer Ramdeen’s brief questioning, Turner volunteered that his
139 See id. at 482:21–483:10, 483:14–21. 140 Id. at 486:1. Turner continued:
It’s like when you’re a kid, when someone is bothering you or someone is like threatening you, you run to your parents for protection, and when you’re an adult, you’re supposed to run to the police. But who are you supposed to run to when like the police are harassing you or like threatening you . . ., who are you supposed to run to then? Id. at 486:3–8. 141 See Tr. 10/18 at 619:23–628:6.
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friend was engaged in a drug deal.142 “I asked him what he was doing in the
building and, in sum and substance, he responded with, I am not going to lie, Officer, I just came with my friend. She went upstairs to buy weed.”143 Officer Ramdeen did not record this alleged confession in his arrest report.144
Officer Ramdeen then arrested Turner for trespassing, basing “the
charges on the fact that he had no lawful reason to be in the building and that he knowingly was there to buy marijuana.”145 Officer Ramdeen could not recall
having arrested Trinidad. He conceded that neither he nor Officer Pomerantz took
any steps to investigate or arrest the drug dealer who, according to their version of events, was operating that night a few stories above them at 2020 Davidson.146
142 See Tr. 10/22 at 1016:17–1017:14, 1020:11–1021:25. 143 Id. at 1021:21–24. 144 Officer Ramdeen’s arrest report only states that Turner was inside a Clean Halls building without permission or authority to be there. See id. at 1038:19–1041:24; 3/26/11 Arrest Report of Plaintiff Abdullah Turner (“Turner Arrest Report”), Def. Ex. ZZ. The confession does appear in Officer Ramdeen’s supporting deposition, signed on the following day. See 3/27/11 Officer Ramdeen Supporting Deposition in State v. Turner, Def. Ex. CCC. Like Officer Santiago after Bradley’s stop, Officer Ramdeen also failed to complete the required UF-250 form for his stop of Turner. See Tr. 10/22 at 1024:2–7. In fact, Officer Ramdeen marked “NO” next to the field “Stop And Frisk” on Turner’s arrest report. See Turner Arrest Report at 1. 145 Tr. 10/22 at 1022:20–22. See also id. at 1025:14–1026:4. 146 See id. at 1026:21–22, 1064:13–1065:12.
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I find Turner’s testimony to be credible. Turner stopped briefly at 2020 Davidson so that Trinidad could allegedly return a sweater. While Trinidad went inside, Turner talked on his cell phone outside for a few minutes. Officers Ramdeen, Pomerantz, and likely Montanez saw him standing outside the building in the cold, stopped him, and questioned him. Turner’s responses to the officers’ questions were reasonable and unsuspicious. Turner provided no other grounds for suspicion. I did not find credible Officer Ramdeen’s testimony concerning Turner’s spontaneous confession. Turner persuasively denied that he made the confession,147 and the officers took no steps to investigate or stop the drug dealer who (according to Officer Ramdeen’s testimony) was operating several floors above them. I also did not find credible Officer Ramdeen’s testimony concerning his observation of Turner’s suspicious pacing inside the building before the officers approached. Based on the totality of the evidence presented at the hearing, I do not believe that Turner entered the building.148
147 See Tr. 10/17 at 500:12–23. 148 I note, however, that even if Turner entered the building, paced in the lobby, looked up the stairs, and then exited the building to make his call, a stop would still have been unjustified. This behavior is innocuous and would not, without something more, provide reasonable suspicion of criminal trespass, or of any other crime. As in Bradley’s and Roshea Johnson’s cases, entering and exiting a Clean Halls building under ordinary circumstances does not establish reasonable suspicion. See infra Part V.B.1.a.
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Finally, Turner credibly testified to having been stopped on another night during December 2011 or January 2012 outside of his own building, 2249 Morris Avenue, which is also a Clean Halls building in the Bronx. As Turner was exiting the building, a police car pulled up. Turner’s thirteen-year-old brother, a friend, and the friend’s nephew were talking at the front of the courtyard. When Turner began to step out of the courtyard, a female officer got out of the car and asked whether they all lived in the building, and they all responded yes. Then the officer asked for Turner’s identification, and he gave it to her.149 Finally, the officer “told us that we can’t stand in front of our building, so when they come back we would need to be gone.”150 Turner testified that he did not feel free to leave while the officer talked to him: “[S]he had my ID, and I don’t know anyone . . . who ever just walked away from a cop in the middle of a conversation.”151 In this encounter as well, I find that Turner’s behavior provided no grounds for suspicion of trespass or any other crime.
As to whether Turner’s second stop was based on the suspicion of
149 See Tr. 10/17 at 486:9–490:25. 150 Id. at 491:4–5. 151 Id. at 491:6–8, 22–23.
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trespass, the evidence is less clear.152 Nevertheless, because I found Turner’s testimony credible, because the officer’s questions concerned the right of Turner and the others to be on Clean Halls property, because there is no indication that the officers suspected Turner of any other crime, and because the parties were unable to locate a UF-250 or any other documentation showing otherwise, I find it more likely than not that Turner’s second stop was based on the suspicion of trespass.
c. J.G.’s Stop J.G. is the son of plaintiff Jaenean Ligon and the brother of J.A.G. and Jerome Grant. The family lives in a Clean Halls building in the Bronx.153 J.G., who is black and seventeen years old, testified that the first time he remembered being stopped around his apartment building was on an evening in August 2011. He had gone to a nearby store to buy ketchup for dinner. On his way back, he saw two plainclothes officers with badges in front of his building and three uniformed officers across the street. When J.G. reached his building, the officers stopped him and began asking him questions, such as where he was
152 Defendants’ post-hearing brief does not challenge whether Turner’s second stop was based on suspicion of trespass, but does challenge whether five of the other unrecorded stops described by plaintiffs were for trespass. See Def. Findings ¶¶ 17 (Kieron Johnson), 19 (Jerome Grant), 20 (both of Letitia Ledan’s stops), 21 (Roshea Johnson). I address each of defendants’ challenges below.
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coming from, where he was headed, and what he had in his bag. After J.G. answered that he had ketchup in the bag, one of the officers asked him to raise his hands, then asked him what he had in his pockets. The officer started to frisk him, first shaking J.G.’s pockets, then putting a hand in J.G.’s left pocket,154 then patting J.G.’s arms down. After the search, the officer asked for J.G.’s ID and took his name down on a notepad. Then the other officer looked in J.G.’s bag and inspected the ketchup. The officers asked for J.G.’s apartment number and rang the bell. Finally, after Ligon had come downstairs and confirmed that J.G. was her son, the officers handed her the ketchup and let them go.155
Ligon’s testimony supported J.G.’s account. Ligon testified that she sent J.G. to the store for ketchup one evening when she was cooking chicken and
154 As I noted above, plaintiffs have not focused on the issue of frisks in the instant litigation. Nevertheless, it is worth emphasizing that the officer’s placement of his hand in J.G.’s pocket goes beyond “a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him.” Terry, 392 U.S. at 30. If the officer had no reasonable basis for believing J.G.’s pocket contained a dangerous weapon that J.G. might use to harm the officer, the officer’s search of J.G.’s pocket violated J.G.’s rights under the Fourth Amendment. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reaffirming that Terry frisk “must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby’” (quoting Terry, 392 U.S. at 26)).
155 See Tr. 10/17 at 437:17, 439:4–443:2. 50

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french fries. A few minutes after he left, she heard her bell ring.156 Jerome Grant answered the bell and an unfamiliar voice said: “[C]an you please come down and identify your son.”157 Hearing these words, Ligon thought J.G. was dead or hurt. She ran downstairs and collapsed on the steps when she saw J.G. standing, uninjured, beside the officers. The plainclothes officer who was standing with J.G. approached Ligon, laughing, and handed her the ketchup.158
I find J.G.’s and Ligon’s testimony credible. J.G. provided no grounds for suspicion of trespass — or indeed of any other crime — as he approached his building. He also provided no grounds for suspicion in his responses to the officers’ questions. J.G. provided no further basis for a stop, much less a frisk. Because the officers did not ask J.G. whether he lived in the building, it is unclear whether J.G.’s stop was based on the suspicion of trespass. Nevertheless, because J.G. was only stopped as he approached a Clean Halls building, because the officers’ questions indicate no suspicion of any other crime other than trespass, and because the parties have been unable to locate a UF-250 indicating otherwise, it remains more likely than not that J.G. was stopped on
156 See id. at 429:7–430:4. 157 Id. at 430:4–14. 158 See id. at 430:16–433:1.
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suspicion of trespass — if his stop was indeed based on a particularized suspicion of any crime at all.
d. Jerome Grant’s Stop Jerome Grant, J.G.’s older brother and Ligon’s son, testified that his grandmother, Betty Ligon, lives at 274 Bonner Place in the Bronx.159 274 Bonner Place is a Clean Halls building.160 Grant, who is black and nineteen years old, testified that the first time the police stopped him at his grandmother’s building was in July 2011. He had been playing basketball with his little brother J.A.G., his cousin, and a friend. In the evening, the group needed to pick up a key from Grant’s grandmother’s house, so they began walking toward it and sent J.A.G. to run ahead. J.A.G. went inside the building without leaving the door open, so the others knocked loudly on the door.161 Grant’s cousin was “a little upset” by being locked out.162 Two uniformed male police officers, one white and one Asian, approached with flashlights and asked if Grant, his cousin, and his friend lived in
159 See id. at 452:13–25. 160 See Photo of 274 Bonner Place, Pl. Ex. 37. 161 See Tr. 10/17 at 451:21, 453:6–19, 454:17–455:17, 464:19–466:5. 162 Id. at 464:11.
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the building, and if they were trespassing. Grant explained that they were visiting their grandmother’s apartment to get a key, and Grant’s cousin asked if they were doing anything wrong.163 The Asian officer responded, “I’m the one that’s talking here.”164 When Grant’s cousin said that he just wanted to know if there was a problem, the Asian officer told him to “hush up” and there would not be any problems.165 Then the officers made Grant, his cousin, and his friend stand with their backs against a wall and take out their IDs.166 When only Grant had an ID, the Asian officer told Grant’s cousin and friend: “I could take you in because you don’t have ID.”167 The Asian officer then wrote down Grant’s cousin’s and friend’s names and birthdates in a notepad while the white officer did the same for Grant.168
Then the Asian officer returned Grant’s ID and told the group to turn around and place their hands against the wall. The Asian officer asked Grant’s
163 See id. at 455:19–20, 456:8–12. 164 Id. at 456:13. 165 Id. at 456:18–19. 166 See id. at 456:21–457:5. 167 Id. at 457:15. I know of no law stating that failure to carry an ID, standing alone, provides probable cause for an arrest. 168 See id. at 457:18–21.
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cousin whether he had any drugs or blades in his pockets, then grabbed his shoulders and patted him down to the ankles, stopping to remove all the contents from his pockets.169 The white officer frisked Grant’s friend and Grant. Finally, the Asian officer told the group to put their backs against the wall again, warned them to carry their IDs with them, and explained that the officers had wanted to make sure the group was not trespassing. J.A.G. came outside shortly after the officers left. Grant testified that he did not feel free to leave until the officers told him to go home.170
I find Grant’s testimony largely credible, though it conflicted in certain minor details with his deposition testimony.171 Defendants argue that the officers approached based on the group knocking on the door, rather than on the suspicion of trespass.172 But I accept Grant’s testimony that the John Doe defendant Asian officer mentioned trespassing as the basis for the stop.173
e. Roshea Johnson’s Stop
169 Again, as in the cases of Bradley and J.G., the officer’s conduct clearly exceeded the constitutional bounds of a frisk.
170 See id. at 458:3–459:21, 461:4–24, 462:3–5. 171 For example, Grant stated at the deposition that the Asian officer frisked all three members of the group. See id. at 467:8–9. 172 See Def. Findings ¶ 19. 173 See Tr. 10/17 at 461:4–19.
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Roshea Johnson is the brother of plaintiff Letitia Ledan.174 From 2001 through 2010, Johnson lived at River Park Towers, a complex of buildings in the Bronx. Sometimes he lived with Ledan, and at other times with a friend. River Park Towers is enrolled in Operation Clean Halls.175
On the morning of Father’s Day 2010, Johnson, who is black and was then thirty-four years old, went to Ledan’s apartment to change into clothes he had left there. To enter River Park Towers, it is not necessary to pass through security or a closed gate, or to have a key. Johnson walked into Ledan’s building and took the elevator to her floor. When he knocked at Ledan’s door, there was no answer. He went back to the elevator and returned to the ground floor, planning to call Ledan on the payphone in front of a supermarket in the complex.176
As Johnson crossed the street to the payphone, a black van pulled up with police officers inside. One officer asked him where he was coming from.177
174 See Tr. 10/16 at 394:2–395:2. Roshea Johnson is unrelated to plaintiff Kieron Johnson. See id. at 393:20–22.
175 See id. at 298:11–19, 394:2–395:2. 176 See id. at 394:3–399:7. 177 See id. at 399:21–400:13. Defendants have not located a UF-250 connected to Roshea Johnson’s stop, or identified the officers involved in the stop, despite Roshea Johnson’s precise identification of the time and place of his stop and his detailed physical descriptions of the officers. See Musick Chart (incident 11); Tr. 10/16 at 401:20-402:3.
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Johnson told the officer he was coming from his sister’s house but she was not home.178 Then the officer “mentioned something about trespassing.”179 Johnson tried to tell the officer that he could prove he was not trespassing, and that he had a letter in his pocket with his name and his sister’s address on it. The officer responded by handcuffing Johnson and placing him in the back of the van.180
The officers then drove the van to another part of the complex and questioned Johnson.181 One of the officers asked Johnson “where was the drugs or the guns at.”182 Johnson said he “didn’t know where the drugs or the gun was.”183 The officers continued asking similar questions for a few minutes, then pulled out of the complex.184 During the drive, the officers “said you could make it easy on yourself if you tell us where the guns and the drug was, but I didn’t know where no guns or drugs was.”185 Finally, after about fifteen or twenty minutes, the officers
178 See Tr. 10/16 at 400:14–15. 179 Id. at 400:17. 180 See id. at 400:17–401:18. 181 See id. at 402:4–22. 182 Id. at 402:19–20. 183 Id. at 402:21–22. 184 See id. at 402:23–403:8. 185 Id. at 403:11–13.
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pulled over at a location about a mile from River Park Towers, opened the door, and told Johnson to get out of the van.186 “When I got out of the van, he said maybe you don’t know nothing, and took the handcuffs off me and let me go.”187 Looking back, Johnson said that the encounter made him feel “angry and kind of helpless.”188
I find Johnson’s testimony credible. Johnson provided no grounds for suspicion of trespass as he entered and exited Ledan’s building. He also provided no grounds for suspicion in his interactions with the officers. Nor did Johnson’s conduct provide any other basis for a stop.
f. Letitia Ledan’s Stops Letitia Ledan, Roshea Johnson’s sister, testified that she has lived at River Park Towers for the past eleven years. She chairs the maintenance and elevator committee in the tenants’ association. As noted above, River Park Towers is enrolled in Operation Clean Halls.189 Ledan, who is black, testified that she has been stopped six times in or
186 See id. at 403:15–20, 403:25–404:3. 187 Id. at 403:18–20. 188 Tr. 10/17 at 417:21–23. 189 See Tr. 10/16 at 297:2–298:19.
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around her building. Twice the stops occurred outdoors. The first took place at some time in 2009, although she could not provide a more precise date. Two white male officers stopped her in front of a supermarket in the River Park Towers complex as she was about to leave the complex. They asked her whether she lived there and whether she had an ID, then took her ID, looked at it, handed it back to her, and said to have a nice day. During the roughly three-minute encounter, she did not feel free to leave because the officers were standing in front of her and had her ID.190
Ledan’s second outdoor stop occurred in the summer of 2011. Ledan was returning home from work in the afternoon and saw four uniformed police officers standing with her husband and two of her friends in front of her building. While one of the officers patted down one of Ledan’s friends, another was patting down Ledan’s husband and removing items from his pockets. As Ledan approached her building, she asked what was going on.191 Then an officer approached her, and she asked, “[W]hy are you stopping us?”192 The officer told her to be quiet and asked whether she lived at the building, then asked for her ID,
190 See id. at 300:22–24, 301:1–14, 302:5–25, 317:18–25. 191 See id. at 306:16–308:8. 192 Id. at 308:8–10.
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which she gave to him.193 After returning her ID and finishing the search of her husband and friends, the officers “just started walking away.”194 As in 2009, Ledan did not feel free to leave during the encounter because the officer blocked the entrance to her building and had her ID.195
I find Ledan’s testimony as to both stops credible. Ledan provided no grounds for suspicion of trespass, or any other crime, on either occasion. She also provided no grounds for suspicion in her responses to the officers’ questions. Ledan’s conduct provided no other basis for a stop. Based on the officers’ questions, Ledan’s first stop was most likely on suspicion of trespass. Plaintiffs have provided insufficient evidence, however, that Ledan’s second stop was a trespass stop. The second stop could just as well have been based on the suspicion that Ledan was somehow involved in the suspected crime for which her husband and friends were stopped.
g. Fernando Moronta’s Stop Fernando Moronta, who is Latino, was thirty-six years old at the time of the hearing. He lives in a Clean Halls building in the Bronx. One day after
193 See id. at 308:10–19. 194 Id. at 308:19–309:4. 195 See id. at 328:22–330:4.
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work in the winter of 2008, Moronta went with his brother, Eladio Vasquez, to his brother’s apartment building at 1453 Walton Avenue in the Bronx, which is also a Clean Halls building.196
When Moronta left the building at around 10:30 p.m., a police van pulled up and half a dozen uniformed officers exited and began questioning Moronta about where he was going and what he was doing in the building. After Moronta explained that he had been at his brother’s apartment, one of the officers asked if he had anything sharp in his pockets and then patted him down and searched his pockets.197 Then the officer asked if they could go upstairs to confirm Moronta’s story, and Moronta gave his permission. A white officer asked for Moronta’s ID.198 On the way up in the elevator, a black officer told Moronta that he “better be telling the truth,” because if Moronta’s brother did not live in the building, Moronta would be arrested for trespassing.199
At the door, Moronta’s brother identified Moronta, and after the white
196 See id. at 340:24–341:4, 342:1–343:13, 343:14–344; Pl. Findings ¶ 43 (“Eladio”).
197 Once again, as in the searches of Bradley, J.G., and Grant, the officer violated the Fourth Amendment by exceeding the constitutionally permissible scope of a frisk.
198 See Tr. 10/16 at 344:24–346:11. 199 Id. at 346:14–18.
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officer compared the name given to the name on Moronta’s ID, “he looked at me and smirked and gave my ID back.”200 On the way down the elevator, the officers explained that they had stopped Moronta because “the neighborhood is bad, got drugs and stuff like that.”201 Moronta stated that he did not feel free to leave until he left his brother’s building.202
I find Moronta’s testimony credible. Moronta provided no grounds for suspicion as he exited his brother’s building, or in his responses to the officers’ questions. Moronta’s conduct provided no other basis for a stop.
h. Kieron Johnson’s Stop Kieron Johnson, who is black, was twenty-one years old at the time of the hearing. He lives in a Clean Halls building in the Bronx and testified to having been stopped in or near Clean Halls buildings seven or eight times, and to having seen others stopped about ten times. His best friend, plaintiff Jovan Jefferson,
200 Id. at 346:19–347:4. 201 Id. at 347:6–9. 202 See id. at 346:12–349:1. Moronta’s initial inability to remember whether the stop occurred in the winter of 2007 or of 2008 does not significantly undermine his credibility. See id. at 350:12–24. Defendants also note that plaintiffs’ Complaint alleges that Moronta’s stop occurred in 2010. See Def. Findings ¶ 22 n.10; Compl. ¶ 129. But Moronta testified that he had not looked at the Complaint closely enough to notice the error until three days before his hearing testimony, and that plaintiffs’ counsel may have confused the stop to which he testified with an arrest for trespass in 2010. See Tr. 10/16 at 350:22–352:18.
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lives across the street at 1546 Selwyn Avenue, another Clean Halls building.203 On a warm day in 2010, around noon, Jefferson invited Johnson over
to play basketball. Johnson went to Jefferson’s building and waited outside, about six steps away from the door.204 After about two minutes, two uniformed officers “pulled up in a car and . . . jumped out and ran out and around me.”205 One asked whether Johnson had been in the building. After he replied that he had not, one of the officers asked for his ID while the other patted down his front pockets and reached into his back pockets, where he kept his wallet.206 The officer looked through his wallet, then the other officer returned his ID and told him he was free to go. Until then, Johnson did not feel free to leave.207
I find Johnson’s testimony credible, despite his inability to offer a more precise date for the stop. Defendants argue that Johnson’s stop was not for
203 See Tr. 10/16 at 377:11–379:22. 204 See id. at 380:1–381:11. 205 Id. at 381:12–23. 206 Yet again, as in the cases of Bradley, J.G., Grant, and Moronta, the officer who searched Johnson violated Johnson’s Fourth Amendment rights by reaching into his pockets during a frisk without a reasonable basis in selfprotection. 207 See id. at 382:6–383:5. Johnson stated that after the incident, he felt “[e]mbarrassed and worried,” because “there’s usually people outside and I don’t like when they see me being stopped by officers.” See id. at 384:7–10.
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trespass, because he testified that at the time of the stop, he believed the officers were truancy officers.208 But defendants offer no persuasive evidence that the officers were, in fact, truancy officers.209 Even if the officers were truancy officers, defendants fail to show how this fact would undermine plaintiffs’ claim that Johnson was stopped on suspicion of trespass.210 Presumably truancy officers are no less able to make trespass stops than any other kind of officer. Moreover, Johnson’s testimony that the officers asked him whether he had been inside the building suggests a trespass stop.211 Based on Johnson’s testimony, I find that he provided no grounds for suspicion of trespass as he waited outside Jefferson’s building, in his responses to the officers’ questions, or in any other manner.
i. Jovan Jefferson’s Stop Jovan Jefferson, who is black, was twenty years old at the time of the hearing. As noted above, he lives in a Clean Halls building in the Bronx. Jefferson testified that he had been stopped outside Clean Halls buildings about seven to eight times, and inside Clean Halls buildings about three to four times.
208 See id. at 385:4–13; Pl. Findings ¶ 17. 209 See Tr. 10/16 at 385:4–387:19, 389:8–391:5, 392:3–10. 210 Cf. id. at 387:21–23. 211 See id. at 382:6–10.
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Jefferson’s friend Brandon Muriel lives at 1515 Selwyn Avenue, another Clean Halls building in the Bronx.212
Jefferson testified that his most recent stop outside a Clean Halls building occurred between April and June 2012. He and Muriel had been watching SportsCenter in Muriel’s apartment when Muriel left for work. It was shortly after noon as the two of them stepped out of Muriel’s building.213 A passing police van stopped and three officers got out, including two that Jefferson recognized as officers named “Marquez” and “Rodriguez.”214 Jefferson testified that these officers had previously stopped him inside his building, and had arrested Kieron Johnson for trespass inside Jefferson’s building at a time when Jefferson was with him. The officers had also arrested another friend of Jefferson’s for trespass.215 I find it more likely than not that Rodriguez participated in the stop that Jefferson described.
212 See id. at 359:17–361:14. 213 See id. at 361:15–362:16. 214 Id. at 362:18–363:15; Compl. ¶ 83. Officer Luis Rodriguez testified to being a truancy officer who patrolled Selwyn Avenue between April and June 2012. See Tr. 10/22 at 1067:1–18. Rodriguez testified that he recognized Jefferson but did not remember stopping him between April and June 2012. See id. at 1068:8–1069:5. 215 See Tr. 10/16 at 363:14–364:8.
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Rodriguez asked Jefferson and Muriel where they were coming from and why they were in the building. The officers also asked Muriel for his ID. Then Jefferson’s mother drove by with his aunt.216 After his mother got out and approached the officers, Rodriguez stated that Jefferson was “free to go and that he was just talking to me.”217 Jefferson testified that he did not feel free to leave before his mother approached.218
I find Jefferson’s testimony largely credible, despite his failure during his deposition to remember the stop to which he testified at the hearing.219 Given the number of times Jefferson has apparently been stopped, it is understandable that he might forget one and then remember it later, just as it would be understandable if a police officer were unable to remember a relatively brief, unrecorded stop. I find that neither Jefferson nor Muriel provided grounds for suspicion of trespass as they exited Muriel’s building, as they responded to the officers’ questions, or in any other manner.
216 See id. at 364:22–365:17. 217 Id. at 365:7–13. 218 See id. at 366:13–15. He also stated that the stop made him feel the officers were biased “because I am being stopped all the time just because of the kind of neighborhood that I live in.” Id. at 366:16–22. 219 See id. at 370:11–372:3.
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3. Expert Testimony Regarding UF-250 Forms
Plaintiffs’ expert witness, Dr. Jeffrey Fagan, is a criminologist with expertise in statistics.220 Dr. Fagan performed a statistical analysis of data
contained on certain UF-250 forms completed by NYPD officers in the Bronx in 2011.221 As noted above, officers are required to complete a UF-250 form after each stop.222 The front and back of the form contain various checkboxes and fields
in which officers indicate the nature of the stop and the circumstances that led to the stop.223
Dr. Fagan ultimately concluded that the NYPD recorded 1,663 stops
outside a Clean Halls building in the Bronx in 2011 based only on a suspicion of trespass, and without observing any indoor behavior.224 Of these stops, Dr. Fagan
220 See Floyd v. City of New York, 861 F. Supp. 2d 274, 279–80 (S.D.N.Y. 2012) (describing Dr. Fagan’s qualifications).
221 See Fagan Report at 2. Dr. Fagan extracted the data from the City of New York’s Stop, Question, and Frisk Database. See id.
222 See id. at 3; Tr. 10/15 at 69:24–70:1. See also infra Part V.B.1.a (more detailed discussion of UF-250 forms).
223 See infra Appendix B (“App. B.”). 224 See Fagan Report at 2–6 & nn.2–8 (analysis leading to original count of 1,857 stops); Apps. C–E to Fagan Report (exclusion of stops where indoor behavior was observed); Tr. 10/15 at 73:5–77:7 (general search method), 114:23–115:2 (exclusion of alleged NYCHA stops), 117:20–119:20 (recapitulation of general search method); Table 14: Period of Observation of Proximity Stops, Bronx Trespass Stops, 2011 (“Period of Observation Table”), Pl. Ex. 98 (stop
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concluded that 1,044 lacked any justification on the front or back of the UF-250 form that would have constituted reasonable suspicion of trespass.225 In other
words, Dr. Fagan concluded that sixty-three percent of the recorded trespass stops
outside Clean Halls buildings in the Bronx in 2011 where no indoor behavior was observed were not based on any articulated reasonable suspicion.226
Defendants offer a number of arguments against Dr. Fagan’s
conclusions. First, they argue that it is impossible to conclude whether reasonable
suspicion existed for a stop based on a UF-250 alone because “it is a conclusory
form that does not capture all details, nuances and circumstances that may lead to a stop.”227 Defendants argue that Dr. Fagan had an obligation to incorporate into his
totals at various stages of analysis). 225 See Fagan Report at 15 tbl. 8; App. L to Fagan Report; Tr. 10/15 at
114:4–115:2. 226 See Tr. 10/15 at 115:1–2. 227 Def. Findings ¶ 3 n.1. In Arvizu, the Supreme Court rejected the
Ninth Circuit’s attempt to clarify the reasonable suspicion standard by analyzing various stop factors in isolation as part of what the Supreme Court described as a “reasonable-suspicion calculus.” 534 U.S. at 272. The Supreme Court emphasized the importance of looking to the “‘totality of the circumstances’” in reasonable suspicion analyses. See id. at 273 (quoting Cortez, 449 U.S. at 417–18). Dr. Fagan’s report, though quantitative, attempts no such mechanistic analysis, because it does not claim to be the final word on whether reasonable suspicion existed for any individual stop in the UF-250 database. See Fagan Report at 15 (identifying stops “where there does not appear” to be any combination of factors justifying a trespass stop (emphasis added)). Accord Floyd, 861 F. Supp. 2d at 293 (noting that
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analysis other sources of information, such as “911 calls or SPRINT Reports, memobooks, arrest and complaint reports, Trespass Crimes Fact Sheets, Owner’s Affidavits and/or criminal court complaints.”228 Defendants also criticize Dr. Fagan for having no expertise regarding police training on street stops and reasonable suspicion, and for having conducted no interviews with police personnel.229
If defendants believe that such research would have shown that reasonable suspicion existed for some or all of Dr. Fagan’s 1,044 unlawful stops, defendants were free to conduct such research themselves and introduce evidence rebutting Dr. Fagan’s conclusions regarding specific UF-250 forms. Defendants did not.230 In general, as I stated when evaluating Dr. Fagan’s methods in Floyd,
“(il)legality of a stop” cannot be “conclusively determined on the basis of paperwork alone,” and clarifying that the UF-250 database “is necessarily an incomplete reflection of the totality of the circumstances leading to each stop”). Unlike a hearing on a single motion to suppress, this hearing aims to determine, based on necessarily limited data, whether the City and NYPD engaged in a widespread practice of constitutional violations.
228 Def. Findings ¶ 7. 229 See id. ¶ 4. 230 Similarly, defendants speculate that some of the buildings Dr. Fagan identified as Clean Halls buildings might not have been enrolled in Clean Halls on the date of the stop. See id. ¶ 10. Yet defendants fail to identify a single stop for which this was actually the case.
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the contents of UF-250s are admissible and probative.231 As defendants themselves
emphasize, officers are required to record all the reasons justifying a stop,232 and
the UF-250 provides spaces for officers to record any reason.233 To the extent that
plaintiffs used the UF-250 database primarily to estimate the magnitude of the
problem at issue in this case, plaintiffs were under no legal obligation to
supplement “the extremely rich and informative material”234 contained in the UF-
250 database with other paperwork or testimony.
In any case, even if there are reasons to believe that Dr. Fagan’s
exclusive reliance on UF-250s led to inaccuracies, the inaccuracies generally
231 See Floyd, 861 F. Supp. 2d at 290–91. Defendants’ expert misquotes this earlier opinion as flatly holding that “it would be improper to declare certain stops ‘unjustified’ and others ‘justified’ on the basis of paperwork alone.” Report of Defendant[s’] Expert Dr. Dennis Smith in Response to Plaintiffs’ Expert Dr. Jeffrey Fagan (“Smith Report”), Def. Ex. JJJJ, at 3 n.3 (quoting Floyd, 861 F. Supp. 2d at 291). In fact, the quoted sentence continues: “without offering any qualifications: a perfectly lawful stop cannot be made unlawful because the arresting officer has done a poor job filling out the post-arrest paperwork; nor can an egregiously unlawful stop be cured by fabrication of the paperwork.” Floyd, 861 F. Supp. 2d at 291 (emphasis added). Plaintiffs have presented Dr. Fagan’s conclusions in the instant case with the appropriate qualifications.
232 See Def. Findings ¶ 4 (“NYPD training evidence . . . clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]” (citing Tr. 10/15 at 86:12–87:2)); Tr. 10/19 at 849:13–19 (testimony of NYPD Chief James Shea).
233 See App. B. 234 Floyd, 861 F. Supp. 2d at 292.
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favored defendants, not plaintiffs. UF-250s present a one-sided picture of a stop:
they are completed not by neutral third parties, or with the cooperation of the
stopped person, but by officers who have obvious incentives to justify the stops they have made.235 More significantly, evidence from the hearing suggested that
many stops take place for which no UF-250 form is ever generated. Sgt. Musick
failed to identify a single UF-250 form for any of the eleven stops to which plaintiffs testified,236 and in both of the stops where officers were clearly identified, the officers admitted that they had failed to complete a UF-250 for the stop.237
Plaintiffs also introduced two reports by the Civilian Complaint Review Board
(“CCRB”) stating that there is a systemic problem with officers failing to complete UF-250 forms after stops.238
235 This conclusion receives anecdotal support from Officer Santiago’s erroneous paperwork regarding Bradley’s arrest, which tended to overstate rather than understate the justifications for the arrest. See Bradley Fact Sheet.
236 See Tr. 10/23 at 1125–1143. 237 See Tr. 10/22 at 1024:2–7 (Officer Ramdeen’s failure to complete UF250 for Turner’s stop); Tr. 10/23 at 1110:3–18 (Officer Santiago’s failure to complete UF-250 for Bradley’s stop). 238 See CCRB 2010 Annual Report, Pl. Ex. 78, at 13 (2010 report describing failure to fill out UF-250s as “major failure[]”); CCRB 2011 Annual Report, Pl. Ex. 79, at 14 (2011 Report describing same as “major categor[y] of failure”). I note that the NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck may be read as suggesting, erroneously, that UF-250s need not be prepared when a stop results in arrest: “If the investigation does not lead to an
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In light of the above, I reject defendants’ contention that the sole reliance on UF-250 forms as a statistical tool provides a categorically inadequate basis for determining the rough magnitude of unlawful stops in this case. I also find that failures to fill out UF-250 forms likely led to a significant undercounting of both lawful and unlawful stops in Dr. Fagan’s analysis.
Second, defendants attack Dr. Fagan’s analysis based on his failure to take account of a field on the UF-250 labeled “Period of Observation Prior To Stop.”239 Defendants correctly note that the location field that Dr. Fagan matched to Clean Halls addresses indicates not the location of the suspected trespass but the location of the stop.240 According to defendants’ theory, Dr. Fagan’s analysis overcounted the number of outdoor stops based on suspicion of trespass in Clean Halls buildings because officers may have stopped someone near a Clean Halls building on suspicion of trespass in a nearby building.241 As defendants conceded in their opening argument, however, the possibility of a discrepancy between the
arrest the individual must be released immediately, and a UF-250 must be prepared.” NYPD Legal Bureau, Street Encounters PowerPoint Presentation (“Street Encounters Presentation”), Def. Ex. J, at 27. But see id. at 33 (stating that a UF-250 must be prepared for every stop that is based on reasonable suspicion).
239 See Def. Findings ¶ 6; App. B. 240 See Tr. 10/15 at 45:14–47:4. 241 See Def. Findings ¶¶ 6, 10; Tr. 11/7 at 1309:9–1310:22.
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location of the suspected trespass and the location of the stop “cuts both ways.”242 Just as Dr. Fagan’s analysis might erroneously include stops that were in fact based on suspicion of trespass in a building near a Clean Halls building, so might his analysis erroneously exclude stops that were based on suspicion of trespass in a Clean Halls building but took place elsewhere.243 I am not persuaded that one effect would be larger than the other.
On the other hand, there is some validity to defendants’ argument that Dr. Fagan’s method might have failed to exclude stops based wholly or in part on observations of indoor behavior, despite Dr. Fagan’s attempt to exclude these stops.244 Dr. Fagan assumed that whenever an officer checked “Outside” rather than “Inside” on a UF-250 and gave no indication elsewhere on the form of having observed indoor behavior,245 the officer’s suspicion was not based at all on an
242 Tr. 10/15 at 47:1–4. Accord Fagan Report at 5–6 (noting underinclusive results of Dr. Fagan’s “exact match” method).
243 I address below defendants’ argument that the period of observation field could contribute to reasonable suspicion.
244 See Def. Findings ¶ 10. 245 According to plaintiffs, the UF-250 database fields that could contain text suggesting an observation of indoor behavior included the field called “premname,” as summarized in App. D to the Fagan Report, and the field called “detailSA,” as summarized in App. E to the Fagan Report.
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observation of indoor behavior.246 But it is easy to imagine an officer observing
behavior inside a Clean Halls building, making a stop outside, checking the
“Outside” box as a result of the stop location, describing the location of the
outdoor stop in greater detail in the “Type of Location” field, and failing to
indicate elsewhere on the form that all or part of the observed behavior took place
inside.
Nonetheless, defendants have failed to show why it was necessary for
Dr. Fagan to exclude all stops involving the observation of indoor behavior in the
first place. An outdoor stop based on the observation of unsuspicious indoor
behavior may be just as unconstitutional, and just as potentially relevant to establishing a pattern of unlawful trespass stops outside Clean Halls buildings,247 as
a stop based solely on the observation of unsuspicious outdoor behavior near a
TAP building, or a person exiting a TAP building. Perhaps Dr. Fagan attempted to
246 See Fagan Report at 3–4; Tr. 10/15 at 73:8–77:7, 128:1–130:16. 247 See Pl. Findings ¶ 69 (stating plaintiffs’ claim as follows: “[T]he defendants have a pattern and practice of unlawful stops on suspicion of trespassing outside TAP buildings in the Bronx.”). Some of the text strings in Fagan Report Appendices D and E that indicate indoor behavior also indicate reasonable suspicion for a trespass stop, such as “DRINKING IN REAR OF BUILDING,” and “STAIRWELL DRINKING.” App. E to Fagan Report. Many others, however, do not. See App. D to Fagan Report (excluding stops with text strings such as “LOBBY,” and “VESTIBULE”); App. E to Fagan Report (same with text strings such as “INSIDE CLEAN HALLS,” and “SUSPECT OBSERVED INSIDE CLEAN HALL BUILDING”).
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exclude all stops involving the observation of indoor behavior because these stops as a group tend to have a greater likelihood of being based on reasonable suspicion, especially if the officer observed the person indoors for a long period of time. If so, the exclusion was a gesture of methodological conservatism,248 and the apparent unfeasibility of perfectly executing the exclusion should not be held against plaintiffs. While Dr. Fagan’s methods may have failed to exclude some stops that were preceded by an observation of indoor behavior, this failure, by itself, is unlikely to have any significant impact on the validity of Dr. Fagan’s conclusions.249
Third, defendants criticize Dr. Fagan for having departed from methods he used to analyze UF-250 forms in Davis and Floyd.250 I decline to evaluate Dr. Fagan’s simple methods in the instant case through the circuitous
248 Dr. Fagan’s testimony suggested that he attempted to exclude any stop that was “not purely an outdoor stop.” See Tr. 10/15 at 74:3–5 (emphasis added).
249 A similar argument applies to defendants’ assertion that Dr. Fagan’s method failed to exclude some stops that took place outside a Clean Halls building but within the legal limits of the property on which the building sits. See Def. Findings ¶ 10; Tr. 10/15 at 128:1–9. An unconstitutional stop outside a Clean Halls building but within the property line can support the existence of a pattern of unconstitutional stops outside Clean Halls buildings just as well as an unconstitutional stop a few steps outside the lot boundary.
250 See Def. Findings ¶ 4 (citing generally Dr. Fagan’s analyses in Floyd and Davis).
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route proposed by defendants of analyzing Dr. Fagan’s far more complicated methods in the other two cases, determining whether those methods were valid, comparing those methods to Dr. Fagan’s methods in the instant case, analyzing whether Dr. Fagan’s methods in the instant case are consistent with the methods in the other two cases, and then, if any inconsistency arises, rejecting Dr. Fagan’s methods in the instant case on that basis. Instead, I will simply evaluate the validity of Dr. Fagan’s methods in the instant case on their own terms.
Furthermore, it would be entirely understandable if the application of the method from Floyd to the instant case resulted in a lower count of unlawful stops than the method Dr. Fagan used here. The explanation for such a discrepancy is apparent. Dr. Fagan used more conservative assumptions throughout Floyd than in the instant case, and with valid reason.251 The universe of stops that Floyd analyzes for unconstitutionality is vastly larger than the universe analyzed for unconstitutionality as part of the instant motion — 2.8 million stops versus 1,663.252 As a result, the plaintiffs in Floyd have less of a need for precision
251 For example, Dr. Fagan assumed in Floyd and Davis, which also dealt with a far larger universe of stops, that Furtive Movements in combination with High Crime Area should be coded as constituting reasonable suspicion. See Tr. 10/15 at 151:2–5.
252 Compare Floyd, 861 F. Supp. 2d at 278, with Period of Observation Table.
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than plaintiffs in the instant case. That does not mean that plaintiffs’ precision in the instant case is spurious. Dr. Fagan’s credibility should hardly be questioned in the instant case simply because, for whatever strategic or pragmatic reasons, he chose cautious but more manageable methods in another case that might result in a large number of unlawful stops being coded as lawful. Once again, the relevant question in evaluating Dr. Fagan’s methods in the instant case is whether the methods are valid here, not whether they are identical to the methods used in a different case based on a different universe of stops.253
Fourth, defendants persuasively note that Dr. Fagan’s analysis, standing alone, does not provide a convincing methodology for establishing a causal nexus between the Clean Halls program and the stops that Dr. Fagan
253 In addition, I note that the method in Floyd aims to identify stops for which no reasonable suspicion of any crime exists, whereas the method in the instant case aims to identify stops for which no reasonable suspicion of trespass exists. Given a universe of forms recording stops based only on suspicion of trespass, there may be some forms containing data that could arguably constitute reasonable suspicion of some crime, but not of trespass. The Floyd method will identify these stops as arguably lawful, while Dr. Fagan’s method in the instant case will identify them as apparently unlawful. As a result, Dr. Fagan’s method in the instant case will result in a higher count of unlawful stops than his method in Floyd. This does not imply bad faith or a contradiction in Dr. Fagan’s methods, much less prove the invalidity of Dr. Fagan’s method in the instant case. Floyd and Ligon simply aim to assess different sets of stops.
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analyzed.254 As Dr. Smith, stated in his report: Professor Fagan’s methodology, by its very nature, cannot distinguish between whatever impact Clean Halls may have had on the pattern of Terry stops in the Bronx [and] the impact other factors . . . might have had on that same pattern. . . . [I]t would be invalid to conclude that Professor Fagan has demonstrated that the Clean Halls program itself, and its implementation, caused the outcomes Professor Fagan observes and the Plaintiffs challenge.255 In essence, Dr. Fagan selected a set of stops from the UF-250 database
based on several selection criteria — the stops had to be in the Bronx, on suspicion of trespass only, at the location of a Clean Halls address, outside, and so on256 — and then determined how many of the stops in the set were unjustified. This approach cannot show whether stops in the set were more likely to be unjustified than stops in the UF-250 database in general, or stops in some other relevant set. Much less can this approach show that belonging to the set causes an increased likelihood that a stop will be unjustified. Just as Dr. Fagan analyzed the number and percentage of trespass stops outside Clean Halls buildings that were unjustified, one could analyze the quantity of unjustified trespass stops outside any
254 See Def. Findings ¶ 3 (citing Tr. 10/23 at 1172–77; Smith Report at 7–29).
255 Smith Report at 8 (emphasis added). 256 See Fagan Report at 8 tbl.1; Tr. 10/15 at 83:15–85:7, 124:25–126:17 (excluding stops at NYCHA addresses).
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arbitrary category of building — such as green buildings, or buildings with oddnumbered addresses. If, hypothetically, the police were making a large number of unjustified stops throughout New York City, the analysis would show that a large number of stops outside odd-numbered buildings were unjustified. It would obviously be inappropriate to infer from this that the police had a customary practice of making unlawful stops outside odd-numbered buildings, or to grant a preliminary injunction requiring the police to conduct specific training regarding stops outside odd-numbered buildings.257
Thus, defendants are correct that Dr. Fagan’s analysis, standing alone, cannot establish a causal nexus between Clean Halls buildings and unlawful trespass stops. But plaintiffs have already established a clear likelihood of proving such a nexus based on other evidence. ADA Rucker credibly testified to the police repeatedly making unjustified trespass stops and arrests outside Clean Halls
257 Plaintiffs imply in their Reply Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction (“Reply Mem.”) that it is not necessary for plaintiffs to prove “that officers are stopping people because the building is enrolled in the Clean Halls program.” Reply Mem. at 3. But as the analogy to the odd-numbered building hypothetical suggests, this cannot be correct. Plaintiffs’ request for preliminary relief depends on there being a specific problem involving stops outside Clean Halls buildings, a problem that can only be partially solved by improving the general training regarding the law of stop and frisk.
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buildings because they were Clean Halls buildings.258 One plaintiff testified that
an officer explained an unlawful trespass stop based on the fact that it took place outside a Clean Halls building.259 As discussed below, an officer in the NYPD’s
Legal Bureau learned through focus groups with sergeants and lieutenants that they
believed it was legal to approach and question, if not stop, anyone in a TAP building even without a reason for doing so.260 Finally, on 417 of the UF-250s in
Dr. Fagan’s original universe of 1,857 trespass stops outside Clean Halls buildings,
officers handwrote phrases or words to the effect of “Clean Halls” or “Trespass Affidavit.”261 The purpose of a UF-250 is to record the circumstances that led to an officer’s stop.262 The frequency with which officers took the time to note “Clean
258 See supra Part IV.A.1. 259 See Tr. 10/17 at 481:7–482:8 (Hispanic officer in Turner stop). I also note — though the evidence does not relate directly to the outdoor stops at issue in this case — that Officer Santiago testified that even after receiving the NYPD’s stop and frisk training at Rodman’s Neck, he still believed there was legal justification to ask anyone in the lobby or hallways of a Clean Halls building for an ID, even in the absence of any suspicion, reasonable or otherwise. See Tr. 10/23 at 1111:2–1113:10. Officer Santiago attempted to qualify this rule by stating that the building needed to be in a high crime area in order to justify a request for ID. See id. at 1111:9–22. He then undermined this qualification by stating, categorically, that all Clean Halls buildings are in high crime areas. See id. at 1111:24–1112:1. 260 See Tr. 10/18 at 648:18–649:16. 261 See Tr. 10/15 at 124:18–24. 262 See id. at 123:17–20.
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Halls” on a form, even though there is no specific field or checkbox and no reason for doing so,263 suggests that many officers thought a building’s enrollment in Clean Halls contributed to the justification for the stop.
Fifth, defendants challenge the methods and assumptions Dr. Fagan followed in processing the information contained on UF-250 forms into conclusions regarding the number of unlawful stops.264 Not surprisingly, defendants argue that many of the forms Dr. Fagan identified as lacking an articulation of reasonable suspicion in fact contained such an articulation. Because these arguments involve mixed questions of fact and law that depend on a finegrained analysis of what constitutes reasonable suspicion, I will address them in my conclusions of law below.265 In any case, the facts regarding how Dr. Fagan counted the number of unlawful stops are not in material dispute.
Based on the testimony of plaintiffs and others, the decline to prosecute forms, and the statistical analysis performed by Dr. Fagan and discussed in greater detail below, I find that plaintiffs have shown a clear likelihood of laying a sufficient factual foundation to prove that defendants have engaged in a
263 See id. at 124:14–17; Tr. 10/22 at 1058:24–1059:2, 1072:9–19; Tr. 10/23 at 1110:23–1111:1; App. B.
264 See Def. Findings ¶¶ 3, 6, 8–10. 265 See infra Part V.B.1.a.
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widespread practice of making unlawful trespass stops outside TAP buildings in
the Bronx.
B. Steps Taken by the NYPD in 2012 TAP began in the early 1990s in Manhattan.266 Despite the program’s
name, TAP was originally focused not on trespass but on narcotics sales taking
place in the common areas of private buildings, such as lobbies, stairwells, and rooftops.267 An officer who testified regarding the origins of TAP stated that “[t]he
more that we cracked down on drug sales on the street, the more that you saw drug dealers move indoors.”268 Before TAP, officers had to deal informally with landlords to get permission to enter private buildings in search of drug sales.269
TAP provided a formal process for building owners to permit officers to conduct
266 See Tr. 10/17 at 519:8–520:16; Smith Report at 10–11; NYPD Legal Bureau, Trespass Affidavit Program: Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings (“1999 TAP Legal Guidelines”), Def. Ex. O, at 1. When TAP expanded to the Bronx, it was called “Clean Halls,” though as of May 2012 the NYPD has begun referring uniformly to the program as TAP. See Tr. 10/17 at 520:17–521:7. In Queens, TAP was referred to, inexplicably, as “FTAP.” See id.
267 See Tr. 10/17 at 519:23–520:16. For the historical background of the War on Drugs, see WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 23–26, 267–74 (2011); MICHELLE ALEXANDER, THE NEW JIM CROW 40–58 (2010).
268 Tr. 10/17 at 519:14–16. 269 See id. at 519:8–520:6.
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“vertical patrols” inside the buildings.270
Defendants were unable to produce a single written policy or
procedure governing any aspect of TAP between the program’s origins in the early
1990s and the issuance of two orders in 2012, discussed below.271 Nor did
defendants produce evidence that the NYPD conducted any training or created any
training materials specific to TAP before 2012.272 Nor did the NYPD have an
accurate and complete count of buildings enrolled in TAP prior to a survey
conducted in the summer of 2012.273
270 See id. at 519:23–520:6. 271 See id. at 633:13–17. In 1999, the NYPD’s Legal Bureau created its “Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings.” See 1999 TAP Legal Guidelines. One passage of the fourteen-page document states: “IT SHOULD BE UNDERSTOOD THAT WHEN AN OFFICER IS NOT IN THE BUILDING (E.G., SITTING ACROSS THE STREET IN AN R.M.P.), MERELY OBSERVING AN INDIVIDUAL ENTERING AND EXITING THE BUILDING, OR SIMPLY EXITING THE BUILDING, IS NOT ENOUGH TO CONDUCT A STOP.” Id. at 6; Tr. 10/18 at 684:2–4. But Inspector Sweet testified that he did not know of anyone to whom the document had been distributed. See Tr. 10/18 at 654:5–7. Defendants argue that a document from 2000 called Patrol Guide 21259, “Vertical Patrol” (P.G. 212-59), Def. Ex. FFFF, governed TAP before the 2012 Interim Orders. See Def. Findings ¶ 26 & n.15 (citing P.G. 212-59). But P.G. 21259 provides general guidelines for conducting vertical patrols and makes no mention of TAP or Clean Halls. See Tr. 10/18 at 679:20–25. 272 For the first TAP-specific training and the absence of prior training, see the numerous citations to the record at Pl. Findings ¶ 48 & n.7. 273 See Tr. 10/19 at 773:23–775:14. The survey revealed that there were over eight thousand buildings enrolled in TAP, including over three thousand in
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1. NYPD Recognition of a Problem in TAP The improvements to TAP in 2012 had their roots in earlier years. Inspector Kerry Sweet, the executive officer of the NYPD Legal Bureau, testified that by early 2010, he had become involved in a group that was examining vertical patrols and trespass issues in NYCHA buildings.274 Inspector Sweet received approval to examine these issues in the TAP program as well.275 In the summer of 2010 through 2011, Inspector Sweet conducted focus groups with sergeants and lieutenants involved with TAP, and then with prosecutors and various NYPD officials.276 Inspector Sweet learned that “there really wasn’t a lot of direction about the administration of the program.”277 During his deposition, Inspector Sweet testified that he also learned of “some confusion” regarding TAP stops: [O]fficers believe their role might have been as doorman [or] custodian, rather than a strict application of De Bour. And once again, understanding that they needed that articulate reason to approach somebody and that if you were a doorman, you could approach everybody, but that is not the case. . . . [I]n TAP buildings, you have to have a reason to approach people. . . .
the Bronx. See id. 274 See Tr. 10/17 at 511:10–514:17. 275 See id. at 521:13–23. 276 See id. at 523:13–524:5, 528:11–13, 531:6–533:1. 277 Id. at 524:6–7. 83

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I wasn’t getting the sense necessarily that they were stopping people in their tracks, but they may have been asking everybody coming into a building, what are you doing here, what is your reason for being here. And that obviously isn’t what we want them to do nor is it probably the right thing to do under the De Bour standard.278
Inspector Sweet testified that Katherine Lemire, special counsel to Police
Commissioner Raymond Kelly, attended meetings with Inspector Sweet where this
problem was discussed.279
2. Interim Orders 22 and 23 of 2012
After completing the focus groups in 2010 and 2011, Inspector Sweet
helped to draft two new regulations to govern the TAP program: Interim Orders
(“IOs”) 22 and 23, both published in May 2012.280 IO 23 of 2012 addresses
various administrative issues relating to TAP, including procedures for enrolling
278 Tr. 10/18 at 648:18–649:16. I note that Inspector Sweet’s testimony regarding what officers said at the focus groups appears to refer to the practice of stops without reasonable suspicion inside TAP buildings, and thus does not necessarily indicate that Inspector Sweet was aware of the problem of unlawful stops outside TAP buildings. At the hearing, Inspector Sweet also emphasized that his concern was with unlawful approaches, not unlawful stops. See id. at 649:20–650:7.
279 See id. at 650:18–651:17. 280 See Tr. 10/17 at 534:6–536:1; Interim Order 22 of 2012 (“IO 22 of 2012”), Def. Ex. A; Interim Order 23 of 2012 (“IO 23 of 2012”), Def. Ex. B. An “Interim Order” is a revision to a patrol guide procedure and becomes the policy of the NYPD upon publication. See Tr. 10/17 at 522:2–13.
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buildings in the program.281 IO 22 of 2012 lays out procedures for the conduct of vertical patrols inside TAP buildings, with an emphasis on trespass arrests.282 It
provides explicit guidance regarding when stops are lawful based on the suspicion
of trespass in a TAP building. The second page of the Order begins with an
italicized warning:
A uniformed member of the service may approach and question persons if they [sic] have an objective credible reason to do so. However, a uniformed member may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authorization.283
The next page, in a separate section, repeats the first sentence of this note, and then
continues, again in italics:
When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared as per P.G. 212-11, “Stop and Frisk.” Some factors which may contribute to “reasonable suspicion” that a person is trespassing, in addition to those factors set forth in P.G. 212-11, “Stop and Frisk,” are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.284
The section continues by stating that a trespass arrest requires probable cause, and
281 See IO 23 of 2012. 282 See IO 22 of 2012 at 1 (¶ 1, “SCOPE,” and “PROCEDURE”). 283 Id. at 2. 284 Id. at 3.
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that refusal to answer questions is insufficient to establish probable cause.285
As plaintiffs correctly note, however, IO 22 of 2012 makes no reference to stops outside TAP buildings.286 It does not explicitly state that stops
outside TAP buildings require reasonable suspicion, and that merely exiting a TAP
building is insufficient to establish reasonable suspicion, even in a high crime area.287
At the hearing, defendants offered evidence of numerous steps that have been taken to support the implementation of IOs 22 and 23 of 2012.288 After
any trespass arrest, officers must now complete a “Trespass Crimes – Fact Sheet” documenting the facts that established probable cause.289 The Chief of Patrol
285 See id. 286 See Pl. Findings ¶ 54. 287 See IO 22 of 2012. 288 I give little weight to an August 20, 2012 memo from Chief of Patrol James P. Hall to all commanding officers. See 8/20/12 Memo from Chief of Patrol to Commanding Officer, All Patrol Boroughs, Def. Ex. E. The letter, distributed as the preliminary injunction hearing approached, contains a number of ambitious orders, such as that platoon commanders must personally critique all interior or exterior “street encounters” involving TAP buildings, including all stops. See id. ¶ 3. At the hearing, the executive officer of the Patrol Services Bureau testified that he was unaware of any supervisors conducting critiques of stops inside or outside of TAP buildings. See Tr. 10/19 at 759:6–15. 289 See Tr. 10/17 at 545:15–546:1, 559:24–560:7; Trespass Crimes – Fact Sheet, Def. Ex. H. While the use of this fact sheet may be a welcome development, it will do nothing to clarify officers’ confusion regarding the
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distributed IOs 22 and 23 to 2012 to all commanding officers with a brief synopsis,290 pursuant to a two-page plan to promote knowledge of criminal trespass offenses among uniformed servicemembers.291 Legal Bureau and other personnel offered instruction on IOs 22 and 23 of 2012 to training sergeants and special operations lieutenants,292 who were then expected to pass along the information to “the rank and file” at training sessions during roll call.293 Legal Bureau and other personnel provided separate instruction to borough and precinct commanders.294 Some of the training involved the use of a newly prepared video on “Stop, Question, and Frisk,”295 and an updated version of the Chief of Patrol Field
standards for making a stop outside a Clean Halls building. There is also a new “Trespass Crimes – Owner’s Affidavit” in support of the administrative goals of IO 23 of 2012. See Tr. 10/17 at 526:21–528:7; Trespass Crimes – Owner’s Affidavit, Def. Ex. G.
290 See 8/12/12 Memo from Chief of Patrol to Commanding Officers, All Patrol Boroughs, Def. Ex. C.
291 See 6/18/12 Memo from Chief of Patrol to Chief of Department (“Trespass Law Plan”), Def. Ex. D, ¶ 2.
292 See id. ¶ 3. 293 Tr. 10/19 at 789:19–790:5. 294 See Tr. 10/18 at 711:24–714:11. 295 See, e.g., Tr. 10/22 at 996:2–4.
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Training Guide.296
Many of these steps are peripheral to the concerns of this case. The
video and the Training Guide, for example, deal with stop and frisk in general, and
make no specific reference to trespass stops outside TAP buildings.297 In addition,
as discussed below, some of the training materials contain inaccurate or misleading
information that could exacerbate rather than resolve the problem of
unconstitutional stops.298
3. Absence of Steps Meaningfully Addressing Outdoor TAP Stops
During the hearing, defendants emphasized the training that officers
296 See Trespass Law Plan ¶ 6; July 2012 Chief of Patrol Field Training Unit Program Guide (“Training Guide”), Def. Ex. N. The Police Student’s Guide, which is hundreds of pages long, has also been revised to include several pages on IO 22 of 2012. See Police Student’s Guide (excerpt) (“Police Student’s Guide”), Def. Ex. RRR, at 30–34; Tr. 10/22 at 915:7–919:17.
297 See Training Guide at 10–24; NYPD Stop Question & (Possibly) Frisk Video Series, “Frisk,” (“SQF Training Video No. 5”), Def. Ex. T; Script of SQF Training Video No. 5, Def. Ex. U; Tr. 10/22 at 942:25–943:3 (nothing in film deals specifically with TAP). One page of the Training Guide, which was distributed only to the supervisors of IMPACT officers, reiterates IO 22 of 2012 by stating that reasonable suspicion is required for stops based on suspicion of trespass in a TAP building. See Training Guide at 65; Tr. 10/23 at 1252:1–3. The page makes no specific reference to stops outside TAP buildings, and could easily be read, in context, as a discussion of stops during vertical patrols. See Training Guide at 65.
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receive throughout their careers regarding the laws governing stop and frisk in general.299 This training has recently been supplemented by a refresher course on stop and frisk at the Rodman’s Neck training center in the Bronx.300 More than three thousand officers have attended the training course since its development in 2012.301
The root problem that led to unlawful trespass stops outside TAP buildings in the Bronx, however, based on ADA Rucker’s testimony and the other evidence introduced at the hearing, is that officers perceived trespass stops in the proximity of TAP buildings as exceptions to the general rules governing stop and frisk. Improving the training surrounding stop and frisk in general may do nothing to dispel the notion that there is an exception for stops outside TAP buildings.
IO 22 of 2012 makes clear that presence inside a TAP building is not a sufficient basis for a stop, and that stops made during vertical patrols of TAP buildings must be based on reasonable suspicion. But IO 22 of 2012 and the training introduced in support of it present themselves as guides to conducting vertical patrols inside a TAP building, not guides for making trespass stops and
299 See Def. Findings ¶¶ 35–36. 300 See Tr. 10/17 at 571:25–572:23. 301 See Tr. 10/19 at 888:1–2; Tr. 10/22 at 955:8–13.
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arrests outside TAP buildings. The difference may seem insignificant when
viewed in the abstract. In theory, officers should be able to infer from the rules in
IO 22 of 2012 how to perform lawful trespass stops outside TAP buildings.
In practice, however, the evidence at the hearing suggests that NYPD
officers are trained to carry out their duties according to a set of standard operating
procedures. The NYPD’s training reduces the unpredictable, confusing challenges
that arise on patrol to a manageable set of standard situations and orderly procedures for addressing them.302 If a recurring, problematic situation is not
included in the training, officers may categorize it in the wrong way and employ
inappropriate responses — such as stopping someone simply because he exited a
TAP building. The evidence at the hearing, as summarized in the previous section,
strongly supports the conclusion that many officers took such actions before
302 IO 22 of 2012, for example, defines the standard scenario for a vertical patrol in a TAP building, lays out various common problems that may arise during such a patrol, and prescribes what to do and what not to do in response to them, including specific questions to ask. See IO 22 of 2012 at 2. After receiving training on IO 22 of 2012, including role-play simulations, see Tr. 10/19 at 836:7–840:13, an officer will have less need to improvise under pressure or base his or her responses on inferences from general principles or analogies to other scenarios. In this sense, the NYPD’s training follows the model of a traditional Western military academy, which aims “to reduce the conduct of war to a set of rules and a system of procedures — and thereby to make orderly and rational what is essentially chaotic and instinctive.” JOHN KEEGAN, THE FACE OF BATTLE 18 (1976). On the functioning of standard operating procedures in bureaucracies generally, see GRAHAM ALLISON & PHILIP ZELIKOW, ESSENCE OF DECISION 143–96 (2d ed. 1999) .
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2012.303 Yet none of the steps taken by the NYPD in 2012 were directly and
meaningfully focused on uprooting the misconceptions regarding trespass stops
outside TAP buildings that resulted in the constitutional violations in this case.
In fact, based on the evidence at the hearing, the only piece of
instruction that has been provided to officers on a systematic basis and that
specifically targets the problem of outdoor trespass stops at TAP buildings is a
single bullet point included in a PowerPoint presentation offered by the Legal
Bureau as part of the Rodman’s Neck training.304 The bullet point, which takes up
one third of a page of a forty-five-page presentation, states:
Observation of an individual exiting a NYCHA/TAP Building, without more, is not an objective, credible reason to approach that individual.305
303 As plaintiffs stated in their summation: “We have a 20-year program. There is a culture around these stops. So [corrective instruction] needs to happen periodically . . . so that people get the message.” Tr. 11/7 at 1373:2–6.
304 See Street Encounters Presentation at 40; Tr. 10/17 at 572:24–573:6; Tr. 10/18 at 663:13–664:1. A former commanding officer of the New York City Police Academy testified that the role-playing at Rodman’s Neck sometimes involves individuals standing outside of TAP buildings, but the individuals appear to play the role of civilian bystanders and witnesses, not suspects. See Tr. 10/19 at 815:11–14, 838:25–840:9. Chief Hall testified that “we have made [it] clear” to officers that “we do not want” them “stopping an individual outside of [a] Clean Halls building simply because they are exiting a building, without more.” Tr. 11/23 at 1244: 6–12. Chief Hall did not provide specifics as to how this was made clear. See id.
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As common sense would suggest, and evidence at the hearing confirmed, attendees at the Rodman’s Neck training do not always absorb the lesson contained in this bullet point, or even recall having seen it. One officer who had recently attended the refresher course at Rodman’s Neck testified that he did not remember any discussion of TAP,306 and both he and another officer testified that they could not remember any training involving outdoor stops on suspicion of trespass.307
In light of the above, and in the absence of reliable statistics regarding stops in 2012, I find that defendants failed to introduce persuasive evidence regarding whether the improvements undertaken by the NYPD in 2012 have affected the magnitude of unlawful trespass stops outside TAP buildings in the Bronx.308 V. DISCUSSION
A. Standing
306 See Tr. 10/22 at 1043:17–1044:13. 307 See id.; Tr. 10/23 at 1111:2–8. 308 Defendants introduced evidence of a dramatic reduction in declines to prosecute for trespass arrests, in general, in the Bronx in 2012. See, e.g., Tr. 10/18 at 726:18–727:7; Tr. 10/23 at 1249:7–17. But this obviously does not provide a reliable basis for inferring that unlawful trespass stops outside TAP buildings have declined.
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As a preliminary matter, defendants argue that plaintiffs lack standing to seek injunctive relief.309 I addressed this issue extensively in Floyd, and again in Davis, and the same analysis applies here.310 First, “[c]oncrete injury is a prerequisite to standing and a ‘plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.’”311 Second, “‘[t]he possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.’”312 Third, “‘the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.’”313
Abdullah Turner and Letitia Ledan both testified to two specific unlawful trespass stops outside TAP buildings in the Bronx, and J.G. and Jovan Jefferson both referred to having been stopped multiple times outside TAP
309 See Def. Findings ¶ 47. 310 See Davis, 2012 WL 4813837, at *26; Floyd, 283 F.R.D. at 169. 311 Floyd, 283 F.R.D. at 169 (quoting Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998)). 312 Davis, 2012 WL 4813837, at *26 n.225 (quoting Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985)). 313 Id. at *26 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 53 (2006)).
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buildings.314 Even if, as I found, Ledan’s second stop was not on suspicion of
trespass, the evidence suggests that both of Turner’s stops were.315 Furthermore,
Turner has lived since 2008 in a TAP building,316 where, based on the evidence
presented at the hearing, he will likely be the target of future unlawful stops — if
such stops continue to take place as they have in the past.317 This is sufficient to
confer standing on plaintiffs.318
314 See supra Part IV.A.2.b, c, f, i. Jefferson testified to being stopped seven to eight times outside TAP buildings. See Tr. 10/16 at 361:12–14.
315 See supra Part IV.A.2.b. 316 See Tr. 10/17 at 471:11–472:19, 486:9–487:1. 317 I also note, as I did in Floyd, that in light of the frequency of unlawful trespass stops outside TAP buildings in the Bronx, even those plaintiffs who have only been subjected to such a stop one time would likely have standing, provided that they continue to live in or visit TAP buildings. “‘[T]here is no per se rule requiring more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury.’” Floyd, 283 F.R.D. at 170 n.106 (quoting Roe v. City of New York, 151 F. Supp. 2d 495, 503 (S.D.N.Y. 2001)). Accord Battle v. City of New York, No. 11 Civ. 3599, 2012 WL 112242, at *3–4 (S.D.N.Y. Jan. 12, 2012) (concluding that plaintiffs, each of whom had only one alleged wrongful experience with NYPD officers under program involving searches of livery cars, had standing to pursue injunctive relief against NYPD, based on number of cars enrolled in the program and plaintiffs’ reliance on such cars); National Cong. for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 161–62 (S.D.N.Y. 1999) (concluding that frequency of NYPD stops and plaintiffs’ belonging to groups distinctly affected by NYPD stop practices gave plaintiffs standing to seek injunctive relief). 318 Of course, plaintiffs would not be likely to suffer injury in the future if the NYPD no longer had a custom of making unlawful trespass stops outside TAP buildings. But while defendants have introduced evidence of certain changes in
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B. Preliminary Injunctive Relief Plaintiffs seek a variety of injunctive remedies that would require the
NYPD to act in ways that depart from the status quo, including the development and implementation of new formal policies, new training procedures, and burdensome new supervisory and monitoring procedures.319 Because the preliminary injunctive relief sought by plaintiffs is thus mandatory rather than prohibitory, plaintiffs must show (1) that they are clearly or substantially likely to prove at trial that defendants are engaged in an ongoing custom of making trespass stops outside TAP buildings in the Bronx in the absence of reasonable suspicion, in violation of the Fourth Amendment; (2) that plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief; (3) that the balance of equities tips in plaintiffs’ favor; and (4) that an injunction is in the public interest.320
The following sections address each of these factors in turn. 1. Clear or Substantial Likelihood of Success on the Merits
the NYPD’s policies and training in 2012, defendants have not proven that the NYPD’s custom of making unlawful trespass stops outside TAP buildings has ended. See supra Part IV.B.3; infra Part V.B.1.b.
319 See Pl. Findings ¶¶ 72–75. The remedies proposed in this Opinion, though not identical to those requested by plaintiffs, remain largely mandatory in nature. See infra Part V.C.
320 See supra Part II. 95

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Because plaintiffs do not assert that defendants have an explicit or formally approved policy of making trespass stops without reasonable suspicion outside TAP buildings in the Bronx, plaintiffs must show a clear or substantial likelihood of proving at trial that defendants have a custom or usage of making such stops. Specifically, plaintiffs argue that defendants “have a pattern and practice” of making unlawful trespass stops outside TAP buildings, and that “the City of New York has been deliberately indifferent” to this practice “by failing to supervise and train.”321
My analysis of plaintiffs’ claim proceeds in two steps. First, I analyze plaintiffs’ deliberate indifference claim and conclude that plaintiffs have shown a clear likelihood of establishing that defendants’ longstanding failure to train officers regarding the legal standards for trespass stops outside TAP buildings in the Bronx, despite actual or constructive notice that this omission was causing city employees to violate individuals’ constitutional rights, has risen to the level of deliberate indifference. Whether plaintiffs’ deliberate indifference claim is analyzed in terms of the general standard in Connick, the three-part Walker standard, or the constructive acquiescence standard, plaintiffs have shown a clear
321 Pl. Findings ¶¶ 69–70. Plaintiffs present the former as a “constructive acquiescence” claim, and the latter as a deliberate indifference claim based on failure to train. See id. Because constructive acquiescence is merely a way of proving deliberate indifference, I analyze the claims together.
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likelihood of success on their Monell claim. Second, I analyze whether defendants have rebutted plaintiffs’ evidence of deliberate indifference based on the steps taken by the NYPD in 2012. I conclude that these steps have not meaningfully addressed the specific problem of unconstitutional trespass stops outside TAP buildings in the Bronx.
a. Deliberate Indifference Applying the law of Terry stops to my findings of fact, above, plaintiffs offered more than enough evidence at the hearing to support the conclusion that they have shown a clear likelihood of proving at trial that the NYPD has a practice of making unlawful trespass stops outside of TAP buildings in the Bronx:
i. ADA Rucker’s Testimony As described above, ADA Rucker credibly testified that NYPD officers have treated proximity to a TAP building as a factor contributing to reasonable suspicion, and have frequently made trespass stops outside TAP buildings for no reason other than that the officer had seen someone enter and exit or exit the building.322 These stops were made because the building was enrolled
322 See supra Part IV.A.1. 97

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in TAP, and they were not based on any reasonable suspicion of trespass.323 ADA Rucker’s testimony is corroborated by the accounts of stops and arrests in the twenty-six decline to prosecute forms, as well as by the hundreds of UF-250s on which officers wrote “Clean Halls” as a justification for a stop.324 As discussed below, Dr. Fagan’s analysis of UF-250s provides further corroboration of ADA Rucker’s testimony.325
ii. Plaintiffs’ Stops The conclusion that the NYPD has repeatedly made trespass stops outside TAP buildings without reasonable suspicion is further supported by the credible and mutually corroborating testimony of named plaintiffs regarding the circumstances leading to their encounters with police.326 First, each of plaintiffs’ encounters with the police rose to the level of Terry stops. In theory, it might be possible for an officer to approach a person outside a TAP building and ask the person his name, where he is coming from, whether he lives in the building, and if not, whether he knows anyone in the building, all the while acting in such a way
323 See id. 324 See Tr. 10/15 at 124:18–24; Fagan Report at 13. 325 See infra Part V.B.1.a.iii. 326 See supra Part IV.A.2.
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that a reasonable person would feel free to terminate the encounter and go about his business. Perhaps in an idealized scene from another era of policing,327 a local
officer might have politely posed these questions to a stranger near a building with
a trespass problem, and the stranger might have gladly consented to answer the
questions, knowing full well that he was free to walk away, but answering the questions out of politeness or a sense of civic duty.328
Here, by contrast, no reasonable person in plaintiffs’ position would
have felt free to leave during their encounters with the police. Bradley was
stopped when an officer in a van gestured for him to come over, he came over, and
327 See STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE, at 29–32 (contrasting localized Gilded Age criminal justice system in Northeast with more centralized, legalized, and bureaucratized system today). A plaintiff in Davis described the contrasting styles of policing that Stuntz emphasizes in his book. “[B]efore the merger [of the NYCHA Police and the NYPD], we had one officer that was stationed in our building. He knew all the residents. If there was a problem, and he would come to the parent and discuss whatever the problem was and he would talk to the young men in the building and there was a mutual respect we had for one another. We don’t have that anymore, it is so impersonal . . . .” Davis, 2012 WL 4813837, at *1 n.10.
328 See United States v. Tavolacci, 895 F.2d 1423, 1424–25 (D.C. Cir. 1990) (stating that the “free to leave” test “assumes that the individual is aware of police duties to keep the peace and prevent crime, and that that ‘awareness, coupled with feelings of civic duty, moral obligation, or simply proper etiquette, will often lead a reasonable person to cooperate.’” (quoting Gomez v. Turner, 672 F.2d 134, 141–42 (D.C. Cir. 1982))).
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the officer asked “What are you doing here?”329 Turner was stopped when three officers approached and one “snatched the phone out of [his] hand,”330 abruptly and aggressively ending his call and taking control of his property, without any request for permission to do so. The stop continued as the officer asked Turner what he was doing and whether he lived in the building beside which he was standing.331 Turner was stopped a second time when a police car pulled up in front of him as he and others were exiting a Clean Halls building, an officer got out, questioned the group, and requested Turner’s identification.332 J.G. was stopped when five officers approached him outside his building, stopped him, and asked him where he was coming from, where he was headed, and what he had in his bag. He was surely stopped when the officers made him raise his hands, frisked him, and searched inside his pockets and his grocery bag.333 Jerome Grant was stopped when two officers approached with flashlights, questioned him and his friends to determine whether they were trespassing, and in response to questions from those who were stopped, replied with strong words such as “I’m the one that’s talking
329 Tr. 10/16 at 266:3. 330 Tr. 10/17 at 477:8. 331 See id. at 478:13–22, 479:8–11. 332 See id. at 486:9–490:25. 333 See id. at 437:17, 439:4–443:2.
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here,”334 and “hush up.”335 Roshea Johnson was stopped when a black van pulled up in front of him with police officers inside and one of them began questioning him about trespassing.336 He was certainly stopped — and arrested — a moment later when he was placed in handcuffs in the back of the van.337
Similar analyses apply to nearly all of the other stops described by plaintiffs. No reasonable person would have felt free to leave in plaintiffs’ circumstances once an officer or officers approached, caused the plaintiff to stop through a command, gesture, accusatory introduction, or by taking possession of the person’s property, and then began asking questions that were clearly intended to elicit incriminating responses regarding trespassing.
Any doubt that plaintiffs were free to leave after the commencement of intrusive investigatory questioning is resolved by looking to the instances in the decline to prosecute forms when suspects attempted to terminate their encounters. In one encounter, “the defendant attempted to walk away[,] at which time [the officer] grabbed the defendant[’]s arms.”338 After a struggle, the defendant was
334 Id. at 456:13. 335 Id. at 456:18–19. 336 See id. at 399:21–400:17. 337 See id. at 400:17–401:18. 338 App. A ¶ 12.
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arrested.339 In another encounter, “[t]he arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated . . . YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT PUTTING YOUR HANDS ON ME.”340 The arresting officer then handcuffed the defendant and placed him in a patrol vehicle.341 Similarly, when various defendants simply refused to answer an officer’s questions, it became clear that they were not free to terminate the encounter in this way either.342 In one encounter, the arresting officer “approached the defendant and asked her where she was coming [from], what was she doing in the building[,] and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME.”343 The defendant was then arrested for trespass.344
339 See id. 340 Id. ¶ 20. 341 See id. 342 See, e.g., id. ¶¶ 4, 15, 22, 25, 26. In Davis, I held that “the Fifth Amendment prohibits police from arresting an individual for refusing to provide ‘testimonial’ evidence.” Davis, 2012 WL 4813837, at *14. Whether refusal to provide testimonial evidence may contribute to reasonable suspicion of trespass is a distinct issue, and one not raised by the parties at this stage of the litigation. 343 App. A ¶ 4. 344 See id.
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The responses of the police officers as summarized in the decline to prosecute forms do not tell a surprising story. Indeed, they are what a reasonable person would have expected under the circumstances. When a person considers walking away from an officer who has stopped her and begun asking accusatory questions, it is objectively reasonable for the stopped person to believe that the officer will attempt to prevent her from doing so. Persons who are stopped by the police in circumstances like those described by plaintiffs reasonably conclude that they are not free to terminate the encounter. As a result, such stops are Terry stops under the Fourth Amendment, and DeBour Level 3 stops under New York state law, and require that the officer have a “reasonable suspicion” that criminal activity may be afoot.
Second, all but two of the eleven stops to which plaintiffs testified appear to have been based on suspicion of trespass, but lacked the reasonable suspicion of trespass needed to support a stop. The two exceptions are Jerome Grant’s stop and Letitia Ledan’s second stop, for the reasons suggested above.345
345 In Grant’s case, his cousin’s or his friend’s knocking loudly and perhaps angrily on the door of a Clean Halls building may have provided a minimal level of objective justification for suspecting that Grant and the others were attempting to enter unlawfully. See supra Part IV.A.2.d. Ledan initiated her second stop by asking the officers what was going on, and depending on the reason for the detention of her husband and friends, her interest may have provided adequate grounds for brief questioning. See supra Part IV.A.2.f.
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iii. Decline to Prosecute Forms There remains the question of how widespread the practice of unlawful stops was. Plaintiffs argue that the decline to prosecute forms independently support the finding of a widespread practice of unlawful stops outside of TAP buildings.346 Their rather complicated argument proceeds as follows: First, plaintiffs assume the City’s expert was correct in reporting that approximately thirteen percent of the trespass stops analyzed by Dr. Fagan resulted in arrest.347 From this, plaintiffs infer a rough, general rule that thirteen percent of trespass stops in the Bronx in 2011 resulted in arrest — or in other words, for every recorded trespass arrest, there were roughly 7.7 trespass stops.348 Second, in three randomly selected months in 2011, the Bronx DA’s office produced at least twenty-six decline to prosecute forms describing arrests that were apparently based only on a person entering or exiting a TAP building.349 Because entry or exit from
346 See Pl. Findings ¶ 17. 347 See Smith Report at 6. 348 See Pl. Findings ¶ 17. 349 See supra Part IV.A.1. In the absence of more detailed evidence or testimony regarding the initial police encounters described in the decline to prosecute forms, I assume that the encounters were likely similar to those described by plaintiffs, and thus that the intrusiveness of the encounters likely rose to the level of a Terry stop at or shortly after the time that the officer or officers initiated questioning. See generally App. A. I also note that in many of the
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a TAP building does not provide reasonable suspicion, there were at least twentysix arrests in the three sample months that were preceded by stops that were not based on reasonable suspicion. Third, if the twenty-six decline to prosecute forms reflect only thirteen percent of the suspicionless trespass stops outside TAP buildings in the three sample months in 2011, and if the sample months were representative of the year, then eight hundred trespass stops took place outside TAP buildings in the Bronx in 2011 without reasonable suspicion.350
Assuming as I do that the decline to prosecute forms contain largely accurate descriptions of stops, plaintiffs’ reasoning is persuasive. If anything, plaintiffs undercount the number of suspicionless stops suggested by the decline to prosecute forms. Dr. Smith’s thirteen percent figure is the arrest rate for all the trespass stops outside TAP buildings in Dr. Fagan’s study, including both stops based on and stops lacking reasonable suspicion.351 Common sense would suggest, however, that the arrest rate for stops lacking reasonable suspicion — for example,
encounters described in the decline to prosecute forms, the defendant’s behavior as described in the form never gave rise to reasonable suspicion, even after the stop began. See App. A ¶¶ 2, 3, 8, 11, 12, 16, 17, 21, 24.
350 I have altered plaintiffs’ calculations to account for the two decline to prosecute forms containing revisions of other forms. See supra Part IV.A.1.
351 See Smith Report at 6. Dr. Fagan calculated arrest rates (or, as he called them, “hit rates”) in Floyd, but does not appear to have done so in the instant case. Compare Floyd, 861 F. Supp. 2d at 284–85, with Fagan Report.
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stops based on nothing more than a person exiting a TAP building — should be significantly lower than the combined arrest rate for lawful and unlawful stops. The lower the arrest rate for unlawful stops, the higher the number of unlawful stops that would be required to generate twenty-six arrests based on such stops. If the arrest rate for unlawful stops were five percent, for example, the existence of twenty-six arrests in three months based on unlawful stops would imply a yearly total of more than two thousand (2,080) unlawful stops.
iv. Dr. Fagan’s Analysis Dr. Fagan’s analysis of the UF-250 database provides further evidence that plaintiffs have a clear likelihood of being able to prove at trial that the NYPD’s practice of unlawful stops was widespread. In order to understand Dr. Fagan’s claim that 1,044 trespass stops within his set apparently lacked reasonable suspicion, it is necessary to understand the basic features of a UF-250 form.352 I have included a copy of a blank UF-250 form as Appendix B to this Opinion. The UF-250 form has two sides.353 On Side 1 there is a section labeled “What Were Circumstances Which Led To Stop? (MUST CHECK AT LEAST ONE BOX).” Inside the section are several boxes that officers may check,
352 See Fagan Report at 15 & tbl.8; App. L to Fagan Report (“Stop Factor List”), Pl. Ex. 64.
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such as “Fits Description” and “Actions Indicative of Acting As A Lookout.” There is also a checkbox for “Other Reasonable Suspicion Of Criminal Activity (Specify)” (the “Other” box) that officers can check and then supplement with a handwritten note. On the back of the form, Side 2, there is a section labeled “Additional Circumstances/Factors: (Check All That Apply).” Inside this section there are other checkboxes, such as “Report From Victim/Witness” and “Evasive, False Or Inconsistent Response To Officer’s Questions.” As noted above, officers are required to record all the reasons justifying a stop.354
In an appendix to Dr. Fagan’s report, he lists the combinations of factors from UF-250 forms that he counted as indicative of a stop apparently lacking reasonable suspicion of trespass.355 The list descends from the most common combinations of factors to the least common.356 On all of the forms that Dr. Fagan identified as apparently lacking reasonable suspicion, the officer had
354 See Def. Findings ¶ 4 (“NYPD training evidence . . . clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]” (citing Tr. 10/15 at 86:12–87:2)); Tr. 10/19 at 849:13–19 (testimony of Chief Shea); Police Student’s Guide at 20.
355 See Fagan Report at 15 & tbl.8; Stop Factor List. 356 See Stop Factor List at 1. The final four pages of the six page list contain the many allegedly inadequate combinations that appeared on only one UF-250. See id. at 3–6.
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checked at most one of the listed “circumstances” on Side 1.357 In some cases the officer had also checked the “Other” box on Side 1 and handwritten a text string, which Dr. Fagan also analyzed.358
The most frequent combination of stop factors identified by Dr. Fagan as apparently inadequate were “Furtive Movements” (Side 1) and “Area Has High Incidence Of Reported Offense Of Type Under Investigation” (Side 2), referred to in Dr. Fagan’s shorthand as the “High Crime Area” box.359 On ninety-one forms, these two factors were the only recorded basis for the stop.360
Of the 1,044 trespass stops that Dr. Fagan identified as apparently unlawful, 503 were based on the ten most frequent combinations of stop factors.361 In each of these ten combinations, which offer a manageable illustration of Dr. Fagan’s assumptions, the officer filling out the form recorded only the following basis for the trespass stop. First, on Side 1, the officer offered one of the following three factors:
1) “Furtive Movements.”
357 See Fagan Report at 11–15. 358 See id. 359 See Stop Factor List at 1. 360 See id. 361 See id.
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2) “Other Reasonable Suspicion Of Criminal Activity (Specify)” (the “Other” box), and a text string referring to “Clean Halls,” “Trespass,” or both as the sole notation.362
3) The “Other” box and words indicating the suspect was observed exiting the building.363 Second, on Side 2, under “Additional Circumstances/Factors,” the
officer either checked no box, or offered one of the following five justifications: 1) High Crime Area. 2) “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity” (the “Time of Day” box). 3) Both High Crime Area and Time of Day. 4) “Proximity To Crime Location” (the “Proximity to Scene” box). 5) “Changing Direction At Sight Of Officer/Flight” (the “Change Direction” box).
362 See Fagan Report at 13 (explaining “Clean Halls/Trespass” category); “detailSA Stop Factor Analysis” (“‘Other’ Text Strings”), App. F to Fagan Report at 5–6 (listing the text strings in this category, including “CLEAN HALLS,” “CLEAN HALLS BLDG,” “CRIM TRES,” and “CLEAN HALLS PROGRAMCRIM TRES”).
363 See “Other” Text Strings at 7–8 (listing text strings in the “Observed Exit” category, including many variations on the phrase “EXITING CLEAN HALLS BUILDING”).
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Standing alone, Dr. Fagan’s categorizations leave a great deal of room
for skepticism. The Supreme Court has “recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”364 It is possible to
imagine scenarios in which an officer observing behavior that would probably give
rise to reasonable suspicion might reasonably record that behavior by checking
nothing more than “Furtive Movements.” For example, an officer might observe a
person standing nervously outside a TAP building, pretending to walk away
whenever others approach, then returning after they are gone, and finally entering
the building without a key, nervously looking both ways before opening the door.
I also note that in each of the twenty stops where the officer checked “Change
364 Wardlow, 528 U.S. at 124 (citing numerous cases). On the other hand, “furtive behavior absent additional indicia of suspicion generally does not suffice to establish reasonable suspicion.” United States v. Bellamy, 592 F. Supp. 2d 308, 318–19 (E.D.N.Y. 2009) (collecting cases). In Bellamy, the court held that the following stop factors did not give rise to reasonable suspicion that Bellamy was trespassing in a building:
(1) the officers’ knowledge that the . . . building was located in a high-crime, drug-prone neighborhood; (2) the officers’ knowledge that the . . . building had experienced problems with drug trafficking and trespassing; (3) the officers’ understanding that the building had participated in FTAP; (4) Bellamy’s presence in the [building’s] vestibule; (5) the presence of the supposed “crack addict” outside of the . . . building; and (6) Bellamy’s furtive gestures.
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Direction” on Side 2, the officer also checked “Furtive Movement” on Side 1.365 If these forms were based on an officer seeing someone engage in the behavior described above, and then run away at the sight of the officer, the officer almost certainly had reasonable suspicion of trespass.366
On the other hand, there are good reasons to doubt that most, or even many, of the forms marked with the combinations listed above were in fact based on such suspicious behavior. First, many of the 503 forms in the top ten on Dr. Fagan’s list contain stop factor combinations providing no basis whatsoever for reasonable suspicion. 205 of these forms simply indicate that the person was stopped outside a Clean Halls building, or for criminal trespass, neither of which explains why the officer’s suspicion was reasonable; or that the person was observed exiting, which also contributes nothing to reasonable suspicion; and that the stop took place in a high crime area and/or at a suspicious time of day, neither of which can establish reasonable suspicion in the absence of some additional
365 See Stop Factor List. 366 See Floyd, 861 F. Supp. 2d at 298 (discussing Wardlow, which “held that a defendant’s ‘presence in an area of heavy narcotics trafficking’ and ‘unprovoked flight upon noticing the police’ were together sufficient to raise reasonable suspicion and justify a stop” (quoting Wardlow, 528 U.S. at 124)).
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contributing factor.367 Thus, at a bare minimum, over two hundred of the five
hundred stops at the top of Dr. Fagan’s list provide no basis for a finding of
suspicious behavior.
Second, Dr. Fagan reported that in his original universe of stops, officers had checked the Other box on nearly forty percent of the UF-250 forms.368
Officers were clearly willing and able to describe suspicious behavior when they observed it.369 In fact, officers frequently took the time to write notes that do not contribute to reasonable suspicion.370 Given the evident eagerness of officers to
check the Other box and write notes — even when they had no basis for doing so
— it is doubtful that many officers observed the kind of highly suspicious behavior hypothesized above and then merely checked the Furtive Movements box.371
367 “Reasonable articulable suspicion does not exist merely on the basis of [High Crime Area and Time of Day]: many people live in high crime areas and many crimes occur at night; simply being in a high crime area at night is not suspicious behavior.” Floyd, 861 F. Supp. 2d at 298 (citations omitted).
368 See Fagan Report at 11. 369 See, e.g., “Other” Text Strings at 7 (“Observed Entry” text strings including, for example, “RAN INTO BLDG”). The NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck contains a number of examples of concise, easily written descriptions of furtive behavior that could give rise to reasonable suspicion. See Street Encounters Presentation at 22–23. 370 See id. (listing text strings accompanying checked Other boxes). 371 In addition, many behaviors that would, like the behaviors hypothesized above, lead to a suspicion of trespass would presumably also provide
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Third, as Dr. Fagan notes, when police officers are in an area where
they are primed to look for signs that “crime is afoot,” they may be more likely to perceive a gesture as an indicator of criminality.372 Recent psychological research has provided evidence of such cognitive distortions.373 Thus the category of
Furtive Movements may be inherently prone to overuse on UF-250s. Given the
nature of their work on patrol, officers may have a systematic tendency to see and report furtive movements where none objectively exist.374
Dr. Fagan raised further doubts in Floyd regarding the general validity of assuming reasonable suspicion based on Furtive Movements.375 Dr. Fagan’s
report in Floyd showed that “the arrest rates in stops where the high crime area or
grounds to check “Actions Indicative [o]f ‘Casing’ Victim Or Location” or “Actions Indicative of Acting As A Lookout” on Side 1. See App. B.
372 See Fagan Report at 11 n.12 (citing Robert J. Sampson & Steven W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of “Broken Windows”, 67 SOC. PSYCHOL. Q. 319 (2004); Geoffrey P. Alpert, John M. MacDonald, & Roger G. Dunham, Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 CRIMINOLOGY 407 (2005)).
373 See id. Indeed, this is an area in which further training may be highly beneficial.
374 See Bayless, 201 F.3d at 133 (“Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.” (emphasis added)).
375 See Floyd, 861 F. Supp. 2d at 284–85; Fagan Report at 11 n.12 (citing Dr. Fagan’s report in Floyd).
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furtive movement boxes are checked off is actually below average.”376 Officers may have a tendency to check these boxes when they are unable to articulate any other basis for a stop — perhaps because the suspicion leading to the stop was, in fact, not reasonable.
Defendants attack the accuracy of Dr. Fagan’s categorization scheme in various ways.377 First, defendants criticize Dr. Fagan for neglecting to factor into his analysis a field on Side 1 of the UF-250 form labeled “Period Of Observation Prior To Stop.”378 Though defendants’ reasoning is not explicit, I take it they assume that a long enough period of observation, combined with some of the stop factor combinations in Dr. Fagan’s list of unlawful stops, might justify removing a stop from the list.379 Second, defendants’ expert noted a few dozen text strings accompanying the Other box that Dr. Fagan included in his count of
376 Floyd, 861 F. Supp. 2d at 285 (emphasis added). 377 See Def. Findings ¶¶ 6 (“Period of Observation”), 8 (metacategories for “Other” text strings), 9 (“Furtive Movements,”“Ongoing Investigation”). 378 See id. ¶ 6; App. B. 379 See Def. Findings ¶ 6. According to the UF-250 database, in sixtyfive percent of the trespass stops outside TAP buildings in the Bronx in 2011, the Period of Observation was less than one minute, and in eighty-four percent of those stops, the period of observation was less than two minutes. See Period of Observation Table. Only five of the 1,044 unlawful stops identified by Dr. Fagan involved periods of observation of greater than ten minutes. See Table 15: Distribution of Period of Observation, Pl. Ex. 99.
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unlawful stops but that defendants argue could justify a Terry stop.380 For example, Dr. Fagan categorized “RAN INTO BLDG” as an instance of an observed entry into a TAP building, and thus not a basis for a stop.381 Third, defendants argue that Dr. Fagan’s list of unlawful stops should not have included the forty-one stops in which an officer marked Furtive Movement on Side 1 and a box on Side 2 labeled “Ongoing Investigations, e.g., Robbery Pattern” (the “Ongoing Investigations” box).382
Rather than addressing each of these claims individually, it is enough to note that even if the one hundred forty-three stops involving observation periods over two minutes, the thirty-six stops with contestable text strings, and the fortyone stops with both Furtive Movements and Ongoing Investigations marked were excluded from Dr. Fagan’s grand total of 1,044 unlawful stops, the total would still show that out of the 1,663 stops in Dr. Fagan’s revised set of trespass stops outside TAP buildings in the Bronx in 2011, over eight hundred (824) were unconstitutional. That is, even if defendants’ arguments on these points are
380 See Def. Findings ¶ 8; Smith Report at 34–39. Neither Dr. Smith nor defendants offer a total of the number of stops contested by Dr. Smith in this way. Plaintiffs state that Dr. Smith identified thirty-six stops with contestable text strings out of Dr. Fagan’s 1,044. See Pl. Findings ¶ 12.
381 See Smith Report at 34–35. 382 See Def. Findings ¶ 9; App. B.
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accepted — and I am not convinced that they should be — Dr. Fagan’s report would still show that on hundreds of occasions in the Bronx in 2011, people were stopped without basis outside of TAP buildings, in violation of their rights under the U.S. Constitution, and required to answer questions from an officer with the power to arrest them if they answered incorrectly.
The essential fact, sufficiently established by Dr. Fagan’s analysis when viewed in combination with the other evidence discussed above, is that a very large number of constitutional violations took place outside TAP buildings in the Bronx in 2011. Whether the percentage of trespass stops that were unconstitutional was thirty or sixty, and whether one assumes that officers failed to fill out UF-250s ten, twenty, or fifty percent of the time, plaintiffs have succeeded in showing a clear likelihood that they will be able to prove that the City of New York and its agents displayed deliberate indifference toward the violation of the constitutional rights of hundreds and more likely thousands of individuals prior to 2012.
v. Notice to Defendants By 2011 city policymakers were on actual notice of a practice of unconstitutional trespass stops by city employees outside TAP buildings in the
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Bronx.383 As early as 1999, the NYPD Legal Bureau was aware that it was unlawful to stop someone simply for entering and exiting a TAP building.384 By July 2010, as Inspector Sweet testified, the NYPD was on actual notice that officers were unlawfully approaching people entering or inside TAP buildings to question them about their presence.385 The special counsel to Commissioner Kelly attended meetings where the problem was discussed.386 In February 2011, a number of NYPD officials received letters from ADA Rucker on behalf of the Bronx DA’s office clarifying the unconstitutionality of stopping people merely for entering or exiting a TAP building.387 Throughout this period, the NYPD received copies of decline to prosecute forms describing arrests in which officers apparently stopped people for no reason other than their proximity to a TAP building.388
vi. Legal Analysis Deliberate indifference is “a stringent standard of fault,”389 especially
383 See supra Part IV.B.1. 384 See 1999 TAP Legal Guidelines at 6; Tr. 10/18 at 684:2–4. 385 See Tr. 10/18 at 648:18–649:16. 386 See id. at 650:18–651:17. 387 See id. at 659:20–660:17. 388 See Tr. 10/16 at 256:8–13. 389 Connick, 131 S.Ct. at 1360.
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when it is based on a failure to train.390 Nevertheless, “deliberate indifference may be inferred where ‘the need for more or better supervision to protect against constitutional violations was obvious,’ but the policymaker ‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]’”391
Based on the conclusions above, plaintiffs have shown a clear likelihood of proving deliberate indifference under any of the prevailing ways of framing that standard. Stated in terms of Connick’s general standard for failure-totrain claims, plaintiffs have shown a clear likelihood of proving that city policymakers were on actual notice by 2011, and constructive notice prior to then, that the failure to train NYPD officers regarding the legal standard for trespass stops outside TAP buildings in the Bronx was causing city employees to violate the constitutional rights of a large number of individuals.392 Stated in terms of the three-part Walker test for deliberate indifference through failure to train, plaintiffs have shown a clear likelihood of proving (1) city policymakers knew to a moral certainty that NYPD officers, who regularly patrol in and around TAP buildings in the Bronx, would confront the question of when it was legally permissible to stop
390 See id. at 1359 (citing Tuttle, 471 U.S. at 822–23). 391 Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192; Vann, 72 F.3d at 1049). 392 See Connick, 131 S.Ct. at 1359.
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people outside those buildings; (2) the decline to prosecute forms, ADA Rucker’s letters, and the hundreds of UF-250 forms that failed to articulate reasonable suspicion for trespass stops outside TAP buildings provided an extensive record of NYPD officers mishandling these stops; and (3) when NYPD officers made the wrong choice in these stops, the deprivation of constitutional rights frequently resulted.393 Thus, plaintiffs have shown a clear likelihood of proving that city policymakers should have known that their inadequate training and supervision regarding trespass stops outside TAP buildings in the Bronx was “‘so likely to result in the violation of constitutional rights,’” that their failure to train constituted deliberate indifference.394 Stated in terms of the constructive acquiescence standard, plaintiffs have shown a clear likelihood of proving that there was “a sufficiently widespread practice among police officers” of unlawful trespass stops outside TAP buildings “to support reasonably the conclusion that such abuse was the custom of the officers,” and that “supervisory personnel must have been aware of it but took no adequate corrective or preventive measures.”395
In fact, plaintiffs presented some evidence suggesting that the practice
393 See Walker, 974 F.2d at 297–98. 394 Id. at 298 (quoting Canton, 489 U.S. at 390). 395 Jones, 691 F.3d at 82.
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of making stops outside TAP buildings without regard for reasonable suspicion might have been “so persistent and widespread as to practically have the force of law.”396 In addition to the sheer magnitude of apparently unlawful stops, ADA Rucker offered testimony suggesting that prior to her legal research into the standards governing stops outside TAP buildings, she had been explicitly advising officers that it was permissible to stop a person simply because he had exited a TAP building, so long as the officer had observed the person in the vestibule first.397 Even defendants seemed to recognize that the similarities among the stops described in this case support the conclusion that officers’ behaviors were the result of uniform training.398
b. Failure to Rebut Deliberate Indifference Claim Based on Steps Taken by NYPD in 2012
Defendants spent a great deal of time at the hearing introducing evidence concerning steps the NYPD took in 2012 to improve TAP and provide training regarding stop and frisk practices.399 Yet in spite of receiving actual notice
396 Connick, 131 S.Ct. at 1359. 397 See Tr. 10/15 at 176:14–23. 398 See Def. Findings ¶ 29 n.16 (“Defendants contend that any similarity in the interactions [between officers and plaintiffs] demonstrates that officers are being uniformly trained.”). 399 See supra Part IV.B.
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of NYPD officers carrying out widespread constitutional violations outside TAP buildings, and in spite of already being engaged in changes to the TAP program and the training related to stop and frisk more generally, the NYPD has failed to take meaningful action to address the specific and narrow problem at issue in this case: the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. To date, as noted above, the only piece of instruction that has been provided to officers on a systematic basis and that specifically targets the problem at issue in this case is a single bullet point in a single slide show during a single part of the Rodman’s Neck training.400 This has been the NYPD’s most meaningful specific response to the problem that caused Charles Bradley’s unlawful stop and arrest, Abdullah Turner’s unlawful stop and arrest, the unlawful stop of J.G. that led Jaenean Ligon to fear for her son’s life, Roshea Johnson’s stop and interrogation in an unmarked NYPD van, all the other indignities that the other plaintiffs were obliged to suffer, and the hundreds of other unlawful stops, recorded and unrecorded, whose precise details this Court will never know.
The Rodman’s Neck bullet point is plainly insufficient to rebut plaintiffs’ showing of a clear likelihood of success on the merits of their deliberate indifference claim. Nor did defendants provide reliable statistics regarding stops in
400 See Street Encounters Presentation at 40; Tr. 10/17 at 572:24–573:6; Tr. 10/18 at 663:13–664:1.
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2012 that might have rebutted plaintiffs’ claim. Defendants have provided no evidence that the NYPD has ceased its practice of making unlawful trespass stops outside TAP buildings in the Bronx.
The evidence introduced by defendants of broader reforms to TAP and stop and frisk undertaken by the NYPD in 2012 also does not rebut plaintiffs’ case that city policymakers have displayed deliberate indifference to an ongoing practice of constitutional violations by city employees based on unlawful stops outside TAP buildings. To the contrary, many of the training materials introduced by defendants may serve to further entrench the problem of these unconstitutional stops. In some cases, defendants’ introduction of training materials not only failed to rebut plaintiffs’ case, but made plaintiffs’ case stronger.
Most strikingly, within the last year the NYPD has produced a video on stop and frisk that has now been shown in every precinct.401 Chief Shea testified that “it would be fair to say that every single member of a patrol borough has probably” seen the video by now.402 The video, whose script was also entered into evidence, begins by briefly summarizing the four levels of police encounters
401 See Tr. 10/19 at 900:21–904:20; Tr. 10/22 at 942:13–24; SQF Training Video No. 5; Script of SQF Training Video No. 5.
402 See Tr. 10/22 at 22–24. Chief Shea also testified that the information in the video is “consistent with the training that recruit officers receive at the academy” regarding reasonable suspicion. See Tr. 10/19 at 904:16–20.
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recognized by New York state courts. Then the video provides the following
description of what constitutes a stop requiring reasonable suspicion, that is, a
Terry stop:
Your authority to conduct a Stop Question and Frisk encounter is limited to public places within the City of New York. . . . A forcible stop can take many different forms. It can be constructive in nature, such as using verbal commands or blocking a subject’s path. Or it could be an actual stop, such as grabbing or holding the subject.
The courts will look to an officer’s actions in making this determination. They consider: if the officer’s gun was drawn; if the person was physically prevented from moving; the number and tone of verbal commands; the content of the commands; the number of officers present; and the location of the encounter.
Usually just verbal commands, such as STOP, POLICE!!!, will not constitute a seizure. However, a verbal command, plus other actions may be considered a seizure — other actions, such as: using physical force to subdue a suspect; physically blocking a suspect’s path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground.403
This misstates the law. It is incorrect in its specific claim that if an officer yelled
“STOP, POLICE!!!” and the person stopped, the result would not “[u]sually”
constitute a Terry stop.404 Indeed, it is difficult to imagine many contexts in which
403 Script of SQF Training Video No. 5 at 58–59 (formatting altered), beginning at roughly 6:35 in SQF Training Video No. 5.
404 Perhaps the video reflects a misunderstanding of the Supreme Court’s ruling in Hodari D., 499 U.S. at 626–28. Cf. Def. Findings ¶ 42 n.19 (citing Hodari D.). In Hodari D., the Court explained that the word “seizure” “does not remotely apply . . . to the prospect of a policeman yelling ‘Stop, in the name of the
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an officer shouting this command, followed by the person stopping, would not constitute a Terry stop. As noted above, the test for a Terry stop is whether “a reasonable person would feel free ‘to disregard the police and go about his business.’”405 If the “reasonable person” of Fourth Amendment law would feel free to disregard an officer yelling “STOP, POLICE!!!” and go about his business, then this “reasonable person” bears little or no resemblance to the many reasonable people who have been or will be affected by the NYPD’s stop and frisk practices.
The video is also incorrect in its more general suggestion that an officer must deploy something resembling physical force or the threat of such force in order for an encounter to constitute a stop. It is true that Terry stops are sometimes referred to as “forcible stops.”406 But the test for a Terry stop, again, is not the use of force: it is whether a “reasonable person” would feel free “‘to
law!’ at a fleeing form that continues to flee. That is no seizure.” Id. at 626. The Court’s point was that there is no seizure unless the individual is in fact seized, in the sense of being stopped, either by physical force, or by submission to the assertion of the officer’s authority — not that a Terry stop requires a display of authority beyond shouted commands. See Swindle, 407 F.3d at 572 (interpreting Hodari D.).
405 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 406 See, e.g., Alabama v. White, 496 U.S. 325, 328 (1990) (referring to Terry stop as “forcible stop”).
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disregard the police and go about his business.’”407 The Second Circuit has held, for example, that a stop took place where an officer twice ordered a person to “hold on a second,” and after the second order the person stopped.408 The Second Circuit also held that a stop occurred where an officer pointing a spotlight at a person said, “What, are you stupid? Come here. I want to talk to you,” and then told the person to show his hands.409 In Davis, the City of New York conceded, and I held, that a person was stopped when he encountered an officer in a stairway, the officer asked if he lived in the building, the officer asked for his ID, and then the officer asked him to step out of the stairwell and into the lobby.410 I also held in Davis that a person was stopped “when she attempted to walk to the elevator, was told to ‘come back’ by [an officer], and stopped walking,” because the officer’s “order to ‘come back’ was an order to stop and [she] obeyed the order.”411
In conflict with the governing case law, the NYPD’s video gives
407 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 408 Simmons, 560 F.3d at 101, 105–06. 409 Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000). On the other hand, the court held that where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands, he was not seized. See id. at 341. 410 See Davis, 2012 WL 4813837, at *5–6. 411 Id. at *14.
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officers the false impression that Terry stops should be distinguished from less intrusive encounters by the kinds of elements that the video lists: a drawn gun, physical restraint, numerous commands of a restraining nature, numerous officers, the use of a baton, and so on. Elements such as these are not necessary for a police encounter to rise to the level of a Terry stop, nor are they characteristic of the usual form of Terry stops. Indeed, many of these elements are more characteristic of an arrest than of a Terry stop. The Second Circuit lists the following factors as an indication that an arrest, and not merely a stop, has occurred:
“the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person’s personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.”412 The Second Circuit’s list of the identifying features of an arrest is remarkably similar to the training video’s list of the identifying features of a stop. By incorrectly implying that encounters lacking the characteristics of an arrest are in fact not even stops, the video appears to train officers that they do not need reasonable suspicion to perform the kind of stops that under an accurate reading of the law would be classified as Terry stops. In other words, this video, which was
412 United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting Lee, 916 F.2d at 819).
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produced in 2012, which has now been seen by nearly every officer in the patrol bureau, and which defendants continue to present as a sign of their lack of deliberate indifference,413 trains officers that it is acceptable to perform stops that amount to Terry stops, or possibly even arrests, without reasonable suspicion.
Other evidence introduced to rebut plaintiffs’ deliberate indifference claim similarly supports the conclusion that the NYPD is training its officers to miscategorize many arrests as stops, and many stops as something less than stops. The Chief of Patrol Field Training Unit Program Guide, which is distributed to supervisors in Operation IMPACT,414 reflects another subtle but significant problem — namely a tendency to exaggerate how intrusive a police encounter must be in order to constitute a Terry stop. The Guide states that with something less than reasonable suspicion,415 an officer may approach a person and engage in “pointed, invasive, and accusatory” questioning that is “intended to elicit an incriminating response,” and even “ask for permission” to search the person.416
413 See Def. Findings ¶ 42. 414 See Tr. 10/19 at 744:2–6. 415 Using the language of De Bour Level 2, not Level 3, the Training Guide requires a “founded suspicion that criminal activity is afoot” in order to approach and engage in an encounter of this kind. See Training Guide at 17. 416 Id. (emphases omitted). The Guide clarifies that the officer “may not touch the person, display a weapon, or act in a threatening manner,” but notes that
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While “[t]he Fourth Amendment does not proscribe all contact between the police and citizens,”417 it is difficult to imagine many circumstances in which a reasonable person being aggressively interrogated by the police regarding suspected criminal activity could feel free “‘to disregard the police and go about his business.’”418 The more realistic outcome would be for the person to assume that if he refused to answer, walked away, gave the wrong answers, or made a false move, serious consequences would follow.419 As Abdullah Turner testified, “I don’t know anyone . . . who ever just walked away from a cop in the middle of a conversation.”420 Given the high stakes of any encounter in which an officer interrogates someone regarding his suspected criminal activity, it is fanciful to say that a reasonable person would as a rule feel free in the midst of such an
“[i]f a confronted citizen walks away without answering, the officer may follow to continue questioning.” See id. at 17–18.
417 Delgado, 466 U.S. at 215. 418 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 419 Indeed, based on the accounts of stops in the decline to prosecute forms, this appears to be an accurate expectation. See App. A ¶¶ 12, 20, discussed below. Moreover, it would not be surprising to learn that based on the experiences of their families, friends, and neighbors, the residents of these buildings fully appreciate the consequences that will follow if they attempt to walk away from the police during questioning. 420 Tr. 10/17 at 491:22–23.
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interrogation to “‘terminate the encounter’”421 at will.
A lesson on TAP that was added to the Guide in 2012 similarly
reflects a model of policing in which the investigative questioning of suspects
routinely precedes rather than follows reasonable suspicion:
A uniformed member of the service may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authority. . . . Some factors which may contribute to “reasonable suspicion” that a person is trespassing . . . are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.422
421 Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436).
422 Training Guide at 65; Tr. 10/19 at 743:6–7. I recognize that many of the NYPD’s training materials purport to derive from De Bour, as defendants have emphasized. See, e.g., Def. Findings ¶ 42 & n.19. Because plaintiffs have brought their case under the Fourth Amendment, and not New York law, Pl. Findings ¶¶ 64–71, it would lie beyond the scope of this Opinion to make general statements regarding the precise relations between the law of De Bour and the case law interpreting the Fourth Amendment. I note, however, that in theory, De Bour should provide greater protection than the Fourth Amendment by restricting police action even in encounters whose level of invasiveness falls below the minimum threshold for Fourth Amendment scrutiny. See, e.g., De Bour, 40 N.Y.2d at 381 (prohibiting any investigative encounter, even at Level 1, if it is based on “intent to harrass” or “mere whim, caprice, or idle curiosity”).
Some commentators have expressed skepticism regarding the practical virtues of De Bour’s multi-level analysis. LaFave questions whether De Bour’s more sophisticated articulation of Terry’s balancing approach is advantageous, or is likely to result in “such confusion and uncertainty that neither police nor courts can ascertain with any degree of confidence precisely what it takes to meet any of these standards.” LAFAVE, SEARCH & SEIZURE § 9.4(e). Accord Emily J. Sack, Police Approaches and Inquiries on the Streets of New York: The Aftermath of
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Instead of reasonable suspicion providing a basis for investigative questioning, the
NYPD’s training materials suggest that the standard scenario is for investigative
questioning to lead to reasonable suspicion. The NYPD Legal Bureau’s
PowerPoint presentation at Rodman’s Neck similarly suggests that even when an
officer lacks reasonable suspicion for a stop, the officer may not only approach and
ask accusatory questions, but during the encounter may “place [his] hand on [his]
holstered firearm” or “draw and conceal” his weapon, all without escalating the
encounter to a Terry stop.423
What is most troubling about these materials is not the suggestion that
People v. De Bour, 66 N.Y.U. L. REV. 512, 520, 548–53 (1991) (arguing that “the courts routinely conflate the De Bour standards and use inappropriately low levels of suspicion to justify police intrusions,” and that “the multitiered structure of the De Bour model allows inadequately justified low-level intrusions to escalate quickly into inappropriate forcible stops and arrests”). See also Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 394 (1974) (a “sliding scale approach” to the Fourth Amendment may “produce more slide than scale”).
The NYPD’s training materials may illustrate the risk created by the multi-level doctrine of De Bour. The mere existence of De Bour Level 2, and the inevitable difficulty of clearly distinguishing an encounter on the more intrusive end of Level 2 from an encounter on the less intrusive end of Level 3, creates problems of administrability. In practice, the possibility of classifying a stop as Level 2 or even Level 1 may lead police to perform a large number of stops — in the ordinary sense of the word, but inevitably often in the Terry sense as well — without the minimal foundation in reasonable suspicion required by the U.S. Constitution.
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investigative questioning might under certain circumstances lawfully precede reasonable suspicion, but that it should do so as a matter of course, routinely, as the rule rather than the exception. If the difference between a Terry stop and a less intrusive encounter hinges on indefinite factors such as the demeanor and positioning of the officers; and if it is safe to assume that officers routinely display their authority and power through aggressive behavior, as many of the officers did in their encounters with plaintiffs in the instant case; then a training program that invites officers to approach large numbers of people and question them without reasonable suspicion will inevitably result in frequent Terry stops that lack reasonable suspicion, effectively guaranteeing the commission of widespread constitutional violations. The evidence of numerous unlawful stops at the hearing strengthens the conclusion that the NYPD’s inaccurate training has taught officers the following lesson: stop and question first, develop reasonable suspicion later.424
The NYPD’s training failures may also help to explain why no UF250s were located for any of the plaintiffs in the instant case. Based on training
424 I note that the NYPD’s stop practices also appear to conflict with the considered judgment of the New York State Legislature, which enacted New York’s stop and frisk law. This law states that without a warrant, “a police officer may stop a person . . . when he reasonably suspects that such person is committing, has committed, or is about to commit” a crime, “and may demand of him his name, address and an explanation of his conduct.” CPL § 140.50. In other words, the New York State Legislature envisioned reasonable suspicion preceding the request for a name, address, and purpose.
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materials like those above, the officers who stopped plaintiffs may very well have perceived themselves as not engaged in Terry stops at all, but in something less intrusive. The NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck continues to encourage this belief, and the constitutional violations that will naturally follow from it, by redefining the standards for stops and arrests. Thus, the final slide on arrests states: “If you are at probable cause, you have made an arrest.”425 This is not correct. If you have arrested someone, you have made an arrest; whether or not you had probable cause only determines whether the arrest was constitutional. Similarly, the presentation states: “When an individual is stopped based upon Reasonable Suspicion a UF-250 must be prepared.”426 IO 22 of 2012 offers a similar message: “When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared . . . .” Both of these statements are incorrect. Whether a stop constitutes a Terry stop and thus requires the completion of a UF-250 form does not depend on whether the stop is based on reasonable suspicion, but on whether a reasonable person would have felt free to terminate the encounter.427
425 Street Encounters Presentation at 37 (capitalization altered). 426 Id. at 33 (emphasis altered). 427 See Drayton, 536 U.S. at 202.
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In response to criticisms directed at the NYPD’s training materials, defendants have argued that the materials reflect New York state law, and in particular De Bour and its progeny.428 Defendants assert that “New York Law applies” in the instant case.429 But practices that violate the Fourth Amendment cannot be saved by proving that they comply with state law.430 To the extent that De Bour suggests a police officer, without reasonable suspicion, may lawfully stop and question an individual in such a way that a reasonable person would not feel free to terminate the encounter, that suggestion would be incorrect.
2. Irreparable Harm In addition to showing a clear likelihood of success on the merits, plaintiffs have the burden of showing that they are “likely to suffer irreparable harm in the absence of preliminary relief.”431 Plaintiffs have moved for class
428 See, e.g., Def. Findings ¶ 42 & n.19. 429 Id. 430 As I noted in the Introduction, the Supreme Court held in Sibron that “New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement. . . . It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” 392 U.S. at 60–61. Sibron makes clear that any conflict between the Fourth Amendment and New York state law must be resolved in favor of the Fourth Amendment. 431 Winter, 555 U.S. at 20.
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certification in connection with their motion for a preliminary injunction. Plaintiffs’ putative class is “comprised of individuals who have been or are at risk of being subjected to the New York City Police Department’s practice of stopping individuals outside of buildings enrolled in Operation Clean Halls in the Bronx on suspicion of trespassing inside those buildings.”432
While I have not yet ruled on plaintiffs’ motion, “[i]t is well established that ‘[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class’ and that the ‘court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.’”433 Based on the conclusions in the preceding section, the putative class in this case is threatened with imminent violations of their constitutional rights in the absence of preliminary relief.434 The frequency of unconstitutional trespass stops outside Clean Halls buildings reflected in the decline to prosecute forms and Dr. Fagan’s report
432 Class Mem. at 1. 433 Strouchler v. Shah, — F. Supp. 2d —, 2012 WL 3838159, at *8 (S.D.N.Y. Sept. 4, 2012) (quoting ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 9:45 (4th ed. 2002)). 434 See id. at *6 (“In order to merit preliminary relief, the threat of irreparable harm must be imminent.” (citing Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999)).
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establishes that members of plaintiffs’ putative class will likely be subject to such stops between now and the completion of trial if this Court does not act. Because “[t]he violation of a constitutional right . . . constitutes irreparable harm for the purpose of a preliminary injunction,”435 plaintiffs have carried their burden of showing likely irreparable harm on behalf of the putative class.
3. Balance of Equities In order to qualify for a preliminary injunction, plaintiffs must show “that the balance of equities tips in [their] favor.”436 Given that a preliminary injunction is “‘an extraordinary remedy never awarded as of right,’”437 it would be inappropriate to award such an injunction if doing so would result in an arrangement less fair to the parties than the status quo, such as an arrangement in which the hardship imposed on one party outweighed the benefit to the other. “[T]he Court should ‘balanc[e] . . . the equities to reach an appropriate result protective of the interests of both parties.’”438
435 Ligon, 2012 WL 3597066, at *1 (citing Johnson v. Miles, 355 F. App’x 444, 446 (2d Cir. 2009)).
436 Winter, 555 U.S. at 20. 437 UBS Fin. Servs., 660 F.3d at 648 (quoting Winter, 555 U.S. at 24). 438 Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 747 (2d Cir. 1994) (quoting Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1330 (2d Cir. 1987)) (emphasis omitted).
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I do not take lightly the burden on defendants of altering NYPD policies and training procedures. It is partly out of concern for defendants’ hardships that I have rejected some of plaintiffs’ proposed remedies.439 Nevertheless, the burden on putative class members of continued unconstitutional stops goes far beyond administrative inconvenience. As I stated in Floyd:
The right to physical liberty has long been at the core of our nation’s commitment to respecting the autonomy and dignity of each person: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”440 Eliminating the threat that the kinds of stops described by plaintiffs might occur at any moment, without legal justification, in the vicinity of one’s home and the homes of one’s friends and family, is itself an important interest deserving of judicial protection. Equally important are the potential consequences of an unlawful stop. The stakes of “field interrogation”441 by the police have dramatically risen since Terry was decided in 1968. The use of incarceration has increased, sentences have
439 See Pl. Findings ¶¶ 73–75. 440 Floyd, 283 F.R.D. at 158–59 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). 441 Terry, 392 U.S. at 12, 14.
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grown, the threat of lengthy incarceration has created new incentives to plead
guilty, and the collateral consequences of a conviction — on employment, housing,
access to government programs, and even the right to vote or serve on a jury —
have become more common and more severe. If an unjustified stop happens to
lead to an unjustified arrest for trespassing, as it did in Charles Bradley’s case, not
every overburdened public defender will have the wherewithal to obtain a
notarized letter from the defendant’s host explaining that the defendant was invited, as Bronx Defender Cara Suvall did on behalf of Bradley.442 When
considering the relative hardships faced by the parties, it is important to consider
the potentially dire and long-lasting consequences that can follow from unconstitutional stops.443
442 See Tr. 10/16 at 269:2–9; Rappa Letter. 443 Though it is unnecessary to reach the issue in this Opinion, I note that the appropriate form of Fourth Amendment analysis may differ depending on the quantity and nature of stops being scrutinized, and the remedies available. Not only are the consequences of stops different today than they were in 1968, but the frequency of stops is far higher as well. See Floyd, 283 F.R.D. at 159 (over 2.8 million stops by NYPD between 2004 and 2009). As the stops have increased in frequency, they have also become more standardized and predictable. In Terry, the Supreme Court emphasized “the myriad daily situations in which policemen and citizens confront each other on the street.” Terry, 392 U.S. at 12. “No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.” Id. at 15. In the instant case, by contrast, the contested police encounters are strikingly uniform. The stops in the decline to prosecute forms echo the stops of plaintiffs, which in turn echo aspects of the training materials introduced at the hearing. See, e.g., IO 22 of 2012 at 2
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Weighing the equities in light of the totality of the circumstances, the
administrative burdens that defendants will face in revising the NYPD’s policies
and training materials are real, but are outweighed by plaintiffs’ interest in not
being subjected to unconstitutional stops outside their homes and the homes of
their family and friends.
4. Public Interest
Any preliminary injunction must be “in the public interest.”444 Courts
(¶ 11). Terry envisions street stops as uniquely tailored to unforeseen circumstances. The stops in the instant case are more like the products of fixed, repeatable processes. The NYPD training materials that teach these processes can be scrutinized in ways that an individual officer’s discretionary act cannot. Because of this, a different constitutional analysis may be appropriate.
In addition, the constitutional framework for the ex post evaluation of highly individualized, discretionary stops, where exclusion is the only remedy, may not be appropriate to the ex ante evaluation of routinized, highly scripted, largely predictable stops, where the remedy can involve changes in training. Ultimately, “the central inquiry under the Fourth Amendment” is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry, 392 U.S. at 19. An invasion of privacy that is reasonable when it occurs on an ad hoc basis and is weighed in the context of the exclusionary rule may not be reasonable when it occurs as a matter of programmatic policy on a far larger scale.
Terry itself seems to invite scrutiny of stops falling below the intrusiveness of Terry stops, provided that the remedies applied are less severe than the exclusion of evidence. “[O]f course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.” Terry, 392 U.S. at 15.
444 Winter, 555 U.S. at 20.
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have no special institutional competence in determining what the public interest is, and the parties presented little evidence at the hearing directly addressing this issue. Nevertheless, the public interests at issue in plaintiffs’ motion are familiar from a long line of cases concerning “the power of the police to ‘stop and frisk’ . . . suspicious persons.”445 In these cases, there is a recurring conflict between liberty and dignity on the one hand, and safety on the other.446
Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case. Even if the constitutional violations described by plaintiffs were confined to the members of a discrete community, the public has a clear interest in protecting the constitutional rights of all its members. At the same time, enforcing constitutional restrictions on the NYPD’s ability to stop and potentially frisk people outside TAP buildings could conceivably inhibit the NYPD’s ability to provide security to the residents of those buildings and their communities.
In light of these considerations, and taking account of all the evidence presented at the hearing, I find that the public interest lies with the enforcement of
445 Terry, 392 U.S. at 10. 446 See Davis, 2012 WL 4813837, at *1.
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the Constitution. It is “‘clear and plain’”447 that the public interest in liberty and dignity under the Fourth Amendment trumps whatever modicum of added safety might theoretically be gained from the NYPD making unconstitutional trespass stops outside TAP buildings in the Bronx. I am not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings.448 My ruling today is directed squarely at a category of stops lacking reasonable suspicion. Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.
C. Appropriate Scope of Injunctive Relief Injunctive relief “‘should be narrowly tailored to fit specific legal
violations.’”449 In addition, “great[] caution is appropriate where a federal court is asked to interfere by means of injunctive relief with a state’s executive functions, a
447 Reynolds, 506 F.3d at 198 (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976)).
448 See, e.g., Tr. 10/18 at 593:15–594:3 (testimony of landlord to the advantages of enrollment in Operation Clean Halls).
449 Patsy’s Ital. Res., Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011) (quoting Patsy’s Brand, Inc. v. I.O.B. Realty, Inc., 317 F.3d 209, 220 (2d Cir. 2003)). Accord City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143–44 (2d Cir. 2011) (summarizing limitations on scope of injunctive relief).
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sphere in which states typically are afforded latitude.”450 Prudence counsels in
favor of the exercise of restraint and caution when the important interests of
policing and safety may conflict with the equally important interests of protecting
the constitutional rights of all those who are or may be affected by police practices in New York City.451 Nevertheless, where the levers of municipal democracy have
failed, leaving in place practices that violate constitutional rights, courts have a
duty to intervene. As I stated in Floyd, safeguarding the liberties guaranteed under the Fourth Amendment “is quintessentially the role of the judicial branch.”452
In light of these considerations, as well as the findings of fact and
conclusions of law detailed above, I impose the following preliminary relief:
1. Immediate Relief
450 Reynolds, 506 F.3d at 198. 451 Some recent scholarship has argued that the NYPD’s stop and frisk program may be partly responsible for the decline in crime in New York City in recent decades. See FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK’S LESSONS FOR URBAN CRIME AND ITS CONTROL (2011). The issue in this case, however, is not whether trespass stops outside TAP buildings in the Bronx are effective at reducing crime, but whether they are constitutional. No matter how effective a police practice may be, if it violates the Fourth Amendment, the Constitution requires the government to find other means of achieving its goals. For example, while preventive detention might be an effective law enforcement tool, police departments are not allowed to employ it, because doing so would violate the Constitution. 452 Floyd, 283 F.R.D. at 159.
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The NYPD is ordered immediately to cease performing trespass stops
outside TAP buildings in the Bronx without reasonable suspicion of trespass, in accordance with the law as set forth and clarified in this Opinion.453 To
summarize: as the Fourth Amendment has been interpreted by the U.S. Supreme
Court and the Second Circuit, an encounter between a police officer and a civilian
constitutes a Terry stop whenever a reasonable person would not feel free to “‘terminate the encounter.’”454 The stops in this case illustrate that the threat or use
of force is not a necessary or even typical element of Terry stops. Encounters
involving nothing more than commands or accusatory questioning can and
routinely do rise to the level of Terry stops, provided that the commands and
questioning would lead a reasonable person to conclude he was not free to
453 Defendants appear to believe that an order prohibiting stops outside TAP buildings that lack reasonable suspicion is “a simple command that the defendant obey the law,” and thus is not legally cognizable. See Def. Findings ¶ 54 n.21 (quoting S.C. Johnson, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (interpreting Rule 65(d)). But as I stated prior to the preliminary injunction hearing, “the City misapprehends the purpose of Rule 65.” Ligon, 2012 WL 3597066, at *3–4. Cases like S.C. Johnson do not prohibit courts from ordering parties to obey the law, but rather require that such orders be specific and clear. See S.C. Johnson, 241 F.3d at 240. “[A]n injunction must ‘be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.’” Id. at 240–41. The immediate relief ordered here is specific, clear, and necessary to correct the misconceptions of NYPD officers that led to the violations of constitutional rights at issue in this case.
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terminate the encounter. In order for an officer to have “reasonable suspicion” that an
individual is engaged in criminal trespass, the officer must be able to articulate facts providing “a minimal level of objective justification for making the stop,”455 which means “something more than an inchoate and unparticularized suspicion or hunch.’”456 In particular, an individual observed exiting or entering and exiting a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high crime area, and regardless of the time of day. For the reasons described above, “furtive movement” is a problematic basis for a trespass stop, especially when it is offered as a stand-alone justification. If an officer is unable to articulate anything more specific than that a person displayed “furtive movement,” including anything about the person’s furtive movement that suggested trespass, then the statement that a person displayed “furtive movement” is nothing more than an unparticularized suspicion or hunch, and does not constitute reasonable suspicion.
2. Proposed Additional Relief In addition to the immediate relief ordered above, I propose to enter
455 Wardlow, 528 U.S. at 123. 456 White, 496 U.S. at 329 (quoting Sokolow, 490 U.S. at 7) (certain quotation marks omitted).
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the preliminary relief described under the following subheadings. I present this relief as a proposal for two reasons. First, the parties in Ligon had little opportunity to argue and present evidence at the preliminary injunction hearing concerning the appropriate scope of relief. Second, the preliminary relief I propose is similar though not identical to the relief sought by plaintiffs in the Floyd action, where I have already certified a city-wide class of plaintiffs alleging that they have or will be victims of unconstitutional stops. Floyd is scheduled for trial on March 11, 2013. As part of the proof in that case, plaintiffs intend to present evidence regarding the remedies they seek.
Because of the rapidly approaching trial date in Floyd and the inefficiency of hearing separate arguments regarding the closely related remedies at issue in Ligon and Floyd, I am ordering the consolidation of the remedies hearing in the instant case with the remedies portion of the Floyd trial. Thus, the relief proposed under the subheadings below will not take effect until the parties in this case have had the opportunity to participate in a hearing at which they may present evidence or argument as to whether the proposed relief is insufficient or too burdensome or otherwise inappropriate, as well as regarding the appropriate timeline for relief. This remedy hearing will be held in conjunction with the Floyd
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trial, following the phase of the trial dealing with proof of liability.457 Plaintiffs’
counsel in Ligon and Floyd must coordinate their presentations with respect to appropriate remedies.458 Submissions by counsel in Ligon related solely to
remedies must be filed no later than February 22, 2013, and may not exceed
twenty-five pages per side.
a. Policies and Procedures
The NYPD is ordered to develop and adopt a formal written policy
specifying the limited circumstances in which it is legally permissible to stop a
person outside a TAP building on a suspicion of trespass. The policy must reflect
the fact that trespass stops outside TAP buildings are governed not only by New
York state law, but by the Fourth Amendment. Guidance in drafting this policy
should be drawn from the legal discussion found in this Opinion.
457 I emphasize that this ruling should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in Floyd. The evidence presented by both sides in Floyd will be judged on its own merits. While the Applicable Law section of this Opinion — see supra Part III — certainly applies to issues raised in Floyd, the Findings of Fact section does not. As I have noted throughout this Opinion, this case relates solely to trespass stops outside of TAP buildings in the Bronx. It is only because of the unavoidable overlap between the steps that are necessary to address plaintiffs’ harms in the instant case, and the steps that would be necessary to address plaintiffs’ harms in Floyd if plaintiffs prevailed there, that I am ordering the consolidation of the remedies presentations.
458 In the interests of efficiency, counsel in Floyd and Ligon are also permitted, but not required, to invite the participation of counsel in Davis in the presentation on appropriate remedies.
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A draft of the written policy governing trespass stops outside TAP buildings shall be provided to the Court (or a monitor appointed by the Court) for approval prior to distribution, with a copy to plaintiffs’ counsel.
b. Supervision First, the City is ordered to take all necessary steps to ensure that UF250s are completed for every trespass stop outside a TAP building in the Bronx. Again, a “stop” in the relevant sense is defined as any police encounter in which a reasonable person would not feel free to terminate the encounter. Second, the City is ordered to implement a system of review modeled on the one ordered by Chief Hall in paragraph 3 of Exhibit E. Supervisory personnel in each Bronx precinct must review, on a quarterly basis, each UF-250 completed for a trespass stop outside a TAP building in the Bronx. To the extent that such review reveals nonconformity with the formal written policy described above, the City will take specific steps to retrain the officer. The results of these reviews and any retraining will be periodically reported to the relevant precinct commander, a designated member of the Bronx Borough Command, a designated member of the Chief of Patrol’s Office, and plaintiffs’ counsel. Copies of all reviewed UF-250s shall be provided to plaintiffs’ counsel.
c. Training
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The City is ordered to revise the NYPD’s training materials and training programs to conform with the law as set forth in this Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have afflicted TAP in the Bronx. It must include, but need not be limited to, the following reforms: (1) The formal written policy governing trespass stops outside TAP buildings, described above, must be distributed to each Bronx NYPD member, and then redistributed two additional times at six-month intervals. (2) The stop and frisk refresher course at Rodman’s Neck must be altered to incorporate instruction specifically targeting the problem of unconstitutional trespass stops outside TAP buildings. Whether the instruction includes additional slides, role-playing, or exams, it must be sufficient to convey to all officers who attend the course that reasonable suspicion of trespass is required before making a trespass stop outside a TAP building. Training regarding these stops must also be provided to new recruits and to officers who have already attended the Rodman’s Neck refresher course and are not scheduled to do so again. (3) Chapter 16 of the Chief of Patrol Field Training Guide must be revised to reflect the formal written policy governing trespass stops outside TAP buildings described above. (4) SQF Training Video No. 5 must be revised to conform with the law as set forth in this Opinion. I recognize that this step, like some of the others above, will involve
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alterations to training materials used outside the Bronx and outside the context of TAP. But such steps are necessary to correct the longstanding misconceptions that led to the violations of plaintiffs’ constitutional rights described in this Opinion.
Drafts of the written or scripted training materials described above shall be provided to the Court (or a monitor appointed by the Court) for approval prior to use, with a copy to plaintiffs’ counsel.
d. Attorneys’ Fees Reasonable attorneys’ fees and costs will be rewarded as appropriate, on application. In closing, I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing. It could be the case that the development and implementation of IOs 22 and 23 of 2012, as well as the changes to NYPD training in 2012, have resolved the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. Because these changes were so recent, however, and so late in the two-decade history of TAP, they were insufficient to rebut plaintiffs’ evidence at the hearing of defendants’ deliberate indifference to a practice of unconstitutional stops. At any time that defendants develop persuasive evidence, supported by reliable statistics, that unconstitutional trespass stops are no longer taking place outside TAP buildings in
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the Bronx, defendants may move for the dissolution of this preliminary injunction and the proposed relief. VI. CONCLUSION
For the reasons explained above, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined. The Clerk of the Court is directed to close this motion [Docket No. 42]. A conference is scheduled for January 31, 2013 at 4:30 pm.
SO ORDERED:

Dated:

January 8, 2013 New York, New York

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APPENDIX A
Excerpts from Decline to Prosecute Affidavits:
1. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, and asked defendant, why were you in the building? Defendant stated in sum and substance: VISITING A FRIEND. The Arresting Officer then observed defendant to have a white powdery substance on his nose . . . however, the amount was too small to field test or recover.
The Arresting Officer arrested Defendant and charged him with violating New York State Penal Law section 140.15 (Criminal Trespass). However, the Arresting Officer failed to ask defendant [redacted] you know anyone in the building; if so, what is the person’s name and apartment number.
2. [T]he defendants were observed exiting a clean halls building. The defendants stated that they were there to visit a tenant . . . . After being arrested a tenant from the building did corroborate the defendant’s statements and the tenant stated that both defendants were in the building as his guests.
3. The Arresting Officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The Arresting Officer . . . approached the defendant and asked the defendant do you live in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant what apartment did you come from and defendant stated in sum and substance: I MET WITH [redacted] IN THE LOBBY. The Arresting Officer further asked defendant what apartment does [redacted] live in and defendant stated in sum and substance: I DON’T KNOW THE APARTMENT NUMBER. [Another officer then went inside the building and asked two people exiting if they knew anyone by the name of the defendant’s host. When they said no, the defendant was arrested for trespass.]
4. . . . Arresting Officer observed defendant enter and exit a Clean Halls Building. Arresting Officer approached the defendant and asked her where she was coming [from], what was she doing in the building and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME. [The defendant was then arrested for trespass.]
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5. Defendants entered . . . a clean halls building, and exited. Defendant was stopped outside of the location. When the arresting officer questioned the defendant, defendant stated, in sum and substance, I’M JUST CHILLING. Defendant did not admit that he was in the location. [The defendant was then arrested for trespass.]
6. [A]rresting officer . . . observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment Building, asked defendant does he live there and defendant did not respond. The arresting officer then asked the defendant if he knows anyone in the apartment and defendant did not respond. Arresting officer then asked defendant what was he doing in the building and defendant stated in sum and substance I WASN’T THERE TO BUY DRUGS. [The defendant was then arrested for trespass.]
7. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment building, and asked defendant do you live in the building, do you know anyone in the building, what are you doing in the building, to which defendant stated in sum and substance: NO, NO, I WAS INSIDE FOR A COUPLE OF MINUTES MAKING A PHONE CALL. [The defendant was then arrested for trespass.]
8. Arresting Officer . . . observed both defendants exit the lobby of . . . a Clean Halls Apartment Building and asked defendants what was their purpose inside of said building and defendant [redacted] stated in sum and substance: I WAS VISITING MY COUSIN [redacted] IN [redacted] but defendant [redacted] remained silent. [Another officer] entered the building to investigate further, however, the arresting officer was unable to articulate how [the other officer] disproved [the speaking defendant’s] claim. [Both defendants were arrested for trespass.]
9. Police Officer . . . observed the defendant exiting the lobby of . . . a Clean Halls Apartment Building and asked defendant whether he lived in the building and defendant stated in sum and substance: NO. [The officer] then asked the defendant, were you visiting anyone in the building, and defendant stated in sum and substance: YES. [The officer] then asked the defendant for the name of the person he was visiting and the apartment number and defendant stated in sum and substance: I DON’T KNOW. [The defendant was then arrested for trespass.]
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10. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building, and radioed defendant’s description. Arresting Officer’s partner asked defendant why did you go into the building, do you know anyone in the building, to which defendant stated in sum and substance: I CAME OUT OF A FRIEND[’]S APARTMENT. I WAS INSIDE FOR ABOUT AN HOUR. [The defendant was then arrested for trespass.]
11. [T]he arresting officer observed the defendant enter into [a Clean Halls building] and exit after approximately five (5) minutes. . . .
. . . The defendant was not observed in an area of the building that is not open to the public such as the hallways, lobby and stairwells. [The defendant was arrested for trespass.]
12. [A police officer] observed the defendant enter a Clean Halls Building and exit moments later. . . . [W]hen the defendant exited the building, [the officer] asked the defendant if he lived in the building, to which the defendant stated in sum and substance, NO. . . . [The officer] did not ask the defendant if he was a guest of a tenant in the building. . . . [T]he defendant attempted to walk away at which time [the officer] grabbed the defendant[’]s arms, and the defendant pulled away. [A struggle ensued, and the defendant was then arrested in part for trespass.]
13. [T]he defendants entered a Clean Halls building, stayed there approximately five minutes, and then left. The arresting officer stopped the defendants and asked them where they were coming from. The defendants replied, in sum and substance, WE’RE COMING FROM . . . WE’RE COMING FROM . . ., and could not provide a name or apartment number. The officer placed both defendants under arrest and searched them.
14. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, approached defendant and asked, Do you live in the building?, defendant stated in sum and substance: NO. The Arresting Officer then asked the defendant, Do you know anyone in the building?, defendant stated in sum and substance: YES, A FRIEND. The Arresting Officer then asked the defendant, What’s your friend’s name? What apartment does your friend live in?, defendant stated in sum and substance: I DON’T KNOW HIS NAME. HE’S IN [redacted]. The Arresting Officer went to [redacted] however, the apartment was unoccupied, and as a result, the Arresting Officer was unable to locate anyone who
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could verify defendant’s claim. [The defendant was then arrested for trespass.]
15. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building and [another officer] approached defendant on the sidewalk and asked defendant, Do you live in the building?, and defendant stated in sum and substance: NO. [The officer] asked defendant, What was your reason for being in the building?, and defendant stated in sum and substance: LOOKING FOR A GIRL. [The officer] then asked the defendant, What’s the name of the girl?, and defendant refused to provide an answer to the aforementioned question. [The defendant was then arrested for trespass.]
16. Arresting Officer observed the defendant enter and exit the lobby of . . . a clean halls Building. [The defendant was then arrested for trespass.] However, arresting Officer could not obtain a clean halls affidavit.
17. [I]n front of . . . a Clean Halls building, [the arresting officer] observed defendant and several unapprehended individuals exit the lobby . . . . [The officer] approached defendant and asked defendant if he knew anyone in above-mentioned location and defendant stated in sum and substance: NO. I’M JUST LOOKING FOR MY FRIEND [redacted]. NO [redacted] DOESN’T LIVE HERE. [The defendant was then arrested for trespass.]
18. [D]efendant was observed entering and exiting the lobby of [a Clean Halls building].
Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS IN THE BUILDING LOOKING FOR WORK. Arresting officer asked defendant what kind of work he was looking for and defendant stated in sum and substance I WAS LOOKING FOR MY FRIEND [redacted]. Arresting officer asked defendant where his friend lived and defendant stated in sum and substance I DON’T KNOW WHERE HE LIVES. [The defendant was then arrested for trespass.]
19. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and defendant stated in sum and substance: I WAS THERE TO VISIT A FRIEND. I DON’T KNOW WHAT APARTMENT THEY LIVE IN. [The officer then searched the defendant, found crack-cocaine and a pipe, and arrested defendant in part for trespass.]
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20. The arresting officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated in sum and substance YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT PUTTING YOUR HANDS ON ME. [The arresting officer then handcuffed defendant and placed him in the patrol vehicle.]
21. [D]efendant was observed entering the above location, a Clean Halls Apartment building, and was also observed exiting said location minutes later. Arresting police officer . . . asked defendant if he lived in the building and defendant stated in sum and substance, I’M NOT THERE, I’M IN [redacted]. [The defendant was then arrested for trespass.]
22. Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building. Arresting officer approached defendant and asked him, do you live in the building, do you know anyone in the building, what apartment does your friend live [in], what is his name[,] to which defendant stated in sum and substance: . . . NO I DON’T, YES I’M VISITING MY FRIEND ON THE [redacted] FLOOR, NO I’M NOT GOING TO GIVE YOU MY FRIEND’S NAME. [The officer then patted down the defendant and arrested him in part for trespass.]
23. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and do you know anyone in the building and defendant stated in sum and substance: NO, I DON’T KNOW ANYONE AND I WENT TO BUY DRUGS. [The defendant was then arrested in part for trespass.]
24. The Arresting Officer states that . . . he observed defendant exiting . . . a Clean Halls Apartment Building. The Arresting Officer approached defendant and asked defendant if he lives in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant where are you coming from and defendant stated in sum and substance: I’M COMING FROM THE [redacted] FLOOR. The Arresting Officer asked the defendant what apartment are you coming from and defendant stated in sum and substance: I DON’T KNOW THE APARTMENT NUMBER BUT I’LL SHOW IT TO YOU. [The officer went with the defendant to the apartment. No one answered the door.
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The defendant was arrested for trespass.] 25. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building. Arresting Officer told defendant that he observed him enter said building along with separately apprehended [redacted] . . . and separately apprehended stated in sum and substance WE WERE IN THE BUILDING. Arresting Officer then asked separately apprehended and defendant what apartment they were visiting, and neither defendant nor separately apprehended provided a response. [The defendant was then arrested for trespass.]
. . . [T]he Arresting Officer did not observe defendant to go beyond the public vestibule of said building, nor did defendant admit to being inside of said building, beyond the public vestibule. 26. The arresting officer states that . . . inside of . . . a Clean Halls Building, she observed defendant and separately apprehended [redacted] enter the lobby of said location and exit shortly thereafter. Arresting officer stopped defendant and asked him if he lived in the building and defendant stated in sum and substance I DON’T LIVE IN THE BUILDING. Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS WAITING FOR A FRIEND. Arresting officer asked defendant for the name of the person he was waiting for and defendant did not reply. Arresting officer asked defendant for his identification and defendant was unable to produce one at which time arresting officer attempted to handcuff defendant and defendant ran.
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APPENDIX B Blank UF-250 Form
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For Plaintiffs:

- Appearances For Defendants:

Christopher Dunn, Esq. Alexis Karteron, Esq. Taylor Pendergrass, Esq. Daniel Mullkoff, Esq. New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607-3300
J. McGregor Smyth, Jr., Esq. Mariana Kovel, Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, NY 10451 (718) 508-3421

Heidi Grossman Mark Zuckerman Joseph Marutollo Brenda Cooke Richard Weingarten Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 788-1300

Juan Cartagena, Esq. Foster Maer, Esq. Roberto Concepcion, Jr., Esq. LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360

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

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

OPINION & ORDER 12 Civ. 2274 (SAS)

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

08 Civ. 1034 (SAS)

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

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

2

See id. at *41–42.

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

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

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postponement of the Floyd trial. II. DISCUSSION
A. Defendants’ Request for Stay Pending Appeal “The four factors to be considered in issuing a stay pending appeal are
well known: ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’”5 “[T]he degree to which a factor must be present varies with the strength of the other factors, meaning that ‘more of one [factor] excuses less of the other.’”6
First, to the extent that defendants intend to raise on appeal the issues presented in their letters, I am not persuaded that defendants are likely to succeed on the merits of their appeal. In particular, I find it noteworthy that defendants choose to characterize the holdings of the Opinion not by quoting from the Opinion’s holdings, but rather by quoting selectively from a relatively peripheral discussion of an NYPD training manual. Defendants suggest that this Court
5 In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir. 2007) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987), and citing Cooper v. Town of E. Hampton, 83 F.3d 31, 36 (2d Cir. 1996)) (footnote omitted).
6 Id. (quoting Thapa v. Gonzales, 460 F.3d 323, 334 (2d Cir. 2006)) (certain quotation marks omitted).
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“ruled” that “approaching a person, engaging in ‘pointed, invasive and accusatory’
questioning ‘intended to elicit an incriminating response’ and ‘asking for permission’ to search a person constitutes a Terry stop of that person.”7 This Court
made no such ruling. While the paragraph quoted by defendants casts a critical eye
on the likely effects of the permissive language in the training manual, the Opinion
does not hold that the behaviors described in the training manual would by
definition constitute a Terry stop. To the contrary, the cited paragraph contains
numerous qualifications intended to prevent the very misunderstanding reflected in defendants’ January 14 letter.8
Similarly, defendants state in their reply letter that “the Court opined
that pointed questioning designed to elicit an incriminating response must not take
place until after an officer has developed reasonable suspicion, because people
7 1/14/13 Letter from Heidi Grossman et al., Counsel for Defendants, to the Court (“1/14 Grossman Ltr.”) at 1.
8 For example, the paragraph states that the Fourth Amendment “does not proscribe all contact between the police and citizens.” Ligon, 2013 WL 71800, at *37 (emphasis added). The paragraph notes that “it is difficult to imagine many circumstances in which a reasonable person being aggressively interrogated by the police” would feel free to leave, not that there are no circumstances in which a reasonable person being asked accusatory questions would feel free to leave. Id. (emphasis added). The paragraph also notes that it is fanciful to say that a reasonable person would “as a rule” feel free to leave in the midst of a field interrogation, not that no reasonable person could feel free to go. Id. (emphasis added).
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ordinarily feel obliged to answer such questions.”9 Such a holding appears
nowhere in the Opinion, and in particular does not appear in the simple summary
of Supreme Court precedent with which the Opinion specifically ordered defendants to comply.10 Rather, the summary states: “Encounters involving
nothing more than commands or accusatory questioning can and routinely do rise
to the level of Terry stops, provided that the commands and questioning would
lead a reasonable person to conclude he was not free to terminate the encounter.”11 The latter clause makes clear, along with numerous other statements in the Opinion,12 that the Opinion does not define a Terry stop as any police
encounter involving accusatory questioning.
9 1/17/13 Letter from Grossman et al. to the Court (“1/17 Grossman Ltr.”) at 2.
10 See Ligon, 2013 WL 71800, at *41–42. 11 Id. at *41 (applying the “terminate the encounter” standard from Florida v. Bostick, 501 U.S. 429, 436 (1991)) (emphasis added). To conclude that a practice can and routinely does rise to the level of a Terry stop provided that a specific standard is met, is obviously not the same thing as concluding that the practice by definition “constitutes a Terry stop,” 1/14 Grossman Ltr. at 1, and thus must always be preceded by reasonable suspicion. 12 See especially the introductory summary of Fourth Amendment law at Ligon, 2103 WL 71800, at *4–5. More generally, the Opinion invokes the “terminate the encounter” standard for defining Terry stops on more than ten occasions. By contrast, the Opinion never analyzes whether an encounter rose to the level of a Terry stop simply by asking whether the encounter involved accusatory questioning.
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In addition, defendants now argue, after the conclusion of the hearing
and without citation to any evidence, that some or all of plaintiffs’ stops were
based on consent, and therefore that this Court has improperly redefined
consensual encounters as Terry stops.13 The parties’ post-hearing briefing only
raised the issue of consent once — and solely in the context of New York state
law14 — and never argued that any of plaintiffs’ stops were based on consent. As a
result, I did not address the issue of consent in the Opinion. Because defendants’
letters suggest that they intend to challenge the Opinion based on the notion that
13 See 1/14 Grossman Ltr. at 2. I note that even when the Supreme Court has found consent for a search, it has held that the “terminate the encounter” standard defines a Terry stop. See, e.g., United States v. Drayton, 536 U.S. 194, 200–01 (2002) (“The proper inquiry ‘is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” (quoting Bostick, 501 U.S. at 436)). See also 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.4(a) (5th ed. 2012) (“[I]t does not appear . . . that the Mendenhall-Royer [‘free to leave’] test is intended to divide police-citizen encounters into their seizure and nonseizure categories by reliance upon the amorphous concept of consent.”).
14 See Defendants’ Proposed Findings of Fact and Conclusions of Law ¶ 42 n.19 (“First, not every police encounter requires reasonable suspicion and may be consensual. Contrary to plaintiffs’ counsel’s assertions during closing arguments . . ., New York Law applies.”). This is the only reference to consent in defendants’ post-hearing brief. I also emphasize, as I did in the Opinion, that defendants’ argument that “New York Law applies” does not address the United States Supreme Court’s clear holding that any question of the reasonableness of a search or seizure must be governed by the Fourth Amendment to the Constitution of the United States. See Ligon, 2013 WL 71800, at *39 & n.430 (citing Sibron v. State of New York, 392 U.S. 40 (1968)).
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plaintiffs consented to their police encounters, however, I will briefly address this issue now. With the possible exception of Letitia Ledan’s stops — the second of which Ledan initiated by approaching a police officer and asking questions15 — there was no evidence at the hearing that any of plaintiffs’ stops were consensual. Thus, for the same reasons that I found a reasonable person would not have felt free to terminate plaintiffs’ encounters with the police, I also find that none of the plaintiffs consented to being stopped — with the possible exception of Ledan. It is wishful thinking, at best, to suggest that plaintiffs, who were neither asked for consent nor gave it, and who did not feel free to terminate their encounters, willingly consented to the encounters that left them feeling “violated,” “disrespected,” “angry,” and “defenseless.”16
Defendants also argue that the Opinion misinterprets Florida v. Bostick.17 It is peculiar to hear defendants defend the NYPD’s current practices by suggesting that this Court is ordering a departure from Bostick, because the “Immediate Relief” section of the Opinion quotes the Bostick definition of a Terry
15 See Ligon, 2013 WL 71800, at *17, *29 n.345. Ledan’s first stop is discussed below.
16 Id. at *2. 17 See 1/14 Grossman Ltr. at 2.
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stop and orders defendants to comply with it.18 Indeed, one of the central, often repeated principles of the Opinion is that the NYPD must comply with Bostick’s definition of a Terry stop, and not only with New York state law.19 It is reassuring that defendants now agree that a police officer must have reasonable suspicion to initiate any encounter in which a reasonable person would not feel free “to decline the officers’ requests or otherwise terminate the encounter,”20 as Bostick states.21 If defendants endorse these principles, however, it is puzzling that defendants continue to defend the NYPD’s training materials, which make little reference to the “terminate the encounter” or “free to leave” standards, and instead base the officers’ training almost entirely on the ambiguous, overlapping, and problematic stop standards contained in De Bour and its progeny. As the Opinion recognizes, the extent to which De Bour conflicts with or complements the Fourth Amendment
18 “To summarize: as the Fourth Amendment has been interpreted by the U.S. Supreme Court and the Second Circuit, an encounter between a police officer and a civilian constitutes a Terry stop whenever a reasonable person would not feel free to ‘“terminate the encounter.”’” Ligon, 2013 WL 71800, at *41 & n.454 (quoting Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436)).
19 Again, I note that the Opinion invokes Bostick’s “terminate the encounter” standard on more than ten occasions.
20 Bostick, 501 U.S. at 436. 21 See 11/14 Grossman Ltr. at 2 (citing Bostick).
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is unclear.22 But it is obviously no defense of practices that violate the Fourth
Amendment to say that they resulted from training based on New York state law,
as defendants continue to argue.23
To the extent that defendants criticize my application of the Fourth
Amendment standards articulated in Bostick, I recognize that opinions may differ
regarding when a reasonable person would feel free to terminate an encounter.24 I
22 See Ligon, 2013 WL 71800, at *6, *38 n.422 (discussing People v. De Bour, 40 N.Y.2d 210 (1976)).
23 See, e.g., 1/17 Grossman Ltr. at 1 (stating that it would be “an impossible burden” to require the NYPD to conduct training that “contradicts well established, long standing New York State case law as set forth in People v. De Bour”). On the primacy of the U.S. Constitution over New York state law, see Ligon, 2013 WL 71800, at *1 & nn.3–7 (quoting Sibron, 392 U.S. at 61). If defendants accept that Bostick’s view of the Fourth Amendment governs the NYPD, then the NYPD should train its officers in accordance with that standard. The message delivered in training would be simple: without reasonable suspicion, a police officer may not treat someone in such a way that a reasonable person would not feel free to terminate the encounter. It is unclear why this lesson, instead of forming the core of NYPD training on the legality of stops, appears to play almost no role.
24 Specifically, defendants question my ruling that the two encounters described by Ledan and the second encounter described by Abdullah Turner were, in fact, Terry stops, rather than merely constitutionally permissible “pointed questioning designed to elicit an incriminating response.” 1/17 Grossman Ltr. at 2. See also 1/14 Grossman Ltr. at 2.
Based on my best judgment, as informed by Supreme Court and Second Circuit precedent, I made a good faith effort to determine whether a reasonable person would have felt free to terminate the encounters described by plaintiffs. See Ligon, 2013 WL 71800, at *36 nn.408–09 (citing United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009); Brown v. City of Oneonta, N.Y., 221
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find it highly unlikely, however, that defendants could prevail in their attempt to
defend the NYPD’s current training regime simply on the basis of marginal
disagreements with my application of the Fourth Amendment’s “free to leave”
standard to the specific facts described by one or two plaintiffs. There can be little
doubt that most of the plaintiffs experienced Terry stops; and even if there were
such doubt, there can be no doubt that the stops recorded in UF-250 forms were
F.3d 329, 340 (2d Cir. 2000)). Defendants are correct that Turner’s second stop was one of the least intrusive described at the hearing. I note, however, that the officer in Turner’s second stop did not simply ask pointed questions designed to elicit an incriminating response. The officer’s patrol car pulled in front of the exit to the building as Turner was attempting to leave; the officer stopped Turner from leaving by asking him pointed questions designed to elicit an incriminating response, asked for Turner’s ID and took it, and told Turner and the others that they could not stand in front of their own building; and the encounter unfolded in such a way that Turner, whose subjective state is not dispositive but may shed light on the objective tenor of the encounter, did not feel free to leave. See id. at *13–14, 28. I again conclude that no reasonable person would have felt free to leave under these circumstances, particularly once the police had possession of the ID.
On the other hand, defendants’ newly articulated criticisms have persuaded me that I should have refrained from identifying Ledan’s first encounter as a Terry stop. See id. at *16. The Opinion never explicitly analyzed Ledan’s first encounter under the Bostick test, but in the “deliberate indifference” section, I wrote: “each of plaintiffs’ encounters with the police rose to the level of Terry stops.” Id. at *28. I now conclude based on Ledan’s limited testimony that a reasonable person would probably have felt free to leave under the circumstances of her first encounter, especially if the officers treated Ledan politely rather than in an aggressive, coercive, or threatening manner. See id. I also emphasize, as I did in the Opinion, that further evidentiary development may affect my factual findings. See id. at *44 (“I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing.”).
10

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Terry stops.25 Standing alone, the UF-250 forms indicate that hundreds or even thousands of violations of constitutional rights have occurred outside TAP buildings in the Bronx. This suit is a putative class action. Setting aside Ledan’s stops and Turner’s second stop, there is more than enough proof that a large number of people have been improperly stopped as a result of NYPD practices. These facts warrant an injunction.
Despite my reservations regarding the likelihood of defendants’ success on appeal, however, I recognize that reversal is always a possibility. The Opinion acknowledges at the outset that many of the questions raised by stop and frisk are not easily answered,26 and that “it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters.”27
Second, defendants argue that they would suffer irreparable injury in the absence of a stay. Defendants state that “[f]or the NYPD to ensure compliance with the ‘Immediate Relief’ ordered by the Court . . . at least some form of
25 Officers are required to fill out a UF-250 (“Stop, Question and Frisk Report Worksheet”) after each Terry stop, and only then. See Transcript of Preliminary Injunction Hearing (“Tr.”) 10/15 at 69:24–70:6 (testimony of plaintiffs’ expert witness Dr. Jeffrey Fagan); Tr. 10/23 at 1110:5–8 (testimony of Officer Miguel Santiago); July 2012 Chief of Patrol Field Training Unit Program Guide, Defendants’ Exhibit N, at 24.
26 See Ligon, 2013 WL 71800, at *1. 27 Id. at *3.
11

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 12 of 20
notification to and/or training of thousands of NYPD officers and their supervisors would be necessary.”28 Plaintiffs question this assertion, arguing that “the NYPD routinely sends out notifications to members of the department instructing them about changes in practice in response to lawsuits.”29 Plaintiffs provide evidence that the NYPD could use, and has used in similar cases, the “FINEST” messaging system to notify officers and supervisors of court orders.30
After review of the parties’ letters, I conclude that effective compliance with the immediate remedy ordered in the Opinion will likely require steps beyond the circulation of FINEST messages, and that these steps may impose significant burdens on the NYPD. It was for this reason that I refrained from ordering the “Proposed Additional Relief” in the Opinion.31 I am now persuaded that the immediate relief ordered cannot be effectively implemented without the sorts of significant steps I proposed.
I am also cognizant of the possibility that administrative inefficiencies
28 1/14 Grossman Ltr. at 2. See also 1/17 Grossman Ltr. at 2–3 (describing the extensive changes to training that would be required to comply with the immediate relief ordered in the Opinion).
29 1/16/13 Letter from Christopher Dunn et al., Counsel for Plaintiffs, to the Court (“1/16 Dunn Ltr.”) at 2.
30 See Exs. A, B to 1/16 Dunn Ltr. 31 See Ligon, 2013 WL 71800, at *41–44.
12

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 13 of 20
may result from ordering certain remedies now and potentially ordering different remedies after the completion of the consolidated remedies hearing in Floyd and Ligon.32 Because any unnecessary administrative costs imposed on the NYPD will be in some sense irreversible, the risk of irreparable harm weighs in favor of granting the stay.
Third, with regard to whether issuance of a stay will substantially injure other parties, it is likely that a stay will cause some injury to those who are at risk of being subject to unconstitutional trespass stops outside TAP buildings in the Bronx. If the stay is granted, a certain number of unconstitutional stops are likely to take place that would not have taken place in the absence of a stay. I take seriously the cost of these unconstitutional stops, as the Opinion makes clear.33
On the other hand, allowing a longstanding unconstitutional practice to persist for a few months while the parties present arguments regarding the appropriate scope of a remedy is quite distinct from allowing such a practice to persist until the completion of trial. In the Opinion, I granted a preliminary injunction in part based on the risk that a final resolution of plaintiffs’ case might lie years in the future, as the protracted course of the Floyd litigation has
32 See id. 33 See id. at *39–40 (balance of equities analysis).
13

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 14 of 20
illustrated.34 The likely cost of granting a brief stay in the present case is far smaller — though it is a source of concern that such a cost must be borne at all.
Fourth, with regard to the public interest, the analysis from the Opinion largely applies.35 There is a conflict between the liberty and dignity of those who may be stopped as a result of a stay, and the public safety interest in conserving the NYPD’s resources. Both interests are significant.
Weighing the factors above, I conclude that the balance tips in favor of granting a brief stay. In essence, now that I am persuaded that compliance with the immediate ordered relief in the Opinion would in practice require taking some or all of the burdensome steps presented as proposed relief, the same reasoning that led me to propose that relief rather than ordering it now leads me to favor granting a limited stay. The inefficiency of immediately implementing reforms that may require alteration after the Floyd-Ligon remedies hearing, the public safety interest in conserving the NYPD’s scarce resources, and the short duration of the stay I am ordering, outweigh the benefits to plaintiffs’ putative class of immediately ordering compliance with the Opinion. I am thus granting a stay of the immediate relief ordered in Ligon pending the issuance of a final decision regarding the appropriate
34 See id. at *39 (emphasizing the likely magnitude of unconstitutional stops “between now and the completion of trial if this Court does not act”).
35 See id. at *40–41 (public interest analysis). 14

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 15 of 20
scope of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any) in Floyd. At that time, defendants may move for a stay of all remedies ordered if they are so inclined.
Finally, it is my understanding that the decision to stay the immediate relief ordered in the Opinion moots defendants’ appeal. No relief is now in effect, and there has been no final decision as to the appropriate scope of the relief to be ordered.36
B. Defendants’ Request for a Postponement of the Floyd Trial Defendants argue that the trial in Floyd should be postponed because
“[i]t makes little sense . . . to try the Floyd case under a view of the law that is incorrect.”37 In their reply letter, defendants cite a five-factor test adopted by the district court for determining whether to enter a stay pending an appeal in a related case.38 The factors are: “(1) the private interests of the plaintiffs in proceeding expeditiously with the civil litigation . . . (2) the private interests of and burden on
36 See Lynch v. City of New York, 589 F.3d 94, 98 n.1 (2d Cir. 2009) (“[T]he courts of appeals have general appellate jurisdiction only over ‘final decisions of the district courts.’” (quoting 28 U.S.C. § 1291)).
37 1/14 Grossman Ltr. at 2. 38 See 1/17 Grossman Ltr. at 4 (citing Estate of Heiser v. Deutsche Bank Trust Co. Ams., No. 11 Civ. 1608, 2012 WL 2865485, at *3 (S.D.N.Y. July 10, 2012)).
15

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 16 of 20
the defendants; (3) the interests of the courts; (4) the interests of persons not parties to the civil litigation; and (5) the public interest.”39 These factors overlap in some respects with the four factors for determining a stay pending appeal. Without repeating elements of the analysis offered above, I note that the following considerations argue against postponing the Floyd trial:
First, plaintiffs in Floyd filed their case on January 31, 2008. Unlike Ligon, Floyd is a certified class action challenging the constitutionality of stop and frisk practices in all contexts throughout the City of New York.40 After five years of preparation, the trial is scheduled to begin in less than two months. It would be unfair and inappropriate to delay the case any further.
Second, many of the legal issues in Floyd are different from those dealt with in the Opinion in Ligon.41 As the Floyd plaintiffs note, their case addresses, among other things, “whether minorities are stopped at an unconstitutionally disproportionate rate, and whether there is a failure to monitor, supervise, and discipline officers who fail to meet the NYPD’s reporting
39 Heiser, 2012 WL 2865485, at *3 (quoting LaSala v. Needham & Co., 399 F. Supp. 2d 421, 427 (S.D.N.Y. 2005)).
40 See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012) (granting class certification). The Ligon preliminary injunction hearing dealt only with stops based on suspicion of trespass outside TAP buildings in the Bronx.
41 See Ligon, 2013 WL 71800, at *1 n.1. 16

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 17 of 20
requirements for stop-and-frisks.”42 Third, to the extent that some of the legal issues in Floyd and Ligon
are the same, appellate review of those issues will be aided by proceeding with the Floyd trial without delay. Counsel in Floyd have not yet been heard on the issues defendants wish to raise on appeal. By allowing the Ligon preliminary injunction hearing to proceed before the Floyd trial,43 this Court recognized that it might be necessary to reach certain generally applicable legal conclusions on the basis of a preliminary injunction hearing concerning a relatively narrow range of facts. I concluded that such a course was appropriate given the long delays in the Floyd litigation and the Ligon plaintiffs’ request for preliminary relief.44 Now that the Floyd trial is imminent, there is no reason for the Second Circuit to operate under similar constraints. Indeed, if defendants are correct, and the Opinion leads the parties in Floyd to pose questions and develop a record that focuses in part on the nature of a stop,45 this can only aid review of the very issues that defendants
42 1/16/13 Letter from Darius Charney, Counsel for Floyd Plaintiffs, to the Court at 2 (footnote omitted).
43 See Ligon v. City of New York, No. 12 Civ. 2274, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012).
44 See id. at *3. 45 See 1/17 Grossman Ltr. at 3.
17

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contest. 46 III. CONCLUSION
Defendants' request for a stay is granted pending a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon. Defendants' request for a postponement of the Floyd trial is denied.

Dated:

January 22, 2013 New York, New York

46 The Floyd plaintiffs also argue that if the remedy phase of the Ligon litigation is stayed pending appeal, the consolidated Floyd-Ligon remedies hearing should be bifurcated from the Floyd trial, or the Floyd remedy phase should be separated from the remedy hearing in Ligon. See id. at 2. Because I have not stayed the remedy phase of the Ligon litigation, but have only stayed the immediately ordered relief in Ligon pending the completion of the Floyd-Ligon remedies hearing, I reject the Floyd plaintiffs' suggestion.
18

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 19 of 20

For Ligon Plaintiffs:

- Appearances For Floyd Plaintiffs:

Christopher Dunn, Esq. Alexis Karteron, Esq. Taylor Pendergrass, Esq. Daniel Mullkoff, Esq. New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607-3300
J. McGregor Smyth, Jr., Esq. Mariana Kovel, Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, NY 10451 (718) 508-3421
Juan Cartagena, Esq. Foster Maer, Esq. Roberto Concepcion, Jr., Esq. LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360

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

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

19

Case 1:12-cv-02274-SAS-HBP Document 99 Filed 01/22/13 Page 20 of 20
For Ligon and Floyd Defendants: Brenda Cooke Linda Donahue Heidi Grossman Morgan Kunz Joseph Marutollo Suzanna Publicker Lisa Richardson Cecelia Silver Judson Vickers Richard Weingarten Mark Zuckerman Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 788-1300
20

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

JAENEAN LIGON, individually and on
behalf of her minor son, J .G.; FAWN
BRACY, individually and on behalf of her minor son, W.B.; JACQUELINE YATES; LETITIA LEDAN; ROSHEA JOHNSON; KIERON JOHNSON; JOVAN JEFFERSON; A.O., by his parent DINAH ADAMES; ABDULLAH TURNER; FERNANDO MORONTA; and CHARLES BRADLEY, individually and on behalf of a class of all others similarly situated,

OPINION AND ORDER
12 Civ. 2274 (SAS)

Plaintiffs,

- against-

CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; POLICE OFFICER JOHNNY BLASINI; POLICE OFFICER GREGORY LOMANGINO; POLICE OFFICER JOSEPH KOCH; POLICE OFFICER KIERON RAMDEEN; POLICE OFFICER JOSEPH BERMUDEZ; POLICE OFFICER MIGUEL SANTIAGO; and POLICE OFFICERS JOHN DOE 1-12,

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

I. INTRODUCTION Plaintiffs, all of whom are African-American or Latino residents of

New York, allege that the New York Police Department ("NYPD") has a

widespread practice of making unlawful trespass stops outside buildings in the

Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was
formerly known as “Operation Clean Halls.”1 This program allows “police officers
to patrol inside and around thousands of private residential apartment buildings
throughout New York City.”2 Plaintiffs argue that the NYPD’s trespass stops
outside TAP buildings are often made without reasonable suspicion and, thus,
violate the Fourth Amendment.3
On September 24, 2012, plaintiffs filed a motion for a preliminary
injunction. Plaintiffs sought an order requiring the NYPD to create and implement
new policies, training programs, and monitoring and supervisory procedures that
specifically address the problem of unconstitutional trespass stops outside TAP
buildings.4 Plaintiffs’ application for a preliminary injunction was granted but
1 See Ligon v. City of New York, No. 12 Civ. 2274, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012) (allowing preliminary injunction hearing to proceed). Plaintiffs’ Complaint concerns stops in and around TAP buildings throughout New York City, but plaintiffs’ motion for preliminary injunction focused solely on outside stops made in the Bronx. See id. at *3–4; Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (“Pl. Class Mem.”) at 1 n.1.
2 See Ligon, 2012 WL 3597066, at *1. 3 As the Supreme Court held in Terry v. Ohio, 392 U.S. 1, 25 (1968), even limited stops and searches must be based on reasonable suspicion. 4 See Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 21.
2

consideration of the appropriate remedies was deferred pending the remedies
portion of the Floyd trial.5 However, as for “immediate relief,” the NYPD was
“ordered immediately to cease performing trespass stops outside TAP buildings in
the Bronx without reasonable suspicion of trespass.”6 Defendants requested an
immediate stay pending appeal of the January 8, 2013 Opinion.7 Defendants’
request for a stay of the immediate relief was granted on January 22, 2013.8
Eight out of the eleven plaintiffs – Jacqueline Yates, Letitia Ledan,
Roshea Johnson, Kieron Johnson, Jovan Jefferson, Abdullah Turner, Fernando
Moronta and Charles Bradley (collectively, “plaintiffs” or “named plaintiffs”) –
have sued on behalf of themselves and a class of all others similarly situated.
Plaintiffs now move for certification of the following class:
All individuals who have been or are at risk of being stopped outdoors without legal justification by
5 Floyd v. City of New York, 08 Civ. 1034 (SAS), is a companion case which challenges the NYPD’s stop and frisk program more broadly as it involves all persons who have been, or may be, subjected to a Terry stop without the prerequisite finding of reasonable suspicion. The trial in Floyd is scheduled to begin on March 18, 2013.
6 Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 71800, at *41 (S.D.N.Y. Jan. 8, 2013) (the “January 8, 2013 Opinion”).
7 See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654 (S.D.N.Y. Jan. 22, 2013).
8 See id. at *1.
3

NYPD officers on suspicion of trespassing in Bronx apartment buildings enrolled in the NYPD’s Trespass Affidavit Program (commonly referred to as “Operation Clean Halls”).9
Plaintiffs seek certification of this more limited preliminary injunction class to
“ensure that any relief ordered in connection with the preliminary injunction
motion will benefit all persons at risk of being subjected to the challenged
practice.”10 Because plaintiffs have satisfied the legal prerequisites for class
certification, their motion is granted.
II. FACTUAL BACKGROUND
At the class certification stage, district courts must engage in a
rigorous analysis of the underlying facts in order to determine whether plaintiffs
have satisfied the requirements of Federal Rule of Civil Procedure 23(a) (“Rule
23(a)”). Unless otherwise noted, the following findings are taken from the Court’s
January 8, 2013 Opinion,11 familiarity with which is assumed, but which will not
9 Pl. Class Mem. at 2. 10 Id. at 1 n.1. 11 Defendants concede that “the Court has a full record from the Preliminary Injunction hearing that was recently held in this case from which to make a determination as to whether plaintiffs have met their burden with respect to the commonality and typicality prongs of Rule 23(a) in this case.” Defendants’ Memorandum of Law in Opposition to Motion for Class Certification (“Opp. Mem.”) at 5. Defendants did not have the benefit of this Court’s preliminary injunction rulings when they prepared their opposition brief, the vast majority of
4

be binding on the jury at trial.12 A. The NYPD’s Stop and Frisk Program The NYPD’s overall stop and frisk program, of which the challenged
stop and frisk program is a narrow subset, is described in great detail in the class certification ruling in Floyd v. City of New York.13 For purposes of this motion, suffice it to say that “plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx.”14
B. Evidence of Unlawful Stops The Court’s conclusion that plaintiffs will likely prove at trial that the
NYPD has a practice of making unlawful trespass stops outside of TAP buildings in the Bronx was based on five categories of evidence presented at the preliminary
which was spent rearguing the merits of the preliminary injunction motion. But this is not a motion for reconsideration and this Court’s prior factual determinations are not subject to review. Accordingly, much of defendants’ opposition to the instant motion has been mooted by the January 8, 2013 Opinion.
12 See Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.) (“IPO”), 471 F.3d 24, 42 (2d Cir. 2006).
13 See 283 F.R.D. 153, 162-67 (S.D.N.Y. 2012). 14 Ligon, 2013 WL 71800, at *2. See id. at *23, *28.
5

injunction hearing. Although each category of evidence is discussed at length in
the January 8, 2013 Opinion, the relevant evidence is summarized as follows:
(1) the testim ony of Bronx Assistant District Attorney Jeannette Rucker (“ADA Rucker”), who concluded that the NYPD frequently m ade trespass stops outside TAP buildings in the Bronx for no reason other than that the officer had seen someone enter and exit or exit the building; (2) a sample of “decline to prosecute” forms prepared by the Bronx District Attorneys’ Office, which revealed the alarming frequency of unlawful trespass stops in the vicinity of TAP buildings in the Bronx; (3) the testimony of eight plaintiffs and a non-pa rty witness, who described remarkably similar encounters with the police when stopped in the vicinity of TAP buildings in the Bronx; (4) the analysis by Dr. Jeffrey Fagan, plaintiffs’ expert, of an NYPD database of recorded stops, which provided further evidence of the frequency of apparently unlawful trespass stops outside TAP buildings in the Bronx; and (5) NYPD training materials that continue to mis state the minimal constitutional standards for making stops.15
III. LEGAL STANDARDS
A. Federal Rule of Civil Procedure 23(a)
Rule 23(a) permits individuals to sue as representatives of an
aggrieved class. To be certified, a putative class must first meet all four
prerequisites set forth in Rule 23(a), generally referred to as numerosity,
15 Id. at *2.
6

commonality, typicality, and adequacy.16 District courts have broad discretion in deciding whether to certify a proposed class under Rule 23.17 Furthermore, the Second Circuit has directed that Rule 23 “‘should be given a liberal rather than a restrictive interpretation’ in order to vindicate small federal claims.”18
“Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate [its] compliance with the Rule – that is, [it] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.”19 Plaintiffs seeking class certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in Rule 23(a).20

16 See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008) (“Teamsters”). In full, Rule 23(a) reads: “Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

17
2003).

See Parker v. Time Warner Entm’t Co. L.P., 331 F.3d 13, 28 (2d Cir.

18 Zahn v. International Paper Co., 469 F.2d 1033, 1035 (2d Cir. 1972) (quoting Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968)).

19 Wal-Mart Stores, Inc. v. Dukes (“Wal-Mart”), 131 S. Ct. 2541, 2551 (2011) (emphasis in original).

20 See Teamsters, 546 F.3d at 202.

7

When assessing whether plaintiffs have met this burden, courts must take into account “all of the relevant evidence admitted at the class certification stage.”21 A court may certify a class only after determining that “whatever underlying facts are relevant to a particular Rule 23 requirement have been established.”22 This rigorous analysis requires examining the facts of the dispute, not merely the pleadings, and it will frequently “entail some overlap with the merits of the plaintiff’s underlying claim.”23
Even before the Supreme Court articulated this standard in the WalMart decision, the Second Circuit had “required district courts ‘to assess all of the relevant evidence admitted at the class certification stage’” and to apply “the preponderance of the evidence standard” when resolving factual disputes relevant to each of the Rule 23 requirements.24 At the class certification stage, “a district judge should not assess any aspect of the merits unrelated to a Rule 23
21 IPO, 471 F.3d at 42. 22 Id. at 41. 23 Wal-Mart, 131 S. Ct. at 2551. “Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation.” Id. at 2552. 24 Teamsters, 546 F.3d at 202 (quoting IPO, 471 F.3d at 42).
8

requirement.”25 The court’s “determination as to a Rule 23 requirement is made only for purposes of class certification and is not binding on the trier of facts, even if that trier is the class certification judge.”26
1. Numerosity Rule 23(a)(1) requires that a class be “so numerous that joinder of all members is impracticable.” In the Second Circuit, sufficient numerosity can be presumed at a level of forty members or more.27 “The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible – only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.”28 Courts do not require “evidence of exact class size or identity of class members to satisfy the numerosity requirement.”29
25 Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 251 (2d Cir. 2011) (quotation marks and citation omitted). Courts must ensure “that a class certification motion does not become a pretext for a partial trial of the merits.” IPO, 471 F.3d at 41.
26 IPO, 471 F.3d at 41. 27 See Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995) (holding that “numerosity is presumed at a level of 40 members”). 28 Central States Se. & Sw. Areas Health & Welfare Fund v. MerckMedco Managed Care, LLC, 504 F.3d 229, 244-45 (2d Cir. 2007). 29 Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
9

2. Commonality Rule 23(a)(2) requires that there be “questions of law or fact common to the class.” Commonality thus requires plaintiffs “to demonstrate that the class members ‘have suffered the same injury.’”30 Commonality further requires that the claims asserted “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”31 In Wal-Mart, plaintiffs sought to certify a class of approximately a million and a half female employees of the retail giant, alleging that “the discretion exercised by their local supervisors over pay and promotion violates Title VII by discriminating against women.”32 The Supreme Court found that the plaintiffs had failed to satisfy commonality because the putative class members were subjected to an enormous array of different employment practices: Pay and prom otion decisions at Wal-Mart are generally committed to local m anagers’ broad discretion . . . . Local store m anagers may [make
30 Wal-Mart, 131 S. Ct. at 2551 (quoting General Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)).
31 Id. 32 Id. at 2547.
10

wage decisions] with only lim ited corporate oversight . . . . Wal-Marthas no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of perm itting discretionary decisionmaking is to avoid evaluating employees under a common standard . . . . Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’ – m uch less one that ties all their 1.5 million claims together.33
3. Typicality
“Typicality ‘requires that the claims of the class representatives be
typical of those of the class, and is satisfied when each class member’s claim arises
from the same course of events[] and each class member makes similar legal
arguments to prove the defendant’s liability.’”34 Rather than focusing on the
precise nature of plaintiffs’ injuries, the typicality requirement may be satisfied
where “injuries derive from a unitary course of conduct by a single system.”35
The purpose of typicality is to ensure that class representatives “have
the incentive to prove all the elements of the cause of action which would be
presented by the individual members of the class were they initiating
33 Id. at 2547, 2553, 2555. 34 Central States, 504 F.3d at 245 (quoting Robinson v. Metro-N. Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001)). 35 Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997).
11

individualized actions.”36 A lack of typicality may be found in cases where the named plaintiff “was not harmed by the [conduct] he alleges to have injured the class”37 or the named plaintiff’s claim is subject to “specific factual defenses” atypical of the class.38
4. Adequacy “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.”39 Thus, the question of adequacy “entails inquiry as to whether: 1) plaintiffs’ interests are antagonistic to the interest of other members of the class and 2) plaintiffs’ attorneys are qualified, experienced and able to conduct the litigation.”40 In order to defeat a motion for certification, any conflicts between the class representative and members of the

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

37
2006).

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

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

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

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

12

putative class must be “fundamental.”41 5. Implied Requirement of Ascertainability Some courts have added an “implied requirement of ascertainability”42
to the express requirements of Rule 23(a). These courts have refused to certify a class “unless the class description is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member.”43 However, where the primary relief sought is injunctive rather than compensatory, as here, “it is not clear that the implied requirement of definiteness should apply to Rule 23(b)(2) class actions at all.”44
B. Federal Rule of Civil Procedure 23(b)(2) If the requirements of Rule 23(a) are met, the court “must next
determine whether the class can be maintained under any one of the three subdivisions of Rule 23(b).”45 Plaintiffs seek certification under Federal Rule of

41
2009).

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

42 IPO, 471 F.3d at 30.

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

44 William B. Rubenstein et al., Newberg on Class Actions § 3:7 at 1172 (2011).

45
2008).

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

13

Civil Procedure 23(b)(2) (“Rule 23(b)(2)”). To certify a class under Rule 23(b)(2),
plaintiffs must show that defendants “acted or refused to act on grounds that apply
generally to the class, so that final injunctive relief or corresponding declaratory
relief is appropriate respecting the class as a whole.” As the Supreme Court
explained in Wal-Mart, Rule 23(b)(2) is intended to cover cases such as this one:
When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.46
IV. DISCUSSION
A. Plaintiffs Have Standing to Seek Injunctive Relief
Article III of the Constitution requires that a federal court entertain a
lawsuit only if the plaintiffs have standing to pursue the relief that they seek.
Concrete injury is a prerequisite to standing and a “plaintiff seeking injunctive or
declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.”47
46 131 S. Ct. at 2558. Accord Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) class actions).
47 Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105-06 (1983)).
14

The Supreme Court emphasized this requirement in City of Los Angeles v. Lyons, when it held that Lyons, who had been subjected to a dangerous chokehold by a Los Angeles police officer, did not have standing to pursue an injunction against the police department’s practice of using chokeholds because his past injury “does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.”48
Defendants argue that plaintiffs lack standing because “no plaintiff can demonstrate more than one past improper stop of the type raised by plaintiffs upon this motion and only two plaintiffs, Abdullah Turner and Letitia Ledan, even testified to two incidents. . . . [N]either of these plaintiffs can demonstrate the requisite two or more improper stops of the type raised by plaintiffs upon their motion.”49 The issue of standing was addressed in the January 8, 2013 Opinion, which states in relevant part:
Abdullah Turner . . . testified to two specific unlawful trespass stops outside TAP buildings in the Bronx, and J.G. and Jovan Jefferson both referred to having been stopped multiple times outside TAP buildings. . . . Turner has lived
48 Lyons, 461 U.S. at 105. 49 Opp. Mem. at 25.
15

since 2008 in a TAP building,where, based on the evidence presented at the hearing, he will likely be the target of future unlawful stops – if suchstops continue to take place as they have in the past. This is sufficient to confer standing on plaintiffs.50
“The possibility of recurring injury ceases to be speculative when actual repeated
incidents are documented.”51 Furthermore, the frequency of alleged injuries
inflicted by the practice at issue here creates a likelihood of future injury sufficient
to address any standing concerns.52 In the face of the NYPD’s widespread
practices outside of TAP buildings, Turner’s risk of future injury is “‘real and
immediate,’ not ‘conjectural’ or ‘hypothetical.’”53 Because Turner satisfies the
50 Ligon, 2013 WL 71800, at *27 (footnotes omitted). See also Ligon, 2013 WL 227654, at *3 n.24 (reaffirming that Turner’s second police encounter rose to the level of a Terry stop).
51 Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985). Accord Aguilar v. Immigration & Customs Enforcement Div. of the U.S. Dep’t of Homeland Sec., 811 F. Supp. 2d 803, 828 (S.D.N.Y. 2011) (finding standing in a case where one set of plaintiffs had allegedly been subject to two unlawful searches and other plaintiffs feared repeat injury because the searches were part of defendants’ “condoned, widespread, and ongoing” practice).
52 See Ligon, 2013 WL 71800, at *27 n.317 (stating that “in light of the frequency of unlawful trespass stops outside TAP buildings in the Bronx, even those plaintiffs who have only been subjected to such a stop one time would likely have standing, provided that they continue to live in or visit TAP buildings”); National Cong. for Puerto Rican Rights by Perez v. City of New York, 75 F. Supp. 2d 154, 161 (S.D.N.Y. 1999) (later renamed “Daniels”).
53 Lyons, 461 U.S. at 102.
16

Article III standing requirements, I need not consider the standing of the other
plaintiffs.54
B. Plaintiffs Satisfy the Four Prerequisites of Rule 23(a)
1. Commonality and Typicality
In practice, the “commonality and typicality requirements of Rule
23(a) tend to merge.”55 Accordingly, defendants address the commonality and
typicality requirements together.56 Defendants’ sole argument is that plaintiffs do
not meet the commonality and typicality requirements because they have not
proven that an “unconstitutional custom or practice of the City actually exists with
respect to stops outdoors of [TAP] enrolled buildings where trespass is the
suspected crime.”57 In the January 8, 2013 Opinion, I ruled that “plaintiffs offered
54 See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006) (noting that “[t]he Court of Appeals did not determine whether the other plaintiffs have standing because the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.”).
55 Wal–Mart, 131 S. Ct. at 2551 n.5. Accord Marisol A., 126 F.3d at 376 (stating that commonality and typicality “tend to merge into one another, so that similar considerations animate analysis of Rules 23(a)(2) and (3)”).
56 Defendants did not have the advantage of this Court’s rulings with regard to the preliminary injunction motion when they filed their opposition brief.
57 See Opp. Mem. at 5 (“Defendants assert that based on the following evidence adduced at the PI hearing, plaintiffs have not met their burden with respect to the existence of an unconstitutional practice, therefore . . . their motion for class certification must be denied since there is no ‘glue’ to unify the claims of
17

more than enough evidence at the hearing to support the conclusion that they have
shown a clear likelihood of proving at trial that the NYPD has a practice of making
unlawful trespass stops outside of TAP buildings in the Bronx[.]”58 For purposes
of class certification, therefore, plaintiffs have adequately established the
likelihood of an unconstitutional stop and frisk practice on the part of the NYPD.59
In sum, plaintiffs and the putative class members were allegedly
subjected to the same unlawful conduct by NYPD officers under the auspices of a
single NYPD program: unjustified Terry stops, not supported by reasonable
suspicion, occurring outdoors in the vicinity of TAP buildings in the Bronx on
suspicion of trespass. Thus, plaintiffs readily meet the commonality requirement
the named plaintiffs with the putative class, as well as the claims of the class representatives themselves[.]”).
58 Ligon, 2013 Wl 71800, at *28. 59 Plaintiffs do not have the burden of proving the existence of an unconstitutional practice or custom at the class certification stage. They do, however, have the burden of proving the existence of common factual and legal issues. See Mitchell v. County of Clinton, No. 8:06-CV-00254, 2007 WL 1988716, at *2 (N.D.N.Y. July 5, 2007) (“Plaintiff has shown the existence of legal and factual issues common to all proposed members of the proposed class, i.e., what strip search policy and practice existed, whether the policy and/or practice were unconstitutional, and whether some or all of the defendants are liable.”); Barnes v. District of Columbia, 242 F.R.D. 113, 122 (D.D.C. 2007) (“The same common questions . . . are present in this case and satisfy the commonality requirement, such as whether the overdetention and strip search practices were municipal policies and whether either violated the Constitution.”).
18

as described in Wal-Mart – i.e., the plaintiffs’ claims and the class member claims
“depend upon a common contention . . . of such a nature that it is capable of
classwide resolution – which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.”60 Furthermore, because the experiences of the named plaintiffs are
identical to those of the proposed class, the typicality requirement is also met.61
60 Wal-Mart, 131 S. Ct. at 2551. Since Wal-Mart, at least three district courts have granted class certification in cases alleging constitutional violations due to a police department’s policy and/or practice of making unlawful stops and arrests. See Stinson v. City of New York, 282 F.R.D. 360, 363 (S.D.N.Y. 2012) (“Plaintiffs allege that the NYPD is engaged in a widespread pattern and practice of issuing summonses to individuals without probable cause and that NYPD officers are explicitly instructed to issue summonses regardless of whether any crime or violation has occurred in order to meet a minimum quota requirement set forth by the NYPD.”); Ortega-Melendres v. Arpaio, No. 07 Civ. 2513, 2011 WL 6740711, at *19 (D. Ariz. Dec. 23, 2011) (certifying class of Latino motorists alleging racial profiling and finding that differences in subjective motivations of officers do not defeat commonality or typicality when there is evidence of a departmental policy of violating constitutional rights); Morrow v. City of Tenaha, No. 08 Civ. 288, 2011 WL 3847985, at *192-94 (E.D. Tex. Aug. 29, 2011) (certifying class of Latinos who were stopped for alleged traffic violations and finding commonality in light of statistical evidence showing significant increases in the number of minorities stopped after the adoption of a new police policy).
61 See Stinson, 282 F.R.D. at 371 (finding typicality requirement met where claims of named plaintiffs and class members stemmed from a “sole theory of liability” regarding a particular NYPD practice).
19

2. Numerosity In conclusory fashion, defendants argue that “[i]n the absence of commonality and typicality, plaintiffs cannot establish numerosity either.”62 As Dr. Fagan’s testimony clearly establishes, the number of class members will run into the hundreds, if not thousands. Plaintiffs have therefore satisfied numerosity. 3. Adequacy Defendants argue that plaintiffs fail to meet the adequacy requirement because “[t]here are several unique defenses to the named plaintiffs’ claims that defendants submit will defeat said claims and will subsume this litigation concerning said claims, i.e., the failure to specify the dates of incident and identify the officers involved, as well as in some cases whether the purported stop was even for trespass or outside of the premises of TAP enrolled buildings.”63 Defendants’ argument is unavailing for several reasons. First, “courts and juries must always consider defendants’ individual defenses before determining liability. That is no bar at the certification stage.”64 “In practice, courts in this Circuit . . . [refuse] certification only when confronted with a sufficiently clear showing” that a defense
62 Opp. Mem. at 23. 63 Id. at 24. 64 Floyd, 283 F.R.D. at 175-76.
20

unique to the representative plaintiff’s claims will in fact defeat those claims.65
Second, the doctrine of unique defenses is intended to protect absent members of the plaintiff class by ensuring the presence of a typical plaintiff.66 The
doctrine is not meant to protect defendants by permitting them to defeat class
certification because the facts raised by the claims of the named plaintiffs are not
identical to the facts raised by the claims of all putative class members. Because
the named plaintiffs’ claims arise from the same practice and same general set of
facts as do the claims of the putative class members, the adequacy prong is satisfied.67
65 In re Omnicom Grp., Inc. Sec. Litig., No. 02 Civ. 4483, 2007 WL 1280640, at *4 (S.D.N.Y. Apr. 30, 2007) (explaining that the court “need not deny certification merely because of the presence of a colorable unique defense”).
66 “‘The unique defense rule, however, is not rigidly applied in this Circuit,’ and is ‘intended to protect [the] plaintiff class – not to shield defendants from a potentially meritorious suit.’” Duling v. Gristede’s Operating Corp., 267 F.R.D. 86, 97 (S.D.N.Y. 2010) (quoting In re NYSE Specialists Sec. Litig., 260 F.R.D. 55, 71 (S.D.N.Y. 2009) (alteration in original)). Accord Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982) (“If . . . defendants were arguing that a district court must determine whether the named plaintiffs have a meritorious claim before they can be certified as class representatives, they would plainly be wrong.”).
67 See Central States, 504 F.3d at 245; Daniels, 198 F.R.D. at 419.
21

4. Ascertainability Rule 23 does not demand ascertainability. The requirement is a judicial creation meant to ensure that class definitions are workable when members of the class will be entitled to damages or require notice for another reason.68 Defendants oppose class certification on the basis of ascertainability for three reasons: “first, plaintiffs’ definition is so vague, particularly the portion that reads, ‘all individuals who have been or are at risk of being stopped outdoors without legal justification . . .,’ that it can never be determined who is a class member. Second, should the Court determine that the size of the class affects the relief sought, the proposed definition could be important. Third, mini-trials would be required to determine who is properly a class member.”69 I agree that the class definition, as proposed, is too vague to enable a proper determination of who is a class member. In certifying the class, the class definition must be amended as follows: All individuals who have been or are at risk of being stopped outdoors within the vicinity of Bronx apartment buildings enrolled in the NYPD’s Trespass Affidavit Program (commonly referred to as “Operation Clean Halls”) without legal justification by NYPD officers on
68 See IPO, 471 F.3d at 30. 69 Opp. Mem. at 25.
22

suspicion of trespassing in said buildings.70 While this Court need not tarry long with the question of ascertainability, the general demarcations of the proposed class – those people unlawfully stopped or who may be stopped by the NYPD outside of TAP buildings in the Bronx – are clear enough to make the proposed class sufficiently ascertainable for purpose of Rule 23(b)(2).
C. Rule 23(b)(2) Defendants oppose certification under Rule 23(b)(2) on the same
ground raised with regard to commonality and typicality, namely, “[b]ecause plaintiffs have not met their burden of demonstrating an unlawful custom or practice as alleged, they cannot demonstrate that the City ‘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.’”71 Because this argument failed with respect to commonality and typicality, it cannot bar certification under Rule 23(b)(2). In any event, as noted above, the Supreme Court explained in Wal-Mart that Rule 23(b)(2) is intended to cover cases such as this one:
70 See Pl. Class Mem. at 2 (emphasis added). 71 Opp. Mem. at 24 (quoting Fed. R. Civ. P. 23(b)(2)).
23

When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. 72
In sum, because plaintiffs have met the requirements of Rule 23(a) and (b)(2), I
hereby certify the proposed class, as modified above.
v. CONCLUSION
Because plaintiffs have satisfied the requirements of Rule 23, their
motion for class certification solely for the purpose of preliminary injunctive relief
is granted. The Clerk of the Court is directed to close this motion [Docket Entry #
67].

Dated:

New York, New York February 11, 2013

72 Wal-Mart, 131 S. Ct. at 2558. Accord Amchem Prods., 521 U.S. at 614 ("Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of Rule 23(b)(2) class actions).
24

No Appearance Sheet Needed - ECF will send Opinion automatically to all attorneys
25

Ligon et al v. City of New York et al, Docket No. 1:12-cv-02274 (S.D.N.Y. Mar 28, 2012), Court Docket
General Information

Case Name Docket Number Court
Nature of Suit Related Opinion(s)

Ligon et al v. City of New York et al
1:12-cv-02274
United States District Court for the Southern District of New York
Civil Rights: Other
2012 BL 143828 2012 BL 211720 2013 BL 5354 2013 BL 36166 2013 BL 19549 2013 BL 38841

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6M6C124O2? documentName=143.pdf&amp;fmt=pdf

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

MANDATE

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

United States Court of Appeals
FOR THE
SECOND CIRCUIT

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

Present:

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

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

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________ _____________________________________

David Floyd, et al.,

Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________

13-3123 13-3088

MANDATE ISSUED ON 10/31/2013

Case: 13-3088 Document: 243 Page: 2 10/31/2013 1080946 3
Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction (“Remedies Opinion”).
It is hereby ORDERED that the District Court’s January 8, 2013 “Opinion and Order,” as well as the August 12, 2013 “Liability Opinion” and “Remedies Opinion,” each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals.
The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:
Defendants shall perfect their appeals by January 24, 2014.
Plaintiffs shall file by February 28, 2014.
Defendants shall reply by March 14, 2014.
Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course.
The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of partiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media
1 In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case
2

Case: 13-3088 Document: 243 Page: 3 10/31/2013 1080946 3
interviews and public statements purporting to respond publicly to criticism of the District Court.2
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.
The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.
In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
2 See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.
3

 
 Case: 13-3088 Document: 251-1 Page: 3 11/06/2013 1086018 17
UNITED STATES COURT OF APPEALS for the
Second Circuit

In reOrder of Removal of District Judge

Jaenean Ligon, et al.,
v.

Plaintiffs-Appellees

City ofNew York, et al., Defendants-Appellants

13-3123 (Corrected)

David Floyd, et. al.,
v.

Plaintiffs-Appellees

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

13-3088

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

1

Case: 13-3088 Document: 251-1 Page: 4 11/06/2013 1086018 17
(13-3088), and Jaenean Ligon, et al. v. City ofNew York et al. (13-3123) (corrected), and found that the District Judge "ran afoul" ofthe Code of Conduct for United States Judges. A copy of the Motion Panel's ruling is annexed hereto as Exhibit 1.
This motion is brought pursuant to Rules 21(b)(4), 27, and 29 ofthe Federal Rules of Appellate Procedure; 28l.J.S.C .§ 2106; 28 U.S.C. § 1651 (the All Writs Act); and the First and Fifth Amendments to the Constitution of the United States.
Counsel seek leave in the nature of an order under Rule 21 (b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel's sua sponte order of removal.
The undersigned are prepared to appear as counsel for Judge Scheindlin, or as amici curiae on her behalf, in accordance with the wishes of the court.
In support of the motion, counsel state: 1. The District Judge has served with distinction as a trial judge in the
Southern District of New York since November, 1994. 2. From March 18, 2013 to May 20, 2013, the District Judge presided over
an extensive trial in David Floyd, et al. v. City ofNew York (13-3088);
2

Case: 13-3088 Document: 251-1 Page: 5 11/06/2013 1086018 17
challenging the constitutionality of certain "stop and frisk" practices engaged in by the New York City Police Department (''NYPD") that were alleged to violate the Fourth Amendment's prohibition on unreasonable searches and seizures and the Fourteenth Amendment's guaranty of equal protection of the laws. 3. From October 15, 2012 to November 7, 2012, the District Judge presided over a hearing on a motion for preliminary injunction in Jaenean Ligon, et al. v. City ofNew York, et al. (13-3123) (corrected), seeking injunctive relief against allegedly unlawful "stop and frisk" practices engaged in by theNYPD. 4. At no point during the extensive trial in Floyd, the hearing on injunctive relief in Ligon, or during the proceedings that preceded the hearings in either case, did any party seek the disqualification of the District Judge, by recusal or otherwise, or claim that she had violated any Canon of the Code of Conduct for United States Judges; nor did any party raise an objection under Local Rule 13 Governing the Distribution of Business Among District Judges. A copy of Local Rule 13 is annexed hereto as Exhibit 2. 5. On August 12, 2013, the District Judge issued a lengthy and detailed opinion holding that the "stop and frisk" practices before the Court
3

Case: 13-3088 Document: 251-1 Page: 6 11/06/2013 1086018 17
violated the Fourth and Fourteenth Amendments to the United States Constitution. 6. On August 12, 2013, the District Judge issued an order concerning remedies in connection with the NYPD's unconstitutional "stop and frisk" practices. 7. New York City filed an appeal from the District Court's orders on August 16, 2013. On August 27, 2013, New York City moved in the District Court for a stay by letter motion, which was denied by the District Court on September 17, 2013. 8. At no point during the post-trial motion for a stay in the District Court did any party seek the disqualification of the District Judge on any grounds, or allege that she had "run afoul" of any Canon of the Code of Conduct for United States Judges. 9. On October 29, 2013, New York City's application for a stay was argued before a motion panel of this Court, consisting ofHon. John M. Walker, Jr., Hon. Jose Cabranes, and Hon. Barrington D. Parker, Jr. (hereafter "the Motion Panel"). 10. At no point during the oral argument before the Motion Panel did any party seek the disqualification of the District Judge, or allege that she had "run afoul" of a Canon of the Code of Conduct for United States Judges.
4

Case: 13-3088 Document: 251-1 Page: 7 11/06/2013 1086018 17
When one member of the Motion Panel (Judge Cabranes) sua sponte raised the District Court's colloquy with counsel concerning Local Rule 13, and her interviews with the press, neither party responded with a suggestion of disqualification, or an allegation that the Canons of the Code of Conduct for United States Judges had been breached. 11. On October 31, 2013, the Motion Panel issued an order staying enforcement of the District Court's August 12, 2013 orders pending resolution ofNew York City's appeal on the merits. The Motion Panel directed, in the name of judicial efficiency, that the appeal be heard by the same three judges who constituted the Motion Panel, rather than by random assignment. See Exhibit 1. 12. In addition to the grant of a stay, the Motion Panel issued a sua sponte order directing the removal of the District Judge, purporting, without affording the District Judge notice or an opportunity to defend herself, to find that the District Judge had "run afoul" of Canons 2 and 3(C)(l) of Code of Conduct for United States Judges. A copy of the Code of Conduct for United States Judges is annexed hereto as Exhibit 3. 13.With respect, the undersigned counsel believe that the Motion Panel's sua sponte order of removal raises troubling issues warranting
5

Case: 13-3088 Document: 251-1 Page: 8 11/06/2013 1086018 17
reconsideration by the Motion Panel, or in the alternative, en bane review by the full Circuit, on both substantive and procedural grounds.
A. The Motion Panel's Sua Sponte Order Was Procedurally Deficient 14. The Motion Panel's sua sponte order directing removal of the District Judge for "running afoul" of Canons 2 and 3(C)(1) of the Code of Conduct for United States Judges is the functional equivalent of a judicial finding that the District Judge behaved improperly. 15. Unlike United States v. The City ofNew York, No. 11-5113-cv (May 14, 2013), where the Circuit panel praised the District Judge, but remanded a portion of the case to a new judge to hold a bench trial because the trial judge's earlier negative characterization of the evidence might raise an appearance of a lack of neutrality, the Motion Panel's order of removal in this case rested on allegations ofjudicial misbehavior. 16. Rule 21 ofthe Federal Rules of Appellate Procedure carefully assures that where a district judge is charged with conduct amounting to judicial misbehavior, the judge will receive notice of the allegations pending before a Circuit court, and an opportunity to seek leave to be heard. 17. In the vast bulk of cases, requests for the disqualification of a District Judge are raised by a motion to disqualify in the trial court pursuant to 28
6

Case: 13-3088 Document: 251-1 Page: 9 11/06/2013 1086018 17
a U.S.C. §§ 455(a) and (b). Because denial of such a motion is not final
order, appellate review of an order denying a motion to disqualify is available in every Circuit pursuant to Rule 21 F.R.App. Proc., and 28 U.S.C § 1651 (the All Writs Act). See Hearings on Examining the State ofJudicial Recusal after Caperton v. A.T. Massey: Hearings before the Subcommittee on Courts and Competition Policy ofthe H Comm. on the Judiciary, 111 Cong. (2009). 18. In connection with such a Rule 21 proceeding, Rule 21(b)(4) authorizes a district judge to request permission from the Court of Appeals to address the allegations contained in the mandamus petition; or, in the alternative, to request the Circuit to invite an amicus curiae to address legal and factual issues posed by the application for a writ of mandamus. 19. Counsel understand that the practice in this Circuit is to grant a district judge's request to be heard, either in person or through amicus cu,riae, prior to issuing an order: (a) removing the judge for alleged misbehavior casting aspersions on the District Judge's judicial integrity; or (b) issuing a writ of a mandamus directing the district judge to engage in other remedial conduct. See In re German and Austrian Banking Litigation, 250 F.3d 156 (2d Cir. 2001) (authorizing the appointment of counsel to represent judge Shirley Kram in a Rule 21 mandamus proceeding);
7

Case: 13-3088 Document: 251-1 Page: 10 11/06/2013 1086018 17
Securities & Exchange Commission v. Citigroup Global Markets, 115375 (authorizing the appointment of counsel to represent Judge Jed Rakoff in mandamus proceeding involving actions pending before Judge Rakoff pursuant to the related case doctrine). 20. In this case, the Motion Panel circumvented the formal protections of Rule 21 by acting sua sponte in the absence of a request for disqualification from any of the parties. This is particularly noteworthy in light of the parties' failure to request disqualification even after Judge Cabranes' expressions of concern during oral argument. 21. Where, as here, a Circuit panel engages in sua sponte action removing a District Judge for alleged improper behavior "running afoul" of the Code of Conduct for United States Judges, the need for notice to the District Judge and an opportunity to be heard is even greater than in the ordinary Rule 21 setting. Under Rule 21, the judge will ordinarily be on notice of the charges against her. Indeed, she will have ordinarily denied a motion for disqualification. 22. Even in such a setting, Rule 21 contemplates notice to the judge and an opportunity to defend herself in the Circuit court. 23. In this case, givert the sua sponte nature of the order of removal, and the failure of any party to have sought disqualification, or asserted an alleged
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violation of the Code of Conduct for United States Judges, during the more than five years that the Floyd case was before the District Court, the District Judge was completely blind-sided by the Motion Panel's sua sponte order finding that her behavior had "run afoul" of the Code of Conduct for United States Judges. 24. In addition to Rule 21(b)(4), in analogous settings, the Federal Rules of Appellate Procedure require notice and an opportunity to be heard before a court takes adverse action. See Rule 38 F. R. App. Proc. (providing for notice and an opportunity to be heard before the imposition of appellate sanctions on a party). 25. With .respect, the Motion Panel's failure to have provided the District Judge with notice and an opportunity to defend herself was not merely a breach of the norms of collegiality and mutual respect that should characterize interactions between District and Circuit judges, it is an affront to the values underlying the Fifth Amendment's guaranty of procedural due process of law.
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B. The Motion Panel's Sua Sponte Order Summarily Removing the District Judge Was Inaccurate and Substantively Unwarranted 26. The failure to accord the District Judge notice and an opportunity to be heard resuited in a sua sponte order of removal premised on inaccurate and incorrect assumptions concerning the behavior of the District Judge. 27. The Motion Panel found that the District Judge's colloquy with plaintiffs' counsel in Daniels v. City ofNew York, No. 99 Civ. 1695 (S.D.N.Y. filed March 8, 1999) concerning "the related case doctrine" constituted an "improper application of the related case rule" rising to the level of a violation of Canons 2 and 3(C)(1) ofthe Code of Conduct of United States Judges, and warranted her summary removal. See Exhibit 1. 28. Unfortunately, the Motion Panel's inaccurate characterization of the colloquy, as misreported in a newspaper article cited by the Motion Panel, provides a misleading impression of the District Court's behavior. 29. The Motion Panel did not attach the text of the colloquy to its order. A copy of the full colloquy is annexed hereto as Exhibit 4. 30. A fair reading of the actual colloquy could not lead a reasonable person in possession of all the facts to infer bias or lack of neutrality on the part
10

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ofthe District Judge. See United States v. Jacobs, 955 F.2d 7, 10 (2d Cir. 1992); United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977) (en bane). 31. As a review of the text of the 42 page colloquy demonstrates, the discussion of Local Rule 13 dealing with the related case doctrine was in response to efforts by plaintiffs' counsel in Daniels to raise newly discovered evidence concerning the allegedly racially discriminatory nature of the NYPD's "stop and frisk" practices. 32. The District Judge firmly rebuffed efforts to interpret the settlement agreement in Daniels broadly to permit consideration of newly discovered evidence concerning racially discriminatory "stop and frisk" . practices, noting that pursuing such a course would result in a waste of the court's time and the parties' resources because the Daniels case had been settled in a manner that made it inappropriate to consider the newly discovered evidence. 33. Instead, the District Court brought Local Rule 13 to the attention. of counsel as an alternative that would achieve the desired result without wasting judicial resources. The District Judge's observation that she would accept a new case that would enable consideration of the newlydiscovered evidence applied clearly established principles designed to achieve judicial economy.
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34. Such a colloquy concerning a judicially efficient means of dealing with
)
newly discovered evidence is indistinguishable from suggestions routinely made by district judges that pleadings be amended in order to permit the efficient consideration of additional issues relevant to the underlying dispute. 35. On remand after the Motion Panel's order of removal, counsel understand that both the Floyd and Ligon cases were assigned to the same trial judge precisely because they clearly fall under Local Rule 13 as related cases. 36. The District Court's recognition that judicial economy would be .served by the invocation of the related case doctrine codified in Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy. 37. The Motion Panel alleged, as well, that the District Judge had granted three press interviews in a manner that called her neutrality into question. 38. Once again, the Motion Panel failed to attach transcripts of the press interviews to its ruling. A fair reading of the text of the three interviews, annexed hereto as Exhibits 5, 6, and 7, reveals that no reasonable person could infer bias from the District Judge's responses.
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39. In each ofthe three instances of press questioning, the District Judge explicitly refused to comment on legal issues raised in the pending litigation, and confined her responses to general discussions of constitutional law and explanations of the judicial process.
40. In one interview, the District Judge refuted an allegation circulated in the press by unlmown persons that she had granted a disproportionate number of motions to suppress in criminal cases. See Exhibit 7.
41. The District Judge pointed out the methodological inadequacy of the socalled study by noting that it dealt only with written opinions, ignoring the massive number of oral denials of suppression motions that she had issued from the bench.
42. Counsel understand that the Corporation Counsel of the City of New York appeared personally in the District Judge's chambers to apologize for the misleading assertion, and to disclaim responsibility for it.
43. Discussion of important legal issues by members of the judiciary enriches the dialogue that is crucial to public understanding of the rule of law, and is consistent with the values underlying the First Amendment.
44. Given our First Amendment tradition, the general discussion of legal issues engaged in by the District Judge in the press interviews cited by the Motion Panel cannot be deemed to "run afoul" of any Canon of the
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Code of Conduct for United States Judges, and cannot justify a sua sponte order removing her as a Judge in these proceedings. 45. Until the Motion Panel's sua sponte order directing removal, no party had questioned the District Court's conduct, had sought disqualification, or had alleged a violation of the Code of Conduct for United States Judges. 46. While sua sponte removal by an appellate court may be appropriate in a genuinely egregious case where the parties are unable to raise the issues freely, there is no basis for sua sponte appellate action in a setting where powerful litigants have declined to seek disqualification, even after the judicial conduct in question was critically described by a member of the Motion Panel during oral argument.
WHEREFORE, the undersigned counsel request leave to appear either as counsel to the District Judge, or as amici curiae on her behalf, in order to address the legal and factual issues raised by the Motion Panel's sua sponte order directing her removal in David Floyd, et al. v. City ofNew York, and Jaenean Ligon et al. v. City ofNew York, et al.
If the court deems it appropriate on the existing record, including this motion, counsel move, as well, that the order directing disqualification of
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the District Judge be vacated; or, in the alternative, be reviewed en bane by the judges of the Circuit.
Dated: November 5, 2013 New York, New York Burt Neubome (Lead Counsel of Record) Norman Dorsen Arthur R. Miller Judith Resnik Frederick A.O. Schwarz, Jr. 40 Washington Square South New York, New York 10012 (212) 998-6172 burt.neubome@nyu.edu
15

 
 UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x

JAENEAN LIGON, individually and on behalf of her minor son, J.G.; FAWN BRACY, individually and on behalf of her minor son, W.B.; JACQUELINE YATES; LETITIA LEDAN; ROSHEA JOHNSON; KIERON JOHNSON; JOVAN JEFFERSON; A.O., by his parent DINAH ADAMES; ABDULLAH TURNER; FERNANDO MORONTA; and CHARLES BRADLEY, individually and on behalf of a class of all others similarly situated,

AMENDED 
 OPINION & ORDER 

12 Civ. 2274 (SAS) 


Plain tiffs,

- against ­

CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; POLICE OFFICER JOHNNY BLASINI; POLICE OFFICER GREGORY LOMANGINO; POLICE OFFICER JOSEPH KOCH; POLICE OFFICER KIERON RAMDEEN; POLICE OFFICER JOSEPH BERMUDEZ; POLICE OFFICER MIGUEL SANTIAGO; and POLICE OFFICERS JOHN DOE 1-12,

Defendants.
x 


I. INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION. . . . . . . . . . . 10
III. APPLICABLE LAW.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. Sources of Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 B. The Fourth Amendment, Stops, and Reasonable Suspicion. . . . . . . . 16 C. Criminal Trespass under New York State Law.. . . . . . . . . . . . . . . . . 20 D. De Bour. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
IV. FINDINGS OF FACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. Evidence of an Unconstitutional Practice or Custom of the NYPD. . 23
1. Findings of Fact Regarding Testimony of ADA Rucker and Decline to Prosecute Forms. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. Findings of Fact Regarding Plaintiffs’ Stops. . . . . . . . . . . . . . 32 a. Charles Bradley’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 35 b. Abdullah Turner’s Stops.. . . . . . . . . . . . . . . . . . . . . . . . 41 c. J.G.’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 d. Jerome Grant’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 e. Roshea Johnson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 54 f. Letitia Ledan’s Stops. . . . . . . . . . . . . . . . . . . . . . . . . . . 57 g. Fernando Moronta’s Stop. . . . . . . . . . . . . . . . . . . . . . . . 61 h. Kieron Johnson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 62 i. Jovan Jefferson’s Stop. . . . . . . . . . . . . . . . . . . . . . . . . . 64
3. Expert Testimony Regarding UF-250 Forms. . . . . . . . . . . . . . 67
B. Steps Taken by the NYPD in 2012. . . . . . . . . . . . . . . . . . . . . . . . . . . 82
1. NYPD Recognition of a Problem in TAP.. . . . . . . . . . . . . . . . 84 2. Interim Orders 22 and 23 of 2012.. . . . . . . . . . . . . . . . . . . . . . 85 3. Absence of Steps Meaningfully Addressing Outdoor TAP
Stops. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
V. DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
2

A. Standing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 B. Preliminary Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
1. Clear or Substantial Likelihood of Success on the Merits. . . . 97 a. Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . 98 i. ADA Rucker’s Testimony. . . . . . . . . . . . . . . . . . 98 ii. Plaintiffs’ Stops. . . . . . . . . . . . . . . . . . . . . . . . . . 99 iii. Decline to Prosecute Forms. . . . . . . . . . . . . . . . 104 iv. Dr. Fagan’s Analysis. . . . . . . . . . . . . . . . . . . . . 107 v. Notice to Defendants. . . . . . . . . . . . . . . . . . . . . 117 vi. Legal Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . 118 b. Failure to Rebut Deliberate Indifference Claim Based on Steps Taken by NYPD in 2012.. . . . . . . . . . . . . . . . . . 121
2. Irreparable Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 3. Balance of Equities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 4. Public Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
C. Appropriate Scope of Injunctive Relief.. . . . . . . . . . . . . . . . . . . . . . 141
1. Immediate Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 2. Proposed Additional Relief.. . . . . . . . . . . . . . . . . . . . . . . . . . 144
a. Policies and Procedures. . . . . . . . . . . . . . . . . . . . . . . . 146 b. Supervision. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 c. Training. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 d. Attorneys’ Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
VI. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
APPENDIX B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
3

SHIRA A. SCHEINDLIN, U.S.D.J.:
I. INTRODUCTION
This case, filed in 2012, is one of three cases currently before this
Court challenging aspects of the New York City Police Department’s “stop and
frisk” practices.1 Of the three cases, this case is the most narrow. It deals only
with stops made by the police on suspicion of trespass outside of certain privately-
owned buildings in the Bronx. But the legal issues raised by this case have roots
that stretch back decades.
In 1964, New York adopted the first version of its stop and frisk law,
which has since been amended several times. The essence of the law is that a
police officer may stop a person in a public place when he reasonably suspects that
such person is committing, has committed, or is about to commit a crime, and the
1 Floyd v. City of New York, filed in 2008, challenges the NYPD’s stop and frisk practices in general, arguing among other things that the NYPD is systematically violating the rights of New York City’s residents and visitors under the Fourth Amendment to be free from unreasonable searches, and under the Fourteenth Amendment to be free from discrimination on the basis of race. See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012) (granting class certification). Davis v. City of New York, filed in 2010, focuses on stop and frisk practices at public housing properties run by the New York City Housing Authority (“NYCHA”). Plaintiffs in Davis argue that the NYPD uses unlawful stops, searches, and arrests to enforce the prohibitions against trespassing on public housing property. See Davis v. City of New York, — F. Supp. 2d —, 2012 WL 4813837, at *1 (S.D.N.Y. Oct. 9, 2012) (granting in part and denying in part defendants’ motions for summary judgment regarding individual plaintiffs’ arrests and tenancies).
4

officer may demand of him his name, his address, and an explanation of his conduct. Upon stopping a person, if the police officer reasonably suspects that he is in danger of physical injury, he may search the person for a deadly weapon.2
This law and the policing practices associated with it have raised a host of difficult questions, including: (1) what is reasonable suspicion; (2) what constitutes a stop; (3) what is a public place; (4) when is a stopped person free to walk away from the police; and (5) when does an officer have grounds to reasonably suspect that he is danger of physical injury. None of these questions are easily answered.
In 1968, the United States Supreme Court heard a challenge to New York’s stop and frisk statute in the context of two criminal convictions, and made some important points that bear repeating today.3 First, the Court held that although states may develop their own laws on stop and frisk, they may not “authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.”4 The Court stated, in no

2 See generally New York Criminal Procedure Law (“CPL”) § 140.50.

3 See generally Sibron v. State of New York, 392 U.S. 40 (1968) (reversing conviction for failure to suppress evidence seized in an unlawful stop, and affirming conviction in a related appeal, finding that the seizure in latter case was reasonable under the Fourth Amendment).

4

Id. at 61.

5

uncertain terms, that the question is not whether a particular search was authorized by state law but “‘whether the search was reasonable under the Fourth Amendment.’”5 Second, the Court held that it would not judge the constitutionality of the New York statute on its face, but rather as applied to the particular facts of the two cases it was reviewing.6 Third, the Court stressed that a police officer must have reasonable grounds before he seizes a person. In that regard the Court stated: “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries.”7
In confronting the issues addressed in this Opinion, I am keenly aware that this Court does not stand in the shoes of the Police Department and is in no way qualified or empowered to engage in policy determinations. The sole role of the Court is to interpret and apply the law — in this case the Fourth Amendment of the United States Constitution as interpreted by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit — to the
5 Id. (quoting Cooper v. State of California, 386 U.S. 58, 61 (1967)). 6 See id. (“Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.”). 7 Id. The Court continued: “Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Id.
6

specific facts before it. I have endeavored faithfully to carry out that limited role. My object here is only to clarify what the law permits — and does not permit — an officer to do when initiating and conducting a stop or stop and frisk of people in the public areas outside of certain privately owned buildings in the Bronx.
Plaintiffs, all of whom are African-American or Latino residents of New York,8 argue that the Police Department has a widespread practice of making unlawful stops on suspicion of trespass outside buildings in the Bronx that are enrolled in the Trespass Affidavit Program (“TAP”), which was formerly known in the Bronx as Operation Clean Halls.9 This program allows “police officers to patrol inside and around thousands of private residential apartment buildings throughout New York City.”10 Plaintiffs argue that the NYPD’s trespass stops outside TAP buildings are often made without reasonable suspicion, and thus
8 See Complaint ¶¶ 11–23. 9 See Ligon v. City of New York, No. 12 Civ. 2274, 2012 WL 3597066, at *1 (S.D.N.Y. Aug. 21, 2012) (allowing preliminary injunction hearing to proceed). For the history of TAP, see infra Part IV.B. Plaintiffs’ Complaint concerns stops in and around TAP buildings throughout New York City, but plaintiffs’ motion for preliminary injunction focuses solely on outside stops in the Bronx. See Ligon, 2012 WL 3597066, at *3–4; Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification (“Class Mem.”) at 1 n.1. 10 See Ligon, 2012 WL 3597066, at *1.
7

violate the Fourth Amendment.11 Plaintiffs stated that such stops have caused them to feel “violated,”12 “disrespected,”13 “angry,”14 and “defenseless.”15 As the Supreme Court noted in Terry v. Ohio, even limited stops and searches represent “an annoying, frightening, and perhaps humiliating experience,”16 and thus must be based on reasonable suspicion.
On September 24, 2012, plaintiffs filed a motion for a preliminary injunction, seeking an order requiring the NYPD to create and implement new policies, training programs, and monitoring and supervisory procedures that specifically address the problem of unconstitutional trespass stops outside TAP buildings.17 The preliminary injunction hearing took place between October 15 and November 7, 2012.18 This Opinion addresses plaintiffs’ motion.
11 See Plaintiffs’ Revised Proposed Findings of Fact and Conclusions of Law (“Pl. Findings”) ¶¶ 64–67, 69–70.
12 Transcript of Preliminary Injunction Hearing (“Tr.”) 10/16 at 275:8. 13 Id. at 349:1. 14 Tr. 10/17 at 444:2. 15 Id. at 486:1. 16 392 U.S. 1, 25 (1968). 17 See Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction at 21; Pl. Findings ¶¶ 72–75. 18 See Tr. 10/15 at 1; Tr. 11/7 at 1282.
8

I begin by summarizing the relevant legal standards, then state my findings of fact and conclusions of law. Based on all the evidence presented at the hearing, I conclude that plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx. This conclusion is based on five categories of evidence, briefly summarized here and fully explored below: (1) the testimony of Bronx Assistant District Attorney Jeannette Rucker (“ADA Rucker”), who concluded that the NYPD frequently made trespass stops outside TAP buildings in the Bronx for no reason other than that the officer had seen someone enter and exit or exit the building; (2) a sample of “decline to prosecute” forms prepared by the Bronx District Attorneys’ Office, which revealed the alarming frequency of unlawful trespass stops in the vicinity of TAP buildings in the Bronx; (3) the testimony of eight plaintiffs and a non-party witness, who described remarkably similar encounters with the police when stopped in the vicinity of TAP buildings in the Bronx; (4) the analysis by Dr. Jeffrey Fagan, plaintiffs’ expert, of an NYPD database of recorded stops, which provided further evidence of the frequency of apparently unlawful trespass stops outside TAP buildings in the Bronx; and (5) NYPD training materials that continue to misstate the minimal constitutional standards for making stops.
9

In sum, while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat.19 In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.
As a result, plaintiffs are entitled to a preliminary injunction. However, with one exception, I am not yet ordering relief pending a further hearing on the appropriate scope of such relief. II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION
“‘A preliminary injunction is an extraordinary remedy never awarded as of right.’”20 In general, to obtain a preliminary injunction, the moving party
19 To echo language quoted by Justice Thurgood Marshall, the evidence in this case “has evoked images of other days, under other flags, when no man traveled . . . without fear of unwarranted interruption.” Florida v. Bostick, 501 U.S. 429, 443 (1991) (Marshall, J., dissenting) (quotation marks and citation omitted).
20 UBS Fin. Servs., Inc. v. West Virginia Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008)).
10

must establish: (1) “that [it] is likely to succeed on the merits,” (2) “that [it] is
likely to suffer irreparable harm in the absence of preliminary relief,” (3) “that the
balance of equities tips in [its] favor,” and (4) “that an injunction is in the public interest.”21 The Second Circuit has held that the moving party may be entitled to a
preliminary injunction even if the party is unable to establish a likelihood of
success on the merits, provided that the party demonstrates “‘a serious question
going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor.’”22 In addition, when the moving party
seeks a “mandatory” injunction, that is, an injunction that commands action rather
than merely prohibiting it, the standard is higher: “[W]here ‘the injunction sought
will alter rather than maintain the status quo,’ the movant must show [a] ‘clear’ or
21 Winter, 555 U.S. at 20 (citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger v. Romero–Barcelo, 456 U.S. 305, 311–12 (1982)). See also Fed. R. Civ. P. 65(a) (preliminary injunctions).
22 Red Earth LLC v. United States, 657 F.3d 138, 143 (2d Cir. 2011) (quoting Metropolitan Taxicab Bd. of Trade v. City of New York, 615 F.3d 152, 156 (2d Cir. 2010)). Accord Pamlab, L.L.C. v. Macoven Pharm., L.L.C., — F. Supp. 2d —, 2012 WL 2540234, at *3 (S.D.N.Y. June 29, 2012) (recognizing that the Supreme Court in Winter “cast some doubt on the continuing viability” of the Second Circuit’s “serious questions” prong, but noting that “the Second Circuit has since held that ‘our venerable standard for assessing a movant’s probability of success on the merits remains valid’” (quoting Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010))).
11

‘substantial’ likelihood of success.”23
Because plaintiffs seek mandatory injunctive relief including the
drafting and distribution of new policies, the development and implementation of
new training programs, and the implementation of new monitoring and supervision procedures,24 they must establish a clear or substantial likelihood that they will
succeed at trial.
III. APPLICABLE LAW
A. Sources of Liability
Plaintiffs bring a claim under 42 U.S.C. § 1983 alleging violations of
their Fourth Amendment rights by the City of New York and several of its employees.25 As the Supreme Court established in Monell v. New York City
23 Rodriguez v. DeBuono, 175 F.3d 227, 233 (2d Cir. 1999) (quoting Jolly v. Coughlin, 76 F.3d 468, 473–74 (2d Cir. 1996)). The Second Circuit has recognized that “[t]he distinction between mandatory and prohibitory injunctions is not without ambiguities or critics, and that in a close case an injunction can be framed in mandatory or prohibitory terms.” Jolly, 76 F.3d at 474 (quotation marks and citations omitted).
24 See Pl. Findings ¶¶ 72–75. 25 See Compl. ¶¶ 1, 203. 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
12

Department of Social Services,26 in order to have recourse against a municipality or
other local government under section 1983, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.”27
In general, “[o]fficial municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”28
One way to establish an official policy is through a showing of
“deliberate indifference” by high-level officials. “‘[W]here a policymaking official
exhibits deliberate indifference to constitutional deprivations caused by
subordinates, such that the official’s inaction constitutes a deliberate choice, that
shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 26 436 U.S. 658 (1978). Interpreting the language of section 1983 and the legislative history surrounding its passage in the Civil Rights Act of 1871, the Court in Monell held that local governing bodies could be held liable either on the basis of formally approved policy or on the basis of “‘customs’” or “‘usages.’” Id. at 690–91 (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970)). Later cases have “considerably broadened the concept of official municipal action.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004). 27 Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011) (quoting Connick v. Thompson, 131 S.Ct. 1350, 1359 (2011), in turn quoting Monell, 436 U.S. at 691). 28 Connick, 131 S.Ct. at 1359 (citing Monell, 436 U.S. at 694; Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986); Adickes, 398 U.S. at 167–68).
13

acquiescence may be properly thought of as a city policy or custom that is
actionable under § 1983.’”29 “Deliberate indifference” requires “‘proof that a
municipal actor disregarded a known or obvious consequence of his action.’”30
Recognizing that “deliberate indifference” is “a stringent standard of
fault,” the Second Circuit requires “that the policymaker’s inaction was the result
of ‘conscious choice’ and not ‘mere negligence.’”31 The Second Circuit has held
that municipal liability can be established “by demonstrating that the actions of
subordinate officers are sufficiently widespread to constitute the constructive
acquiescence of senior policymakers.”32
29 Cash, 654 F.3d at 334 (quoting Amnesty, 361 F.3d at 126). 30 Connick, 131 S.Ct. at 1359 (quoting Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 410 (1997)). 31 Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct at 1360; Amnesty, 361 F.3d at 128). 32 Sorlucco v. City of New York, 971 F.2d 864, 871 (2d Cir. 1992) (emphasis added), quoted with approval by Amnesty, 361 F.3d at 126; Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009). Though the Second Circuit has not explicitly reaffirmed the “constructive acquiescence” theory of Monell liability articulated in Sorlucco since the Supreme Court decided Connick, the Second Circuit noted in Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012), that the plaintiff there could have established municipal liability by showing:
a sufficiently widespread practice among police officers of abuse of the rights of black people to support reasonably the conclusion that such abuse was the custom of the officers of the Department
14

A municipality may incur Monell liability based on deliberate
indifference through its training practices. Although “[a] municipality’s
culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train,”33 the Supreme Court has held that “[w]hen city policymakers are
on actual or constructive notice that a particular omission in their training program
causes city employees to violate citizens’ constitutional rights, the city may be
deemed deliberately indifferent if the policymakers choose to retain that program.”34 “[D]eliberate indifference may be inferred where ‘the need for more
or better supervision to protect against constitutional violations was obvious,’ but
the policymaker ‘fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]’”35
and that supervisory personnel must have been aware of it but took no adequate corrective or preventive measures (or some combination of the two).
Jones, 691 F.3d at 82. The Second Circuit thus continues to hold that if a practice of misconduct is sufficiently widespread, the municipality may be assumed to have acquiesced in it, even in the absence of direct evidence of such acquiescence.
33 Connick, 131 S.Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822–23 (1985) (plurality opinion)).
34 Id. (citing Bryan Cty., 520 U.S. at 407). 35 Cash, 654 F.3d at 334 (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). Cash reaffirmed the validity of the three-part framing of the failure-to-train inquiry
15

B. The Fourth Amendment, Stops, and Reasonable Suspicion
The Fourth Amendment, made applicable to the States by the
Fourteenth Amendment,36 states: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon probable cause . . . .”37
As interpreted by the courts, the Fourth Amendment prohibits arrest without
probable cause, but allows the police to “‘stop and briefly detain a person for
investigative purposes if the officer has a reasonable suspicion supported by
in Walker v. City of New York, 974 F.2d 293, 297–98 (2d Cir. 1992), summarized as:
(1) policymaker knows “to a moral certainty” that its employees will confront a given situation; (2) either situation presents employees with difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling situation; and (3) wrong choice by employees will frequently cause deprivation of constitutional rights.
Cash, 654 F.3d at 334. “Where the plaintiff establishes all three elements, then . . . the policymaker should have known that inadequate training or supervision was ‘so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.’” Walker, 974 F.2d at 298 (quoting City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
36 See Maryland v. Pringle, 540 U.S. 366, 369 (2003) (citing Mapp v. Ohio, 367 U.S. 643 (1961)).
37 U.S. CONST. amend. IV. 16

articulable facts that criminal activity “may be afoot,” even if the officer lacks
probable cause.’”38 “This form of investigative detention is now known as a Terry
stop.”39
“While ‘reasonable suspicion’ is a less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop.”40 “‘The officer [making a Terry stop] . . . must
be able to articulate something more than an inchoate and unparticularized
suspicion or hunch.’”41 “Reasonable suspicion is an objective standard; hence, the
subjective intentions or motives of the officer making the stop are irrelevant.”42
38 United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). Under New York law, the justifications required for different levels of police intrusion were established in People v. De Bour, 40 N.Y.2d 210 (1976). See infra Part III.D. States may impose greater restrictions on police conduct than those established by the Fourth Amendment, but “may not . . . authorize police conduct which trenches upon Fourth Amendment rights.” Sibron, 392 U.S. at 61.
39 Davis, 2012 WL 4813837, at *2 (citing Terry, 392 U.S. at 88). 40 Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 41 Alabama v. White, 496 U.S. 325, 329 (1990) (quoting Sokolow, 490 U.S. at 7) (certain quotation marks omitted). Courts are divided over whether reasonable suspicion must be of a particular crime, or may be of criminality in general. See 4 WAYNE R. LAFAVE, SEARCH & SEIZURE § 9.5(c) (5th ed. 2012). 42 United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
17

It is sometimes the case that a police officer may observe “a series of acts, each of them perhaps innocent in itself, but which taken together warrant[] further investigation.”43 “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.”44 However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.”45
Courts reviewing stops for reasonable suspicion “must look at ‘the totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.”46 “[T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing.”47
The test for whether a Terry stop has taken place outdoors is whether

43 Terry, 392 U.S. at 22.

44
(1979)).

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

45 Id. (quoting Adams v. Williams, 407 U.S. 143, 144 (1972)).

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

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

18

“a reasonable person would feel free ‘to disregard the police and go about his
business.’”48 “‘[W]henever a police officer accosts an individual and restrains his
freedom to walk away, he has ‘seized’ that person.’”49 “[P]olice questioning, by
itself, is unlikely to result in a Fourth Amendment violation . . . [u]nless the
circumstances of the encounter are so intimidating as to demonstrate that a
reasonable person would have believed he was not free to leave if he had not
responded.”50 The Second Circuit has held that “[a] seizure occurs when (1) a
person obeys a police officer’s order to stop or (2) a person that does not submit to
an officer’s show of authority is physically restrained.”51 Both Terry stops and
48 Bostick, 501 U.S. at 434 (quoting California v. Hodari D., 499 U.S. 621, 628 (1991)). Accord United States v. Mendenhall, 446 U.S. 544, 554 (1980) (“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”). In an enclosed space, such as a bus, this test may be rephrased as “‘whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” United States v. Drayton, 536 U.S. 194, 202 (2002) (quoting Bostick, 501 U.S. at 436). Bostick also notes that “the ‘reasonable person’ test presupposes an innocent person.” Bostick, 501 U.S. at 438. For a comprehensive summary of the “free to leave” test as it has been interpreted and applied, see LAFAVE, SEARCH & SEIZURE § 9.4(a).
49 Brown, 443 U.S. at 50 (quoting Terry, 392 U.S. at 16). 50 INS v. Delgado, 466 U.S. 210, 216 (1984). 51 United States v. Simmons, 560 F.3d 98, 105 (2d Cir. 2009) (citing Swindle, 407 F.3d at 572).
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arrests constitute “seizures” under the Fourth Amendment.52
C. Criminal Trespass under New York State Law
Criminal trespass is defined under section 140 of the New York Penal
Law. As the Appellate Division, First Department, of the Supreme Court of New
York recently stated in a case concerning alleged trespass in a Clean Halls
building:
A person is guilty of criminal trespass in the second degree when, in pertinent part, he “knowingly enters or remains unlawfully in a dwelling” (Penal Law § 140.15[1]). A person “enters or remains unlawfully” in or upon premises “when he is not licensed or privileged to do so” (Penal Law § 140.00[5]). “In general, a person is ‘licensed or privileged’ to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent” (People v. Graves, 76 N.Y.2d 16, 20 . . . [1990]). The prosecution bears the burden of proving the absence of such license or privilege (People v. Brown, 25 N.Y.2d 374, 377 . . . [1969]).53
The trespass law also states:
A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part
52 See Terry, 392 U.S. at 16–20. 53 In re Lonique M., 939 N.Y.S.2d 341, 343 (1st Dep’t 2012).
20

of the building which is not open to the public.54
D. De Bour
In People v. De Bour, the New York Court of Appeals established a
four-level test for determining the legality of encounters between police officers
and civilians under New York state law. The more intrusive the encounter, the
more justification required:
• Level 1: Approach to Request Information: “If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality.”55
• Level 2: The Common-Law Right of Inquiry: “Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer’s investigation, the officer is [engaged in] a common-law inquiry that must be supported by a founded suspicion that criminality is afoot.”56
• Level 3: Forcible Stop: “Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person.”57 A Level 3 stop is legally equivalent to a Terry
54 N.Y. Penal Law § 140.00. 55 People v. Hollman, 79 N.Y.2d 181, 184 (1992) (reaffirming De Bour despite case law suggesting that the Fourth Amendment does not protect against police-initiated encounters falling short of seizures). 56 Id. at 184–85 (emphasis added). 57 Id. at 185 (emphasis added).
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stop, and New York state court opinions generally refer to Level 3 De Bour stops and Terry stops interchangeably.58
• Level 4: Arrest: “Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.”59
At least in the context of police encounters inside TAP and NYCHA
buildings, New York courts have often identified requests for name and purpose in
the building as Level 1 questions.60 Mere presence in a drug-prone NYCHA
building with a history of trespassing has been identified as an objective, credible
reason justifying Level 1 questioning.61 Level 1 questioning of someone exiting a
58 See, e.g., People v. Reyes, 651 N.Y.S.2d 431, 432–33 (1st Dep’t 1996); People v. Francis, 847 N.Y.S.2d 398, 401 (Sup. Ct. Bronx Co. 2007).
59 Hollman, 79 N.Y.2d at 185.
60 See, e.g., People v. Hendricks, 841 N.Y.S.2d 94, 94 (1st Dep’t 2007) (holding that NYCHA building’s “history of drug activity and trespassing” provided “objective, credible reason” for Level 1 inquiry “to determine if defendant was legitimately in the building”); People v. Anderson, 759 N.Y.S.2d 676, 676 (1st Dep’t 2003) (holding that group of nine or ten people descending staircase in drug-prone TAP building provided objective credible reason to ask defendant whether he lived there, “‘which constituted a level one request for information and not a common-law inquiry’” (quoting People v. Tinort, 709 N.Y.S.2d 511, 511 (1st Dep’t 2000))).
61 See Hendricks, 841 N.Y.S.2d at 94. Level 1 questioning of a person in a NYCHA building requires “[a]t a minimum, . . . evidence of prior criminality” in the building. People v. Ventura, 913 N.Y.S.2d 543, 546–47 (Sup. Ct. N.Y. Co. 2010). “To the extent that . . . in public housing the police routinely engage in random, unjustified questioning — and there is evidence that they do — the practice would amount to a systematic violation of De Bour.” Id. at 547 (citing
22

TAP building, on the other hand, appears to require more than a history of drug activity in the building.62
IV. FINDINGS OF FACT
A. Evidence of an Unconstitutional Practice or Custom of the NYPD
At the hearing, plaintiffs offered three categories of evidence in
support of their contention that the NYPD has a practice of making
unconstitutional trespass stops outside Clean Halls buildings in the Bronx. First,
plaintiffs offered the testimony of ADA Rucker regarding her concerns about
trespass stops and arrests at Clean Halls buildings, corroborated by “decline to
prosecute” forms from the Bronx District Attorney’s office. Second, plaintiffs
offered testimony regarding their personal experiences of having been stopped outside Clean Halls buildings.63 Third, plaintiffs offered the expert testimony of
Adam Carlis, The Illegality of Vertical Patrols, 109 COLUM. L. REV. 2002 (2009)). 62 See, e.g., People v. Kojac, 671 N.Y.S.2d 949, 953–54 (Sup. Ct. N.Y.
Co. 1998) (“The police are not justified in approaching an individual merely because he exits [a TAP building] known for its high incidence of drug activity.”). See also People v. Almonte, No. 0209/2009, 2011 WL 864940, at *2 (Sup. Ct. Bronx Co. Mar. 8, 2011) (suggesting that decisions upholding Level 1 questioning of individuals exiting TAP buildings have “noted some additional factor” other than location, such as defendant’s conduct not being innocuous).
63 Plaintiffs introduced testimony regarding eleven stops. See infra Part IV.A.2. All of the stops were of named plaintiffs except the July 2011 stop of nonparty witness Jerome Grant, a relative of two named plaintiffs. See infra Part IV.A.2.d. For convenience, when making general statements about the personal
23

Dr. Jeffrey Fagan regarding the number and nature of trespass stops outside Clean Halls buildings.
I address each of these categories of evidence in turn. 1. Findings of Fact Regarding Testimony of ADA Rucker and
Decline to Prosecute Forms Since 2007, ADA Rucker has been chief of the complaint and arraignments bureau at the Bronx DA. In this position, she oversees the arrest to arraignment process, ensuring “that we evaluate all cases that are coming through and making sure we are doing the right thing.” ADA Rucker testified that around 2007 she started to become concerned about cases in which people were being stopped and then arrested based solely on their having entered or exited a Clean Halls building. Especially in 2009, judges began dismissing these cases frequently, sometimes saying that the police had no right to approach the arrested person in the first place.64 ADA Rucker also started to receive a steady stream of complaints about trespass arrests from the defense bar, the Legal Aid Society, and the Bronx
testimony of stops offered at the hearing, I will often refer to named plaintiffs and non-party witness Jerome Grant collectively as “plaintiffs.”
64 See Tr. 10/15 at 168–75. 24

Defenders.65 At first, she ignored the complaints. But in 2010, her staff began
telling her that judges were not only dismissing trespass cases, but were finding
evidence that the defendant lived in the building where the trespass was said to have occurred.66
Finally, in 2011, ADA Rucker investigated the law governing trespass
stops based on entry to and exit from a Clean Halls building, and she determined that the office’s position on the prerequisites for a legal stop had been wrong.67
She sent memos to a number of commanders and other police officials clarifying
that, contrary to previous statements, observing someone exiting a Clean Halls building is not by itself a sufficient justification for a stop.68 ADA Rucker testified
that she sent the memos in her official capacity, and that the memos expressed the views of the Bronx DA’s office.69
65 See id. at 175:20–22. The Bronx Defenders are co-counsel for plaintiffs in this case.
66 See id. at 175:21–25, 176:2–8. 67 See id. at 176:9–23. 68 See id. at 176:14–177:22, 180:19–181:21; 7/7/11 Letter from ADA Rucker to Deputy Inspector William McSorley (“7/7/11 Rucker Letter”), Plaintiffs’ Exhibit (“Pl. Ex.”) 6. See also Tr. 10/15 at 184:7–185:17; 7/13/11 Memo from ADA Rucker to ADAs, Pl. Ex. 7 at 2 (explaining that Bronx DA would decline to prosecute trespass cases where stop was based on nothing more than entry and exit from Clean Halls building). 69 See Tr. 10/15 at 182:11–183:8.
25

I find ADA Rucker’s testimony credible. It is no small matter when
an ADA publicly suggests that the NYPD has been engaged in a recurring pattern
of unlawful stops. Such testimony is entitled to significant weight. A prosecutor
has professional and institutional incentives to be skeptical of allegations that the
police are making stops and arrests without a legal basis. That ADA Rucker
overcame her skepticism says a great deal about the severity of the problem she
came to recognize. I also note that the NYPD itself found ADA Rucker
sufficiently trustworthy to allow her to train police officers regarding procedures in the complaint room.70
Yet defendants argue that ADA Rucker’s impression that a problem
existed regarding unlawful trespass stops at Clean Halls buildings was unfounded,
and in fact rested only on the two specific cases she discussed in detail at the hearing.71 Defendants’ argument is without merit. ADA Rucker made clear that
70 See id. at 170:12–173:17. Throughout this opinion, for convenience, I will refer to NYPD trainees as “officers,” though in some cases the training involves “recruits.” See Tr. 10/19 at 839:18–24.
71 See Defendants’ Proposed Findings of Fact and Conclusions of Law (“Def. Findings”) ¶¶ 11–14. One case involved an anonymous letter whose author claimed to have been arrested for trespass while leaving a friend’s building with the friend. See Tr. 10/15 at 190:17–20; Tr. 10/16 at 239:1–240:22; 3/13/12 Anonymous Letter to ADA Rucker, Pl. Ex. 11. The other involved a stop inside a Clean Halls building, and was brought to ADA Rucker’s attention by the Bronx Defenders. See Tr. 10/15 at 196:13–198:15; Tr. 10/16 at 241:5–243:2. In the latter case, according to ADA David Grigoryan, who performed an investigation at ADA
26

over the years she learned of “many” cases involving unlawful trespass stops at
Clean Halls buildings,72 that “the judges kept dismissing” them,73 that “[a]t least
five” judges had dismissed Clean Halls trespass cases based on lack of probable
cause,74 and that her concerns were also based on complaints from other ADAs,
phone calls from the arraignment parts, and ADAs coming to her after leaving
court, or when sent to her by their supervisors.75 ADA Rucker explicitly stated on
cross-examination that her concerns were not based only on the anonymous letter
Rucker’s request, the defendant was stopped and questioned for no specified reason at his sister’s building, where he was apparently staying, and then the defendant was arrested because he failed to provide his sister’s name or apartment number. See Tr. 10/18 at 609:7–614:19, 617:25–619:9. ADA Grigoryan testified that in his opinion this arrest was “absolutely valid.” Id. at 611:14.
72 Tr. 10/15 at 176:7–8. 73 Id. at 176:10–11. 74 Tr. 10/16 at 234:9. 75 See id. at 237:13–238:8, 239:11–24, 240:6–7, 243:13–18, 244:6–12. Further support for ADA Rucker’s criticisms can be found in the opinions of New York state courts. See, e.g., Almonte, 2011 WL 864940, at *1 (criticizing police officer who was apparently “operating under the assumption that he had the authority to identify anyone leaving a trespass affidavit building”). Other cases describe problems with stops and arrests inside TAP buildings. See, e.g., People v. Ruiz, No. 056832C-2006, 2007 WL 1428689, at *3–4 (Sup. Ct. Bronx Co. May 15, 2007) (chastising NYPD after apparently unlawful trespass arrest inside Clean Halls building, and concluding: “One hopes the New York City Police Department will better train its officers in the realm of Criminal Trespass so that only true trespassers will be arrested, and innocents will be spared.”).
27

and the indoor stop highlighted by defendants.76 To the extent that ADA Rucker’s concerns were based partly on
statements made by non-parties who did not testify at the hearing and whose statements do not fall under any hearsay exception, I give no weight to the truth of those statements. I do not accept, however, the insinuation that ADA Rucker invented the problem of unlawful Clean Halls trespass stops in order to lessen the Bronx DA’s caseload,77 or that she imagined the dismissed trespass cases under pressure from the Bronx Defenders.78 ADA Rucker’s concerns are independently corroborated by numerous “decline to prosecute” affidavit forms. As ADA Rucker explained, the Bronx DA’s office produces these affidavits after a police officer or witness is interviewed and the office declines to prosecute the case.79
The decline to prosecute forms are an important source of information and I have reviewed each of them. Plaintiffs entered into evidence twenty-six
76 See Tr. 10/16 at 237:13–16. Accord Tr. 10/15 at 202:22–203:20 (ADA Rucker rejecting mischaracterization of her views in 9/6/12 Letter from Police Commissioner Raymond W. Kelly to Bronx County District Attorney Robert Johnson, Pl. Ex. 12); Tr. 10/16 at 235:3–7 (ADA Rucker explaining that she had orally conveyed details of other cases to the NYPD).
77 See Tr. 10/16 at 246:8–248:14. 78 See id. at 222:9–224:2. 79 See id. at 213:5–7.
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forms generated by the Bronx DA’s office in support of its decision not to
prosecute cases involving arrests for trespass outside TAP buildings in the Bronx over three sample months in 2011.80 Without giving weight to the truth of any
hearsay statements attributed to arrestees in the decline to prosecute forms, the
forms persuasively show that ADA Rucker was not alone in the Bronx DA’s office
in perceiving a recurring problem involving legally unjustified trespass stops and arrests outside Clean Halls buildings.81 Defendants concede that the forms are, at
minimum, admissible “for the limited purpose of establishing that officers’
observations of entries/exits were the bases for the underlying stops,” though
defendants question whether the forms can support this finding in the absence of
80 See Pl. Findings ¶ 16 n.1; Tr. 10/16 at 210:17–220:25; Tr. 10/17 at 508:11–509:20; Bronx DA Decline to Prosecute Affidavits (“Decline Prosecute Affs.”), Pl. Ex. 74. Plaintiffs’ Exhibit 74 contains thirty-one forms, but plaintiffs later conceded that only twenty-eight forms expressly identify the building outside of which the stop took place as a TAP building. See Pl. Findings ¶ 16 n.2 (referring to Decline Prosecute Affs. at 4425, 5001, 5055). In addition, two of the forms are revisions of other forms. Compare Decline Prosecute Affs. at 2996, 3088, with id. at 3174, 3086.
81 ADA Rucker confirmed that the types of cases described in the decline to prosecute forms were, in part, what motivated the Bronx DA’s office to adopt a policy in July 2011 of declining to prosecute cases where the arresting officer had only observed someone exiting or entering and exiting a Clean Halls building. See Tr. 10/16 at 218:16–219:8. Accord Tr. 10/15 at 180:13–182:18; 7/7/11 Rucker Letter.
29

testimony from the assigned ADA and further paperwork.82 Defendants were free to elicit such testimony and introduce such paperwork. They did not.83 I decline to
draw inferences in defendants’ favor based on the speculative possibility that
further testimony would have revealed persuasive legal justifications for the stops
described in the forms.
In an Appendix to this Opinion, I have collected excerpts from the
twenty-six narratives of stops and arrests that appear in the decline to prosecute forms.84 One of the shorter and less redacted narratives reads:
On January 5, 2011 the defendants were observed exiting a [C]lean [H]alls building. The defendants stated they were there to visit a tenant in the building. After being arrested[,] a tenant from the building did corroborate the defendant[s’] statements and the tenant stated that both defendants were in the building as his guests.
Therefore, the People are declining to prosecute this case at this time [redacted].85
Based solely on a review of these forms, none of the stops leading to the arrests
described in the forms were based on a reasonable suspicion of trespass. All were
82 Def. Findings ¶ 13. 83 Neither party attempted to determine whether the stops described in the decline to prosecute forms were recorded in UF-250s. 84 See infra Appendix A (“App. A”). 85 Decline Prosecute Affs. at 4407, excerpted at App. A ¶ 2.
30

based merely on exit or entry and exit from a Clean Halls building.86 Thus, over the course of three months in 2011, there were at least twenty-six arrests for trespass outside Clean Halls buildings in the Bronx that resulted from stops lacking reasonable suspicion. As will be discussed in greater detail below, these arrests independently suggest a widespread practice of unlawful stops.87
In sum, ADA Rucker’s testimony and the supporting exhibits, including the decline to prosecute forms, contained more than enough evidence to support the conclusion that there is a clear and substantial likelihood that plaintiffs will be able to prove at trial that NYPD officers in the Bronx repeatedly stopped and questioned people on suspicion of trespass simply because they were observed exiting or entering and exiting a Clean Halls building. ADA Rucker’s testimony and the supporting exhibits show that a nexus existed between the Clean Halls program and the kinds of unlawful trespass stops described by plaintiffs and quantified by Dr. Fagan, as discussed in the sections below. That is, the stops of people exiting or entering and exiting Clean Halls buildings took place because the buildings were enrolled in Operation Clean Halls.
86 Some of the forms describe stops in which an officer eventually obtained probable cause for an arrest. See, e.g., App. A ¶ 23. But the instant case concerns the legal basis for stops, not arrests.
87 See infra Part V.B.1.a. 31

2. Findings of Fact Regarding Plaintiffs’ Stops Plaintiffs offered testimony at the preliminary injunction hearing regarding their experiences in having been stopped on suspicion of trespass outside Clean Halls buildings in the Bronx. Sometimes plaintiffs’ accounts were corroborated by other plaintiffs and witnesses. In a few cases, the parties were able to identify officers who took part in the stops, and these officers testified. In other cases, neither plaintiffs nor defendants were able to identify the officers. Defendants argue that plaintiffs failed to provide sufficient information to identify the John Doe officers in the case, and that as a result this Court should not credit plaintiffs’ testimony.88 Defendants go so far as to suggest that the stops about which plaintiffs testified “may not have occurred at all.”89 Based on the testimony described below, I reject this contention. Perhaps the strongest sign of the credibility of plaintiffs’ testimony is the striking similarities among plaintiffs’ stops. A person approaches or exits a Clean Halls building in the Bronx; the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing; attempts at explanation are met with hostility; especially if the person is a
88 See Tr. 11/7 at 1298:19–22 (defendants’ summation). 89 Def. Findings ¶ 15.
32

young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van in order to carry out an extended interrogation about the person’s knowledge of drugs and weapons; and in some cases the stop escalates into an arrest for trespass, with all of the indignities, inconveniences, and serious risks that follow from an arrest even when the charges are quickly dropped.
Nevertheless, while I found plaintiffs’ testimony credible, it would obviously have been valuable to hear from the unnamed officers involved in plaintiffs’ stops. The officers were never identified. I find that this was due in part to the lack of specificity in some of plaintiffs’ memories of their encounters. At the same time, I also find that defendants made inadequate efforts to identify officers based on the information plaintiffs did provide.
Defendants claim that Sgt. Robert Musick of the NYPD’s Special Litigation Support Unit “conducted an exhaustive search to determine the officers involved in the purported incidents presented by plaintiffs at the hearing.”90 Sgt. Musick’s reference to his “limited attempts” to identify the officers is closer to the mark.91 A large part of Sgt. Musick’s investigation involved searches of the
90 Id. (emphasis added). See also Tr. 10/23 at 1113:24–1114:19. 91 Tr. 10/23 at 1115:16.
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electronic UF-250 database, which contained only the addresses and birthdates —
not the names — of individuals stopped after July 2010 when the stop did not result in a summons or arrest.92 Sgt. Musick conceded that he is “definitely not an expert” at using the database.93 For example, he was only able to narrow down the
potential list of officers who might have stopped Jerome Grant in the summer of
2011 (discussed below) to a list of three hundred. Yet this list included officers of
all ethnicities, while Grant had testified that one of the two officers was Asian. On
cross-examination, Sgt. Musick explained that he had not searched for Asian
officers within the list of three hundred because Grant’s description of the other officer did not specify an ethnicity.94 This makes no more sense than refusing to
search a drawer for a pair of striped socks because one cannot remember which
color shoes they match: there was no reason to make the search for the Asian
officer contingent on obtaining more information about his partner. In the end,
92 See Chart by Sgt. Musick (“Musick Chart”), Defendants’ Exhibit (“Def. Ex.”) UU; Tr. 10/23 at 1123:23–1128:11. Officers are required to complete a UF-250 form, also known as a “Stop, Question and Frisk Report Worksheet,” after each stop. See Tr. 10/15 at 67:4–21, 69:24–70:6; Tr. 10/23 at 1110:9–11; UF250 Form, App. B to 7/27/12 Report of Plaintiffs’ Expert Dr. Jeffrey Fagan (“Fagan Report”), Pl. Ex. 4. UF-250s are discussed at greater length below. See infra Part V.B.1.a. I have attached a copy of a blank UF-250 form as Appendix B to this Opinion.
93 Tr. 10/23 at 1145:1, 1158:19–25. 94 See id. at 1153:4–1154:8.
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Sgt. Musick was unable to locate a single UF-250 for any of the eleven stops to which plaintiffs testified.95
Because I find it extremely implausible that any plaintiff simply invented the stop or stops to which he or she testified, because defendants failed to make a sufficiently persuasive effort to identify the officers involved, and because the officers who did testify failed to undermine any plaintiff’s credibility, I decline to draw speculative inferences in defendants’ favor regarding the reasons that unidentified officers might have provided for their stops.
a. Charles Bradley’s Stop On May 3, 2011, after finishing his work for the day as a security guard, Charles Bradley, a black fifty-one year old resident of the Bronx, took the subway to visit his fiancée, Lisa Michelle Rappa, as they had arranged the evening before.96 Rappa lived in the Bronx at 1527 Taylor Avenue.97 Bradley formerly lived with Rappa and had keys to her apartment, but following a disagreement Bradley had returned his keys.98 1527 Taylor Avenue is a Clean Halls building.99
95 See id. at 1125–1143. 96 See Tr. 10/16 at 257:17–258:22, 259:10–19, 261:1–24, 272:6. 97 See id. at 258:23–24, 259:23. 98 See Tr. 10/15 at 258:23–260:21. 99 See Tr. 10/16 at 260:3–7.
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When Bradley arrived at Rappa’s apartment building, a young man who lived on the first floor and knew of Bradley’s and Rappa’s relationship let Bradley into the building. Bradley then walked up the stairs to Rappa’s apartment on the fifth floor and knocked. Because Rappa is deaf in one ear, Bradley waited a minute or two. When there was still no response, he returned downstairs and left the building. Outside, he looked up toward Rappa’s window.100
While Bradley was standing on the sidewalk, an unmarked green police van approached and an officer in the passenger seat — later identified as Officer Miguel Santiago — gestured for Bradley to come over.101 After Bradley approached the van, the officer got out and asked, “What are you doing here?”102 Bradley explained he was there to see Rappa, and that he worked as a security guard. Bradley testified that the officer responded to his attempts to explain his presence by suggesting Bradley was acting “like a fucking animal,”103 searched Bradley’s pockets,104 then told Bradley to place his hands behind his back. Once
100 See id. at 262:4–264:12. 101 See id. at 264:14–265:9; Tr. 10/22 at 1079:18–19. 102 Tr. 10/16 at 266:3. 103 Id. at 266:8. 104 Though plaintiffs have not focused their arguments on the legal standard for frisks, I note that a frisk requires an additional justification beyond the reasonable suspicion for the stop. The Supreme Court held in Terry:
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Bradley was handcuffed, the officer placed him in the van, where there were two
other officers. While the van drove away, the officers began to question Bradley:
“When was the last time you saw a gun? When was the last time you got high?
When was the last time you bought some drugs?”105
After twenty or thirty minutes in the van, the officers stopped at the
station house. Bradley was taken into a room, stripped, and told to wait.106 He was
searched in “inappropriate areas.”107 For the next two hours, he waited in a cell
with other people who had been arrested. He was then fingerprinted and given a
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous; . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Terry, 392 U.S. at 30 (emphasis added). If the officer who searched Bradley had no reason to conclude that Bradley posed a danger, the officer’s frisk violated Bradley’s rights under the Fourth Amendment. See also People v. Driscoll, — N.Y.S.2d —, 2012 N.Y. Slip Op. 09097, 2012 WL 6699161, at *1 (3d Dep’t Dec. 27, 2012) (“To conduct a protective pat frisk, an officer must have knowledge of some fact or circumstance that supports a reasonable suspicion that the suspect is armed or poses a threat to safety[.]” (quotation marks and citation omitted)).
105 Tr. 10/16 at 265:20–22, 266:1–267:17. 106 See id. at 267:16–268:1. 107 Id. at 268:5–6. Bradley later stated that his experiences on May 3 made him feel “extremely violated, to say the least.” Id. at 275:8.
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desk appearance ticket and a date to appear in court to answer the criminal charge of trespassing. Later, Bradley’s defense attorney provided the Bronx DA’s office with a notarized letter from Rappa stating that Bradley had been visiting her.108 “[A]t that point in time,” Bradley testified, “paperwork was submitted to me stating that the People of New York declined to prosecute.”109
Officer Santiago also testified at the hearing, explaining that he worked two tours on May 3, 2011, the first from 4 a.m. to 12:35 p.m. and the second from 1 p.m. to 9:30 p.m. Bradley’s arrest took place around 5:20 p.m., after Officer Santiago had been patrolling with his partner, Officer Landro Perez, for a few hours without incident.110 Officer Santiago emphasized that 1527 Taylor Avenue is in “a drug prone location” with “a lot of robberies, a lot of shootings” in the area.111 It is a “high crime neighborhood.”112
Officer Santiago’s account of Bradley’s arrest differed from Bradley’s in several respects. Officer Santiago claimed that before stopping Bradley, he had
108 See id. at 268:9–25, 269:1, 12–13, 272:3–273:7; 7/7/11 Notarized Letter from Rappa (“Rappa Letter”), Pl. Ex. 17.
109 Tr. 10/16 at 269:2–270:4. 110 See Tr. 10/22 at 1076:8–10, 1077:3–11, 1078:16–18, 1079:5–7. 111 Id. at 1081:5–6, 1082:24–25. 112 Id. at 1082:24.
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observed Bradley at the end of a hallway inside the building “suspiciously walking back and forth” for two or three minutes and “disappearing.”113 Officer Santiago claimed that he was able to see Bradley’s suspicious behavior even though he was inside a police van parked across the street, twenty to thirty feet from the front door, separated from Bradley not only by the street but by the windows of the front door, a vestibule, the windows of an inner door, and the hallway.114
Officer Santiago testified that he approached Bradley after Bradley exited the building and said: “Excuse me, sir, could you come over here?”115 In response to Officer Santiago’s questioning, Bradley could not tell him the name of his girlfriend or her apartment number, and could not produce any identification.116 After he arrested Bradley for criminal trespass, they drove five or ten minutes to the precinct.117 There was only one other officer in the van.118 Officer Santiago did not ask Bradley any questions along the way, and Bradley was not strip-searched
113 Id. at 1086:21–1087:1; Tr. 10/23 at 1097:8–9, 1101:13–15. 114 See Tr. 10/22 at 1087:2–11; Tr. 10/23 at 1101:20–25. 115 Tr. 10/22 at 1088:15–16. 116 See id. at 1088:11–1089:1; Tr. 10/23 at 1097:1–9. 117 See Tr. 10/23 at 1098:11–1099:1. 118 See Tr. 10/22 at 1080:23–25; Tr. 10/23 at 1098:19–1099:1.
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upon arrival at the station.119
The paperwork Officer Santiago completed with regard to Bradley’s stop and arrest contained numerous, self-serving errors.120 In direct contradiction
to his testimony at the hearing, Officer Santiago made the following statements on
the arrest fact sheet: first, that he observed Bradley in the building for seven
minutes; second, that he stopped Bradley inside the building; third, that he went to
the apartment Bradley said he was visiting; and fourth, that the apartment was occupied.121 By all accounts, each of these statements was false. Officer
Santiago’s credibility was further called into question by the fact that in 2002 or
2003 he lied within the scope of his police work by creating two improper summonses to help a friend.122 Finally, Officer Santiago failed to complete the UF250 form he was required to fill out for Bradley’s stop.123
119 See Tr. 10/23 at 1098:11–1099:1. 120 Officer Santiago admitted that by the time he completed the paperwork, he had worked fourteen or fifteen hours straight and was “a little tired.” Id. at 1099:11–12. See also id. at 1105:8–16. 121 See 5/3/11 Clean Halls Fact Sheet for Charles Bradley Arrest (“Bradley Fact Sheet”), Pl. Ex. 39. 122 See Tr. 10/23 at 1099:17–1100:2. Officer Santiago testified that he was trying to help a landlord friend who was having problems with a tenant, “so I issued two improper summons, one in the bus stop and one in the fire hydrant, and the car was never there.” Id. at 1099:24–1100:2. 123 See id. at 1110:9–11.
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I find Bradley’s account credible. Bradley entered a Clean Halls building based on an invitation from a tenant, walked upstairs to the tenant’s residence, found the tenant not home, then returned outside and waited on the sidewalk while considering what to do. In response to Officer Santiago’s questions, Bradley offered reasonable and unsuspicious answers. Bradley’s conduct provided no further basis for a stop.
b. Abdullah Turner’s Stops On the evening of March 26, 2011, Abdullah Turner, a black twentyfour year old, had plans to go to an engagement party in the Bronx with his close friend Anginette Trinidad.124 Both Turner and Trinidad testified at the hearing that Trinidad was carrying a sweater in a plastic bag.125 When the two had nearly arrived at the party, Trinidad told Turner she had to return the sweater to someone in the next building, 2020 Davidson Avenue, which is a Clean Halls building.126 While Trinidad went inside, Turner remained outside and called another close friend, Felisha Black, on his cell phone. During the call, he paced in
124 See Tr. 10/17 at 472:14–15, 473:9–474:9. 125 See id. at 475:8–15; Tr. 10/18 at 622:25–623:4. 126 See Tr. 10/17 at 474:13–475:7, 481:23–25.
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a circle on the sidewalk, trying to stay warm.127 It was “freezing cold” that night,
but Turner was wearing only a cardigan sweater and t-shirt with no coat or hat.128
After Turner had been pacing and talking on the phone for about five
minutes, someone “snatched the phone out of my hand.”129 When Turner turned,
he saw three police officers: one who was Hispanic and a little stocky; one who
was Indian, tall and slim; and a third officer that Turner did not “get a good look
at.”130 One of the officers, Kieron Ramdeen, testified that he was only with one
other officer, Michael Pomerantz.131 Officer Ramdeen’s testimony on this point
127 See id. at 475:21–476:25. 128 Id. at 495:5–18 (Turner’s testimony). Defendants suggest that it is implausible that Turner did not go inside the building, because he knew that the door was unlocked. See Def. Findings ¶ 23 & n.11; Tr. 10/17 at 476:7–10. But Turner testified that he liked the cold and did not need a coat. See Tr. 10/17 at 477:2–4. Accord id. at 487:20–21, 502:5–19. While Turner’s winter-weather clothing choices and apparent tolerance for the cold may be idiosyncratic, they do not undermine his credibility. There is also a facial inconsistency in defendants’ apparent attempt to suggest both that any reasonable person in Turner’s circumstances would have entered the building to warm up, and that if Turner did so, he would have provided legal grounds for a Terry stop. A reasonable person would presumably want to avoid being stopped and frisked, and thus would prefer standing in the cold to going inside, if doing so would create a reasonable suspicion of criminal trespass. 129 Tr. 10/17 at 477:8. I note that a reasonable person would not feel free to leave when his personal property has been seized by the police. 130 Id. at 477:19–23. 131 See Tr. 10/22 at 1008:20, 1012:5–25.
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was not credible, as Officer Pomerantz’s own memobook stated that he was patrolling on the night of March 26 with Officer Ramdeen and Premativo Montanez, a Hispanic officer.132
Turner testified that the Hispanic officer who took his phone began questioning him about what he was doing and whether he lived at 2020 Davidson. Turner explained that his friend was returning a sweater and they were on their way to a party in the next building. The officer asked for identification, and Turner gave him his driver’s license. After the officer saw that Turner did not live on the block, he asked again what Turner was doing at 2020 Davidson, and Turner explained again.133 Then the officer asked: “So you don’t know anybody who lives in this building?”134 When Turner said no, the officer asked him to stand against the wall.135
While Turner stood against the wall, the Hispanic officer entered 2020 Davidson with Turner’s driver’s license and cell phone still in his possession. Officer Ramdeen, now alone with Turner, continued asking Turner the same
132 See id. at 1059:11–1061:6; Page from Memobook of Officer Michael Pomerantz, Def. Ex. HHHH.
133 See Tr. 10/17 at 478:13–22, 479:8–11. 134 Id. at 479:11–12. 135 See id. at 479:12–13.
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questions as before. Eventually, Trinidad emerged from the building, no longer carrying the plastic bag, and Turner pointed to her as proof of what he had been saying. Trinidad confirmed Turner’s story while the other officers returned. The Hispanic officer asked for Trinidad’s ID, and Trinidad gave it to him.136 Then the officer asked her if she had “anything on her that she shouldn’t have,” and in response, Trinidad said she had “a little pocketknife that her husband gave her for protection and a bag of marijuana.”137
After confiscating these items, the Hispanic officer approached Turner and pointed to a sign on 2020 Davidson and asked him if he knew what the sign meant. Turner said he did not. The sign stated that 2020 Davidson was enrolled in Operation Clean Halls. The officer told Turner that he was trespassing and was going to jail. Turner asked how he could be trespassing if he was outside. The officer repeated that Turner was going to jail and placed him in handcuffs.138
After being driven to the precinct in a paddy wagon, Turner spent several hours waiting, was fingerprinted, and then was transferred to central booking, where he spent several more hours. It was not until the next day that a
136 See id. at 479:13–24, 480:12–24. 137 Id. at 481:1–3. 138 See id. at 481:7–25, 482:1–8.
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judge released Turner. He was then obligated to return to court eight to ten times before the charges were dismissed.139 Turner testified that the events on March 26 made him feel “defenseless.”140 Trinidad’s testimony at the hearing supported Turner’s account of the stop.141
Officer Ramdeen testified to a different version of events. He testified that he and Officer Pomerantz were driving past 2020 Davidson when he saw Turner in the lobby. Officer Pomerantz stopped the car and Officer Ramdeen watched as Turner paced aimlessly in the lobby for two to three minutes, occasionally looking up the stairs. Aware that 2020 Davidson was a Clean Halls building, Officer Ramdeen approached Turner, who then exited the lobby. In response to Officer Ramdeen’s brief questioning, Turner volunteered that his
139 See id. at 482:21–483:10, 483:14–21. 140 Id. at 486:1. Turner continued:
It’s like when you’re a kid, when someone is bothering you or someone is like threatening you, you run to your parents for protection, and when you’re an adult, you’re supposed to run to the police. But who are you supposed to run to when like the police are harassing you or like threatening you . . ., who are you supposed to run to then? Id. at 486:3–8. 141 See Tr. 10/18 at 619:23–628:6.
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friend was engaged in a drug deal.142 “I asked him what he was doing in the
building and, in sum and substance, he responded with, I am not going to lie, Officer, I just came with my friend. She went upstairs to buy weed.”143 Officer Ramdeen did not record this alleged confession in his arrest report.144
Officer Ramdeen then arrested Turner for trespassing, basing “the
charges on the fact that he had no lawful reason to be in the building and that he knowingly was there to buy marijuana.”145 Officer Ramdeen could not recall
having arrested Trinidad. He conceded that neither he nor Officer Pomerantz took
any steps to investigate or arrest the drug dealer who, according to their version of events, was operating that night a few stories above them at 2020 Davidson.146
142 See Tr. 10/22 at 1016:17–1017:14, 1020:11–1021:25. 143 Id. at 1021:21–24. 144 Officer Ramdeen’s arrest report only states that Turner was inside a Clean Halls building without permission or authority to be there. See id. at 1038:19–1041:24; 3/26/11 Arrest Report of Plaintiff Abdullah Turner (“Turner Arrest Report”), Def. Ex. ZZ. The confession does appear in Officer Ramdeen’s supporting deposition, signed on the following day. See 3/27/11 Officer Ramdeen Supporting Deposition in State v. Turner, Def. Ex. CCC. Like Officer Santiago after Bradley’s stop, Officer Ramdeen also failed to complete the required UF-250 form for his stop of Turner. See Tr. 10/22 at 1024:2–7. In fact, Officer Ramdeen marked “NO” next to the field “Stop And Frisk” on Turner’s arrest report. See Turner Arrest Report at 1. 145 Tr. 10/22 at 1022:20–22. See also id. at 1025:14–1026:4. 146 See id. at 1026:21–22, 1064:13–1065:12.
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I find Turner’s testimony to be credible. Turner stopped briefly at 2020 Davidson so that Trinidad could allegedly return a sweater. While Trinidad went inside, Turner talked on his cell phone outside for a few minutes. Officers Ramdeen, Pomerantz, and likely Montanez saw him standing outside the building in the cold, stopped him, and questioned him. Turner’s responses to the officers’ questions were reasonable and unsuspicious. Turner provided no other grounds for suspicion. I did not find credible Officer Ramdeen’s testimony concerning Turner’s spontaneous confession. Turner persuasively denied that he made the confession,147 and the officers took no steps to investigate or stop the drug dealer who (according to Officer Ramdeen’s testimony) was operating several floors above them. I also did not find credible Officer Ramdeen’s testimony concerning his observation of Turner’s suspicious pacing inside the building before the officers approached. Based on the totality of the evidence presented at the hearing, I do not believe that Turner entered the building.148
147 See Tr. 10/17 at 500:12–23. 148 I note, however, that even if Turner entered the building, paced in the lobby, looked up the stairs, and then exited the building to make his call, a stop would still have been unjustified. This behavior is innocuous and would not, without something more, provide reasonable suspicion of criminal trespass, or of any other crime. As in Bradley’s and Roshea Johnson’s cases, entering and exiting a Clean Halls building under ordinary circumstances does not establish reasonable suspicion. See infra Part V.B.1.a.
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Finally, Turner credibly testified to having been stopped on another night during December 2011 or January 2012 outside of his own building, 2249 Morris Avenue, which is also a Clean Halls building in the Bronx. As Turner was exiting the building, a police car pulled up. Turner’s thirteen-year-old brother, a friend, and the friend’s nephew were talking at the front of the courtyard. When Turner began to step out of the courtyard, a female officer got out of the car and asked whether they all lived in the building, and they all responded yes. Then the officer asked for Turner’s identification, and he gave it to her.149 Finally, the officer “told us that we can’t stand in front of our building, so when they come back we would need to be gone.”150 Turner testified that he did not feel free to leave while the officer talked to him: “[S]he had my ID, and I don’t know anyone . . . who ever just walked away from a cop in the middle of a conversation.”151 In this encounter as well, I find that Turner’s behavior provided no grounds for suspicion of trespass or any other crime.
As to whether Turner’s second stop was based on the suspicion of
149 See Tr. 10/17 at 486:9–490:25. 150 Id. at 491:4–5. 151 Id. at 491:6–8, 22–23.
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trespass, the evidence is less clear.152 Nevertheless, because I found Turner’s testimony credible, because the officer’s questions concerned the right of Turner and the others to be on Clean Halls property, because there is no indication that the officers suspected Turner of any other crime, and because the parties were unable to locate a UF-250 or any other documentation showing otherwise, I find it more likely than not that Turner’s second stop was based on the suspicion of trespass.
c. J.G.’s Stop J.G. is the son of plaintiff Jaenean Ligon and the brother of J.A.G. and Jerome Grant. The family lives in a Clean Halls building in the Bronx.153 J.G., who is black and seventeen years old, testified that the first time he remembered being stopped around his apartment building was on an evening in August 2011. He had gone to a nearby store to buy ketchup for dinner. On his way back, he saw two plainclothes officers with badges in front of his building and three uniformed officers across the street. When J.G. reached his building, the officers stopped him and began asking him questions, such as where he was
152 Defendants’ post-hearing brief does not challenge whether Turner’s second stop was based on suspicion of trespass, but does challenge whether five of the other unrecorded stops described by plaintiffs were for trespass. See Def. Findings ¶¶ 17 (Kieron Johnson), 19 (Jerome Grant), 20 (both of Letitia Ledan’s stops), 21 (Roshea Johnson). I address each of defendants’ challenges below.
153 See Tr. 10/17 at 438:4–25. 49

coming from, where he was headed, and what he had in his bag. After J.G.
answered that he had ketchup in the bag, one of the officers asked him to raise his
hands, then asked him what he had in his pockets. The officer started to frisk him, first shaking J.G.’s pockets, then putting a hand in J.G.’s left pocket,154 then patting
J.G.’s arms down. After the search, the officer asked for J.G.’s ID and took his
name down on a notepad. Then the other officer looked in J.G.’s bag and
inspected the ketchup. The officers asked for J.G.’s apartment number and rang
the bell. Finally, after Ligon had come downstairs and confirmed that J.G. was her son, the officers handed her the ketchup and let them go.155
Ligon’s testimony supported J.G.’s account. Ligon testified that she
sent J.G. to the store for ketchup one evening when she was cooking chicken and
154 As I noted above, plaintiffs have not focused on the issue of frisks in the instant litigation. Nevertheless, it is worth emphasizing that the officer’s placement of his hand in J.G.’s pocket goes beyond “a carefully limited search of the outer clothing . . . in an attempt to discover weapons which might be used to assault him.” Terry, 392 U.S. at 30. If the officer had no reasonable basis for believing J.G.’s pocket contained a dangerous weapon that J.G. might use to harm the officer, the officer’s search of J.G.’s pocket violated J.G.’s rights under the Fourth Amendment. See Minnesota v. Dickerson, 508 U.S. 366, 373 (1993) (reaffirming that Terry frisk “must be strictly ‘limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby’” (quoting Terry, 392 U.S. at 26)).
155 See Tr. 10/17 at 437:17, 439:4–443:2. 50

french fries. A few minutes after he left, she heard her bell ring.156 Jerome Grant answered the bell and an unfamiliar voice said: “[C]an you please come down and identify your son.”157 Hearing these words, Ligon thought J.G. was dead or hurt. She ran downstairs and collapsed on the steps when she saw J.G. standing, uninjured, beside the officers. The plainclothes officer who was standing with J.G. approached Ligon, laughing, and handed her the ketchup.158
I find J.G.’s and Ligon’s testimony credible. J.G. provided no grounds for suspicion of trespass — or indeed of any other crime — as he approached his building. He also provided no grounds for suspicion in his responses to the officers’ questions. J.G. provided no further basis for a stop, much less a frisk. Because the officers did not ask J.G. whether he lived in the building, it is unclear whether J.G.’s stop was based on the suspicion of trespass. Nevertheless, because J.G. was only stopped as he approached a Clean Halls building, because the officers’ questions indicate no suspicion of any other crime other than trespass, and because the parties have been unable to locate a UF-250 indicating otherwise, it remains more likely than not that J.G. was stopped on
156 See id. at 429:7–430:4. 157 Id. at 430:4–14. 158 See id. at 430:16–433:1.
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suspicion of trespass — if his stop was indeed based on a particularized suspicion of any crime at all.
d. Jerome Grant’s Stop Jerome Grant, J.G.’s older brother and Ligon’s son, testified that his grandmother, Betty Ligon, lives at 274 Bonner Place in the Bronx.159 274 Bonner Place is a Clean Halls building.160 Grant, who is black and nineteen years old, testified that the first time the police stopped him at his grandmother’s building was in July 2011. He had been playing basketball with his little brother J.A.G., his cousin, and a friend. In the evening, the group needed to pick up a key from Grant’s grandmother’s house, so they began walking toward it and sent J.A.G. to run ahead. J.A.G. went inside the building without leaving the door open, so the others knocked loudly on the door.161 Grant’s cousin was “a little upset” by being locked out.162 Two uniformed male police officers, one white and one Asian, approached with flashlights and asked if Grant, his cousin, and his friend lived in
159 See id. at 452:13–25. 160 See Photo of 274 Bonner Place, Pl. Ex. 37. 161 See Tr. 10/17 at 451:21, 453:6–19, 454:17–455:17, 464:19–466:5. 162 Id. at 464:11.
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the building, and if they were trespassing. Grant explained that they were visiting their grandmother’s apartment to get a key, and Grant’s cousin asked if they were doing anything wrong.163 The Asian officer responded, “I’m the one that’s talking here.”164 When Grant’s cousin said that he just wanted to know if there was a problem, the Asian officer told him to “hush up” and there would not be any problems.165 Then the officers made Grant, his cousin, and his friend stand with their backs against a wall and take out their IDs.166 When only Grant had an ID, the Asian officer told Grant’s cousin and friend: “I could take you in because you don’t have ID.”167 The Asian officer then wrote down Grant’s cousin’s and friend’s names and birthdates in a notepad while the white officer did the same for Grant.168
Then the Asian officer returned Grant’s ID and told the group to turn around and place their hands against the wall. The Asian officer asked Grant’s
163 See id. at 455:19–20, 456:8–12. 164 Id. at 456:13. 165 Id. at 456:18–19. 166 See id. at 456:21–457:5. 167 Id. at 457:15. I know of no law stating that failure to carry an ID, standing alone, provides probable cause for an arrest. 168 See id. at 457:18–21.
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cousin whether he had any drugs or blades in his pockets, then grabbed his shoulders and patted him down to the ankles, stopping to remove all the contents from his pockets.169 The white officer frisked Grant’s friend and Grant. Finally, the Asian officer told the group to put their backs against the wall again, warned them to carry their IDs with them, and explained that the officers had wanted to make sure the group was not trespassing. J.A.G. came outside shortly after the officers left. Grant testified that he did not feel free to leave until the officers told him to go home.170
I find Grant’s testimony largely credible, though it conflicted in certain minor details with his deposition testimony.171 Defendants argue that the officers approached based on the group knocking on the door, rather than on the suspicion of trespass.172 But I accept Grant’s testimony that the John Doe defendant Asian officer mentioned trespassing as the basis for the stop.173
e. Roshea Johnson’s Stop
169 Again, as in the cases of Bradley and J.G., the officer’s conduct clearly exceeded the constitutional bounds of a frisk.
170 See id. at 458:3–459:21, 461:4–24, 462:3–5. 171 For example, Grant stated at the deposition that the Asian officer frisked all three members of the group. See id. at 467:8–9. 172 See Def. Findings ¶ 19. 173 See Tr. 10/17 at 461:4–19.
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Roshea Johnson is the brother of plaintiff Letitia Ledan.174 From 2001 through 2010, Johnson lived at River Park Towers, a complex of buildings in the Bronx. Sometimes he lived with Ledan, and at other times with a friend. River Park Towers is enrolled in Operation Clean Halls.175
On the morning of Father’s Day 2010, Johnson, who is black and was then thirty-four years old, went to Ledan’s apartment to change into clothes he had left there. To enter River Park Towers, it is not necessary to pass through security or a closed gate, or to have a key. Johnson walked into Ledan’s building and took the elevator to her floor. When he knocked at Ledan’s door, there was no answer. He went back to the elevator and returned to the ground floor, planning to call Ledan on the payphone in front of a supermarket in the complex.176
As Johnson crossed the street to the payphone, a black van pulled up with police officers inside. One officer asked him where he was coming from.177
174 See Tr. 10/16 at 394:2–395:2. Roshea Johnson is unrelated to plaintiff Kieron Johnson. See id. at 393:20–22.
175 See id. at 298:11–19, 394:2–395:2. 176 See id. at 394:3–399:7. 177 See id. at 399:21–400:13. Defendants have not located a UF-250 connected to Roshea Johnson’s stop, or identified the officers involved in the stop, despite Roshea Johnson’s precise identification of the time and place of his stop and his detailed physical descriptions of the officers. See Musick Chart (incident 11); Tr. 10/16 at 401:20-402:3.
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Johnson told the officer he was coming from his sister’s house but she was not home.178 Then the officer “mentioned something about trespassing.”179 Johnson tried to tell the officer that he could prove he was not trespassing, and that he had a letter in his pocket with his name and his sister’s address on it. The officer responded by handcuffing Johnson and placing him in the back of the van.180
The officers then drove the van to another part of the complex and questioned Johnson.181 One of the officers asked Johnson “where was the drugs or the guns at.”182 Johnson said he “didn’t know where the drugs or the gun was.”183 The officers continued asking similar questions for a few minutes, then pulled out of the complex.184 During the drive, the officers “said you could make it easy on yourself if you tell us where the guns and the drug was, but I didn’t know where no guns or drugs was.”185 Finally, after about fifteen or twenty minutes, the officers
178 See Tr. 10/16 at 400:14–15. 179 Id. at 400:17. 180 See id. at 400:17–401:18. 181 See id. at 402:4–22. 182 Id. at 402:19–20. 183 Id. at 402:21–22. 184 See id. at 402:23–403:8. 185 Id. at 403:11–13.
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pulled over at a location about a mile from River Park Towers, opened the door, and told Johnson to get out of the van.186 “When I got out of the van, he said maybe you don’t know nothing, and took the handcuffs off me and let me go.”187 Looking back, Johnson said that the encounter made him feel “angry and kind of helpless.”188
I find Johnson’s testimony credible. Johnson provided no grounds for suspicion of trespass as he entered and exited Ledan’s building. He also provided no grounds for suspicion in his interactions with the officers. Nor did Johnson’s conduct provide any other basis for a stop.
f. Letitia Ledan’s Stops Letitia Ledan, Roshea Johnson’s sister, testified that she has lived at River Park Towers for the past eleven years. She chairs the maintenance and elevator committee in the tenants’ association. As noted above, River Park Towers is enrolled in Operation Clean Halls.189 Ledan, who is black, testified that she has been stopped six times in or
186 See id. at 403:15–20, 403:25–404:3. 187 Id. at 403:18–20. 188 Tr. 10/17 at 417:21–23. 189 See Tr. 10/16 at 297:2–298:19.
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around her building. Twice the stops occurred outdoors. The first took place at some time in 2009, although she could not provide a more precise date. Two white male officers stopped her in front of a supermarket in the River Park Towers complex as she was about to leave the complex. They asked her whether she lived there and whether she had an ID, then took her ID, looked at it, handed it back to her, and said to have a nice day. During the roughly three-minute encounter, she did not feel free to leave because the officers were standing in front of her and had her ID.190
Ledan’s second outdoor stop occurred in the summer of 2011. Ledan was returning home from work in the afternoon and saw four uniformed police officers standing with her husband and two of her friends in front of her building. While one of the officers patted down one of Ledan’s friends, another was patting down Ledan’s husband and removing items from his pockets. As Ledan approached her building, she asked what was going on.191 Then an officer approached her, and she asked, “[W]hy are you stopping us?”192 The officer told her to be quiet and asked whether she lived at the building, then asked for her ID,
190 See id. at 300:22–24, 301:1–14, 302:5–25, 317:18–25. 191 See id. at 306:16–308:8. 192 Id. at 308:8–10.
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which she gave to him.193 After returning her ID and finishing the search of her husband and friends, the officers “just started walking away.”194 As in 2009, Ledan did not feel free to leave during the encounter because the officer blocked the entrance to her building and had her ID.195
I find Ledan’s testimony as to both encounters credible. Plaintiffs have failed to establish, however, that Ledan’s encounters constituted Terry stops. Despite Ledan’s subjective feeling that she was not free to leave in the first encounter, Ledan’s limited testimony tended to show that the officers approached and asked her questions politely and not in an aggressive, coercive, or threatening manner. “[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; [and] ask to examine the individual’s identification . . . as long as the police do not convey a message that compliance with their requests is required.”196 Ledan’s testimony did
193 See id. at 308:10–19. 194 Id. at 308:19–309:4. 195 See id. at 328:22–330:4. 196 Bostick, 501 U.S. at 434–35 (collecting cases) (citations omitted). Accord Delgado, 466 U.S. at 216 (“[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation . . . [u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded.”).
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not provide adequate evidence that the police conveyed a message that compliance
with their requests was required, and thus that she was not free to terminate the
encounter.
Similarly, Ledan’s testimony concerning her second encounter with
the police suggested that it was consensual. Without delving into the intricacies of Fourth Amendment case law concerning consensual stops,197 the Supreme Court
has made clear that “[l]aw enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures merely by approaching
individuals on the street or in other public places and putting questions to them if they are willing to listen.”198 Ledan testified that in her second encounter, she
approached the police, initiated the encounter, and questioned the police before
being questioned by them. Based on this testimony, I find that Ledan’s second
encounter was most likely consensual.
197 Even when the Supreme Court has found consent for a search, it has held that the “terminate the encounter” standard defines a Terry stop. See, e.g., Drayton, 536 U.S. at 200–01 (“The proper inquiry ‘is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’” (quoting Bostick, 501 U.S. at 436)). See also LAFAVE, SEARCH & SEIZURE § 9.4(a) (“[I]t does not appear . . . that the Mendenhall-Royer [‘free to leave’] test is intended to divide police-citizen encounters into their seizure and nonseizure categories by reliance upon the amorphous concept of consent.”).
198 Drayton, 536 U.S. at 200 (citing Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion)).
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g. Fernando Moronta’s Stop Fernando Moronta, who is Latino, was thirty-six years old at the time of the hearing. He lives in a Clean Halls building in the Bronx. One day after work in the winter of 2008, Moronta went with his brother, Eladio Vasquez, to his brother’s apartment building at 1453 Walton Avenue in the Bronx, which is also a Clean Halls building.199 When Moronta left the building at around 10:30 p.m., a police van pulled up and half a dozen uniformed officers exited and began questioning Moronta about where he was going and what he was doing in the building. After Moronta explained that he had been at his brother’s apartment, one of the officers asked if he had anything sharp in his pockets and then patted him down and searched his pockets.200 Then the officer asked if they could go upstairs to confirm Moronta’s story, and Moronta gave his permission. A white officer asked for Moronta’s ID.201 On the way up in the elevator, a black officer told Moronta that he “better be telling the truth,” because if Moronta’s brother did not live in the
199 See id. at 340:24–341:4, 342:1–343:13, 343:14–344; Pl. Findings ¶ 43 (“Eladio”).
200 Once again, as in the searches of Bradley, J.G., and Grant, the officer violated the Fourth Amendment by exceeding the constitutionally permissible scope of a frisk.
201 See Tr. 10/16 at 344:24–346:11. 61

building, Moronta would be arrested for trespassing.202
At the door, Moronta’s brother identified Moronta, and after the white
officer compared the name given to the name on Moronta’s ID, “he looked at me and smirked and gave my ID back.”203 On the way down the elevator, the officers
explained that they had stopped Moronta because “the neighborhood is bad, got drugs and stuff like that.”204 Moronta stated that he did not feel free to leave until he left his brother’s building.205
I find Moronta’s testimony credible. Moronta provided no grounds
for suspicion as he exited his brother’s building, or in his responses to the officers’
questions. Moronta’s conduct provided no other basis for a stop.
h. Kieron Johnson’s Stop
Kieron Johnson, who is black, was twenty-one years old at the time of
202 Id. at 346:14–18. 203 Id. at 346:19–347:4. 204 Id. at 347:6–9. 205 See id. at 346:12–349:1. Moronta’s initial inability to remember whether the stop occurred in the winter of 2007 or of 2008 does not significantly undermine his credibility. See id. at 350:12–24. Defendants also note that plaintiffs’ Complaint alleges that Moronta’s stop occurred in 2010. See Def. Findings ¶ 22 n.10; Compl. ¶ 129. But Moronta testified that he had not looked at the Complaint closely enough to notice the error until three days before his hearing testimony, and that plaintiffs’ counsel may have confused the stop to which he testified with an arrest for trespass in 2010. See Tr. 10/16 at 350:22–352:18.
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the hearing. He lives in a Clean Halls building in the Bronx and testified to having
been stopped in or near Clean Halls buildings seven or eight times, and to having
seen others stopped about ten times. His best friend, plaintiff Jovan Jefferson, lives across the street at 1546 Selwyn Avenue, another Clean Halls building.206
On a warm day in 2010, around noon, Jefferson invited Johnson over
to play basketball. Johnson went to Jefferson’s building and waited outside, about six steps away from the door.207 After about two minutes, two uniformed officers “pulled up in a car and . . . jumped out and ran out and around me.”208 One asked
whether Johnson had been in the building. After he replied that he had not, one of
the officers asked for his ID while the other patted down his front pockets and reached into his back pockets, where he kept his wallet.209 The officer looked
through his wallet, then the other officer returned his ID and told him he was free to go. Until then, Johnson did not feel free to leave.210
206 See Tr. 10/16 at 377:11–379:22. 207 See id. at 380:1–381:11. 208 Id. at 381:12–23. 209 Yet again, as in the cases of Bradley, J.G., Grant, and Moronta, the officer who searched Johnson violated Johnson’s Fourth Amendment rights by reaching into his pockets during a frisk without a reasonable basis in selfprotection. 210 See id. at 382:6–383:5. Johnson stated that after the incident, he felt “[e]mbarrassed and worried,” because “there’s usually people outside and I don’t
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I find Johnson’s testimony credible, despite his inability to offer a more precise date for the stop. Defendants argue that Johnson’s stop was not for trespass, because he testified that at the time of the stop, he believed the officers were truancy officers.211 But defendants offer no persuasive evidence that the officers were, in fact, truancy officers.212 Even if the officers were truancy officers, defendants fail to show how this fact would undermine plaintiffs’ claim that Johnson was stopped on suspicion of trespass.213 Presumably truancy officers are no less able to make trespass stops than any other kind of officer. Moreover, Johnson’s testimony that the officers asked him whether he had been inside the building suggests a trespass stop.214 Based on Johnson’s testimony, I find that he provided no grounds for suspicion of trespass as he waited outside Jefferson’s building, in his responses to the officers’ questions, or in any other manner.
i. Jovan Jefferson’s Stop Jovan Jefferson, who is black, was twenty years old at the time of the hearing. As noted above, he lives in a Clean Halls building in the Bronx.
like when they see me being stopped by officers.” See id. at 384:7–10. 211 See id. at 385:4–13; Pl. Findings ¶ 17. 212 See Tr. 10/16 at 385:4–387:19, 389:8–391:5, 392:3–10. 213 Cf. id. at 387:21–23. 214 See id. at 382:6–10. 64

Jefferson testified that he had been stopped outside Clean Halls buildings about seven to eight times, and inside Clean Halls buildings about three to four times. Jefferson’s friend Brandon Muriel lives at 1515 Selwyn Avenue, another Clean Halls building in the Bronx.215
Jefferson testified that his most recent stop outside a Clean Halls building occurred between April and June 2012. He and Muriel had been watching SportsCenter in Muriel’s apartment when Muriel left for work. It was shortly after noon as the two of them stepped out of Muriel’s building.216 A passing police van stopped and three officers got out, including two that Jefferson recognized as officers named “Marquez” and “Rodriguez.”217 Jefferson testified that these officers had previously stopped him inside his building, and had arrested Kieron Johnson for trespass inside Jefferson’s building at a time when Jefferson was with him. The officers had also arrested another friend of Jefferson’s for trespass.218 I
215 See id. at 359:17–361:14. 216 See id. at 361:15–362:16. 217 Id. at 362:18–363:15; Compl. ¶ 83. Officer Luis Rodriguez testified to being a truancy officer who patrolled Selwyn Avenue between April and June 2012. See Tr. 10/22 at 1067:1–18. Rodriguez testified that he recognized Jefferson but did not remember stopping him between April and June 2012. See id. at 1068:8–1069:5. 218 See Tr. 10/16 at 363:14–364:8.
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find it more likely than not that Rodriguez participated in the stop that Jefferson described.
Rodriguez asked Jefferson and Muriel where they were coming from and why they were in the building. The officers also asked Muriel for his ID. Then Jefferson’s mother drove by with his aunt.219 After his mother got out and approached the officers, Rodriguez stated that Jefferson was “free to go and that he was just talking to me.”220 Jefferson testified that he did not feel free to leave before his mother approached.221
I find Jefferson’s testimony largely credible, despite his failure during his deposition to remember the stop to which he testified at the hearing.222 Given the number of times Jefferson has apparently been stopped, it is understandable that he might forget one and then remember it later, just as it would be understandable if a police officer were unable to remember a relatively brief, unrecorded stop. I find that neither Jefferson nor Muriel provided grounds for
219 See id. at 364:22–365:17. 220 Id. at 365:7–13. 221 See id. at 366:13–15. He also stated that the stop made him feel the officers were biased “because I am being stopped all the time just because of the kind of neighborhood that I live in.” Id. at 366:16–22. 222 See id. at 370:11–372:3.
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suspicion of trespass as they exited Muriel’s building, as they responded to the
officers’ questions, or in any other manner.
3. Expert Testimony Regarding UF-250 Forms
Plaintiffs’ expert witness, Dr. Jeffrey Fagan, is a criminologist with expertise in statistics.223 Dr. Fagan performed a statistical analysis of data
contained on certain UF-250 forms completed by NYPD officers in the Bronx in 2011.224 As noted above, officers are required to complete a UF-250 form after each stop.225 The front and back of the form contain various checkboxes and fields
in which officers indicate the nature of the stop and the circumstances that led to the stop.226
Dr. Fagan ultimately concluded that the NYPD recorded 1,663 stops
outside a Clean Halls building in the Bronx in 2011 based only on a suspicion of trespass, and without observing any indoor behavior.227 Of these stops, Dr. Fagan
223 See Floyd v. City of New York, 861 F. Supp. 2d 274, 279–80 (S.D.N.Y. 2012) (describing Dr. Fagan’s qualifications).
224 See Fagan Report at 2. Dr. Fagan extracted the data from the City of New York’s Stop, Question, and Frisk Database. See id.
225 See id. at 3; Tr. 10/15 at 69:24–70:1. See also infra Part V.B.1.a (more detailed discussion of UF-250 forms).
226 See infra Appendix B (“App. B.”). 227 See Fagan Report at 2–6 & nn.2–8 (analysis leading to original count of 1,857 stops); Apps. C–E to Fagan Report (exclusion of stops where indoor
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concluded that 1,044 lacked any justification on the front or back of the UF-250
form that would have constituted reasonable suspicion of trespass.228 In other
words, Dr. Fagan concluded that sixty-three percent of the recorded trespass stops
outside Clean Halls buildings in the Bronx in 2011 where no indoor behavior was
observed were not based on any articulated reasonable suspicion.229
Defendants offer a number of arguments against Dr. Fagan’s
conclusions. First, they argue that it is impossible to conclude whether reasonable
suspicion existed for a stop based on a UF-250 alone because “it is a conclusory
form that does not capture all details, nuances and circumstances that may lead to a
stop.”230 Defendants argue that Dr. Fagan had an obligation to incorporate into his
behavior was observed); Tr. 10/15 at 73:5–77:7 (general search method), 114:23–115:2 (exclusion of alleged NYCHA stops), 117:20–119:20 (recapitulation of general search method); Table 14: Period of Observation of Proximity Stops, Bronx Trespass Stops, 2011 (“Period of Observation Table”), Pl. Ex. 98 (stop totals at various stages of analysis).
228 See Fagan Report at 15 tbl. 8; App. L to Fagan Report; Tr. 10/15 at 114:4–115:2.
229 See Tr. 10/15 at 115:1–2. 230 Def. Findings ¶ 3 n.1. In Arvizu, the Supreme Court rejected the Ninth Circuit’s attempt to clarify the reasonable suspicion standard by analyzing various stop factors in isolation as part of what the Supreme Court described as a “reasonable-suspicion calculus.” 534 U.S. at 272. The Supreme Court emphasized the importance of looking to the “‘totality of the circumstances’” in reasonable suspicion analyses. See id. at 273 (quoting Cortez, 449 U.S. at 417–18). Dr. Fagan’s report, though quantitative, attempts no such mechanistic analysis, because
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analysis other sources of information, such as “911 calls or SPRINT Reports, memobooks, arrest and complaint reports, Trespass Crimes Fact Sheets, Owner’s Affidavits and/or criminal court complaints.”231 Defendants also criticize Dr. Fagan for having no expertise regarding police training on street stops and reasonable suspicion, and for having conducted no interviews with police personnel.232
If defendants believe that such research would have shown that reasonable suspicion existed for some or all of Dr. Fagan’s 1,044 unlawful stops, defendants were free to conduct such research themselves and introduce evidence rebutting Dr. Fagan’s conclusions regarding specific UF-250 forms. Defendants
it does not claim to be the final word on whether reasonable suspicion existed for any individual stop in the UF-250 database. See Fagan Report at 15 (identifying stops “where there does not appear” to be any combination of factors justifying a trespass stop (emphasis added)). Accord Floyd, 861 F. Supp. 2d at 293 (noting that “(il)legality of a stop” cannot be “conclusively determined on the basis of paperwork alone,” and clarifying that the UF-250 database “is necessarily an incomplete reflection of the totality of the circumstances leading to each stop”). Unlike a hearing on a single motion to suppress, this hearing aims to determine, based on necessarily limited data, whether the City and NYPD engaged in a widespread practice of constitutional violations.
231 Def. Findings ¶ 7. 232 See id. ¶ 4.
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did not.233 In general, as I stated when evaluating Dr. Fagan’s methods in Floyd,
the contents of UF-250s are admissible and probative.234 As defendants themselves
emphasize, officers are required to record all the reasons justifying a stop,235 and
the UF-250 provides spaces for officers to record any reason.236 To the extent that
plaintiffs used the UF-250 database primarily to estimate the magnitude of the
problem at issue in this case, plaintiffs were under no legal obligation to
supplement “the extremely rich and informative material”237 contained in the UF-
233 Similarly, defendants speculate that some of the buildings Dr. Fagan identified as Clean Halls buildings might not have been enrolled in Clean Halls on the date of the stop. See id. ¶ 10. Yet defendants fail to identify a single stop for which this was actually the case.
234 See Floyd, 861 F. Supp. 2d at 290–91. Defendants’ expert misquotes this earlier opinion as flatly holding that “it would be improper to declare certain stops ‘unjustified’ and others ‘justified’ on the basis of paperwork alone.” Report of Defendant[s’] Expert Dr. Dennis Smith in Response to Plaintiffs’ Expert Dr. Jeffrey Fagan (“Smith Report”), Def. Ex. JJJJ, at 3 n.3 (quoting Floyd, 861 F. Supp. 2d at 291). In fact, the quoted sentence continues: “without offering any qualifications: a perfectly lawful stop cannot be made unlawful because the arresting officer has done a poor job filling out the post-arrest paperwork; nor can an egregiously unlawful stop be cured by fabrication of the paperwork.” Floyd, 861 F. Supp. 2d at 291 (emphasis added). Plaintiffs have presented Dr. Fagan’s conclusions in the instant case with the appropriate qualifications.
235 See Def. Findings ¶ 4 (“NYPD training evidence . . . clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]” (citing Tr. 10/15 at 86:12–87:2)); Tr. 10/19 at 849:13–19 (testimony of NYPD Chief James Shea).
236 See App. B.
237 Floyd, 861 F. Supp. 2d at 292.
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250 database with other paperwork or testimony. In any case, even if there are reasons to believe that Dr. Fagan’s
exclusive reliance on UF-250s led to inaccuracies, the inaccuracies generally favored defendants, not plaintiffs. UF-250s present a one-sided picture of a stop: they are completed not by neutral third parties, or with the cooperation of the stopped person, but by officers who have obvious incentives to justify the stops they have made.238 More significantly, evidence from the hearing suggested that many stops take place for which no UF-250 form is ever generated. Sgt. Musick failed to identify a single UF-250 form for any of the eleven stops to which plaintiffs testified,239 and in both of the stops where officers were clearly identified, the officers admitted that they had failed to complete a UF-250 for the stop.240 Plaintiffs also introduced two reports by the Civilian Complaint Review Board (“CCRB”) stating that there is a systemic problem with officers failing to complete
238 This conclusion receives anecdotal support from Officer Santiago’s erroneous paperwork regarding Bradley’s arrest, which tended to overstate rather than understate the justifications for the arrest. See Bradley Fact Sheet.
239 See Tr. 10/23 at 1125–1143. 240 See Tr. 10/22 at 1024:2–7 (Officer Ramdeen’s failure to complete UF250 for Turner’s stop); Tr. 10/23 at 1110:3–18 (Officer Santiago’s failure to complete UF-250 for Bradley’s stop).
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UF-250 forms after stops.241
In light of the above, I reject defendants’ contention that the sole
reliance on UF-250 forms as a statistical tool provides a categorically inadequate
basis for determining the rough magnitude of unlawful stops in this case. I also
find that failures to fill out UF-250 forms likely led to a significant undercounting
of both lawful and unlawful stops in Dr. Fagan’s analysis.
Second, defendants attack Dr. Fagan’s analysis based on his failure to
take account of a field on the UF-250 labeled “Period of Observation Prior To Stop.”242 Defendants correctly note that the location field that Dr. Fagan matched
to Clean Halls addresses indicates not the location of the suspected trespass but the location of the stop.243 According to defendants’ theory, Dr. Fagan’s analysis
overcounted the number of outdoor stops based on suspicion of trespass in Clean
241 See CCRB 2010 Annual Report, Pl. Ex. 78, at 13 (2010 report describing failure to fill out UF-250s as “major failure[]”); CCRB 2011 Annual Report, Pl. Ex. 79, at 14 (2011 Report describing same as “major categor[y] of failure”). I note that the NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck may be read as suggesting, erroneously, that UF-250s need not be prepared when a stop results in arrest: “If the investigation does not lead to an arrest the individual must be released immediately, and a UF-250 must be prepared.” NYPD Legal Bureau, Street Encounters PowerPoint Presentation (“Street Encounters Presentation”), Def. Ex. J, at 27. But see id. at 33 (stating that a UF-250 must be prepared for every stop that is based on reasonable suspicion).
242 See Def. Findings ¶ 6; App. B. 243 See Tr. 10/15 at 45:14–47:4.
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Halls buildings because officers may have stopped someone near a Clean Halls building on suspicion of trespass in a nearby building.244 As defendants conceded in their opening argument, however, the possibility of a discrepancy between the location of the suspected trespass and the location of the stop “cuts both ways.”245 Just as Dr. Fagan’s analysis might erroneously include stops that were in fact based on suspicion of trespass in a building near a Clean Halls building, so might his analysis erroneously exclude stops that were based on suspicion of trespass in a Clean Halls building but took place elsewhere.246 I am not persuaded that one effect would be larger than the other.
On the other hand, there is some validity to defendants’ argument that Dr. Fagan’s method might have failed to exclude stops based wholly or in part on observations of indoor behavior, despite Dr. Fagan’s attempt to exclude these stops.247 Dr. Fagan assumed that whenever an officer checked “Outside” rather than “Inside” on a UF-250 and gave no indication elsewhere on the form of having
244 See Def. Findings ¶¶ 6, 10; Tr. 11/7 at 1309:9–1310:22. 245 Tr. 10/15 at 47:1–4. Accord Fagan Report at 5–6 (noting underinclusive results of Dr. Fagan’s “exact match” method). 246 I address below defendants’ argument that the period of observation field could contribute to reasonable suspicion. 247 See Def. Findings ¶ 10.
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observed indoor behavior,248 the officer’s suspicion was not based at all on an observation of indoor behavior.249 But it is easy to imagine an officer observing
behavior inside a Clean Halls building, making a stop outside, checking the
“Outside” box as a result of the stop location, describing the location of the
outdoor stop in greater detail in the “Type of Location” field, and failing to
indicate elsewhere on the form that all or part of the observed behavior took place
inside.
Nonetheless, defendants have failed to show why it was necessary for
Dr. Fagan to exclude all stops involving the observation of indoor behavior in the
first place. An outdoor stop based on the observation of unsuspicious indoor
behavior may be just as unconstitutional, and just as potentially relevant to establishing a pattern of unlawful trespass stops outside Clean Halls buildings,250 as
248 According to plaintiffs, the UF-250 database fields that could contain text suggesting an observation of indoor behavior included the field called “premname,” as summarized in App. D to the Fagan Report, and the field called “detailSA,” as summarized in App. E to the Fagan Report.
249 See Fagan Report at 3–4; Tr. 10/15 at 73:8–77:7, 128:1–130:16. 250 See Pl. Findings ¶ 69 (stating plaintiffs’ claim as follows: “[T]he defendants have a pattern and practice of unlawful stops on suspicion of trespassing outside TAP buildings in the Bronx.”). Some of the text strings in Fagan Report Appendices D and E that indicate indoor behavior also indicate reasonable suspicion for a trespass stop, such as “DRINKING IN REAR OF BUILDING,” and “STAIRWELL DRINKING.” App. E to Fagan Report. Many others, however, do not. See App. D to Fagan Report (excluding stops with text
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a stop based solely on the observation of unsuspicious outdoor behavior near a
TAP building, or a person exiting a TAP building. Perhaps Dr. Fagan attempted to
exclude all stops involving the observation of indoor behavior because these stops
as a group tend to have a greater likelihood of being based on reasonable
suspicion, especially if the officer observed the person indoors for a long period of time. If so, the exclusion was a gesture of methodological conservatism,251 and the
apparent unfeasibility of perfectly executing the exclusion should not be held
against plaintiffs. While Dr. Fagan’s methods may have failed to exclude some
stops that were preceded by an observation of indoor behavior, this failure, by
itself, is unlikely to have any significant impact on the validity of Dr. Fagan’s conclusions.252
Third, defendants criticize Dr. Fagan for having departed from
strings such as “LOBBY,” and “VESTIBULE”); App. E to Fagan Report (same with text strings such as “INSIDE CLEAN HALLS,” and “SUSPECT OBSERVED INSIDE CLEAN HALL BUILDING”).
251 Dr. Fagan’s testimony suggested that he attempted to exclude any stop that was “not purely an outdoor stop.” See Tr. 10/15 at 74:3–5 (emphasis added).
252 A similar argument applies to defendants’ assertion that Dr. Fagan’s method failed to exclude some stops that took place outside a Clean Halls building but within the legal limits of the property on which the building sits. See Def. Findings ¶ 10; Tr. 10/15 at 128:1–9. An unconstitutional stop outside a Clean Halls building but within the property line can support the existence of a pattern of unconstitutional stops outside Clean Halls buildings just as well as an unconstitutional stop a few steps outside the lot boundary.
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methods he used to analyze UF-250 forms in Davis and Floyd.253 I decline to evaluate Dr. Fagan’s simple methods in the instant case through the circuitous route proposed by defendants of analyzing Dr. Fagan’s far more complicated methods in the other two cases, determining whether those methods were valid, comparing those methods to Dr. Fagan’s methods in the instant case, analyzing whether Dr. Fagan’s methods in the instant case are consistent with the methods in the other two cases, and then, if any inconsistency arises, rejecting Dr. Fagan’s methods in the instant case on that basis. Instead, I will simply evaluate the validity of Dr. Fagan’s methods in the instant case on their own terms.
Furthermore, it would be entirely understandable if the application of the method from Floyd to the instant case resulted in a lower count of unlawful stops than the method Dr. Fagan used here. The explanation for such a discrepancy is apparent. Dr. Fagan used more conservative assumptions throughout Floyd than in the instant case, and with valid reason.254 The universe of stops that Floyd analyzes for unconstitutionality is vastly larger than the universe
253 See Def. Findings ¶ 4 (citing generally Dr. Fagan’s analyses in Floyd and Davis).
254 For example, Dr. Fagan assumed in Floyd and Davis, which also dealt with a far larger universe of stops, that Furtive Movements in combination with High Crime Area should be coded as constituting reasonable suspicion. See Tr. 10/15 at 151:2–5.
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analyzed for unconstitutionality as part of the instant motion — 2.8 million stops
versus 1,663.255 As a result, the plaintiffs in Floyd have less of a need for precision
than plaintiffs in the instant case. That does not mean that plaintiffs’ precision in
the instant case is spurious. Dr. Fagan’s credibility should hardly be questioned in
the instant case simply because, for whatever strategic or pragmatic reasons, he
chose cautious but more manageable methods in another case that might result in a
large number of unlawful stops being coded as lawful. Once again, the relevant
question in evaluating Dr. Fagan’s methods in the instant case is whether the
methods are valid here, not whether they are identical to the methods used in a
different case based on a different universe of stops.256
Fourth, defendants persuasively note that Dr. Fagan’s analysis,
255 Compare Floyd, 861 F. Supp. 2d at 278, with Period of Observation Table.
256 In addition, I note that the method in Floyd aims to identify stops for which no reasonable suspicion of any crime exists, whereas the method in the instant case aims to identify stops for which no reasonable suspicion of trespass exists. Given a universe of forms recording stops based only on suspicion of trespass, there may be some forms containing data that could arguably constitute reasonable suspicion of some crime, but not of trespass. The Floyd method will identify these stops as arguably lawful, while Dr. Fagan’s method in the instant case will identify them as apparently unlawful. As a result, Dr. Fagan’s method in the instant case will result in a higher count of unlawful stops than his method in Floyd. This does not imply bad faith or a contradiction in Dr. Fagan’s methods, much less prove the invalidity of Dr. Fagan’s method in the instant case. Floyd and Ligon simply aim to assess different sets of stops.
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standing alone, does not provide a convincing methodology for establishing a
causal nexus between the Clean Halls program and the stops that Dr. Fagan analyzed.257 As Dr. Smith, stated in his report:
Professor Fagan’s methodology, by its very nature, cannot distinguish between whatever impact Clean Halls may have had on the pattern of Terry stops in the Bronx [and] the impact other factors . . . might have had on that same pattern. . . . [I]t would be invalid to conclude that Professor Fagan has demonstrated that the Clean Halls program itself, and its implementation, caused the outcomes Professor Fagan observes and the Plaintiffs challenge.258
In essence, Dr. Fagan selected a set of stops from the UF-250 database
based on several selection criteria — the stops had to be in the Bronx, on suspicion of trespass only, at the location of a Clean Halls address, outside, and so on259 —
and then determined how many of the stops in the set were unjustified. This
approach cannot show whether stops in the set were more likely to be unjustified
than stops in the UF-250 database in general, or stops in some other relevant set.
Much less can this approach show that belonging to the set causes an increased
likelihood that a stop will be unjustified. Just as Dr. Fagan analyzed the number
257 See Def. Findings ¶ 3 (citing Tr. 10/23 at 1172–77; Smith Report at 7–29).
258 Smith Report at 8 (emphasis added). 259 See Fagan Report at 8 tbl.1; Tr. 10/15 at 83:15–85:7, 124:25–126:17 (excluding stops at NYCHA addresses).
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and percentage of trespass stops outside Clean Halls buildings that were
unjustified, one could analyze the quantity of unjustified trespass stops outside any
arbitrary category of building — such as green buildings, or buildings with odd-
numbered addresses. If, hypothetically, the police were making a large number of
unjustified stops throughout New York City, the analysis would show that a large
number of stops outside odd-numbered buildings were unjustified. It would
obviously be inappropriate to infer from this that the police had a customary
practice of making unlawful stops outside odd-numbered buildings, or to grant a
preliminary injunction requiring the police to conduct specific training regarding stops outside odd-numbered buildings.260
Thus, defendants are correct that Dr. Fagan’s analysis, standing alone,
cannot establish a causal nexus between Clean Halls buildings and unlawful
trespass stops. But plaintiffs have already established a clear likelihood of proving
such a nexus based on other evidence. ADA Rucker credibly testified to the police
260 Plaintiffs imply in their Reply Memorandum of Law in Support of Plaintiffs’ Motion for Preliminary Injunction (“Reply Mem.”) that it is not necessary for plaintiffs to prove “that officers are stopping people because the building is enrolled in the Clean Halls program.” Reply Mem. at 3. But as the analogy to the odd-numbered building hypothetical suggests, this cannot be correct. Plaintiffs’ request for preliminary relief depends on there being a specific problem involving stops outside Clean Halls buildings, a problem that can only be partially solved by improving the general training regarding the law of stop and frisk.
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repeatedly making unjustified trespass stops and arrests outside Clean Halls buildings because they were Clean Halls buildings.261 One plaintiff testified that
an officer explained an unlawful trespass stop based on the fact that it took place outside a Clean Halls building.262 As discussed below, an officer in the NYPD’s
Legal Bureau learned through focus groups with sergeants and lieutenants that they
believed it was legal to approach and question, if not stop, anyone in a TAP building even without a reason for doing so.263 Finally, on 417 of the UF-250s in
Dr. Fagan’s original universe of 1,857 trespass stops outside Clean Halls buildings,
officers handwrote phrases or words to the effect of “Clean Halls” or “Trespass Affidavit.”264 The purpose of a UF-250 is to record the circumstances that led to an
261 See supra Part IV.A.1. 262 See Tr. 10/17 at 481:7–482:8 (Hispanic officer in Turner stop). I also note — though the evidence does not relate directly to the outdoor stops at issue in this case — that Officer Santiago testified that even after receiving the NYPD’s stop and frisk training at Rodman’s Neck, he still believed there was legal justification to ask anyone in the lobby or hallways of a Clean Halls building for an ID, even in the absence of any suspicion, reasonable or otherwise. See Tr. 10/23 at 1111:2–1113:10. Officer Santiago attempted to qualify this rule by stating that the building needed to be in a high crime area in order to justify a request for ID. See id. at 1111:9–22. He then undermined this qualification by stating, categorically, that all Clean Halls buildings are in high crime areas. See id. at 1111:24–1112:1. 263 See Tr. 10/18 at 648:18–649:16. 264 See Tr. 10/15 at 124:18–24.
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officer’s stop.265 The frequency with which officers took the time to note “Clean Halls” on a form, even though there is no specific field or checkbox and no reason for doing so,266 suggests that many officers thought a building’s enrollment in Clean Halls contributed to the justification for the stop.
Fifth, defendants challenge the methods and assumptions Dr. Fagan followed in processing the information contained on UF-250 forms into conclusions regarding the number of unlawful stops.267 Not surprisingly, defendants argue that many of the forms Dr. Fagan identified as lacking an articulation of reasonable suspicion in fact contained such an articulation. Because these arguments involve mixed questions of fact and law that depend on a finegrained analysis of what constitutes reasonable suspicion, I will address them in my conclusions of law below.268 In any case, the facts regarding how Dr. Fagan counted the number of unlawful stops are not in material dispute.
Based on the testimony of plaintiffs and others, the decline to prosecute forms, and the statistical analysis performed by Dr. Fagan and discussed
265 See id. at 123:17–20. 266 See id. at 124:14–17; Tr. 10/22 at 1058:24–1059:2, 1072:9–19; Tr. 10/23 at 1110:23–1111:1; App. B. 267 See Def. Findings ¶¶ 3, 6, 8–10. 268 See infra Part V.B.1.a.
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in greater detail below, I find that plaintiffs have shown a clear likelihood of laying
a sufficient factual foundation to prove that defendants have engaged in a
widespread practice of making unlawful trespass stops outside TAP buildings in
the Bronx.
B. Steps Taken by the NYPD in 2012 TAP began in the early 1990s in Manhattan.269 Despite the program’s
name, TAP was originally focused not on trespass but on narcotics sales taking
place in the common areas of private buildings, such as lobbies, stairwells, and rooftops.270 An officer who testified regarding the origins of TAP stated that “[t]he
more that we cracked down on drug sales on the street, the more that you saw drug dealers move indoors.”271 Before TAP, officers had to deal informally with
269 See Tr. 10/17 at 519:8–520:16; Smith Report at 10–11; NYPD Legal Bureau, Trespass Affidavit Program: Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings (“1999 TAP Legal Guidelines”), Def. Ex. O, at 1. When TAP expanded to the Bronx, it was called “Clean Halls,” though as of May 2012 the NYPD has begun referring uniformly to the program as TAP. See Tr. 10/17 at 520:17–521:7. In Queens, TAP was referred to, inexplicably, as “FTAP.” See id.
270 See Tr. 10/17 at 519:23–520:16. For the historical background of the War on Drugs, see WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 23–26, 267–74 (2011); MICHELLE ALEXANDER, THE NEW JIM CROW 40–58 (2010).
271 Tr. 10/17 at 519:14–16. 82

landlords to get permission to enter private buildings in search of drug sales.272
TAP provided a formal process for building owners to permit officers to conduct
“vertical patrols” inside the buildings.273
Defendants were unable to produce a single written policy or
procedure governing any aspect of TAP between the program’s origins in the early
1990s and the issuance of two orders in 2012, discussed below.274 Nor did
defendants produce evidence that the NYPD conducted any training or created any
training materials specific to TAP before 2012.275 Nor did the NYPD have an
272 See id. at 519:8–520:6. 273 See id. at 519:23–520:6. 274 See id. at 633:13–17. In 1999, the NYPD’s Legal Bureau created its “Legal Guidelines for Citizen Encounters in Trespass Affidavit Buildings.” See 1999 TAP Legal Guidelines. One passage of the fourteen-page document states: “IT SHOULD BE UNDERSTOOD THAT WHEN AN OFFICER IS NOT IN THE BUILDING (E.G., SITTING ACROSS THE STREET IN AN R.M.P.), MERELY OBSERVING AN INDIVIDUAL ENTERING AND EXITING THE BUILDING, OR SIMPLY EXITING THE BUILDING, IS NOT ENOUGH TO CONDUCT A STOP.” Id. at 6; Tr. 10/18 at 684:2–4. But Inspector Sweet testified that he did not know of anyone to whom the document had been distributed. See Tr. 10/18 at 654:5–7. Defendants argue that a document from 2000 called Patrol Guide 21259, “Vertical Patrol” (P.G. 212-59), Def. Ex. FFFF, governed TAP before the 2012 Interim Orders. See Def. Findings ¶ 26 & n.15 (citing P.G. 212-59). But P.G. 21259 provides general guidelines for conducting vertical patrols and makes no mention of TAP or Clean Halls. See Tr. 10/18 at 679:20–25. 275 For the first TAP-specific training and the absence of prior training, see the numerous citations to the record at Pl. Findings ¶ 48 & n.7.
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accurate and complete count of buildings enrolled in TAP prior to a survey conducted in the summer of 2012.276
1. NYPD Recognition of a Problem in TAP The improvements to TAP in 2012 had their roots in earlier years. Inspector Kerry Sweet, the executive officer of the NYPD Legal Bureau, testified that by early 2010, he had become involved in a group that was examining vertical patrols and trespass issues in NYCHA buildings.277 Inspector Sweet received approval to examine these issues in the TAP program as well.278 In the summer of 2010 through 2011, Inspector Sweet conducted focus groups with sergeants and lieutenants involved with TAP, and then with prosecutors and various NYPD officials.279 Inspector Sweet learned that “there really wasn’t a lot of direction about the administration of the program.”280 During his deposition, Inspector Sweet testified that he also learned of “some confusion” regarding TAP stops: [O]fficers believe their role might have been as doorman [or]
276 See Tr. 10/19 at 773:23–775:14. The survey revealed that there were over eight thousand buildings enrolled in TAP, including over three thousand in the Bronx. See id.
277 See Tr. 10/17 at 511:10–514:17. 278 See id. at 521:13–23. 279 See id. at 523:13–524:5, 528:11–13, 531:6–533:1. 280 Id. at 524:6–7.
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custodian, rather than a strict application of De Bour. And once again, understanding that they needed that articulate reason to approach somebody and that if you were a doorman, you could approach everybody, but that is not the case. . . . [I]n TAP buildings, you have to have a reason to approach people. . . . I wasn’t getting the sense necessarily that they were stopping people in their tracks, but they may have been asking everybody coming into a building, what are you doing here, what is your reason for being here. And that obviously isn’t what we want them to do nor is it probably the right thing to do under the De Bour standard.281
Inspector Sweet testified that Katherine Lemire, special counsel to Police
Commissioner Raymond Kelly, attended meetings with Inspector Sweet where this
problem was discussed.282
2. Interim Orders 22 and 23 of 2012
After completing the focus groups in 2010 and 2011, Inspector Sweet
helped to draft two new regulations to govern the TAP program: Interim Orders
281 Tr. 10/18 at 648:18–649:16. I note that Inspector Sweet’s testimony regarding what officers said at the focus groups appears to refer to the practice of stops without reasonable suspicion inside TAP buildings, and thus does not necessarily indicate that Inspector Sweet was aware of the problem of unlawful stops outside TAP buildings. At the hearing, Inspector Sweet also emphasized that his concern was with unlawful approaches, not unlawful stops. See id. at 649:20–650:7.
282 See id. at 650:18–651:17. 85

(“IOs”) 22 and 23, both published in May 2012.283 IO 23 of 2012 addresses
various administrative issues relating to TAP, including procedures for enrolling buildings in the program.284 IO 22 of 2012 lays out procedures for the conduct of vertical patrols inside TAP buildings, with an emphasis on trespass arrests.285 It
provides explicit guidance regarding when stops are lawful based on the suspicion
of trespass in a TAP building. The second page of the Order begins with an
italicized warning:
A uniformed member of the service may approach and question persons if they [sic] have an objective credible reason to do so. However, a uniformed member may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authorization.286
The next page, in a separate section, repeats the first sentence of this note, and then
continues, again in italics:
When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared as per P.G. 212-11, “Stop and Frisk.” Some factors which may contribute to
283 See Tr. 10/17 at 534:6–536:1; Interim Order 22 of 2012 (“IO 22 of 2012”), Def. Ex. A; Interim Order 23 of 2012 (“IO 23 of 2012”), Def. Ex. B. An “Interim Order” is a revision to a patrol guide procedure and becomes the policy of the NYPD upon publication. See Tr. 10/17 at 522:2–13.
284 See IO 23 of 2012. 285 See IO 22 of 2012 at 1 (¶ 1, “SCOPE,” and “PROCEDURE”). 286 Id. at 2.
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“reasonable suspicion” that a person is trespassing, in addition to those factors set forth in P.G. 212-11, “Stop and Frisk,” are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.287
The section continues by stating that a trespass arrest requires probable cause, and
that refusal to answer questions is insufficient to establish probable cause.288
As plaintiffs correctly note, however, IO 22 of 2012 makes no
reference to stops outside TAP buildings.289 It does not explicitly state that stops
outside TAP buildings require reasonable suspicion, and that merely exiting a TAP
building is insufficient to establish reasonable suspicion, even in a high crime
area.290
At the hearing, defendants offered evidence of numerous steps that
have been taken to support the implementation of IOs 22 and 23 of 2012.291 After
287 Id. at 3. 288 See id. 289 See Pl. Findings ¶ 54. 290 See IO 22 of 2012. 291 I give little weight to an August 20, 2012 memo from Chief of Patrol James P. Hall to all commanding officers. See 8/20/12 Memo from Chief of Patrol to Commanding Officer, All Patrol Boroughs, Def. Ex. E. The letter, distributed as the preliminary injunction hearing approached, contains a number of ambitious orders, such as that platoon commanders must personally critique all interior or exterior “street encounters” involving TAP buildings, including all stops. See id. ¶ 3. At the hearing, the executive officer of the Patrol Services Bureau testified
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any trespass arrest, officers must now complete a “Trespass Crimes – Fact Sheet” documenting the facts that established probable cause.292 The Chief of Patrol
distributed IOs 22 and 23 to 2012 to all commanding officers with a brief synopsis,293 pursuant to a two-page plan to promote knowledge of criminal trespass offenses among uniformed servicemembers.294 Legal Bureau and other personnel
offered instruction on IOs 22 and 23 of 2012 to training sergeants and special operations lieutenants,295 who were then expected to pass along the information to “the rank and file” at training sessions during roll call.296 Legal Bureau and other
that he was unaware of any supervisors conducting critiques of stops inside or outside of TAP buildings. See Tr. 10/19 at 759:6–15.
292 See Tr. 10/17 at 545:15–546:1, 559:24–560:7; Trespass Crimes – Fact Sheet, Def. Ex. H. While the use of this fact sheet may be a welcome development, it will do nothing to clarify officers’ confusion regarding the standards for making a stop outside a Clean Halls building. There is also a new “Trespass Crimes – Owner’s Affidavit” in support of the administrative goals of IO 23 of 2012. See Tr. 10/17 at 526:21–528:7; Trespass Crimes – Owner’s Affidavit, Def. Ex. G.
293 See 8/12/12 Memo from Chief of Patrol to Commanding Officers, All Patrol Boroughs, Def. Ex. C.
294 See 6/18/12 Memo from Chief of Patrol to Chief of Department (“Trespass Law Plan”), Def. Ex. D, ¶ 2.
295 See id. ¶ 3. 296 Tr. 10/19 at 789:19–790:5.
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personnel provided separate instruction to borough and precinct commanders.297
Some of the training involved the use of a newly prepared video on “Stop,
Question, and Frisk,”298 and an updated version of the Chief of Patrol Field
Training Guide.299
Many of these steps are peripheral to the concerns of this case. The
video and the Training Guide, for example, deal with stop and frisk in general, and
make no specific reference to trespass stops outside TAP buildings.300 In addition,
as discussed below, some of the training materials contain inaccurate or misleading
information that could exacerbate rather than resolve the problem of
297 See Tr. 10/18 at 711:24–714:11. 298 See, e.g., Tr. 10/22 at 996:2–4. 299 See Trespass Law Plan ¶ 6; July 2012 Chief of Patrol Field Training Unit Program Guide (“Training Guide”), Def. Ex. N. The Police Student’s Guide, which is hundreds of pages long, has also been revised to include several pages on IO 22 of 2012. See Police Student’s Guide (excerpt) (“Police Student’s Guide”), Def. Ex. RRR, at 30–34; Tr. 10/22 at 915:7–919:17. 300 See Training Guide at 10–24; NYPD Stop Question & (Possibly) Frisk Video Series, “Frisk,” (“SQF Training Video No. 5”), Def. Ex. T; Script of SQF Training Video No. 5, Def. Ex. U; Tr. 10/22 at 942:25–943:3 (nothing in film deals specifically with TAP). One page of the Training Guide, which was distributed only to the supervisors of IMPACT officers, reiterates IO 22 of 2012 by stating that reasonable suspicion is required for stops based on suspicion of trespass in a TAP building. See Training Guide at 65; Tr. 10/23 at 1252:1–3. The page makes no specific reference to stops outside TAP buildings, and could easily be read, in context, as a discussion of stops during vertical patrols. See Training Guide at 65.
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unconstitutional stops.301 3. Absence of Steps Meaningfully Addressing Outdoor TAP Stops During the hearing, defendants emphasized the training that officers
receive throughout their careers regarding the laws governing stop and frisk in general.302 This training has recently been supplemented by a refresher course on stop and frisk at the Rodman’s Neck training center in the Bronx.303 More than three thousand officers have attended the training course since its development in 2012.304
The root problem that led to unlawful trespass stops outside TAP buildings in the Bronx, however, based on ADA Rucker’s testimony and the other evidence introduced at the hearing, is that officers perceived trespass stops in the proximity of TAP buildings as exceptions to the general rules governing stop and frisk. Improving the training surrounding stop and frisk in general may do nothing to dispel the notion that there is an exception for stops outside TAP buildings.
IO 22 of 2012 makes clear that presence inside a TAP building is not
301 See infra Part V.B.1.b. 302 See Def. Findings ¶¶ 35–36. 303 See Tr. 10/17 at 571:25–572:23. 304 See Tr. 10/19 at 888:1–2; Tr. 10/22 at 955:8–13.
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a sufficient basis for a stop, and that stops made during vertical patrols of TAP
buildings must be based on reasonable suspicion. But IO 22 of 2012 and the
training introduced in support of it present themselves as guides to conducting
vertical patrols inside a TAP building, not guides for making trespass stops and
arrests outside TAP buildings. The difference may seem insignificant when
viewed in the abstract. In theory, officers should be able to infer from the rules in
IO 22 of 2012 how to perform lawful trespass stops outside TAP buildings.
In practice, however, the evidence at the hearing suggests that NYPD
officers are trained to carry out their duties according to a set of standard operating
procedures. The NYPD’s training reduces the unpredictable, confusing challenges
that arise on patrol to a manageable set of standard situations and orderly
procedures for addressing them.305 If a recurring, problematic situation is not
305 IO 22 of 2012, for example, defines the standard scenario for a vertical patrol in a TAP building, lays out various common problems that may arise during such a patrol, and prescribes what to do and what not to do in response to them, including specific questions to ask. See IO 22 of 2012 at 2. After receiving training on IO 22 of 2012, including role-play simulations, see Tr. 10/19 at 836:7–840:13, an officer will have less need to improvise under pressure or base his or her responses on inferences from general principles or analogies to other scenarios. In this sense, the NYPD’s training follows the model of a traditional Western military academy, which aims “to reduce the conduct of war to a set of rules and a system of procedures — and thereby to make orderly and rational what is essentially chaotic and instinctive.” JOHN KEEGAN, THE FACE OF BATTLE 18 (1976). On the functioning of standard operating procedures in bureaucracies generally, see GRAHAM ALLISON & PHILIP ZELIKOW, ESSENCE OF DECISION 143–96 (2d ed. 1999) .
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included in the training, officers may categorize it in the wrong way and employ
inappropriate responses — such as stopping someone simply because he exited a
TAP building. The evidence at the hearing, as summarized in the previous section,
strongly supports the conclusion that many officers took such actions before
2012.306 Yet none of the steps taken by the NYPD in 2012 were directly and
meaningfully focused on uprooting the misconceptions regarding trespass stops
outside TAP buildings that resulted in the constitutional violations in this case.
In fact, based on the evidence at the hearing, the only piece of
instruction that has been provided to officers on a systematic basis and that
specifically targets the problem of outdoor trespass stops at TAP buildings is a
single bullet point included in a PowerPoint presentation offered by the Legal
Bureau as part of the Rodman’s Neck training.307 The bullet point, which takes up
306 As plaintiffs stated in their summation: “We have a 20-year program. There is a culture around these stops. So [corrective instruction] needs to happen periodically . . . so that people get the message.” Tr. 11/7 at 1373:2–6.
307 See Street Encounters Presentation at 40; Tr. 10/17 at 572:24–573:6; Tr. 10/18 at 663:13–664:1. A former commanding officer of the New York City Police Academy testified that the role-playing at Rodman’s Neck sometimes involves individuals standing outside of TAP buildings, but the individuals appear to play the role of civilian bystanders and witnesses, not suspects. See Tr. 10/19 at 815:11–14, 838:25–840:9. Chief Hall testified that “we have made [it] clear” to officers that “we do not want” them “stopping an individual outside of [a] Clean Halls building simply because they are exiting a building, without more.” Tr. 11/23 at 1244: 6–12. Chief Hall did not provide specifics as to how this was made clear. See id.
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one third of a page of a forty-five-page presentation, states: Observation of an individual exiting a NYCHA/TAP Building, without more, is not an objective, credible reason to approach that individual.308 As common sense would suggest, and evidence at the hearing
confirmed, attendees at the Rodman’s Neck training do not always absorb the lesson contained in this bullet point, or even recall having seen it. One officer who had recently attended the refresher course at Rodman’s Neck testified that he did not remember any discussion of TAP,309 and both he and another officer testified that they could not remember any training involving outdoor stops on suspicion of trespass.310
In light of the above, and in the absence of reliable statistics regarding stops in 2012, I find that defendants failed to introduce persuasive evidence regarding whether the improvements undertaken by the NYPD in 2012 have affected the magnitude of unlawful trespass stops outside TAP buildings in the Bronx.311
308 Street Encounters Presentation at 40. 309 See Tr. 10/22 at 1043:17–1044:13. 310 See id.; Tr. 10/23 at 1111:2–8. 311 Defendants introduced evidence of a dramatic reduction in declines to prosecute for trespass arrests, in general, in the Bronx in 2012. See, e.g., Tr. 10/18
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V. DISCUSSION
A. Standing
As a preliminary matter, defendants argue that plaintiffs lack standing to seek injunctive relief.312 I addressed this issue extensively in Floyd, and again in Davis, and the same analysis applies here.313 First, “[c]oncrete injury is a
prerequisite to standing and a ‘plaintiff seeking injunctive or declaratory relief
cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.’”314 Second, “‘[t]he
possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.’”315 Third, “‘the presence of one party with standing is sufficient to satisfy Article III’s case-or-controversy requirement.’”316
at 726:18–727:7; Tr. 10/23 at 1249:7–17. But this obviously does not provide a reliable basis for inferring that unlawful trespass stops outside TAP buildings have declined.
312 See Def. Findings ¶ 47. 313 See Davis, 2012 WL 4813837, at *26; Floyd, 283 F.R.D. at 169. 314 Floyd, 283 F.R.D. at 169 (quoting Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998)). 315 Davis, 2012 WL 4813837, at *26 n.225 (quoting Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir. 1985)). 316 Id. at *26 (quoting Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 53 (2006)).
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Abdullah Turner testified to two specific unlawful trespass stops
outside TAP buildings in the Bronx, and J.G. and Jovan Jefferson both referred to
having been stopped multiple times outside TAP buildings.317 The evidence
suggests that both of Turner’s stops were on suspicion of trespass.318 Furthermore,
Turner has lived since 2008 in a TAP building,319 where, based on the evidence
presented at the hearing, he will likely be the target of future unlawful stops — if
such stops continue to take place as they have in the past.320 This is sufficient to
317 See supra Part IV.A.2.b, c, i. Jefferson testified to being stopped seven to eight times outside TAP buildings. See Tr. 10/16 at 361:12–14.
318 See supra Part IV.A.2.b. 319 See Tr. 10/17 at 471:11–472:19, 486:9–487:1. 320 I also note, as I did in Floyd, that in light of the frequency of unlawful trespass stops outside TAP buildings in the Bronx, even those plaintiffs who have only been subjected to such a stop one time would likely have standing, provided that they continue to live in or visit TAP buildings. “‘[T]here is no per se rule requiring more than one past act, or any prior act, for that matter, as a basis for finding a likelihood of future injury.’” Floyd, 283 F.R.D. at 170 n.106 (quoting Roe v. City of New York, 151 F. Supp. 2d 495, 503 (S.D.N.Y. 2001)). Accord Battle v. City of New York, No. 11 Civ. 3599, 2012 WL 112242, at *3–4 (S.D.N.Y. Jan. 12, 2012) (concluding that plaintiffs, each of whom had only one alleged wrongful experience with NYPD officers under program involving searches of livery cars, had standing to pursue injunctive relief against NYPD, based on number of cars enrolled in the program and plaintiffs’ reliance on such cars); National Cong. for Puerto Rican Rights v. City of New York, 75 F. Supp. 2d 154, 161–62 (S.D.N.Y. 1999) (concluding that frequency of NYPD stops and plaintiffs’ belonging to groups distinctly affected by NYPD stop practices gave plaintiffs standing to seek injunctive relief).
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confer standing on plaintiffs.321
B. Preliminary Injunctive Relief
Plaintiffs seek a variety of injunctive remedies that would require the
NYPD to act in ways that depart from the status quo, including the development
and implementation of new formal policies, new training procedures, and burdensome new supervisory and monitoring procedures.322 Because the
preliminary injunctive relief sought by plaintiffs is thus mandatory rather than
prohibitory, plaintiffs must show (1) that they are clearly or substantially likely to
prove at trial that defendants are engaged in an ongoing custom of making trespass
stops outside TAP buildings in the Bronx in the absence of reasonable suspicion, in
violation of the Fourth Amendment; (2) that plaintiffs are likely to suffer
irreparable harm in the absence of injunctive relief; (3) that the balance of equities tips in plaintiffs’ favor; and (4) that an injunction is in the public interest.323
321 Of course, plaintiffs would not be likely to suffer injury in the future if the NYPD no longer had a custom of making unlawful trespass stops outside TAP buildings. But while defendants have introduced evidence of certain changes in the NYPD’s policies and training in 2012, defendants have not proven that the NYPD’s custom of making unlawful trespass stops outside TAP buildings has ended. See supra Part IV.B.3; infra Part V.B.1.b.
322 See Pl. Findings ¶¶ 72–75. The remedies proposed in this Opinion, though not identical to those requested by plaintiffs, remain largely mandatory in nature. See infra Part V.C.
323 See supra Part II. 96

The following sections address each of these factors in turn. 1. Clear or Substantial Likelihood of Success on the Merits Because plaintiffs do not assert that defendants have an explicit or formally approved policy of making trespass stops without reasonable suspicion outside TAP buildings in the Bronx, plaintiffs must show a clear or substantial likelihood of proving at trial that defendants have a custom or usage of making such stops. Specifically, plaintiffs argue that defendants “have a pattern and practice” of making unlawful trespass stops outside TAP buildings, and that “the City of New York has been deliberately indifferent” to this practice “by failing to supervise and train.”324 My analysis of plaintiffs’ claim proceeds in two steps. First, I analyze plaintiffs’ deliberate indifference claim and conclude that plaintiffs have shown a clear likelihood of establishing that defendants’ longstanding failure to train officers regarding the legal standards for trespass stops outside TAP buildings in the Bronx, despite actual or constructive notice that this omission was causing city employees to violate individuals’ constitutional rights, has risen to the level of deliberate indifference. Whether plaintiffs’ deliberate indifference claim is
324 Pl. Findings ¶¶ 69–70. Plaintiffs present the former as a “constructive acquiescence” claim, and the latter as a deliberate indifference claim based on failure to train. See id. Because constructive acquiescence is merely a way of proving deliberate indifference, I analyze the claims together.
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analyzed in terms of the general standard in Connick, the three-part Walker standard, or the constructive acquiescence standard, plaintiffs have shown a clear likelihood of success on their Monell claim. Second, I analyze whether defendants have rebutted plaintiffs’ evidence of deliberate indifference based on the steps taken by the NYPD in 2012. I conclude that these steps have not meaningfully addressed the specific problem of unconstitutional trespass stops outside TAP buildings in the Bronx.
a. Deliberate Indifference Applying the law of Terry stops to my findings of fact, above, plaintiffs offered more than enough evidence at the hearing to support the conclusion that they have shown a clear likelihood of proving at trial that the NYPD has a practice of making unlawful trespass stops outside of TAP buildings in the Bronx:
i. ADA Rucker’s Testimony As described above, ADA Rucker credibly testified that NYPD officers have treated proximity to a TAP building as a factor contributing to reasonable suspicion, and have frequently made trespass stops outside TAP buildings for no reason other than that the officer had seen someone enter and exit
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or exit the building.325 These stops were made because the building was enrolled in TAP, and they were not based on any reasonable suspicion of trespass.326 ADA Rucker’s testimony is corroborated by the accounts of stops and arrests in the twenty-six decline to prosecute forms, as well as by the hundreds of UF-250s on which officers wrote “Clean Halls” as a justification for a stop.327 As discussed below, Dr. Fagan’s analysis of UF-250s provides further corroboration of ADA Rucker’s testimony.328
ii. Plaintiffs’ Stops The conclusion that the NYPD has repeatedly made trespass stops outside TAP buildings without reasonable suspicion is further supported by the credible and mutually corroborating testimony of named plaintiffs regarding the circumstances leading to their encounters with police.329 First, with the exception of Ledan’s two police encounters, each of plaintiffs’ encounters with the police constituted Terry stops requiring reasonable suspicion. As Ledan’s first encounter illustrates, it is possible for an officer to approach a person outside a TAP building
325 See supra Part IV.A.1. 326 See id. 327 See Tr. 10/15 at 124:18–24; Fagan Report at 13. 328 See infra Part V.B.1.a.iii. 329 See supra Part IV.A.2.
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and ask the person her name, where she is coming from, whether she lives in the building, and if not, whether she knows anyone in the building, all the while acting in such a way that a reasonable person would feel free to terminate the encounter and go about her business. But the other plaintiffs’ testimony showed that many trespass-related encounters outside TAP buildings involve aggressive, coercive, and threatening police behavior that would not leave a reasonable person feeling free to terminate the encounter.
Bradley was stopped when an officer in a van gestured for him to come over, he came over, and the officer asked “What are you doing here?”330 Turner was stopped when three officers approached and one “snatched the phone out of [his] hand,”331 abruptly and aggressively ending his call and taking control of his property, without any request for permission to do so. The stop continued as the officer asked Turner what he was doing and whether he lived in the building beside which he was standing.332 Turner was stopped a second time when a police car pulled up in front of him as he and others were exiting a Clean Halls building,
330 Tr. 10/16 at 266:3. 331 Tr. 10/17 at 477:8. 332 See id. at 478:13–22, 479:8–11.
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an officer got out, questioned the group, and requested Turner’s identification.333 J.G. was stopped when five officers approached him outside his building, stopped him, and asked him where he was coming from, where he was headed, and what he had in his bag. He was surely stopped when the officers made him raise his hands, frisked him, and searched inside his pockets and his grocery bag.334 Jerome Grant was stopped when two officers approached with flashlights, questioned him and his friends to determine whether they were trespassing, and in response to questions from those who were stopped, replied with strong words such as “I’m the one that’s talking here,”335 and “hush up.”336 Roshea Johnson was stopped when a black van pulled up in front of him with police officers inside and one of them began questioning him about trespassing.337 He was certainly stopped — and arrested — a moment later when he was placed in handcuffs in the back of the van.338
No reasonable person would have felt free to leave in these plaintiffs’
333 See id. at 486:9–490:25. 334 See id. at 437:17, 439:4–443:2. 335 Id. at 456:13. 336 Id. at 456:18–19. 337 See id. at 399:21–400:17. 338 See id. at 400:17–401:18.
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circumstances once an officer or officers approached, caused the plaintiff to stop through a command, gesture, accusatory introduction, or by taking possession of the person’s property, and then began asking questions that were clearly intended to elicit incriminating responses regarding trespassing.
Any doubt that these plaintiffs were free to leave after the commencement of intrusive investigatory questioning is resolved by looking to the instances in the decline to prosecute forms when suspects attempted to terminate their encounters. In one encounter, “the defendant attempted to walk away[,] at which time [the officer] grabbed the defendant[’]s arms.”339 After a struggle, the defendant was arrested.340 In another encounter, “[t]he arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated . . . YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT PUTTING YOUR HANDS ON ME.”341 The arresting officer then handcuffed the defendant and placed him in a patrol vehicle.342 Similarly, when various defendants simply refused to answer an
339 App. A ¶ 12. 340 See id. 341 Id. ¶ 20. 342 See id.
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officer’s questions, it became clear that they were not free to terminate the encounter in this way either.343 In one encounter, the arresting officer “approached the defendant and asked her where she was coming [from], what was she doing in the building[,] and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME.”344 The defendant was then arrested for trespass.345
The responses of the police officers as summarized in the decline to prosecute forms do not tell a surprising story. Indeed, they are what a reasonable person would have expected under the circumstances. When a person considers walking away from an officer who has stopped her and begun asking accusatory questions, it is objectively reasonable for the stopped person to believe that the officer will attempt to prevent her from doing so. Persons who are stopped by the police in circumstances like those described by the plaintiffs (other than Ledan)
343 See, e.g., id. ¶¶ 4, 15, 22, 25, 26. In Davis, I held that “the Fifth Amendment prohibits police from arresting an individual for refusing to provide ‘testimonial’ evidence.” Davis, 2012 WL 4813837, at *14. Whether refusal to provide testimonial evidence may contribute to reasonable suspicion of trespass is a distinct issue, and one not raised by the parties at this stage of the litigation.
344 App. A ¶ 4. 345 See id.
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reasonably conclude that they are not free to terminate the encounter. As a result,
such stops are Terry stops under the Fourth Amendment, and DeBour Level 3
stops under New York state law, and require that the officer have a “reasonable
suspicion” that criminal activity may be afoot.
Second, all but two of the eleven encounters to which plaintiffs
testified appear to have been based on suspicion of trespass, but lacked the
reasonable suspicion of trespass needed to support a Terry stop. The two exceptions are Jerome Grant’s stop and Letitia Ledan’s second encounter.346
iii. Decline to Prosecute Forms
There remains the question of how widespread the practice of
unlawful stops was. Plaintiffs argue that the decline to prosecute forms
independently support the finding of a widespread practice of unlawful stops outside of TAP buildings.347 Their rather complicated argument proceeds as
346 In Grant’s case, his cousin’s or his friend’s knocking loudly and perhaps angrily on the door of a Clean Halls building may have provided a minimal level of objective justification for suspecting that Grant and the others were attempting to enter unlawfully. See supra Part IV.A.2.d. As noted above, Ledan initiated her second encounter, which was most likely consensual and thus did not require reasonable suspicion. Even if the stop had been nonconsensual, under the circumstances her interest in the detention of her husband and friends may have provided adequate grounds for brief questioning. See supra Part IV.A.2.f.
347 See Pl. Findings ¶ 17. 104

follows: First, plaintiffs assume the City’s expert was correct in reporting that
approximately thirteen percent of the trespass stops analyzed by Dr. Fagan resulted in arrest.348 From this, plaintiffs infer a rough, general rule that thirteen percent of
trespass stops in the Bronx in 2011 resulted in arrest — or in other words, for every recorded trespass arrest, there were roughly 7.7 trespass stops.349 Second, in three
randomly selected months in 2011, the Bronx DA’s office produced at least
twenty-six decline to prosecute forms describing arrests that were apparently based only on a person entering or exiting a TAP building.350 Because entry or exit from
a TAP building does not provide reasonable suspicion, there were at least twenty-
six arrests in the three sample months that were preceded by stops that were not
based on reasonable suspicion. Third, if the twenty-six decline to prosecute forms
reflect only thirteen percent of the suspicionless trespass stops outside TAP
348 See Smith Report at 6. 349 See Pl. Findings ¶ 17. 350 See supra Part IV.A.1. In the absence of more detailed evidence or testimony regarding the initial police encounters described in the decline to prosecute forms, I assume that the encounters were likely similar to those described by plaintiffs, and thus that the intrusiveness of the encounters likely rose to the level of a Terry stop at or shortly after the time that the officer or officers initiated questioning. See generally App. A. I also note that in many of the encounters described in the decline to prosecute forms, the defendant’s behavior as described in the form never gave rise to reasonable suspicion, even after the stop began. See App. A ¶¶ 2, 3, 8, 11, 12, 16, 17, 21, 24.
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buildings in the three sample months in 2011, and if the sample months were representative of the year, then eight hundred trespass stops took place outside TAP buildings in the Bronx in 2011 without reasonable suspicion.351
Assuming as I do that the decline to prosecute forms contain largely accurate descriptions of stops, plaintiffs’ reasoning is persuasive. If anything, plaintiffs undercount the number of suspicionless stops suggested by the decline to prosecute forms. Dr. Smith’s thirteen percent figure is the arrest rate for all the trespass stops outside TAP buildings in Dr. Fagan’s study, including both stops based on and stops lacking reasonable suspicion.352 Common sense would suggest, however, that the arrest rate for stops lacking reasonable suspicion — for example, stops based on nothing more than a person exiting a TAP building — should be significantly lower than the combined arrest rate for lawful and unlawful stops. The lower the arrest rate for unlawful stops, the higher the number of unlawful stops that would be required to generate twenty-six arrests based on such stops. If the arrest rate for unlawful stops were five percent, for example, the existence of twenty-six arrests in three months based on unlawful stops would imply a yearly
351 I have altered plaintiffs’ calculations to account for the two decline to prosecute forms containing revisions of other forms. See supra Part IV.A.1.
352 See Smith Report at 6. Dr. Fagan calculated arrest rates (or, as he called them, “hit rates”) in Floyd, but does not appear to have done so in the instant case. Compare Floyd, 861 F. Supp. 2d at 284–85, with Fagan Report.
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total of more than two thousand (2,080) unlawful stops. iv. Dr. Fagan’s Analysis
Dr. Fagan’s analysis of the UF-250 database provides further evidence that plaintiffs have a clear likelihood of being able to prove at trial that the NYPD’s practice of unlawful stops was widespread. In order to understand Dr. Fagan’s claim that 1,044 trespass stops within his set apparently lacked reasonable suspicion, it is necessary to understand the basic features of a UF-250 form.353 I have included a copy of a blank UF-250 form as Appendix B to this Opinion.
The UF-250 form has two sides.354 On Side 1 there is a section labeled “What Were Circumstances Which Led To Stop? (MUST CHECK AT LEAST ONE BOX).” Inside the section are several boxes that officers may check, such as “Fits Description” and “Actions Indicative of Acting As A Lookout.” There is also a checkbox for “Other Reasonable Suspicion Of Criminal Activity (Specify)” (the “Other” box) that officers can check and then supplement with a handwritten note. On the back of the form, Side 2, there is a section labeled “Additional Circumstances/Factors: (Check All That Apply).” Inside this section there are other checkboxes, such as “Report From Victim/Witness” and “Evasive,
353 See Fagan Report at 15 & tbl.8; App. L to Fagan Report (“Stop Factor List”), Pl. Ex. 64.
354 See App. B. 107

False Or Inconsistent Response To Officer’s Questions.” As noted above, officers are required to record all the reasons justifying a stop.355
In an appendix to Dr. Fagan’s report, he lists the combinations of
factors from UF-250 forms that he counted as indicative of a stop apparently lacking reasonable suspicion of trespass.356 The list descends from the most common combinations of factors to the least common.357 On all of the forms that
Dr. Fagan identified as apparently lacking reasonable suspicion, the officer had checked at most one of the listed “circumstances” on Side 1.358 In some cases the
officer had also checked the “Other” box on Side 1 and handwritten a text string, which Dr. Fagan also analyzed.359
The most frequent combination of stop factors identified by Dr. Fagan
as apparently inadequate were “Furtive Movements” (Side 1) and “Area Has High
355 See Def. Findings ¶ 4 (“NYPD training evidence . . . clearly identifies that its officers are instructed to include all circumstances leading to the stop on the worksheet[.]” (citing Tr. 10/15 at 86:12–87:2)); Tr. 10/19 at 849:13–19 (testimony of Chief Shea); Police Student’s Guide at 20.
356 See Fagan Report at 15 & tbl.8; Stop Factor List. 357 See Stop Factor List at 1. The final four pages of the six page list contain the many allegedly inadequate combinations that appeared on only one UF-250. See id. at 3–6. 358 See Fagan Report at 11–15. 359 See id.
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Incidence Of Reported Offense Of Type Under Investigation” (Side 2), referred to in Dr. Fagan’s shorthand as the “High Crime Area” box.360 On ninety-one forms, these two factors were the only recorded basis for the stop.361
Of the 1,044 trespass stops that Dr. Fagan identified as apparently unlawful, 503 were based on the ten most frequent combinations of stop factors.362 In each of these ten combinations, which offer a manageable illustration of Dr. Fagan’s assumptions, the officer filling out the form recorded only the following basis for the trespass stop. First, on Side 1, the officer offered one of the following three factors:
1) “Furtive Movements.” 2) “Other Reasonable Suspicion Of Criminal Activity (Specify)” (the
“Other” box), and a text string referring to “Clean Halls,” “Trespass,” or both as the sole notation.363
360 See Stop Factor List at 1. 361 See id. 362 See id. 363 See Fagan Report at 13 (explaining “Clean Halls/Trespass” category); “detailSA Stop Factor Analysis” (“‘Other’ Text Strings”), App. F to Fagan Report at 5–6 (listing the text strings in this category, including “CLEAN HALLS,” “CLEAN HALLS BLDG,” “CRIM TRES,” and “CLEAN HALLS PROGRAMCRIM TRES”).
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3) The “Other” box and words indicating the suspect was observed exiting the building.364
Second, on Side 2, under “Additional Circumstances/Factors,” the
officer either checked no box, or offered one of the following five justifications:
1) High Crime Area.
2) “Time Of Day, Day Of Week, Season Corresponding To Reports Of
Criminal Activity” (the “Time of Day” box).
3) Both High Crime Area and Time of Day.
4) “Proximity To Crime Location” (the “Proximity to Scene” box).
5) “Changing Direction At Sight Of Officer/Flight” (the “Change
Direction” box).
Standing alone, Dr. Fagan’s categorizations leave a great deal of room
for skepticism. The Supreme Court has “recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”365 It is possible to
364 See “Other” Text Strings at 7–8 (listing text strings in the “Observed Exit” category, including many variations on the phrase “EXITING CLEAN HALLS BUILDING”).
365 Wardlow, 528 U.S. at 124 (citing numerous cases). On the other hand, “furtive behavior absent additional indicia of suspicion generally does not suffice to establish reasonable suspicion.” United States v. Bellamy, 592 F. Supp. 2d 308, 318–19 (E.D.N.Y. 2009) (collecting cases). In Bellamy, the court held that the following stop factors did not give rise to reasonable suspicion that Bellamy was trespassing in a building:
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imagine scenarios in which an officer observing behavior that would probably give
rise to reasonable suspicion might reasonably record that behavior by checking
nothing more than “Furtive Movements.” For example, an officer might observe a
person standing nervously outside a TAP building, pretending to walk away
whenever others approach, then returning after they are gone, and finally entering
the building without a key, nervously looking both ways before opening the door.
I also note that in each of the twenty stops where the officer checked “Change Direction” on Side 2, the officer also checked “Furtive Movement” on Side 1.366 If
these forms were based on an officer seeing someone engage in the behavior
described above, and then run away at the sight of the officer, the officer almost certainly had reasonable suspicion of trespass.367
(1) the officers’ knowledge that the . . . building was located in a high-crime, drug-prone neighborhood; (2) the officers’ knowledge that the . . . building had experienced problems with drug trafficking and trespassing; (3) the officers’ understanding that the building had participated in FTAP; (4) Bellamy’s presence in the [building’s] vestibule; (5) the presence of the supposed “crack addict” outside of the . . . building; and (6) Bellamy’s furtive gestures.
Id. at 317. 366 See Stop Factor List. 367 See Floyd, 861 F. Supp. 2d at 298 (discussing Wardlow, which “held
that a defendant’s ‘presence in an area of heavy narcotics trafficking’ and ‘unprovoked flight upon noticing the police’ were together sufficient to raise
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On the other hand, there are good reasons to doubt that most, or even many, of the forms marked with the combinations listed above were in fact based on such suspicious behavior. First, many of the 503 forms in the top ten on Dr. Fagan’s list contain stop factor combinations providing no basis whatsoever for reasonable suspicion. 205 of these forms simply indicate that the person was stopped outside a Clean Halls building, or for criminal trespass, neither of which explains why the officer’s suspicion was reasonable; or that the person was observed exiting, which also contributes nothing to reasonable suspicion; and that the stop took place in a high crime area and/or at a suspicious time of day, neither of which can establish reasonable suspicion in the absence of some additional contributing factor.368 Thus, at a bare minimum, over two hundred of the five hundred stops at the top of Dr. Fagan’s list provide no basis for a finding of suspicious behavior.
Second, Dr. Fagan reported that in his original universe of stops, officers had checked the Other box on nearly forty percent of the UF-250 forms.369
reasonable suspicion and justify a stop” (quoting Wardlow, 528 U.S. at 124)). 368 “Reasonable articulable suspicion does not exist merely on the basis
of [High Crime Area and Time of Day]: many people live in high crime areas and many crimes occur at night; simply being in a high crime area at night is not suspicious behavior.” Floyd, 861 F. Supp. 2d at 298 (citations omitted).
369 See Fagan Report at 11. 112

Officers were clearly willing and able to describe suspicious behavior when they observed it.370 In fact, officers frequently took the time to write notes that do not contribute to reasonable suspicion.371 Given the evident eagerness of officers to
check the Other box and write notes — even when they had no basis for doing so
— it is doubtful that many officers observed the kind of highly suspicious behavior hypothesized above and then merely checked the Furtive Movements box.372
Third, as Dr. Fagan notes, when police officers are in an area where
they are primed to look for signs that “crime is afoot,” they may be more likely to perceive a gesture as an indicator of criminality.373 Recent psychological research
370 See, e.g., “Other” Text Strings at 7 (“Observed Entry” text strings including, for example, “RAN INTO BLDG”). The NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck contains a number of examples of concise, easily written descriptions of furtive behavior that could give rise to reasonable suspicion. See Street Encounters Presentation at 22–23.
371 See id. (listing text strings accompanying checked Other boxes). 372 In addition, many behaviors that would, like the behaviors hypothesized above, lead to a suspicion of trespass would presumably also provide grounds to check “Actions Indicative [o]f ‘Casing’ Victim Or Location” or “Actions Indicative of Acting As A Lookout” on Side 1. See App. B. 373 See Fagan Report at 11 n.12 (citing Robert J. Sampson & Steven W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of “Broken Windows”, 67 SOC. PSYCHOL. Q. 319 (2004); Geoffrey P. Alpert, John M. MacDonald, & Roger G. Dunham, Police Suspicion and Discretionary Decision Making During Citizen Stops, 43 CRIMINOLOGY 407 (2005)).
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has provided evidence of such cognitive distortions.374 Thus the category of Furtive Movements may be inherently prone to overuse on UF-250s. Given the nature of their work on patrol, officers may have a systematic tendency to see and report furtive movements where none objectively exist.375
Dr. Fagan raised further doubts in Floyd regarding the general validity of assuming reasonable suspicion based on Furtive Movements.376 Dr. Fagan’s report in Floyd showed that “the arrest rates in stops where the high crime area or furtive movement boxes are checked off is actually below average.”377 Officers may have a tendency to check these boxes when they are unable to articulate any other basis for a stop — perhaps because the suspicion leading to the stop was, in fact, not reasonable.
Defendants attack the accuracy of Dr. Fagan’s categorization scheme
374 See id. Indeed, this is an area in which further training may be highly beneficial.
375 See Bayless, 201 F.3d at 133 (“Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.” (emphasis added)).
376 See Floyd, 861 F. Supp. 2d at 284–85; Fagan Report at 11 n.12 (citing Dr. Fagan’s report in Floyd).
377 Floyd, 861 F. Supp. 2d at 285 (emphasis added). 114

in various ways.378 First, defendants criticize Dr. Fagan for neglecting to factor
into his analysis a field on Side 1 of the UF-250 form labeled “Period Of
Observation Prior To Stop.”379 Though defendants’ reasoning is not explicit, I take
it they assume that a long enough period of observation, combined with some of
the stop factor combinations in Dr. Fagan’s list of unlawful stops, might justify
removing a stop from the list.380 Second, defendants’ expert noted a few dozen
text strings accompanying the Other box that Dr. Fagan included in his count of
unlawful stops but that defendants argue could justify a Terry stop.381 For
example, Dr. Fagan categorized “RAN INTO BLDG” as an instance of an
observed entry into a TAP building, and thus not a basis for a stop.382 Third,
378 See Def. Findings ¶¶ 6 (“Period of Observation”), 8 (metacategories for “Other” text strings), 9 (“Furtive Movements,”“Ongoing Investigation”).
379 See id. ¶ 6; App. B. 380 See Def. Findings ¶ 6. According to the UF-250 database, in sixtyfive percent of the trespass stops outside TAP buildings in the Bronx in 2011, the Period of Observation was less than one minute, and in eighty-four percent of those stops, the period of observation was less than two minutes. See Period of Observation Table. Only five of the 1,044 unlawful stops identified by Dr. Fagan involved periods of observation of greater than ten minutes. See Table 15: Distribution of Period of Observation, Pl. Ex. 99. 381 See Def. Findings ¶ 8; Smith Report at 34–39. Neither Dr. Smith nor defendants offer a total of the number of stops contested by Dr. Smith in this way. Plaintiffs state that Dr. Smith identified thirty-six stops with contestable text strings out of Dr. Fagan’s 1,044. See Pl. Findings ¶ 12. 382 See Smith Report at 34–35.
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defendants argue that Dr. Fagan’s list of unlawful stops should not have included the forty-one stops in which an officer marked Furtive Movement on Side 1 and a box on Side 2 labeled “Ongoing Investigations, e.g., Robbery Pattern” (the “Ongoing Investigations” box).383
Rather than addressing each of these claims individually, it is enough to note that even if the one hundred forty-three stops involving observation periods over two minutes, the thirty-six stops with contestable text strings, and the fortyone stops with both Furtive Movements and Ongoing Investigations marked were excluded from Dr. Fagan’s grand total of 1,044 unlawful stops, the total would still show that out of the 1,663 stops in Dr. Fagan’s revised set of trespass stops outside TAP buildings in the Bronx in 2011, over eight hundred (824) were unconstitutional. That is, even if defendants’ arguments on these points are accepted — and I am not convinced that they should be — Dr. Fagan’s report would still show that on hundreds of occasions in the Bronx in 2011, people were stopped without basis outside of TAP buildings, in violation of their rights under the U.S. Constitution, and required to answer questions from an officer with the power to arrest them if they answered incorrectly.
The essential fact, sufficiently established by Dr. Fagan’s analysis
383 See Def. Findings ¶ 9; App. B. 116

when viewed in combination with the other evidence discussed above, is that a very large number of constitutional violations took place outside TAP buildings in the Bronx in 2011. Whether the percentage of trespass stops that were unconstitutional was thirty or sixty, and whether one assumes that officers failed to fill out UF-250s ten, twenty, or fifty percent of the time, plaintiffs have succeeded in showing a clear likelihood that they will be able to prove that the City of New York and its agents displayed deliberate indifference toward the violation of the constitutional rights of hundreds and more likely thousands of individuals prior to 2012.
v. Notice to Defendants By 2011 city policymakers were on actual notice of a practice of unconstitutional trespass stops by city employees outside TAP buildings in the Bronx.384 As early as 1999, the NYPD Legal Bureau was aware that it was unlawful to stop someone simply for entering and exiting a TAP building.385 By July 2010, as Inspector Sweet testified, the NYPD was on actual notice that officers were unlawfully approaching people entering or inside TAP buildings to
384 See supra Part IV.B.1. 385 See 1999 TAP Legal Guidelines at 6; Tr. 10/18 at 684:2–4.
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question them about their presence.386 The special counsel to Commissioner Kelly attended meetings where the problem was discussed.387 In February 2011, a number of NYPD officials received letters from ADA Rucker on behalf of the Bronx DA’s office clarifying the unconstitutionality of stopping people merely for entering or exiting a TAP building.388 Throughout this period, the NYPD received copies of decline to prosecute forms describing arrests in which officers apparently stopped people for no reason other than their proximity to a TAP building.389
vi. Legal Analysis Deliberate indifference is “a stringent standard of fault,”390 especially when it is based on a failure to train.391 Nevertheless, “deliberate indifference may be inferred where ‘the need for more or better supervision to protect against constitutional violations was obvious,’ but the policymaker ‘fail[ed] to make
386 See Tr. 10/18 at 648:18–649:16. 387 See id. at 650:18–651:17. 388 See id. at 659:20–660:17. 389 See Tr. 10/16 at 256:8–13. 390 Connick, 131 S.Ct. at 1360. 391 See id. at 1359 (citing Tuttle, 471 U.S. at 822–23).
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meaningful efforts to address the risk of harm to plaintiffs[.]’”392 Based on the conclusions above, plaintiffs have shown a clear
likelihood of proving deliberate indifference under any of the prevailing ways of framing that standard. Stated in terms of Connick’s general standard for failure-totrain claims, plaintiffs have shown a clear likelihood of proving that city policymakers were on actual notice by 2011, and constructive notice prior to then, that the failure to train NYPD officers regarding the legal standard for trespass stops outside TAP buildings in the Bronx was causing city employees to violate the constitutional rights of a large number of individuals.393 Stated in terms of the three-part Walker test for deliberate indifference through failure to train, plaintiffs have shown a clear likelihood of proving (1) city policymakers knew to a moral certainty that NYPD officers, who regularly patrol in and around TAP buildings in the Bronx, would confront the question of when it was legally permissible to stop people outside those buildings; (2) the decline to prosecute forms, ADA Rucker’s letters, and the hundreds of UF-250 forms that failed to articulate reasonable suspicion for trespass stops outside TAP buildings provided an extensive record of NYPD officers mishandling these stops; and (3) when NYPD officers made the
392 Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192; Vann, 72 F.3d at 1049).
393 See Connick, 131 S.Ct. at 1359. 119

wrong choice in these stops, the deprivation of constitutional rights frequently resulted.394 Thus, plaintiffs have shown a clear likelihood of proving that city policymakers should have known that their inadequate training and supervision regarding trespass stops outside TAP buildings in the Bronx was “‘so likely to result in the violation of constitutional rights,’” that their failure to train constituted deliberate indifference.395 Stated in terms of the constructive acquiescence standard, plaintiffs have shown a clear likelihood of proving that there was “a sufficiently widespread practice among police officers” of unlawful trespass stops outside TAP buildings “to support reasonably the conclusion that such abuse was the custom of the officers,” and that “supervisory personnel must have been aware of it but took no adequate corrective or preventive measures.”396
In fact, plaintiffs presented some evidence suggesting that the practice of making stops outside TAP buildings without regard for reasonable suspicion might have been “so persistent and widespread as to practically have the force of law.”397 In addition to the sheer magnitude of apparently unlawful stops, ADA
394 See Walker, 974 F.2d at 297–98. 395 Id. at 298 (quoting Canton, 489 U.S. at 390). 396 Jones, 691 F.3d at 82. 397 Connick, 131 S.Ct. at 1359.
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Rucker offered testimony suggesting that prior to her legal research into the standards governing stops outside TAP buildings, she had been explicitly advising officers that it was permissible to stop a person simply because he had exited a TAP building, so long as the officer had observed the person in the vestibule first.398 Even defendants seemed to recognize that the similarities among the stops described in this case support the conclusion that officers’ behaviors were the result of uniform training.399
b. Failure to Rebut Deliberate Indifference Claim Based on Steps Taken by NYPD in 2012
Defendants spent a great deal of time at the hearing introducing evidence concerning steps the NYPD took in 2012 to improve TAP and provide training regarding stop and frisk practices.400 Yet in spite of receiving actual notice of NYPD officers carrying out widespread constitutional violations outside TAP buildings, and in spite of already being engaged in changes to the TAP program and the training related to stop and frisk more generally, the NYPD has failed to take meaningful action to address the specific and narrow problem at issue in this
398 See Tr. 10/15 at 176:14–23. 399 See Def. Findings ¶ 29 n.16 (“Defendants contend that any similarity in the interactions [between officers and plaintiffs] demonstrates that officers are being uniformly trained.”). 400 See supra Part IV.B.
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case: the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. To date, as noted above, the only piece of instruction that has been provided to officers on a systematic basis and that specifically targets the problem at issue in this case is a single bullet point in a single slide show during a single part of the Rodman’s Neck training.401 This has been the NYPD’s most meaningful specific response to the problem that caused Charles Bradley’s unlawful stop and arrest, Abdullah Turner’s unlawful stop and arrest, the unlawful stop of J.G. that led Jaenean Ligon to fear for her son’s life, Roshea Johnson’s stop and interrogation in an unmarked NYPD van, all the other indignities that the other plaintiffs were obliged to suffer, and the hundreds of other unlawful stops, recorded and unrecorded, whose precise details this Court will never know.
The Rodman’s Neck bullet point is plainly insufficient to rebut plaintiffs’ showing of a clear likelihood of success on the merits of their deliberate indifference claim. Nor did defendants provide reliable statistics regarding stops in 2012 that might have rebutted plaintiffs’ claim. Defendants have provided no evidence that the NYPD has ceased its practice of making unlawful trespass stops outside TAP buildings in the Bronx.
The evidence introduced by defendants of broader reforms to TAP
401 See Street Encounters Presentation at 40; Tr. 10/17 at 572:24–573:6; Tr. 10/18 at 663:13–664:1.
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and stop and frisk undertaken by the NYPD in 2012 also does not rebut plaintiffs’ case that city policymakers have displayed deliberate indifference to an ongoing practice of constitutional violations by city employees based on unlawful stops outside TAP buildings. To the contrary, many of the training materials introduced by defendants may serve to further entrench the problem of these unconstitutional stops. In some cases, defendants’ introduction of training materials not only failed to rebut plaintiffs’ case, but made plaintiffs’ case stronger.
Most strikingly, within the last year the NYPD has produced a video on stop and frisk that has now been shown in every precinct.402 Chief Shea testified that “it would be fair to say that every single member of a patrol borough has probably” seen the video by now.403 The video, whose script was also entered into evidence, begins by briefly summarizing the four levels of police encounters recognized by New York state courts. Then the video provides the following description of what constitutes a stop requiring reasonable suspicion, that is, a Terry stop:
Your authority to conduct a Stop Question and Frisk
402 See Tr. 10/19 at 900:21–904:20; Tr. 10/22 at 942:13–24; SQF Training Video No. 5; Script of SQF Training Video No. 5.
403 See Tr. 10/22 at 22–24. Chief Shea also testified that the information in the video is “consistent with the training that recruit officers receive at the academy” regarding reasonable suspicion. See Tr. 10/19 at 904:16–20.
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encounter is limited to public places within the City of New York. . . . A forcible stop can take many different forms. It can be constructive in nature, such as using verbal commands or blocking a subject’s path. Or it could be an actual stop, such as grabbing or holding the subject.
The courts will look to an officer’s actions in making this determination. They consider: if the officer’s gun was drawn; if the person was physically prevented from moving; the number and tone of verbal commands; the content of the commands; the number of officers present; and the location of the encounter.
Usually just verbal commands, such as STOP, POLICE!!!, will not constitute a seizure. However, a verbal command, plus other actions may be considered a seizure — other actions, such as: using physical force to subdue a suspect; physically blocking a suspect’s path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground.404
This misstates the law. It is incorrect in its specific claim that if an officer yelled
“STOP, POLICE!!!” and the person stopped, the result would not “[u]sually”
constitute a Terry stop.405 Indeed, it is difficult to imagine many contexts in which
404 Script of SQF Training Video No. 5 at 58–59 (formatting altered), beginning at roughly 6:35 in SQF Training Video No. 5.
405 Perhaps the video reflects a misunderstanding of the Supreme Court’s ruling in Hodari D., 499 U.S. at 626–28. Cf. Def. Findings ¶ 42 n.19 (citing Hodari D.). In Hodari D., the Court explained that the word “seizure” “does not remotely apply . . . to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.” Id. at 626. The Court’s point was that there is no seizure unless the individual is in fact seized, in the sense of being stopped, either by physical force, or by submission to the assertion of the officer’s authority — not that a Terry stop requires a display of authority beyond shouted commands. See Swindle, 407 F.3d at 572 (interpreting Hodari D.).
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an officer shouting this command, followed by the person stopping, would not constitute a Terry stop. As noted above, the test for a Terry stop is whether “a reasonable person would feel free ‘to disregard the police and go about his business.’”406 If the “reasonable person” of Fourth Amendment law would feel free to disregard an officer yelling “STOP, POLICE!!!” and go about his business, then this “reasonable person” bears little or no resemblance to the many reasonable people who have been or will be affected by the NYPD’s stop and frisk practices.
The video is also incorrect in its more general suggestion that an officer must deploy something resembling physical force or the threat of such force in order for an encounter to constitute a stop. It is true that Terry stops are sometimes referred to as “forcible stops.”407 But the test for a Terry stop, again, is not the use of force: it is whether a “reasonable person” would feel free “‘to disregard the police and go about his business.’”408 The Second Circuit has held, for example, that a stop took place where an officer twice ordered a person to “hold on a second,” and after the second order the person stopped.409 The Second Circuit
406 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 407 See, e.g., Alabama v. White, 496 U.S. 325, 328 (1990) (referring to Terry stop as “forcible stop”). 408 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 409 Simmons, 560 F.3d at 101, 105–06.
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also held that a stop occurred where an officer pointing a spotlight at a person said,
“What, are you stupid? Come here. I want to talk to you,” and then told the person to show his hands.410 In Davis, the City of New York conceded, and I held,
that a person was stopped when he encountered an officer in a stairway, the officer
asked if he lived in the building, the officer asked for his ID, and then the officer asked him to step out of the stairwell and into the lobby.411 I also held in Davis that
a person was stopped “when she attempted to walk to the elevator, was told to
‘come back’ by [an officer], and stopped walking,” because the officer’s “order to ‘come back’ was an order to stop and [she] obeyed the order.”412
The Second Circuit held more than twenty years ago, in a case that
remains good law, that the following factors are indicative of a “seizure,” which
can mean either an arrest or a Terry stop:
the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person’s personal effects, such as airplane tickets or identification; and a request by the
410 Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000). On the other hand, the court held that where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands, he was not seized. See id. at 341.
411 See Davis, 2012 WL 4813837, at *5–6. 412 Id. at *14.
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officer to accompany him to the police station or a police room.413 Because the yelled command “STOP, POLICE!!!” contains both language and a tone indicating that compliance is compulsory, the NYPD’s video is incorrect to suggest that other actions would usually be required for an encounter to constitute a Terry stop. Indeed, some of the “other actions” described by the NYPD’s video — “using physical force to subdue a suspect; physically blocking a suspect’s path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground”414 — go significantly beyond the level of coercion suggested by the Second Circuit’s list of factors that define a Terry stop. While any evaluation of whether a Terry stop has taken place requires consideration of the totality of the circumstances, it is clear that the NYPD’s video conflicts with the Second Circuit’s guidance: there is a certain range of conduct that a viewer of the video would identify as insufficiently coercive to constitute a Terry stop, while a reader of the Second Circuit’s list would identify the same conduct as falling squarely within the parameters of a Terry stop.
By raising the Terry bar above where it was set by the Second Circuit,
413 United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting Lee, 916 F.2d at 819).
414 Script of SQF Training Video No. 5 at 58–59. 127

the NYPD trains its officers that they do not need reasonable suspicion to engage in conduct that the Second Circuit would identify as sufficiently coercive to qualify as a Terry stop. In other words, the NYPD’s video, which was produced in 2012, which has now been seen by nearly every officer in the patrol bureau, and which defendants continue to present as a sign of their lack of deliberate indifference,415 trains officers that it is acceptable to engage in conduct that amounts to a Terry stop without reasonable suspicion.
The Chief of Patrol Field Training Unit Program Guide, which is distributed to supervisors in Operation IMPACT,416 also reflects the tendency of NYPD training materials to exaggerate how intrusive a police encounter must be in order to constitute a Terry stop. The Guide states that with something less than reasonable suspicion,417 an officer may approach a person and engage in “pointed, invasive, and accusatory” questioning that is “intended to elicit an incriminating response,” and even “ask for permission” to search the person.418 While “[t]he
415 See Def. Findings ¶ 42. 416 See Tr. 10/19 at 744:2–6. 417 Using the language of De Bour Level 2, not Level 3, the Training Guide requires a “founded suspicion that criminal activity is afoot” in order to approach and engage in an encounter of this kind. See Training Guide at 17. 418 Id. (emphases omitted). The Guide clarifies that the officer “may not touch the person, display a weapon, or act in a threatening manner,” but notes that
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Fourth Amendment does not proscribe all contact between the police and citizens,”419 it is difficult to imagine many circumstances in which a reasonable person being aggressively interrogated by the police regarding suspected criminal activity could feel free “‘to disregard the police and go about his business.’”420 The more realistic outcome would be for the person to assume that if he refused to answer, walked away, gave the wrong answers, or made a false move, serious consequences would follow.421 As Abdullah Turner testified, “I don’t know anyone . . . who ever just walked away from a cop in the middle of a conversation.”422 Given the high stakes of any encounter in which an officer interrogates someone regarding his suspected criminal activity, it is fanciful to say that a reasonable person would as a rule feel free in the midst of such an
“[i]f a confronted citizen walks away without answering, the officer may follow to continue questioning.” See id. at 17–18.
419 Delgado, 466 U.S. at 215. 420 Bostick, 501 U.S. at 434 (quoting Hodari D., 499 U.S. at 628). 421 Indeed, based on the accounts of stops in the decline to prosecute forms, this appears to be an accurate expectation. See App. A ¶¶ 12, 20, discussed below. Moreover, it would not be surprising to learn that based on the experiences of their families, friends, and neighbors, the residents of these buildings fully appreciate the consequences that will follow if they attempt to walk away from the police during questioning. 422 Tr. 10/17 at 491:22–23.
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interrogation to “‘terminate the encounter’”423 at will.
A lesson on TAP that was added to the Guide in 2012 similarly
reflects a model of policing in which the investigative questioning of suspects
routinely precedes rather than follows reasonable suspicion:
A uniformed member of the service may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authority. . . . Some factors which may contribute to “reasonable suspicion” that a person is trespassing . . . are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.424
423 Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436).
424 Training Guide at 65; Tr. 10/19 at 743:6–7. I recognize that many of the NYPD’s training materials purport to derive from De Bour, as defendants have emphasized. See, e.g., Def. Findings ¶ 42 & n.19. Because plaintiffs have brought their case under the Fourth Amendment, and not New York law, Pl. Findings ¶¶ 64–71, it would lie beyond the scope of this Opinion to make general statements regarding the precise relations between the law of De Bour and the case law interpreting the Fourth Amendment. I note, however, that in theory, De Bour should provide greater protection than the Fourth Amendment by restricting police action even in encounters whose level of invasiveness falls below the minimum threshold for Fourth Amendment scrutiny. See, e.g., De Bour, 40 N.Y.2d at 381 (prohibiting any investigative encounter, even at Level 1, if it is based on “intent to harrass” or “mere whim, caprice, or idle curiosity”).
Some commentators have expressed skepticism regarding the practical virtues of De Bour’s multi-level analysis. LaFave questions whether De Bour’s more sophisticated articulation of Terry’s balancing approach is advantageous, or is likely to result in “such confusion and uncertainty that neither police nor courts can ascertain with any degree of confidence precisely what it takes to meet any of these standards.” LAFAVE, SEARCH & SEIZURE § 9.4(e). Accord Emily J. Sack, Police Approaches and Inquiries on the Streets of New York: The Aftermath of
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Instead of reasonable suspicion providing a basis for investigative questioning, the
NYPD’s training materials suggest that the standard scenario is for investigative
questioning to lead to reasonable suspicion. The NYPD Legal Bureau’s
PowerPoint presentation at Rodman’s Neck similarly suggests that even when an
officer lacks reasonable suspicion for a stop, the officer may not only approach and
ask accusatory questions, but during the encounter may “place [his] hand on [his]
holstered firearm” or “draw and conceal” his weapon, all without escalating the
encounter to a Terry stop.425
What is most troubling about these materials is not the suggestion that
People v. De Bour, 66 N.Y.U. L. REV. 512, 520, 548–53 (1991) (arguing that “the courts routinely conflate the De Bour standards and use inappropriately low levels of suspicion to justify police intrusions,” and that “the multitiered structure of the De Bour model allows inadequately justified low-level intrusions to escalate quickly into inappropriate forcible stops and arrests”). See also Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 394 (1974) (a “sliding scale approach” to the Fourth Amendment may “produce more slide than scale”).
The NYPD’s training materials may illustrate the risk created by the multi-level doctrine of De Bour. The mere existence of De Bour Level 2, and the inevitable difficulty of clearly distinguishing an encounter on the more intrusive end of Level 2 from an encounter on the less intrusive end of Level 3, creates problems of administrability. In practice, the possibility of classifying a stop as Level 2 or even Level 1 may lead police to perform a large number of stops — in the ordinary sense of the word, but inevitably often in the Terry sense as well — without the minimal foundation in reasonable suspicion required by the U.S. Constitution.
425 Street Encounters Presentation at 16, 19.
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investigative questioning might under certain circumstances lawfully precede
reasonable suspicion, but that it should do so as a matter of course, routinely, as the
rule rather than the exception. If the difference between a Terry stop and a less
intrusive encounter hinges on indefinite factors such as the demeanor and
positioning of the officers; and if it is safe to assume that officers routinely display
their authority and power through aggressive behavior, as many of the officers did
in their encounters with plaintiffs in the instant case; then a training program that
invites officers to approach large numbers of people and question them without
reasonable suspicion will inevitably result in frequent Terry stops that lack
reasonable suspicion, effectively guaranteeing the commission of widespread
constitutional violations. The evidence of numerous unlawful stops at the hearing
strengthens the conclusion that the NYPD’s inaccurate training has taught officers the following lesson: stop and question first, develop reasonable suspicion later.426
The NYPD’s training failures may also help to explain why no UF-
250s were located for any of the plaintiffs in the instant case. Based on training
426 I note that the NYPD’s stop practices also appear to conflict with the considered judgment of the New York State Legislature, which enacted New York’s stop and frisk law. This law states that without a warrant, “a police officer may stop a person . . . when he reasonably suspects that such person is committing, has committed, or is about to commit” a crime, “and may demand of him his name, address and an explanation of his conduct.” CPL § 140.50. In other words, the New York State Legislature envisioned reasonable suspicion preceding the request for a name, address, and purpose.
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materials like those above, the officers who stopped plaintiffs may very well have perceived themselves as not engaged in Terry stops at all, but in something less intrusive. The NYPD Legal Bureau’s PowerPoint presentation at Rodman’s Neck continues to encourage this belief, and the constitutional violations that will naturally follow from it, by redefining the standards for stops and arrests. Thus, the final slide on arrests states: “If you are at probable cause, you have made an arrest.”427 This is not correct. If you have arrested someone, you have made an arrest; whether or not you had probable cause only determines whether the arrest was constitutional. Similarly, the presentation states: “When an individual is stopped based upon Reasonable Suspicion a UF-250 must be prepared.”428 IO 22 of 2012 offers a similar message: “When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared . . . .” Both of these statements are incorrect. Whether a stop constitutes a Terry stop and thus requires the completion of a UF-250 form does not depend on whether the stop is based on reasonable suspicion, but on whether a reasonable person would have felt free to terminate the encounter.429
427 Street Encounters Presentation at 37 (capitalization altered). 428 Id. at 33 (emphasis altered). 429 See Drayton, 536 U.S. at 202.
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In response to criticisms directed at the NYPD’s training materials, defendants have argued that the materials reflect New York state law, and in particular De Bour and its progeny.430 Defendants assert that “New York Law applies” in the instant case.431 But practices that violate the Fourth Amendment cannot be saved by proving that they comply with state law.432 To the extent that De Bour suggests a police officer, without reasonable suspicion, may lawfully stop and question an individual in such a way that a reasonable person would not feel free to terminate the encounter, that suggestion would be incorrect.
2. Irreparable Harm In addition to showing a clear likelihood of success on the merits, plaintiffs have the burden of showing that they are “likely to suffer irreparable harm in the absence of preliminary relief.”433 Plaintiffs have moved for class
430 See, e.g., Def. Findings ¶ 42 & n.19. 431 Id. 432 As I noted in the Introduction, the Supreme Court held in Sibron that “New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement. . . . It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct.” 392 U.S. at 60–61. Sibron makes clear that any conflict between the Fourth Amendment and New York state law must be resolved in favor of the Fourth Amendment. 433 Winter, 555 U.S. at 20.
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certification in connection with their motion for a preliminary injunction. Plaintiffs’ putative class is “comprised of individuals who have been or are at risk of being subjected to the New York City Police Department’s practice of stopping individuals outside of buildings enrolled in Operation Clean Halls in the Bronx on suspicion of trespassing inside those buildings.”434
While I have not yet ruled on plaintiffs’ motion, “[i]t is well established that ‘[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class’ and that the ‘court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.’”435 Based on the conclusions in the preceding section, the putative class in this case is threatened with imminent violations of their constitutional rights in the absence of preliminary relief.436 The frequency of unconstitutional trespass stops outside Clean Halls buildings reflected in the decline to prosecute forms and Dr. Fagan’s report
434 Class Mem. at 1. 435 Strouchler v. Shah, — F. Supp. 2d —, 2012 WL 3838159, at *8 (S.D.N.Y. Sept. 4, 2012) (quoting ALBA CONTE & HERBERT NEWBERG, NEWBERG ON CLASS ACTIONS § 9:45 (4th ed. 2002)). 436 See id. at *6 (“In order to merit preliminary relief, the threat of irreparable harm must be imminent.” (citing Rodriguez v. DeBuono, 175 F.3d 227, 235 (2d Cir. 1999)).
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establishes that members of plaintiffs’ putative class will likely be subject to such stops between now and the completion of trial if this Court does not act. Because “[t]he violation of a constitutional right . . . constitutes irreparable harm for the purpose of a preliminary injunction,”437 plaintiffs have carried their burden of showing likely irreparable harm on behalf of the putative class.
3. Balance of Equities In order to qualify for a preliminary injunction, plaintiffs must show “that the balance of equities tips in [their] favor.”438 Given that a preliminary injunction is “‘an extraordinary remedy never awarded as of right,’”439 it would be inappropriate to award such an injunction if doing so would result in an arrangement less fair to the parties than the status quo, such as an arrangement in which the hardship imposed on one party outweighed the benefit to the other. “[T]he Court should ‘balanc[e] . . . the equities to reach an appropriate result protective of the interests of both parties.’”440
437 Ligon, 2012 WL 3597066, at *1 (citing Johnson v. Miles, 355 F. App’x 444, 446 (2d Cir. 2009)).
438 Winter, 555 U.S. at 20. 439 UBS Fin. Servs., 660 F.3d at 648 (quoting Winter, 555 U.S. at 24). 440 Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 747 (2d Cir. 1994) (quoting Soltex Polymer Corp. v. Fortex Indus., Inc., 832 F.2d 1325, 1330 (2d Cir. 1987)) (emphasis omitted).
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I do not take lightly the burden on defendants of altering NYPD
policies and training procedures. It is partly out of concern for defendants’ hardships that I have rejected some of plaintiffs’ proposed remedies.441
Nevertheless, the burden on putative class members of continued unconstitutional
stops goes far beyond administrative inconvenience. As I stated in Floyd:
The right to physical liberty has long been at the core of our nation’s commitment to respecting the autonomy and dignity of each person: “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.”442
Eliminating the threat that the kinds of stops described by plaintiffs might occur at
any moment, without legal justification, in the vicinity of one’s home and the
homes of one’s friends and family, is itself an important interest deserving of
judicial protection.
Equally important are the potential consequences of an unlawful stop. The stakes of “field interrogation”443 by the police have dramatically risen since
Terry was decided in 1968. The use of incarceration has increased, sentences have
441 See Pl. Findings ¶¶ 73–75. 442 Floyd, 283 F.R.D. at 158–59 (quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251 (1891)). 443 Terry, 392 U.S. at 12, 14.
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grown, the threat of lengthy incarceration has created new incentives to plead
guilty, and the collateral consequences of a conviction — on employment, housing,
access to government programs, and even the right to vote or serve on a jury —
have become more common and more severe. If an unjustified stop happens to
lead to an unjustified arrest for trespassing, as it did in Charles Bradley’s case, not
every overburdened public defender will have the wherewithal to obtain a
notarized letter from the defendant’s host explaining that the defendant was
invited, as Bronx Defender Cara Suvall did on behalf of Bradley.444 When
considering the relative hardships faced by the parties, it is important to consider
the potentially dire and long-lasting consequences that can follow from
unconstitutional stops.445
444 See Tr. 10/16 at 269:2–9; Rappa Letter. 445 Though it is unnecessary to reach the issue in this Opinion, I note that the appropriate form of Fourth Amendment analysis may differ depending on the quantity and nature of stops being scrutinized, and the remedies available. Not only are the consequences of stops different today than they were in 1968, but the frequency of stops is far higher as well. See Floyd, 283 F.R.D. at 159 (over 2.8 million stops by NYPD between 2004 and 2009). As the stops have increased in frequency, they have also become more standardized and predictable. In Terry, the Supreme Court emphasized “the myriad daily situations in which policemen and citizens confront each other on the street.” Terry, 392 U.S. at 12. “No judicial opinion can comprehend the protean variety of the street encounter, and we can only judge the facts of the case before us.” Id. at 15. In the instant case, by contrast, the contested police encounters are strikingly uniform. The stops in the decline to prosecute forms echo the stops of plaintiffs, which in turn echo aspects of the training materials introduced at the hearing. See, e.g., IO 22 of 2012 at 2
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Weighing the equities in light of the totality of the circumstances, the
administrative burdens that defendants will face in revising the NYPD’s policies
and training materials are real, but are outweighed by plaintiffs’ interest in not
being subjected to unconstitutional stops outside their homes and the homes of
their family and friends.
4. Public Interest
Any preliminary injunction must be “in the public interest.”446 Courts
(¶ 11). Terry envisions street stops as uniquely tailored to unforeseen circumstances. The stops in the instant case are more like the products of fixed, repeatable processes. The NYPD training materials that teach these processes can be scrutinized in ways that an individual officer’s discretionary act cannot. Because of this, a different constitutional analysis may be appropriate.
In addition, the constitutional framework for the ex post evaluation of highly individualized, discretionary stops, where exclusion is the only remedy, may not be appropriate to the ex ante evaluation of routinized, highly scripted, largely predictable stops, where the remedy can involve changes in training. Ultimately, “the central inquiry under the Fourth Amendment” is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry, 392 U.S. at 19. An invasion of privacy that is reasonable when it occurs on an ad hoc basis and is weighed in the context of the exclusionary rule may not be reasonable when it occurs as a matter of programmatic policy on a far larger scale.
Terry itself seems to invite scrutiny of stops falling below the intrusiveness of Terry stops, provided that the remedies applied are less severe than the exclusion of evidence. “[O]f course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the exclusionary rule to curtail abuses for which that sanction may prove inappropriate.” Terry, 392 U.S. at 15.
446 Winter, 555 U.S. at 20.
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have no special institutional competence in determining what the public interest is, and the parties presented little evidence at the hearing directly addressing this issue. Nevertheless, the public interests at issue in plaintiffs’ motion are familiar from a long line of cases concerning “the power of the police to ‘stop and frisk’ . . . suspicious persons.”447 In these cases, there is a recurring conflict between liberty and dignity on the one hand, and safety on the other.448
Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case. Even if the constitutional violations described by plaintiffs were confined to the members of a discrete community, the public has a clear interest in protecting the constitutional rights of all its members. At the same time, enforcing constitutional restrictions on the NYPD’s ability to stop and potentially frisk people outside TAP buildings could conceivably inhibit the NYPD’s ability to provide security to the residents of those buildings and their communities.
In light of these considerations, and taking account of all the evidence presented at the hearing, I find that the public interest lies with the enforcement of
447 Terry, 392 U.S. at 10. 448 See Davis, 2012 WL 4813837, at *1.
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the Constitution. It is “‘clear and plain’”449 that the public interest in liberty and dignity under the Fourth Amendment trumps whatever modicum of added safety might theoretically be gained from the NYPD making unconstitutional trespass stops outside TAP buildings in the Bronx. I am not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily enrolled private buildings.450 My ruling today is directed squarely at a category of stops lacking reasonable suspicion. Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.
C. Appropriate Scope of Injunctive Relief Injunctive relief “‘should be narrowly tailored to fit specific legal
violations.’”451 In addition, “great[] caution is appropriate where a federal court is asked to interfere by means of injunctive relief with a state’s executive functions, a
449 Reynolds, 506 F.3d at 198 (quoting Rizzo v. Goode, 423 U.S. 362, 378 (1976)).
450 See, e.g., Tr. 10/18 at 593:15–594:3 (testimony of landlord to the advantages of enrollment in Operation Clean Halls).
451 Patsy’s Ital. Res., Inc. v. Banas, 658 F.3d 254, 272 (2d Cir. 2011) (quoting Patsy’s Brand, Inc. v. I.O.B. Realty, Inc., 317 F.3d 209, 220 (2d Cir. 2003)). Accord City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 143–44 (2d Cir. 2011) (summarizing limitations on scope of injunctive relief).
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sphere in which states typically are afforded latitude.”452 Prudence counsels in
favor of the exercise of restraint and caution when the important interests of
policing and safety may conflict with the equally important interests of protecting
the constitutional rights of all those who are or may be affected by police practices in New York City.453 Nevertheless, where the levers of municipal democracy have
failed, leaving in place practices that violate constitutional rights, courts have a
duty to intervene. As I stated in Floyd, safeguarding the liberties guaranteed under the Fourth Amendment “is quintessentially the role of the judicial branch.”454
In light of these considerations, as well as the findings of fact and
conclusions of law detailed above, I impose the following preliminary relief:
1. Immediate Relief
452 Reynolds, 506 F.3d at 198. 453 Some recent scholarship has argued that the NYPD’s stop and frisk program may be partly responsible for the decline in crime in New York City in recent decades. See FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW YORK’S LESSONS FOR URBAN CRIME AND ITS CONTROL (2011). The issue in this case, however, is not whether trespass stops outside TAP buildings in the Bronx are effective at reducing crime, but whether they are constitutional. No matter how effective a police practice may be, if it violates the Fourth Amendment, the Constitution requires the government to find other means of achieving its goals. For example, while preventive detention might be an effective law enforcement tool, police departments are not allowed to employ it, because doing so would violate the Constitution. 454 Floyd, 283 F.R.D. at 159.
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The NYPD is ordered immediately to cease performing trespass stops
outside TAP buildings in the Bronx without reasonable suspicion of trespass, in
accordance with the law as set forth and clarified in this Opinion.455 To
summarize: as the Fourth Amendment has been interpreted by the U.S. Supreme
Court and the Second Circuit, an encounter between a police officer and a civilian
constitutes a Terry stop whenever a reasonable person would not feel free to
“‘terminate the encounter.’”456 The stops in this case illustrate that the threat or use
of force is not a necessary or even typical element of Terry stops. Encounters
involving nothing more than commands or accusatory questioning can and
routinely do rise to the level of Terry stops, provided that the commands and
questioning would lead a reasonable person to conclude he was not free to
455 Defendants appear to believe that an order prohibiting stops outside TAP buildings that lack reasonable suspicion is “a simple command that the defendant obey the law,” and thus is not legally cognizable. See Def. Findings ¶ 54 n.21 (quoting S.C. Johnson, Inc. v. Clorox Co., 241 F.3d 232, 240 (2d Cir. 2001) (interpreting Rule 65(d)). But as I stated prior to the preliminary injunction hearing, “the City misapprehends the purpose of Rule 65.” Ligon, 2012 WL 3597066, at *3–4. Cases like S.C. Johnson do not prohibit courts from ordering parties to obey the law, but rather require that such orders be specific and clear. See S.C. Johnson, 241 F.3d at 240. “[A]n injunction must ‘be specific and definite enough to apprise those within its scope of the conduct that is being proscribed.’” Id. at 240–41. The immediate relief ordered here is specific, clear, and necessary to correct the misconceptions of NYPD officers that led to the violations of constitutional rights at issue in this case.
456 Drayton, 536 U.S. at 202 (quoting Bostick, 501 U.S. at 436). 143

terminate the encounter. In order for an officer to have “reasonable suspicion” that an
individual is engaged in criminal trespass, the officer must be able to articulate facts providing “a minimal level of objective justification for making the stop,”457 which means “something more than an inchoate and unparticularized suspicion or hunch.’”458 In particular, an individual observed exiting or entering and exiting a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high crime area, and regardless of the time of day. For the reasons described above, “furtive movement” is a problematic basis for a trespass stop, especially when it is offered as a stand-alone justification. If an officer is unable to articulate anything more specific than that a person displayed “furtive movement,” including anything about the person’s furtive movement that suggested trespass, then the statement that a person displayed “furtive movement” is nothing more than an unparticularized suspicion or hunch, and does not constitute reasonable suspicion.
2. Proposed Additional Relief In addition to the immediate relief ordered above, I propose to enter
457 Wardlow, 528 U.S. at 123. 458 White, 496 U.S. at 329 (quoting Sokolow, 490 U.S. at 7) (certain quotation marks omitted).
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the preliminary relief described under the following subheadings. I present this relief as a proposal for two reasons. First, the parties in Ligon had little opportunity to argue and present evidence at the preliminary injunction hearing concerning the appropriate scope of relief. Second, the preliminary relief I propose is similar though not identical to the relief sought by plaintiffs in the Floyd action, where I have already certified a city-wide class of plaintiffs alleging that they have or will be victims of unconstitutional stops. Floyd is scheduled for trial on March 11, 2013. As part of the proof in that case, plaintiffs intend to present evidence regarding the remedies they seek.
Because of the rapidly approaching trial date in Floyd and the inefficiency of hearing separate arguments regarding the closely related remedies at issue in Ligon and Floyd, I am ordering the consolidation of the remedies hearing in the instant case with the remedies portion of the Floyd trial. Thus, the relief proposed under the subheadings below will not take effect until the parties in this case have had the opportunity to participate in a hearing at which they may present evidence or argument as to whether the proposed relief is insufficient or too burdensome or otherwise inappropriate, as well as regarding the appropriate timeline for relief. This remedy hearing will be held in conjunction with the Floyd
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trial, following the phase of the trial dealing with proof of liability.459 Plaintiffs’
counsel in Ligon and Floyd must coordinate their presentations with respect to
appropriate remedies.460 Submissions by counsel in Ligon related solely to
remedies must be filed no later than February 22, 2013, and may not exceed
twenty-five pages per side.
a. Policies and Procedures
The NYPD is ordered to develop and adopt a formal written policy
specifying the limited circumstances in which it is legally permissible to stop a
person outside a TAP building on a suspicion of trespass. The policy must reflect
the fact that trespass stops outside TAP buildings are governed not only by New
York state law, but by the Fourth Amendment. Guidance in drafting this policy
should be drawn from the legal discussion found in this Opinion.
459 I emphasize that this ruling should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in Floyd. The evidence presented by both sides in Floyd will be judged on its own merits. While the Applicable Law section of this Opinion — see supra Part III — certainly applies to issues raised in Floyd, the Findings of Fact section does not. As I have noted throughout this Opinion, this case relates solely to trespass stops outside of TAP buildings in the Bronx. It is only because of the unavoidable overlap between the steps that are necessary to address plaintiffs’ harms in the instant case, and the steps that would be necessary to address plaintiffs’ harms in Floyd if plaintiffs prevailed there, that I am ordering the consolidation of the remedies presentations.
460 In the interests of efficiency, counsel in Floyd and Ligon are also permitted, but not required, to invite the participation of counsel in Davis in the presentation on appropriate remedies.
146

A draft of the written policy governing trespass stops outside TAP buildings shall be provided to the Court (or a monitor appointed by the Court) for approval prior to distribution, with a copy to plaintiffs’ counsel.
b. Supervision First, the City is ordered to take all necessary steps to ensure that UF250s are completed for every trespass stop outside a TAP building in the Bronx. Again, a “stop” in the relevant sense is defined as any police encounter in which a reasonable person would not feel free to terminate the encounter. Second, the City is ordered to implement a system of review modeled on the one ordered by Chief Hall in paragraph 3 of Exhibit E. Supervisory personnel in each Bronx precinct must review, on a quarterly basis, each UF-250 completed for a trespass stop outside a TAP building in the Bronx. To the extent that such review reveals nonconformity with the formal written policy described above, the City will take specific steps to retrain the officer. The results of these reviews and any retraining will be periodically reported to the relevant precinct commander, a designated member of the Bronx Borough Command, a designated member of the Chief of Patrol’s Office, and plaintiffs’ counsel. Copies of all reviewed UF-250s shall be provided to plaintiffs’ counsel.
c. Training
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The City is ordered to revise the NYPD’s training materials and training programs to conform with the law as set forth in this Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have afflicted TAP in the Bronx. It must include, but need not be limited to, the following reforms: (1) The formal written policy governing trespass stops outside TAP buildings, described above, must be distributed to each Bronx NYPD member, and then redistributed two additional times at six-month intervals. (2) The stop and frisk refresher course at Rodman’s Neck must be altered to incorporate instruction specifically targeting the problem of unconstitutional trespass stops outside TAP buildings. Whether the instruction includes additional slides, role-playing, or exams, it must be sufficient to convey to all officers who attend the course that reasonable suspicion of trespass is required before making a trespass stop outside a TAP building. Training regarding these stops must also be provided to new recruits and to officers who have already attended the Rodman’s Neck refresher course and are not scheduled to do so again. (3) Chapter 16 of the Chief of Patrol Field Training Guide must be revised to reflect the formal written policy governing trespass stops outside TAP buildings described above. (4) SQF Training Video No. 5 must be revised to conform with the law as set forth in this Opinion. I recognize that this step, like some of the others above, will involve
148

alterations to training materials used outside the Bronx and outside the context of TAP. But such steps are necessary to correct the longstanding misconceptions that led to the violations of plaintiffs’ constitutional rights described in this Opinion.
Drafts of the written or scripted training materials described above shall be provided to the Court (or a monitor appointed by the Court) for approval prior to use, with a copy to plaintiffs’ counsel.
d. Attorneys’ Fees Reasonable attorneys’ fees and costs will be rewarded as appropriate, on application. In closing, I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing. It could be the case that the development and implementation of IOs 22 and 23 of 2012, as well as the changes to NYPD training in 2012, have resolved the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. Because these changes were so recent, however, and so late in the two-decade history of TAP, they were insufficient to rebut plaintiffs’ evidence at the hearing of defendants’ deliberate indifference to a practice of unconstitutional stops. At any time that defendants develop persuasive evidence, supported by reliable statistics, that unconstitutional trespass stops are no longer taking place outside TAP buildings in
149

the Bronx, defendants may move for the dissolution of this preliminary injunction and the proposed relief. VI. CONCLUSION
For the reasons explained above, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined.461 No action is required by the Clerk of the Court, because plaintiffs' motion has already been closed.

Dated:

February 14,2013 New York, New York

461 Subsequent to the publication of the original version of this Opinion on January 8, 2013, I stayed the immediately ordered relief granted above. See Ligon v. City ofNew York, No. 12 Civ. 2274, 2013 WL 227654 (S.D.N.Y. Jan. 22, 2013). The pUblication of this Amended Opinion does not have the effect of lifting the stay.
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APPENDIX A
Excerpts from Decline to Prosecute Affidavits:
1. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, and asked defendant, why were you in the building? Defendant stated in sum and substance: VISITING A FRIEND. The Arresting Officer then observed defendant to have a white powdery substance on his nose . . . however, the amount was too small to field test or recover.
The Arresting Officer arrested Defendant and charged him with violating New York State Penal Law section 140.15 (Criminal Trespass). However, the Arresting Officer failed to ask defendant [redacted] you know anyone in the building; if so, what is the person’s name and apartment number.
2. [T]he defendants were observed exiting a clean halls building. The defendants stated that they were there to visit a tenant . . . . After being arrested a tenant from the building did corroborate the defendant’s statements and the tenant stated that both defendants were in the building as his guests.
3. The Arresting Officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The Arresting Officer . . . approached the defendant and asked the defendant do you live in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant what apartment did you come from and defendant stated in sum and substance: I MET WITH [redacted] IN THE LOBBY. The Arresting Officer further asked defendant what apartment does [redacted] live in and defendant stated in sum and substance: I DON’T KNOW THE APARTMENT NUMBER. [Another officer then went inside the building and asked two people exiting if they knew anyone by the name of the defendant’s host. When they said no, the defendant was arrested for trespass.]
4. . . . Arresting Officer observed defendant enter and exit a Clean Halls Building. Arresting Officer approached the defendant and asked her where she was coming [from], what was she doing in the building and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME. [The defendant was then arrested for trespass.]
151

5. Defendants entered . . . a clean halls building, and exited. Defendant was stopped outside of the location. When the arresting officer questioned the defendant, defendant stated, in sum and substance, I’M JUST CHILLING. Defendant did not admit that he was in the location. [The defendant was then arrested for trespass.]
6. [A]rresting officer . . . observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment Building, asked defendant does he live there and defendant did not respond. The arresting officer then asked the defendant if he knows anyone in the apartment and defendant did not respond. Arresting officer then asked defendant what was he doing in the building and defendant stated in sum and substance I WASN’T THERE TO BUY DRUGS. [The defendant was then arrested for trespass.]
7. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment building, and asked defendant do you live in the building, do you know anyone in the building, what are you doing in the building, to which defendant stated in sum and substance: NO, NO, I WAS INSIDE FOR A COUPLE OF MINUTES MAKING A PHONE CALL. [The defendant was then arrested for trespass.]
8. Arresting Officer . . . observed both defendants exit the lobby of . . . a Clean Halls Apartment Building and asked defendants what was their purpose inside of said building and defendant [redacted] stated in sum and substance: I WAS VISITING MY COUSIN [redacted] IN [redacted] but defendant [redacted] remained silent. [Another officer] entered the building to investigate further, however, the arresting officer was unable to articulate how [the other officer] disproved [the speaking defendant’s] claim. [Both defendants were arrested for trespass.]
9. Police Officer . . . observed the defendant exiting the lobby of . . . a Clean Halls Apartment Building and asked defendant whether he lived in the building and defendant stated in sum and substance: NO. [The officer] then asked the defendant, were you visiting anyone in the building, and defendant stated in sum and substance: YES. [The officer] then asked the defendant for the name of the person he was visiting and the apartment number and defendant stated in sum and substance: I DON’T KNOW. [The defendant was then arrested for trespass.]
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10. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building, and radioed defendant’s description. Arresting Officer’s partner asked defendant why did you go into the building, do you know anyone in the building, to which defendant stated in sum and substance: I CAME OUT OF A FRIEND[’]S APARTMENT. I WAS INSIDE FOR ABOUT AN HOUR. [The defendant was then arrested for trespass.]
11. [T]he arresting officer observed the defendant enter into [a Clean Halls building] and exit after approximately five (5) minutes. . . .
. . . The defendant was not observed in an area of the building that is not open to the public such as the hallways, lobby and stairwells. [The defendant was arrested for trespass.]
12. [A police officer] observed the defendant enter a Clean Halls Building and exit moments later. . . . [W]hen the defendant exited the building, [the officer] asked the defendant if he lived in the building, to which the defendant stated in sum and substance, NO. . . . [The officer] did not ask the defendant if he was a guest of a tenant in the building. . . . [T]he defendant attempted to walk away at which time [the officer] grabbed the defendant[’]s arms, and the defendant pulled away. [A struggle ensued, and the defendant was then arrested in part for trespass.]
13. [T]he defendants entered a Clean Halls building, stayed there approximately five minutes, and then left. The arresting officer stopped the defendants and asked them where they were coming from. The defendants replied, in sum and substance, WE’RE COMING FROM . . . WE’RE COMING FROM . . ., and could not provide a name or apartment number. The officer placed both defendants under arrest and searched them.
14. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, approached defendant and asked, Do you live in the building?, defendant stated in sum and substance: NO. The Arresting Officer then asked the defendant, Do you know anyone in the building?, defendant stated in sum and substance: YES, A FRIEND. The Arresting Officer then asked the defendant, What’s your friend’s name? What apartment does your friend live in?, defendant stated in sum and substance: I DON’T KNOW HIS NAME. HE’S IN [redacted]. The Arresting Officer went to [redacted] however, the apartment was unoccupied, and as a result, the Arresting Officer was unable to locate anyone who
153

could verify defendant’s claim. [The defendant was then arrested for trespass.]
15. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building and [another officer] approached defendant on the sidewalk and asked defendant, Do you live in the building?, and defendant stated in sum and substance: NO. [The officer] asked defendant, What was your reason for being in the building?, and defendant stated in sum and substance: LOOKING FOR A GIRL. [The officer] then asked the defendant, What’s the name of the girl?, and defendant refused to provide an answer to the aforementioned question. [The defendant was then arrested for trespass.]
16. Arresting Officer observed the defendant enter and exit the lobby of . . . a clean halls Building. [The defendant was then arrested for trespass.] However, arresting Officer could not obtain a clean halls affidavit.
17. [I]n front of . . . a Clean Halls building, [the arresting officer] observed defendant and several unapprehended individuals exit the lobby . . . . [The officer] approached defendant and asked defendant if he knew anyone in above-mentioned location and defendant stated in sum and substance: NO. I’M JUST LOOKING FOR MY FRIEND [redacted]. NO [redacted] DOESN’T LIVE HERE. [The defendant was then arrested for trespass.]
18. [D]efendant was observed entering and exiting the lobby of [a Clean Halls building].
Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS IN THE BUILDING LOOKING FOR WORK. Arresting officer asked defendant what kind of work he was looking for and defendant stated in sum and substance I WAS LOOKING FOR MY FRIEND [redacted]. Arresting officer asked defendant where his friend lived and defendant stated in sum and substance I DON’T KNOW WHERE HE LIVES. [The defendant was then arrested for trespass.]
19. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and defendant stated in sum and substance: I WAS THERE TO VISIT A FRIEND. I DON’T KNOW WHAT APARTMENT THEY LIVE IN. [The officer then searched the defendant, found crack-cocaine and a pipe, and arrested defendant in part for trespass.]
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20. The arresting officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated in sum and substance YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT GOING TO TOUCH ME. YOU’RE NOT PUTTING YOUR HANDS ON ME. [The arresting officer then handcuffed defendant and placed him in the patrol vehicle.]
21. [D]efendant was observed entering the above location, a Clean Halls Apartment building, and was also observed exiting said location minutes later. Arresting police officer . . . asked defendant if he lived in the building and defendant stated in sum and substance, I’M NOT THERE, I’M IN [redacted]. [The defendant was then arrested for trespass.]
22. Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building. Arresting officer approached defendant and asked him, do you live in the building, do you know anyone in the building, what apartment does your friend live [in], what is his name[,] to which defendant stated in sum and substance: . . . NO I DON’T, YES I’M VISITING MY FRIEND ON THE [redacted] FLOOR, NO I’M NOT GOING TO GIVE YOU MY FRIEND’S NAME. [The officer then patted down the defendant and arrested him in part for trespass.]
23. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and do you know anyone in the building and defendant stated in sum and substance: NO, I DON’T KNOW ANYONE AND I WENT TO BUY DRUGS. [The defendant was then arrested in part for trespass.]
24. The Arresting Officer states that . . . he observed defendant exiting . . . a Clean Halls Apartment Building. The Arresting Officer approached defendant and asked defendant if he lives in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant where are you coming from and defendant stated in sum and substance: I’M COMING FROM THE [redacted] FLOOR. The Arresting Officer asked the defendant what apartment are you coming from and defendant stated in sum and substance: I DON’T KNOW THE APARTMENT NUMBER BUT I’LL SHOW IT TO YOU. [The officer went with the defendant to the apartment. No one answered the door.
155

The defendant was arrested for trespass.] 25. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building. Arresting Officer told defendant that he observed him enter said building along with separately apprehended [redacted] . . . and separately apprehended stated in sum and substance WE WERE IN THE BUILDING. Arresting Officer then asked separately apprehended and defendant what apartment they were visiting, and neither defendant nor separately apprehended provided a response. [The defendant was then arrested for trespass.]
. . . [T]he Arresting Officer did not observe defendant to go beyond the public vestibule of said building, nor did defendant admit to being inside of said building, beyond the public vestibule. 26. The arresting officer states that . . . inside of . . . a Clean Halls Building, she observed defendant and separately apprehended [redacted] enter the lobby of said location and exit shortly thereafter. Arresting officer stopped defendant and asked him if he lived in the building and defendant stated in sum and substance I DON’T LIVE IN THE BUILDING. Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS WAITING FOR A FRIEND. Arresting officer asked defendant for the name of the person he was waiting for and defendant did not reply. Arresting officer asked defendant for his identification and defendant was unable to produce one at which time arresting officer attempted to handcuff defendant and defendant ran.
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APPENDIX B Blank UF-250 Form
157

For Plaintiffs:

- Appearances For Defendants:

Christopher Dunn, Esq. Alexis Karteron, Esq. Taylor Pendergrass, Esq. Daniel Mullkoff, Esq. New York Civil Liberties Union 125 Broad Street, 19th floor New York, NY 10004 (212) 607-3300
J. McGregor Smyth, Jr., Esq. Mariana Kovel, Esq. The Bronx Defenders 860 Courtlandt Avenue Bronx, NY 10451 (718) 508-3421

Heidi Grossman Mark Zuckerman Joseph Marutollo Brenda Cooke Richard Weingarten Assistant Corporation Counsel New York City Law Department 100 Church Street New York, NY 10007 (212) 788-1300

Juan Cartagena, Esq. Foster Maer, Esq. Roberto Concepcion, Jr., Esq. LatinoJustice PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013 (212) 219-3360

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

158

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

OPINION AND ORDER 08 Civ. 1034 (SAS)

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

12 Civ. 2274 (SAS)

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


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

1

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

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

2

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

2

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

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

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

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

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

3

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

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

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

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

4

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

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

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

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

constitutional infraction).

5

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

250, 251 (1891)).

3

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

6

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

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

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

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

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

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

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

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

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

August 8, 2013.

7

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

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

4

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

8

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

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

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

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

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

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

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

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

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

9

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

id. at 10–11 (collecting sources).

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

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

5

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

rights of all persons.”16 This duty is not curtailed when constitutional violations arise in the
context of law enforcement. Rather, where “there is a persistent pattern of police misconduct,
injunctive relief is appropriate.”17
I have always recognized the need for caution in ordering remedies that affect the
internal operations of the NYPD,18 the nation’s largest municipal police force and an
organization with over 35,000 members.19 I would have preferred that the City cooperate in a
joint undertaking to develop some of the remedies ordered in this Opinion.20 Instead, the City
declined to participate, and argued that “the NYPD systems already in place” — perhaps with
unspecified “minor adjustments” — would suffice to address any constitutional wrongs that
16 Plata, 131 S. Ct. at 1928 (citing Cruz v. Beto, 405 U.S. 319, 321 (1972) (per curiam)) (quotation marks omitted). Accord Todaro v. Ward, 565 F.2d 48, 53–54 (2d Cir. 1977) (“‘[A] policy of judicial restraint cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution.’” (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974))).
17 Allee v. Medrano, 416 U.S. 802, 815 (1974). Accord DOJ Inj. Mem. at 8–9 (collecting cases and noting that pursuant to statutory authorities “the United States has itself sought and secured the implementation of remedial measures to reform police misconduct in dozens of law enforcement agencies,” including measures that “directly address systemic deficiencies in the way officers conduct stops and searches”).
18 See, e.g., Patrolmen’s Benevolent Ass’n of City of New York, Inc. v. City of New York, No. 97 Civ. 7895 (SAS), 2000 WL 1538608, at *3–4 (S.D.N.Y. Oct. 18, 2000) (declining to impose injunction on the NYPD where doing so would have been “an undue intrusion into a matter of state sovereignty”).
19 See Def. Inj. Mem. at 1. 20 See 1/31 Tr. at 101; 1/28/13 Letter from Jonathan C. Moore et al., Counsel for Plaintiffs, to the Court (proposing collaborative procedure involving all the parties in Floyd, Ligon, and Davis, a court-appointed facilitator, and the views of major stakeholders). The City rejected this proposal. See 1/31 Tr. at 9–10.
7

might be found.21 I note that the City’s refusal to engage in a joint attempt to craft remedies
contrasts with the many municipalities that have reached settlement agreements or consent
decrees when confronted with evidence of police misconduct.22
B. Equitable Relief
Federal Rule of Civil Procedure 65(d) requires that “[e]very order granting an
injunction . . . must: (A) state the reasons why it issued; (B) state its terms specifically; and (C)
describe in reasonable detail — and not by referring to the complaint or other document — the
act or acts restrained or required.”23 These specificity provisions are “‘no mere technical
requirements,’” but were “‘designed to prevent uncertainty and confusion on the part of those
faced with injunctive orders, and to avoid the possible founding of a contempt citation on a
21 6/12/13 Defendant’s Post-Trial Memorandum of Law (“Def. Mem.”) at 24–25. Accord Def. Inj. Mem. at 7–18. The City also argues that no remedy is required because improper stops can be addressed by individual suits for damages. See Def. Inj. Mem. at 6. The DOJ counters that if individual suits were an effective remedy for police misconduct, courts would not have found it necessary to impose injunctive relief in so many police misconduct cases. See DOJ Inj. Mem. at 9 & n.5 (also citing arguments from Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. CHI. L. REV. 345, 354–57 (2000)). I note that individual suits for damages are particularly ineffective as a remedy for unconstitutional stops, where individuals often do not know what the basis for their stop was, and thus cannot know whether the stop lacked a legal basis or was influenced improperly by race. In addition, while the indignity of an unconstitutional stop is a serious harm, few of those stopped will be motivated to dedicate their time and resources to filing a lawsuit — especially where the standard for recovery may require proof of Monell liability.
22 See, e.g., Bailey v. City of Philadelphia, No. 10 Civ. 5952 (E.D. Pa. June 21, 2011) (consent decree in class action alleging unconstitutional stops and frisks of black and Hispanic men); DOJ Inj. Mem. at 9 (noting DOJ settlement agreements and consent decrees with dozens of law enforcement agencies nationwide). The City’s resistance to reform in this case may reflect a more general skepticism toward judicial interpretation of the Constitution and the limits it imposes on municipalities. See, e.g., Jill Colvin, Bloomberg Says Interpretation of Constitution Will “Have to Change” After Boston Bombing, POLITICKER (Apr. 22, 2013).
23 Fed. R. Civ. P. 65(d)(1).
8

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

24 Mickalis Pawn Shop, 645 F.3d at 143 (quoting Schmidt v. Lessard, 414 U.S. 473, 476 (1974)).
25 Id. at 144 (quoting S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 241 (2d Cir. 2001)).

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

27
the DOJ.

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

9

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

[T]he experience of the United States in enforcing police reform injunctions teaches that the appointment of an independent monitor is a critically important asset to the court, the parties, and the community in cases involving patterns or practices of unlawful conduct by law enforcement officials. A court-appointed monitor in this case would help the Court ensure that . . . any pattern or practice . . . is effectively and sustainably remedied.30
The appointment of a monitor will serve the interests of all stakeholders, including the City, by
facilitating the early and unbiased detection of non-compliance or barriers to compliance. By
identifying problems promptly, the Monitor will save the City time and resources.31
I also note that the Monitor will have a distinct function from the other oversight
entities identified by the City, such as the NYPD’s Internal Affairs Bureau, federal prosecutors,
the Civilian Complaint Review Board, and “the public electorate.”32 The Monitor will be
specifically and narrowly focused on the City’s compliance with reforming the NYPD’s use of
stop and frisk — although this will inevitably touch on issues of training, supervision,
monitoring, and discipline. Finally, the Monitor will operate in close coordination with this
30 DOJ Inj. Mem. at 5.
31 See id. at 16 (“Without an independent monitor, the Court will be forced to depend on motions practice between the parties to assess progress; a costly, contentious, inefficient, and time-consuming process.”).
32 Id. at 18 (citing Def. Inj. Mem. at 13). In particular, as the DOJ notes, “it is not realistic to ask ‘the public electorate’ to monitor the police department to ensure that the department’s stop-and-frisk practices are consistent with the Constitution.” Id. at 20 (citing United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)). If it is true that 76% percent of black voters in New York City disapprove of stop and frisk, as found in a recent Quinnipiac University poll, then the persistence of this policy in heavily black communities might indicate the failure “of those political processes ordinarily to be relied upon to protect minorities,” and thus might justify “more searching judicial inquiry.” Carolene Prods., 304 U.S. at 152 n.4; Quinnipiac University, New Yorkers Back Ban on Take-Out Foam More Than 2-1, at 8 (Feb. 28, 2013), http://www.quinnipiac.edu/images/polling/nyc/nyc02282013.pdf/ (19% of blacks approve and 76% disapprove of “a police practice known as stop and frisk, where police stop and question a person they suspect of wrongdoing and, if necessary, search that person”).
11

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

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

above, the development of reforms will take place in two stages. First, the Monitor will develop, in consultation with the parties, an initial set of reforms to the NYPD’s policies, training, supervision, monitoring, and discipline regarding stop and frisk (the “Immediate Reforms”). These reforms will be developed and submitted to the Court as soon as practicable, and implemented when they are approved. Second, the Facilitator will work with the parties and other stakeholders to develop, through the Joint Remedial Process, a more thorough set of reforms (the “Joint Process Reforms”) to supplement, as necessary, the Immediate Reforms. The development of the Joint Process Reforms is discussed below in Part II.A.4.
If the parties, together with the Monitor, are unable to develop agreed-upon Immediate Reforms, the Court will order the parties to draft proposed revisions to specific policies and training materials, as the parties have already done quite effectively in Ligon.35 Indeed, the remedies proposed in Ligon may provide a useful model for some aspects of the Immediate Reforms.36
Based on the liability and remedies evidence presented at trial, the Immediate Reforms must include the following elements:
a. Revisions to Policies and Training Materials Relating to Stop and Frisk and to Racial Profiling
First, the NYPD should revise its policies and training regarding stop and frisk to adhere to constitutional standards as well as New York state law. The constitutional standards
the trial record for an assessment of the remedies evidence”); 6/12/13 Defendant’s Post-Trial Memorandum of Law at 24–25 (declining to propose remedies).
35 See 7/8/13 Defendants’ Proposed Remedial Relief (“Ligon Def. Rem.”). 36 See Ligon, 2013 WL 628534, at *41–44.
14

include the standards for: what constitutes a stop, when a stop may be conducted, when a frisk
may be conducted, and when a search into clothing or into any object found during a search may
be conducted.37 Although the standards may sometimes require the informed use of discretion,
they are not complicated and should be stated in policies and training as clearly and simply as
possible.
To summarize: an encounter between a police officer and a civilian constitutes a
stop whenever a reasonable person would not feel free to disregard the officer and walk away.
The threat or use of force is not a necessary or even typical element of stops. Encounters
involving nothing more than commands or accusatory questions can and routinely do rise to the
level of stops, provided that the commands and questions would lead a reasonable person to
conclude that he was not free to terminate the encounter.38
In order to conduct a stop, an officer must have individualized, reasonable
suspicion that the person stopped has committed, is committing, or is about to commit a crime.
The officer must be able to articulate facts establishing a minimal level of objective justification
37 See Liability Opinion at Part III.B; Ligon, 2013 WL 628534, at *41–42. 38 There could be a simple way to ensure that officers do not unintentionally violate the Fourth Amendment rights of pedestrians by approaching them without reasonable suspicion and then inadvertently treating them in such a way that a reasonable person would not feel free to leave. Officers could, for example, begin De Bour Level 1 and 2 encounters by informing the person that he or she is free to leave. There is no constitutional requirement for officers to inform people that they are free to leave. Cf. Ohio v. Robinette, 519 U.S. 33, 35 (1996) (holding that the Fourth Amendment does not require “that a lawfully seized defendant must be advised that he is ‘free to go’ before his consent to search will be recognized as voluntary”); Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (“While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.”). Nevertheless, the Constitution does not prohibit a police department from adopting this policy or a court from ordering it as a means of avoiding unconstitutional stops, where — as here — officers have been incorrectly trained on the definition of a stop.
15

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

the role-playing at Rodman’s Neck.39 These training reforms will be in addition to those discussed below in the section of this Opinion relating to Ligon.40
Second, the NYPD should revise its policies and training regarding racial profiling to make clear that targeting “the right people” for stops, as described in the Liability Opinion, is a form of racial profiling and violates the Constitution.41 Racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data. Race may only be considered where the stop is based on a specific and reliable suspect description. When an officer carries out a stop based on reasonable suspicion that a person fits such a description, the officer may consider the race of the suspect, just as the officer may consider the suspect’s height or hair color. When a stop is not based on a specific suspect description, however, race may not be either a motivation or a justification for the stop. In particular, officers must cease the targeting of young black and Hispanic males for stops based on the appearance of these groups in crime complaints. It may also be appropriate to conduct training for officers on the effect of unconscious racial bias.
Third, it is unclear at this stage whether Operations Order 52 (“OO 52”), which describes the use of performance objectives to motivate officers, requires revision in order to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments. The evidence at trial showed that OO 52’s use of “performance goals” created pressure to carry out stops, without any system for monitoring the constitutionality of those
39 See Liability Opinion at Part IV.C.5. 40 See infra Part III. 41 See Liability Opinion at Parts IV.C.3, V.B.1.
17

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

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

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

46

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

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

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

47

Id. at 46.

48

Id.

49

See id.

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

20

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

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

52

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

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

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

21

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

iii. Specific Relief Ordered The NYPD, with the assistance of the Monitor, is directed to revise the UF-250 to address the criticisms expressed in the Liability Opinion and the direction given in this Opinion, and to provide training with respect to the new form. The NYPD is further ordered, again with the assistance of the Monitor, to ensure that activity logs are completed with the required specificity, and to implement measures to adequately discipline officers who fail to comply with these requirements.
c. Changes to Supervision, Monitoring, and Discipline An essential aspect of the Joint Process Reforms will be the development of an improved system for monitoring, supervision, and discipline. Professor Walker testified that comprehensive reforms may be necessary to ensure the constitutionality of stops, including revisions to written policies and training materials, improved documentation of stops and frisks, direct supervision and review of stop documentation by sergeants, indirect supervision and review by more senior supervisors and managers, improved citizen complaint procedures, improved disciplinary procedures, department-wide audits, and perhaps even an early intervention system based on a centralized source of information regarding officer misconduct. According to Professor Walker, “[a] comprehensive approach is absolutely essential, because if any one of the components is absent or weak and ineffective, the entire accountability system begins to collapse.”57
57 5/15 Tr. at 7440. The National Institute of Justice, which the City’s policing expert, James K. Stewart, directed from 1982 to 1990, notes that “the management and culture of a department are the most important factors influencing police behavior.” National Institute of Justice, Police Integrity, available at http://www.nij.gov/topics/lawenforcement/legitimacy/integrity.htm#note2. Ultimately, ending unconstitutionality in stop and frisk may require changing the culture of the NYPD so that officials and officers view their
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In light of the complexity of the supervision, monitoring, and disciplinary reforms that will be required to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments, it may be appropriate to incorporate these reforms into the Joint Remedial Process negotiations described below. However, to the extent that the Monitor can work with the parties to develop reforms that can be implemented immediately, the Monitor is encouraged to include those reforms in the proposed Immediate Reforms.
For example, based on the findings in the Liability Opinion, there is an urgent need for the NYPD to institute policies specifically requiring sergeants who witness, review, or discuss stops to address not only the effectiveness but also the constitutionality of those stops, and to do so in a thorough and comprehensive manner.58 To the extent that Integrity Control Officers witness or review stops, they too must be instructed to review for constitutionality.59 The Department Advocate’s Office must improve its procedures for imposing discipline in response to the Civilian Complaint Review Board’s (“CCRB”) findings of substantiated misconduct during stops. This improvement must include increased deference to credibility determinations by the CCRB, an evidentiary standard that is neutral between the claims of complainants and officers, and no general requirement of corroborating physical evidence. Finally, the Office of the Chief of Department must begin tracking and investigating complaints

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

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

59

See id.

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it receives related to racial profiling.60
d. FINEST Message
As soon as practicable, the NYPD should transmit a FINEST message explaining
the outcome of the Floyd litigation and the need for the reforms described above.61 The FINEST
message should summarize in simple and clear terms the basic constitutional standards
governing stop and frisk, the constitutional standard prohibiting racial profiling, and the relation
between these standards and New York state law. The message should order all NYPD
personnel to comply immediately with those standards.
3. Body-Worn Cameras
The subject of police officers wearing “body-worn cameras” was inadvertently
raised during the testimony of the City’s policing expert, James K. Stewart. The following
discussion took place:
A. . . . But what happens is the departments a lot of times may not have . . . expertise and they may need some technical assistance like body worn cameras is an example and how much technology and where you store the information and stuff like that. They may not have it. And there may be other issues like psychological ideas about — THE COURT: What do you think of body worn cameras? THE WITNESS: I think it’s a good idea. We recommended it in Las Vegas. And we’re doing it in Phoenix as well. THE COURT: Thank you. . . . A. But I have no opinion in this case with respect to body worn cameras.62
60 See id. at Part IV.C.6. 61 The NYPD’s “FINEST” messaging system allows the transmission of legal directives to the NYPD’s commands. See, e.g., 5/10/12 Finest Message Regarding Taxi/Livery Robbery Inspection Program, Ex. 1 to 7/24/13 Plaintiffs’ Brief Concerning Defendants’ Remedial Proposals (“Ligon Pl. Rem.”). 62 5/17 Tr. at 7817–7818.
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The use of body-worn cameras by NYPD officers would address a number of the issues raised in the Liability Opinion. In evaluating the constitutionality of individual stops, I explained the difficulty of judging in hindsight what happened during an encounter between a civilian and the police.63 The only contemporaneous records of the stops in this case were UF250s and short memo book entries — which were sometimes not prepared directly after a stop, and which are inherently one-sided. Thus, I was forced to analyze the constitutionality of the stops based on testimony given years after the encounter, at a time when the participants’ memories were likely colored by their interest in the outcome of the case and the passage of time. The NYPD’s duty to monitor stop and frisk activity is similarly hamstrung by supervisors’ inability to review an objective representation of what occurred.64
Video recordings will serve a variety of useful functions. First, they will provide a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct by supervisors and the courts. The recordings may either confirm or refute the belief of some minorities that they have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.65 Second, the knowledge that an exchange is being recorded will encourage lawful and respectful interactions on the part of both parties.66 Third, the recordings will diminish the sense on the part of those who file complaints that it is
63 See Liability Opinion at Part IV.D. 64 See id. at Part IV.C.4. 65 By creating an irrefutable record of what occurred during stops, video recordings may help lay to rest disagreements that would otherwise remain unresolved. 66 If, in fact, the police do, on occasion, use offensive language — including racial slurs — or act with more force than necessary, the use of body-worn cameras will inevitably reduce such behavior.
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their word against the police, and that the authorities are more likely to believe the police.67 Thus, the recordings should also alleviate some of the mistrust that has developed between the police and the black and Hispanic communities, based on the belief that stops and frisks are overwhelmingly and unjustifiably directed at members of these communities. Video recordings will be equally helpful to members of the NYPD who are wrongly accused of inappropriate behavior.
Because body-worn cameras are uniquely suited to addressing the constitutional harms at issue in this case, I am ordering the NYPD to institute a pilot project in which bodyworn cameras will be worn for a one-year period by officers on patrol in one precinct per borough — specifically the precinct with the highest number of stops during 2012. The Monitor will establish procedures for the review of stop recordings by supervisors and, as appropriate, more senior managers. The Monitor will also establish procedures for the preservation of stop recordings for use in verifying complaints in a manner that protects the privacy of those stopped. Finally, the Monitor will establish procedures for measuring the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks. At the end of the year, the Monitor will work with the parties to determine whether the benefits of the cameras outweigh their financial, administrative, and other costs, and whether the program should be terminated or expanded. The City will be responsible for the costs of the pilot project.
It would have been preferable for this remedy to have originated with the NYPD, which has been a leader and innovator in the application of technology to policing, as Compstat illustrates. Nevertheless, there is reason to hope that not only civilians but also officers will
67 See Liability Opinion at Part IV.C.6. 27

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

trial, recognized the importance of “ongoing communication and negotiation with the community about [stop and frisk] activities” to “maintaining good police-community relations.”74 It is surely in everyone’s interest to prevent another round of protests, litigation, and divisive public conflicts over stop and frisk.
Drawing on this Court’s broad equitable powers to remedy the wrongs in this case,75 I am ordering that all parties participate in a joint remedial process, under the guidance of a Facilitator to be named by the Court. I hereby order the following specific relief: 1. All parties shall participate in the Joint Remedial Process for a period of six to nine
months to develop proposed remedial measures (the “Joint Process Reforms”) that will supplement the Immediate Reforms discussed above. The Joint Process Reforms must be no broader than necessary to bring the NYPD’s use of stop and frisk into compliance with the Fourth and Fourteenth Amendments. 2. The Joint Remedial Process will be guided by the Facilitator, with such assistance as the Facilitator deems necessary and in consultation with the Monitor. 3. The initial responsibility of the Facilitator will be to work with the parties to develop a time line, ground rules, and concrete milestones for the Joint Remedial Process. The Cincinnati Collaborative Procedure and subsequent DOJ consent decrees and letters of
outcome”). 74 RAND Report at 44. 75 The equitable power of district courts to order processes involving community
input is well-established. See, e.g., United States v. Yonkers Bd. of Educ., 635 F. Supp. 1538, 1545 (S.D.N.Y. 1986), aff’d, 837 F.2d 1181 (2d Cir. 1987) (ordering the Yonkers public school system to organize “community meetings with minority groups and organizations to solicit support and assistance in the dissemination of magnet program availability”); Pl. Inj. Mem. at 11–13 (collecting cases and scholarship).
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intent may be used as models.76 4. At the center of the Joint Remedial Process will be input from those who are most
affected by the NYPD’s use of stop and frisk, including but not limited to the people and organizations noted above. Input from academic and other experts in police practices may also be requested. 5. The Facilitator will convene “town hall” type meetings in each of the five boroughs in order to provide a forum in which all stakeholders may be heard. It may be necessary to hold multiple meetings in the larger boroughs in order to ensure that everyone will have an opportunity to participate. The Facilitator will endeavor to prepare an agenda for such meetings, through consultation with the various interested groups prior to the meeting. The Monitor will also attend these meetings to the extent possible. 6. The NYPD will appoint a representative or representatives to serve as a liaison to the Facilitator during the Joint Remedial Process. 7. The Facilitator may receive anonymous information from NYPD officers or officials, subject to procedures to be determined by the parties. 8. When the parties and the Facilitator have finished drafting the Joint Process Reforms, they will be submitted to the Court and the Monitor. The Monitor will recommend that the Court consider those Reforms he deems appropriate, and will then oversee their implementation once approved by the Court.
76 See Tyehimba, 2001 WL 1842470; Pl. Inj. Mem. at 15. In the interests of conserving resources and speeding the development of the Joint Process Reforms, the Joint Remedial Process will not involve the development of an independent analysis by a panel of paid experts, as proposed by plaintiffs in Pl. Inj. Mem. at 10. The participants in the Joint Remedial Process may rely on any sources of facts deemed useful by the Facilitator, including this Court’s findings in the Liability Opinion.
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9. In the event that the parties are unable to agree on Joint Process Reforms, the Facilitator will prepare a report stating the Facilitator’s findings and recommendations based on the Joint Remedial Process, to be submitted to the parties, the Monitor, and the Court. The parties will have the opportunity to comment on the report and recommendations.
10. The City will be responsible for the reasonable costs and fees of the Facilitator and the Joint Remedial Process.
III. REMEDIES IN LIGON In a January 8, 2013 Opinion and Order, amended on February 14, 2013, I
granted the Ligon plaintiffs’ motion for a preliminary injunction, and proposed entering several forms of preliminary relief.77 I postponed ordering that relief until after a consolidated remedies hearing could be held in Ligon and Floyd.78 That hearing has now concluded. The defendants in Ligon have submitted drafts of the documents discussed in the proposed relief section of the February 14 Opinion, the Ligon plaintiffs have proposed revisions to those drafts, and the defendants have responded to the proposed revisions.79
Having reviewed the parties’ submissions, I am now imposing the final order of preliminary injunctive relief in Ligon. The reasons for the ordered relief, which must be stated pursuant to Federal Rule of Civil Procedure 65(d)(1)(A), are the reasons stated in the February
77 See Ligon, 2013 WL 628534, at *41–44; Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654 (S.D.N.Y. Jan. 22, 2013) (staying the sole immediate relief ordered in the January 8 Opinion).
78 See Ligon, 2013 WL 628534, at *42. 79 See 7/8/13 Defendants’ Proposed Remedial Relief (“Ligon Def. Rem.”); Ligon Pl. Rem.; 8/2/13 Defendants’ Reply Memorandum of Proposed Remedial Relief (“Ligon Def. Reply”).
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14 Opinion. As set forth in the February 14 Opinion, the relief falls into four categories:
policies and procedures; supervision; training; and attorney’s fees. Attorney’s fees and costs will be rewarded as appropriate on application. With regard to policies and procedures, I am ordering the proposed relief from the February 14 Opinion as elaborated below.
With regard to the remaining two categories of relief — supervision and training — I am ordering the proposed relief from the February 14 Opinion, as restated below, and I am also appointing the Monitor from Floyd, Mr. Zimroth, to oversee the detailed implementation of these orders. I am delegating the oversight of the Ligon remedies regarding supervision and training to the Monitor because there is substantial overlap between these remedies and the injunctive relief concerning supervision and training in Floyd. For example, both sets of remedies will require alterations to supervisory procedures for reviewing stops, as well as the revision of the NYPD Legal Bureau’s slide show at Rodman’s Neck.
The purpose of consolidating the remedies hearings in Ligon and Floyd was to avoid inefficiencies, redundancies, and inconsistencies in the remedies process.80 This purpose can best be fulfilled by placing both the preliminary injunctive relief in Ligon and the permanent injunctive relief in Floyd under the direction and supervision of the Monitor.
For the foregoing reasons, the Monitor is directed to oversee the City’s compliance with the following orders.
A. Policies and Procedures First, as proposed in the February 14 Opinion, the NYPD is ordered to adopt a
80 Ligon, 2013 WL 227654, at *4. 33

formal written policy specifying the limited circumstances in which it is legally permissible to
stop a person outside a TAP building on a suspicion of trespass. Specifically, the NYPD is
ordered to amend Interim Order 22 of 2012 (“IO 22”) by deleting the paragraph labeled “NOTE”
on page 2 of IO 22,81 and inserting the following paragraphs in its place:
A uniformed member of the service may approach and ask questions of a person (that is, conduct a Level 1 request for information under DeBour) if the uniformed member has an objective credible reason to do so. However, mere presence in or outside a building enrolled in the Trespass Affidavit Program is not an “objective credible reason” to approach. A uniformed member of the service may not approach a person merely because the person has entered or exited or is present near a building enrolled in the Trespass Affidavit Program.
Under the Fourth Amendment to the United States Constitution, a person is stopped (temporarily detained) if under the circumstances a reasonable person would not feel free to disregard the police and walk away. A uniformed member of the service may not stop a person on suspicion of trespass unless the uniformed member reasonably suspects that the person was in or is in the building without authorization.
Mere presence near, entry into, or exit out of a building enrolled in the Trespass Affidavit Program, without more, is not sufficient to establish reasonable suspicion for a stop on suspicion of trespass.
The NYPD is ordered to draft a FINEST message explaining the revisions to IO
22 and the need for those revisions. The FINEST message attached as Exhibit 1 to the Ligon
Plaintiffs’ Brief Concerning Defendants’ Remedial Proposals will serve as a model. The draft
will be provided to the Monitor and then to the Court for approval prior to transmission, with a
copy to plaintiffs’ counsel.
B. Remaining Relief
The Monitor is directed to oversee the City’s compliance with the remaining
81 See Exhibit A to Ligon Def. Rem.
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orders discussed below. Plaintiffs do not object to many of the draft revisions submitted by the City in response to the proposed orders.82 Where the parties disagree, the Monitor is authorized to resolve the dispute by submitting a proposed order for the Court’s approval.
As a model for resolving the parties’ disputes, the Monitor may use this Court’s revision of IO 22, as presented above.83 In arriving at a compromise between the parties’ proposed language, I aimed to articulate the relevant legal standards as simply and clearly as possible. The goal must be to communicate the law to officers in a way that will be understood, remembered, and followed. In general, plaintiffs’ proposed revisions to the City’s draft materials make the achievement of this goal more likely.84 I note that the Monitor may depart from the City’s draft materials even when they do not contain legally erroneous language, if doing so would decrease the likelihood of constitutional violations.
1. Supervision First, the City is ordered to develop procedures for ensuring that UF-250s are completed for every trespass stop outside a TAP building in the Bronx. A “stop” is defined as any police encounter in which a reasonable person would not feel free to terminate the encounter. Second, the City is ordered to develop and implement a system for reviewing the constitutionality of stops outside TAP buildings in the Bronx. Needless to say, any system
82 See Ligon Def. Rem. at Exs. B–F; Ligon Pl. Rem. at 4–16. 83 For the materials used in drafting the Court’s revision, see Ligon Def. Rem. at Ex. A; Ligon Pl. Rem. at 1–4; Ligon Def. Reply at 2–4. 84 See, e.g., Ligon Pl. Rem. at 7–8 (proposing revisions to the City’s draft slide show for officer training at Rodman’s Neck to emphasize the “free to leave” standard, where confusion might otherwise arise).
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developed must not conflict with the supervisory reforms ordered in Floyd. To the extent that supervisory review reveals that a stop has not conformed with the revised version of IO 22 described above, the supervisor will ensure that the officer has a proper understanding of what constitutes a stop and when it is legitimate to make a stop. Copies of all reviewed UF-250s shall be provided to plaintiffs’ counsel.
2. Training The City is ordered to revise the NYPD’s training materials and training programs to conform with the law as set forth in the February 14 Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have affected stops outside of TAP buildings in the Bronx. It must include, but need not be limited to, the following reforms: (1) The revised version of IO 22 described above must be distributed to each Bronx NYPD member, and then redistributed two additional times at six-month intervals. (2) The stop and frisk refresher course at Rodman’s Neck must be altered to incorporate instruction specifically targeting the problem of unconstitutional trespass stops outside TAP buildings. Training regarding stops outside TAP buildings must also be provided to new recruits, as well as any officers who have already attended the Rodman’s Neck refresher course and are not scheduled to do so again. (3) Chapter 16 of the Chief of Patrol Field Training Guide must be revised to reflect the formal written policy governing trespass stops outside TAP buildings described above. (4) SQF Training Video No. 5 must be revised to conform with the law set forth in the February 14 Opinion and must be coordinated with the relief ordered in Floyd. The revised video must state that the information contained in the earlier video was incorrect and explain why it was incorrect.
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IV. CONCLUSION
The defendant in Floyd and the defendants in Ligon are ordered to comply with the remedial orders described above. The Clerk of the Court is directed to close the Ligon defendants' motion regarding proposed remedies. [No. 12 Civ. 2274, Dkt. No. 112]

Dated:

August 12,2013 New York, New York

37 


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

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

38

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

 
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13‐3123, 13‐3088, 13‐3461 Ligon, Floyd v. City of New York

N.Y.S.D. Case # 12-cv-2274(SAS)

MANDATEIN THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT August Term, 2013

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED:F_e_b_r_ua_r_y_2_1_,_2_0_1_4_

Decided: February 21, 2014

Docket Nos. 13‐3123‐cv, 13‐3088‐cv, 13‐3461‐cv

Jaenean Ligon, individually and on behalf of her minor son, J.G., Jacqueline Yates, individually and on behalf of
a class of all others similarly situated, et al.
Plaintiffs‐Appellees,
‐ v. ‐
City of New York, et al.,
Defendants‐Appellants,

David Floyd, individually and on behalf of all others similarly situated, Plaintiffs‐Appellees, ‐ v. ‐
MANDATE ISSUED ON 02/21/2014

CCaassee: 1:31-23-1c2v3-022D7o4c-AuTm-eHnBt:P29D0 ocuPmaegnet: 1266 0F2il/e2d1/0220/1241/14 11P6a2g6e127 of 99
City of New York, Defendant‐Appellant,
New York City Police Officer Rodriguez, et al., Defendants.
Before: WALKER, CABRANES, AND PARKER, Circuit Judges.
Defendant‐Appellant City of New York moves for a limited remand to the District Court for the purpose of exploring a resolution to these cases. Also pending before the Court are motions to intervene as party appellants in both Floyd v. City of New York and Ligon v. City of New York, filed by the Patrolmen’s Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association, and the Captains’ Endowment Association and a motion to intervene as a party appellant in Floyd v. City of New York, filed by the Sergeants Benevolent Association (collectively the “police unions”).
We hereby GRANT the City’s motion on terms indicated in this opinion. We VACATE the stay of proceedings in the District Court entered as part of the Court’s Orders of October 31, 2013 and November 13, 2013, In re Reassignment of

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Cases, 736 F.3d 118 (2d Cir. 2013), to the extent necessary to pursue settlement
negotiations among such concerned or interested parties as the District Court
deems appropriate, and REMAND the cause to the District Court (Analisa
Torres, Judge) for further proceedings consistent with this opinion.
The schedule for briefing and other filings in the Court of Appeals is
hereby STAYED pending the outcome of the proceedings in the District Court.
___________________________________
Alex B. Karteron, Christopher Thomas Dunn, Daniel Mullkoff, New York Civil Liberties Union, New York, NY; Juan Cartagena, Roberto Concepcion, Jr., Latino Justice, New York, NY; Michael Grunfel, John A. Nathanson, Jeffrey J. Resetarits, Shearman & Sterling LLP, New York, NY; Mariana Louise Kovel, The Bronx Defenders, New York, NY; J. McGregor Smyth, New York Lawyers for the Public Interest, New York NY, for Jaenean Ligon, et al.
Darius Charney, Sunita Patel, Center for Constitutional Rights, New York, NY; Jennifer Rolnick Borchetta, Jonathan Clifford Moore, Beldock Levine & Hoffman LLP, New York, NY; Eric Hellerman, Kasey Lynn Martini, Covington & Burling LLP, New York, NY, for David Floyd, et al.
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Zachary Carter, Celeste L. Koeleveld, Deborah A. Brenner, Kathy H. Chang, Heidi Grossman, Fay Sue Ng, New York City Law Department, New York, NY, for City of New York, et al.
Anthony P. Coles, Courtney Gilligan Saleski, DLA Piper, Philadelphia, PA, New York, NY, for Sergeants Benevolent Association.
Steven A. Engel, Dechert LLP, Washington, DC, Elisa Wiygul, Dechert LLP, Philadelphia, PA, for Patrolmen’s Benevolent Association of the City of New York, Inc., Detectives Endowment Association, Police Department, City of New York, Inc., Lieutenants Benevolent Association of the City of New York, Inc., Captains’ Endowment Association of New York.
PER CURIAM: Pending before the Court are motions filed on January 30, 2014 by the City
of New York (the “City”) seeking limited remand of the above‐captioned cases to the District Court for the purpose of exploring settlement. Ligon, No. 13‐3123, Dkt. 274; Floyd, No. 13‐3088, Dkt. 459. Also pending are a motion to intervene as a party appellant in Floyd v. City of New York, filed by the Sergeants Benevolent
4

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Association on November 12, 2013, and motions to intervene as party appellants in both Floyd v. City of New York and Ligon v. City of New York, filed on November 7, 2013, by the Patrolmen’s Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association, and the Captains’ Endowment Association. See Ligon, No. 13‐3123, Dkt. 178; Floyd, No. 13‐3088, Dkts. 252, 283.
I. These cases, class actions alleging violations of the plaintiffs’ Fourth and Fourteenth Amendment rights, were adjudicated by the United States District Court for the Southern District of New York. The District Court held defendants liable first in Ligon, see No. 12 Civ. 2274, 2013 WL 71800, amended 925 F. Supp. 2d 478 (S.D.N.Y. Feb. 14, 2013), and later in Floyd, ‐‐‐ F. Supp. 2d ‐‐‐‐, No. 08 Civ. 1034, 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013) (together, the “Liability Opinions”). The District Court issued a separate opinion covering both cases that outlined remedial measures to be developed in light of the Liability Opinions and, in addition, required certain interim reforms by the City. ‐‐‐ F.
5

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Supp. 2d ‐‐‐‐, Nos. 12 Civ. 2274, 08 Civ. 1034, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013) (the “Remedies Opinion”).
The City sought a stay of the remedial measures in our Court pending the appeals in these cases, and on October 31, 2013, we granted the request for a stay and ordered the cases reassigned to a different district judge. Nos. 13‐3123, 13‐ 3088, 2013 WL 5835441 (2d Cir. Oct. 31, 2013). In a subsequent opinion, we clarified our reasoning. In re Reassignment of Cases, 736 F.3d 118 (2d Cir. 2013).
In an Order dated November 25, 2013, the Court held in abeyance all motions for en banc consideration that had been filed by plaintiffs and other third parties, related FRAP 29 motions, and the motions to intervene. The Court did so in order “[t]o maintain and facilitate the possibility that the parties might request the opportunity to return to the District Court for purpose of exploring a resolution.” Ligon, No. 13‐3123, Dkt. 242; Floyd, No. 13‐3088, Dkt. 338.
II. In accordance with the Court’s order of November 25, 2013, in its motion, the City seeks a “limited remand . . . to the District Court for the purpose of
6

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exploring a full resolution of the cases.” Dkt. 459 at 2 ¶ 2. Specifically, the City, with the consent of plaintiffs, requests that the Court remand the cases to the District Court “for 45 days to permit the parties to explore a resolution.” Id. ¶ 5. The City believes that such a resolution is possible and desirable, and that the public interest strongly favors this result. Dkt. 467 at 2 ¶ 6. The police unions oppose that request and contend that they should be granted leave to intervene and, if necessary, continue the appeal to protect collective bargaining interests and to contest findings by the District Court the unions believe to be unwarranted.
With respect to a motion to intervene at the appellate stage of a case, we have noted that while there is authority for granting such a motion, it is generally preferable that the decision be made first by the district court. See Drywall Tapers & Pointers of Greater N.Y., Local Union 1974 of I.U.P.T., AFL‐CIO v. Natasi Assocs., 488 F.3d 88, 94 (2d Cir. 2007).
Here, the proposed intervenors moved to intervene in the District Court. Those motions have not been adjudicated. In the circumstances presented here, we believe it preferable that the motions be addressed there in the first instance,
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particularly because the appropriateness of intervention and the form it takes could well bear on settlement negotiations. Moreover, the District Court is better positioned to deal with the complexities that might arise during multi‐faceted settlement negotiations in which a variety of interests must be accommodated. Finally, if necessary, the District Court may hold hearings and take evidence in order to provide this Court with a more complete record for any further review that might be sought.
CONCLUSION Accordingly, the City’s motion is hereby GRANTED. Although the City requested remand for a period of 45 days, to the extent settlement negotiations remain fruitful, the District Court may extend the remand period for such additional reasonable time as would be helpful to achieving a resolution. Insofar as the Court’s Order of October 31, 2013, and the Order of November 13, 2013 that superseded it, stayed proceedings in the District Court, they are hereby VACATED and the cause is REMANDED to the District Court for the purpose of supervising settlement discussions among such concerned or interested parties as the District Court deems appropriate, and resolving the
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motions to intervene. The case in the District Court is otherwise STAYED, as directed in our Orders of October 31, 2013, and November 13, 2013, except insofar as is necessary to effectuate a settlement.
The briefing schedule in the Court of Appeals is hereby STAYED pending the outcome of the proceedings under the supervision of the District Court.
We hereby ORDER the Corporation Counsel of the City of New York, as counsel for the party seeking a remand to the District Court, to submit to the District Court, by no later than April 7, 2014, or such extension of time as the District Court deems appropriate, a status report on the settlement discussions.
We express no view on the merits of the pending appeals or on the merits of the pending motions to intervene.
The mandate shall issue forthwith. Any appeals of the District Court’s further orders are to be referred to this panel.
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 Case 1:12-cv-02274-AT-HBP Document 197 Filed 07/30/14 Page 1 of 108

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOC #: _________________ DATE FILED: 7/30/2014 .

DAVID FLOYD, et al.,

-against-

Plaintiffs,

OPINION AND ORDER

CITY OF NEW YORK,

08 Civ. 1034 (AT)

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

12 Civ. 2274 (AT)

Defendants. ANALISA TORRES, District Judge:
The United States Court of Appeals for the Second Circuit remanded Floyd and Ligon to the District Court to resolve pending motions to intervene in these actions and to “effectuate a settlement” between “such concerned or interested parties as the District Court deems appropriate.” Floyd, ECF No. 426; Ligon, ECF No. 166. As a result, two motions are now before this Court.
In the first motion, the Patrolmen’s Benevolent Association of the City of New York, Inc., the Detectives’ Endowment Association, Inc., the NYPD Captains Endowment Association, and the Lieutenants Benevolent Association of the City of New York, Inc., collectively, and the Sergeants Benevolent Association,1 separately, move to intervene as defendants pursuant to Federal Rule of Civil Procedure 24 for the purposes of (1) appealing three orders issued by the
1 The Sergeants Benevolent Association moves to intervene only in Floyd; the other unions move to intervene in Floyd and Ligon.

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Honorable Shira A. Scheindlin: (a) the first, enjoining the City of New York (the “City”) from conducting trespass stops outside of certain Bronx apartment buildings without reasonable suspicion of trespass in Ligon; (b) the second, finding the City liable for violating the Fourth and Fourteenth Amendment rights of the plaintiff class in Floyd; and (c) the third, ordering remedies in Floyd and Ligon; (2) participating in the settlement of Floyd and Ligon; and (3) participating in the remedial phase of the litigation. Because their motions raise identical issues, the Court addresses them together, referring to all of the proposed intervenors collectively as the “Unions” and noting variations only where relevant. The Floyd and Ligon plaintiffs are collectively referred to as “Plaintiffs.” Plaintiffs and the City oppose the Unions’ intervention.2
In the second motion, Plaintiffs and the City, having reached an agreement to resolve the City’s appeals in Floyd and Ligon, move for an order modifying the remedies order pursuant to Federal Rule of Civil Procedure 54 and the Court’s inherent authority, such that the term of the court-appointed monitor is limited to three years, provided that the City shows substantial compliance with its obligations by the end of that term.
The motions to intervene are DENIED for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal.
The parties’ motion for an order modifying the remedies order is GRANTED. The modifications shall be set forth in a separate order to be issued forthwith. The Unions’ request to participate in the settlement of Floyd and Ligon is, therefore, DENIED as moot.
The Unions’ request to participate in the remedial phase of Floyd is also DENIED as 2 Although the City initially consented to the Unions’ September 2013 motions to intervene, see Floyd, ECF No. 414; Ligon, ECF No. 152, it now opposes them, see Floyd, ECF No. 447; Ligon, ECF No. 180.
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moot because the remedies order already offers “police organizations” the opportunity to participate in the development of reforms to NYPD stop-and-frisk policies and procedures through the “Joint Remedial Process.” The Unions’ request to participate in the remedial phase of Ligon is DENIED for the same reasons the Court denies their motion to intervene for the purpose of appealing the remedies order.
BACKGROUND Nearly fifty years have passed since the Supreme Court of the United States endorsed the practice that became known as “stop-and-frisk.” Terry v. Ohio, 392 U.S. 1, 30-31 (1968). There, the Court held that the Fourth Amendment prohibition against unreasonable searches and seizures is not violated when a police officer stops, questions, and frisks a suspect without probable cause if the officer has reasonable suspicion that “criminal activity may be afoot” or a reasonable belief that the person “may be armed and presently dangerous.” Id. at 30. In the decades since, the contours of Terry’s exception to probable cause have been vigorously litigated in the courts. In this current iteration, two sets of plaintiffs challenge the legality of the New York City Police Department’s (the “NYPD”) stop-and-frisk tactics. In Ligon, after a seven-day evidentiary hearing, on January 8, 2013, the Court issued a preliminary injunction against the City, finding that plaintiffs would likely succeed in proving that the City has a policy of stopping, frisking, and arresting persons for trespass based primarily on their presence in or near Bronx apartment buildings enrolled in the Trespass Affidavit Program (“TAP”)—which permits the NYPD to patrol private buildings with their owners’ consent—in violation of the Fourth Amendment (the “Injunction Order”). Ligon v. City of New York, 925 F. Supp. 2d 478, 486 (S.D.N.Y. Feb. 14, 2013), amending and superseding, Ligon v. City of New York, 12 Civ. 2274,
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2013 WL 71800 (S.D.N.Y. Jan. 8, 2013). In Floyd, after years of litigation culminating in a nine-week trial, on August 12, 2013, the Court issued an opinion holding that the City had a policy of conducting race-based stops-and-frisks that ran afoul of the Fourth and Fourteenth Amendments (the “Liability Order”). Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013). Because of the similarities in the City’s constitutional violations in Floyd and Ligon, the Court issued a second opinion on August 12, 2013, which ordered certain remedial measures to cure the constitutional infirmities identified in both cases (the “Remedial Order”). Floyd v. City of New York, 959 F. Supp. 2d 668, 671 (S.D.N.Y. 2013).
Initially, the City appealed the Injunction, Liability, and Remedial Orders. Several weeks later, the Unions moved to intervene and also filed notices of appeal. Then, in January 2014, newly-elected Mayor Bill de Blasio announced the City’s intention to withdraw the appeals and settle the cases.3 The Unions, nevertheless, still seek intervention to prosecute the appeals the City no longer wants to pursue. The Injunction, Liability, and Remedial Orders are the product of fifteen years of litigation, against the backdrop of decades of public discourse on the issue of stop-and-frisk. Thus, because a full account of these cases would fill libraries, the Court chronicles only those facts that aid in addressing the Unions’ motions to intervene. I. Daniels, Floyd, and Ligon
A. Daniels v. City of New York As the Second Circuit observed, the Floyd and Ligon actions “descend[] directly” from
an earlier lawsuit, Daniels v. City of New York, 99 Civ. 1695 (SAS) (S.D.N.Y. 1999). See Ligon v. City of New York, 736 F.3d 118, 122, 122 n.3 (2d Cir. 2013), vacated in part, 743 F.3d 362 (2d 3 The Court takes judicial notice of the mayor’s January 30, 2014 press release, “Mayor de Blasio Announces Agreement in Landmark Stop-and-Frisk Case.” Charney Decl. Ex. L, Floyd, ECF No. 450-12; see also Carter Decl. ¶ 5, Floyd, ECF No. 457 (“If the Court approves the parties’ proposed modification, the City will then move to withdraw its appeals in Floyd and Ligon with prejudice.”).
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Cir. 2014). On March 8, 1999, Kelvin Daniels and Robert Roe filed a putative class action against the City, the NYPD, the mayor, the police commissioner, and John Doe officers, alleging that the City had a policy, custom, and practice, carried out by the NYPD’s Street Crimes Unit,4 of suspicionless, racially-motivated stops-and-frisks that violated the Fourth and Fourteenth Amendments. Complaint, Daniels, ECF No. 1. The Daniels plaintiffs sought injunctive relief prohibiting the Street Crimes Unit from improperly using race or national origin in conducting stops-and-frisks and reforming relevant training, supervision, and monitoring procedures. Id. In particular, they sought to enforce the requirement that officers complete UF-250 forms5 for each stop they conduct, that UF-250s be periodically reviewed for compliance with the Constitution, and that UF-250s be computerized and maintained in a database. Am. Compl. 45, Daniels, ECF No. 8. Over the next five years, the parties engaged in extensive discovery and litigated several major motions, including a motion to dismiss and a motion for class certification. Daniels, ECF Nos. 18, 21, 75.
At the same time Daniels was being litigated, the United States Department of Justice (the “DOJ”) conducted an investigation of the NYPD’s stop-and-frisk practices.6 As part of the investigation, the DOJ moved to intervene in Daniels pursuant to Rule 24(b) in order to access the UF-250s the City had provided to the Daniels plaintiffs during discovery. See Daniels, ECF Nos. 93, 94. The court denied the DOJ’s motion, reasoning that the proper avenue to obtain the material was for the DOJ to file its own civil action rather than disrupting Daniels. Daniels v. 4 “[A]n elite squad of police officers whose self-proclaimed mission is to interdict violent crime in New York City and, in particular, remove illegal firearms from the streets.” Daniels v. City of New York, 200 F.R.D. 205, 206 n.1 (S.D.N.Y. 2001). 5 The UF-250 is a form police officers use to document stops. See Daniels v. City of New York, 99 Civ. 1695, 2001 WL 228091, at *3 n.1 (S.D.N.Y. Mar. 8, 2001). 6 The DOJ investigation was conducted pursuant to 42 U.S.C. § 14141, which empowers the Attorney General to investigate and commence civil actions against police departments that have engaged in a pattern or practice “that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States.” 42 U.S.C. § 14141.
5

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City of New York, 200 F.R.D. 205, 210 (S.D.N.Y. 2001). In September 2003, the parties in Daniels reached a settlement. Daniels, ECF No. 153.
Notice of the settlement was published in three newspapers, El Diario, The New York Post, and The New York Amsterdam News, see Daniels, ECF No. 150, and a public hearing was held on December 12, 2003, see Daniels, ECF No. 154. Pursuant to the settlement, plaintiffs released their class claims against the City, and the City agreed to implement stop-and-frisk audit procedures, revise training, ensure that all stops be documented on a revised UF-250 form, conduct joint community forums, and provide class counsel with quarterly updates. Daniels, ECF Nos. 151, 152. The Daniels settlement remained in effect through December 31, 2007. Id.
B. Floyd v. City of New York In January 2008, a month after the Daniels settlement period ended, David Floyd and
Lalit Clarkson commenced a lawsuit against the City, the mayor, the police commissioner, and several individual NYPD officers. Compl., Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Jan. 31, 2008), ECF No. 1. The complaint alleged that the City had a policy, custom, and practice of suspicionless and race-based stops-and-frisks and sought city-wide injunctive relief, including changes to the NYPD’s policies and practices governing training, supervision, discipline, and monitoring of officers with respect to stop-and-frisk and racial profiling. Id. The New York City Corporation Counsel represented all defendants, including the individual NYPD officers. See Floyd, ECF Nos. 43, 44, 51, 54, 111, 172. A week after filing the complaint, the Court granted the Floyd plaintiffs’ motion to retain the stop-and-frisk data that had been produced to their counsel in connection with the Daniels settlement. Floyd, ECF No. 2. The Floyd plaintiffs subsequently amended the complaint to assert a putative class action, add plaintiffs, and name officer defendants. Floyd, ECF Nos. 11, 50.
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Fact discovery proceeded for nearly three years, during which time dozens of individual NYPD officers were deposed. Charney Decl. ¶ 3, Floyd, ECF No. 450. There were numerous discovery disputes and motions to compel. Floyd, ECF Nos. 2, 45, 69, 92, 93, 108. The parties moved to exclude one another’s experts. Floyd, ECF Nos. 201, 224. Defendants sought to exclude the expert report of Jeffrey A. Fagan, a professor of criminology with expertise in statistics, whose report analyzed years of UF-250 and other data. Floyd, ECF No. 201. Plaintiffs sought to exclude the rebuttal expert report of Dennis Smith, a political scientist with expertise in police organizations, whose report provided an alternate statistical analysis of similar data. Floyd, ECF No. 224. The Court granted in part and denied in part both parties’ motions. Floyd, ECF Nos. 201, 224. The parties also litigated, and the Court issued published opinions on several major motions, including motions for summary judgment and class certification. Floyd v. City of New York, 813 F. Supp. 2d 417, 456, on reconsideration, 813 F. Supp. 2d 457 (S.D.N.Y. 2011) (summary judgment); Floyd v. City of New York, 283 F.R.D. 153, 164 (S.D.N.Y. 2012) (class certification).
At a November 27, 2012 hearing, plaintiffs stated that they would withdraw their claims for money damages against all individual officers and seek only injunctive relief against the City. Nov. 27, 2012 Hearing Tr. at 4:10-25, Floyd, ECF No. 244. On March 8, 2013, the Court soordered the parties’ stipulation withdrawing plaintiffs’ claims against the individual officers, see Stipulation and Order, Floyd, ECF No. 270, all of whom are union members, see Pl. Mem. 5, Floyd, ECF No. 448. At a January 4, 2013 pretrial hearing, the Court rejected plaintiffs’ request to bifurcate the liability and remedies phases. See Jan. 4, 2013 Hearing Tr. at 84:24-25; 85:8-9, Floyd, ECF No. 252. Instead, the Court ruled that there would be a single bench trial, where evidence on both liability and remedies would be presented, after which a decision on liability
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and, if necessary, remedies would be issued. Id. On January 31, 2013, the Court held a joint hearing in Floyd, Ligon, and Davis v. City of New York, 10 Civ. 699 (S.D.N.Y. filed Jan. 28, 2010)—a putative class-action regarding stops-and-frisks in and around New York City public housing. See Jan. 31, 2013 Hearing Tr. at 6:13-21, Floyd, ECF No. 406. In addition to reaffirming the decision not to bifurcate the Floyd trial, the Court requested that the parties brief the scope of the remedial injunction, assuming, arguendo, that plaintiffs proved liability at trial. Id. at 25:4-26:6.
On March 6, 2013, the Floyd plaintiffs requested permanent injunctive relief, including changes to the UF-250, appointment of an independent monitor, and creation of a joint remedial process to develop changes to training, supervising, monitoring, and disciplining officers with respect to stop-and-frisk and racial profiling. Injunctive Relief Mem. 20-22, Floyd, ECF No. 268. The DOJ also submitted a “Statement of Interest” in which it endorsed the appointment of an independent monitor should plaintiffs establish liability. Floyd, ECF No. 365.
On March 15, 2013, the parties filed a joint pretrial order. Floyd, ECF No. 272. The over 400-page document identified nearly 200 witnesses, many of whom were NYPD officers whom the parties intended to call or whose deposition testimony would be introduced. Id. at 16. The parties agreed that the core issue to be tried was “[w]hether the City of New York has an actionable Policy and/or Practice of stopping and frisking Black and Latino persons on the basis of race rather than reasonable suspicion . . . .” Id. at 16.
Trial commenced on March 18, 2013 and continued through May 20, 2013. Thirty police officers, ten sergeants, ten lieutenants, three captains, four deputy inspectors, and seven inspectors testified. Floyd, ECF No. 363 ¶¶ 23, 25-33, 43-49; 366 ¶¶ 86-107, 122-136. In addition, senior NYPD officials and the parties’ liability and remedial experts testified. After
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trial, the parties submitted proposed findings of fact and conclusions of law and post-trial briefs on liability and remedial issues. Floyd, ECF Nos. 363, 364, 366, 367.
C. Ligon v. City of New York On March 28, 2008, Jaenean Ligon filed a putative class action against the City, the
police commissioner, six named officers, and John Doe officers, challenging the NYPD’s practice of stopping, questioning, frisking, summonsing, and arresting people on suspicion of trespass in and around buildings enrolled in TAP. Compl., Ligon v. City of New York, 12 Civ. 2274 (S.D.N.Y. Mar. 28. 2008), ECF No. 1. The named plaintiffs also sought compensatory damages against the individual defendants. Id. The Ligon plaintiffs moved for a preliminary injunction, and the parties submitted briefs and motions in limine. Ligon, ECF Nos. 42-59. After a seven-day evidentiary hearing, the parties submitted proposed findings of fact and conclusions of law. Ligon, ECF Nos. 71-84, 88-91.
The Court granted the preliminary injunction on January 8, 2013, because plaintiffs had shown a “clear likelihood of proving” that the City, by its deliberate indifference, had a policy of conducting unconstitutional stops outside TAP buildings. 7 Ligon, 925 F. Supp. 2d. at 485. The Court enjoined the NYPD from “performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass, in accordance with the law as set forth and clarified in this Opinion.” Id. at 542. To effectuate the injunction, the Court proposed specific changes to policies, procedures, supervision, and training and invited the parties to brief “whether the proposed relief is insufficient or too burdensome or otherwise inappropriate.” Id. at 543. The City filed a notice of appeal, which it withdrew when the Court granted the City’s motion to stay the injunction. Ligon, ECF Nos. 98, 99, 101. Over the next several months the parties engaged
7 The Court issued an amended opinion on February 14, 2013, which differs only in the Court’s analysis of the evidence regarding one stop-and-frisk incident. Ligon, ECF No. 105 at 57-60.
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in two rounds of briefing and oral argument regarding the proper scope of remedies that should flow from the Injunction Order. See Ligon, ECF Nos. 108, 109, 112, 117, 118. II. The Liability Order and the Remedial Order
On August 12, 2013, the Court issued the Liability Order in Floyd, finding that the NYPD’s practice of conducting suspicionless stops-and-frisks was widespread, that the City was deliberately indifferent to the NYPD’s practice, and that the practice was therefore attributable to the City as an official policy. 959 F. Supp. 2d. at 562. The Court held that this policy violated the Fourth Amendment. Id. The Court also found that the City had adopted a race-based policy of disproportionately targeting blacks and Hispanics for stops and held that this policy violated the Equal Protection Clause of the Fourteenth Amendment. Id. In so doing, the Court made findings of fact and conclusions of law that evaluated, credited, and discredited the documentary and testimonial evidence presented at trial, including the testimony of numerous civilians who were stopped and the testimony of numerous NYPD officers, many of whom were involved in those stops. Id. at 572-658.
The Court issued the Remedial Order, also on August 12, 2013, directing the City—the sole remaining defendant—to remedy the violations identified in Floyd and Ligon. Floyd, 959 F. Supp. 2d 668. The Remedial Order mandates immediate and ongoing equitable relief. Id. With respect to Floyd, the Remedial Order directs the court-appointed monitor to “develop, in consultation with the parties, . . . ‘Immediate Reforms’ . . . as soon as practicable,” including changes to “the NYPD’s policies, training, supervision, monitoring and discipline” regarding stop-and-frisk. Id. at 678-84. The proposed Immediate Reforms are to be submitted to the Court and implemented upon approval. Id. at 677. The Remedial Order also requires the City to conduct a one-year pilot project in which officers in one precinct per borough will wear body
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cameras on patrol. Id. at 685. In addition, the City and Plaintiffs must engage in a six to nine month “Joint Remedial Process,” guided by a court-appointed facilitator, to develop “Joint Process Reforms” in consultation with the monitor and based on input from a variety of stakeholders, including “NYPD personnel and representatives of police organizations.” Id. at 684-88. The proposed Joint Process Reforms must be submitted to the Court for approval. Id. at 688. With respect to Ligon, the Remedial Order adopts the approach proposed in the Injunction Order, which requires the NYPD to adopt a court-provided written policy on the legal standard for trespass stops around TAP buildings, to make changes to supervision and training regarding such stops, and, in conjunction with the monitor, to create a system for monitoring the constitutionality of stops and ensuring that all stops are documented on UF-250s. Id. at 688-90. III. The Proposed Intervenors
The Patrolmen’s Benevolent Association of the City of New York, Inc. (the “PBA”), the Detectives’ Endowment Association, Inc. (the “DEA”), the NYPD Captains Endowment Association (the “CEA”), the Lieutenants Benevolent Association of the City of New York, Inc. (the “LBA”), and the Sergeants Benevolent Association (the “SBA”) are certified employee organizations as defined by § 12-307(4) of the New York City Collective Bargaining Law, N.Y. City Admin. Code §§ 12–301, et seq. (the “CBL”). Alejandro Decl. ¶¶ 7-10, Engel Decl. Ex. A., Floyd, ECF No. 438-1; Mullins Aff. ¶ 2, Floyd, ECF No. 397. Collectively, they represent over 35,000 active members of the NYPD, and they are the exclusive collective bargaining units for contract negotiations with the City. Alejandro Decl. ¶ 6; Mullins Aff. ¶ 2. The PBA represents over 22,000 police officers, the DEA represents approximately 5,000 detectives, the CEA represents over 700 captains, and the LBA represents nearly 1,700 lieutenants on all collective bargaining matters under the CBL. Alejandro Decl. ¶¶ 7, 8, 9, 19. The SBA represents
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approximately 13,000 active and retired sergeants. Mullins Aff. ¶ 2. The PBA, DEA, LBA, and CBA’s “core mission . . . is to advocate and protect the interests of [their] respective members of the NYPD.” Alejandro Decl. ¶ 11. In addition, the PBA purports to “negotiate[] . . . with the City of New York on matters of policy, terms and conditions of employment, and all matters relating to police officers’ general welfare.” Id. ¶ 7. Similarly, the SBA states that its “central mission is to advocate for, and protect the interests of, its NYPD police sergeant members.” Mullins Aff. ¶ 3. According to the District Court’s public records in Floyd and Ligon, the Unions have not sought any involvement in these actions, as intervenors or amici, prior to filing their motions to intervene in September 2013. IV. Post-Trial Developments
On August 16, 2013, the City noticed its appeal of the Injunction, Liability, and Remedial Orders. Floyd, ECF No. 379; Ligon, ECF No. 123. The City also requested that the Court stay the three Orders, which the Court denied. Floyd, ECF Nos. 380, 402. On September 12, 2013, the Unions moved to intervene and filed notices of appeal indicating that they too were appealing the Injunction, Liability, and Remedial Orders. Floyd, ECF Nos. 388, 390-393, 395-397; Ligon, ECF No. 135. On October 31, 2013, the Second Circuit stayed the Orders and remanded Floyd and Ligon to the District Court for the limited purpose of designating a new District Judge to “implement this Court’s mandate staying all proceedings and otherwise await further action . . . .” Ligon v. City of New York, 538 F. App’x 101, 103 (2d Cir. 2013). Because the Second Circuit stayed all proceedings, the Unions’ September 2013 motions to intervene remained unresolved. The Unions then moved to intervene directly at the Second Circuit in November 2013. See Ligon v. City of New York, 743 F.3d 362 (2d Cir. 2014).
On January 30, 2014, Mayor de Blasio announced that the City and the Floyd and Ligon
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Plaintiffs had reached an agreement to resolve the City’s appeals. See Charney Decl. Ex. L. Accordingly, the City moved the Second Circuit for a limited remand to the District Court to “permit the parties to explore a resolution,” which “the public interest strongly favors.” Ligon, 743 F.3d at 364. On February 21, 2014, the Second Circuit denied the Unions’ motions to intervene, reasoning that the District Court should consider the motions in the first instance. Id. at 365. In the same order, the Second Circuit granted the City’s motion, remanding the cases “to the District Court for the purpose of supervising settlement discussions among such concerned or interested parties as the District Court deems appropriate, and resolving the motions to intervene.” Id. On February 25, 2014, this Court issued orders setting a new briefing schedule on the intervention issue, directing the parties to continue settlement discussions, and directing the parties to submit a joint letter to the Court by March 4, 2014, “indicating whether they desire the Court’s participation in aid of settlement.” Floyd, ECF No. 428; Ligon, ECF No. 167. V. The Unions’ Supplemental Motions to Intervene
Following remand to the District Court, on March 5, 2014, the Unions supplemented their September 2013 motions to intervene. Floyd, ECF Nos. 428, 442, 445; Ligon, ECF No. 171. As with the original motions, the SBA sought intervention only in Floyd, while the other unions moved to intervene in Floyd and Ligon. Floyd, ECF Nos. 442, 445. Plaintiffs and the City opposed the motions. Floyd, ECF Nos. 447, 448. The Unions seek intervention pursuant to Rule 24(a) or (b) on the basis of alleged interests that they claim are implicated by the Injunction, Liability, and Remedial Orders. To protect these interests, the Unions argue that they must, after intervening, appeal the Orders. The Unions also seek to intervene in order to participate in the settlement of Floyd and Ligon and the remedial phase of the litigation.
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VI. The Parties’ Motion to Modify the Remedial Order On March 4, 2014, Plaintiffs and the City filed a joint letter indicating that they had
“reached an agreement in principle for resolving the City’s appeals in both Floyd and Ligon.” Floyd, ECF No. 433; Ligon, ECF No. 169. Instead of proposing an entirely new settlement agreement, the letter indicates that the City intends to accept the Remedial Order with certain modifications consistent with the mayor’s January 30, 2014 announcement. Id. On April 3, 2014, Plaintiffs and the City filed a joint motion to modify the Remedial Order to reflect the terms of their agreement. Floyd, ECF No. 456. The parties request a single modification of the Remedial Order: rather than the independent monitor serving for an unspecified period, the parties propose that the monitor’s term be limited to no more than three years, provided that the City can demonstrate by the end of that term that it has substantially complied with the Remedial Order. Floyd, ECF No. 458. Corporation Counsel Zachary W. Carter submitted a declaration stating that the City will move to withdraw its appeals with prejudice “[i]f the Court approves the parties’ proposed modification.” Carter Decl. ¶ 5, Floyd, ECF No. 457; Ligon, ECF No. 189. The Unions oppose the motion, restating their position regarding intervention, complaining that the proposed modification “includes no mechanism for [the Unions] to present [their] collective bargaining concerns . . . or otherwise protect their rights,” and seeking a role “in aiding or disputing the City’s ‘showing’ of ‘substantial compliance.’” SBA Mem. 5, Floyd, ECF No. 461.
The Court shall first address the Unions’ motions to intervene for the purpose of appealing the Injunction, Liability, and Remedial Orders and then turn to the Unions’ other grounds for intervention and the parties’ motion to modify the Remedial Order.
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DISCUSSION I. Motions to Intervene to Appeal the Injunction, Liability, and Remedial Orders
The Unions move to intervene pursuant to Rule 24(a) or (b) to protect two alleged interests: (1) the reputation of NYPD officers, which has allegedly been harmed by the Liability Order’s findings of widespread constitutional violations; and (2) the Unions’ right to collectively bargain about the terms and conditions of their members’ employment, which is allegedly threatened by the Remedial Order. To vindicate these interests, the Unions argue that they must appeal the Injunction, Liability, and Remedial Orders to “ensure that [they] are reviewed on the merits and that the NYPD and its members are not burdened and besmirched by findings and remedies that are legally infirm.” PBA Mem. 3, Floyd, ECF No. 445. The Unions argue that only after a successful appeal, including appellate repudiation of the Orders, will union members’ reputations and the Unions’ collective bargaining rights be restored. After careful consideration, the motions are denied for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal.
Before turning to each of these issues, the Court shall address a preliminary matter raised by Plaintiffs. Plaintiffs argue, and the Court agrees, that the Unions have not adequately addressed two issues, the timeliness of the Unions’ motion and the nature of their alleged interests in the merits of Ligon.8 Notwithstanding the fact that Ligon raises distinct liability and remedial issues and has a unique procedural posture, the Unions filed the same intervention
8 In this paragraph, “the Unions” does not include the SBA, which has not moved to intervene in Ligon.
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briefs in Ligon as they filed in Floyd. However, the briefs discuss only Floyd.9 When Plaintiffs pointed out the oversight, the Unions responded with a footnote, “[t]he Ligon [Injunction Order], like the Floyd Liability [Order], contains findings of unconstitutional conduct by particular members of the [Unions] . . . and rests in part on the same expert’s analysis of the UF-250 forms as in Floyd . . . The [U]nions’ arguments in favor of intervention on remedies and appeal thus apply to both cases.” PBA Reply Mem. 2, Floyd, ECF No. 453. This footnote concludes what it presumes; it does not, however, explain why the Unions’ motions are timely with respect to intervening to appeal the Injunction Order, which was issued eight months before the Liability and Remedial Orders. Moreover, the Unions offer no explanation of their interest in the merits of Ligon, except to say that it is identical to their concerns in Floyd. Where the Unions do not see fit to address these issues, the Court will not do their work for them. Accordingly, the Court finds that the Unions have failed to meet their burden to justify intervention with respect to appealing the Injunction Order. United States Postal Serv. v. Brennan, 579 F.2d 188, 191 (2nd Cir. 1978). Thus, the Court will not consider the Injunction Order in addressing timeliness, nor will the Court address the Unions’ interests in the merits of Ligon separate from Floyd. Instead, the Court will focus primarily, as have the Unions’ motions, on the Liability and Remedial Orders.
A. Legal Standard Federal Rule of Civil Procedure 24 permits a non-party to intervene in ongoing litigation
as of right or by permission of the court. The applicant bears the burden of demonstrating that it meets the requirements for intervention. United States Postal Serv., 579 F.2d at 191. Generally, 9 As Plaintiffs observe, the PBA was aware of the Injunction Order, as evidenced by the press release to their members shortly after it was issued, describing the trespass stops in Ligon as “management’s poorly conceived program[]” that resulted from the “City’s misguided budget priorities.” “PBA Reacts to Federal Judge’s Stop and Frisk Decision,” Charney Decl. Ex. M, Floyd, ECF No 450-13.
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the court accepts as true the applicant’s well-pleaded, non-conclusory allegations and supporting material. See Bay Casino, LLC v. M/V Royal Empress, 199 F.R.D. 464, 466 (E.D.N.Y. 1999). Motions to intervene are highly fact-specific and tend to resist comparison to prior cases. Id. Because “prior decisions are not always reliable guides,” courts are guided by practical and equitable considerations in an effort to balance “efficiently administrating legal disputes by resolving all related issues in one lawsuit, on the one hand, and keeping a single lawsuit from becoming unnecessarily complex, unwieldy or prolonged, on the other hand.” United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir. 1994).
To seek intervention as of right under Rule 24(a), an applicant must make a four-part showing: (1) the application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may practically impair the applicant’s ability to protect its interest; and (4) the existing parties may not adequately represent the applicant’s interest. Pitney Bowes, 25 F.3d at 70. “The intervention application will be denied unless all four requirements are met.” Id. In applying the Rule, courts must be cognizant that its “various components . . . are not bright lines, but ranges— not all ‘interests’ are of equal rank, not all impairments are of the same degree, representation by existing parties may be more or less adequate, and there is no litmus paper test for timeliness.” United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984). “[A]lthough the Rule does not say so in terms, common sense demands that consideration also be given to matters that shape a particular action or particular type of action.” Id.
Courts may consider the same factors under Rule 24(b) permissive intervention as with intervention as of right under Rule 24(a). See R Best Produce, Inc. v. Shulman-Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006).
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B. Timeliness Under both provisions of Rule 24, the threshold inquiry is whether the application for
intervention is timely. “The timeliness requirement is flexible and the decision is one entrusted to the district judge’s sound discretion.” United States v. Yonkers Bd. of Educ., 801 F.2d 593, 594-95 (2d Cir. 1986); see also NAACP v. New York, 413 U.S. 345, 366 (1973). Whether the Unions’ motions are timely depends on: (1) the length of time the Unions knew or should have known of their interest before making the motion; (2) prejudice to existing parties resulting from their delay; (3) prejudice to the Unions if the motion is denied; and (4) the presence of unusual circumstances militating for or against a finding of timeliness. United States v. New York, 820 F.2d 554, 557 (2d Cir. 1987). Generally, the Second Circuit disfavors intervention after liability has been adjudged because “it fosters delay and prejudice to existing parties.” Farmland Dairies v. Comm’r of New York State Dep’t of Agric. & Mkts., 847 F.2d 1038, 1044 (2d Cir. 1988).
1. Length of Time Unions Knew or Should Have Known of Their Alleged Interests The Unions urge that their motions are timely because they were filed by September 12, 2013, within thirty days of the issuance of the Liability and Remedial Orders. A month earlier, they allege, was the first time they realized that they had interests in Floyd and Ligon which would not likely be represented by the existing parties. The Unions also contend that the subsequent election of a new mayor, who no longer intends to pursue an appeal, confirmed for the first time that their interests would not be protected. Because the Floyd trial could have resulted in a finding of no liability against the City, the Unions argue that it was reasonable for them to await the outcome before moving to intervene. Similarly, with respect to the Remedial Order, the Unions contend that they could not have known that their alleged collective bargaining interests would be threatened until the Floyd trial concluded and the Remedial Order
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issued. Nor could the Unions, they claim, have predicted the “capacious scope” of the Remedial Order’s impact on day-to-day officer responsibilities. PBA Mem. 12. The Unions argue, therefore, that their wait-and-see approach to intervention was reasonable.
Plaintiffs respond that to the extent that Floyd and Ligon might impact union members’ reputations, their daily job duties, and the Unions’ collective bargaining rights, the Unions knew or should have known months, if not years, before August 2013. The Liability and Remedial Orders, Plaintiffs contend, could not have come as a surprise given the nature of the pleadings in Floyd and Ligon and the pretrial publicity. The complaints in both cases allege that individual officers, all union members, had conducted unconstitutional stops, and the complaints seek the same department-wide changes to policies, training, supervision, monitoring, documentation, and disciplinary procedures that the Unions now criticize. Floyd, Ligon, and their precursor Daniels generated such high publicity that numerous stakeholders, including members of the New York City Council, civic groups, and the DOJ, filed submissions with the Court before and after the Floyd trial. Plaintiffs argue that the Unions’ delay is fatal to their motions.
With respect to the timeliness of the Unions’ proposed intervention to appeal the Liability and Remedial Orders, the facts and the law are on Plaintiffs’ side. Assuming, arguendo, that the Unions’ alleged interests are colorable on a motion to intervene, the intervention clock started to run from the moment the Unions became aware or should have become aware that they had interests in the subject matter of the litigation not otherwise protected by the existing parties to the lawsuit. See Farmland Dairies, 847 F.2d at 1044; see also League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1307 (9th Cir. 1997) (“[U]nder Rule 24 the timeliness clock begins ticking from the time a proposed intervenor should have been aware its interests would no longer be protected adequately by the parties.”) (alterations, citations, and internal quotations
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marks omitted). Even where post-judgment intervention is sought, courts deem these efforts timely only where the judgment itself, or events subsequent to judgment, are the first time that the intervenor learns of its unrepresented interests in the action. See, e.g., United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) (Only upon entry of final judgment did “it bec[o]me clear to the respondent that the interests of the unnamed class members would no longer be protected by the named class representatives,” after which “she promptly moved to intervene to protect those interests.”); Dow Jones & Co., Inc. v. U.S. Dep’t of Justice, 161 F.R.D. 247, 251-53 (S.D.N.Y. 1995) (Sotomayor, J.) (United Airlines’ requirement that non-parties seeking postjudgment intervention act “promptly” after the issuance of the judgment supplements, not supplants, the four-part timeliness standard announced in United States v. New York, 820 F.2d at 557, which includes among its factors, “the length of time they knew or should have known of their interest before making the motion.”).
Here, the Unions offer several explanations for the timing of their motions, each of which is legally or factually inconsistent with the applicable actual or constructive notice standard. After rejecting these unavailing explanations, the Court conducts a detailed review of the record and concludes that the Unions knew or should have known about their alleged interests in Floyd and Ligon far earlier than August 2013. The Court turns first to the Unions’ explanations.
a. The Unions’ Timeliness Rationale i. The “Thirty-day Rule”
First, the Unions contend that the Court need not examine their interests prior to August 2013, because “a motion to intervene . . . filed within the 30-day period for filing a notice of appeal . . . is timely.” SBA Mem. 23, Floyd, ECF No. 442; PBA Mem. 10-11. According to the Unions, “[t]he ‘critical inquiry’ is not how long the case has been pending, but whether the
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intervenor acted ‘promptly’ after the judgment.” PBA Reply Mem. 1 (citing United Airlines, 432 U.S. at 395-96). This is a fundamental misstatement of the case law on post-judgment intervention, which focuses on actual or constructive notice, not a rigid thirty-day rule.
To arrive at this errant conclusion, the Unions conflate two distinct concepts: the substantive legal interest Rule 24(a) requires for intervention and the procedural mechanism the applicant intends to employ upon intervening in order to vindicate that interest. In some circumstances, substantive interest and procedural purpose are aligned: an applicant becomes aware of an interest by the very issuance of the court order threatening that interest, thus necessitating intervention for the purpose of vindicating the interest by taking an appeal. See United Airlines, 432 U.S. at 394 (unnamed class member, whose interests in class determination only became actionable upon entry of the final judgment, moved promptly thereafter to intervene to appeal the judgment). Accordingly, in a case cited by the Unions, Drywall Tapers & Pointers, Local Union 1974 v. Nastasi & Assocs., Inc., the Second Circuit held that a prudent applicant moving to intervene in order to appeal an order should do so within the same thirty-day period to appeal the underlying judgment. 488 F.3d 88, 95 (2d Cir. 2007).
In other circumstances, interest awareness and the procedural mechanism are not aligned. For example, where an applicant obtains notice of an unrepresented interest long before the issuance of the order the applicant seeks to appeal, a motion to intervene in order to vindicate that interest on appeal could be untimely even if it were filed within thirty days of the order. Yonkers Board of Education is a textbook example. 801 F.2d 594. There, homeowners moved to intervene to appeal a remedial order designating sites near their homes for public housing. The homeowners opposed the chosen sites and asserted an economic interest in ensuring that proper sites were chosen. Although they moved to intervene within the thirty-day period for
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appealing the judgment, the Second Circuit found the motion untimely because the homeowners should have known of their site designation interest earlier, when the proposed sites were first publicly announced. Id. at 597. Thus, contrary to the Unions’ position, awareness of the interest, not the thirty-day deadline to appeal, is dispositive as to measuring the length of the applicant’s delay.
The Unions also cite several out-of-circuit cases for the fictional thirty-day rule. See United States v. City of Detroit, 712 F.3d 925 (6th Cir. 2013); Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 F.3d 1091 (10th Cir. 2005); Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004); Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996); Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991); Hodgson v. United Mine Workers, 473 F.2d 118 (D.C. Cir. 1972). These cases did not so hold. In each, the filing of a motion to intervene within the thirty-day appeal window was not dispositive as to timeliness. Instead, City of Detroit, Elliott Indus., Acree, City of Houston, Yniguez,10 and Hodgson all held a motion to intervene timely where the applicant first learned of its unrepresented interest in conjunction with or after the issuance of the order it sought to appeal. These courts did not apply a rigid thirty-day rule. Instead, they looked to the particular facts concerning delay, prejudice, and notice.
In all cases, whether pre- or post-judgment, Rule 24(a) requires courts to measure timeliness from the moment when the applicant had actual or constructive notice of its unrepresented interest, not from the moment a judgment was issued or from the moment when
10 The Unions fail to mention a subsequent development in Yniguez. In a unanimous opinion, the Supreme Court vacated the Ninth Circuit’s judgment on the ground that the case became moot when the plaintiff, whose challenge to Arizona’s English-only ballot initiative was based on her state employment, left her position. Arizonans for Official English v. Arizona, 520 U.S. 43, 66 (1997). Although the Court “need[ed] not definitively resolve the issue” of whether the Ninth Circuit erred in allowing private parties to intervene in order to vindicate the constitutionality of a state policy on appeal where state officials declined to do so, the Court expressed “grave doubts” about the intervenors Article III standing. Id.
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the existing parties decided not to appeal that judgment. Thus, courts have deemed timely a motion to intervene where the decision of an existing party not to appeal a court ruling provided the would-be intervenor its first notice of its unrepresented interest in a lawsuit. See, e.g., Dow Jones & Co., 161 F.R.D. at 252-53; see also Heartwood, Inc. v. U.S. Forest Serv., Inc., 316 F.3d 694, 701 (7th Cir. 2003) (“The relevant inquiry in determining timeliness . . . is not on the time between the [judgment] and the motion to intervene . . . but instead . . . on the time between [movant’s] knowledge that the suit could impact their interests and the motion to intervene.”). Here, the fact that the Unions filed their initial motions to intervene with thirty days of the issuance of the Liability and Remedial Orders does not make their motions timely. Instead, the Court must look at all the circumstances to determine when the Unions obtained the required actual or constructive knowledge.
ii. Waiting for the Unions’ Alleged Interests to “Crystallize” Second, the Unions posit that it was appropriate for them to wait for their alleged interests to “crystallize” before moving to intervene, SBA Reply Mem. 13, Floyd, ECF No. 451, when “there [could] be no doubt,” PBA Mem. 12, that their interests would not be represented by the City. Implicitly, the Unions appear to acknowledge that they knew they had interests in Floyd and Ligon prior to August 2013, but contend that those interests had not fully matured. On this view, “[t]he events that prompted [the Unions] to intervene, and [their] inability to have foreseen the necessity of [their] involvement in this matter, fully support a finding that the motion is timely.” SBA Reply Mem. 9-10. Three purportedly unforeseeable developments appear to have caused their interests to “crystallize:” (1) the Court’s finding of liability against the City in Floyd; (2) the Court’s factual findings in the Liability Order; and (3) the election of a new mayor which led to the City’s withdrawal of the prior administration’s consent to the
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Unions’ intervention in Floyd and Ligon and the announcement that the City would withdraw its appeal of the Injunction, Liability, and Remedial Orders.
The Unions’ argument is not supported by intervention case law. Rule 24 does not require that an applicant’s interest be “crystallize[d]” or that an applicant wait until there is “no doubt” that his or her interests will be impacted. Instead, Rule 24 encourages applicants to move when it becomes apparent that their interests might not be protected. See Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001) (Non-party should have sought intervention when it realized “that its interests might not be adequately represented.”) (emphasis added); see also Heartwood, Inc., 316 F.3d at 701 (The relevant inquiry is when the applicant had “knowledge that the suit could impact their interests.”) (emphasis added); In re Tribune Co. Fraudulent Conveyance Litig., 291 F.R.D. 38, 41 (S.D.N.Y. 2013) (Applicant moved to intervene “as soon as” it realized existing party no longer represented its interests.). The Unions’ position, by contrast, would encourage applicants to delay their motions until it is absolutely certain, after judgment, that their interests have been adjudicated. The Second Circuit has emphasized that such dilatory tactics are “disfavored because [they] usually create[] delay and prejudice to existing parties, and undermine[] the orderly administration of justice.” Yonkers, 801 F.2d at 596 (citations omitted). Moreover, although courts should not encourage premature motions to intervene, see Stallworth v. Monsanto Co., 558 F.2d 257, 265 (5th Cir. 1977), such timing defects are not fatal to subsequent motions. See, e.g., Yonkers, 801 F.2d at 597 n.6 (discussing, with approval, the district court’s grant of a motion to intervene after denying, without prejudice, an earlier motion as premature when the movant’s interests were too speculative); Pitney Bowes, 25 F.3d at 71 (suggesting that, although the applicant’s interests were uncertain, applicant could have moved to intervene “as an anchor to windward . . . to guard
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against the possibility” that its interests would be impacted); Hickerson v. City of New York, 932 F. Supp. 550, 559 (S.D.N.Y. 1996). Thus, if prior to August 2013 the Unions knew or should have known that their interests existed but were unprotected, they should have proactively moved to intervene at that time. Even if the motion had been denied as premature, it would have put the Court and the parties on notice that at a later stage in the litigation the Unions might seek intervention. Rather than waiting, as the Unions did, until they had “no doubt” that the City would not adequately represent their interests, intervention law required them to move at the first instance that there was some doubt.
It is unclear whether the Unions’ view is that their interests did not exist prior to August 2013, or that they did exist but were adequately represented by the City prior to August 2013. In either case, the Unions claim that pre-August 2013 developments are irrelevant because their interests did not “crystallize” until a series of purportedly unforeseeable developments occurred. First, prior to August 2013, the Unions assert that they “did not have reason to intervene for purposes of appealing the [Orders] until after the [Orders] were issued,” SBA Mem. 25, because “[h]ad the City prevailed at trial, the [U]nions’ participation would have remained unnecessary.” PBA Reply Mem. 6. This argument is unavailing. At its core, the Unions’ argument is that they did not intervene beforehand because the City might have won. Thus, the “unforeseeable” event that caused their interests to “crystallize” is that the City lost the trial. Trials are adversarial proceedings that usually conclude with a judge or jury pronouncing a winner and a loser, and the loser often has to pay damages or remedy the conduct that initially troubled the winner. Here, it should have come as no surprise that when the Floyd trial ended, there would be a winner and a loser, and it was entirely foreseeable that the winner might not be the party the Unions preferred.
Next, the Unions claim that the refusal of a newly-elected mayor to appeal the decisions
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was an unforeseeable event that “crystallized” the necessity of their intervention. SBA Mem. 1820. This argument is also unavailing. It should have come as no surprise that, as a risk inherent in a democratic election, the candidate who supports one’s preferred policing policies might not win. In fact, in 2009, during the second year of the Floyd litigation, a mayoral election occurred. It was possible that the then-current mayor, Michael R. Bloomberg, would not be re-elected and that a new mayor might pursue a different litigation strategy. The risk was heightened when Mayor Bloomberg, a former co-defendant in Floyd and a proponent of the City’s stop-and-frisk policy, could not run in 2013 because he was term-limited, and there was certainty that a new mayor would take his place. Accordingly, it should have come as no surprise that, where the candidates had a range of views on stop-and-frisk, the new mayor might change the City’s litigation strategy upon assuming office. Although the particular outcome of an election may be unforeseeable, that elections occur is foreseeable, as is the fact that a new mayor may have litigation priorities that differ from those of his or her predecessor.
Finally, the Unions claim that they could not have foreseen the Court’s factual findings and the legal reasoning that would support the Court’s finding of liability against the City. In particular, the Unions claim to have been caught off guard by the breadth of the Liability and Remedial Orders:
“[A]n extraordinary pair of erroneously reasoned Opinions that accuse police officers, including [union members] of widespread violations of the Constitution based on flawed reasoning and insufficient evidence. The [Unions] could not have foreseen that the Opinions would find that, over an eight-year period, at least 200,000 stops conducted by NYPD officers were unconstitutional and that officers intentionally targeted minorities, based solely on a purported statistical analysis of UF-250 forms, and without any consideration of the totality of the unique circumstances of each of the 4.4 million stops at issue . . . . Nor could the [Unions] have anticipated a sweeping opinion mandating unprecedented remedies . . . .” SBA Reply Mem. 11-12. Because the Unions purportedly could not have foreseen the scope of
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the Liability Order, they further contend that “[t]he police officers’ conduct and reputations are placed at issue only if, in fact, the Liability [Order] can survive appellate scrutiny.” PBA Reply Mem. 18.
This argument is also unavailing for several reasons. First, months before the Floyd trial, the parties vigorously litigated the admissibility of evidence prepared by plaintiffs’ expert witness, Jeffrey A. Fagan, who developed a statistical analysis of hundreds of thousands of UF250s and drew conclusions regarding the role of race in stops-and-frisks. During these pretrial proceedings, Fagan’s methodology and his interpretation of the data were closely and critically examined. Therefore, the Unions cannot be heard to say that the substantive content of Fagan’s research and conclusions concerning the NYPD’s stop-and-frisk practices was unforeseeable. Second, with respect to the Remedial Order, it does not take the issuance of a judicial opinion for a union to realize that the employer is not looking out for the union’s collective bargaining interests insofar as they may arise in a lawsuit. The Unions acknowledge, as they must, that “unions and [their employers] do not have an identity of interests.” SBA Mem. 20. Similarly, the City observes that “the interests of the City and the Unions may differ on collective bargaining issues.” Letter from the City of New York (Oct. 18, 2013), ECF No. 414. Third, the view that conduct reviewed at trial is only “at issue” if the district court’s verdict is affirmed by the Court of Appeals is contrary to basic principles of federal law. The district court’s orders are final and self-executing; they are not suppositions that require affirmance by a court of appeals before becoming effective.
In sum, the Unions’ position that its motions are timely because they were filed either within thirty-days of the Liability and Remedial Orders or when their alleged interests “crystallized” is inconsistent with relevant case law. Moreover, the Unions’ contention that
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certain post-trial developments were unforeseeable is implausible. Because the Court rejects the Unions’ various explanations for the timing of their motions, the Court endeavors to determine when the Unions obtained actual or constructive notice that their alleged interests in Floyd and Ligon were not represented by the existing parties. A review of the facts reveals that the alleged interests that the Unions claim were unforeseeable until August 2013 were actually ascertainable far earlier. The Court now turns to that issue.
b. Measuring the Delay Between Notice and the Unions’ Motions “Delay is not measured solely subjectively because, if that were the test, a putative intervenor could always claim it did not know it needed to intervene until the eve of its motion.” Butler, Fitzgerald & Potter, 250 F.3d at 182. Delay is measured from when the applicant had actual notice or constructive notice of an unrepresented interest, which may be implied from a variety of circumstances. See NAACP, 413 U.S. at 366-67 (notice implied from newspaper article, public comment by community leaders, size and astuteness of membership and staff of organizational appellant, and questioning of two individual appellants by lawyers with the DOJ regarding the subject matter of the litigation). Courts in this circuit have recognized that a variety of case developments, similar to those in Floyd and Ligon, may provide actual or constructive notice: (i) the filing of a complaint or the initiation of related litigation, see, e.g., D’Amato v. Deutsche Bank, 236 F.3d 78, 84 (2d Cir. 2001); Catanzano by Catanzano v. Wing, 103 F.3d 223, 232-33 (2d Cir. 1996); Pitney Bowes, 25 F.3d at 71; Citizens Against Casino Gambling in Erie Cnty. v. Hogen, 704 F. Supp. 2d 269, 282 (W.D.N.Y. 2010), aff’d, 417 F. App’x 49 (2d Cir. 2011); (ii) class certification, see, e.g., Hnot v. Willis Grp. Holdings Ltd., 01 Civ. 6558, 2006 WL 3476746, at *3-4 (S.D.N.Y. Nov. 30, 2006), aff’d, 234 F. App’x 13 (2d Cir. 2007); (iii) the litigating of major or dispositive motions, see, e.g., MasterCard Int’l Inc. v. Visa
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Int’l Serv. Ass’n, Inc., 471 F.3d 377, 390 (2d Cir. 2006); (iv) the resolution process, see, e.g., In re Holocaust Victim Assets Litig., 225 F.3d 191, 198 (2d Cir. 2000); and (v) publicity about the lawsuit, see, e.g., In re Bank of New York Derivative Litig., 320 F.3d 291, 300-01 (2d Cir. 2003); Authors Guild v. Google, Inc., 74 Fed. R. Serv. 3d 1488 (S.D.N.Y. 2009). Here, numerous developments in the course of Floyd and Ligon and their related precursor Daniels should have provided the Unions with notice of the pendency of their alleged interests.
i. Filing of a Complaint and Related Litigation Numerous courts have found that, among other factors, the initiation of a lawsuit where the complaint addresses the would-be intervenors’ interests may trigger constructive notice. See, e.g., Pitney Bowes, 25 F.3d at 71 (plaintiff’s public filing of the action in the Federal Register alerted proposed intervenors to their interests); Catanzano, 103 F.3d at 233 (home health service providers who asserted an interest in not being forced to provide care should have known from the initiation of the lawsuit that plaintiffs sought to require such care); D’Amato, 236 F.3d at 84 (among other factors, the motion was denied as untimely because it was made more than a year after the complaint was filed). Movants may also obtain notice based on the commencement of related litigation. See, e.g., Farmland Dairies, 847 F.2d at 1044 (affirming district court finding that applicants could have moved as soon as they “were aware of this and related litigation”); Citizens Against Casino Gambling, 704 F. Supp. 2d at 282 (prior filing of two related lawsuits predicated on similar assertions and proposed remedies against similar parties provided notice). The Daniels complaint, filed on March 8, 1999, the Floyd complaint, filed on January 31, 2008, and the Ligon complaint, filed on March 28, 2012, each contained allegations and sought relief that should have put the Unions on notice of their alleged reputational and collective
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bargaining interests. In each of the three complaints, plaintiffs alleged Monell liability11 against the City through the conduct of its agency, the NYPD, for encouraging officers to carry out unconstitutional stops-and-frisks. As is typical in such claims against municipalities, the plaintiffs alleged that individual officers engaged in unlawful conduct and that the City’s deliberate indifference to this behavior gave rise to a de facto City policy. From the complaints in each case, it was foreseeable that factual allegations regarding union member conduct would be litigated, that a judge or jury might conclude that the conduct was unlawful, and that city-wide remedies could follow. Therefore, the Unions should have learned of their alleged interests by 2008 when Floyd was filed.
Foreseeability is heightened for several reasons. In all three lawsuits, union members were among the individual officers named as defendants. Each complaint specifically requested department-wide changes to stop-and-frisk policies, training, supervision, monitoring, documentation, and disciplinary procedures. The remedial measures sought by plaintiffs in Daniels, Floyd, and Ligon are quite similar to the relief contained in the Remedial Order. Thus, the foreseeability of a potential clash with the Unions’ alleged interests dates back to March 1999, January 2008, and March 2012. In fact, Floyd and Ligon were filed as related to Daniels and formally assigned to the same district judge. See Ligon, 736 F.3d at 122 (discussing the relationship between Daniels, Ligon, and Floyd). Thus, the filing of Floyd as related to Daniels only a month after the Daniels case ended, and Ligon, as related to both, equally provided notice.
The Unions reject the notion that the initiation of these lawsuits conveyed notice, arguing that “the time that the would-be intervenor first became aware of the pendency of the case is not relevant to the issue of whether his application was timely.” SBA Reply Mem. 6 (citing 11 Under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91 (1978) and its progeny, municipalities can sued for monetary, declaratory, and injunctive relief under 42 U.S.C. § 1983 for unconstitutional policies or customs.
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Stallworth v. Monsanto Co., 558 F.2d 257, 265 (5th Cir. 1977)). The Unions’ argument obscures the holding of this out-of-circuit case. In Stallworth, the Fifth Circuit rejected a per se rule that the filing of a complaint provides a proposed intervenor with notice. 558 F.2d at 264-65. Instead, in following the constructive knowledge standard from United Airlines and NAACP, the Fifth Circuit reversed the district court’s finding of untimeliness because it “used an unspecified time when it supposed that the appellants must have learned of the pendency of the action rather than the time when they knew or should have known of their interest in the action as its starting point in assessing whether they acted promptly to protect themselves.” Id. at 267. The court reasoned that the filing of a complaint is not always sufficient to notify a would-be intervenor of its interests because interests unapparent when a complaint is filed may reveal themselves later in a lawsuit. Id. Thus, Stallworth supports Plaintiffs’ constructive notice argument. Plaintiffs do not argue that the filing of the complaints, per se, should have triggered notice. Instead, Plaintiffs contend that the complaints’ substantive allegations and prayers for relief provided notice.
The Unions rely heavily on another out-of-circuit case, United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002), to buttress other aspects of their intervention motions. With regard to timeliness, however, that case also supports the proposition that a complaint can provide notice. There, the Los Angeles Police Protective League (the “PPL”) “submitted the motion to intervene within weeks of the filing of the complaint and before any orders regarding the Proposed Decree ha[d] been entered.” Order Denying PPL’s Mot. to Intervene at 7, United States v. City of Los Angeles, 00 Civ. 11769 (C.D. Cal. Jan. 5, 2001), Docket No. 58. Although no individual officers were named as defendants, the PPL was motivated to seek intervention by the complaint’s inclusion of allegations of police misconduct and the possibility of a threat to
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collective bargaining rights by the proposed consent decree. City of Los Angeles, 288 F.3d at 399. Thus, the district court found the motion to be timely, which was “not challenged on appeal.” Id. at 397. Unlike Floyd and Ligon, the PPL moved to intervene when misconduct was merely alleged in the complaint, rather than after the allegations had been proven at trial. The PPL also did not await the district court’s issuance of a remedial order and instead sought intervention the moment remedies were proposed. Rather than supporting the Unions’ position, City of Los Angeles underscores their untimeliness—unlike the diligent PPL, the Unions here neglected their alleged interests until after they were adjudicated.
ii. Class Certification Class certification has been held to provide notice given the public nature of that process. See, e.g., D’Amato, 236 F.3d at 84 (where parties sought to certify a settlement class, district court’s order that notice be sent to class members and pending fairness hearing alerted proposed intervenors of their interests); Hnot, 2006 WL 3476746, at *3 (district court’s class certification order notified potential class member seeking to alter the class definition of her interests). Daniels, Floyd, and Ligon each produced published opinions on class certification that were the subject of extensive briefing. In Daniels, the Court certified a class on January 25, 2001 and found that the “named plaintiffs are seeking money damages for themselves but are only seeking declaratory and equitable relief for the class they wish to represent.” Daniels v. City of New York, 198 F.R.D. 409, 416 (S.D.N.Y. 2001). Similarly in Floyd, after extensive briefing, the Court granted class certification on May 16, 2012, approving of plaintiffs’ objective to “seek equitable relief in the form of (1) a declaration that defendants’ policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction mandating significant changes in those policies, practices, and/or customs.” Floyd v. City of New
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York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012). The Court certified a class consisting of [a]ll persons who since January 31, 2005 have been, or in the future will be, subjected to the New York Police Department’s policies and/or widespread customs or practices of stopping, or stopping and frisking, persons in the absence of a reasonable, articulable suspicion that criminal activity has taken, is taking, or is about to take place in violation of the Fourth Amendment, including persons stopped or stopped and frisked on the basis of being Black or Latino in violation of the Equal Protection Clause of the Fourteenth Amendment.
Id. at 160. The class definition dictates that evaluating police behavior would form a large part of plaintiffs’ case. Furthermore, the Court noted that there was an issue of “[w]hether the ‘performance goals’ are accurately characterized as ‘quotas’ under the New York Labor Law” which “is surely important to the NYPD and to police officers and their union.” 283 F.R.D. at 164. Thus, the Court explicitly recognized what the Unions should have—that stop-and-frisk policies that might affect the Unions’ alleged interests were under consideration. In Ligon, on February 11, 2013, in a published opinion, the Court certified a class consisting of
[a]ll individuals who have been or are at risk of being stopped outdoors within the vicinity of Bronx apartment buildings enrolled in the NYPD’s Trespass Affidavit Program (commonly referred to as “Operation Clean Halls”) without legal justification by NYPD officers on suspicion of trespassing in said buildings. Ligon v. City of New York, 288 F.R.D. 72, 83 (S.D.N.Y. 2013). The opinion signaled the existence of the same remedial issues that concern the Unions now. Class certification is a public exercise intended to notify individuals that their rights are being adjudicated. In certifying a class in each case, the Court put the City and its residents on notice of what was at stake. Yet, the Unions offer no explanation for how they remained unaware of these significant events.
iii. Litigating Important Motions and Issues The litigation of important motions and other significant case developments have also been held to provide notice. See, e.g., MasterCard Int’l, 471 F.3d at 390 (motion for preliminary injunctive relief “publicly available for anyone to access” should have alerted proposed
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intervenor of its interest); Catanzano, 103 F.3d at 233 (district court’s publication of its preliminary injunction order, which contained the remedy the would-be intervenors sought to challenge, provided sufficient notice to them of their interest). The Unions argue that they were caught off-guard by the factual findings and legal analysis in the Liability and Remedial Orders. However, as demonstrated in the discussion that follows, the substantive issues therein were raised and disputed by the parties long before August 2013.
(a) Daniels: the DOJ’s Attempt to Intervene Amongst the numerous published decisions on substantial motions in Daniels, on April 12, 2001, the court denied the DOJ’s motion to intervene in order to access discovery for its own investigation of NYPD stop-and-frisk practices. Daniels, 200 F.R.D. at 210. The investigation began in March 1999 after the widely publicized shooting death of Amadou Diallo, “an unarmed and law-abiding African immigrant . . . [who] was killed when four members of the SCU fired 41 bullets at him in the vestibule of his Bronx apartment building, striking him 19 times.” Daniels Compl. ¶ 40; Shudofsky Decl. ¶ 2, Daniels, ECF No. 93-1. In conjunction with the investigation, the City had voluntarily provided the DOJ several years of UF-250 data. Shudofsky Decl. ¶¶ 3-4. However, the City ceased providing such data for stops that occurred after March 2009. Id. ¶ 5. In denying the motion, the court reasoned that the DOJ could obtain the discovery through its own lawsuit against the City. Daniels, 200 F.R.D. at 209. Although the DOJ’s motion was unsuccessful, its attempt to intervene demonstrates that non-parties were aware of the stakes and, unlike the Unions, actively sought to be involved.
(b) Floyd Discovery The Unions claim that it was unforeseeable that the Court would find that “over an eightyear period, at least 200,000 stops conducted by NYPD officers were unconstitutional and that
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officers intentionally targeted minorities, based solely on a purported statistical analysis of UF250 forms, and without any consideration of the totality of the unique circumstances of each of the 4.4 million stops at issue . . . .” SBA Reply Mem. 12. In addition, the Unions allege that is was unforeseeable that the Court would find that “several specific members of the [Unions] had committed unconstitutional stops and/or frisks.” PBA Mem. 14. The Unions ignore the fact that during pretrial proceedings the parties vigorously litigated (1) the admissibility of plaintiffs’ expert’s statistical data and conclusions and (2) plaintiffs’ allegations that particular stops-andfrisks were unlawful. That these issues would be addressed during trial and that the Court would be tasked with making definitive rulings on them cannot be described as unexpected. In essence, the Unions’ real complaint is that they simply could not foresee the Court disagreeing with the City’s position on these issues.
In Floyd, fact discovery proceeded for more than two-and-a-half years and included numerous extensive discovery disputes, production of voluminous material, and dozens of depositions. Based upon the discovery produced and the parties’ pretrial filings, it was entirely foreseeable that at trial plaintiffs would present wide-ranging statistical evidence based on Fagan’s analysis of UF-250s and that plaintiffs would introduce evidence regarding particular stops-and-frisks. With respect to the statistical evidence, on April 16, 2012, in a published opinion the Court granted in part and denied in part the Floyd defendants’ motion to exclude Fagan’s expert report and testimony (the “April 16 Order”). Floyd v. City of New York, 861 F. Supp. 2d 274, 304 (S.D.N.Y. 2012). The nature and content of his proposed testimony were addressed in what the Court described as “voluminous” briefing leading up to the April 16 Order. See Floyd, 283 F.R.D. at 160. The April 16 Order ruled admissible Fagan’s (1) opinions about the process by which officers complete UF-250s and about the outcomes of the stops; (2)
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analysis of UF-250s to determine whether millions of stops were justified; and (3) conclusions regarding the significance of race and ethnicity. Floyd, 861 F. Supp. 2d at 289-90, 292-93, 304.
With respect to the individual stops analyzed in the Liability Order, that such analysis would occur was also entirely foreseeable. Dozens of union members were deposed during discovery where they were likely questioned about allegations of unlawful conduct, training, supervision, and other topics in the lawsuit. Presumably, plaintiffs’ purpose in deposing police witnesses was to gather information about specific stops in order to prove plaintiffs’ claims at trial. Thus, it was unsurprising that in the Court’s summary judgment opinion, as with the Liability Order, the Court evaluated specific stops to determine whether they were indicative of a city-wide policy. Floyd v. City of New York, 813 F. Supp. 2d. 417, 443-46 (S.D.N.Y. 2011). Finally, based on the parties’ pre-trial submissions, it was clear that plaintiffs intended to introduce at trial information regarding particular stops as evidence of a city-wide policy. Although the Unions could not have predicted how the Court would rule on Fagan’s testimony or on the individual stops, the Unions simply cannot claim to be surprised by the evidence presented by plaintiffs and relied upon by the Court. See PBA Mem. 5-6, Floyd, ECF No. 445 (criticizing the Court’s reliance on Fagan’s trial testimony). Given that plaintiffs’ evidence was vetted well before trial, the Unions’ delay appears to have been based on their gamble that the City’s position on these issues would prevail.
(c) Floyd Summary Judgment On August 31, 2011, in a published opinion, the Court granted in part and denied in part defendants’ (some of whom were union members) motion for summary judgment, finding that there existed genuine issues of material fact as to whether there were NYPD policies governing officer training, supervision, monitoring, and discipline that enabled a widespread practice of
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suspicionless and race-based stops-and-frisks attributable to the City. Floyd, 813 F. Supp. 2d. at 417. In particular, the Court found “that the questionable constitutionality of 30 percent of stops is sufficient to allege that the custom [of suspicionless stops-and-frisks] is widespread.” Id. at 446. Moreover, in evaluating plaintiffs’ claims that the NYPD mandated quotas to encourage officers to perform otherwise suspicionless stops-and-frisks, the Court considered evidence that in May 2004, the PBA filed a labor grievance on behalf of six officers and one sergeant who were transferred for allegedly failing to meet a ten summons-per-month quota. Id. at 426. The Court noted that in January 2006, a labor arbitrator found that the NYPD had imposed summons quotas in violation of New York labor laws. Id. This observation is significant not only because it was a public acknowledgment of the Unions’ potential interest in this litigation, but also because it suggests that the Unions were aware of the substantive issues in Floyd as early as 2004. Yet, even when the Court highlighted the 2006 labor arbitrator’s finding as Floyd was headed to trial, the Unions did not seek to intervene.
(d) Ligon Injunction Order Less than a month after the complaint was filed in Ligon, plaintiffs informed the Court that they would seek a preliminary injunction to halt unconstitutional trespass stops around TAP buildings in the Bronx. The parties submitted briefs and motions in limine, and the Court held a multi-day evidentiary hearing, after which the parties submitted proposed findings of fact and conclusions of law. Over the course of seven days in October and November 2012, the Court considered a variety evidence including (1) testimony from a Bronx assistant district attorney who concluded that the NYPD frequently made trespass stops outside TAP buildings for no reason other than that the officer had seen someone enter and exit or exit a building; (2) “a sample of ‘decline to prosecute’ forms prepared by the Bronx District Attorneys’ Office which
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revealed the alarming frequency of unlawful trespass stops in the vicinity of TAP buildings in the Bronx;” (3) testimony from eight plaintiffs and a non-party witness who “described remarkably similar encounters with the police when stopped in the vicinity of TAP buildings in the Bronx;” (4) an analysis by Fagan of trespass stops outside TAP buildings in the Bronx; and (5) evidence from NYPD training materials that misstated the minimal constitutional standards for making stops. Ligon, 925 F. Supp. 2d at 485. The Court granted plaintiffs’ motion for a preliminary injunction on January 8, 2013, finding that they had shown a “clear likelihood of proving” that the City, by its deliberate indifference, had a policy of conducting unlawful stops outside of TAP buildings. Id. The Injunction Order prohibited the NYPD from “performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass, in accordance with the law as set forth and clarified in this Opinion.” Id. at 542. By its terms, the Injunction Order directly addressed officer conduct and many of the same issues that were adjudicated in the Floyd trial. Yet, despite the imposition of injunctive relief, in part on the basis of union member conduct, the Unions did not move to intervene or otherwise express any concerns about how the relief might affect their members.
(e) Dismissal of Individual Defendants in Floyd As the Floyd trial neared, the parties agreed to resolve an issue that is critical to the Unions’ proposed intervention to protect its members’ alleged reputational interests. On March 8, 2013, the parties stipulated to dismiss all claims against the remaining individual officer defendants with prejudice. Floyd, ECF No. 270. This event stands apart because it signaled that the conduct of individual NYPD officers would be adjudicated at trial with no remaining defendant necessarily protecting those interests. Prior to March 8, 2013, the Corporation Counsel represented all Floyd defendants, from the individual officers to the police
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commissioner and the mayor. The Corporation Counsel is the “attorney and counsel for the city and every agency thereof and shall have charge and conduct of all the law business of the city and its agencies.” N.Y.C. Charter § 394(a). Appointed by the mayor, the Corporation Counsel is the only office holder authorized to represent the legal interests of the City. Id. §§ 6, 391. In civil actions where both the City and its employees are named as defendants, the Corporation Counsel must represent the City, and it may elect to represent individual employees, so long as the Corporation Counsel is satisfied that the employees were acting within the scope of their employment and there is no ethical conflict of interest in representing co-defendants. N.Y. Gen. Mun. Law § 50-k; see also Mercurio v. City of New York, 758 F.2d 862, 864-65 (2d Cir. 1985); Lamberti v. Metro. Transp. Auth., 170 A.D.2d 224, 225 (1st Dep’t 1991).
The Second Circuit has observed the inherent conflict of interest in 42 U.S.C. § 1983 lawsuits where plaintiffs seek recovery against both a municipality and individual municipal employees. See Dunton v. Suffolk Cnty., 729 F.2d 903, 907 (2d Cir. 1984), amended, 748 F.2d 69 (2d Cir. 1984); Patterson v. Balsamico, 440 F.3d 104, 114 (2d Cir. 2006). The conflict exists “because a municipality may avoid liability by showing that the employee was not acting within the scope of his official duties while the employee, by contrast, may partially or completely avoid liability by showing that he was acting within the scope of his official duties.” Patterson, 440 F.3d at 114 (alternations, citations and internal quotation marks omitted). However, where the Corporation Counsel represents both the City and individual officers pursuant to its discretion under N.Y. General Municipal Law 50-k, “it would not be in the City’s interest to . . . place blame on” the individual employees. Mercado v. City of New York, 08 Civ. 2855, 2010 WL 3910594, at *4 (S.D.N.Y. Sept. 30, 2010). Here, in agreeing to represent both the City and the individual officers, the Corporation Counsel was presumably satisfied that the officers were
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acting within the scope of their employment and that there was no ethical conflict that would have required the appointment of separate counsel. N.Y. Gen. Mun. Law § 50-k; see also Mercurio, 758 F.2d at 864-65. The Corporation Counsel could not simultaneously represent these municipal employees and repudiate their conduct.
Thus, the Corporation Counsel’s decision to represent Officers Rodriguez, Goodman, Hernandez, Joyce, Pichardo, Salmeron, Hayes, Moran and Sergeant Kelly in Floyd signals that at least until March 8, 2013, the City believed that the officer conduct at issue—allegedly unconstitutional stops-and-frisks—was lawful conduct within the scope of the defendant officers’ employment. Moreover, by agreeing to represent these officers, the City implicitly sanctioned all similar NYPD officer conduct as part of its Monell litigation strategy. In addition to the ethical incentive to protect the named officer defendants, the Corporation Counsel had a strategic incentive to protect the interests of all officers who were acting pursuant to their municipal employer’s directives. However, after March 8, 2013, when the officer defendants were dismissed from Floyd, the City was no longer compelled to look after the interests of any officers, named or unnamed. Instead, the City could concede officer misconduct and argue that it did not evidence a widespread pattern or practice attributable to City policy. Any such misconduct, the City could argue, would be attributable to rogue officers acting contrary to City policy. Thus, when plaintiffs agreed to withdraw their claims against the remaining officer defendants, the Unions’ alleged interest in protecting NYPD officers’ reputations became, in the Unions’ terms, “crystallize[d].” SBA Reply Mem. 13. As of March 8, 2013, the Corporation Counsel was not obligated to represent anyone’s reputational interests other than the City’s.
A review of the City’s post-trial filings demonstrates that the possibility of the City adopting this strategy was genuine. In their post-trial briefs, the City repeatedly argued that the
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evidence of officer wrongdoing was sparse and “anecdotal,” repudiating plaintiffs’ claim that it was widespread. Additionally, the City argued that plaintiffs had failed to show a systemic pattern or practice of unconstitutional behavior and that evidence of such a pattern or practice was based on unreliable information contributed by “a very few disgruntled officers.” Def. PostTrial Mem. 9-10, Floyd, ECF No. 364. Given their purported status as protectors of police officer interests generally, the Unions should have recognized that at the moment the named officer defendants were no longer represented by the Corporation Counsel, the City would no longer protect their interests. The Unions, after all, “are not poor, ignorant people whose rights have to be protected.” Farmland Diaries, 847 F.2d at 1044. When the officer defendants were dismissed from Floyd, it should have been obvious to the Unions that plaintiffs’ Monell claims would necessarily implicate union member conduct with no guarantee that the sole remaining defendant, the City, would safeguard union members’ reputational interests.
iv. Resolution Process The Second Circuit has repeatedly emphasized that an intervenor’s awareness of the process of negotiating a resolution of a case is an important factor in determining notice. See, e.g., In re Holocaust Victim Assets Litig., 225 F.3d at 198 (affirming denial of intervention as untimely when proposed intervenors knew of extensive negotiations leading up to settlement agreement and had submitted written objections to the settlement but waited until eight months after preliminary approval to intervene); Pitney Bowes, 25 F.3d at 71 (affirming denial of intervention, in part, because movant had notice that the parties had negotiated for eight months before reaching the final agreement the movant sought to challenge).
(a) Daniels Settlement Although the settlement in Daniels is not dispositive as to the timing of the Unions’
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motions to intervene in Floyd and Ligon, it is noteworthy for the fact that the Unions never sought intervention in Daniels when the settlement was negotiated, entered, or implemented. On January 13, 2004, the Court approved a stipulation of settlement. Stipulation, Daniels, ECF No. 152. Plaintiffs agreed to release their class claims, and the City agreed to (1) implement stopand-frisk audit procedures and apprise class counsel of the results on an ongoing basis; (2) revise supervisory trainings for new sergeants and lieutenants to address racial profiling concerns and maintain that as part of the Police Academy curriculum; (3) provide annual training on the NYPD’s racial profiling policy; (4) ensure that all stop-and-frisk incidents would be documented on a revised UF-250 and provide class counsel with quarterly results; and (5) conduct joint community forums and workshops at select high schools to educate the public about the NYPD’s racial profiling policy and the rights of citizens. Id. The Daniels settlement was published in three newspapers and remained in effect through December 31, 2007. Aff. of Publication, Daniels, ECF No. 150. Although the settlement implicated the same day-to-day job duties now at issue, the Unions never moved to intervene. Tellingly, the Unions have given no indication to the Court that implementation of the Daniels settlement adversely affected their members’ reputations or the Unions’ ability to collectively bargain with the City.
(b) Remedial Relief Ordered in Floyd and Ligon Although not a settlement or consent decree, the Remedial Order was the product of months of input from the parties and other stakeholders. See Floyd, ECF Nos. 268 (Pl. Permanent Injunctive Relief Mem.), 276 (Def. Opposition to Permanent Injunctive Relief), 364 (Def. Post-Trial Mem.), 365 (DOJ Statement of Interest), 367 (Pl. Post-Trial Mem.); Ligon, ECF Nos. 108 (Pl. Post-Hearing Br. on Remedial Relief), 109 (Def. Br. on Remedial Relief), 112 (Def. Proposed Remedial Relief), 117 (Pl. Br. Concerning Def. Remedial Proposals), 118 (Def.
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Reply Mem. on Remedial Relief). In the Injunction Order, the Court proposed specific changes to policies, procedures, supervision, and training and invited the parties to brief “whether the proposed relief is insufficient or too burdensome or otherwise inappropriate.” 925 F. Supp. 2d at 543. The parties briefed the issues over the next several months, and in a filing dated April 11, 2013, the City indicated that although it intended to appeal the Injunction Order, it did not object to the remedial measures. Def. Br. on Remedial Relief, Ligon, ECF No. 109.
Because of “overlapping [remedial] issues raised in the three cases,” on January 31, 2013, the Court held a joint hearing in Floyd, Ligon, and Davis v. City of New York, 10 Civ. 699 (S.D.N.Y. filed Jan. 28, 2010)—another putative class action challenging stop-and-frisk tactics in and around New York City public housing. Jan. 31, 2013 Hearing Tr. at 6:13-21, Floyd, ECF No. 406. In addition to affirming the decision not to bifurcate the Floyd trial, the Court requested that the parties brief the scope of any remedial injunction that would follow, assuming plaintiffs proved liability at trial. Id. at 23:6-24. Thus, with respect to Floyd, the Court made clear that the liability and remedial issues would be tried together and that the Floyd and Ligon remedies would similarly be bound together.
Although the Unions seemed to have missed the Court’s cue that remedies were actively being considered as early as January 2013, another stakeholder got the message. On June 12, 2013, the DOJ submitted a “Statement of Interest” in Floyd. Floyd, ECF No. 365. The DOJ outlined the legal basis for and endorsed the appointment of a monitor if plaintiffs prevailed at trial. Id. The DOJ noted that while it “would have preferred to file this brief if, and only if, the Court finds that [p]laintiffs have met their burden to establish liability” in the Floyd trial, it recognized that “because the Court has denied [p]laintiffs’ requests to bifurcate the liability and remedy phases” of the Floyd trial, “the United States makes this filing at this time.” Id. at 1 n.1.
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This footnote speaks volumes. First, it shows that non-party stakeholders were aware that the Court was considering liability and remedial issues simultaneously and that the time to speak up had arrived. Second, it shows that earlier than August 2013, other stakeholders were aware that the appointment of an independent monitor was a significant possibility. Although the Unions now take issue with the appointment of a monitor, they do not explain why they sat on the sidelines while the parties and non-parties discussed this and other remedies.
v. Publicity It is uncontroverted that publicity surrounding a lawsuit may provide notice to potential intervenors that their interests are at issue. See NAACP, 413 U.S. at 366-67; see also In re Bank of New York Derivative Litig., 320 F.3d at 300 (shareholder-intervenors had notice of their interests where the lawsuit had been pending for more than two years and had “garnered no small amount of media attention”); Authors Guild v. Google, Inc., 74 Fed. R. Serv. 3d at 1488 (extensive media attention alerted intervenors of their interest in being included in the class). There is no dispute that the issues at the heart of Floyd and Ligon are matters of broad public concern that have generated significant media attention. Their predecessor, Daniels, and the DOJ’s investigation of the City at that time, were both triggered by the extensively publicized shooting death of Amadou Diallo, “an unarmed and law-abiding African immigrant . . . [who] was killed when four members of the [Street Crimes Unit] fired 41 bullets at him in the vestibule of his Bronx apartment building, striking him 19 times.” Compl. ¶ 40, Daniels, ECF No. 1; Shudofsky Decl. ¶ 2, Daniels, (Feb. 1, 2001), ECF No. 93. Once Daniels settled, the notice of settlement was widely published, and a public hearing was held at which no objections were made. Daniels, ECF No. 150; Dec. 12, 2003 Hearing Tr. at 5:22-24, Daniels, ECF No. 154.
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Similarly, the pretrial publicity surrounding Floyd and Ligon should have provided the Unions sufficient notice that their alleged interests might be implicated, as evidenced by the fact that several other non-party stakeholders requested to be heard by the Court. See, e.g., Charney Decl. Exs. J, K, M (news articles reporting on events in the Floyd and Ligon actions). For example, during the class certification debate, five non-profit groups and twenty-seven New York City Council members signed on to amicus briefs. As noted above, the DOJ submitted a Statement of Interest two months prior to the issuance of Liability and Remedial Orders to explain its views on the appointment of an independent monitor. Floyd, ECF No. 365. If these various stakeholders had sufficient notice of these cases, it is implausible that the Unions did not.
A highly publicized trial in Floyd occurred over the course of two months in which thirty police officers, ten sergeants, ten lieutenants, three captains, four deputy inspectors and seven inspectors testified regarding their job duties, workload, method of documenting and reviewing stops, and other subjects such as how officers are trained and supervised in stops-and-frisks and racial profiling. Def. Findings of Fact ¶¶ 23, 25-33, 43-49, Floyd, ECF No. 363; Pl. Findings of Fact ¶¶ 86-107, 122-136, Floyd, ECF No. 366. There was also testimony presented at trial that from 2010 to 2013, the Unions filed nine grievances against the NYPD alleging that officers were subject to adverse employment actions as a result of their failure to meet the same performance quotas that the Floyd plaintiffs were litigating. Floyd Trial Tr. 3399:21-3402:17; 6790:25-6791:3. Yet, at no point prior to or during the trial did the Unions move to intervene.
c. Conclusion: Constructive Notice Predates August 2013 In sum, the Unions should have known for years—but by March 8, 2013, at the latest— that their members’ alleged reputational interests and the Unions’ collective bargaining interests were being litigated by parties who were not invested in protecting those interests. Although
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courts generally accept as true an applicant’s well-pleaded, non-conclusory allegations on a motion to intervene, see Bay Casino, LLC, 199 F.R.D. at 466, this does not permit courts to turn a blind eye where the allegations are contradicted or unsupported by “credible” proof, see United Parcel Serv. of Am., Inc. v. The Net, Inc., 225 F.R.D. 416, 422 (E.D.N.Y. 2005), or are unproven by a “clear showing,” see United States v. Int’l Tel. & Tel. Corp., 349 F. Supp 22, 27 n.4 (D. Conn. 1972). The Unions’ claim that they first learned of their unrepresented interests in these actions in August 2013 is unconvincing because “there is evidence that [the Unions] should have known the suit[s] could impact [their] interests” long before. See Heartwood, 316 F.3d at 701. The Unions did not move to intervene when the Daniels settlement was proposed or implemented in 2004, and they did not request amicus status in order to provide comment. With regard to Floyd, the Unions did not move to intervene when the complaint was filed seeking the same relief the Unions now wish to place at issue, when the class was certified, or when the summary judgment motion was decided. The Unions also ignored the proceedings in Ligon and the pretrial proceedings in Floyd, where, as early as January 2013, the Court discussed the scope of the remedies under consideration for both cases and stated that the evidence related to remedies in Floyd would be presented at trial alongside liability evidence. Finally, the Unions let pass without comment March 8, 2013, the date when the City ceased representing the individual officers and was no longer required to consider their interests. The recitation of the histories of Daniels, Floyd, and Ligon demonstrates that the Unions’ delay should not be measured from August 2013, but rather from many months, if not years, earlier.
2. Prejudice to Existing Parties Although notice of an applicant’s unrepresented interest is important, it is not
dispositive. See NAACP, 413 U.S. at 365-66. Rather, “[i]t is firmly established that the most
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significant criterion in determining timeliness is whether the delay in moving for intervention has prejudiced any of the existing parties.” United States v. Int’l Bus. Machines Corp., 62 F.R.D. 530, 541-42 (S.D.N.Y. 1974) (citations omitted); see also Citizens for an Orderly Energy Policy, Inc. v. Suffolk Cnty., 101 F.R.D. 497, 501 (E.D.N.Y. 1984).
The Unions claim that Plaintiffs and the City will suffer no prejudice because the Unions only seek to participate in future proceedings, such as an appeal to the Second Circuit. Plaintiffs contend that intervention at this stage would be severely prejudicial, emphasizing a need for finality after five years (or fifteen counting Daniels) of resource-intensive litigation and the harm of delaying remediation of longstanding constitutional violations.
The prejudice to the Floyd plaintiffs and the City is self-evident. Plaintiffs have invested significant time and resources in these cases. After years of pretrial proceedings and a twomonth trial in Floyd, liability has been established against the City. Now the City has agreed to implement, in large part, the very reforms plaintiffs have been fighting for. Having prevailed to this extent, plaintiffs face significant prejudice if previously uninterested late-comers are permitted to prolong the legal wrangling and further delay plaintiffs’ hard-won relief.
For the City, the prejudice that may result from the Unions’ proposed intervention is twofold. The Unions seek an appeal the City no longer wants to pursue in order to vindicate a policy the City no longer wants to implement. The right to decide whether to settle a lawsuit against the City or to prosecute an appeal is vested in the City’s chief lawyer, the Corporation Counsel, and its chief executive, the mayor. Both have indicated that the City is poised to “end the years-long legal battle”12 and reform the NYPD’s stop-and-frisk practices that the Court found unconstitutional. Granting intervention would permit the Unions to infringe upon the
12 Press Release, “Mayor de Blasio Announces Agreement in Landmark Stop-and-Frisk Case,” Jan. 30, 2014, Charney Decl. Ex. L, Floyd, ECF No. 450-12.
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City’s prerogative to determine policing policy as manifested in its litigation strategy. Finally, both plaintiffs and the City are prejudiced to the extent the Unions seek to
represent the interests of officers who were previously defendants in Floyd. Some of the officers mentioned by name in the Liability Order were also defendants in this action. As discussed, these officer defendants consented to their dismissal from Floyd with prejudice. Thus, it would be highly prejudicial to allow the Unions to resurrect the alleged interests of officers who have already left the lawsuit. Rule 24 was not intended to create a revolving door where parties can come and go as litigation strategies shift.
3. Prejudice to Proposed Intervenors The Court finds no tangible prejudice to the Unions in denying their motions to intervene. As discussed below, the Unions assert no legally colorable interest, and even if they were allowed to intervene, they lack standing to appeal the Injunction, Liability, and Remedial Orders. 4. Conclusion: the Motions to Intervene are Untimely In light of the length of the delay, the Unions’ failure to offer any reasonable explanation, the significant prejudice to the Floyd plaintiffs and the City, and the lack of prejudice to the Unions, “intervention on the part of late-arrivers must yield” to the existing parties’ desire for finality. Farmland Diaries, 847 F.2d at 1044-45 (internal quotation marks omitted). Accordingly, the Unions’ motions to intervene are denied as untimely.13 Although the motions’ untimeliness is sufficient to justify denial of intervention, the Court also finds that the Unions lack any significant protectable interests in these actions, and even if they had such interests, the Unions lack standing to pursue the appeals they seek. The Court now turns to each of these issues. 13 For the same reasons, the Unions’ motions to intervene for the purpose of appealing the Injunction, Liability, and Remedial Orders are also denied as untimely under Rule 24(b). See NAACP, 413 U.S. at 365; United States v. New York, 820 F.2d at 557-58.
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C. Significant Protectable Interest Rule 24(a)(2) provides for intervention as of right where the applicant “claims an interest
relating to the property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a). Although the applicant “need not have an independent cause of action,” United States v. Palermino, 238 F.R.D. 118, 121 (D. Conn. 2006), the interest must be “a legal interest as distinguished from interests of a general and indefinite character.” Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995) (internal quotation marks omitted). “An interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule.” Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001) (citation and internal quotation marks omitted). Instead, it “must be direct, substantial, and legally protectable.” Bridgeport Guardians v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (citation and internal quotation marks omitted).
Here, the Unions allege interests in the liability phase of Floyd and the remedial phase of Floyd and Ligon. Although the Floyd liability phase ended when the Court issued the Liability Order, the Unions argue that they can vindicate their reputational interests by appealing the Liability Order. Similarly, although the Remedial Order has been issued, the Unions argue that their interests therein can also be vindicated on appeal. The Court turns first to the Unions’ interests in the merits, i.e., intervention for the purpose of appealing the Liability Order.
1. The Unions’ Alleged Interests in the Merits Plaintiffs in Floyd set out to prove the following at trial: (1) that each of the named plaintiffs had been stopped, questioned, and/or frisked on the basis of their race and without reasonable articulable suspicion, or would be in the future; and (2) that the stops that were or
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would be experienced by plaintiffs and all class members were the result of policies, customs, and practices of the City that encourage, sanction, and fail to prevent unconstitutional stops-andfrisks. Joint Pre-trial Mem. 6-7, Floyd, ECF 271. To prove or disprove these claims, plaintiffs and the City called many witnesses, including civilians, NYPD officers, senior NYPD officials, and experts and introduced volumes of documentary evidence. In particular, plaintiffs introduced evidence concerning nineteen individual stops, statistical evidence regarding the scope and pattern of 4.4 million stops during the relevant time period, and evidence concerning the NYPD’s awareness of and response to unconstitutional stops. On August 12, 2013, the Court issued the Liability Order in Floyd, holding that the City had a policy of conducting race-based, suspicionless stops-and-frisks that violated the Fourth and Fourteenth Amendments. In so doing, the Court made findings of fact and conclusions of law that assessed, credited, and discredited the testimonial and documentary evidence presented, including evidence regarding numerous NYPD officers, many of whom were involved in the nineteen stops. The Court also analyzed evidence with respect to plaintiffs’ claim that the NYPD was deliberately indifferent to the racial disparities in the 4.4 million stops discussed at trial and to the suspicionless nature of thousands of stops. The Court made no findings of liability against individual officers, but instead evaluated their testimony and conduct in the context of determining that the City had violated the Constitution.
The Unions claim an interest in the merits of Floyd based on alleged reputational harm to their members resulting from the Court’s findings that officers participated in, or contributed to, unconstitutional stops-and-frisks. The Unions argue that the Court erred in three ways: (1) in concluding that over an eight-year period, NYPD officers made at least 200,000 stops without reasonable suspicion; (2) in concluding that blacks are likely targeted for stops based on a lesser
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degree of objectively founded suspicion than whites; (3) and in relying “exclusively” on expert Jeffrey A. Fagan’s statistical analysis of UF-250 forms in finding that stops lacked reasonable suspicion. See PBA Mem. 5; SBA Reply Mem. 12. As a consequence, the Unions contend, the Liability Order “ha[s] chilled lawful and proactive police conduct” and “unfairly undermine[d] public confidence” in the NYPD. PBA Mem. 14.
Although the Court found only the City liable for the unconstitutional conduct, the Unions insist that the Court’s mere mention of incidents involving individual officers and its analysis of their behavior “impugned the integrity of thousands” of union members. PBA Reply Mem. 2. As such, the Unions urge that the Second Circuit must correct these errors and vindicate the reputation of all NYPD officers, especially those identified by name. Unless and until this happens, the Unions contend, public safety and officer safety will remain compromised because officers will be “uncertain[]” and “hesitant” in policing the streets. Alejandro Decl. ¶ 26; see also SBA Mem. 13-14. On appeal, the Unions will seek to invalidate the Injunction, Liability, and Remedial Orders in order to vacate the allegedly offensive findings.
Plaintiffs argue that the Unions’ alleged reputational interests are not cognizable on a motion to intervene. The purported reputational injury that might result from the Court’s finding that union members committed unlawful stops-and-frisks, Plaintiffs contend, is remote. Moreover, Plaintiffs note that the Liability Order lays blame for widespread unconstitutional stops on the City and the NYPD’s institutional indifference, not on the malice or intentional racism of individual officers. See Floyd, ECF No. 373 at 60-117, 177-92; Ligon, ECF No. 105 at 118-34. Plaintiffs argue, therefore, that to the extent reputations have been besmirched, it is the reputation of the City and the NYPD, not the Unions’ or their members’. Plaintiffs maintain that the Unions have no right to litigate the reputational interests of the City or its agency, the
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NYPD, where the City declines to do so on appeal. Furthermore, Plaintiffs contend that the Unions are incorrect in their claim that Plaintiffs’ pursuit of “injunctive relief against their members” creates a legally protectable interest. The Floyd plaintiffs’ claims for money damages against individual officer defendants were dismissed long ago, and plaintiffs seek only injunctive relief against the City. See Floyd, ECF No. 270.
With respect to the Unions’ interests in the merits, the Court agrees with Plaintiffs. The alleged reputational interests are not legally protectable, do not belong to the Unions, or are too conclusory and speculative to be colorable on a motion to intervene. Brennan, 260 F.3d at 129.
a. The Applicant’s Burden The burden to demonstrate a right to intervene, including a cognizable interest, is at all times on the applicant. See In re NASDAQ Market-Makers Antitrust Litig., 187 F.R.D. 465, 490 (S.D.N.Y. 1998); Diduck v. Kaszycki & Sons Contractors, Inc., 149 F.R.D. 55, 58 (S.D.N.Y. 1993). Here, the Unions frame their members’ alleged reputational interests in variety of ways:
 Court ordered “injunctive relief against . . . officers” provides an interest in the merits. PBA Mem. 13.
 The “allegations” or “findings” that officers “broke the law” impugns their integrity. SBA Mem. 13.
 Findings in the Liability Order that there was inadequate supervision, insufficient record-keeping, and a “culture of hostility,” “derogates the general practices and performance of” officers. Id.
 “[F]actual allegations of unconstitutional conduct that have already tarnished [officers’] careers.” SBA Reply Mem. 1.
 “[H]ighly injurious finding[s] that . . . officers had engaged in intentional racial discrimination.” PBA Mem. 2.
 Findings of “widespread constitutional violations, including intentional racial discrimination, impose upon them serious reputational harm.” Id. 22.
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 If findings of wrongdoing against sergeants mentioned by name– Sergeants Korabel, Kelly, Houlahan, Stukes, Telford, and Loria–are “conceded by the City on behalf of the NYPD and its officers,” it “would adversely affect the careers and lives of these SBA members, and cast doubt on the ability of other members to perform their duties effectively while avoiding similar accusations in the future, which in turn affects officer and public safety.” SBA Mem. 13-14.
In all variations listed, the Unions offer only conclusory allegations without any supporting factual details. See Hobson v. Hansen, 44 F.R.D. 18, 25 (D.D.C. 1968) (“[P]etitioners have an obligation to set forth their interest with clarity.”). Although courts generally accept as true an applicant’s well-pleaded, non-conclusory claims on a motion to intervene, see Bay Casino, LLC, 199 F.R.D. at 466, this does permit courts to turn a blind eye where the allegations are contradicted or unsupported by “credible” proof, see The Net, 225 F.R.D. at 422, or are unproven by a “clear showing,” see Int’l Tel. & Tel. Corp., 349 F. Supp. 27 n.4. See also Sch. Dist. of Philadelphia v. Pennsylvania Milk Mktg. Bd., 160 F.R.D. 66, 68 (E.D. Pa. 1995) (denying intervention where applicant did not sufficiently explain its interest beyond conclusory statements).
The Unions present no evidence of the “serious reputational harm” that their members have suffered or an explanation of how the findings are “highly injurious.” Nor do the Unions provide examples of how their members’ careers have been “tarnished,” “adversely affect[ed]” or how officer integrity has been impugned. Such bare allegations fail to provide an adequate description of the nature of the interests, making a meaningful Rule 24 analysis by the Court impossible. See Flynn v. Hubbard, 782 F.2d 1084, 1093 (1st Cir. 1986) (“[C]onclusory allegations do not entitle [a movant] to intervention as of right under Rule 24.”) (Coffin, J. concurring). The Unions, therefore, have not met their burden of propounding non-conclusory allegations regarding their interests. For this reason alone, their motions should be denied.
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Setting aside these insufficiencies, the Unions’ claim of protectable reputational interests in this litigation also fails because (1) they assert interests that do not belong to them or their members; and (2) to the extent the alleged interests do belong to their members, the interests are too indirect to be colorable on a motion to intervene. The Court addresses each issue in turn.
b. Interests that Belong to the City, Not the Unions or their Members The Unions contend that they have interests sufficient to warrant intervention because the Court ordered “injunctive relief against their members.” PBA Mem. 13. They are legally and factually mistaken. In truth, the Court found that the City violated the law by turning a blind eye to police officers’ use of unconstitutional stop-and-frisk tactics. Moreover, the court-imposed injunction runs against the City, which must change its policy; it does not run against the Unions or their members apart from their employment with the City. See Perry v. Schwarzenegger, 630 F.3d 898, 903-04 (9th Cir. 2011) (injunctive relief against government employer does not automatically give government employee right to intervene because injunction ran only against employer). It is uncontroverted that the interest Rule 24(a) requires “must be based on a right which belongs to the proposed intervenor rather than to an existing party to the suit.” Vazman v. Fidelity Int’l Bank, 418 F. Supp. 1084, 1086 (S.D.N.Y. 1976) (internal quotation marks omitted); see also United States v. South Fla. Water Mgmt. Dist., 922 F.2d 704, 710 (11th Cir. 1991) (“What is required is that the interest be one which the substantive law recognizes as belonging to or being owned by the applicant.”) (citation and internal quotation marks omitted); Walker v. Jones, 82 Civ. 2723, 1988 WL 73866, at *2 (D.D.C. July 1, 1988) (To justify intervention as a matter of right, the movant’s interest must be an independent right which belongs to the intervenor rather than an existing party to the action.). Vindicating the legality of City policy
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and City employee conduct is an interest that belongs to the City. That City employees happen to be members of a labor union does not alter or extinguish the City’s exclusive right to pursue its chosen litigation strategy. See, e.g., Orange Env’t Inc. v. County of Orange, 817 F. Supp. 1051, 1061 (S.D.N.Y. 1993), aff’d, 2 F.3d 1235 (2d Cir. 1993) (disagreement with an existing party’s litigation strategy does not confer a right for a non-party to intervene).
The Unions’ contention that all NYPD officers are besmirched by the Liability Order rests on the flawed assumption that anonymous officers who have not taken part in this litigation have a reputational interest arising from the Court’s finding against their employer. As a general matter, employees suffer no legally protectable reputational harm merely because their employer is found liable in a lawsuit. See, e.g., Mahoney v. Donovan, 824 F. Supp. 2d 49, 68 (D.D.C. 2011) (“[T]hat an employer has violated a law says nothing about the character or reputation of any particular employee.”) (internal quotation marks omitted). This principle derives from the law of agency, where an agent cannot suffer actionable injury based on a finding of liability against the principal. As articulated by the First Circuit, the mere fact “that Party A, in a suit against Party B, intends to introduce evidence that will indicate that a non-party, C, behaved improperly does not, by itself, make C a necessary party.” Pujol v. Shearson Am. Exp., Inc., 877 F.2d 132, 136 (1st Cir. 1989) (Breyer, J.).14 The court reasoned that, “[g]iven the vast range of potential insults and allegations of impropriety that may be directed at non-parties in civil litigation, a contrary view would greatly expand the universe” of parties. Id.
Pujol relied in part on the Seventh Circuit’s decision in Pasco International (London) Ltd. v. Stenograph Corp., 637 F.2d 496 (7th Cir. 1980). In Pasco, the complaint alleged that defendant conspired with plaintiff’s employee to induce a breach of contract with a potential 14 The Pujol court analyzed the agency issue on a Rule 19 joinder motion. However, as discussed above, the analyses required for Rule 24 intervention and Rule 19 joinder “mirror each other.” MasterCard, 471 F.3d at 390.
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customer and that plaintiff’s employee had “falsely disparage[ed]” plaintiff’s financial condition to the potential customer. Id. at 499. Defendant moved to dismiss on the ground that plaintiff failed to join an indispensable party—plaintiff’s own employee. The district court granted the motion, but the Seventh Circuit reversed. The Pasco court held that even though the action may potentially impact the employee’s business reputation, the employee was not an indispensable party under Rule 19 because “[a]ny agent will suffer some adverse consequences when his principal is held vicariously liable on account of the agent’s conduct, but this is not a sufficient interest.” Id. at 502; see also Milligan v. Anderson, 522 F.2d 1202, 1203-05 (10th Cir. 1975) (Although the “gist of the complaint was that [the absentee], acting as an agent for [the defendant], made false and fraudulent representations to the three plaintiffs,” the absentee was not indispensable because he “had no personal interest, as such, in the contract.”); Wylain v. Kidde Consumer Durables Corp. 74 F.R.D. 434, 436 (D. Del. 1977) (“Whenever a judgment is entered against the principal on account of his agent’s conduct, some adverse consequences to the agent may reasonably be expected, but it is clear, as a general matter, that the agent is not a necessary party under Rule 19(a)(2)(i).”); Household Retail Servs., Inc. v. CVS Sys., Inc., 95 Civ. 2862, 1996 WL 411497, at *4 (N.D. Ill. July 18, 1996) (“The ultimate wrongdoing to be proven is the wrongdoing as alleged by plaintiffs against [defendant]. The fact that in proving that ultimate issue plaintiffs will produce evidence of wrongdoing by non-parties . . . is not enough to necessitate [their] presence in the case.”).
Applied here, in the § 1983 context, the employee reputational harm problem is amplified. Under § 1983, a municipality may be liable not only for an official written policy but also for an unwritten policy. See Monell, 436 U.S. at 690-91; Cash v. Cnty. of Erie, 654 F.3d 324, 334 (2d Cir. 2011). Where, as here, the § 1983 claims are based on an unwritten
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policy owing to the City’s deliberate indifference to its employees’ conduct, liability necessarily turns on an analysis of that conduct. A court has no choice but to assess police officer behavior in Floyd, Ligon, and any other species of deliberate indifference Monell claim. The Unions maintain that their members, in their capacity as employees of the NYPD, have been disparaged and have had their integrity impugned by the finding of liability against their employer. But NYPD officers, as employees, are agents of the City, who do not automatically have a reputational interest in a judgment against their principal. The stigma they allege— having their conduct evaluated in a judicial opinion—is not actionable on a motion to intervene because it is a necessary consequence of proving liability against the principal, the City. To hold otherwise, as then-Circuit Judge Breyer observed, “would greatly expand the universe” of parties entitled to intervention. Pujol, 877 F.2d at 136.
By asserting, as the Unions have, that the Court’s injunction runs against union members, separately and distinctly from the City, the Unions presume that police officers have authority or discretion to conduct stops-and-frisks independent of the directives of their employer, the NYPD. That is incorrect. To be sure, police officers are unique among municipal employees in that their daily interactions with the public require them to make split-second decisions that implicate the Constitution. However, these decisions are based on training and guidance provided by their municipal employer, not the officers’ personal views or analysis of the law. Because officers have no authority or discretion independent of that which the City delegates to them, it cannot be said that they have been enjoined, separately and apart from the City. See Vives v. City of New York, 524 F.3d 346, 357 n.9 (2d Cir. 2008) (“When an official’s discretionary decisions are constrained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality.”) (quoting St. Louis v. Praprotnik, 485
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U.S. 112, 127 (1988)). When the City makes the changes to supervision, training, and monitoring required by the Remedial Order, NYPD officers will, as a practical matter, implement the injunction because they will be prohibited from engaging in conduct held to be unconstitutional. This does not, however, give the officers or their Unions an interest in defending that conduct on appeal; that interest belongs to the City alone.
Finally, with respect to the “safety interests” asserted by the Union, they also belong exclusively to the City. The Unions argue that the concession of liability “by the City on behalf of the NYPD and its officers would adversely affect the careers and lives of these [union] members, and cast doubt on the ability of other members to perform their duties effectively while avoiding similar accusations in the future, which in turn affects officer and public safety.” SBA Mem. 14. Public safety and effective policing are the prerogatives of the City. See Pennsylvania v. Rizzo, 530 F.2d 501, 505 (3d Cir. 1976) (There is a presumption of adequate representation of interests where a governmental body charged by law with representing the interests of the absentee is present in the lawsuit.). The only evidence offered by the Unions of the alleged connection between reputational harm and officer and public safety consists of the September 27, 2013 affidavit of Officer Joseph Alejandro, a twenty-nine -year veteran of the NYPD and the treasurer of the PBA. Alejandro states that the Liability and Remedial Orders have caused “substantial confusion” and “many officers are hesitant to initiate stops . . . [,] even if the circumstances suggest potential criminal activity[,] in light of the uncertainty created by the district court’s decision . . . . Given the realities of day-to-day field work, police officers secondguessing themselves during the stop, question and frisk procedure threatens the public and their safety.” Alejandro Decl. ¶¶ 25-27. Alejandro is expressing the understandable concern that until the NYPD introduces the remedial measures officers may be temporarily unsure of the rules
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governing street encounters with civilians. As with any court decision that interprets and clarifies the law applicable to police procedures, it is the obligation of the City, through its agency the NYPD, to provide the training that will resolve questions that officers may have about how to handle stops. Thus, “officer safety” is really a restatement of the Unions’ generalized interest in effective policing shared by all New Yorkers. That interest belongs to the City, not the Unions, and union members have no independent interest in these issues separate from their municipal employer.
c. Indirect Interests Alleged by the Unions Next, even assuming the Unions could assert reputational interests on behalf of their members, these interests are too far removed from “the property or transaction that is the subject of the action” to support intervention. Pitney Bowes, 25 F.3d at 70. The central issue in this litigation is whether the City had an unconstitutional stop-and-frisk policy; that the Unions or their members feel demeaned by having been mentioned in court proceedings regarding that topic is insufficient to support their intervention because it is too detached from the subject of the actions. Absent allegations of detriment arising from the subject matter of the lawsuit, courts are generally skeptical of allowing intervention based on such indirect reputational harm. See, e.g., Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 798, 798 n.10 (7th Cir. 2013), cert. denied, 134 S. Ct. 1026 (2014) (expressing skepticism that the Rule 24 applicant’s asserted interests—his personal and professional reputation, his ability to earn a living as a financial advisor, and his CFA credential—are direct, significant legally protectable interests); Flynn, 782 F.2d at 1093 (a Rule 24 applicant who “merely claims a generalized injury to reputation, but identifies no legal detriment arising from a default judgment” should not be permitted to intervene) (Coffin, J. concurring); Edmondson v. Nebraska, 383 F.2d 123, 127 (8th Cir. 1967)
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(holding that injury to reputation does not constitute legal detriment necessary to justify intervention); Morgan Keegan & Co., Inc. v. Garrett, 848 F. Supp. 2d 691, 693 (S.D. Tex. 2012) (non-party reputational harm from district court’s findings is insufficient grounds to permit intervention because the non-party “was not punished by the court[,] . . . [the court] imposed no obligation on him . . . [and] [e]valuation of testimony is not a sanction.”); Mac Sales Inc. v. E.I. Dupont de Nemours, 89 Civ. 4571, 1995 WL 581790, at *2-3 (E.D. La. Sept. 29, 1995) (same); Calloway v. Westinghouse Elec. Corp., 115 F.R.D. 73, 74 (M.D. Ga. 1987) (same).
In the Rule 19 mandatory joinder context, courts have similarly held that reputational harm is insufficient to make an absent party necessary to an ongoing action.15 See, e.g., Pujol, 877 F.2d at 136 (“[C]ases interpreting Rule 19 consistently hold that such “slandered outsiders” need not be joined.”) (citing Challenge Homes, Inc. v. Greater Naples Care Center, Inc., 669 F.2d 667, 668-71 (11th Cir. 1982)); Milligan, 522 F.2d at 1203-05; Wylain, 74 F.R.D. at 436-37; Willis v. Semmes, Bowen & Semmes, 441 F. Supp. 1235, 1245 (E.D. Va. 1977).
Where Second Circuit courts have addressed reputational harm as a basis for intervention under 24(a), they have also rejected it when the reputational harm was not directly related to the underlying action. See, e.g., Sierra Club v. U.S. Army Corps. of Eng’rs, 709 F.2d 175, 176 (2d Cir. 1983) (intervenor’s interest in professional reputation not related to merits of underlying action); New York News Inc. v. Newspaper & Mail Deliverers’ Union of New York, 139 F.R.D. 291, 293 (S.D.N.Y. 1991), aff’d sub nom. New York News, Inc. v. Kheel, 972 F.2d 482, 486 (2d Cir. 1992) (same).
In this case, the Unions allege no detriment to their members, legal or otherwise, flowing 15 The parallel between the interest required by Rules 19 and 24 is widely recognized. MasterCard, 471 F.3d at 389-90. If a party is not “necessary” under Rule 19, then it cannot satisfy the test for intervention as of right under Rule 24, because “[t]hese rules are intended to mirror each other.” Id.
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from the purported reputational harm. Although they state generally that officers’ “careers have been tarnished,” there are no examples of officers having been fired, demoted, denied promotions, reprimanded, disciplined, or having lost pay or pensions. SBA Reply Mem. 1. Similarly, the Unions claim that the reputational injury has undermined officers’ ability “to perform their duties effectively,” but provide no description of how police interaction with the public has been altered or hampered. SBA Mem. 14.
In addition, the officers identified by name will suffer no future adverse legal consequences arising from the Liability Order. First, as for the following former individual defendants in Floyd, Officers Rodriguez, Goodman, Hernandez, Joyce, Pichardo, Salmeron, Hayes, Moran, Sergeant Kelly, and the Jane and John Doe officers, plaintiffs are barred from bringing lawsuits against them because plaintiffs “withdr[e]w the [i]ndividual [d]amage [c]laims, with prejudice, against all defendants against whom such [c]laims were asserted or could have been asserted.” Stipulation and Order ¶¶ 1, 4, Floyd, ECF No. 270.16 Second, with respect to all officers identified by name, because over five years have passed since the events described in the Liability Order occurred, the statute of limitations has already run. See Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995) (the statute of limitations for § 1983 actions in New York is three years). Even if the time to sue had not expired, to the extent an officer would face any legal proceeding arising from the behavior mentioned, that proceeding would be based on the conduct itself, not the Liability Order. Thus, it is implausible that officers mentioned by name in the Liability Order, or NYPD officers more generally, have suffered or will suffer any legal detriment.
16 To the extent the Unions seek to protect the reputational interests of Officers Rodriguez, Goodman, Hernandez, Joyce, Pichardo, Salmeron, Hayes, Moran, Sergeant Kelly, they are barred from doing so. The Unions cannot argue for the reinstatement of individuals who were once defendants in the action (represented by counsel) and who consented to their own dismissal with prejudice. See Floyd, ECF No. 270. Dismissal with prejudice would be meaningless if courts were to permit dismissed parties to rejoin the case under Rule 24.
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Moreover, even if named non-party officers could assert a legal detriment, their status as participants in the judicial process also prohibits the Unions from intervening on their behalf. Courts have uniformly held that the reputational interests of non-party participants, such as witnesses, cannot support the witness’ intervention in the case as a party. See, e.g., Grochocinski, 719 F.3d at 798 n.10; Garrett, 848 F. Supp. 2d at 693; Mac Sales Inc., 1995 WL 581790, at *2-3; Calloway, 115 F.R.D. at 74. In each case, a witness sought to intervene as a party in order to correct a reputational injury suffered as a result of the court’s review of their testimony. In Grochocinski, the Seventh Circuit reasoned that “[j]udges and juries must often evaluate the conduct and credibility of people and institutions that are not parties. Judges’ findings and comments are often critical of non-parties, not gratuitously but as a necessary part of deciding the cases properly before them.” Grochocinski, 719 F.3d at 798 n.10. Garrett reasoned similarly that, “[i]n the course of a case, the court is obliged to decide things, and these decisions may reflect poorly on the parties, witnesses, and other people who were part of the factual basis for the suit. Crisp rulings that displease the object of them are a necessary friction of litigation.” Garrett, 848 F. Supp. 2d at 693. A person cannot intervene “because their testimony is found to have been anything from weak to false . . . whether the witness is a party, observer-participant, or after-the-fact technician.” Id. “To hold otherwise would transform every proceeding that involved a determination of a witness’s credibility into an invitation to intervene.” Mac Sales Inc., 1995 WL 581790, at *3. “Rule 24(a)(2) was not designed to provide a forum for witnesses in the underlying action to protect their reputation in the community.” Calloway, 115 F.R.D. at 74. Moreover, “[t]o hold that the prospect of a judge’s adverse finding or comment could support intervention as a party, with rights to appeal, for example, even if the original parties are satisfied with the outcome, would amount to a stunning expansion of standing
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and would invite prolonged and even endless litigation.” Grochocinski, 719 F.3d at 798 n.10.
The reasoning of these cases applies with equal, if not greater, force here. To resolve the
§ 1983 Monell claims raised in Floyd and Ligon, the Court was required to evaluate the behavior
and credibility of NYPD officers, including their testimony and other evidence presented about
their conduct. As in Grochocinski, the original parties are satisfied with the outcome, but instead
of witnesses proposing intervention, the unions to which those witnesses belong are asserting
their alleged interests. Thus, intervention under these circumstances would lead to an even more
stunning outcome. Any NYPD officer whose testimony is discredited or criticized in a judicial
opinion could play the reputational-harm card and intervene as of right. Consider the interests of
those officers who testified in support of plaintiffs’ claims. Given that an appellate court might
undo the Liability Order’s findings that credited their testimony and vindicated their behavior, on
the Unions’ theory, should not these officer-witnesses enjoy the right to ensure that the Liability
Order is not reversed? More disturbing yet, if the Unions are permitted to intervene based on an
amorphous “reputational harm” or “tarnished career” theory, the Court would be inviting endless
litigation whenever the City is sued for police misconduct. The Court would be handing the
Unions an unprecedented bargaining chip and a limitless check on elected officials’ prerogative to control the City’s litigation strategy.17 The City would have to seek union approval, or risk
17 The Court takes judicial notice of two news reports cited in Plaintiffs’ opposition papers, in which the presidents of the CEA and SBA state that they would consider dropping their efforts to appeal if Mayor de Blasio were willing to make a suitable offer in their ongoing contract negotiations. See Charney Decl. Exs. N, O. The CEA president is quoted as saying that the CEA’s involvement in the stop-and-frisk litigation is “something that you bring to the bargaining table.” Charney Decl. Ex. N. On a motion to intervene, the Court has a duty to review not only the movant’s allegations, but also the opposition’s. See Stadin v. Union Elec. Co., 309 F.2d 912, 917 (8th Cir. 1962). The Unions do not dispute the reports and instead urge that they demonstrate that change to policing policy should occur “not through a collusive agreement between the City and Plaintiffs” but through bargaining that includes the Unions. PBA Rep. 9 n.6. This, of course, ignores that fact that the Remedial Order is a court order resulting from protracted litigation during which the Unions made no effort to assert their views, not a
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prolonged litigation, in order to settle § 1983 lawsuits. Such a result cannot be justified. d. United States v. City of Los Angeles
When examined closely, the primary case relied upon by the Unions, United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002), provides no refuge. The Unions cite City of Los Angeles for the proposition that allegations of misconduct against police officers give police unions a right to intervene on their behalf in the merits of an action. This is a misreading of its holding. There, the DOJ commenced a civil suit against the City of Los Angeles, the Board of Police Commissioners of the City of Los Angeles, and the Los Angeles Police Department (the “LAPD”), alleging they had engaged in a pattern or practice of depriving individuals of constitutional rights in violation of 42 U.S.C. § 14141. Id. at 396. The lawsuit focused on the LAPD’s Rampart Division and, in particular, the anti-gang unit known as Community Resources Against Street Hoodlums (“CRASH”), which, according to the testimony of a former LAPD officer, had engaged in widespread misconduct and corruption.18 Id. Although no individual officers were named as defendants, the complaint alleged that LAPD officers had “subject[ed] individuals to uses of excessive force, false arrests, and improper searches and seizures.” Compl. at 2, United States v. City of Los Angeles, No. 00 Civ. 11769 (C.D. Cal. Nov. 3, 2000), Docket No. 1. Before initiating the formal lawsuit, the DOJ and the City of Los Angeles negotiated a resolution to address the underlying violations. City of Los Angeles, 288 F.3d at 396. Thus, a “Joint Application to Enter Consent Decree” was filed alongside the complaint.19
negotiated settlement between Plaintiffs and the City. 18 The officer’s testimony led to the “Rampart Scandal,” which exposed system-wide constitutional violations that “ultimately implicated scores of police officers, overturned dozens of convictions, and generated intense media scrutiny.” Harper v. City of Los Angeles, 533 F.3d 1010, 1015 (9th Cir. 2008); see also Rodriguez v. Gates, 99 Civ. 13190, 2002 WL 1162675, *2 (C.D. Cal. May 30, 2002) (“To date, more than 150 suits have been filed alleging civil rights violations connected to the Rampart Division scandal.”). 19 It is not uncommon for 42 U.S.C. § 14141 cases to commence with the filing of a complaint
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Within weeks, the PPL, the designated bargaining unit for rank and file LAPD officers, moved to intervene alleging an interest in both the merits and remedial phases. Order Denying Mot. to Intervene at 8-9, City of Los Angeles, No. 00 Civ. 11769 (C.D. Cal. Jan. 5, 2001), Docket No. 58. The PPL argued that it had an interest in the merits of the case because, by ordering officers to “refrain from engaging in a pattern or practice of conduct including excessive force, false arrests, and improper searches and seizures[,]” the proposed consent decree subjected PPL members “to potential contempt of Court if the prospective injunction is violated.” Id. at 8 (alteration in original) (internal quotation marks omitted). The district court disagreed, holding that the injunction, by its plain language, ran only against the City of Los Angeles, not the PPL or its officers. Id. at 8-9. Thus, once approved, only the City could be punished for violating its terms. Id. at 8 n.3. The district court also held that the PPL had a significant protectable interest in the remedial phase, “to the extent the Proposed Decree would modify or invalidate the [collective bargaining agreement],” but determined that the Proposed Decree did not actually threaten those rights because of certain procedural safeguards. Id. at 10-11.
The Ninth Circuit disagreed. Although generally, the injunction in the proposed consent decree ran against the City alone, the conclusion that officers themselves could face no liability under it presumed that the proposal would actually be approved without changes. City of Los Angeles, 288 F.3d at 399. This presumptiveness marred the district court’s intervention analysis, and the Ninth Circuit instead emphasized that the complaint’s allegations of misconduct against officers could continue to be litigated, exposing those officers to future liability.20 Not only was the consent decree merely a proposal, but the federal government plaintiff did not “unequivocally and a consent decree. See Marshall Miller, Note: Police Brutality, 17 Yale L. & Pol’y Rev. 149, 186 (1998) (“[T]he Justice Department appears to have adopted an initial § 14141 strategy of investigation and negotiation, opting to pursue consent decrees rather than litigated judgments.”). 20 In all likelihood, many officers did face subsequent criminal or civil liability in connection with the underlying behavior covered by the complaint’s allegations. See note 18 supra.
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and completely disclaim the remedies sought in its complaint against the [PPL’s] member officers,” rather, it had only agreed that those officers would not be subject to liability if the court were to approve the consent decree. In addition, the consent decree contained a provision allowing the United States to seek its dissolution in certain circumstances and litigate the action on the merits. Thus, there remained the possibility that individual officers, who were not named defendants but whose conduct was placed at issue by the complaint, could face liability. Moreover, because there was a “marked divergence of positions concerning . . . underlying theories of liability,” the existing parties, particularly the City of Los Angeles, which presumably wanted to distance itself from the “Rampart Scandal,” could not be counted on to adequately represent the officers’ interests. Id. at 402.
Although the Unions reduce City of Los Angeles to the proposition that allegations of police misconduct give police unions the right to intervene, the holding is more nuanced. The Ninth Circuit held that a police union had a right to intervene in the merits on behalf of its members where members had been accused of misconduct, they could still face liability based on that misconduct, and the existing municipal defendant had no interest in defending the conduct. Id. at 399-402. The circumstances of the Unions’ proposed intervention in Floyd and Ligon bear little resemblance to City of Los Angeles. The Ninth Circuit did not mention abstract reputational harm as a justification for intervention. Nor did the Ninth Circuit discuss the right of unions to protect their members’ reputations that may be implicated in the course of a lawsuit where they were witnesses. Instead, the PPL’s intervention was based on the real possibility that, although they were not named as defendants and no existing party was looking out for their interests, the PPL’s members could face liability down the road.
Union members here face no possibility of liability based on their conduct having been
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evaluated in the Liability Order. As discussed, the Floyd plaintiffs, who were certified to represent a class, gave up their claims for damages “against all defendants against whom such [c]laims were asserted or could have been asserted,” when the Court dismissed the individual officer defendants from the case on March 8, 2013. Stipulation and Order ¶ 1, Floyd, ECF No. 270. In addition to the plain language of the order of dismissal, any future § 1983 claim based on findings in the Liability Order would be barred by the three-year statute of limitations. See Owens v. Okure, 488 U.S. 235, 251 (1989) (applying the three-year statute of limitation found at N.Y. C.P.L.R. § 241(5) to § 1983 claims in New York). Moreover, any potential lawsuit would be based on the officers’ underlying behavior, not on the fact that the Court wrote about it in the Liability Order. Unlike City of Los Angeles where the existing municipal defendant had every reason to distance itself from the officers’ conduct, here, there was no such divergence of interests between the City and the individual officer defendants prior to the date when they were dismissed as defendants in Floyd.21
e. Conclusion: the Unions Have No Cognizable Interests in the Merits In sum, the abstract reputational harm asserted by the Unions is not a significant protectable “interest relating to the property or transaction that is the subject of the action.” Fed. R. Civ. P. 24(a). The Unions’ allegations are conclusory, and the interests alleged do not belong to the Unions to protect or vindicate. Where the alleged reputational injury does belong to a union member, the detriment flowing from that harm is too speculative or remote. Based on the circumstances here, where the Unions purport to represent the interests of individuals who were witnesses, deponents, or otherwise participants in the judicial process, they cannot assert a
21 As discussed supra, the Corporation Counsel may represent the City and an individual officer as co-defendants, as in Floyd, only if it is satisfied that their positions are aligned, i.e., that the officers were acting within the scope of their employment and there is no conflict of interest in the representation. N.Y. Gen. Mun. Law § 50-k; see also Mercurio, 758 F.2d at 864-65.
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reputational injury arising from the Court’s evaluation of their testimony or conduct. Similarly, as employees, union members have suffered no actionable reputational harm arising from the fact that their employer was found to have broken the law. Having determined that the Unions’ motions are untimely and that the Unions lack an interest in the merits of this litigation, the Court need not address the balance of the Rule 24(a) analysis—whether the disposition of the litigation may practically impair the Unions’ ability to protect their members’ interests or whether the existing parties adequately represent them. Pitney Bowes, 25 F.3d at 70.
2. The Unions’ Alleges Interests in the Remedies The Remedial Order directs the City to remedy the violations identified in Floyd in two phases: immediate reforms and ongoing equitable relief. Floyd, 959 F. Supp. 2d 668. During the first phase, the court-appointed monitor must develop “Immediate Reforms,” in consultation with the parties, including changes to “the NYPD’s policies, training, supervision, monitoring and discipline” regarding stop-and-frisk. Id. at 678-84. The Remedial Order also requires the City to conduct a one-year pilot project in which officers in one precinct per borough will wear body cameras on patrol. Id. at 685. After the Immediate Reforms are approved by the Court, the City and Plaintiffs must engage in a six to nine month “Joint Remedial Process,” guided by a court-appointed facilitator, to develop “Joint Process Reforms” in consultation with the monitor and based on input from a variety of stakeholders, including “NYPD personnel and representatives of police organizations.” Id. at 684-88. In Ligon, the Remedial Order largely adopts the approach proposed in the Injunction Order. In particular, the NYPD must create and disseminate to officers a court-provided written policy on the legal standard for trespass stops around TAP buildings. Id. at 688. The NYPD, in conjunction with the Ligon plaintiffs, the City, and under the supervision of the monitor, must
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develop a system for monitoring the constitutionality of TAP stops, and for ensuring that UF250s are completed for each stop. The NYPD must also make changes to departmental training regarding TAP stops. Id. at 688-90.
The Unions assert an interest in the possibility that the Remedial Order will “set employment practices that would otherwise be subject to bargaining under state law.” PBA Mem. 14. In particular, the Unions are concerned that the Remedial Order contemplates the introduction of body cameras for some officers, changes to police training, changes to the UF250 form and other mandatory paperwork, and changes to disciplinary and supervisory policies regarding stops-and-frisks. Thus, the Unions seek intervention in order to vindicate those interests by appealing the Remedial Order to the Second Circuit.
Plaintiffs respond that the Unions’ alleged interest rests on their misapprehension of the CBL. In particular, Plaintiffs dispute the Unions’ claim that the matters covered by the Remedial Order are within the scope of the mandatory bargaining topics under the CBL. Plaintiffs argue that none of the relief spelled out in the Remedial Order infringes upon the Unions’ bargaining rights. They argue, therefore, that the Unions have no direct, substantial, and legally protectable interest in the Remedial Order.
The Court agrees that the Unions have failed to demonstrate a significant protectable interest in appealing the Remedial Order. There are two problems with the Unions’ position. First, the Unions’ allegations regarding their collective bargaining interests are so conclusory as to evade any meaningful court analysis. Second, the Unions overstate their rights and misapply the CBL to those rights.
a. The Applicant’s Burden “[P]etitioners have an obligation to set forth their interest with clarity.” Hobson, 44
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F.R.D. at 25. Here, the Unions’ general claim is that provisions of the Remedial Order involve
“mandatory subject[s] of collective bargaining.” SBA Mem. 1. As such, they object generally to
the changes in “existing policies, training, discipline, equipment, and supervision” because
“[t]hose matters will directly affect the Unions’ members in their day-to-day activities and
collective bargaining rights.” PBA Mem. 18. To the extent there are any specifics allegations,
the Unions assert that their rights will be impacted by:
 Changes to the UF-250 form to the extent they will (1) require officers to fill-out a narrative explaining why they stopped and/or frisked someone; (2) require officers to fill out revised check boxes to account for why they stopped and/or frisked someone; (3) require officers to provide a copy of the form, their names and badge numbers, and information on how to file a complaint to individuals who are stopped and/or frisked but let go; (4) require supervisors to review stops and address their effectiveness and constitutionality; and (5) require additional training, supervision, and monitoring that will come with the introduction of the revised forms. See PBA Mem. 16-17.
 Introduction of body cameras to be worn, implicating officer safety, public safety, privacy and discipline. Id. 17.
 Changes to the “procedural aspects” of the NYPD’s Quest for Excellence Program. Id. 16.
 Introduction of a court-appointed monitor and a facilitator who will likely make decisions that generally touch upon training, supervision, monitoring and discipline. Id. 7-8.
 A directive to improve procedures for disciplining officers in response to CCRB findings of substantiated misconduct. Id. 17.
However, the Unions fail to explain how any of the listed changes will impact the scope of their
CBL rights or any provision of a current collective bargaining agreement.
The relevant question is what could the Unions bargain over the day before the Remedial
Order was issued that they will no longer be able to bargain over once it is implemented? The
answer to that question demands more particularity than providing a list of changes. See
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Sheppard v. Phoenix, 91 Civ. 4148, 1998 WL 397846, at *5 (S.D.N.Y. July 16, 1998) (denying intervention where movants, who alleged that their collective bargaining rights were harmed, “neither refer to any specific provision of their labor contract with the City nor attach a copy of the contract, or any portions of it, to their papers”). The Court does not doubt that the Remedial Order will change daily practices related to stops-and-frisks; change, after all, was the point of ordering the NYPD to remedy the unconstitutional violations identified by the Court. But the Unions fail to explain how the Remedial Order will prevent or limit them from doing something they currently have the right to do. “Such conclusory allegations . . . do not entitle [a movant] to intervention as of right under Rule 24.” Flynn, 782 F.2d at 1093. It is the Unions’ burden to demonstrate a right to intervene, and having put forth only conclusory allegations regarding their collective bargaining rights, they have not met their burden.22
b. Scope of the CBL The Unions’ have also failed to identify any state law demonstrating that they have a right to bargain over the listed changes. In New York, the Taylor Law governs public employment labor relations. N.Y. Civ. Serv. Law § 200 et seq. Section 212 of the Taylor Law provides that localities may enact their own public labor relations statutes and create their own administrative bodies to administer their statutes. The City has created a tri-partite administrative body composed of labor, management, and the New York City Board of Collective Bargaining (the “BCB”). New York City Charter, Chapter 54, § 1171. The BCB interprets and administers the City’s local public labor relations statute, the CBL (N.Y.C. Admin.
22 The Court notes that excerpts from “the most recent” collective bargaining agreement between the City and the PBA are attached to the PBA’s reply brief. Engel Decl. ¶ 3, Ex. A, Floyd, ECF No. 454-1. The Unions, however, offer no explanation about how the Remedial Order would affect the agreement. The portions of the agreement attached cover procedures for employees to file grievances against the NYPD for labor law violations and death benefits, neither of which are the subjects of the Remedial Order.
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Code §§ 12–301 et seq.), as well as applicable provisions of the Taylor Law.
CBL § 12-309(a)(2) authorizes the BCB to determine whether a matter is within the
scope of collective bargaining. The BCB may find: (1) that the matter is a mandatory subject of
collective bargaining, meaning the employer and union must bargain in good faith regarding the
matter; (2) that the matter is a permissive subject of collective bargaining, meaning the parties
may, but are not required to, negotiate concerning the matter; or (3) that the matter is a
prohibited subject of collective bargaining, meaning that the parties are not permitted to
negotiate over the matter. See Incorporated Vill. of Lynbrook v. N.Y. State Pub. Empl. Relations
Bd., 423 N.Y.S.2d 466, 467 n.1 (1979). The BCB has exclusive, primary jurisdiction to make
this determination, although its decisions are subject to judicial review. See Uniformed
Firefighters Ass’n of Greater New York v. City of New York, 581 N.Y.S.2d 734, 735 (1992).
In determining whether a matter is a mandatory subject of bargaining, the BCB must
consider the “management rights” provision of the Administrative Code:
a. Subject to the provisions of subdivision b of this section . . . public employers and certified or designated employee organizations shall have the duty to bargain in good faith on wages . . . hours . . . working conditions and provisions [regarding union dues] . . . .
b. It is the right of the city, or any other public employer, acting through its agencies, to determine the standards of services to be offered by its agencies; determine the standards of selection for employment; direct its employees; take disciplinary action; relieve its employees from duty because of lack of work or for other legitimate reasons; maintain the efficiency of governmental operations; determine the methods, means and personnel by which government operations are to be conducted; determine the content of job classifications; take all necessary actions to carry out its mission in emergencies; and exercise complete control and discretion over its organization and the technology of performing its work. Decisions of the city or any other public employer on those matters are not within the scope of collective bargaining, but, notwithstanding the above, questions concerning the practical impact that decisions on the above matters have on terms and conditions of employment, including, but not limited to, questions of workload, staffing and employee safety, are within the scope of collective bargaining.
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N.Y.C. Admin. Code § 12–307(a), (b). Thus, matters covered by § 12–307(a) are generally mandatory subjects of collective bargaining about which the parties must negotiate, whereas matters covered by the “management rights” provisions of § 12–307(b) are generally either permissive subjects (about which the parties may, but are not required to, negotiate) or prohibited subjects (about which the parties may not negotiate).
As is evident from the plain language of the statute, the contested changes brought on by the Remedial Order are covered by the management rights provisions of § 12–307(b), which include, changes to training, discipline, equipment, and supervision. In fact, when read in its entirety, the CBL delegates to the City broader powers with respect to the Remedial Order than the Unions acknowledge. On the one hand, the CBL limits the scope of collective bargaining to the “terms and conditions of employment.” Id. On the other hand, with no input from the Unions, the City has the power to “determine the standards of services to be offered,” “direct its employees,” “take disciplinary action,” “maintain the efficiency of governmental operations,” “determine the methods, means and personnel by which government operations are to be conducted,” “determine the content of job classifications,” and “exercise complete control and discretion over its organization.” Id. Accordingly, “[d]ecisions of the [C]ity or any other public employer on those matters are not within the scope of collective bargaining.” Id. As interpreted by the New York Court of Appeals, “decisions are not bargainable as terms and conditions of employment where they are inherently and fundamentally policy decisions relating to [its] primary mission.” In re County of Erie v. PERB, 12 N.Y.3d 72, 78 (2009) (citation and internal quotation marks omitted). For police departments in particular, “[a]s long ago as 1888,” the New York Court of Appeals, “emphasized the quasi-military nature of a police force, and said that ‘a question pertaining solely to the general government and discipline of the force . . . must, from
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the nature of things, rest wholly in the discretion of the commissioners.’” In re PBA v. PERB, 6 N.Y.3d 563, 576 (2006) (citation omitted).
c. Application of the CBL to the Remedial Order Here, the changes to stop-and-frisk policies, procedures, supervision, training, and monitoring outlined in the Remedial Order are precisely the kind of management prerogatives courts have held are not subject to collective bargaining. See, e.g., Sheppard, 1998 WL 397846, at *7-9 (denying union’s application for intervention where settlement provisions were covered by management rights provisions of § 12-307(b)); City of New York v. MacDonald, 201 A.D.2d 258, 259 (1st Dep’t 1994) (finding that police discipline, “including the right to determine guilt or innocence of breach of disciplinary rules and the penalty to be imposed upon conviction,” is committed to NYPD commissioner and that City cannot be forced to bargain on this subject). The Unions have pointed to no contrary authorities which suggest that the City’s implementation of the Remedial Order risks straying into mandatory bargaining territory. The Unions respond that even though they have no right to bargain over policy, under § 12-307(b) they do have the right to bargain over the “practical impact” that the Remedial Order’s policy changes will have on the terms and conditions of their employment. See N.Y.C. Admin. Code § 12-307(b). This argument misses the mark. Even assuming the policy changes in the Remedial Order have a practical impact on terms and conditions, such as hours and wages—the explanation of which is absent from the Unions’ papers—nothing in the Remedial Order prevents the Unions from bargaining over these impacts. Moreover, the Unions provide no legal authority for the proposition that because a managerial policy change has practical impacts, unions have the right to bargain over the policy itself. If that were true, it would defeat the statute’s purpose in delineating management prerogatives as distinct from collective bargaining
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topics; every managerial policy change might have an attenuated “practical impact” on terms and conditions of employment, and thus, all managerial policy changes would be subject to collective bargaining.
Plaintiffs provide an instructive example. In the public education context, the fixing of class size falls within managerial prerogatives, but because it impacts teacher workload, the impact on teachers (e.g., whether compensation should vary according to class size) is subject to negotiation. West Irondequoit Teachers Ass’n v. Helsby, 35 N.Y.2d 46, 49-50 (1974). The same is true here. The CBL does not give the Unions the right to bargain over changes to stop-andfrisk policies, procedures, supervision, and training. Those decisions are managerial prerogatives. The Unions do, however, have the right to bargain over practical impacts, such as workload and pay that may result from the changes set forth in the Remedial Order.
d. The Unions’ Additional Objections The Unions raise several additional objections to the Remedial Order. They contend that “[w]ithout formal intervention, the [Remedial Order] would provide the [Unions] with no forum to ensure that they might object to any changes that would contradict the [collective bargaining agreement] or existing procedures subject to bargaining.” PBA Mem. 18. The Unions also argue that they “have a right to ask the [BCB] to make determinations regarding any of the myriad subject matters contemplated by the Remedi[al] Order and to appeal that determination where necessary, through the state courts or to the [PERB].” PBA Reply Mem. 7. Further, “because there is no finalized stipulation or consent decree regarding remedial measures before the Court, this Court cannot decide as a matter of law that the measures eventually implemented will not have collective bargaining ramifications.” SBA Reply Mem. 6. These collateral arguments, again, miss the mark.
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First, as discussed, the CBL does not give the Unions a right to decide which policy changes are on the menu, but rather, the authority to bargain over the prices. Second, there is no basis in law—and the Unions cite none—for the proposition that the Unions have a right to have a federal court’s remedial order vetted by the BCB before it is issued. In fact, the opposite is true. Federal courts have broad remedial powers to fix constitutional violations. Swann v. Charlotte–Mecklenburg Bd. of Ed., 402 U.S. 1, 15 (1971); Association of Surrogates & Supreme Court Reporters Within the City of New York v. New York, 966 F.2d 75, 79 (2d Cir. 1992) (“[F]ederal courts have broad discretion in fashioning equitable remedies for . . . constitutional violations.”). Finally, although the Unions repeatedly refer to the Remedial Order as a “consent decree,” “proposed settlement,” or “prospective consent decree,” see, e.g., PBA Reply Mem. 13; SBA Reply Mem. 8, it is none of those things. The Remedial Order is a binding court order; it is not hypothetical, and it is not a negotiated settlement or consent decree where the parties have voluntarily ended their legal dispute. See Floyd, 959 F. Supp. 2d at 686.
To the extent the Unions’ actual objection is that they did not have an opportunity to shape the terms of the Remedial Order before it was issued, that is a problem of their own making. They chose to file an untimely motion in September 2013, rather than (1) when the Court made clear in January 2013 that a remedial order would be issued following any finding of liability in Floyd, and (2) when the Court invited input on the scope of such a remedial order as early as March 2013. See, e.g., Jan. 4, 2013 Hearing Tr. at 84:13-85:20, Floyd, ECF No. 252 (oral order declining to bifurcate Floyd trial into separate liability and remedial phases); Injunction Order, 925 F. Supp. 2d at 543 (inviting the parties to brief “whether the proposed relief is insufficient or too burdensome or otherwise inappropriate.”). Thus, if the Unions were concerned that between January and August 2013 the parties or other stakeholders might
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recommend to the Court remedial measures that would practically impact the terms and conditions of employment, rather than relate only to managerial prerogatives, the Unions should have timely moved to intervene. That process, however, produced a Remedial Order that covers only policy changes.
The Unions lack of a significant protectable interest in the remedies is further illustrated by the fact that they have pointed to no provision in the Remedial Order that prevents or threatens to prevent their ability to collectively bargain over the practical impact of these changes. Moreover, the Unions neither filed motions to intervene nor sought leave of the court to file amicus briefs in connection with the Daniels settlement. That settlement was in place from 2004 through 2007, during which time the NYPD implemented changes to monitoring, supervision, training, and the paperwork associated with stops-and-frisks, and no objection from the Unions is reflected in court records. Furthermore, beginning in 2009, the City implemented the following changes to its stop-and-frisk policies and procedures that altered the duties and responsibilities of union members: 2009 and 2010 revisions to the NYPD Patrol Guide section on stop-and-frisk requiring officers to provide a stopped civilian with an explanation of the reasons for the stop, and an information card entitled, “What is a Stop, Question, and Frisk Encounter,” Charney Decl. Exs. E, F; a 2011 revision to the UF-250 which requires officers to provide the reason(s) for any force used during a stop-and-frisk, id. Exs. C, G; a 2012 revision to the Patrol Guide section on the duties and responsibilities of captains, requiring them to conduct stop-and-frisk inspections in each precinct, id. Ex. H; and a March 5, 2013 memorandum from the NYPD Chief of Patrol requiring all NYPD patrol officers to provide additional narrative details about the reasons for a stop in both their activity logs and on the UF-250 and to staple a copy of the requisite activity log entry to each UF-250 they submit. Id. Ex. I. Additionally, in
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2012 and 2013, 6,000 officers attended a stop-and-frisk training course. Floyd Trial Tr. at 5121. Plaintiffs point out these voluntary changes in their opposition briefs, yet the Unions offer no explanation for why the changes triggered no collective bargaining issues. Although the Unions’ failure to react to the Daniels settlement and the NYPD’s voluntary policy changes listed is not dispositive, their inaction is certainly circumstantial evidence that the Remedial Order’s changes will have no discernable impact on the Unions’ CBL rights or their collective bargaining agreements.
The cases cited by the Unions do not compel a contrary conclusion. Citing W.R. Grace & Co. v. Local Union 759, 461 U.S. 757, 760-61 (1983), Brennan, 260 F.3d 123, City of Los Angeles, 288 F.3d 391, EEOC v. AT&T Co., 506 F.2d 735 (3d Cir. 1974), and United States v. City of Portland, 12 Civ. 2265 (D. Or. Feb. 19, 2013), the Unions maintain that federal courts routinely grant intervention to unions where their collective bargaining rights may be undermined. These cases are inapposite. In each, it was acknowledged that the implementation of the relief at issue interfered with the statutory or contractual rights of the would-be intervenors. See, e.g., W.R. Grace, 461 U.S. at 759, 771; Brennan, 260 F.3d. at 129-30; City of Los Angeles, 288 F.3d at 399-400; AT&T, 506 F.2d at 738-39; Order at 7-8, City of Portland, No. 3:12-cv-02265, Docket No. 32. Here, the Remedial Order concerns only policy changes not subject to mandatory collective bargaining under New York law. See also California ex rel. Lockyer v. United States, 450 F.3d 436, 443 (9th Cir. 2006) (explaining that in City of Los Angeles, the Ninth Circuit “granted intervention to the bargaining unit because the proposed consent decree in the case purported to give the district court authority to override the officers’ collective bargaining agreement”). Moreover, in two of these cases, the proposed intervenorunion cited specific statutory or contractual provisions that would be impacted by the consent
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decrees. See, e.g., Intervenor-Appellant PPL Mem. at *20, City of Los Angeles, No. 01-55182, 2001 WL 34093539 (9th Cir. May 8, 2001) (explaining that consent decree conflicted with several specific provisions of collective bargaining agreement and would trigger “meet and consult” requirements under California law, and citing two declarations describing, on a sectionby-section basis, key inconsistencies between collective bargaining agreement and consent decree); Intervenor-Def. Portland Police Ass’n Mem. at 12-26, City of Portland, No. 3:12 Civ. 2265 (D. Or. Dec. 18, 2012) (explaining that proposed consent decree conflicted with numerous sections of the collective bargaining agreement). Here, the Unions merely provide a list of policy changes contemplated by the Remedial Order and claim that unspecified state law rights are implicated.
The Unions’ final argument is that they need not specify the rights interfered with, but need only show a “possibility” that the Remedial Order “may” interfere with their collective bargaining rights. PBA Mem. 14; SBA Mem. 15-16. The Unions contend that they have a right to intervene where there is even the slightest dispute that collective bargaining rights may be implicated. See City of Los Angeles, 288 F.3d at 400 (“[T]o the extent that it is disputed whether or not the consent decree conflicts with the [collective bargaining agreement], the [PPL] has the right to present its views on the subject to the district court.”). To generate a dispute, the Unions cite several BCB and PERB decisions to show that certain terms in the Remedial Order are debatably within the scope of topics that must be bargained over under the CBL. In particular, they assert that the introduction of new training and monitoring policies and body-worn cameras are disputed topics. The cases they cite, however, do not support the Unions’ position.
With respect to changes in training, the Unions cite two BCB decisions, Uniformed Fire Officers, Local 854, IAFF, AFL-CIO v. City of New York, Decision No. B-20-92, 49 OCB 20
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(BCB 1992), and City of New York v. Uniformed Firefighters Ass’n, Decision No. B-43-86, 37 OCB 43 (BCB 1986), for the proposition that training is subject to mandatory bargaining “to the extent the City requires [it] as a qualification for continued employment.” PBA Mem. 17. In both cases employees were required to obtain new licenses or certifications as a condition of their continued employment. See, e.g., Uniformed Fire Officers, Local 854, IAFF, AFL-CIO v. City of New York, 49 OCB 20 at 7-9 (holding that a newly established requirement that firefighters obtain CPR certifications as a condition of employment would be subject to mandatory collective bargaining); City of New York v. Uniformed Firefighters Ass’n, 37 OCB 43 at 16 (The amount of firearms training the City provided to fire marshals was not subject to mandatory bargaining, because even though the City required fire marshals to pass an annual test, there were no adverse employment consequences alleged for failing.). The Unions do not allege that the Remedial Order contemplates imposing a licensing or certification scheme. Moreover, according to both BCB decisions, “the establishment of training procedures, in most circumstances, is a . . . management right and not a mandatory subject of bargaining.” Id. at 15.
With respect to body cameras and performance evaluation procedures, the Unions cite two cases in support of their argument that these topics “might” be subject to mandatory bargaining. See PBA Mem. 16-17. These cases are inapposite. In Patrolmen’s Benevolent Ass’n of the City of New York, Inc. v. City of New York, 6 OCB2d 36 (BCB 2013), the BCB held that bargaining over the procedural aspect of evaluations is mandatory (i.e., the frequency of evaluations), but the substance of evaluations (i.e., the actual criteria therein) “fall within an employer’s rights under § 12-307(b) to determine the ‘methods, means and personnel’ by which government operations are conducted.” Id. at 15. Here, the Remedial Order addresses only substantive policy changes, not any of the related procedural aspects. Floyd, 959 F. Supp. 2d at
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675-86. In In re the City of New York, 40 PERB ¶ 3017, Case No. DR-119, (PERB Aug. 29, 2007), the PERB held that although the decision to provide officers with bullet proof vests was a managerial prerogative, practical impacts, such as the frequency of updating the vests, were bargainable topics. In so holding, the PERB reiterated that equipment, such as body cameras, “relate[s] directly to the manner and means that police services are provided, thereby constituting a managerial prerogative.” Id.
More broadly, the Unions’ complain that by conceding liability and dropping the appeals, the City is violating CBL § 12-306(5), which does not permit the City “to unilaterally make any change as to any mandatory subject of collective bargaining or as to any term and condition of employment established in the prior contract.” N.Y.C. Admin. Code § 12-306(5). As discussed, the Remedial Order does not implicate any interest subject to collective bargaining. More importantly, the Union’s rights under this subsection are only triggered, according to the plain language of the statute, if the City attempts unilateral changes. Here, the source of the changes is a court order, not a unilateral City decision. Thus, the Unions’ rights under this provision are not at issue here.
Furthermore, it is well established that “there are prohibited subjects about which the parties may not negotiate, because to do so would be contrary to public policy, statute or decisional law.” Sheppard, 1998 WL 397846, at *7. The Injunction, Liability, and Remedial Orders, finding the City liable for its unconstitutional stop-and-frisk policy constitute decisional law. And “there is no more compelling public policy than compliance with the mandates of the United States Constitution.” Id. at *8. “[R]esponsibilities conferred upon the City of New York (and all other state and local governments), by the federal courts,” such as those at issue here, “for safeguarding the constitutional rights of” citizens, “cannot be delegated, abnegated or
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surrendered through collective bargaining.” Id. In sum, the Unions have not demonstrated a significant protectable interest in the
Remedial Order sufficient to merit intervention for the purpose of appealing that Order. They have not asserted their alleged interests with particularity and where they have, they have misstated the relevant law and misapplied it. To the extent they claim an interest in a state law bargaining process between the Unions and the City, that process is not implicated where the unilateral changes at issue arise from a court order. Moreover, even assuming the Remedial Order does infringe on the Unions’ collective bargaining rights, the Court’s power to remedy constitutional violations cannot be constrained by PERB or BCB decisions or the Unions’ state law rights. Here, however, the Unions’ collective bargaining rights are not at issue, and the Court’s exercise of its remedial powers has not, therefore, infringed upon those rights. Having found that the Unions lack a legally protectable interest in the Remedial Order, the Court need not address the other factors courts apply under Rule 24(a).23 The Court shall, however, next address an issue tied to Rule 24(a)’s interest requirement; assuming, arguendo, the Unions’ interests are cognizable on a motion to intervene, whether the Unions would have standing to vindicate those interests on appeal.
D. Standing “We have never before upheld the standing of a private party to defend the
constitutionality of a state statute when state officials have chosen not to,” wrote Chief Justice Roberts, and “[w]e decline to do so for the first time here.” Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013). Despite this guidance, and even though the lone municipal government 23 For the same reasons, the Court denies the Unions’ request for permissive intervention under Rule 24(b) because the Court finds that the Unions have not asserted “a claim or defense that shares with the main action a common question of law or fact” with respect to both the Liability and Remedial Orders. Fed. R. Civ. P. 24(b)(1)(B); see also NAACP, 413 U.S. at 365; United States v. New York, 820 F.2d at 557-58.
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defendant no longer wishes to defend the constitutionality of its policy, the Unions insist they have standing to appeal the Liability, Remedial, and Injunction Orders (collectively, the “Orders”). They do not. The Unions are not bound by the Orders nor have their members suffered any concrete or particularized harm caused by them.
1. District Court Consideration of Appellate Standing Before explaining why the Unions lack appellate standing, the Court should clarify why a district judge is even considering this issue in the context of a Rule 24 motion. Plaintiffs raise appellate standing in their opposition papers, and the Unions address it in their replies, but neither explains why they are arguing the issue in the District Court rather than the Court of Appeals. Standing is jurisdictional, and courts always have jurisdiction to decide their own jurisdiction. See In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 374 (2d Cir. 2005). Recognizing this Court’s limited jurisdiction and exercising restraint and deference, ordinarily this Court would not opine on the Second Circuit’s jurisdiction to hear an appeal. See American Elec. Power Co., Inc. v. Connecticut, 131 S. Ct. 2527, 2540 (2011) (“[F]ederal district judges, sitting as sole adjudicators, lack authority to render precedential decisions binding other judges . . . .”). But, acknowledging the importance of the issue to the parties, the Court endeavors to determine why appellate standing is relevant to adjudicating the motions to intervene. There is a conflict among the circuits as to whether Article III standing is required for a non-party to intervene at the district court level. See Diamond v. Charles, 476 U.S. 54, 68-69, 68 n.21 (1986) (observing that “[t]he Courts of Appeals have reached varying conclusions” on the issue, but declining to resolve the conflict). The Second Circuit seems not to require a would-be plaintiff-intervenor to satisfy Article III standing. See United States Postal Serv., 579 F.2d at 190 (“The existence of a case or controversy having been established as between the United
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States Postal Service and the Brennans, there was no need to impose the standing requirement upon the proposed intervenor.”). However, the intervenor-plaintiff in United States Postal Service sought to assert the same claims as the existing plaintiff. Here, the intervenor-defendants seek to pursue an agenda in conflict with the existing defendant. In fact, adding to the complexity, the existing defendant, the City, seeks to terminate the case or controversy and the proposed intervenor-defendants seek to continue it.24 Thus, it is unclear that United States Postal Service neatly disposes of the instant situation. Cf. Hoblock v. Albany Cnty. Bd. of Elections, 233 F.R.D. 95, 97 (N.D.N.Y. 2005) (reading United States Postal Service as exempting an intervenor from the Article III standing requirement if there is already a case or controversy in existence between the original parties).
Putting aside the circuit split, there is a different rationale for why an applicant’s Article III standing on appeal is relevant to deciding a motion to intervene in the district court. Rule 24(a) requires that an intervenor have an interest that is “direct, substantial, and legally protectable.” Bridgeport Guardians, 602 F.3d at 473 (citation and internal quotation marks omitted) (emphasis added). Generally, a legally protectable interest is one which the law “accord[s] some degree of legal protection.” Diamond, 476 U.S. at 75 (O’Connor, J. concurring). In particular, a Rule 24(a) applicant must be authorized to enforce that interest, and the interest must be capable of being enforced through the law. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463-64 (5th Cir. 1984). If, for example, a would-be intervenor were to assert an interest in pursuing a claim that is barred by the statute of limitations, then the interest would not be legally protectable; although the non-party’s interest
24 See Matthew I. Hall, Standing of Intervenor-Defendants in Public Law Litigation, 80 Fordham L. Rev. 1539, 1542 (2012) (Because traditional standing analysis focuses on the plaintiff’s stake in the case or controversy, “volunteer” defendants’ attempts to intervene in cases that concern important issues of public law have been “under-theorized” by the courts.).
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might otherwise be viable, the law does not afford it an avenue to vindicate that interest. See
Ceribelli v. Elghanayan, 91 Civ. 3337, 1994 WL 529853, at *2 (S.D.N.Y. Sept. 28, 1994)
(Where the plaintiff-intervenor’s claims are time-barred, intervention would be an exercise in
“legal futility.”).25 Logically, from the plain meaning of the term “legally protectable,” the same
reasoning extends to appellate standing: to the extent that a post-judgment intervention applicant
contends that it must appeal a court order to protect its interest, then the applicant’s appellate
standing is highly relevant to the issue of whether the interest is legally protectable. If Article
III’s standing requirement would not afford an avenue for the applicant to legally protect its
interest, allowing a non-party to intervene would be an exercise in legal futility.26
In similar contexts, other district courts have reasoned that it would be futile to permit a
non-party who lacks appellate standing to intervene for the express purpose of appealing the
district court’s judgment. See, e.g., Order at 15, Perry v. Schwarzenegger, 99 Civ. 2292 (N.D.
Cal. Aug. 4, 2010), Docket No. 709 (denying motion to intervene because Imperial County’s
lack of Article III standing to defend California’s same-sex marriage ban on appeal “weigh[]ed
25 Although the Ceribelli court analyzed the futility issue in the context of permissive intervention under Rule 24(b) and the broader issue of timeliness, the legal futility logic is no less applicable to Rule 24(a)’s legally protectable interest requirement for intervention as of right. See Plumbers’ & Pipefitters’ Local No. 562 Supplemental Plan & Trust v. J.P. Morgan Acceptance Corp. I, 08 Civ. 1713, 2011 WL 6182090, at *1 (E.D.N.Y. Dec. 13, 2011) (Under Rule 24, “though not mentioned in the rule itself, ‘futility is a proper basis for denying a motion to intervene.’”) (quoting In re Merrill Lynch & Co., Inc. Research Reports Secs. Litig., 02 Civ. 1484, 02 Civ. 8472, 2008 WL 2594819, at *5 (S.D.N.Y. Jun. 26, 2008)). 26 Some circuits have also held that where a party lacks a “significant protectable interest” under Rule 24(a), “it necessarily follows that they lack Article III standing . . . .” See Perry, 630 F.3d at 906; Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003); Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 946 (7th Cir. 2000). Thus, inquiring about Article III standing after holding that an applicant does not have a significant protectable interest, as this Court has just done, would be “purely academic,” Roeder, 333 F.3d at 233, and redundant “[f]rom a pragmatic standpoint,” Sokaogon, 214 F.3d at 946. The Second Circuit, however, has not expressly adopted this rule. Accordingly, although analyzing standing invites redundancy, the Court declines to hold that the Unions automatically lack standing because they lack an interest under Rule 24(a).
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against permitting” it to intervene in the district court), aff’d, 630 F.3d 898, 906 (9th Cir. 2011); Tummino v. Hamburg, 260 F.R.D. 27, 30 (E.D.N.Y. 2009) (holding that on a post-judgment intervention motion, would-be intervenors seeking to intervene to appeal must establish that they have “standing to intervene” when the party on whose side intervention could have been sought during the course of the litigation has decided not to appeal); see also Transcript of Oral Order at 49:15-21, 50:10-12, Geiger v. Kitzhaber, 13 Civ. 1834 (D. Or. May 14, 2014), Docket No. 115 (denying a motion to intervene by a group opposed to same-sex marriage because they failed to show they would have standing to appeal the judgment after the state refused to defend its samesex marriage ban). Persuaded by these authorities that Rule 24(a)’s “legally protectable interest” requirement compels a court to consider whether certain proposed intervenors have standing to appeal in the absence of the originally aggrieved party, the Court now turns to the issue of whether the Unions have standing to pursue the City’s appeal.
2. Standing to Appeal the Liability Order The Unions assert that they have standing to appeal the Liability Order “because the Court in that opinion made specific factual findings regarding individual [union members], accusing them of violating the Constitution, not telling the truth, and other disparaging conclusions based on limited and unreliable evidence.” SBA Reply Mem. 16. More broadly, the Unions claim to have standing because the “Court’s findings that the NYPD, through its officers, have engaged in systematic racial discrimination and have made at least 200,000 unlawful stops are premised upon fundamental legal errors that have caused serious reputational harm to the officers and should be reviewed by the Second Circuit.” PBA Reply Mem. 18. Although the City initially appealed, the Unions complain that “the City now has turned its back on the officers of the NYPD, requesting a remand for the avowed purposes of leaving the highly
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prejudicial findings of the Court unreviewed.” PBA Mem. 2. Thus, the Unions wish to step into the City’s shoes and “continue the appeal that the City has” abandoned. PBA Reply Mem. 6.
Although standing cases typically address whether a plaintiff has satisfied the requirement when commencing a lawsuit, Article III requires an “actual controversy” throughout all stages of litigation. Hollingsworth, 133 S. Ct. at 2661. Accordingly, standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). The same requirement applies where an intervenor seeks to “continue a suit in the absence of the party on whose side intervention was permitted.” Diamond, 476 U.S. at 68; see also Schulz v. Williams, 44 F.3d 48, 52 (2d Cir. 1994).27 The intervenor-appellant has standing to appeal only if it has “suffered an injury in fact that is fairly traceable to the challenged action and that is likely to be redressed by the relief requested.” Schulz, 44 F.3d at 52. To suffer an “injury in fact,” an intervenor must have more than an “abstract concern” or “a mere interest in the problem.” Diamond, 476 U.S. at 67 (internal quotation marks omitted). Rather, it must have experienced “an invasion of a legally-protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations and internal quotation marks omitted). The party seeking to appeal must have a “direct stake in the outcome of a litigation,” Schulz, 44 F.3d at 52 (citation and internal quotation marks omitted), such that it is “likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks omitted). “The presence of a disagreement, however sharp and acrimonious it may be, is 27 The SBA contends that the correct legal standard to apply here is from Official Committee of Unsecured Creditors of WorldCom, Inc. v. SEC, 467 F.3d 73, 77-79 (2d Cir. 2006). That case did not address the Article III questions now before the Court; it discussed whether a non-party in the district court, who otherwise met Article III’s standing requirements, could intervene at the Second Circuit to appeal the judgment. Id. at 77 (citation omitted).
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insufficient by itself to meet Art. III’s requirements.” Diamond, 476 U.S. at 62. From the Unions’ allegations it is clear that they do not claim to have suffered any direct
reputational injury from the Liability Order. The Unions do not allege, for example, that the Court made “injurious findings” against the Unions, as unions. Instead, the Unions’ theory of standing is based on the claim that their members have suffered or will suffer reputational harm. In particular, the Unions appear to allege two distinct reputational injuries on behalf of two categories of their members. See PBA Mem. 3 (stating that the Unions’ purpose is “to appeal the District Court’s prior Orders, so as to ensure that the Orders are reviewed on the merits and that the NYPD and its members are not burdened and besmirched by findings . . . that are legally infirm”) (emphasis added). The first alleged reputational harm is with respect to individual officers identified in the Orders, “whose conduct was directly placed at issue,” and who are injured by the Court’s specific findings about them, i.e., because “[t]he Liability [Order] identifies [officers] by name, asserts that they are untruthful, and concludes that numerous stops that they supervised, approved, or conducted broke the law,” the findings “adversely affect the careers and lives of these [officers].” SBA Mem. 1, 13-14. The second alleged reputational harm is with respect to all NYPD officers whose reputations are injured by the Court’s general findings of widespread unconstitutional conduct, i.e., the anonymous officer is harmed by the finding that “the men and women of the NYPD had purportedly committed more than 200,000 constitutional violations” and the “highly injurious finding that the NYPD officers had engaged in intentional racial discrimination.” PBA Mem. 1-2.
Although not mentioned in their papers, the Unions invoke the doctrine of associational standing, “under which an organization may sue to redress its members’ injuries.” United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 552 (1996).
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Whereas Article III generally requires the participation of the party who is directly harmed, an
association is permitted to rely on its members’ injuries to satisfy Article III because, in certain
circumstances, the interests of the association and “its members are in every practical sense
identical.” NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958). Thus, even where it
has suffered no direct harm from the challenged action, an association has standing to litigate on
behalf of its members where “(a) its members would otherwise have standing . . . in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the participation of individual
members in the lawsuit.” United Food, 517 U.S. at 553 (citations and internal quotations marks omitted).28
With respect to both categories—the individually identified officers and all NYPD
officers—the threshold question for associational standing is whether a union member in either
category “would otherwise have standing to sue in [her] own right.” Id. Thus, the Court
undertakes to apply the Article III standing test—injury-in-fact, causation, and redressibility—to
both groups in order to make this determination, beginning with the individual officers identified
in the Orders.
28 The PBA’s reply memorandum appears to argue that the PBA has standing, independent of any injury to its members, because it has suffered a reputational “taint” from the Liability Order’s findings. See PBA Reply Mem. 17. The PBA does not explain how findings against the NYPD, the City, or even its members, taint the reputation of the PBA as a union. Citing NCAA v. Governor of N.J. (“NCAA”), 730 F.3d 208, 218, 220 (3d Cir. 2013), the PBA claims it has standing on its own because of the “unwanted association with an activity they and large portions of the public disapprove of.” PBA Reply Mem. 17. In NCAA, the Third Circuit held that sports leagues had standing to challenge a law that would permit gambling on the leagues’ games because, in part, their games might suffer a “taint” by the mere association with legalized gambling. NCAA, 730 F.3d at 218, 220. This argument warrants scant attention. Nowhere does the Liability Order attribute objectionable conduct to the Unions. To the extent that union members claim they are tainted, that would suggest an associational injury, not an injury to the Unions as unions.
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a. Officers Identified by Name i. Injury-in-Fact
The Unions argue that officers mentioned by name “whose conduct was directly placed at issue” may claim reputational injury arising from the Liability Order. PBA Mem. 2. The Unions contend that these officers who testified, were deposed, or whose behavior was evaluated by the Court should have an opportunity to protect their reputations, which the City is refusing to do by not pursuing an appeal. PBA Mem. 7.
There is no dispute that, as a general matter, reputational harm may be an injury-in-fact. See, e.g., Meese v. Keene, 481 U.S. 465, 473 (1987) (having his films labelled “political propaganda” by the government could cause a cognizable injury to a litigant’s “personal, political, and professional reputation” sufficient to establish an injury-in-fact). The Unions cite several additional cases where reputational harm constituted an injury-in-fact. See, e.g., NCAA v. Governor of New Jersey (“NCAA”), 730 F.3d 208 (3d Cir. 2013); Gully v. Nat’l Credit Union Admin. Bd., 341 F.3d 155, 161-62 (2d Cir. 2003).29 Whereas the reputational harm in each of these cases was asserted with some specificity, here, the Unions do not explain how individual officers experience reputational injury from having been identified by name in the Liability Order. The Unions do not, for example, attached affidavits or declarations from any officers stating that their reputations have been harmed and describing the repercussions—such as losing promotions or benefits, or suffering the scorn of their peers or the community.
The Unions respond that they do not need to explain how the findings in the Liability 29 On June 20, 2014, the SBA submitted a letter to the Court noting a recent Supreme Court, New York County decision in Patrolmen’s Benevolent Association v. City of New York, Index No. 652550/13 (N.Y. Co. Sup. Ct. June 18, 2014), holding that police unions have standing under New York law to challenge a municipal ordinance. Letter, Floyd, ECF No. 463. That standing exists under state law is not determinative as to whether federal standing exists under Article III. See Hollingsworth, 133 S. Ct. at 2667 (“[S]tanding in federal court is a question of federal law, not state law.”).
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Order cause reputational injury because it is “self-evident.” SBA Reply Mem. 16 (citing Gully,
341 F.3d at 161-62). This is not consistent with the law. Claiming reputational harm is not an
exception or loophole that excuses litigants from satisfying Article III’s injury criteria. The
issue, as with any alleged harm, is whether it is also “concrete and particularized,” and “actual or
imminent,” as opposed to “conjectural or hypothetical.” Lujan, 504 U.S. at 960. In Gully, the
plaintiff suffered a tangible reputational injury, described by the Second Circuit as a “death
knell” for her career, when a regulatory agency made findings of professional misconduct and
unfitness. Gully, 341 F.3d at 162. Unlike here, Gully was a party to the action, and the harm did
not arise from a vicarious, attenuated claim. In fact, in NCAA, Gully, and Meese, the litigants
had little trouble asserting a concrete and particularized reputational injury because, unlike here, the harmed party was either a plaintiff or defendant in the district court.30
The Unions’ papers offer no information as to how the City’s unwillingness to continue
the appeals produces anything but hypothetical reputational injuries. In fact, the only place the
Unions provide specificity is in the SBA’s papers, where it observes that the Liability Order
identifies Sergeants Jonathan Korabel, James Kelly, Daniel Houlahan, Raymond Stukes,
Charlton Telford, and Michael Loria by name and, according to the SBA, finds variously that
they were “untruthful,” “broke the law,” conducted improper stops-and-frisks, inadequately
30 The Unions’ also cite to Camreta v. Greene, 131 S. Ct. 2020 (2011), for the proposition that “a government official has standing to appeal a finding that his actions were unconstitutional . . . because the ‘judgment may have a prospective effect,’ and ‘the official regularly engages’ in the acts found unconstitutional.” PBA Mem. 12 (citing Camreta, 131 S. Ct. at 2029). Their reliance on Camreta is misplaced. In holding that a prevailing party may nonetheless have standing to appeal in some limited circumstances, the Supreme Court expressly confined Camreta’s holding regarding prospective relief to the qualified immunity context in which a named defendant may prevail, even though the court finds that his or her behavior was unconstitutional. Camreta, 131 S. Ct. at 2032-33. Contrary to the Unions’ reading, the Supreme Court did not hold or even suggest that, in an entirely different context—municipal liability under Monell—a non-party may appeal findings of liability against her employer merely because she regularly engages in the behavior at issue.
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supervised stops-and-frisks, bungled record-keeping, and created a “culture of hostility.” SBA Mem. 13. First, the SBA’s description of the Court’s findings is inaccurate: the Court held the City, not any of these officers, liable for breaking the law. Second, it is important to remember that the Liability Order discusses each of these sergeants in their capacity as employees of the City, in order to determine whether the City should be held liable for violating the Constitution. The Court credits or discredits their testimony and makes findings that they properly applied or misapplied the Constitution in this very specific Monell liability context where Courts must analyze the behavior of non-party municipal employees. These sergeants are no different from any other government employees whose position regularly requires that they properly apply the law. Such employees would understandably feel aggrieved if a court determines that they violated the law, but the Second Circuit has made clear that “[t]o suffer a judicially cognizable injury in fact an intervenor must have a direct stake in the outcome of a litigation rather than a mere interest in the problem.” Schulz, 44 F.3d at 52 (citation and internal quotation marks omitted). Thus, having asserted nothing more than general, unspecified reputational harm based on dissatisfaction with the Court’s opinion rather than a direct stake in the litigation, the Unions have failed to state an injury-in-fact on behalf of the officers identified by name.
Even assuming that the Unions had provided specificity, the named officers all share a common characteristic that makes it difficult to assert a reputational harm sufficient to confer standing—they are all non-party participants in the judicial process. Their status as non-party witnesses or deponents does not convert them from “concerned bystanders” into injured Article III litigants. Diamond, 476 U.S. at 62 (citations and internal quotation marks omitted). In fact, allowing non-party trial participants to claim harm from court findings raises serious concerns. “[I]f injury to reputation is the guiding precept . . . there is no principled basis for distinguishing
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between a chastised attorney and any other participant in the judicial process who becomes the target of the presiding judge’s opprobrium.” In re Williams, 156 F.3d 86, 91 (1st Cir. 1998). As one distinguished jurist noted, under such a regime, “[l]awyers, witnesses, victorious parties, victims, bystanders—all who might be subject to critical comments by a district judge—could appeal their slight if they could show it might lead to a tangible consequence.” Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir. 1984) (Posner, J.).
Taken to its logical conclusion, the Unions’ reputational injury theory extends beyond those officers whose conduct was held to have violated the Constitution. Officers found by the Court to have complied with the law could arguably suffer reputational harm if the Second Circuit were to reverse the trial court’s positive ruling about them. In fact, on this theory, all participants would have a reputational investment in a lawsuit: the lay witness whom the court credited will have a higher standing in the community, whereas the one who was not believed might be shunned by neighbors and employers; the expert witness the court sided with will garner acclaim and prosper, whereas the one whose testimony the court rejected will lose business; the lawyer whose line of reasoning the court adopted will attract clients and move up the ladder while the lawyer whose arguments the court rejected will not make partner. The policy implications of this view are stunning: a judge’s opinion could not discuss non-party participants without inviting endless litigation.
In sum, because the Unions’ theory of reputational injury to non-party participants in the judicial process is not supported by factual details and lacks any limiting principle, the Unions have failed to state that an individual union member in the identified officer category suffered an injury-in-fact under Article III. Accordingly, the Unions fail to meet the first element required to assert associational standing.
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ii. Causation Even if the subset of officers identified by name in the Liability Opinion could assert reputational harm arising from the Liability Order, they would lack standing because they cannot satisfy the causation element under Article III. To establish causation, the intervenor-appellant must show an “injury caused by the judgment rather than [an] injury caused by the underlying facts.” Tachiona v. United States, 386 F.3d 205, 211 (2d Cir. 2004) (citation and internal quotation marks omitted). Although the Second Circuit has not had occasion to explain the difference between an injury caused by the judgment and one owing to the underlying facts, other circuits have. See, e.g., Nisus Corp. v. Perma-Chink Sys., Inc., 497 F.3d 1316, 1321 (Fed. Cir. 2007) (non-party lacked standing to challenge “subsidiary findings made in support of the court’s ultimate . . . legal conclusion that [plaintiff’s] patent was unenforceable”); Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48, 53 n.1 (1st Cir. 2004) (litigant lacked standing where his injury related to “only [to] subsidiary issues, and not the judgment itself”); Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1199-1200 (9th Cir. 1999) (“[T]he district court’s comments alone are not sanctions, but rather are merely its factual findings made in support of the Order. [Therefore, w]e find no basis independently to review the allegedly derogatory statements about [appellant] . . . . [B]ecause the words themselves do not constitute sanctions, we conclude that they are not independently reviewable.”); Warner/Elektra/Atl. Corp. v. Cnty. of DuPage, 991 F.2d 1280, 1282 (7th Cir. 1993) (“If an appellant is complaining not about a judgment but about a finding . . . the appeal does not present a real case or controversy.”) (emphasis added). The Federal Circuit’s ruling in Nisus Corp. is instructive. Nisus sued Perma-Chink for patent infringement. 497 F.3d at 1318. Perma-Chink responded that the patent itself was invalid because Nisus had obtained it through “inequitable conduct.” Id. The district court agreed,
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holding that the underlying inequitable conduct rendered the patent unenforceable, and entered
judgment in favor of Perma-Chink. Nisus and Perma-Chink settled all other aspects of the
lawsuit and both disclaimed any interest in appealing the judgment. Michael Teshner, an
attorney who assisted Nisus in obtaining the patent, moved to intervene. Because he had helped
Nisus obtain the patent and his conduct was determined to be “inequitable,” Teshner sought
intervention in order to clear his name by appealing the judgment. The district court denied his
motion and the Federal Circuit affirmed, finding that the district court did not err because even if
Teshner had intervened, he would have lacked standing to appeal. Teshner’s injury, the court
reasoned, arose not from the judgment but from the underlying findings regarding his conduct.
The same is true in this case. Assuming the named officers could identify a reputational
injury-in-fact, such an injury would flow from the Court’s findings, not the Orders. Looking no
further than the Unions’ papers, the Unions repeatedly state that their quarrel is with the findings:  “The [Unions] seek to intervene . . . to ensure that . . . its members are not burdened and besmirched by findings . . . that are legally infirm.” PBA Mem. 3 (emphasis added).  “The [Unions] have a vital interest in challenging these erroneous and damaging findings about their members conduct, findings that have chilled lawful and proactive police conduct . . . and that would unfairly undermine public confidence in their work.” Id. 14 (emphasis added).  “[T]he SBA should be permitted to defend its members against . . . findings made by this Court [] that they violated the Constitution.” SBA Mem. 1-2 (emphasis added).  “SBA members also have interests affected by the Liability Opinion, because the Court . . . made specific factual findings regarding individual sergeants, accusing them of violating the Constitution, not telling the truth, and other disparaging conclusions based on limited and unreliable evidence.” SBA Reply Mem. 16 (emphasis added).
Likewise, the Second Circuit’s remand characterizes the Unions’ intervention motion as an effort
“to contest findings by the District Court the [U]nions believe to be unwarranted.” Ligon, 743
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F.3d at 364-65 (emphasis added). Moreover, the Unions acknowledge that the City, not the officers, was the subject of the judgment, stating, “[o]n August 12, 2013, following a nine-week bench trial, the Court issued and entered the Liability Opinion, finding the City liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights.” SBA Mem. 8 (emphasis added).
Although the Liability Order contains findings regarding identified officers, the Court did not rely exclusively on these findings to support its holding that the City is liable for violating the Constitution. The Court evaluated plenty of evidence not involving named officers that could have formed the basis for establishing liability against the City. Consider an alternative scenario: if the Court had made identical factual findings but held that the City was not liable because it was not deliberately indifferent to the unlawful stops-and-frisks, then the City would have no adverse judgment against it, but union members would nonetheless be confronted with the purportedly injurious findings. In this scenario, it is clear that the identified officers would be appealing findings, not a judgment. Put differently, just because the Court’s overall judgment of liability incorporates the supposedly injurious findings does not mean that those findings and the judgment are one and the same. Accordingly, the Unions also fail the associational standing test because they cannot show causation, which is required for any of the identified officers to “have standing . . . in their own right” to appeal. United Food, 517 U.S. at 553.
iii. Individual Participation Required With regard to identified officers, the Unions also fail the third prong of associational standing, i.e., neither “the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Id. The Supreme Court has explained that associations do not have standing under this prong when “whatever injury may have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require
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individualized proof.” Warth v. Seldin, 422 U.S. 490, 515-16 (1975). Instead, the harm must be “common to the entire membership” and “shared by all in equal degree.” Id. at 515.
The Liability Order mentions numerous officers by name because numerous officers testified at trial, were deposed during discovery, or otherwise participated in the Floyd trial. To the extent any has suffered reputational injury, it arises from the specific findings made about the particular officer, e.g., an officer whose testimony was rejected as untruthful would suffer a different reputational harm compared to an officer who was found to have failed to properly supervise a subordinate’s stop-and-frisk. There is no singular reputational injury that all the named officers share in common. Accordingly, associational standing is not available to vindicate this purported harm because the injury to this category of union members is so specific that it would require the participation of individual union members.
b. All NYPD Officers: No Injury-in-Fact The Unions also claim associational standing on behalf of all NYPD officers, whom they allege are harmed by general findings of widespread constitutional violations and by the finding of liability against the City. See PBA Mem. 1-3 (findings that “the men and women of the NYPD had purportedly committed more than 200,000 constitutional violations” and the “highly injurious finding that the NYPD officers had engaged in intentional racial discrimination” besmirch the reputations of the “NYPD and its members”). Whether the Unions have standing to appeal the Liability Order on behalf of this second, broader category of officers depends on whether an individual officer in that category would have standing to appeal in his or her own right. Thus, the question is whether an anonymous officer would be able to assert an injury-infact caused by the Orders sufficient to confer standing. Although officers mentioned by name in the Orders may feel that their reputations have
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been harmed due to the public evaluation of their conduct, it is less clear how anonymous officers with no connection to this litigation might suffer reputational injury from a finding that their employer’s policy violates the Constitution. The Unions offer no explanation other than to state the conclusion that such officers are in fact harmed. In the absence of an explanation, the Court construes two alternative theories of injury from a close reading of the Unions’ papers.
Under the first theory, the Unions assert that they must be permitted to defend their members, “who were unfairly accused of violating and found to have violated the Constitution, against further harm to their reputations and livelihoods that would result from the City’s concession of liability on their behalf.” SBA Mem. 11-12. Although the City initially indicated it would appeal, “the City now has turned its back on the officers of the NYPD, requesting a remand for the avowed purposes of leaving the highly prejudicial findings of the Court unreviewed.” PBA Mem. 2. On this view, the reputational injury that has befallen or will befall an anonymous officer is a consequence not of the Orders alone but of the City’s acquiescence to them. In other words, the Court’s findings cause harm to the anonymous officer because the City is leaving the findings “unreviewed.” SBA Reply Mem. 16.
This theory of injury amounts to a generalized grievance about how best to interpret and apply the Constitution. Lujan, 504 U.S. at 573-74. The Supreme Court has warned that Article III standing “is not to be placed in the hands of concerned bystanders, who will use it simply as a vehicle for the vindication of” their interests. Diamond, 476 U.S. at 62 (citations and internal quotation marks omitted). The hypothetical, anonymous NYPD officer would be claiming reputational harm based on a disagreement with the Court and the City about how to follow the law. This is not a “concrete and particularized injury” but rather a generalized interest in ensuring the City’s adherence to constitutional norms, albeit according to the Unions’ point of
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view. Hollingsworth, 133 S. Ct. at 2662; Lujan, 504 U.S. at 573-74. The Unions do “not state an Article III case or controversy” because they raise “only a generally available grievance about government—claiming only harm to [their] and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits [them] than it does the public at large.” Lujan, 504 U.S. at 573-74.
The second way to construe the Unions’ position is that the anonymous officer suffers a reputational injury as an employee whose reputation is tainted by her association with her employer or fellow officers against whom negative findings were made. On this view, the anonymous officer’s purported injury is narrower than the general bystander’s because she is the employee who previously implemented the City’s tainted policy. Stated differently, the anonymous officer’s reputation is tied to that of her employer, and she is injured because her employer is injured. However, construing reputational injury as a kind of taint owing to a finding of liability against an employer has been rejected as too generalized. See Perry, 630 F.3d at 903-04.
In Perry, the trial court denied motions to intervene by Imperial County and an employee in the county clerk’s office, who were concerned that the State of California would not appeal the court’s decision holding California’s same-sex marriage ban unconstitutional. Id. at 902. The would-be intervenors alleged a “direct interest in the same-sex marriage debate” because, as employees, they performed “practical, day-to-day responsibilities relating to new marriages.” Order at 5, Perry, 99 Civ. 2292 (N.D. Cal. Aug. 4, 2010), Docket No. 709 (citation and internal quotation marks omitted). Moreover, as employees, they argued that they needed to ensure appellate review in order to avoid “significant confusion in the performance of their legal duties.” Id. at 9 (citation and internal quotation marks omitted). The district court denied the
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motion, and the Ninth Circuit affirmed, reasoning that government employees are agents, endowed only with the power given to them by their principal—the government employer. Perry, 630 F.3d at 903-04. Such employees are not free to adopt their own view of the law; instead, they implement their employer’s policies based on their employer’s legal analysis. Id. Thus, “[w]hile being bound by a judgment may be a[] concrete and particularized injury sufficient to confer standing to appeal . . . the injury” owing from the injunction, “if any, would be to the [government employer], not [an employee].” Id. at 904 (citation and internal quotation marks omitted). Accordingly, the Ninth Circuit concluded that the employee “may not rely upon the [employer]’s injury to assert her own . . . standing to appeal.” Id.
The same reasoning applies here. The Court determined that the City, not its employees, violated the Constitution, and it enjoined the City, not its employees, from engaging in unlawful stops-and-frisks. The Court directed the City to remedy the illegality by revising its training, supervision, monitoring, and other policies. Like the deputy clerk in Perry, NYPD officers are affected by the Orders in a sense: they were the ones implementing the City’s unlawful policy, and they will be the ones to implement the corrective measures required by the Remedial Order. However, as with the deputy clerk in Perry, the NYPD officers are not bound in their individual capacities because they have no independent authority to conduct stops-and-frisks based on their own analysis of the Fourth and Fourteenth Amendments. Instead, they rely on their employer, the City, to provide instruction, training, and authorization. Thus, like the deputy clerk, they have suffered no injury-in-fact as employees who perform the daily municipal tasks at issue. The anonymous officer cannot rely on the purported reputational harm to his employer to assert an injury-in-fact. Accordingly, the anonymous officer lacks standing, and the Unions, therefore, cannot satisfy the first element of the associational standing test—which requires that a member
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have standing in her own right—for this category of NYPD officers. 3. Standing to Appeal the Remedial Order The Unions’ alleged collective bargaining injuries owing to the Remedial Order fare no
better under Article III. As discussed, supra, the “Immediate Reforms” ordered in Floyd and the remedies ordered in Ligon cover topics that are not subject to mandatory bargaining under New York law. With respect to the ongoing consultative process in Floyd, the Unions are invited but are not required to participate in the development of the “Joint Process Reforms.” In the language of Hollingsworth, the Unions have “not been ordered to do or refrain from doing anything.” 133 S. Ct. at 2662. Moreover, these additional remedies have yet-to-be developed. Thus, an argument that unknown provisions harm collective bargaining rights is speculative at best. It is well-established that “[a]llegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (citations and internal quotation marks omitted). Article III standing cannot be based upon “theories that require guesswork as to how independent decision makers will exercise their judgment.” Id. at 1150 (citations and internal quotation marks omitted).
4. Conclusion: the Unions Lack Article III Standing In sum, because Rule 24 requires that an intervenor have a “direct, substantial, and legally protectable” interest, a would-be intervenor seeking to pursue an appeal that the originally aggrieved party has disclaimed must show that it has Article III standing to maintain the appeal. Bridgeport Guardians, 602 F.3d at 473 (citation and internal quotation marks omitted). Otherwise, the proposed intervenor’s interest is not “legally protectable.” The Unions lack associational standing because they cannot show that any of their members would have standing in their own right. Neither the officers identified by name in the
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Liability Order nor the anonymous NYPD officers have suffered an injury-in-fact arising from the Liability Order. The Unions assert injuries to their members that are speculative, abstract, and amorphous. Assuming the alleged injuries occurred, they were not caused by the Court’s Orders, but by the Court’s findings. In particular, their members’ status as non-party participants in the judicial process and as municipal employees who have suffered no injury apart from their municipal employer present substantial hurdles to standing. Moreover, with respect to the subset of union members identified by name, their hypothetical injuries would be too individualized to support associational standing. The Unions lack standing in their own right to challenge the Remedial Order because they have not been ordered to “do or refrain from doing anything.” Hollingsworth, 133 S. Ct. at 2662. Any future participation in the Joint Remedial Process is voluntary, and any injury based on not-yet-developed reforms is speculative.
Although framed as a concern over reputational harm and collective bargaining rights, the gravamen of the Unions’ motions is that they disagree with the Court for ruling against the City and the City for refusing to appeal. Faced with a similar situation in which a private group moved to intervene to defend Oregon’s ban on same-sex marriage when the state no longer would, the district court commented, “[i]t would be remarkable, following the Hollingsworth opinion, for a court to substitute the Executive Branch of government with a private interest organization simply because the organization disagrees with the legal interpretation of [the state’s] elected official.” Transcript of Oral Order at 52:1-5, Geiger, 13 Civ. 1834 (D. Or. May 14, 2014), Docket No. 115. It would be no less remarkable here. The Unions seek to force the City into another round of litigation that the City does not want to pursue in order to vindicate on appeal a policy the City does not want to implement. In such public law cases, a federal court may be especially “eager . . . to tell everyone its view of the legal question at the heart of this
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case.” United States v. Windsor, 133 S. Ct. 2675, 2698 (2013) (Scalia, J. dissenting). However, Article III sometimes requires federal courts to “put aside the natural urge to proceed directly to the merits of [an] important dispute and to ‘settle’ it for the sake of convenience and efficiency.” Raines v. Byrd, 521 U.S. 811, 820 (1997) (footnote omitted).
Having concluded that the Unions lack standing to appeal, the Court also finds that the Unions lack an avenue to vindicate their purported interests under Rule 24. Granting leave to intervene in the district court knowing well that the appellate courts will turn the Unions away would be an exercise in futility.31 II. Other Grounds for Intervention; the Parties’ Motion to Modify
Having addressed the Unions’ motions to intervene for the purpose of appealing the Injunction, Liability, and Remedial Orders, the Court now turns to three remaining matters: (1) the Unions’ request to intervene for the purposes of (a) participating in “court-supervised settlement discussions” and (b) opposing the parties’ motion to modify the Remedial Order; (2) the merits of the parties’ motion to modify the Remedial Order; and (3) the Unions’ request to participate in the implementation of the Remedial Order.
A. The Unions’ Request to Participate in the Settlement of Floyd and Ligon On February 21, 2014, the Second Circuit remanded Floyd and Ligon “to the District
Court for the purpose of supervising settlement discussions among such concerned or interested parties as the District Court deems appropriate, and resolving the motions to intervene.” Ligon, 743 F.3d at 365. Accordingly, on February 25, 2014, this Court directed the parties to indicate “whether they desire the Court’s participation in aid of settlement.” Floyd, ECF No. 428; Ligon, ECF No. 167. By letter dated March 4, 2014, Plaintiffs and the City stated that they had already 31 In exercise of the Court’s discretion, the Court also denies the Unions’ request for permissive intervention under Rule 24(b) on the ground that they lack appellate standing. See United States Postal Serv., 579 F.2d at 191 (permissive intervention is wholly discretionary in the trial court).
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“reached an agreement in principle for resolving the City’s appeals in both Floyd and Ligon.” Floyd, ECF No. 433; Ligon, ECF No. 169. Apparently, the parties did not need the Court’s assistance. Thus, to the extent the Unions’ seek intervention to participate in “court-supervised settlement discussions,” that issue is moot.
After reaching their agreement, Plaintiffs and the City filed a joint motion to modify the Remedial Order to reflect the terms of their proposed resolution of the appeals, which is now before the Court. Thus, the only remaining settlement-related process in which the Unions might request a role is the Court’s consideration of the parties’ motion to modify the Remedial Order. However, the Unions have already participated in that process by filing two briefs in opposition, both of which have been carefully considered by the Court. See PBA Mem., Floyd, ECF No. 459; SBA Mem., Floyd, ECF No. 461. Therefore, it would be futile to permit the Unions to intervene in order to participate in a process in which they have already participated. Accordingly, the Unions’ request to intervene for the purpose of opposing the parties’ motion to modify the Remedial Order is also denied as moot.
B. Modification of the Remedial Order In remanding Floyd and Ligon to this Court, the Second Circuit vacated its stay of these
cases “insofar as is necessary to effectuate a settlement.” Ligon, 743 F.3d at 365. Plaintiffs and the City have reached a settlement of the City’s appeals and now move, pursuant to Federal Rule of Civil Procedure 54(b) and the Court’s inherent authority, for an order modifying the Remedial Order such that the term of the court-appointed monitor is limited to three years, provided that the City shows substantial compliance with the Remedial Order by the end of that term. Joint Mem., Floyd, ECF No. 458. The Unions oppose the motion.
“The power of a court of equity to modify a decree on injunctive relief is long-
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established, broad, and flexible.” Brown v. Plata, 131 S. Ct. 1910, 1946 (2011) (citation and internal quotation marks omitted). The district court derives this power in part from Federal Rule of Civil Procedure 54(b), which provides that such injunctive orders “may be revised at any time.” Fed. R. Civ. P 54(b). More broadly, the district court has inherent authority to revise or modify such orders. See United States v. LoRusso, 695 F.2d 45, 53 (2d. Cir. 1982). In exercising its discretion to modify an injunctive order, a court should not impose modifications that “thwart[] the purpose behind the injunction.” Sierra Club, 732 F.2d at 257 (citation and internal quotation marks omitted).
The parties contend that this modification—a three-year cap on the monitor’s term provided the City shows substantial compliance—will enable the Remedial Order to be implemented more quickly, that it is consistent with the purpose of the Remedial Order, and that it is in keeping with other cases in which courts have appointed monitors to oversee institutional changes to police departments. In opposing the motion, the Unions reiterate their position on intervention and complain that the proposed modification “includes no mechanism for [the Unions] to present [their] collective bargaining concerns . . . or otherwise protect their rights.” SBA Mem. 5, Floyd, ECF No. 461. Also, because they allege that the City and Plaintiffs are no longer adversarial, the Unions contend that the Court would benefit from the Unions’ perspective as a “counterweight” to the parties’ views when deciding whether the City has substantially complied. Id.
The Unions’ arguments, though not without merit, are premature. To the extent that the Joint Remedial Process could produce reforms that implicate collective bargaining, the Unions, should they choose to participate in that process, will be free to voice their concerns. Also, when the issue of substantial compliance arises at the conclusion of the three-year monitorship, the
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Unions will have an opportunity to address that issue with the monitor and, by requesting amici status, the Court.
The parties’ proposed modification is sensible and fair in light of the purpose of the Remedial Order. Placing a limit on the monitor’s term that is tied to the City’s compliance with the Remedial Order will help narrow the parties’ focus and timeline, and encourage swift implementation of the forthcoming reforms. Accordingly, the Court finds that the modification is equitable to the parties and promotes the public interest. The modification is approved and shall be memorialized in a separate order to be issued forthwith.
C. Participation in the Remedial Phase The Unions also generally request “to intervene at the post-judgment remedy phase” of
Floyd and Ligon. SBA Mem. 23. Because the Unions provide no details, the Court undertakes to construe their application as broadly as possible. First, the Unions state that they “seek[] the right to participate only in shaping the reforms to be approved by this Court.” SBA Mem. 25. To the extent this implies that the Unions want a role in designing the Remedial Order, as discussed in detail supra, that request is untimely, and the Unions have failed to show that the Remedial Order implicates collective bargaining rights. The reforms outlined in the Remedial Order are the result of months of pre-trial proceedings, a nine-week trial in Floyd, a seven-day evidentiary hearing in Ligon, and substantial briefing by the parties and non-party stakeholders, who proposed concrete remedial measures while the Unions sat silently on the sidelines. Moreover, the Remedial Order is not “issued on consent and do[es] not arise from a settlement.” Ligon, 959 F. Supp. 2d at 686. The time to shape its contents has passed. The Unions’ request to intervene for this purpose is also denied.
To the extent the Unions’ motions may be construed as a request to intervene in the
106

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implementation of the Remedial Order, that request is also moot in Floyd. The Remedial Order contemplates a two-stage process in Floyd: an initial stage during which the Court will order a set of “Immediate Reforms,” and an ongoing phase, called the “Joint Remedial Process”:
First, the Monitor will develop, in consultation with the parties, an initial set of reforms to the NYPD’s policies, training, supervision, monitoring, and discipline regarding stop and frisk (the “Immediate Reforms”). These reforms will be developed and submitted to the Court as soon as practicable, and implemented when they are approved. Second, the Facilitator will work with the parties and other stakeholders to develop, through the Joint Remedial Process, a more thorough set of reforms (the “Joint Process Reforms”) to supplement, as necessary, the Immediate Reforms. Id. The Court explicitly offers “police organizations” the opportunity to participate in the “Joint Remedial Process,” along with a variety of other “stakeholders.” Floyd, 959 F. Supp. 2d at 686. Again, the Unions seek to intervene in a process where they have already been permitted to participate. Whether the Unions are labeled “intervenors” or “stakeholders” their “particularly valuable” perspective will be considered by the facilitator and monitor when crafting the reforms to be proposed for the Court’s approval. Id. at 681. With respect to Ligon, as discussed, the Remedial Order covers topics, including the adoption of a written policy regarding TAP-related stops, and changes to supervision, training, and monitoring of TAP-related stops, which do not implicate collective bargaining rights. Thus, the Unions’ request to participate in the remedial phase of Ligon is denied. In sum, the Unions’ requests to participate in the remedial phase are moot, and where they are not, they are denied for the same reasons the Court denies the Unions’ motions to intervene in order to appeal the Remedial Order.
CONCLUSION The Unions’ motions to intervene are DENIED for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the
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litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal.
The parties’ motion for an order modifying the Remedial Order is GRANTED. The modification shall be set forth in a separate order to be issued forthwith. The Unions’ request to participate in the settlement of Floyd and Ligon is, therefore, DENIED as moot.
The Unions’ request to participate in the remedial phase of Floyd is also DENIED as moot because the Remedial Order already offers “police organizations” the opportunity to participate in the development of reforms to NYPD stop-and-frisk policies and procedures through the “Joint Remedial Process.” To the extent the Unions request to participate in the remedial phase of Ligon, that request is DENIED for the same reasons the Court denies their motion to intervene for the purpose of appealing the Remedial Order.
Having resolved the motions to intervene, and having approved the terms of the parties’ proposed resolution of the City’s appeals, the Court has continuing jurisdiction only “insofar as is necessary to effectuate a settlement.” Ligon, 743 F.3d at 365. Accordingly, by August 6, 2014, the City shall submit a letter to the Court indicating the status of its pending appeals. This Court shall take no further action unrelated to effectuating the parties’ settlement unless and until the Court of Appeals dissolves the stay or otherwise returns jurisdiction to the District Court.
The Clerk of Court shall terminate the motions at ECF Nos. 436 and 441 in Floyd and ECF No. 171 in Ligon.
SO ORDERED. Dated: July 30, 2014
New York, New York
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 Case 1:12-cv-02274-AT-HBP Document 198 Filed 07/30/14 Page 1 of 2

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

DOC #: DATE FILED: 7/30/2014

DAVID FLOYD, et al.,

-against-

Plaintiffs,

ORDER MODIFYING REMEDIAL ORDER

CITY OF NEW YORK,

08 Civ. 1034 (AT)

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

12 Civ. 2274 (AT)

Defendants. ANALISA TORRES, District Judge:
For the reasons stated in an Opinion and Order of even date, and pursuant to the directive
of the United States Court of Appeals for the Second Circuit to “effectuate a settlement,”
Mandate and Opinion, (Feb. 21, 2014), Floyd, ECF No. 426; Ligon, ECF No. 166,1
IT IS ORDERED that paragraph 12 on page 13 of the Remedial Order, Floyd, ECF No.
372; Ligon, ECF No. 120,2 is deleted and the following is substituted in its place:
12. a. The Monitor’s position will come to an end in Floyd no sooner than three years after the Court’s entry of the final order approving the Immediate Reforms to be developed in Floyd and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Immediate and Joint Process Reforms to be approved and so-ordered by the Court in Floyd. If the City fails to make such showing, the Monitor’s position will continue until such time as the City can make the required showing of substantial compliance.

1 Published as Ligon v. City of New York, 743 F.3d 362 (2d Cir. 2014). 2 Published as Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013).

Case 1:12-cv-02274-AT-HBP Document 198 Filed 07/30/14 Page 2 of 2
b. The Monitor’s position with respect to the preliminary injunctive relief in Ligon will come to an end no sooner than three years after the Court’s entry of the final order approving the preliminary injunctive relief set forth in Section III of this Order, entitled “Remedies in Ligon” (the “Ligon Preliminary Injunctive Relief”) and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Ligon Preliminary Injunctive Relief. If the City fails to make such showing, the Monitor’s position will continue until such time as the City can make the required showing of substantial compliance.
c. “Substantial compliance” in Floyd shall be defined as compliance with all material aspects of the Immediate and Joint Process Reforms to be approved and so-ordered by the Court. “Substantial compliance” in Ligon shall be defined as compliance with all material aspects of the Ligon Preliminary Injunctive Relief. In either case, noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a failure of substantial compliance. However, temporary compliance during a period of otherwise sustained non-compliance shall not constitute substantial compliance.
d. Substantial compliance shall be measured using the milestones to be set by the Monitor pursuant to paragraph 5 above. The Clerk of Court shall terminate the motions at ECF No. 456 in Floyd and ECF No. 188 in Ligon. SO ORDERED. Dated: July 30, 2014 New York, New York
2

 
 Case 1:12-cv-02274-AT-HBP Document 201
13‐3088‐cv Floyd v. City of New York 13‐3123‐cv Ligon v. City of New York 14‐2829‐cv, 14‐2848‐cv Detectives’ Endowment Ass’n, Inc. v. Floyd 14‐2834‐cv Patrolmen’s Benevolent Ass’n v. Ligon
In the

Filed 10/31/14

Page 1 of 30 N.Y.S.D. Case # 12-cv-2274(AT)

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2014 Nos. 13‐3088‐cv, 13‐3123‐cv, 14‐2829‐cv, 14‐2848‐cv, 14‐2834‐cv

DAVID FLOYD, ET AL., individually and on behalf of all others similarly situated,
Plaintiffs‐Appellees,

v.
CITY OF NEW YORK, Defendant‐Appellant.*

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ DATE FILED: O__c_to_b_e_r_3_1_,_2_0_1_4_

JAENEAN LIGON, individually and on behalf of her minor son, J.G.,
JACQUELINE YATES, ET AL., individually and on behalf of a class of all others similarly situated,
Plaintiffs‐Appellees,

* By stipulation, dated March 8, 2013, the parties withdrew all claims with prejudice against the individual defendants in Floyd v. City of New York. Accordingly, the Clerk of the Court is directed to amend the official captions in Nos. 13‐3088, 14‐2829, and 14‐2848 to conform with the caption above.

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 2 of 30
v. CITY OF NEW YORK, ET AL.,
Defendants‐Appellants.
DETECTIVES’ ENDOWMENT ASSOCIATION, INC., ET AL., Appellants‐Putative Intervenors, v. DAVID FLOYD, ET AL., Plaintiffs‐Appellees, CITY OF NEW YORK, Defendant‐Appellee.
PATROLMEN’S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., ET AL.,
Appellants‐Putative Intervenors, v.
JANEAN LIGON, ET AL., Plaintiffs‐Appellees,
CITY OF NEW YORK, ET AL., Defendants‐Appellees.
2

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On Appeal from the United States District Court for the Southern District of New York
ARGUED: OCTOBER 15, 2014 DECIDED: OCTOBER 31, 2014
Before: WALKER, CABRANES, and PARKER, Circuit Judges.
These appeals present the important question of whether public‐sector unions may intervene into a litigation where the actual parties to that litigation, including a newly‐elected mayoral administration, have agreed to a settlement. The intervenors in this case, a group of police unions, endeavored to challenge the ruling of United States District Judge Shira Scheindlin that the City of New York’s (ʺCityʺ) “stop‐and‐frisk” policy was carried out in a discriminatory manner, as well as her imposition of various reforms to that policy. We previously ordered these cases to be reassigned from Judge Scheindlin to another district judge. The case was reassigned to United States District Judge Analisa Torres who, in a July 30, 2014 decision, denied the unions’ motions to intervene in these cases. The unions appealed this decision and also moved to intervene in the underlying appeals before our Court. With a new mayoral administration elected to office, the City entered into a settlement with plaintiffs pursuant to which plaintiffs will not oppose a motion by the City to terminate the District Court’s jurisdiction after a period of five years if the City can show
3

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substantial compliance with the reforms contained in Judge Scheindlin’s remedial order. The City therefore opposes the unions’ motions, moves to voluntarily dismiss its appeals on the underlying merits, and requests, with plaintiffs’ consent, expedited issuance of the mandate to begin the remedial process.
We hold that the police unions’ motions to intervene are untimely and do not assert an interest that the law seeks to protect. The unions knew, or should have known, of their alleged interests in these controversial and public cases well before they filed their motions in September 2013. For years now, “stop‐and‐frisk” has been the subject of extensive public filings and intense media scrutiny. Whatever the merit of the unions’ claim that Judge Scheindlin’s rulings were incorrectly premised “upon statistical evidence purporting to place 4.4 million stops at issue,” allowing the unions to revive a now‐settled dispute by intervening at this late juncture would substantially prejudice the existing parties and unduly encroach upon the City’s inherent discretion to settle a dispute against it. In other words, granting the unions’ motions in the wake of the November 2013 mayoral election would essentially condone a collateral attack on the democratic process and could erode the legitimacy of decisions made by the democratically‐elected representatives of the people.
Furthermore, the police unions’ interests in their members’ reputations and collective bargaining rights are, as a matter of law, too remote from “the subject of the action” to warrant intervention as a “party.” We stress that our holding is limited to the particular
4

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and highly unusual circumstances presented here and should in no way be construed to encourage premature intervention in cases of public concern where government defendants have discretion to settle.
Accordingly, Judge Torres’s July 30, 2014 decision is AFFIRMED as being within her discretion, the police unions’ motions to intervene in the appeals are DENIED, the City’s motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion.
BAHER AZMY (Darius Charney, Center for Constitutional Rights, New York, NY; Philip A. Irwin, Eric Hellerman, Gretchen Hoff Varner, Covington & Burling, LLP, New York, NY; Jonathan C. Moore, Joshua S. Moskovitz, Beldock, Levine & Hoffman, LLP, New York, NY, on the brief), Center for Constitutional Rights, New York, NY, for Floyd Plaintiffs‐Appellees.
ALEXIS KARTERON (Christopher Dunn, Jordan Wells, New York Civil Liberties Union, New York, NY; Mariana Kovel, The Bronx Defenders, Bronx, NY; Juan Cartagena, LatinoJustice PRLDEF, New
5

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 6 of 30
York, NY; J. McGregor Smyth, Jr., New York Lawyers for the Public Interest, New York, NY; John A. Nathanson, Jeffrey J. Resetarits, Shearman & Sterling LLP, New York, NY, on the brief), New York Civil Liberties Union, New York, NY, for Ligon Plaintiffs‐Appellees.
RICHARD DEARING, Assistant Corporation Counsel (Deborah A. Brenner, Fay Ng, Kathy Park, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for City of New York.
JOSEPH A. DIRUZZO, III (Jeffrey J. Molinaro, on the brief), Fuerst Ittleman David & Joseph, PL, Miami, FL, for Detectives’ Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., New York City Police Department Captains Endowment Association.
ANTHONY P. COLES (Courtney G. Saleski, on the brief), DLA Piper, New York, NY, for Sergeants Benevolent Association.
STEVEN A. ENGEL (Edward A. McDonald, James M. McGuire, Elisa T. Wiygul, on the brief), Dechert LLP, New York, NY, for Patrolmen’s Benevolent Association of the City of New York, Inc.
6

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 7 of 30
James Reif, Gladstein, Reif & Meginniss, LLP, New York, NY, for Amici Curiae Grand Council of Guardians, Inc., National Latino Officers’ Association, and 100 Blacks in Law Enforcement Who Care.
David B. Rankin, Rankin & Taylor, PLLC, New York, NY, for Amici Curiae Communities United for Police Reform, et al.
Jonathan Romberg, Seton Hall University School of Law, Center for Social Justice, Newark, NJ, for Amici Curiae Law Professors.
Jennifer Levy, Office of the Public Advocate, New York, NY, for Amici Curiae Public Advocate for the City of New York and Members of the New York City Council.
PER CURIAM: These appeals present the important question of whether
public‐sector unions may intervene into a litigation where the actual parties to that litigation, including a newly‐elected mayoral administration, have agreed to a settlement. The intervenors in this case, a group of police unions, endeavored to challenge the ruling of United States District Judge Shira Scheindlin that the City of New York’s (ʺCityʺ) “stop‐and‐frisk” policy was carried out in a
7

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 8 of 30
discriminatory manner, as well as her imposition of various reforms to that policy. We previously ordered these cases to be reassigned from Judge Scheindlin to another district judge. The case was reassigned to United States District Judge Analisa Torres who, in a July 30, 2014 decision, denied the unions’ motions to intervene in these cases. The unions appealed this decision and also moved to intervene in the underlying appeals before our Court. With a new mayoral administration elected to office, the City entered into a settlement with plaintiffs pursuant to which plaintiffs will not oppose a motion by the City to terminate the District Court’s jurisdiction after a period of five years if the City can show substantial compliance with the reforms contained in Judge Scheindlin’s remedial order. The City therefore opposes the unions’ motions, moves to voluntarily dismiss its appeals on the underlying merits, and requests, with plaintiffs’ consent, expedited issuance of the mandate to begin the remedial process.
We hold that the police unions’ motions to intervene are untimely and do not assert an interest that the law seeks to protect. The unions knew, or should have known, of their alleged interests in these controversial and public cases well before they filed their motions in September 2013. For years now, “stop‐and‐frisk” has been the subject of extensive public filings and intense media scrutiny. Whatever the merit of the unions’ claim that Judge Scheindlin’s rulings were incorrectly premised “upon statistical evidence purporting to place 4.4 million stops at issue,” allowing the unions to revive a now‐settled dispute by intervening at this late
8

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 9 of 30
juncture would substantially prejudice the existing parties and unduly encroach upon the City’s inherent discretion to settle a dispute against it. In other words, granting the unions’ motions in the wake of the November 2013 mayoral election would essentially condone a collateral attack on the democratic process and could erode the legitimacy of decisions made by the democratically‐elected representatives of the people.
Furthermore, the police unions’ interests in their members’ reputations and collective bargaining rights are, as a matter of law, too remote from “the subject of the action” to warrant intervention as a “party.” We stress that our holding is limited to the particular and highly unusual circumstances presented here and should in no way be construed to encourage premature intervention in cases of public concern where government defendants have discretion to settle.
Accordingly, Judge Torres’s July 30, 2014 decision is AFFIRMED as being within her discretion, the police unions’ motions to intervene in the appeals are DENIED, the City’s motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion.
9

Case 1:12-cv-02274-AT-HBP Document 201 Filed 10/31/14 Page 10 of 30
BACKGROUND On January 8, 2013, United States District Judge Shira A. Scheindlin entered a preliminary injunction against defendants in Ligon v. City of New York, finding that plaintiffs had shown “a clear likelihood of proving at trial” that the New York City Police Department (“NYPD”) had a practice of making unlawful trespass “stops” outside of certain privately‐owned residential buildings in the Bronx.1 On August 12, 2013, after a bench trial that followed plaintiffs’ withdrawal of claims for money damages and claims against individual defendants, Judge Scheindlin issued an order in Floyd v. City of New York, finding that the City had violated the Fourth and Fourteenth Amendments by acting with “deliberate indifference” toward the NYPD’s practice of making suspicionless “stops” and “frisks” and by adopting “a policy of indirect racial profiling by targeting racially defined groups” for “stops” and “frisks.”2 That same day, Judge Scheindlin issued an order imposing remedies in Floyd and Ligon in the form of various “reforms” to the NYPD’s
1 Ligon v. City of New York, 925 F. Supp. 2d 478, 524 (S.D.N.Y. 2013) (“Ligon Liability Order”).
2 Floyd v. City of New York, 959 F. Supp. 2d 540, 562 (S.D.N.Y. 2013) (“Floyd Liability Order”).
10

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“stop and frisk” practices to be overseen by a court‐appointed monitor.3 The City appealed in both cases and sought a stay.
On September 11 and 12, 2013, the Sergeants Benevolent Association (“SBA”), Patrolmen’s Benevolent Association of the City of New York (“PBA”), Detectives’ Endowment Association, Inc. (“DEA”), New York City Police Department Captains Endowment Association (“CEA”), and Lieutenants Benevolent Association of the City of New York, Inc. (“LBA,” and jointly, “police unions” or the “unions”) filed notices of appeal and motions to intervene in the District Court. With the exception of the SBA, the police unions moved to intervene in both Floyd and Ligon. The SBA moved to intervene in only Floyd. While the SBA and the PBA appeal the Liability and Remedial Orders, the DEA, the CEA, and the LBA appeal only the Remedial Order.
On October 31, 2013, we granted the City’s motion for a stay and ordered that the cases be reassigned from Judge Scheindlin to another district judge.4 In an opinion, dated November 13, 2013, we explained the reasons for that order.5 On November 1, 2013, the cases were assigned to United States District Judge Analisa Torres.
Thereafter, an election to fill the various leadership positions in the City’s municipal government was held on November 5, 2013,
3 Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (“Remedial Order”).
4 Ligon v. City of New York, 538 F. App’x 101, 103 (2d Cir. 2013). 5 Ligon v. City of New York, 736 F.3d 118 (2d Cir. 2013).
11

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leading, inter alia, to the election of a new administration. On November 7, 2013, the police unions, with the exception of the SBA, moved to intervene in the Floyd and Ligon appeals. On November 12, 2013, the SBA moved to intervene in only the Floyd appeal.
On February 21, 2014, on the City’s motion, we remanded the causes to Judge Torres for the purpose of exploring settlement and for Judge Torres to address in the first instance the police unions’ motions to intervene in the District Court actions.6 We held in abeyance the police unions’ separate motions to intervene in the pending appeals.7
On March 4, 2014, the parties informed Judge Torres that they had “reached an agreement in principle for resolving the City’s appeals in both Floyd and Ligon” pursuant to which the City would “substantially compl[y]” with the injunctive relief set forth in Judge Scheindlin’s Remedial Order, subject to the parties’ application to Judge Torres to limit the term of the court‐appointed monitor to three years. In the parties’ memorandum of law in support of their joint motion for modification of the Remedial Order, they explained that “[t]he parties have also agreed that when the monitorship ends, the City will authorize the Inspector General of the NYPD . . . to continue to monitor and report to the parties and the public” the NYPD’s compliance with the Remedial Order. They stated that “the parties have [also] agreed that, if the City can show it has
6 Ligon v. City of New York, 743 F.3d 362, 365 (2d Cir. 2014). 7 Id.
12

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maintained substantial compliance with the aforementioned reforms for two years following the termination of the monitorship, the Floyd and Ligon Plaintiffs will not oppose a City motion to terminate the Court’s jurisdiction over Floyd and the preliminary‐injunction aspect of Ligon.” With these representations and agreements before her, on July 30, 2014, Judge Torres granted the parties’ joint motion to modify the Remedial Order and to enter it as an embodiment of their agreements.
On July 30, 2014, Judge Torres also issued an order denying the police unions’ motions to intervene, finding, inter alia, that the motions were untimely and that the police unions did not assert a legally protectable interest. Judge Torres held that the motions were untimely because the unions “should have known for years . . . that their members’ alleged reputational interests and the Unions’ collective bargaining interests were being litigated by parties who were not invested in protecting those interests.” Judge Torres held that plaintiffs would “face significant prejudice if previously uninterested late‐comers are permitted to prolong the legal wrangling and further delay plaintiffs’ hard‐won relief,” and that “[g]ranting intervention would permit the Unions to infringe upon the City’s prerogative to determine policing policy as manifested in its litigation strategy.”
Judge Torres further held that the unions’ “alleged reputational interests are not legally protectable, do not belong to the unions, or are too conclusory and speculative to be colorable on a motion to intervene.” Judge Torres also found that the Remedial
13

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Order does not implicate the unions’ collective bargaining interests because it neither concerns “wages,” “hours,” or “working conditions,” nor does it prevent the unions from bargaining over these issues. The police unions appealed.
On August 6, 2014, with the consent of plaintiffs in Floyd and Ligon, the City moved to voluntarily dismiss its appeals, with prejudice, pursuant to Federal Rule of Appellate Procedure 42(b), stating that the parties “reached an agreement that resolves all the issues raised by the City’s appeals in both Floyd and Ligon, and clears the way for the parties to begin the anticipated remedial process.” The motion further requests, “with the consent of all plaintiffs, that the Court direct the expedited issuance of the mandate in each case.”8
DISCUSSION
I.
We have previously explained that “[i]ntervention is a procedural device that attempts to accommodate two competing
8 See Fed. R. App. P. 41(b) (“The court may shorten or extend the time [to issue the mandate].”); Fed. R. App. P. 41(d)(1) (“The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.” (emphasis supplied)). The parties have impressed upon us the need for expedited termination of proceedings in the Court of Appeals, so that their agreement can be implemented promptly—indeed, they have joined in asking for expedited issuance of the mandate. We are also mindful, however, of the need to protect any arguable rights of others to further appellate review. Therefore, as noted, we direct the Clerk of Court to issue the mandate seven days from the date of the filing of this opinion.
14

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policies: efficiently administrating legal disputes by resolving all related issues in one lawsuit, on the one hand, and keeping a single lawsuit from becoming unnecessarily complex, unwieldy or prolonged, on the other hand,” and that, “[i]n resolving the tension that exists between these dual concerns, the particular facts of each case are important, and prior decisions are not always reliable guides.”9 Because of the fact‐intensive nature of an intervention decision, we review for “abuse of discretion” a district court’s order denying intervention as of right or by permission.10
Federal Rule of Civil Procedure 24(a) provides for intervention as of right, stating in relevant part:
On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.11
9 United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir. 1994). 10 Catanzano by Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir. 1996). See In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (explaining term of art “abuse of discretion”), and note 37 post. 11 Fed. R. Civ. P. 24(a) (emphasis supplied).
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Federal Rule of Civil Procedure 24(b) provides for intervention by permission, stating in relevant part that: “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.”12
To be granted intervention as of right or by permission, “an applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.”13 We have underscored that a “[f]ailure to satisfy any one of these four requirements is a sufficient ground to deny the application.”14
The District Court found that the police unions failed to meet the first and second requirements. We conclude that the District Court acted within its discretion in denying the unions’ motions to intervene as of right and by permission on these grounds.
A. We have explained that “[t]he timeliness requirement is flexible and the decision is one entrusted to the district judge’s
12 Fed. R. Civ. P. 24(b) (emphasis supplied). 13 “R” Best Produce, Inc. v. Shulman‐Rabin Mktg. Corp., 467 F.3d 238, 240 (2d Cir. 2006) (internal quotation marks omitted). 14 Id. at 241 (internal quotation marks omitted).
16

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sound discretion.”15 It “defies precise definition, although it certainly is not confined strictly to chronology.”16 Factors to consider in determining timeliness include: “(a) the length of time the applicant knew or should have known of its interest before making the motion; (b) prejudice to existing parties resulting from the applicant’s delay; (c) prejudice to the applicant if the motion is denied; and (d) the presence of unusual circumstances militating for or against a finding of timeliness.”17
We conclude that Judge Torres acted within her discretion in finding that, in the particular circumstances presented here, these factors weighed against finding that the unions timely moved to intervene.
The unions knew, or should have known, of their asserted interests in their members’ reputations and collective bargaining rights well before they filed their motions in September 2013. They argue that they did not become aware of their interests until Judge Scheindlin’s August 12, 2013 Liability Order and Remedial Order, which, according to the unions, were “expansive, disparaging, and erroneous” and set forth “sweeping and disruptive” remedies.18 Regardless of whether this is true, the fact remains that the full scope of these cases and the potential reform measures were readily
15 United States v. Yonkers Bd. of Educ., 801 F.2d 593, 594–95 (2d Cir. 1986). 16 Pitney Bowes, 25 F.3d at 70. 17 MasterCard Int’l Inc. v. Visa Int’l Serv. Ass’n, Inc., 471 F.3d 377, 390 (2d Cir. 2006) (internal quotation marks and brackets omitted). 18 SBA Br. 23.
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apparent from years of extensive public filings and intense media scrutiny. These public documents regarding plaintiffs’ claims of widespread unconstitutional “stops” and “frisks” and unlawful racial profiling by the NYPD included the Floyd and Ligon complaints, the class certification orders, the Ligon preliminary injunction hearing and order, the Floyd summary judgment order, the highly publicized Floyd bench trial, extensive briefing on remedies, numerous amicus briefs, and countless news articles.19 It was widely understood that the views of the incumbent municipal administration were not shared by their likely successors. This plethora of information should have put the unions on notice of the potential political and judicial dangers that these cases posed to their interests well before Judge Scheindlin’s August 12, 2013 Liability and Remedial orders.
The unions further argue that, notwithstanding their awareness of their interests, they did not know that the City would not be protecting those interests until the newly‐elected New York City Mayor, Bill de Blasio, announced on January 30, 2014 that he
19 See, e.g., Jeffrey Toobin, A Judge Takes on Stop‐and‐Frisk, The New Yorker, May 27, 2013; Mark Hamblett, Stop–and–Frisk Judge Relishes Her Independence, New York Law Journal, May 20, 2013. Compare Editorial, When Police Violate the Constitution, N.Y. Times, Jan. 26, 2013, at A18 (“Earlier this month, the federal judge who is presiding over three lawsuits that challenge different parts of the program issued her harshest ruling yet, putting the city on notice that some aspects of stop and frisk are clearly unconstitutional.”), with Heather MacDonald, Opinion, How to Increase the Crime Rate Nationwide, Wall Street J., June 11, 2013 (“Many New Yorkers watched the two‐and‐a‐ half‐month trial nervously, concerned that a ruling against the NYPD by U.S. District Court Judge Shira Scheindlin could spell an end to a police practice that helped the city achieve an astonishing drop in violent crime.”).
18

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would be dropping the appeals, or at the earliest, when de Blasio took the lead in the mayoral primary election in August 2013 and announced his position against “stops” and “frisks.”20
As an initial matter, it is far from clear, and the unions have not shown, that the City was ever protecting the union members’ reputations, much less their collective bargaining rights. Indeed, the interests of employers and their employees frequently diverge, especially in the context of municipal employment, where an employer’s interests are often not congruent with the employee’s and the employer may argue that the employee was acting outside the scope of his employment.21 This inherent conflict should have become even more apparent on March 8, 2013, when Judge Scheindlin dismissed the individual defendants in Floyd, some of whom were union members, pursuant to the parties’ stipulation.
On this record, we cannot say that Judge Torres abused her discretion in finding that the unions should have known that their “interests might not be adequately represented” far in advance of any indication that the City might settle the dispute.22 For the same reasons, the election of Mayor de Blasio and the City’s decision to
20 DEA Br. 19; SBA Br. 26. 21 See, e.g., Dunton v. Suffolk Cnty., State of N.Y., 729 F.2d 903, 907 (2d Cir. 1984), amended, 748 F.2d 69 (2d Cir. 1984) (“After Monell the interests of a municipality and its employee as defendants in a section 1983 action are in conflict.”). 22 Butler, Fitzgerald & Potter v. Sequa Corp., 250 F.3d 171, 182 (2d Cir. 2001) (emphasis supplied).
19

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settle the cases was not an “unusual circumstance” militating in favor of a finding of timeliness.23
Contrary to the unions’ contention, our decision to leave Judge Torres’s order undisturbed will not encourage outside parties to race to intervene in order to protect their interests whenever a government defendant could decide to settle a lawsuit. We hold only that, in the particular and highly unusual facts and circumstances presented here, it should have been readily apparent to the unions that their interests diverged from the City’s long before the unions filed for intervention.
Judge Torres also did not err in finding that granting intervention at this late stage would prejudice the existing parties. The police unions moved to intervene after liability and remedies had been adjudged. “This resembles post‐judgment intervention, which is generally disfavored because it usually creates delay and prejudice to existing parties . . . and undermines the orderly administration of justice.”24 Allowing intervention at this late
23 MasterCard, 471 F.3d at 390. The unions also argue that, under United Airlines, Inc. v. McDonald, 432 U.S. 385, 396 (1977), the analysis of their motions’ timeliness should turn on whether they filed their motions “promptly after the entry of final judgment.” In that case, however, the intervenor was an unnamed putative class member who became aware that her interest was unprotected only after the denial of class certification became appealable upon entry of final judgment and the named plaintiffs decided not to appeal. Id. at 394. That situation is far afield from the facts and circumstances presented here, where the unions should have known their interests were unprotected well before the Remedial Order was entered.
24 United States v. Yonkers Bd. of Educ., 801 F.2d 593, 596 (2d Cir. 1986) (internal citations omitted).
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juncture would prejudice plaintiffs and the City by postponing resolution of this now‐settled dispute and frustrating both parties’ desire to promptly engage in agreed‐upon reforms. Intervention would disserve the balancing interest of Rule 24 in keeping a “lawsuit from becoming unnecessarily complex, unwieldy or prolonged.”25
Moreover, we have serious reservations about the prospect of allowing a public‐sector union to encroach upon a duly‐elected government’s discretion to settle a dispute against it. To countenance this sort of practice, in this instance or any other, would amount to condoning a collateral attack on the democratic process; would prejudice the City; would not serve the interests served by Rule 24; and would erode the legitimacy of decisions made by the democratically‐elected representatives of the people.26
Our reservations deepen when we note the relatively modest interests the unions seek to advance and to which we now turn. In sum, we find that Judge Torres acted well within her discretion in determining that the unions’ motions to intervene were untimely.
25 Pitney Bowes, 25 F.3d at 69; see also Fed. R. Civ. P. 1 (“[The Federal Rules of Civil Procedure] should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”).
26 Cf. Hollingsworth v. Perry, 133 S. Ct. 2652, 2668 (2013) (“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.”).
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B. We also conclude that Judge Torres acted within her discretion in finding that the unions fail to assert a legally protectable interest—that is, an interest in “the subject of the action” sufficient to grant them the benefits and burdens of status as a party.27 We have made it clear that, for an interest to be “cognizable” under Rule 24, it must be “direct, substantial, and legally protectable.”28 In other words, “[a]n interest that is remote from the subject matter of the proceeding, or that is contingent upon the occurrence of a sequence of events before it becomes colorable, will not satisfy the rule.”29 The unions assert two interests: restoring the reputations of their members and preventing the erosion of their collective bargaining rights.
27 Fed. R. Civ. P. 24(a). 28 Bridgeport Guardians, Inc. v. Delmonte, 602 F.3d 469, 473 (2d Cir. 2010) (quotation marks omitted). 29 Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 129 (2d Cir. 2001) (quotation marks omitted).
22

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1.
Judge Torres properly held that the unions’ interest in their members’ “reputations” is too indirect and insubstantial to be “legally protectable.”30
The unions argue, for example, that the Liability Order “accuses the entire NYPD of [constitutional] violations, and identifies sergeants by name, asserts that they are untruthful, and concludes that numerous stops that they supervised, approved, or conducted broke the law.”31 They argue that, because the Liability Order “brand[s] them lawbreakers and unconstitutional actors,” it “adversely affect[s] the careers and lives” of their members and “cast[s] doubt on the ability of other members to perform their duties effectively while avoiding similar accusations in the future, which in turn affects officer and public safety.”32
Judge Torres did not err in finding that the unions had submitted no evidence to substantiate their claims of reputational harm. Aside from their own assertions, there was no evidence in the record showing that the union members’ careers had been tarnished,
30 Bridgeport Guardians, 602 F.3d at 473. 31 SBA Br. 31. More specifically, the unions argue that the Liability Order “derogates the general practices and performance of NYPD sergeants, including findings that assert the creation of ‘a culture of hostility’ perpetuated by [a NYPD sergeant]; inadequate supervision of stops by [another NYPD sergeant]; insufficient record‐keeping by [another NYPD sergeant]; and various examples of allegedly poor supervision by sergeants generally.” Id. at 32. 32 SBA Br. 35, 37.
23

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that their safety was in jeopardy, or that they had been adversely affected in any tangible way.
Moreover, that these lawsuits principally targeted the City and not individual police officers became clear when plaintiffs withdrew their claims against the individual officers in Floyd in March of 2013. Any indirect reputational effect on individual police officers is too “remote from the subject matter of the proceeding” to be legally protectable.33
2.
Judge Torres also properly found that the unions’ interest in protecting their collective bargaining rights is similarly too remote from the subject matter of the Remedial Order to be legally protectable.
The Remedial Order requires changes to the NYPD’s “stop‐ and‐frisk” policies, procedures, supervision, training, and monitoring. These changes fall squarely within the “management rights” provision of New York City Administrative Code § 12– 307(b), which exempts from mandatory collective bargaining certain
33 Brennan, 260 F.3d at 129. The unions also argue that under United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002), a decision by a sister Circuit that is not binding in this Circuit, they have an interest in the merits of a litigation that alleges constitutional violations by police officers. In that case, however, a proposed consent decree had not yet been entered, and the police officers were still subject to individual liability on allegations of “misconduct and corruption.” Id. at 396. The interests of individual police officers, and the police force generally, in City of Los Angeles were far more direct and substantial than the reputational interest asserted by the unions here.
24

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managerial prerogatives including “the methods, means and personnel by which government operations are to be conducted.”34 Under § 12–307(b), “[i]t is the right of the city . . . [to] exercise complete control and discretion over its organization and the technology of performing its work.”
The unions have not shown in any meaningful way how the reforms set forth in the Remedial Order, which embodies an agreement between the City and plaintiffs, would have any “practical impact” on “questions of workload, staffing and employee safety” that are within the scope of the unions’ collective bargaining rights.35 To the extent any provision of the settlement agreement might be said to affect collective bargaining rights, no provision in the agreement prevents the unions from collectively bargaining. Indeed, the agreement of the parties—that is, the Remedial Order— expressly invites “NYPD personnel and representatives of police organizations” “to be heard in the reform process,” and the City informed us at oral argument that it does not object to appropriate collective bargaining to the extent that issues raised by the settlement agreement would normally be subject to collective bargaining.36
34 N.Y.C. Admin. Code § 12–307(b). 35 Id. 36 Floyd, 959 F. Supp. 2d at 686. We disagree with Judge Torres’s overly broad statement that the unions’ collective bargaining rights are not, and cannot be, “implicated where the unilateral changes at issue arise from a court order.” However, that apparently unsupported proposition of law was not the basis of her otherwise sound holding.
25

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On this record, we find that Judge Torres acted well within her discretion in concluding that the unions do not assert an interest that the law seeks to protect.37
C. For the foregoing reasons, we conclude that Judge Torres acted within her discretion in denying the unions’ motions as of right and by permission.38 For substantially the same reasons, we deny the unions’ motions to intervene in the appeals.39
37 We have repeatedly observed that the somewhat clunky term “abuse of discretion” is a term of art, and does not necessarily mean the district court has engaged in “abusive” conduct. More accurately, “[a] district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, . . . or rendered a decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d at 132 (internal quotation marks, citations, and brackets omitted); see generally Joseph T. Sneed, Trial–Court Discretion: Its Exercise by Trial Courts and Its Review by Appellate Courts, 13 J. App. Prac. & Process 201, 202, 207 (2012) (commentary by the late U.S. Circuit Judge Joseph T. Sneed, a former Dean of the Duke Law School, law professor at Stanford Law School, and Deputy U.S. Attorney General, on the several possible meanings of “abuse of discretion”).
38 See Catanzano, 103 F.3d at 234 (“[A] denial of permissive intervention has virtually never been reversed.”).
39 See Int’l Union, United Auto., Aerospace & Agr. Implement Workers of Am. AFL‐ CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965) (noting that “policies underlying intervention” under Federal Rules of Civil Procedure “may be applicable in appellate courts”).
26

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II. Federal Rule of Appellate Procedure 42(b) provides that “[a]n appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court.”40 Although we have affirmed Judge Torres’s denial of the unions’ motion to intervene, the merits of the underlying Liability and Remedial Orders are complex and controversial, and they indisputably implicate serious questions of broad constitutional importance, as well as difficult evidentiary questions concerning the use of statistical evidence. However, because the City has decided to exercise its right to settle these cases on the basis of an agreement to comply with the Remedial Order, we have no occasion to review the merits of either Judge Scheindlin’s liability determination and challenges to the nature of plaintiffs’ proof, or the remedies she thereafter ordered. The liability determinations are not part of the settlement and the Remedial Order has been accepted solely as the basis for the parties’ settlement. Thus, nothing in this opinion should be construed as accepting or rejecting any part of the Liability and Remedial Orders issued by Judge Scheindlin. While the parties’ settlement may not be formally designated a “consent decree” because it finds its basis in a post‐trial judicial order, we understand it—and the parties confirmed this
40 Fed. R. App. P. 42(b).
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understanding at oral argument—to operate as such.41 We emphasize, therefore, that “[a] continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need.”42 Injunctions in so‐called institutional reform litigation “often remain in force for many years, and the passage of time frequently brings about changed circumstances—changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights—that warrant reexamination of the original judgment.”43 As the Supreme Court has observed, “[i]f a federal consent decree is not limited to reasonable and necessary implementations of federal law, it may improperly deprive future officials of their designated legislative and executive powers.”44 As the parties agreed at oral argument and have stated in their joint memorandum of law pertaining to the settlement, the Remedial Order adopted by the City in settlement of these cases is projected to expire in five years upon a showing of substantial compliance by the City, and the monitor’s oversight will end in three years upon the same showing.45 Moreover, the District
41 The Supreme Court has described a “consent decree” as “an agreement that the parties desire and expect will be reflected in, and be enforceable as, a judicial decree that is subject to the rules generally applicable to other judgments and decrees.” Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 378 (1992). We note that Judge Torres’s comment that the Remedial Order and the parties’ settlement are “not a negotiated settlement or consent decree where the parties have voluntarily ended their legal dispute” is not entirely accurate or relevant in the circumstances.
42 United States v. Swift & Co., 286 U.S. 106, 114 (1932). 43 Horne v. Flores, 557 U.S. 433, 448 (2009). 44 Id. at 450 (internal quotation marks, brackets, and citations omitted).
28

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Court remains open to entertain proposed modifications to the presently agreed‐upon settlement.
In the particular circumstances presented here, the City’s motion for voluntary dismissal of the appeals, with prejudice, must be granted.
CONCLUSION For the reasons set forth above, Judge Torres’s July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions’ motions to intervene in the appeals are DENIED, the City’s motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion. Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions’ perspectives in any ongoing District Court proceedings,46 nothing in this opinion should be
45 See Joint App’x A‐1200. 46 See Floyd, 959 F. Supp. 2d at 686 (stating that “NYPD personnel and representatives of police organizations” are invited “to be heard in the reform process”); see also text at note 36.
29

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construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate.
30

 
 Case 1:12-cv-02274-AT-HBP Document 206 Filed 02/03/15 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID FLOYD, et al.,
Plaintiffs,

USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC#:
DATE FILED: ';../3il5

-againstCITY OF NEW YORK,

08 Civ. 1034 (AT)

Defendant. JAENEAN LIGON, et al.,
Plaintiffs,

12 Civ. 2274 (AT)

-againstCITY OF NEW YORK, et al.,

ORDER REGARDING MONITOR'S FINAL RECOMMENDATIONS

Defendants. ANALISA TORRES, District Judge:

Pursuant to the Remedies Opinion issued on August 12, 2013, the Court appointed a

Monitor "to develop, based on consultation with the parties, a set of reforms ofthe NYPD's

policies, training, supervision, monitoring, and discipline regarding stop and frisk." Floyd v.

City ofNew York, 959 F. Supp. 2d 668, 677 (S.D.N.Y. 2013). "These reforms will be developed

and submitted to the Court as soon as practicable, and implemented when they are approved."

!d. at 678. Accordingly, it is ORDERED that:

1. After consultation with the parties, the Monitor shall, over the course of the monitorship,

deliver to the parties written, final recommendations for the implementation of remedies

("Final Recommendation"). A Final Recommendation shall be labeled as such, dated,

and signed by the Monitor.

2. If a party does not wish to object to a Final Recommendation, the party shall, as soon as

possible, notify the Monitor and the other parties in writing.

Case 1:12-cv-02274-AT-HBP Document 206 Filed 02/03/15 Page 2 of 2
3. If a party does wish to object to a Final Recommendation, the party shall: a. within 5 days of receiving a Final Recommendation, notify the Monitor and the other parties in writing that there will be an objection; and b. within 14 days of receiving a Final Recommendation, submit a letter to the Court on ECF of no more than five single-spaced pages stating the grounds for the objection.
4. Following the submission of a letter under paragraph 3(b), the Court shall issue an order approving or denying the Final Recommendation.
5. If a party fails to make a timely notification under paragraph 3(a) or fails to timely file a letter under paragraph 3(b), the Final Recommendation shall be deemed adopted by the parties, and the Monitor shall submit it to the Court for approval.
6. If the Monitor seeks to file any materials under seal, he shall inform the parties and e-mail a letter to the Court explaining the basis for his request. The Court shall notify the Monitor and the parties of its decision. The Monitor may then, to the extent permitted by the Court, file the redacted materials on ECF and the full, unredacted materials under seal in accordance with this district's procedures. SO ORDERED.
Dated: February 3, 2015 New York, New York
ANALISA TORRES United States District Judge
2

 
 Case 1:12-cv-02274-AT-HBP Document 227 Filed 03/19/15 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID FLOYD, et al.,
Plaintiffs,

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC#:

DATE FILED: 3 /1 1 f t.5

I

I

-againstCITY OF NEW YORK,

08 Civ. 1034 (AT)

Defendant. JAENEAN LIGON, et al.,
Plaintiffs,

12 Civ. 2274 (AT)

-against-

ORDER

CITY OF NEW YORK, et al.,

Defendants. ANALISA TORRES, District Judge:

The Second Circuit's October 31,2014 opinion, Floydv. City ofNew York, 770 F.3d 1051

(2d Cir. 2014), paved the way for a new chapter in this litigation: the difficult process of bringing

the NYPD's stop-and-frisk policies and practices into compliance with federal and state law. At

this initial stage, the Monitor appointed to oversee the reforms is to consult with the parties,

carefully consider each side's perspective, harmonize their views where possible and, as soon as

practicable, propose Final Recommendations to the Court. Floyd v. City ofNew York, 959 F.

Supp. 2d 668, 677-78 (S.D.N.Y. 2013).

On February 3, 2015, the Court issued an order establishing procedures for the Court's

consideration of the Monitor's Final Recommendations. The order states that the Monitor shall

provide Final Recommendations to the parties, that the parties shall have five days to notify the

Monitor of an intent to raise objections, and that the parties shall have fourteen days to advise the

Court of the grounds for any objection.

Case 1:12-cv-02274-AT-HBP Document 227 Filed 03/19/15 Page 2 of 2
By letters dated March 4 and 6, 2015, the Patrolmen's Benevolent Association and the Sergeants Benevolent Association ask to participate in the reform process by presenting their views after the Monitor submits his Final Recommendations. The Court believes the unions' "important perspective on these matters" should be heard earlier.
By letter dated March 18, 2015, the City suggests a way for all five police unions to participate in the remedial process now. Under the City's approach, the City will share proposals with the unions before providing them to the Monitor and the Plaintiffs. The unions may then offer their comments, which the City will convey to the Monitor. The City will continue to confer with the unions about substantial revisions proposed by the Monitor and the Plaintiffs. 1 This approach affords the unions "a practical opportunity" to inform the Monitor of their viewpoints before the Monitor reaches conclusions and submits Final Recommendations to the Court.
Accordingly, the unions' request is GRANTED to the extent that the Court invites the unions to participate in the manner described above.
SO ORDERED. Dated: March 19, 20 15
New York, New York
ANALISA TORRES United States District Judge
1 Appropriate confidentiality provisions shall be established for the exchange of information.
2

 
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First Report of the Independent Monitor Peter L. Zimroth
July 9, 2015
Floyd, et al. v. City of New York Ligon, et al. v. City of New York Davis, et al. v. City of New York

Case 1:12-cv-02274-AT-HBP Document 235 Filed 07/09/15 Page 8 of 97
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Edward Davis
Jennifer Eberhardt John MacDonald James McCabe
Jane Perlov

Case 1:12-cv-02274-AT-HBP Document 235 Filed 07/09/15 Page 9 of 97
TABLE OF CONTENTS Page
I. INTRODUCTION AND BACKGROUND ......................................... 1 A. The Monitor Team ................................................................... 10 B. The Monitor’s Activities .......................................................... 11
II. THE REQUIREMENTS OF THE COURT ORDERS, PRELIMINARY FINDINGS AND OBSERVATIONS.................... 15 A. Finest Messages for Floyd and Ligon ...................................... 15 B. Department Policies and Procedures........................................ 16 1. Written Policies Concerning Stops and Frisks .............. 16 2. Racial Profiling Policies ................................................ 21 3. Trespass Affidavit Program (TAP) Policies .................. 22 4. Documenting a Stop on a Stop Report Form................. 23 5. Davis/NYCHA Policies ................................................. 28 C. Training .................................................................................... 30 1. Training on Stop, Question and Frisk............................ 33 2. Training on Racial Profiling .......................................... 36 a. Training on Bias-Free Policing ................................ 37 b. Training on Implicit Bias and Procedural Justice .... 38 3. Training on TAP Policies (Ligon) ................................. 40 4. Training on Patrols in NYCHA Buildings (Davis) ....... 41 5. Training for Supervisors ................................................ 42
i

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D. Supervision............................................................................... 43 E. Auditing.................................................................................... 46
1. Quality Assurance Division (QAD)............................... 46 2. Early Identification System (EIS).................................. 50 3. Bronx TAP Audit........................................................... 54 F. How NYPD Handles Complaints and Discipline Concerning Profiling, Trespass Enforcement and Stop, Question and Frisk.......................................................................................... 55 1. Tracking and Investigating Profiling Complaints ......... 55 2. NYPD Handling of Complaints Substantiated by the
CCRB ............................................................................. 58 3. CCRB Investigations ..................................................... 63 G. Performance Goals, Objectives and Evaluation....................... 64 H. Body-worn Cameras................................................................. 67 1. Design of a Randomized Controlled Trial..................... 71 2. Exclusions ...................................................................... 74 3. Ranking, Matching and Randomization ........................ 75 III. MEASURING COMPLIANCE WITH THE COURT ORDERS ..... 78 APPENDIX 1................................................................................................ 79 APPENDIX 2................................................................................................ 84
ii

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INDEPENDENT MONITOR’S FIRST REPORT
I. INTRODUCTION AND BACKGROUND This is the court-appointed monitor’s first report regarding the work
done pursuant to court orders in three federal lawsuits concerning New York Police Department (NYPD or Department) practices and policies with respect to encounters between the police and civilians.
Specifically, the three cases challenged the NYPD’s practices and policies concerning “stop, question and frisk,” and also criminal trespass enforcement in and around certain private multiple dwelling buildings enrolled in the Trespass Affidavit Program (TAP) and in New York City Housing Authority (NYCHA) buildings. Floyd v. City of New York, Ligon v. City of New York, and Davis v. City of New York. TAP (also known as Operation Clean Halls) is a program in which building owners authorize the NYPD to conduct patrol activities inside and around their buildings, including, in some buildings, floor-to-floor inspections, called interior patrols or vertical patrols.
In 2013, the district court ruled that the NYPD’s “stop, question and frisk” practices violated the Fourth Amendment and Fourteenth Amendment, and ordered remedial measures. The court named a monitor, Peter Zimroth, to develop and implement those remedies in consultation with the NYPD
1

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I. Introduction and Background
and the plaintiffs and to assess and report to the court on compliance. The City appealed the district court’s actions and obtained a stay of the remedial order. In early 2014, the City and the plaintiffs resolved the Floyd case and part of the Ligon case. The City moved to withdraw its appeal without contesting liability or the court’s related findings.
The City and the plaintiffs agreed that the measures set out in the district court’s 2013 order would be implemented but with an additional provision removing the monitor’s and court’s supervision after specified periods of time if substantial compliance is achieved. The NYPD’s five unions moved to intervene to obtain the status of parties and continue the City’s appeal. On October 31, 2014, the Second Circuit Court of Appeals affirmed the district court’s denial of the unions’ motion to intervene and remanded the case back to the district court, which accepted the parties’ resolution.
The monitorship, which had been on hold for more than a year, began its work again in early November 2014. Judge Analisa Torres is now overseeing the implementation of the Floyd and Ligon remedies.
The City and the plaintiffs have now settled the Davis case, and the court gave final approval to the Davis settlement on April 28, 2015. The Davis case is now part of the remedial process underway in Floyd and
2

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I. Introduction and Background
Ligon. Although there is substantial overlap among the issues raised in Davis, Floyd and Ligon, the Davis case also focuses on officers’ interactions with residents and guests in public housing and on the interplay between the enforcement of criminal trespass laws and the enforcement of NYCHA’s “House Rules.”
The measures required by the court orders in Ligon and Floyd include revisions to NYPD policies, training, supervision, auditing, handling of complaints and discipline, and performance objectives, and a pilot program for body-worn cameras. Remedies in the Davis case are consistent with the remedies in Ligon and Floyd but also include remedies relating to enforcement of the criminal trespass laws, including a revised NYPD form for trespass arrests and changes in NYCHA’s “House Rules.”
In addition to these measures, which the court labeled as the “Immediate Reforms,” the court included a “Joint Remedial Process” to obtain input from the community and criminal justice stakeholders on additional potential reforms, which is being overseen by Judge Ariel Belen (ret.).
This effort has begun at a difficult and contentious period in policecommunity relations. This is also a moment of opportunity. Police Commissioner William J. Bratton has acknowledged that the NYPD’s
3

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

5

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

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

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

University of Michigan

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

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

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

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

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

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

Available from www.wtgrantfoundation.org.

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

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

Eligible

Not Eligible

Total

Manhattan

18

Bronx

11

Brooklyn

22

Queens

13

Staten Island

3

Total

67

4

22

1

12

1

23

3

16

1

4

10

77

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

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

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

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

Top 40

Not Top 40

Total

Manhattan

11

Bronx

8

Brooklyn

14

Queens

6

Staten Island

1

Total

40

7

18

3

11

8

22

7

13

2

3

27

67

The matching process should yield twenty similar pairs of NYPD

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

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

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

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II. H. Body-worn Cameras 3. Ranking, Matching and Randomization
selected from each of the pairs will serve as controls. The monitor team will then assess the randomization process by determining whether balanced treatment and control groups were created. The monitor team will first compare treatment and control precincts on selected police, crime and neighborhood characteristics. Balanced clusters help to ensure that the treatment and control officers will be working in similar neighborhood, crime and policing contexts. The monitor team will then analyze data on treatment and control officers to determine whether the units of analysis (e.g., NYPD officers working the third platoon) systematically differ in the treatment and control groups. The officer comparison will include important information such as age, sex, race, rank and years on the job.
Assessment There are many issues to be addressed in the development of a pilot program for BWCs. The monitor will be consulting with the NYPD, the plaintiffs and others on these issues. The monitor team needs to devise an evaluation plan for the implementation of BWCs on NYPD officers working in PSAs. The characteristics of PSAs are too different from precincts for them to be included in the design described above. Also, there are too few PSAs to do a cluster randomized design. Therefore, we are currently considering a quasi-
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experimental research design comparing PSA 2 (treatment area) to the other PSAs (control areas).
In addition, the monitor team needs to develop outcome measures based on official data sources such as officer use of force incidents, officer injury and resisting arrest information, and CCRB complaints. We are also considering the practicalities and cost of using officer surveys, community surveys, surveys of enforcement action subjects (e.g., arrested individuals, stop and frisk subjects) and videos of police-citizen interactions.
The monitor team is working with the NYPD to develop a plan to implement the BWC technology that will consider the time and resources required to acquire the cameras, wire the precincts to transfer videos via secure internet connections, train officers and supervisors on policy and procedures, and undertake other important steps. The NYPD has published a Request for Proposal. The NYPD anticipates a requirements contract that would allow for the purchase and installation of up to 5,000 BWCs. The monitor has begun to identify, but not yet fully discuss or resolve, the legal and policy issues mentioned earlier.
Several important steps are needed before a BWC pilot can begin. These include moving forward on the NYPD procurement process, ensuring sufficient technology infrastructure in the pilot treatment precincts, and
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III. Measuring Compliance with Court Orders
developing protocols for camera use and data collection, review and evaluation. The NYPD anticipates that because it needs to decide which technology suits its purposes best and to have an infrastructure plan in place to meet the requirements of a pilot of this magnitude, it could be as long as twelve months before the pilot is started. Once the cameras are in place, there would be a one-year trial period. III. MEASURING COMPLIANCE WITH THE COURT ORDERS
The monitor will be working with the parties to establish baselines from which to measure progress, set milestones for accomplishing reform, and assess the Department’s compliance with the court-ordered and agreedupon remedial measures. We will be using both quantitative and qualitative measures. The monitor has asked both the NYPD and the plaintiffs for recommendations for measuring success. The hope is that these measures will also be useful for the Department and will support its needs to assess its own success and that of its officers.
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Appendix 1
APPENDIX 1
MONITOR TEAM
Peter L. Zimroth (monitor) is currently senior counsel at Arnold & Porter LLC and has been a lawyer for more than forty years. He has served as an assistant U.S. attorney for the Southern District of New York, the chief assistant District Attorney in Manhattan and New York City’s corporation counsel. The corporation counsel is the City’s chief lawyer and is in charge of, among other things, representing all the City’s agencies including the NYPD and its officers. At the time Mr. Zimroth served, there were about 500 lawyers in the Law Department, which the corporation counsel heads. Earlier in his career, Mr. Zimroth was a professor at NYU Law School, where he is currently an adjunct professor and director of its Center on Civil Justice.
Mr. Zimroth has served on many boards and committees, among which are the executive committee of the New York City Bar Association, the board of the Legal Aid Society and the boards of two schools for children with learning disabilities. He was appointed by the chief judge of New York State to serve as one of the three directors of the now defunct Capital Defender’s Office, which had the responsibility of ensuring legal representation for indigents charged with capital offenses.
Mr. Zimroth is a lifelong resident of New York City. He is a graduate of Abraham Lincoln High School, Columbia College and the Yale Law School. Upon graduation from Yale, he served as law clerk to Chief Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia Circuit and to U.S. Supreme Court Justice Abe Fortas. He was the 2014 recipient of the Interfaith Center of New York’s James P. Morton Interfaith Award for his work in public service and private practice. Also in 2014, he received one of the New York Law Journal’s Lifetime Achievement Awards for Lawyers Who Lead by Example.
Richard Jerome (deputy monitor) is a lawyer who has spent most of his career working on criminal justice issues with law enforcement agencies and private foundations. Most recently, he was project manager of the public safety performance project of the Pew Charitable Trusts. This project helps states advance fiscally sound sentencing and corrections policies that protect public safety, hold offenders accountable and control corrections costs.
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Appendix 1
Prior to joining Pew, Mr. Jerome served for six years (2002–2008) as Deputy Monitor and court-appointed Special Master for two police reform settlements in Cincinnati, Ohio. Other projects included reviews of the Denver Police Department’s and Portland, Oregon, Police Bureau’s officer-involved shootings (both with the Police Assessment Resource Center (PARC)); reviews of police oversight systems in Farmington, NM, Milwaukee, WI, and Albuquerque, NM (also with PARC); and assistance to the District of Columbia Council on police department responsibilities and standards for handling First Amendment demonstrations and other assemblies. Mr. Jerome also served as a consulting expert for the City of Oakland and the Detroit Police Departments.
From 1997 to 2001, he was Deputy Associate Attorney General in the U.S. Department of Justice, overseeing the work of the Civil Rights Division and the Community Relations Service, as well as coordinating the Justice Department’s efforts to promote police integrity, including its publication of “Principles for Promoting Police Integrity.” Mr. Jerome has been a senior trial lawyer in the Civil Rights Division and has worked on Capitol Hill and in private practice.
Anthony A. Braga is the Don M. Gottfredson Professor of Evidence-Based Criminology in the School of Criminal Justice at Rutgers University and a Senior Research Fellow in the Program in Criminal Justice Policy and Management at Harvard University. He is also a member of the University of Chicago Crime Lab. He is the immediate Past President and an elected Fellow of the Academy of Experimental Criminology. Dr. Braga’s research involves collaborating with criminal justice, social service and community-based organizations to address illegal access to firearms, reduce gang and group-involved violence, and control crime hot spots. Dr. Braga’s work on controlling and preventing violent crime has received many awards. He was a recipient of the U.S. Attorney General’s Award for Outstanding Contributions to Community Partnerships for Public Safety (2009), the U.S. Department of Justice Project Safe Neighborhoods’ Distinguished Service by a Research Partner Award (2010) and the International Association of Chiefs of Police Excellence in Law Enforcement Research Award (2011).
Dr. Braga has published numerous scholarly papers and his work has been published in top criminology and criminal justice journals such as Criminology, the Journal of Quantitative Criminology, Journal of Research in Crime and Delinquency, and Criminology & Public Policy. His work has also appeared in important medical and public health journals such as the New England Journal of Medicine, the Journal of the American Medical Association, and the American Journal of Public Health. With colleagues, he has authored and edited several
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books such as Policing Problem Places: Crime Hot Spots and Effective Prevention (Oxford University Press, 2010), Problem-Oriented Policing and Crime Prevention (Criminal Justice Press, 2008), Legitimacy and Criminal Justice: A Comparative Perspective (Russell Sage Foundation Press, 2007) and Police Innovation: Contrasting Perspectives (Cambridge University Press, 2006).
Edward Davis is a thirty-five year veteran police officer. He rose through the ranks of the Lowell Police Department holding positions in patrol, as detective supervisor and leader of a local, state and federal narcotics and organized crime task force. In 1994, Mr. Davis was promoted to Superintendent of the Lowell Police Department and led that agency for thirteen years. During his tenure, he introduced a community policing philosophy that led to a more than 60% reduction in serious crime. Lowell was recognized by Attorney General Janet Reno for its leadership in forming close relationships with the community that drive crime reduction.
In 2006, Mr. Davis was appointed by Mayor Thomas Menino to lead the Boston Police Department. Davis worked to bring the BPD closer to the community. He was a constant presence in Boston’s troubled neighborhoods. This community policing philosophy led to a reduction of serious crime in Boston of more than thirty percent. During the same period, there was also a reduction in arrests of thirty percent. Davis is an accomplished lecturer in police leadership. He completed a fellowship at Harvard’s Institute of Politics in 2014. After managing several high–profile cases, including the Boston Strangler, the Craigslist Killer and the tragic Boston Marathon bombing, Davis stepped down in 2013. He is the founder and president of Edward Davis, LLC, a security consulting firm located in Boston’s North End.
Jennifer Eberhardt is an Associate Professor in the Psychology Department of Stanford University. Her area of expertise is the ways that individuals racially code and categorize people, with a particular focus on associations between race and crime. She is currently working with the Oakland Police Department to design ways to improve policing and to help build and maintain the trust of the communities it serves. She is also working with that Department to study the implementation of its program of body-worn cameras.
Professor Eberhardt received a B.A. (1987) from the University of Cincinnati and an A.M. (1990) and Ph.D. (1993) from Harvard University. From 1995 to 1998, she taught at Yale University in the Departments of Psychology and African American Studies and was a research fellow at the Center for Race, Inequality, and
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Politics. She joined the Stanford University faculty in 1998. Professor Eberhardt was one of twenty-one people who received a fellowship from the John D. and Catherine T. MacArthur Foundation in 2014 (a MacArthur “genius grant”).
John MacDonald is Professor of Criminology and Sociology and Chair of the Department of Criminology at the University of Pennsylvania. Professor MacDonald focuses primarily on the study of crime, race and ethnic disparities in criminal justice, and the effect of public policy responses on crime. In 2012, Dr. MacDonald won the Association of Public Policy and Management’s David N. Kershaw Award, established to honor individuals younger than forty who have made significant contributions to the field of public policy analysis and management. He has served as a principal investigator and co-principal investigator on health, injury prevention, and crime research projects through funding provided by the American Statistical Association, the National Institute of Justice, the Centers for Disease Control and Prevention, the Robert Wood Johnson Foundation and the National Institutes of Health. He was awarded the Young Experimental Scholar Award by the Academy of Experimental Criminology for significant contributions to experimental research.
Dr. MacDonald’s research publications include numerous studies using rigorous quantitative methods to examine the effects of social policies on crime and of institutional social justice reforms on criminal justice practices. His recent work on racial disparities in criminal justice has appeared in the American Journal of Public Health and the Journal of Legal Studies.
James McCabe is an Associate Professor, Department Chair and Director of the Graduate Program in Criminal Justice at Sacred Heart University in Fairfield, CT. He joined the faculty at Sacred Heart after completing twenty-one years with the New York City Police Department. In the NYPD, he held numerous–command level assignments, including Commanding Officer of Labor Relations, Commanding Officer of the Training Bureau, Commanding Officer of the Police Academy and the Commanding Officer of the 110th Precinct in Elmhurst/Corona, Queens. He was also assigned as the Executive Officer of the Police Commissioner’s Office and the 113th Precinct in South Jamaica. He retired in 2006 from the NYPD with the rank of Inspector to assume a new career in academia at Sacred Heart.
Dr. McCabe has a B.A. in Psychology from Queens College, an M.A. in Labor Studies from Empire State College, an M.A. in Criminal Justice from John Jay
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College, and a Ph.D. in Criminal Justice from the CUNY Graduate Center. He is a graduate of the 189th Session of the FBI National Academy, and of the Executive Programs at Columbia University’s Police Management Institute and the JFK School of Government at Harvard University. He has published numerous scholarly articles and book chapters on the subject of police effectiveness and has been the principal investigator in more than forty studies examining police operations in twenty-six states and in every region of the country. He has lectured around the country to both police and academic audiences about organizational behavior, leadership, supervisory communications, and the impact of police operations on public safety and neighborhood satisfaction with police services.
Jane Perlov has an extensive background in risk management and a distinguished career in law enforcement, public safety and corporate security. She served more than twenty-five years in law enforcement, starting in 1981 as a police officer in the New York City Police Department. She rose through the ranks, ultimately commanding the 20th and 30th Precincts in Manhattan and serving as Chief of Detectives for the Borough of Queens. In late 1998, while in that position she was invited by Governor Cellucci of the Commonwealth of Massachusetts to join his Cabinet as Secretary of Public Safety. There, she managed policy and fiscal oversight for twenty-one agencies, boards and commissions, such as the State Police and the Corrections Department.
In 2001, Ms. Perlov was sworn in as Chief of Police for the capital city of Raleigh, North Carolina. Under her leadership, the Department initiated a decentralized district policing model that fostered strong bonds between police officers and the neighborhoods they served, and placed both opportunity and accountability in the hands of district commanders.
From 2009 to 2011, Ms. Perlov served as Global Corporate Security Director of Bank of America. She was responsible for developing and implementing strategies and programs that provided a safe and secure environment for employees, customers and assets worldwide. Born and raised in New York City, Ms. Perlov is now an independent consultant and resides in Asheville, North Carolina.
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APPENDIX 2
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 Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 1 of 22

ARNOLD & PORTER LLP

Peter L. Zimroth Peter.Zimroth@aporter.com
+1 212.715.1010 +1 212.715.1399 Fax
399 Park Avenue New York, NY 10022-4690

VIAECF

August 7, 2015

USDCSDNY DOCUMENT ELECTRONICALLY FILED
DOC#:,---,~~=---
DATE FILED: ·~ /l4/i5

Honorable Analisa Torres United States District Judge United States District Court Southern District ofNew York 500 Pearl Street New York, NY 10007-1312

Re: Floyd, et al. v. City ofNew York, 08-CV-1034 (AT), Ligon, et al. v. City ofNew York, et al., 12-CV-2274 (AT), Davis, et al. v. City ofNew York, et al., 10-CV-00699 (AT), Final Recommendations regarding P.G. 212.11 and P.G. 203.25

Dear Judge Torres, I am pleased to submit my Final Recommendations regarding the following NYPD
policies. I believe that each of them meets the requirements set out in the remedial order. 1. Patrol Guide Section 212.11, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops; 2. Patrol Guide Section 203.25, Department Policy Prohibiting Racial Profiling and Bias-Based Policing. NYPD Policies on Stop, Question and Frisk In focus groups and in conversations with individual officers about stop, question and
frisk, we have heard a consistent message: the officers want more guidance and instruction

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 2 of 22
ARNOLD & PORTER. LLP
Honorable Analisa Torres August 7, 2015 Page2 about what they can and cannot do under the law; and they want a clearer understanding of what their supervisors expect of them. One of the tools the Department has for communicating these messages is the Patrol Guide, which all officers are expected to read and follow. Unfortunately, as the Department itself acknowledges, the current version of the Patrol Guide section on investigative encounters (Patrol Guide Section 212.11) does not provide sufficient guidance or instruction.
That section focuses almost entirely on the steps officers and superiors should take after what is assumed to be a lawful stop. The current procedures do not describe the legal standards governing stops or the degree ofknowledge an officer must have to make a stop lawful. Nor do the procedures give officers any guidance about the degree of knowledge necessary for encounters that are less intrusive than a stop or arrest (for example, a request for information or a common law right of inquiry), which are governed by the New York State Court of Appeals decision, People v. DeBour. And the procedures do not distinguish between the legal requirements governing stops and those governing frisks and searches, and give only limited guidance as to the responsibility of supervisors.
The court recognized some of these deficiencies and required specific measures to remedy the defects. The court did not impose new legal requirements, but required only that the legal standards be stated correctly and clearly. Clarity is important because officers should have confidence that they understand when it is permissible to stop, question and frisk people and when it is not.

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Honorable Analisa Torres August 7, 2015 Page 3
Under the court orders, as agreed to by the City and the Department, the Patrol Guide must:
(1) state what constitutes a stop, when a stop may be conducted, when a frisk may be conducted, and when: a search may be conducted;
(2) include a definition of"reasonable suspicion," the standard needed for a stop based on Terry v. Ohio;
(3) state clearly that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person;
(4) require officers to document the stop and reasonable suspicion, and, if conducted, the frisk, on both a stop report form (formerly called a UF-250) and in their activity logs;
(5) require supervisory review of stops, including review of the constitutionality of the stop, not just that a stop report form was filled out; and
(6) provide for supervisors to identify officers needing further training and/or potential discipline.
The NYPD has worked with the monitor and the plaintiffs to develop a revised P.G. 212.11 that deals with the inadequacies of the current Patrol Guide section and meets the requirements of the remedial order. The proposed procedures describe the types of encounters a uniformed member of the service may initiate with a member of the public during the course of . his or her official duties, the level of knowledge required for each type of encounter, the scope of a police officer's authority for each type of encounter, the measures that are permissible to

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Honorable Analisa Torres August 7, 2015 Page4 protect uniformed members of the service from injury while engaged in such encounters, and the procedures to be followed by a member of the service during these encounters.
The proposed procedures also require documentation of all stops and make more explicit the responsibilities of supervising officers up the chain of command. They make clear that officers in need of training or possible discipline should be identified, but they state that, ordinarily, isolated cases of good-faith mistakes made by officers trying to do their jobs will be dealt with by training at the command level and not by discipline. The procedures also require that, absent exigent circumstances, the officer must offer an explanatory "receipt" to a person stopped but not arrested. The receipt the Department proposes to use is attached for information only and not for your approval at this time.
In addition to amending P.G. 212.11 to meet the court's specific requirements, the Department took the opportunity, working with the plaintiffs and the monitor team, to respond to recurring questions raised by officers and supervisors. Thus, by way of example, the proposed P.G. 212.11 instructs officers on protective measures an officer can lawfully take even when there are no lawful grounds for a frisk. The procedures define "objective, credible reason" (the level ofknowledge an officer needs to make a request for information), and "founded suspicion" (the level of knowledge an officer must have to ask accusatory questions during a common law right of inquiry). The procedures remind officers that they may ask an individual to identify himself or herself or present an identification document, but that members of the public are not required to possess IDs or present them to police officers when requested, and that refusing to produce an ID alone will not elevate the level of the encounter.

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Honorable Analisa Torres August 7, 2015 PageS
NYPD Policy Prohibiting Racial Profiling and Bias-Based Policing The NYPD's policy prohibiting racial profiling is set out in Section 203.25 of the Patrol Guide. The court orders provide that the revised Patrol Guide procedure must include a definition of racial profiling stating that race, ethnicity or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description. This is not new law; it is based on the Fourteenth Amendment of the U.S. Constitution. The NYPD has worked with the monitor and the plaintiffs to prepare a revised P.G. 203.25. The new procedure states that police action, including stops, frisks, arrests or other law enforcement actions, may not be motivated, even in part, by the actual or perceived color, ethnicity or national origin of an individual. Race may be used only if it is part of a reliable and specific suspect description that includes not just race, gender and age, but other identifying characteristics or information. The proposed procedure also includes a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
APPROVED. SO ORDERED. Dated: August 24, 2015
New York, New York
ANALISA TORRES United States District Judge

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 6 of 22

DRAFT INTERIM ORDER

SUBJECT: REVISION TO PATROL GUIDE 212-11, "STOP AND FRISK"

DATE ISSUED:
.
08-05-15

REFERENCE:
*P.G. 212-11

NUMBER:
DRAFT 23

1. In order to ensure members of the service comply with the Department's policy regarding investigative encounters, Patrol Guide 212-11, "Stop and Frisk" has been revised. In addition, in order to ensure that individuals who are subject to a stop by a uniformed member of the service receive an explanation for the stop, a new Department form entitled, "'WHAT IS A STOP? (PD383-153)" has been created.

2. Therefore, effective 0001 hours, September 21, 2015, Patrol Guide 212-11, "Stop and Frisk'' is SUSPENDED and the following new procedure entitled, "'Investigative Encounters: Requests for Information, Common Law Right oflnquiry and Level 3 Stops" will be complied with:

PURPOSE

To describe the types of encounters a uniformed member of the service may initiate with a member of the public during the course of his or her official duties, the level of knowledge required for each type of encounter, the scope of a police officer's authority for each type of encounter, the measures that are permissible to protect uniformed members of the service from injury while engaged in such encounters, and the procedures to be followed by a member of the service during these encounters.

SCOPE

In accordance with their oath to uphold the law, uniformed members of the service must conduct investigative encounters in a lawful and respectful manner; however, nothing in this section is intended to deter an officer from initiating appropriate inquiries and investigative encounters, including stops, or using any lawful and appropriate tactics to ensure the officer's safety during such investigative encounters. Moreover, this procedure should not be interpreted to discourage an officer from engaging in voluntary consensual conversations with members of the public. Members of the service are encouraged to develop positive relationships in the communities they serve. Such positive interactions with the community foster trust and understanding that will in tum enhance public safety and officer safety.

DEFINITIONS

INVESTIGATIVE ENCOUNTERS - In the context of this procedure, an investigative encounter is a police interaction with a member of the public/civilian for a law enforcement or investigative purpose. The New York State Court of Appeals in the case of People v. DeBour established the types or levels of such encounters and the authority of the police at each level, consistent with federal constitutional standards. These encounter levels and the authority of the police at each level are outlined in the definitions that follow.

REQUEST FOR INFORMATION (LEVEL 1 ENCOUNTER) - A request for information is an encounter between a civilian and a uniformed member of the service conducted for the purpose of requesting information from the civilian. The uniformed member of the service must have an objective credible reason to approach the civilian. This type of encounter does not require any suspicion of criminal activity. The objective is to gather information and not to focus on the
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DEFINITIONS (continued)

person as a potential suspect. A police officer may seek information related to the reason(s) the person was approached, such as the person's name, address and destination if those questions are related to the objective credible reason for the approach. The officer may not ask accusatory questions. The person may refuse to answer questions andlor walk or even run away. Refusal to answer questions andlor walking or running away does not escalate the encounter. At this level, the officer may not seek consent to search, may not use force, and may not create a situation (either by words or actions) where a reasonable person would not feel free to leave.

OBJECTIVE CREDIBLE REASON - A reason is objectively credible if it is based on more than a hunch or a whim. The reason to gather more information may relate to a public safety/service function or a law enforcement function, but need not be based on any indication of criminality.

COMMON-LAW RIGHT OF INQUIRY (LEVEL 2 ENCOUNTER) - A common-law right of inquiry is an encounter between a civilian and a uniformed member of the service conducted for the pwpose of asking the civilian pointed or accusatory questions because the police officer has a "founded suspicion'' that criminal activity is afoot. "Founded suspicion" is a lower level of suspicion than the "reasonable suspicion" required to conduct a ·•stop" or Level 3 encounter. Upon a founded suspicion of criminality, the officer may approach a person to ask accusatory questions and may seek consent to search; however, consent must be voluntarily given. During a "Request For Information/Level 1 Encounter,'' giving innocuous answers does not escalate the encounter, but providing false information may give rise to founded suspicion. During a Level 2 encounter, force may not be used, the person is free to refuse to answer questions, and is free to leave. Refusal to answer questions or walking away does not raise the level of suspicion. The officer may not create a situation (either by words or actions) where a reasonable person would not feel free to walk away.

FOUNDED SUSPICION - Founded suspicion of criminal activity arises when there is some present indication of criminality based on observable conduct or reliable hearsay information.

LEVEL 3 STOP (LEVEL 3 ENCOUNTER)- A level 3 stop is any encounter between a civilian and a uniformed member of the service in which a reasonable person would not feel free to disregard the officer and walk away. A Level 3 stop may take place even without the threat or use of physical force by the officer; whether an encounter amounts to a stop will be judged by the facts and circumstances of the encounter. A stop may be conducted only when a police officer has an individualized reasonable suspicion that the person stopped has committed, is committing, or is about to commit a felony or Penal Law misdemeanor. The police officer may ask questions and detain the person while an expeditious investigation is conducted to determine if there is probable cause to arrest the person. The police officer may seek consent to search. The consent must be voluntarily given. Reasonable force may be used to stop a person. The type and amount of force used must be objectively reasonable under the circumstances.

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INTERIM ORDER NO. DRAFT 23

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DEFINITIONS (continued)

REASONABLE SUSPICION - Reasonable susp1c10n exists when the information known to the member of the service would make an ordinarily prudent and cautious police officer under the circumstances believe criminal activity is at hand. The officer must have a particularized and objective basis for suspecting the person stopped of the criminal conduct. The officer must be able to articulate specific facts establishing justification for the stop; hunches or gut feelings are not sufficient.

FRISK - A carefully limited running of the hands over the outside of a person's clothing feeling for a deadly weapon or any instrument, article or substance readily capable of causing serious physical injuzy and of a sort not ordinarily carried in public places by law-abiding persons. A :frisk is authorized when the member of the service reasonably suspects the person is armed and dangerous. This includes situations in which the officer reasonably suspects that the person has committed, is committing, or is about to commit a violent crime or when the officer observes something on the person that she/he reasonably suspects is a weapon. A frisk may not be conducted to discover evidence or the proceeds or instrumentalities of a crime. A police officer cannot "frisk" a bag or item of personal property unless the officer has a reasonable suspicion that the person is armed and dangerous and the bag or item could contain a weapon and is within the person's reach.

SEARCH AFTER FRISK- In the context of the investigative encounters described in this section, a search occurs when the officer places his/her hands inside a pocket or other interior portions of a person's clothing or personal property to remove an object that the member felt during a frisk and reasonably suspects is a weapon or dangerous instrument.

PROCEDURE

When a uniformed member of the service engages in an investigative encounter with a civilian:

CONDUCTING A LEVEL 1 ENCOUNTER - A REQUEST FOR INFORMATION:

UNIFORMED 1. MEMBER OF 2. THE SERVICE
3.
4. 5.
6.
7.

Approach the person if there is an objective credible reason to do so. If not in uniform, identify yourself as a police officer verbally and by displaying your shield in a conspicuous manner, if practicable. You may seek information and ask general, non-threatening questions related to the reason for the approach. However, accusatory questions are not permitted.
The person may refuse to answer questions and is free to leave. You may inform the person that she/he is free to leave, but you are not required to do so unless she/he specifically asks. When feasible and consistent with personal safety, provide the individual with an explanation for the encounter. DO NOT detain the person, use or threaten the use of force, or request consent to search.

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INTERIM ORDER NO. DRAFT 23

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CONDUCTING A LEVEL 2 ENCOUNTER - THE COMMON LAW RIGHT OF INQUIRY:

UNIFORMED 8. Approach the person if you have a founded suspicion of criminality.

MEMBER OF 9. If not in uniform, identify yourself as a police officer verbally and by

THE SERVICE

displaying your shield in a conspicuous manner, if practicable.

10. You may seek information and ask questions, including pointed and

accusatory questions.

11. The person may refuse to answer questions and is free to leave.

12. You may request consent to search; the consent must be voluntarily given.

13. You may inform the person that she/he is free to leave, but you are not

required to do so unless she/he specifically asks.

14. When feasible and consistent with personal safety, provide the individual

with an explanation for the encounter.

15. DO NOT detain the person or use or threaten the use of force.

NOTE

During a Level 1 or Level 2 encounter, an officer may not create a situation (either by words or actions) where a reasonable person would not feel free to walk away. A
person may be detained only if a properly conducted Level 1 or Level 2 encounter yields
information to support a reasonable suspicion that the person committed, was committing, or was about to commit a felony or Penal Law misdemeanor.

CONDUCTING A LEVEL 3 ENCOUNTER- A LEVEL 3 STOP:

UNIFORMED 16. Upon reasonable suspicion that the person has committed, is committing,

MEMBER OF

or is about to commit a felony or Penal Law misdemeanor, stop and

THE SERVICE

detain the person for the purpose of conducting a criminal investigation.

a.

If not in uniform, identify yourself as a police officer verbally and

by displaying your shield in a conspicuous manner, if practicable.

b.

Question the suspect to the extent necessary to determine whether

there is probable cause to make an arrest.

c.

You may ask pointed and accusatory questions related to the

reason for the stop. Refusal to answer questions or produce

identification does not establish probable cause.

d. You may seek consent to search. Consent must be voluntarily

g1ven.

e.

Reasonable force may be used to stop a person.

f.

If you have a reasonable suspicion at any point before or during

the stop, that the person is armed and dangerous, you may conduct

a "frisk." [See "Conducting a Frisk" below.]

g. The suspect may be detained only as long as necessary to confirm

or dispel your suspicion that she/he was committing, committed,

or was about to commit a felony or Penal Law misdemeanor.

Authority to detain the suspect ends when the tasks tied to the

reason for the stop are completed or reasonably should have been

completed.

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INTERIM ORDER NO. DRAFT 23

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UNIFORMED

h. When feasible and consistent with personal safety, provide the

MEMBER OF

individual with an explanation for the encounter.

THE SERVICE

1.

Obtain the suspect's name, address, and any additional information

(continued)

that will be required to complete the STOP, QUESTION AND

FRISK REPORT WORKSHEET (PD344-151A).

J.

Do not transport or otherwise move the suspect from the location

where she/he is stopped unless she/he voluntarily consents or there

is an exigency necessitating relocation (e.g., hostile crowd, threat

to safety, hospital show-up, etc.).

17. Release the person immediately after completing the investigation if probable

cause to arrest does not exist.

a.

Provide the person stopped with an explanation for the stop, question

and or frisk encounter, absent exigent circumstances.

b. Offer the person stopped a WHAT IS A STOP? (PD383-153) tear-

off information card, absent exigent circumstances.

CONDUCTING A FRISK, AND WHEN APPROPRIATE, A SEARCH:

UNIFORMED 18. If a police officer develops a reasonable suspicion that a person is armed

MEMBER OF

and dangerous, the officer may frisk the person for a deadly weapon or

THE SERVICE

any instrument, article or substance readily capable of causing serious

physical injury and of a sort not ordinarily carried in public places by law-

abiding persons. Reasonable suspicion that a person is armed and

dangerous may arise from the officer's observations or the facts and

circumstances of the encounter including:

a. Reasonable suspicion that the suspect has committed, is committing

or is about to commit, a violent crime (e.g., assault with a deadly

weapon, burglary, rape, robbery, etc.)

b. Observation of something on the person that the officer reasonably

suspects is a weapon

c. A statement by the suspect stopped that she/he is armed

d. Information known by the officer that the suspect may be carrying a

weapon, such as statements from a victim or witness.

19. The purpose of the frisk is to ensure the safety of the officer and not to locate

evidence of a crime, such as drugs.

20. There is no requirement to question a suspect prior to conducting a lawful

frisk.

21. Conduct the frisk by carefully running your hands down the outside of the

person's clothing.

22. Where the frisk reveals an object that the member of the service

reasonably suspects may be a weapon, the member of the service may

search only those interior portions of the stopped person's clothing to

remove the weapon.

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UNIFORMED 23. An officer may not frisk a person's bag or other item of personal property

MEMBER OF

unless the officer has reasonable suspicion that the person is armed and

THE SERVICE

dangerous and that the bag or item of personal property could contain a

(continued)

weapon and is within the person's reach. If the bag/item is soft, the

officer should run her/his hands down the outside of the bag/item and

open it only if she/he feels the contours of what she/he believes is a

weapon. If the bag/item is rigid and unlocked, the officer may open it to

ensure it does not contain a weapon.

NOTE

The guidelines in step "23" do not apply to mass transit system checkpoint type inspections ofbackpacks, containers and other carry-on items that are capable ofcontaining explosive devices.
Protective measures: Even if an officer does not have reasonable suspicion that a person is
armed and dangerous, there are tactics for officer sqfoty that an officer may use short ofa frisk when the officer perceives her/his saftty is at risk These include ordering the individual to take her/his hands out ofher/his pockets, put down or step awayfrom an otherwise lawfUl object that
could be used as a weapon, grabbing the person's hands ifthe circum~tances suggest the person may be grabbing a weapon, orforcibly removing the person's hands.from her/his pockets ifthe
individual refuses to remove them from her/his pockets. Any lawfully possessed article that is removed/safeguarded by a member ofthe service during an investigative encounter should be returned to the individual at the conclusion ofthe encounter (unless probable cause is developed and the individual is arrested).

Requesting identification documents: At any level, an officer may ask an individual to verbally identifY herself/himselfor present an identification document to verify that person's identity and/or address. During Level 1 or 2 encounters, when peiforming this task, the officer must not create a situation where the person does not feel free to leave. Other than the operator of a motor vehicle/motorcycle, members of the public are not required to possess identification documents or present identification documents to police officers when requested. Refusal or inability to produce identification alone will not elevate the level of the encounter. Absent probable cause that the person committed an offense, she/he may not be arrested or removed to a Department facility for further investigation merely because she/he refused to produce identification.

REQUIRED DOCUNJENTATION:

UNIFORMED 24. For all Level 3 stops, prepare a STOP, QUESTION AND FRISK

MEMBER OF

REPORT WORKSHEET for EACH person stopped.

THE SERVICE

a.

Complete all applicable captions and follow the directions printed on

the form.

b. Check "REFUSED" in the appropriate space if the person stopped

refused to identify hersel£1himself

(1) Request the patrol supervisor to respond to verify refusal.

(2) Do not detain the person, however, if the investigation is

complete and there is no probable cause to make an arrest.

c.

Select all relevant check boxes if more than one descriptive term

applies.

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INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 12 of 22

UNIFORMED MEMBER OF THE SERVICE (continued)
NOTE

d.

Describe in plain language (rather than numeric Penal Law section)

the specific felony or Penal Law misdemeanor you suspected the

person had committed, was committing or was about to commit.

The STOP, QUESTION AND FRISK REPORT WORKSHEET is not preparedfor Level 1 and Level 2 encounters unless the encounter escalates to a Level 3 stop. Similarly, the STOP, QUESTION AND FRISK REPORT WORKSHEET is not prepared when an officer makes a summary arrest for an offinse/crime or issues a summons for an observed violation unless the suspect was initially detainedfor investigation in a Level 3 stop.

25. Enter details in ACTIVITY LOG (PD112-145) or INVESTIGATOR'S

DAILY ACTIVITY REPORT (PD439-156), as appropriate, and include

the following information in the entry:

a. Date, time and location of stop

b. Pedigree information, unless refused, and detailed description of

the person stopped

c.

Identify in plain language, the suspected felony or Penal Law

misdemeanor

d. ICAD number, if applicable

e.

Disposition including the time the encounter was concluded

f

Precinct serial number assigned to STOP, QUESTION AND

FRISK REPORT WORKSHEET, if available

g.

Describe in your own words all of the facts and information relied

upon to conclude that there was reasonable suspicion that the person

stopped had committed, was committing or was about to commit a

felony or Penal Law misdemeanor

h.

Ifthe person is subsequently frisked, describe in your own words all of

the facts and information relied upon to conclude that there was

reasonable suspicion that the person stopped was armed and dangerous

1.

If a search is conducted, describe the basis for the search, the specific

area searched, what was felt and whether a weapon or other

contraband was recovered.

26. Prior to the end of your tour, submit the STOP, QUESTION AND FRISK

REPORT WORKSHEET and ACTIVITY LOG or INVESTIGATOR'S

DAILY ACTIVITY REPORT to the patrol supervisor/unit supervisor for review.

27. Inform the patrol supervisor/unit supervisor of facts of the stop and, if

conducted, frisk, and/or search.

SUPERVISORY AND ADMINISTRATIVE FUNCTIONS:

PATROL

28. Respond to the scene of stops when feasible.

SUPERVISOR/ 29. Review the STOP, QUESTION AND FRISK REPORT WORKSHEET

UNIT

and the member's ACTIVITY LOG or INVESTIGATOR'S DAILY

SUPERVISOR

ACTIVITY REPORT entry for the stop and:

a.

Discuss the circumstances of the stop with the member of the

service

7 ofl3

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 13 of 22

PATROL

b. Determine whether all captions are completed and all relevant

SUPERVISOR/

check boxes are checked

UNIT

c. Confirm that the STOP, QUESTION AND FRISK REPORT

SUPERVISOR

WORKSHEET states in plain language a specific suspected felony or

(continued)

Penal Law misdemeanor

d. Determine whether the officer's narrative in the officer's

ACTIVITY LOG or INVESTIGATOR'S DAILY ACTIVITY

REPORT includes the relevant information regarding his/her

reasonable suspicion that the person stopped had committed, was

committing, or was about to commit a felony or Penal Law

misdemeanor

e.

If the person was frisked, determine whether the officer's ACTIVITY

LOG or INVESTIGATOR'S DAILY ACTIVITY REPORT

includes the relevant information regarding the officer's belief that the

person was armed and dangerous and, if a search was conducted, the basis

for the search, the area searched and whether a weapon or other

contraband was recovered

f

Determine whether the stop was based upon reasonable suspicion of a

felony or Penal Law misdemeanor; if the person was frisked determine

whether those actions were supported by a reasonable suspicion that the

person was armed and dangerous; if searched, determine whether the

search was reasonable; and if force was used, determine whether the use

of force was reasonable under the circumstances of the encounter. In

making these determinations, consider whether the facts and information

as conveyed by the member and recorded on the STOP, QUESTION

AND FRISK REPORT WORKSHEET and in the ACTIVITY

LOG or INVESTIGATOR'S DAILY ACTIVITY REPORT

reasonably support the conclusion that the member's actions were based

upon reasonable suspicion

g. If appropriate, instruct member of the service and/or refer for

additional training and/or other remedial action, including, if

appropriate, disciplinary action

h. Direct the member to make necessary corrections to the STOP,

QUESTION AND FRISK REPORT WORKSHEET if the

report is inaccurate or incomplete

1. Complete and sign the STOP, QUESTION AND FRISK

REPORT WORKSHEET.

30. Prior to the end of tour, return signed STOP, QUESTION AND FRISK

REPORT WORKSHEET and ACTIVITY LOG or INVESTIGATOR'S

DAILY ACTIVITY REPORT back to member upon completion of the

review.

NOTE

If the patrol supervisor/unit supervisor is unavailable, the uniformed member of the
service will submit the STOP, QUESTION AND FRISK REPORT WORKSHEET and ACTIVITY LOG or INVESTIGATOR'S DAILY ACTIVITY REPORT to the desk officer/designee. The desk officer/designee will comply with steps "29" and "30."

8 of 13

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 14 of 22

UNIFORMED 31. Make a photocopy of the ACTIVITY LOG or the INVESTIGATOR'S

MEMBER OF

DAILY ACTIVITY REPORT entry for the stop.

THE SERVICE 32. Submit the original STOP, QUESTION AND FRISK REPORT

WORKSHEET and the photocopy of the ACTIVITY LOG or

INVESTIGATOR'S DAILY ACTIVITY REPORT entry to the desk

officer/ designee.

DESK OFFICER/ DESIGNEE
COMMAND CLERK/ DESIGNATED MEMBER
NOTE

33. Ensure that the STOP, QUESTION AND FRISK REPORT WORKSHEET is entered into the Department's Automated Stop, Question, and Frisk System for generation of the next sequential precinct serial number within forty-eight hours from the time of occurrence. a. Ensure that the next sequential serial number is entered in the appropriate caption on the STOP, QUESTION AND FRISK REPORT WORKSHEET.
34. Electronically ·'sign-off' and administer any necessary supervisory functions of the Department's Automated Stop, Question, and Frisk System for those STOP, QUESTION AND FRISK REPORT WORKSHEETS that are awaiting sign off in the queue. a. Ensure that the STOP, QUESTION AND FRISK REPORT WORKSHEETS are electronically "signed-off' within fortyeight hours from the time of occurrence. b. Ensure that a separate precinct serial number is assigned to each STOP, QUESTION AND FRISK REPORT WORKSHEET.
35. Have the STOP, QUESTION AND FRISK REPORT WORKSHEET, with the sequential serial number entered in the appropriate caption, photocopied. a. Attach the photocopy of the member's ACTIVITY LOG or INVESTIGATOR'S DAILY ACTIVITY REPORT to the photocopy of the STOP, QUESTION AND FRISK REPORT WORKSHEET and file in the command's STOP, QUESTION AND FRISK REPORT WORKSHEET binder. b. Submit the original STOP, QUESTION AND FRISK REPORT WORKSHEET to the command clerk/designated member.

36. Print out computer generated copy of the Department's online STOP, QUESTION AND FRISK INDEX COVERSHEET (PD344-152) daily during the first platoon, utilizing the Department's Automated Stop, Question, and Frisk System.
a. Ensure computer genemted STOP, QUESTION AND FRISK INDEX COVERSHEET is filed with photocopies of original STOP, QUESTION AND FRISK REPORT WORKSHEET in command binder.
37. Forward original STOP, QUESTION AND FRISK REPORT WORKSHEET to the Criminal Records Section on a daily basis.

Commanding qtficendesignee will designate a member to peiform the command clerk duties listed
above, ifthe command clerk is not m•ailable.

9 of 13

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 15 of 22

INTEGRITY CONTROL OFFICER

38. Personally conduct, in conformance with the Quality Assurance Division self-inspection program, the command self-inspection of STOP, QUESTION AND FRISK REPORT WORKSHEETS.
39. Ensure that the patrol supervisor/unit supervisor reviews the STOP, QUESTION AND FRISK REPORT WORKSHEETS and ACTIVITY LOGS and that appropriate actions are taken where necessary. a. In assessing the patrol/unit supervisor's review of officers' Level 3 encounters, determine whether the supervisor appropriately reviewed the stop and, if conducted, the frisk and search, and any force used. In making these determinations, consider whether the supervisor examined the information recorded on the STOP, QUESTION AND FRISK REPORT WORKSHEET and ACTIVITY LOG and appropriately evaluated whether the information reasonably supports the conclusion that the member's actions were based upon reasonable suspicion. b. Take appropriate remedial action if warranted, including discipline if appropriate.
c. Inform commanding officer and training sergeant of any matters of importance including deficiencies or patterns of deficiencies in regards to the bases of stops and/or frisks conducted or in the preparation of STOP, QUESTION AND FRISK REPORT WORKSHEETS and ACTIVITY LOGS.

EXECUTIVE OFFICER

40. Personally conduct, in conformance with the Quality Assurance Division self-inspection program, the command self-inspection of "POLICE INITIATED ENFORCEMENT.''

COMMANDING OFFICER
NOTE

41. Assume responsibility for the integrity of the administration ofthis procedure. 42. Consult with the executive officer, integrity control officer, platoon
commanders, special operations lieutenant, training sergeant, patrol supervisors/unit supervisors to ensure the constitutionality and effectiveness of stops. a. Identify training needs and necessary remedial or disciplinary
actions required.
b. Prepare a report on Typed Letterhead addressed to the Commanding Officer, Legal Bureau requesting remedial training for any members of the service identified as having a deficient understanding of the law pertaining to street encounters.
In most instances, instruction and training should be accomplished at the command level. The application of the law in this area can be complicated, and investigative encounters are fluid situations in which one event or observation can alter the level of suspicion or danger. A single erroneous judgment will not generally warrant referral to the Legal Bureau for retraining. However, members ofthe service ·vvho evince a lack of comprehension of the core concepts of the law governing this procedure should be referred to the Legal Bureau.

10 of 13

INTERIMORDERNO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 16 of 22

TRAINING SERGEANT
ADDITIONAL DATA

43. Conduct command level trammg to help ensure compliance with the Department's policy regarding investigative encounters. a. Periodically review and identify command-wide and individual training needs and necessary remedial actions. b. Record training sessions in the command training log indicating the subject of the training as well as the identities of the participating members of the service. c. Identify members who have been referred for training in STOP, QUESTION AND FRISK REPORT WORKSHEETS and ensure that the training is conducted.
(1) Track, record and report such training to the commanding officer on a quarterly basis.

There are manyfacts and circumstances that may lead a police officer to conclude that there is reasonahle suspicion that a person has committed, is committing or is about to commit a folony or Penal Law misdemeanor. Such factors may include infonnation receivedfrom thirdparties as well as the actions of the suspect, the suspect'sphysical andtemporalproximity to the scene ofa crime, the suspect's resemblance to the specific description ofa perpetrator ofa crime (based on more thanjust race, age and gender) and irifOnnation knmvn to the cfficer about the suspect or particular location, among other factors. Each situation is unique and the infonnation available to members ofthe sen;ice v.ill vary.

"Furtive movements" or mere presence in a "high crime area, " standing alone, are inszifficient bases for a stop or frisk Moreover, even when used in combination with other stop factors, the stopping officer must be able to specifically describe the suspicious nature of the "fio·tive movements" which she/he observed, and she/he must not define the "high crime area" too broadly, such as encompassing an entire precinct or borough. In addition, a person may not be stopped merely because he or she matches a generalized description ofa crime suspect, such as an 18-25
year old male of a particular race. if a physical description is the only factor relied on by the
stopping officer, it must be more specific to form the basis for a stop. Individuals may not be targetedfor stops andfrisks because they are members ofa racial or ethnic group that appears morefrequently in local crime suspect data. Race may only be considered where the stop is based upon a specific and reliable suspect description that includes not just race, age and gender, but other identifYing characteristics and infonnation. When a police officer carries out a stop based on reasonable suspicion that a person fits such a description, the officer may consider the race ofthe suspect, just as the officer may consider the suspect's height or hair color.

Commanding officers of commands other than patrol precincts, PSAs and transit districts (e.g., OCCB, Strategic Response Group, etc.) will designate a supervisor to peiform the desk officer duties listed above. The desk officer/designee in other than a patrol precinct who has received a completed STOP, QUESTION AND FRISK REPORT WORKSHEET will ensure that the data is entered into the Department's Automated Stop, Question, and Frisk System for generation of the next precinct of occurrence serial number within fOrtv-eight hours from the time ofoccurrence. The desk officer/designee in other than a patrol precinct will ensure that the STOP, QUESTION AND FRISK REPORT WORKSHEETS are forwarded to the Criminal Records Section on a daily basis. Photocopies of the STOP, QUESTION AND FRISK REPORT WORKSHEETS will be sent via Department mail to the precinct ofoccurrence daily. The precinct ofoccurrence will then place the photocopies in sequential order in their STOP, QUESTION AND FRISK REPORT WORKSHEET

11 of 13

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 17 of 22

ADDITIONAL DATA (continued)
RELATED PROCEDURES

command binder. In addition, the desk officer/designee will utilize the Department's Automated Stop, Question, and Frisk System and ensure those STOP, QUESTION AND FRISK REPORT WORKSHEETS completed by members oftheir command are signed off within forty-eight hours tram the time o(occurrence.

Desk officers/designees in other than patrol precincts will maintain a standardized STOP, QUESTION AND FRISK REPORT WORKSHEET command binder with photocopies of STOP, QUESTION AND FRISK REPORT WORKSHEET prepared by their respective command. Additionally, a corresponding computer generated STOP, QUESTION AND FRISK INDEX COVERSHEET for the command will be printed out daily and will likewise be maintained in the command binder.

Commanding officers will ensure that photocopied STOP, QUESTION AND FRISK

r, REPORT WORKSHEETS maintained in the command binder are removed and filed in

the command by year ofoccurrence
July r and October F).

every

January

yt

and

quarterly

thereafter

(April

All uniformed members of the service below the rank of Captain are required to carry ACTIVITY LOG insert STREET ENCOUNTERS- LEGAL ISSUES (PD344-153) when performing patrol duties in uniform.

Activity Logs (PG 212-08)
Department Policy Prohibiting Racial Profiling (PG 203-25) Executive Officer (PG 202-10)
Interior Patrol ofHousing Authority Buildings (212-60) Interior Patrol of Multiple Dwelling Buildings Enrolled in the Trespass Affidavit Program (212-59)

FORMS AND REPORTS

ACTIVITYLOG (PD112-145)
INVESTIGATOR'S DAILYACTIVITY REPORT (PD439-156) STOP, QUESTION AND FRISK REPORT WORKSHEET (PD344-151A) STOP, QUESTIONAND FRISK INDEX COVERSHEET (PD344-152) STREET ENCOUNTERS- LEGAL ISSUES (PD344-153) WHAT IS A STOP? (PD383-153)

3. Commands will immediately requisition the new Department form from the Quartermaster Section using the following information:

INDEX

PDNUMBER

TITLE

xxxx

383-153

WHAT IS A STOP?

4. Department form, "WHAT IS A STOP, QUESTION AND FRISK ENCOUNTER? (PD344-lll)" is hereby REVOKED.

5. REVISE references to Department form WHAT IS A STOP, QUESTION AND FRISK ENCOUNTER? (PD344-lll) wherever it appears in the Department Manual to read:

"WHAT IS A STOP? (PD383-153)"

12 of 13

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 18 of 22
6. REVISE references to Patrol Guide 212-11, '"Stop and Frisk" wherever they appear in the Department Manual to read:
''Patrol Guide 212-11, 'Investigative Encounters: Requests for Information, Common Law Right oflnguiry and Level3 Stops' " 7. Upon publication, this Interim Order has been incorporated into the On-Line Patrol Guide and the On-Line Administrative Guide. 8. Any provisions of the Department Manual or other Department directive in conflict with the contents of this Order are suspended. BY DIRECTION OF THE POLICE COMMISSIONER DISTRIBUTION All Commands

13 of 13

INTERIM ORDER NO. DRAFT 23

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 19 of 22

0 0 0

What Is A Stop?

PD 383-153 (06-15)

When a police officer reasonably suspects that a person has committed, is committing or is about to commit a felony or a Penal Law misdemeanor, the officer is authorized by NYS Criminal Procedure law§ 140.50 to stop, question and possibly frisk that person for a weapon.

The Police Officer stopped you because the officer had information requiring further investigation. The following factor(s) contributed to the officer's suspicion:

D Concealing or Possessing a Weapon D Engaging in a Drug Transaction D Proximity to the Scene of a Crime D Matches a Specific Suspect Description

0 Acting as a Lookout 0 Casing Victim or Location 0 Other (Specify)

Rank/Name

rhield No.

What Is A Stop? PD 383-153 (06-15)

When a police officer reasonably suspects that a person has committed, is committing or is about to commit a felony or a Penal Law misdemeanor, the officer is authorized by NYS Criminal Procedure law§ 140.50 to stop, question and possibly frisk that person for a weapon.

The Police Officer stopped you because the officer had information requiring
further investigation. The following factor(s) contributed to the officer's suspicion:

D Concealing or Possessing a Weapon D Engaging in a Drug Transaction D Proximity to the Scene of a Crime D Matches a Specific Suspect Description
Rank/Name

0 Acting as a Lookout 0 Casing Victim or Location 0 Other (Specify)
IShield No.

What Is A Stop?

PD 383-153 (06-15)

When a police officer reasonably suspects that a person has committed, is committing or is about to commit a felony or a Penal Law misdemeanor, the officer is authorized by NYS Criminal Procedure law § 140.50 to stop, question and possibly frisk that person for a weapon.

The Police Officer stopped you because the officer had information requiring further investigation. The following factor(s) contributed to the officer's suspicion:

D Concealing or Possessing a Weapon D Engaging in a Drug Transaction D Proximity to the Scene of a Crime D Matches a Specific Suspect Description

0 Acting as a Lookout 0 Casing Victim or Location 0 Other (Specify)

Rank/Name

IShield No.

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 20 of 22
0 0 0
For more information • Para mas informacion • Per ulteriori informazion •
l!~ia.l. • Pour plis informacion • J\rA~Iel- LH§~ ..5:!.i:W21 •
3a AOnOJ1Hii1TB11bHOMii1HcPOPM8l\li1BM www.nyc.gov/nypd
$1,000 REWARD for information leading to the arrest of anyone who possesses an ILLEGAL HANDGUN:1-866 GUN-STOP
NEW YORK CITY'S CUSTOMER SERVICE CENTER: CALL 311
To Report Police Misconduct Contact: Civilian Complaint Review Board (CCRB) 1-800-341-2272
NYPD Internal Affairs Bureau (lAB) 1-212-741-8401
For more information • Para mas informacion • Per ulteriori informazion •
l!~ia.t!. · Pour plis informacion • J\rAileJ- LH§~ ..5:!.i::~l21 •
3a AOn011Hlo1TeJ1bHOiA 111Hcf>OpM8l\14BM www.nyc.gov/nypd
$1,000 REWARD for information leading to the arrest of anyone who possesses an ILLEGAL HANDGUN:1-866 GUN-STOP
NEW YORK CITY'S CUSTOMER SERVICE CENTER: CALL 311
To Report Police Misconduct Contact: Civilian Complaint Review Board (CCRB) 1-800-341-2272
NYPD Internal Affairs Bureau (lAB) 1-212-741-8401
For more information • Para mas informacion • Per ulteriori informazion •
l!~ia.@, · Pour plis informacion • J\rA~IeJ- LH§~ ..5:!.i::~l21 •
3a AOnOI1Hii1Te11bHOM14HcPOPM8l\14eiA www.nyc.gov/nypd
$1,000 REWARD for information leading to the arrest of anyone who possesses an ILLEGAL HANDGUN:1-866 GUN-STOP
NEW YORK CITY'S CUSTOMER SERVICE CENTER: CALL 311
To Report Police Misconduct Contact: Civilian Complaint Review Board (CCRB) 1-800-341-2272
NYPD Internal Affairs Bureau (lAB) 1-212-741-8401

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 21 of 22

DRAFT INTERIM ORDER

SUBJECT: REVISION TO PATROL GUIDE 203-25, "DEPARTMENT POLICY PROHIBITING RACIAL PROFILING"

DATE ISSUED:
08-05-15

REFERENCE:
*P.G. 203-25

NUMBER:
DRAFT 16

1. In order to ensure that members of the service comply with the Department's policy prohibiting racial profiling and other forms of bias-based policing, Patrol Guide 203-25, "Department Policy Prohibiting Racial Profiling" has been revised.
2. Therefore, effective immediately, Patrol Guide 203-25, "Department Policy Prohibiting Racial Profiling" is SUSPENDED and the following new procedure entitled, "Department Policy Prohibiting Racial Profiling and Bias-Based Policing" must be complied with:

3. Members of the service are reminded that the New York City Police Department is committed both to the impartial enforcement of law and to the protection of constitutional rights. To reinforce these commitments and to ensure that all members of the service engage only in constitutionally sound policing practices, the Department prohibits the use of racial and bias-based profiling in law enforcement actions. Conducting enforcement activities in an unbiased manner fosters and strengthens relationships between police officers and members of the community, and inspires confidence in, and support for, policing efforts.

4. Police-initiated enforcement actions, including, but not limited to, arrests, Level3 Terry stops, frisks, searches, summonses, and motor vehicle stops, must be based on the standards required by the Fourth and Fourteenth Amendments of the U.S. Constitution, Sections 11 and 12 of Article I of the New York State Constitution, Section 14-151 oftheNew York City Administrative Code, and other applicable laws.

5. Race, color, ethnicity, or national origin may not be used as a motivating factor for initiating police enforcement action. When an officer's decision to initiate enforcement action against a person is motivated even in part by a person's actual or perceived race, color, ethnicity or national origin, that enforcement action violates Department policy unless the officer's decision is based on a specific and reliable suspect description that includes not just race, age, and gender, but other identifying characteristics or information.

6. The law confers on police officers the authority to stop, question, and if warranted, frisk an individual whom an officer reasonably suspects has committed, is committing, or is about to commit a felony or Penal Law misdemeanor. Police officers must be able to articulate the factors which led them to take enforcement action, in particular those factors leading to reasonable suspicion for stopping, questioning, and, if appropriate, frisking a person, or probable cause for arresting or issuing a summons to a person. Individuals may not be targeted for any enforcement action, including stops, because they are members of a racial or ethnic group that appears more frequently in local crime suspect data. Race, color, ethnicity, or national origin may only be considered when the stop is based on a specific and reliable suspect description that includes not just race, gender, and age, but other identifying characteristics or information. When an officer carries out a stop based on reasonable suspicion that a person fits such a description, the officer may consider the race, color, ethnicity, or national origin of the suspect just as the officer may consider the suspect's height or hair color. In accordance with Department policy, when a stop is not based on a specific suspect description, however, race, ethnicity or national origin may not be used at all as a motivation or justification for the stop.
1 of2

Case 1:12-cv-02274-AT-HBP Document 239 Filed 08/24/15 Page 22 of 22
7. Section 14-151 of the New York City Administrative Code and Department policy prohibit bias-based profiling and include demographic categories in addition to race, color, and national origin. The Administrative Code and Department policy prohibit the Department and individual officers from intentionally engaging in bias-based profiling, which is defined as ''an act of a member of the force of the police department or other law enforcement officer that relies on actual or perceived race, national origin, color, creed, age, alienage or citizenship status, gender, sexual orientation, disability, or housing status as the determinative factor in initiating law enforcement action against an individual, rather than an individual's behavior or other information or circumstances that links a person or persons to suspected unlawful activity." With respect to race, color, ethnicity and national origin, the standards of conduct described in paragraphs ''5" and ''6" must always be met by the Department and its officers.
8. Commanding officers will continue to ensure that self-inspections are conducted within their commands regarding stop, question, and frisk activity. The Quality Assurance Division will continue to monitor compliance with self-inspection protocols in all of its command inspections and will continue to audit stop, question, and frisk activity Department-wide.
9. Commanding officers will ensure that members of their command comply with the Department's policy regarding investigative encounters as per Patrol Guide 212-11, ''Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops."
10. REVISE references to Patrol Guide 203-25, "Department Policy Prohibiting Racial Profiling" wherever they appear in the Department Manual to read:
"Patrol Guide 203-25, 'Department Policy Prohibiting Racial Profiling and Bias-Based Policing' ··
11. Upon publication, this Interim Order has been incorporated into the On-Line Patrol Guide.
12. Any provisions of the Department Manual or other Department directive in conflict with the contents of this Order are suspended.
BY DIRECTION OF THE POLICE COMMISSIONER
DISTRIBUTION All Commands

2 of2

INTERIMORDERNO. DRAFT 16

 
 Case 1:12-cv-02274-AT-HBP Document 244 Filed 12/08/15 Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK DAVID FLOYD, et al.,

USDCSDNY DOCl!MENT ELECTRONICALLY FILED
DDAOTCI~FI-LE-D-:.-I-d.-/ 8--/1~5-­

Plaintiffs,

-against-

08 Civ. 1034 (AT)

CITY OF NEW YORK,

KELTON DAVIS, et al.,

Defendant.

Plaintiffs,

-against-

10 Civ. 0699 (AT)

CITY OF NEW YORK,

Defendant. JAENEAN LIGON, et al.,

Plaintiffs,

12 Civ. 2274 (AT)

-against-
CITY OF NEW YORK,
Defendant. ANALISA TORRES, District Judge:

ORDER MODIFYING REMEDIAL ORDER (BODY-WORN CAMERA PILOT PROGRAM)

In its Remedies Opinion and Order issued on August 12, 2013, the Court ordered that the

NYPD "institute a pilot project in which body-worn cameras will be worn for a one-year period."

Floyd v. City ofNew York, 959 F. Supp. 2d 668, 685 (S.D.N.Y. 2013). The Court noted that the

video recordings would "serve a variety of useful functions." !d.

First, they will provide a contemporaneous, objective record of stops and frisks,
allowing for the review of officer conduct by supervisors and the courts. The
recordings may either confirm or refute the belief of some minorities that they
have been stopped simply as a result of their race, or based on the clothes they wore, such as baggy pants or a hoodie.65 Second, the knowledge that an exchange
is being recorded will encourage lawful and respectful interactions on the part of both parties.66 Third, the recordings will diminish the sense on the part of those

Case 1:12-cv-02274-AT-HBP Document 244 Filed 12/08/15 Page 2 of 4
who file complaints that it is their word against the police, and that the authorities are more likely to believe the police. [Footnote omitted.] Thus, the recordings should also alleviate some of the mistrust that has developed between the police and the black and Hispanic communities, based on the belief that stops and frisks are overwhelmingly and unjustifiably directed at members of these communities. Video recordings will be equally helpful to members of the NYPD who are wrongly accused of inappropriate behavior.
65 By creating an irrefutable record of what occurred during stops, video recordings may help lay to rest disagreements that would otherwise remain unresolved. 66 If, in fact, the police do, on occasion, use offensive language-including racial slurs-or act with more force than necessary, the use of body-worn cameras will inevitably reduce such behavior.
!d. At the end of one year, there will be an evaluation of "whether the benefits of the cameras outweigh their financial, administrative, and other costs." !d.
The Court directed that the cameras be worn "by officers on patrol in one precinct per borough-specifically the precinct with the highest number of stops during 2012.'' !d. These NYPD commands were identified as the 23rd, 40th, 75th, 103rd and 120th Precincts. As noted in the Monitor's First Report, dated July 9, 2015, however, requiring officers in these precincts to wear the cameras might not provide the best information regarding the benefits and costs of body-worn cameras, including determining whether they will be effective in reducing unconstitutional stops-and-frisks. ECF No. 513 at 67-78. First, some ofthe precincts with the highest counts of stop reports in 2012 were no longer the precincts with the highest number of reported stops in 2014. In 2012, the 75th Precinct had the greatest number of reported stops in the city; in 2014, the 75th Precinct was down to sixteenth place. Second, the selection of precincts in advance prevents the use of a rigorous randomized experimental design, because it would be impossible to have a random selection of commands matching those that had cameras with those that did not. As set out in the Monitor's report, the advantage of a randomized experiment is the relatively high degree of certainty that any observed differences between the
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precincts with cameras and those without would be attributable to the cameras, not to chance or other causal factors.
The Monitor has been working with experts on his team and discussing with the parties how to design a pilot that will yield more robust and useful information. He is recommending, and the parties agree, that a randomized experimental design should be implemented. Such a design allows researchers to assume that the only systematic difference between the ''control" group (here, those without cameras) and the "treatment group'' (those with cameras) is the presence of the intervention (i.e., use of cameras). This approach permits a clearer assessment of causes and effects. One variant of the classic randomized controlled trial that the NYPD could use-the one currently under consideration-is called ''cluster" randomization. In these trials, clusters (groups) of subjects, rather than individual subjects, are randomly allocated to treatment and control conditions. In a cluster randomized controlled trial, NYPD officers would be randomly allocated by precinct to the body-worn camera treatment group or non-body-worn camera comparison group. The precise details of the research design have not yet been finalized and will be developed further before the pilot is begun. The NYPD has reported that it does not expect to complete the procurement process and take delivery of cameras before the summer of 2016. Before then, the design and implementation of the pilot might have to account for possible changes in technology, police department programs and deployment, and other relevant factors.
It is anticipated that roughly 1,000 officers will be equipped with body-worn cameras. The use of a randomized experimental design for the body-worn camera pilot will ensure that the pilot will provide the parties, the Monitor, the Court, and the public with better information to evaluate the effectiveness of body-worn cameras in reducing unconstitutional stops-and-frisks and in assessing the costs and benefits of the body-worn cameras.
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Accordingly, on consent of the parties, it is ORDERED that the NYPD use a randomized experimental design for the body-worn camera one-year pilot program.
SO ORDERED. Dated: December 8, 2015
New York, New York ANALISA TORRES
United States District Judge
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 Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 1 of 94
Peter L. Zimroth Peter.Zimroth@aporter.com +1 212.715.1010 +1 212.715.1399 Fax 399 Park Avenue New York, NY 10022-4690
February 16, 2016
VIA ECF
Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Submission of Second Report of the Independent Monitor
Dear Judge Torres, I am pleased to submit my second report under the court orders and the parties’
agreements in the cases of Floyd v. City of New York, Ligon v. City of New York, and Davis v. City of New York. These cases challenged the NYPD’s stop and frisk policies and practices (Floyd), and its policies and practices concerning criminal trespass enforcement in and around private buildings enrolled in the Trespass Affidavit Program (Ligon) and in New York City Housing Authority buildings (Davis). This report focuses on significant steps since my first report in July 2015 and the challenges that lie ahead.
Let me highlight several findings and observations. To start, the Department disseminated a new Patrol Guide procedure governing stops and frisks and a new

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

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 3 of 94
Honorable Analisa Torres February 16, 2016 Page 3
As you know, the last four years have seen a dramatic decrease in the number of reported stops. The 685,724 stop reports filed in 2011 compare with 45,787 filed in 2014 and approximately 24,000 in 2015. However, as my first report stressed, the focus should not be on the number of stops per se, but rather on the lawfulness of the stops and whether the encounters are conducted in accordance with the Department’s principles of “courtesy, professionalism and respect.” The NYPD’s stop and frisk practices and the related practices regarding trespass enforcement that led to this monitorship exacerbated tensions between the NYPD and some communities the Department serves, particularly minority and immigrant communities.
Getting stop and frisk and related trespass enforcement practices right is important, but that does not mean eliminating the practices. The court did not rule that they are prohibited. When conducted lawfully and professionally, they are valuable and legitimate law enforcement tools. Getting it right means this: that police officers understand their lawful authority and limit their activities to what is permitted by law; that officers do not avoid enforcement activities when appropriate; that they treat the people with whom they interact professionally, with dignity and respect and in ways best designed to protect the safety of civilians and officers; and, finally, that officers document their activities as required by law and Department policy.

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 4 of 94
Honorable Analisa Torres February 16, 2016 Page 4
Those elements, broadly speaking, reflect the goals of the court orders and the parties’ agreements, which, notably, overlap with the goals for the Department described by Commissioner Bratton.
Of course, transformation of any large government organization is a difficult undertaking. It is apparent from focus group sessions and discussions with individual officers throughout the ranks that many police officers, including supervisors, are not well informed as yet about the changes underway or the reasons for them and, therefore, have yet to internalize them. Many appear not to understand what is expected of them. If, as the Commissioner has stated, the court-ordered changes and agreements among the parties will improve the Department, and advance the safety of both communities and officers, that message needs to be communicated and reinforced better, not just at the top, but throughout the Department.
Ultimately, this is a challenge of leadership, particularly for those who supervise officers engaged day-to-day in enforcement activities—sergeants, their immediate supervisors, and the precinct and unit commanders who set the tone for those under them. The challenge here implicates every aspect of the court orders and the parties’ agreements, and it will not be met without changes in policies, training, supervision, and all the ways the NYPD incentivizes good police behavior and discourages unacceptable behavior. This is a large task that will take time and substantial effort to accomplish.

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

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 6 of 94
Honorable Analisa Torres February 16, 2016 Page 6 sufficient basis for it, as well as for the frisk or search, if either occurred. The supervisor must direct that the officer make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer him or her for additional training or other remedial action, including disciplinary action if warranted.
A note regarding discipline: although most officers understand that discipline is appropriate for deliberate violations of law or policy, they often express fear they will face serious disciplinary action or not be indemnified in lawsuits over minor or inadvertent mistakes in documentation or for isolated cases of erroneous but good-faith stops or frisks. Actually, the new Patrol Guide Section 212-11 announces a contrary policy for the Police Department, and, as far as can be determined, officers have not been denied indemnification for minor infractions or reasonable, honest mistakes. Sergeants and other supervisors need to take an active role in trying to correct these misperceptions, especially as they may affect decisions by some officers to make or refrain from making appropriate stops.
Body-worn cameras. According to the Department, procurement of body-worn cameras for the pilot program ordered by the court will not be completed until late summer 2016, at the earliest. In the meantime, there is much to do, including the promulgation of policies related to the use of the cameras and production of training materials.

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

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

Enclosures

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

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 9 of 94
Second Report of the Independent Monitor Peter L. Zimroth
February 16, 2016
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 10 of 94
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Edward Davis
Jennifer Eberhardt John MacDonald James McCabe
Jane Perlov

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 11 of 94
TABLE OF CONTENTS Page
I. Introduction............................................................................................................. 1 II. The Monitor’s Work ............................................................................................... 5 III. NYPD Policies ........................................................................................................ 7
A. SQF Policies................................................................................................ 7 1. Milestones ....................................................................................... 7 2. Status and Assessment .................................................................... 8
B. Racial Profiling Policies ........................................................................... 11 1. Milestones ..................................................................................... 11 2. Status and assessment ................................................................... 11
C. Policies Related to the Trespass Affidavit Program (TAP) ...................... 12 1. Milestones ..................................................................................... 12 2. Status and Assessment .................................................................. 13
D. New York City Housing Authority (NYCHA) Policies ........................... 14 1. Milestones ..................................................................................... 14 2. Status and Assessment .................................................................. 14
E. Stop Report Form...................................................................................... 15 1. Milestones ..................................................................................... 15 2. Status and Assessment .................................................................. 16
IV. Training................................................................................................................. 20 A. Monitors’ Observations of Police Academy Training .............................. 20 1. Teaching Quality........................................................................... 21 2. Curriculum Development.............................................................. 22 3. Course and Teacher Evaluation .................................................... 23
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4. Subject Integration ........................................................................ 24 B. Recruit Training ........................................................................................ 24
1. Stop, Question and Frisk............................................................... 24 a. Milestones ......................................................................... 24 b. Status and Assessment ...................................................... 24
2. Racial Profiling ............................................................................. 25 a. Milestones ......................................................................... 25 b. Status and Assessment ...................................................... 25
3. TAP Training ................................................................................ 26 a. Milestones ......................................................................... 26 b. Status and Assessment ...................................................... 27
4. Davis/NYCHA Training ............................................................... 27 a. Milestones ......................................................................... 27 b. Status and Assessment ...................................................... 28
C. In-Service Training ................................................................................... 28 1. Roll Call Training ......................................................................... 28 a. Milestones ......................................................................... 28 b. Status and Assessment ...................................................... 28 2. SQF Reference Materials.............................................................. 30 3. SQF In-Service Training at the Academy..................................... 31 a. Milestones ......................................................................... 31 b. Status and Assessment ...................................................... 31 4. Davis/NYCHA In-Service Training ............................................. 32 a. Milestones ......................................................................... 32 b. Status and Assessment ...................................................... 32
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5. Implicit Bias and Procedural Justice............................................. 32 a. Milestones ......................................................................... 32 b. Status and Assessment ...................................................... 32
D. Training on Supervision............................................................................ 34 1. Milestones ..................................................................................... 34 2. Status and Assessment .................................................................. 34
V. Supervision ........................................................................................................... 36 A. Milestones ................................................................................................. 37 B. Status and Assessment .............................................................................. 38
VI. Body-Worn Cameras ............................................................................................ 39 A. Milestones ................................................................................................. 40 B. Status and Assessment .............................................................................. 41
VII. Auditing ................................................................................................................ 45 A. Quality Assurance Division ...................................................................... 45 1. Milestones ..................................................................................... 45 2. Status and Assessment .................................................................. 45 a. Current Audits for Stop Reports and Activity Logs ......... 46 b. Audit of Revised Stop Reports Used in a Pilot Program .. 47 c. RAND Audits.................................................................... 48 d. Audits of Enforcement Activities Initiated by Officers .... 50 e. Audits of Self-Inspections by Integrity Control Officers . 51 B. Bronx TAP ................................................................................................ 53 1. Milestones ..................................................................................... 53 2. Status and Assessment .................................................................. 53 C. Early Identification System (EIS)............................................................. 55
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 14 of 94 1. Milestones ..................................................................................... 55 2. Status and Assessment .................................................................. 55
VIII. Complaints and Discipline.................................................................................... 57 A. Racial Profiling Allegations...................................................................... 57 1. Milestones ..................................................................................... 57 2. Status and Assessment .................................................................. 57 B. Handling of Complaints Substantiated by the CCRB............................... 61 1. Milestones ..................................................................................... 61 2. Status and Assessment .................................................................. 62
IX. Performance Goals, Objectives and Evaluation.................................................... 67 A. Milestones ................................................................................................. 69 B. Status and Assessment .............................................................................. 69
X. Joint Remedial Process ......................................................................................... 70 XI. Compliance Metrics .............................................................................................. 72
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 15 of 94
Monitor’s Second Report
I. Introduction This is the second report of the Independent Monitor overseeing implementation
of the court orders and the parties’ agreements in the cases Floyd v. City of New York, Ligon v. City of New York and Davis v. City of New York. Those orders and agreements call for reforms of the NYPD’s practices related to stop and frisk, trespass enforcement (i.e., stops and arrests for trespass) and bias-free policing in those areas—specifically, changes in policy, training, supervision, handling of complaints and discipline, auditing and performance measurement as well as a pilot program testing the use of body-worn cameras (BWCs). The report covers the period from July 1, 2015, through the date of this report.
In the period leading up to the monitor’s first report in July 2015, the NYPD was just beginning work on revising its policies relating to stop and frisk and trespass enforcement. The Department had started the process of changing its Patrol Guide to conform its policies to the requirements contained in the court orders. A significant focus of the first half of 2015 was on the development of training for a recruit class that started in January 2015.
This report discusses progress in several key areas since then and the challenges that lie ahead. Chief among the challenges is ensuring that written changes in policies and training material are carried out in practice—in the Police Academy, in the precincts and other commands, by supervisors, and, ultimately, in encounters between officers and civilians.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 16 of 94
I. Introduction Significant Steps Since the Last Monitor’s Report
As of the end of 2015, the NYPD has, among other things:  Published and disseminated a new Patrol Guide procedure governing stops
and frisks;  Published and disseminated a new Patrol Guide procedure prohibiting racial
profiling and other bias-based policing;  Developed training materials for recruits at the Police Academy and presented
those materials to three recruit classes (those beginning in January, July and October 2015);  Conducted training for Field Training Officers (FTOs), who work with probationary officers just out of the Police Academy as they move to their assignments in the field;  Developed reference materials on stop and frisk issues, put them up on the NYPD intranet site and disseminated them to all members of the service;  Conducted a pilot program in which officers in seven commands (five precincts, a Transit District and a housing Police Service Area (PSA)) used a revised stop report form that will be the basis of a new stop report form for use throughout the Department, after court approval;  Changed some of its auditing practices and begun developing an audit work plan for 2016; and  Reorganized the way in which the Department deals with the monitorship by placing the Risk Management Bureau (RMB) under the control of the First Deputy Commissioner, Benjamin B. Tucker.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 17 of 94
I. Introduction Significant Challenges
The last four years have seen a dramatic decrease in the number of reported stops. The 685,724 stop reports filed in 2011 compares with 45,787 reported in 2014 and approximately 24,000 in 2015. However, as the monitor’s first report stressed, the focus should not be on the number of stops per se, but rather on the lawfulness of the stops and whether the encounters are conducted in accordance with the Department’s principles of “courtesy, professionalism and respect.” The NYPD’s stop and frisk practices and the related practices regarding trespass enforcement that led to this monitorship exacerbated tensions between the NYPD and some communities the Department serves, particularly minority and immigrant communities.
Getting stop and frisk and related trespass enforcement practices right is important, but it does not mean eliminating the practices. The court did not rule that they are prohibited. When conducted lawfully and professionally, they are valuable and legitimate law enforcement tools. Getting it right means at least this: that police officers understand their lawful authority and limit their activities to what is permitted by law; that officers do not avoid enforcement activities when appropriate; that they treat the people with whom they interact professionally, with dignity and respect and in ways best designed to protect the safety of civilians and officers; and, finally, that officers document their activities as required by law and NYPD policy.
Those elements, broadly speaking, reflect the goals of the court orders and the parties’ agreements, which overlap with the goals for the NYPD. Commissioner William J. Bratton has stated repeatedly that officers should be concerned with the quality of their enforcement activities—including stop and frisk and trespass enforcement—rather than
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 18 of 94 I. Introduction
quantity. The monitor’s team has heard similar statements by those leading Compstat sessions, a key part of NYPD’s crime management system (described more fully on pages 67-68 below).
Of course, transformation of any large government organization is a difficult undertaking. It is apparent from focus group sessions and discussions with individual officers throughout the ranks that many police officers, including supervisors, are not well-informed as yet of the changes underway or the reasons for them and therefore have yet to internalize them. Many appear not to understand what is expected of them. If, as Commissioner Bratton has stated, the changes required by the court orders and the parties’ agreements will improve the NYPD and advance the safety of both communities and police officers, that message needs to be communicated and reinforced better, not just at the top, but throughout the Department.
Ultimately, this is a challenge of leadership, particularly for those who supervise officers engaged in day-to-day enforcement activities—sergeants, their immediate supervisors, and the precinct and unit commanders who set the tone for those under them. This challenge implicates every aspect of the court orders and the parties’ agreements, and it will not be met without changes in policies, training, supervision, and all the ways the NYPD incentivizes good police behavior and discourages unacceptable behavior. This is a large task that will take time and substantial effort to accomplish.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 19 of 94
II. The Monitor’s Work Report Format
Like the monitor’s previous report, this update sets out what is required by the court orders and the parties’ agreements in the relevant cases (milestones), the status of the NYPD’s remedial efforts, and the monitor’s assessment of compliance to date. II. The Monitor’s Work
During the six months from July to December 2015, the monitor and his team continued to meet with members of the NYPD and its units, such as the Police Academy, Quality Assurance Division (QAD), Risk Management Bureau, Information Technology Bureau and others. The team observed Compstat meetings, conducted focus groups and had conversations with officers and supervisors, made site visits to precincts and borough commands, and observed training at the Police Academy and disciplinary trials in the NYPD trial room. A member of the monitor team toured each precinct in the city in preparation for a controlled pilot study of body-worn cameras, described in Section VI below. The team reviewed voluminous NYPD documents, including audits, stop report forms, complaint investigation files and NYPD data. The monitor and his team have also met with plaintiffs’ counsel, community organizations, the Civilian Complaint Review Board (CCRB) and other entities.
Significant time has been spent working with both the plaintiffs and the NYPD in developing training materials and policy. Whenever possible, the monitor has sought to find common ground, with the goal that the parties agree on a final document for approval. Both the NYPD and the plaintiffs have been working with the monitor diligently, collaboratively and in good faith to develop the reforms to be implemented. In the process, cooperation and trust has increased among those involved—an important
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 20 of 94 II. The Monitor’s Work
development for accomplishing revisions of police practices and enhancing policecommunity relations.
In addition, the monitor has worked with the parties and the court on developing a process to determine which documents should be submitted to the court for approval and which can be approved by the monitor without further court action. Many documents, certain training materials for example, are being updated and changed as the Department, the parties and the monitor learn from seeing these materials in use. In general, once the court approves materials or written policies, further changes or additions to those materials or policies are approved by the monitor and not submitted to the court when the new material does not make significant substantive alterations to language the court has already cleared. Any party that disagrees with the monitor’s determination not to submit a document to the court may seek court redress.
There is now a website for following the monitoring efforts (www.nypdmonitor.org). The site went live on October 31, 2015. Visitors to the website can access the following: monitor reports, court opinions and orders, revised NYPD policies, training materials, information on the body-worn camera pilot, information on the Joint Remedial Process, links and resources related to the monitoring effort, and an opportunity for the public to provide feedback to the monitor. A translation application available on the website allows users to access some material in languages other than English. Appendix 1 provides a list of documents currently on the website with links to those documents.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 21 of 94 III. NYPD Policies A. Stop and Frisk Policies
III. NYPD Policies A. Stop and Frisk Policies 1. Milestones The NYPD’s policies and procedures governing stops and frisks are set out in the
Department’s Patrol Guide. This is one way that the Department communicates guidance and instruction about what officers can and cannot do under the law and what their supervisors expect of them. In its opinion, the court found that the Patrol Guide did not adequately describe the legal standards governing stops or the degree of knowledge an officer must have to make a stop lawful. The Patrol Guide procedures also did not state the legal requirements for a frisk or search, which are separate from the requirement for a stop. The court did not require changes in these legal standards, only that they be stated correctly and clearly.
Under the court orders, as agreed to by the City and the Department, the Patrol Guide must:
1. State what constitutes a stop, when a stop may be conducted, when a frisk may be conducted and when a search may be conducted;
2. Require officers to document stops and frisks and the reasonable suspicion for each, both on a stop report form and in officers’ activity logs; and
3. Have procedures for supervisory review of stops, including an assessment of the constitutionality of the stop and not just that a stop report form (previously called a UF-250) was completed.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 22 of 94 III. NYPD Policies A. Stop and Frisk Policies
2. Status and Assessment The monitor submitted to the court the NYPD’s new procedures on stop and frisk, Patrol Guide (P.G.) 212-11, Investigative Encounters: Requests for Information, Common Law Inquiry and Level 3 Stops, which the court approved on August 24, 2015. The NYPD issued an Interim Order on September 16, 2015, and disseminated the procedures to all members of the service. The effective date of the procedures was September 21, 2015. The revised Patrol Guide meets the requirements of the court orders and the parties’ agreement. It states when an officer may make a Terry stop and includes a definition of reasonable suspicion. It states that reasonable suspicion for a stop does not give an officer the authority to make a frisk; an officer must have reasonable suspicion that the person stopped is armed and dangerous to frisk that person. Prior to issuance of the new P.G. 212-11, there were no procedures in the Patrol Guide that addressed encounters between officers and civilians that were less intrusive than a stop or an arrest. All such encounters are governed by the New York State Court of Appeals decision in People v. DeBour, which sets out four levels of encounters, establishing the standards for each.1 For a simple Request for Information (Level 1), the officer must have an “objective, credible reason” to make the approach and request; for a Common Law Right of Inquiry (Level 2), where an officer can ask accusatory questions, the officer must have a “founded suspicion” of some criminality; to stop and detain a person to investigate (Level 3), an officer must have “reasonable suspicion” that the individual committed, is committing or is about to commit a felony or Penal Law
1 40 N.Y.2d 210 (1976).
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 23 of 94 III. NYPD Policies A. Stop and Frisk Policies
misdemeanor; for an arrest (Level 4), an officer must have probable cause. P.G. 212-11 provides guidance to officers about the distinction between voluntary investigative contacts (Level 1 and Level 2 encounters) and forcible stops (Level 3 Terry stops), which must be based on reasonable suspicion. The procedures define “objective, credible reason,” “founded suspicion” and “reasonable suspicion.”
The approved procedures in the new Patrol Guide section require documentation of all stops and make more explicit the responsibilities of supervising officers up the chain of command. An officer’s immediate supervisor should respond to the scene when feasible. The supervisor is also required to discuss the circumstances of the stop with the officer who made the stop, and then review the stop and any frisk and search, if conducted, and determine whether the officer’s actions were appropriate.
If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. Supervisors also have the responsibility of identifying officers who need instruction, additional training or other remedial action, including, if appropriate, discipline. However, the procedures are clear that the goal is to make improvements to ensure compliance. Isolated cases of good-faith mistakes made by officers trying to do their jobs will be dealt with by training at the command level and not by discipline. As stated in the procedures:
In most instances, instruction and training should be accomplished at the command level. The application of the law in this area can be complicated, and investigative encounters are fluid situations in which one event or observation can alter the level of suspicion or danger. A single erroneous judgment will not generally warrant referral to the Legal Bureau for training. However, members who evince a lack of comprehension of the core concepts of the law governing this procedure should be referred to the Legal Bureau.
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Of course, officers should be disciplined when they engage in deliberate or repeated violations of the Patrol Guide. But the above statement in the Patrol Guide is important because it addresses a commonly expressed fear of officers—that they will be harshly penalized for minor mistakes of documentation, or in isolated cases of good-faith mistakes by officers trying to do their jobs. Many officers do not appear to be aware of this provision in the new Patrol Guide.
Another important change to this Patrol Guide section relates to providing the person stopped with an explanation for the stop. In its remedial order, the court said that the NYPD should consider providing a form or card to people stopped that would provide them with the badge numbers of the officers and some information about why they were stopped, and about agencies that handle complaints from civilians. The new Patrol Guide section states that, absent exigent circumstances, officers should provide people stopped but not arrested with an explanation of the reasons for the stop and an information card. In connection with this requirement, the Department created a new “tear-off receipt” and instituted a pilot program in seven commands to test this form. Because this was a pilot program, the court was not asked to approve the contents of the tear-off receipt. The pilot program began in July 2015. When the new P.G. 212-11 went into effect in September, the NYPD began using the pilot tear-off receipt citywide. This receipt contains the following information: the officer’s name, command and badge number, a link to the NYPD website, the CCRB and Internal Affairs Bureau (IAB) phone numbers, and
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checkboxes for the factors contributing to the officer’s suspicion that led to the stop. The Department is analyzing lessons learned from the pilot program and exploring alternative ways to provide information to people stopped but not arrested.
Approval of P.G. 212-11 was an important step. However, as noted in the Introduction, ensuring that the Patrol Guide is followed in practice will require effective changes in training, supervision, auditing and incentives.
B. Racial Profiling Policies 1. Milestones
The court orders and the parties’ agreements require the NYPD to revise its Patrol Guide prohibition on racial profiling. The new procedures must state that race, ethnicity or national origin may be considered by officers in taking police enforcement action only when it is part of a specific and reliable suspect description, and that racially defined groups may not be targeted for stops in general simply because they appear more frequently in local crime suspect data.
2. Status and assessment The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was submitted to the court and approved on August 24, 2015. The policy was then published and distributed by the NYPD. The new procedure states that police action, including stops, frisks, arrests or other law enforcement actions, may not be motivated, even in part, by the actual or perceived color, ethnicity or national origin of an individual. Race may be used only if it is part of a reliable and specific suspect
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description that includes not just race, gender and age, but other identifying characteristics or information.
The procedures also include a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
Training on the new policy is in its early stages. Assessment of the policy’s implementation must wait until training is further along. Moreover, determining whether the NYPD is in compliance with the new policy and the related requirements of the Fourteenth Amendment is complicated and may involve several yardsticks, including both qualitative and statistical measures. The monitor has asked the parties to suggest compliance measures (see Section XI below). The plaintiffs have provided some preliminary suggestions, the NYPD has responded and the monitor will be discussing these issues with the parties.
C. Policies Related to the Trespass Affidavit Program (TAP) 1. Milestones
In Ligon v. City of New York, the court issued a preliminary injunction against certain NYPD practices related to stops outside buildings enrolled in the Trespass Affidavit Program (TAP) in the Bronx and ordered specific changes to P.G. 212-59 governing interior patrols in TAP buildings applicable to stops in the Bronx.2 The new policy must state: (1) the circumstances in which it is permissible to stop a person
2 Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013) (preliminary injunction); Floyd v. City of New York, 959 F. Supp. 2d 668, 689 (S.D.N.Y. 2013) (remedies decision).
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outside a TAP building on suspicion of trespass; (2) that stops inside and outside TAP buildings must comply with the new stop and frisk policies; and (3) that “mere presence” in a TAP building, and entry into or exit from a TAP building, do not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information.
2. Status and Assessment The NYPD prepared a revised draft P.G. 212-59 for review by the plaintiffs and the monitor. The Ligon plaintiffs have made suggested edits, and subsequent draft versions of the policy have been exchanged. The parties have not yet reached an agreement on a final version of P.G. 212-59. The Ligon plaintiffs and the City and NYPD continue to negotiate a settlement on issues that were not addressed in the Ligon preliminary injunction and related order. This settlement, if reached, will likely include additional modifications to P.G. 212-59. For this reason, the monitor has not made any final recommendations to the court for approval of a new P.G. 212-59. Should negotiations be completed, a new P.G. 212-59 for interior patrols of TAP buildings will be finalized, adopted and implemented. If a settlement is not reached, the monitor will work with the parties to revise P.G. 212-59 so it meets the requirements of the preliminary injunction and related remedial order.
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D. New York City Housing Authority (NYCHA) Policies 1. Milestones
On April 28, 2015, the court in Davis v. City of New York gave final approval to the settlement between the City and the plaintiffs. The settlement requires revisions to P.G. 212-60, which concerns interior patrols of NYCHA buildings. The settlement also requires changes to related NYPD training materials and the use of a revised Trespass Crimes Fact Sheet, an NYPD form used by officers to describe the circumstances leading to or supporting an arrest for trespass. The court-approved policy states that officers must have an objective, credible reason to approach a person in or around a NYCHA building, and that simply entering, being in, or exiting a NYCHA building is not an objective credible reason for an approach.
2. Status and Assessment The language of P.G. 212-60 was agreed to as part of the Davis settlement and has already been approved by the court in Davis, so further revision or submission for approval is unnecessary. With the consent of the other parties, the NYPD postponed publication of P.G. 212-60 owing to three factors, only the third of which remains relevant. First, the parties thought it appropriate to defer publication until the policy for stops and frisks (P.G. 212-11) was approved and disseminated. This has now been done. Second, it was agreed that the procedures for NYCHA interior patrols should align whenever possible with the procedures for patrol of TAP buildings. There have been ongoing negotiations between the parties in Ligon over P.G. 212-59 (TAP). However,
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the parties have now agreed that any revisions to P.G. 212-59 will not hold up the publication of P.G. 212-60.
Third, there is ongoing discussion among the parties about the creation of a new Trespass Crimes Fact Sheet that would cover criminal trespass arrests in both NYCHA and TAP buildings. In that fact sheet, officers document and provide information about trespass arrests. The plaintiffs and the Department agree that it does not make sense to have one form for trespass arrests in NYCHA buildings and a different form for trespass arrests in TAP buildings. The Department and the Ligon and Davis plaintiffs have shared drafts of a Trespass Crimes Fact Sheet that could be used in either type of building. The Department has shared drafts with the city’s five district attorneys and heard their concerns. Once the Department has reviewed these concerns, it will propose a draft Trespass Crimes Fact Sheet for consideration by the Ligon and Davis plaintiffs and the monitor.
E. Stop Report Form 1. Milestones
The court orders and the parties’ agreements require that the NYPD develop and implement a new stop report form to be used by officers every time a person is stopped. The new form must document an officer’s stop and be used by supervisors to evaluate whether the stop, and the frisk and search, if conducted, was done properly and in accordance with law. A stop report form is also a teaching tool that can be used both for training and as part of operations to reinforce for officers the applicable standards for stop and frisk.
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The new form must have a narrative section for describing the reasons for the stop as well as a separate narrative section for describing the reasons for the frisk and the search, if conducted. The court found that without narrative sections, the current version of the stop form, which has only checkboxes for the factors leading to the stop, did not provide sufficient information to determine whether a stop was based on reasonable suspicion. The court required simplified and improved checkbox categories and a place on the form for the officer to record, in his or her own words, the basis for the stop and, separately, for the frisk and search, if conducted. Documenting an officer’s actions when making a stop provides details so that an officer can refresh his or her memory if called to testify about the incident; and it enables the officer’s direct supervisor and others in the NYPD to review the stop and assess whether the officer had sufficient justification for his or her actions.
2. Status and Assessment A new stop report form designed by the NYPD has been in use in a pilot program since July 2015. That pilot form includes a narrative section for the officer to describe the basis for a stop and a separate narrative section to describe the basis for a frisk and search, if conducted. It eliminates “furtive movement,” “high crime area” and “suspicious bulge” as checkbox categories. The pilot form also has a new section that requires the officer’s supervisor to confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check a box indicating whether or not: (1) the basis of the stop was reviewed with the officer; (2) the report was accurate and complete; (3) the supervisor was present on the scene; (4) the corresponding activity log entry was reviewed; (5) there was a sufficient basis for the
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stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken, if appropriate.
The pilot program ran in five precincts, a Transit District and a housing PSA for 90 days, from July 1, 2015 through September 30, 2015. There were two versions of the stop report form used for the pilot. A smaller version of the form was designed to fit into an officer’s memo book without being folded. Instructions for completing the form were printed on a separate document that also fit into the officer’s memo book. A larger version of the stop report form was printed on an 8½ x 14 sheet of paper, with the instructions on the back of the form. The two stop report forms differed in size and format only—the content was identical. Four commands started with the smaller form and three commands started with the larger one. After 45 days, the pilot commands switched forms so that each command used both forms. Almost 600 stop reports were prepared during the pilot.
The Risk Management Bureau (RMB) oversaw the pilot program, conducting training on the new forms for the members of the pilot commands, monitoring use of the forms, conducting focus groups of officers and supervisors, and administering surveys. Training regarding the pilot program also was provided at promotional classes for sergeants, lieutenants and captains. Surveys were distributed to officers in the seven pilot commands to elicit feedback about the content of the stop forms and the ergonomics and clarity of the two versions. In addition, the Quality Assurance Division (QAD) reviewed the stop forms from the pilot commands for potential deficiencies, including whether the stop report form articulated reasonable suspicion for the stop and, if conducted, the frisk and search.
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The RMB analyzed the data as well to determine whether there were qualitative differences between the two versions of the report form when completed, whether the officers expressed a preference and, if so, whether using the preferred form increased the likelihood that the report would be filled out accurately. The Department has made recommendations for revising the new form and the plaintiffs have made additional suggestions. The monitor will work with the parties to finalize the form and submit it to the court for approval.
Once the new stop report form is approved, the Department will need to change its SQF (stop, question and frisk) database to conform to the new form, provide in-service training on the new form, and revise existing procedures and training materials as needed. The NYPD is also developing a new online records management system that will incorporate the new stop report form. When the new records management system is completed, police officers will be able to access and prepare the stop report on their smartphones and tablets.
The Department is continuing to analyze the information from the pilot program. However, it has shared several observations. The NYPD found that there was a 20 percent greater reduction in reported stops in the commands that were using the new forms, compared to other commands throughout the city that were using the current form (formerly known as the UF-250). The NYPD noted, however, that whenever a new procedure or form is rolled out, there is generally a temporary decrease in activity or use of the form. The stop report form also documents whether a tear-off receipt was given to persons stopped but not arrested. In the pilot, absent exigent circumstances, the officers were required to offer the tear-off receipt to persons stopped but not arrested. For the
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pilot, the NYPD found that in a significant number of stops, officers did not give the tearoff receipt to persons stopped but not arrested. There are several possible reasons for this. For example, the officer might not have offered the receipt because of exigent circumstances; or the person stopped might have walked away before the receipt was offered; or, contrary to policy, the officer might not have offered the receipt.
The Quality Assurance Division also reviewed the forms to assess whether officers appropriately articulated reasonable suspicion for the stops, reasonable suspicion that the person stopped was armed and dangerous for those stops where a frisk was conducted, and an appropriate basis for the search, if conducted. QAD found that 28 percent of the stop report forms analyzed did not properly articulate reasonable suspicion for the stop, 27 percent of the forms documenting a frisk did not properly articulate reasonable suspicion for the frisk, and 16 percent of the forms documenting searches did not show an appropriate basis for the search. In almost every case in which QAD found insufficient basis for the stop, frisk or search, the supervisor in that command nonetheless had signed off on the report and noted there was sufficient basis for the stop, frisk or search.
Although the pilot was conducted before the new stop and frisk policies were issued, QAD’s analysis does illustrate the gaps in knowledge among officers, reinforcing the importance of new in-service training on the revised stop and frisk policies and the
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new stop report form, and of the role of supervisors in evaluating the constitutionality of stops and frisks. These are matters of concern on which the monitor will be reporting in the future. IV. Training
A. Monitors’ Observations of Police Academy Training In the monitor’s discussions with NYPD executives, they have emphasized that they view training improvements as a high priority and want to make significant changes. For example, the Department has embraced the concept of experiential training. It has dedicated a group of excellent instructors to develop scenarios that can be used in the mock environments at the new Police Academy and elsewhere. Beginning in October 2015, recruits were sent to precincts for twelve days where they partnered with officers, met with members of the community and were oriented to what they would face upon graduation. All this was to give the recruits more context for their classroom training. In the period covered by this report, the Department has produced new training material and is in the process of developing more substantial changes. In doing so, it has retained well-respected outside experts, reached out to other police departments, and welcomed the advice of experts on the monitor team and those retained by the plaintiffs. The Department recognizes that more work needs to be done and, as stated, has welcomed suggestions. To that end, and as part of the monitor’s role, the monitor team spent many hours at the Police Academy observing classes and role-play scenarios on the subjects relevant to the monitor’s mandate—stop and frisk, racial profiling, and housing and interior patrols. The team saw classes for recruits in the January 2015 recruit class and then again for the June and October recruit classes. The team saw many instructors,
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sometimes observing the same teacher present the same material to different classes, and often seeing the same material taught by different teachers. Based on these observations, the monitor provided the NYPD with the team’s views and recommendations for improvements in Academy training. Written training materials are important, and the recruit training materials discussed in the sections below were developed after thoughtful review and revisions. However, written materials are just one piece of effective training. Unless the materials are communicated effectively, they will not be as useful as they should be.
1. Teaching Quality The quality of the instruction at the Police Academy is mixed. The monitor and his team observed some excellent teaching and some poor teaching. This unevenness suggests the Academy should develop a more rigorous program of instructor development. Although instructors must now attend a course on Methods of Instruction focused on adult learning techniques, Academy instructors could use additional training to help them become more effective teachers. For example, strong teachers could be partnered as mentors with new teachers or weaker teachers to help them improve their teaching skills. If the performance of weak teachers does not improve, consideration should be given to removing them from the classroom. Instructors would also profit from additional training in the substantive areas relevant to their teaching duties; for example, advanced seminars in social psychology, history and law. There is a substantial literature that relates these disciplines to police work, and instructors should be familiar with this literature. It was evident from observing lessons delivered by some instructors that simply providing a lesson plan,
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student guide and a two-week course in Methods of Instruction on top of their own experiences is not sufficient to deliver quality instruction for officers in the increasingly complex and changing world of 21st-century policing.
2. Curriculum Development As for the court-approved lesson plans, student guides and PowerPoint slides, they are a good start. However, the curriculum should use other teaching methods as well; for example, developing more videos, assigning more independent readings and using more scenarios of realistic policing situations. Instructors could then draw upon a more varied and interesting set of tools than PowerPoint slides. The Academy is in the process of developing a more robust scenario-based instruction platform. The instructors dedicated to this effort are among the best the monitor team has seen in the Academy. The scenario sessions the team observed were very effective. The Academy should, however, more closely integrate these scenarios into the broader instructional goals of the curriculum. For example, the staff developing the courses should work with the scenario team to develop the scenarios; and the scenario team should provide feedback and be involved in the development of the courses. Most of the lesson plans for the role-play scenarios the monitor team has seen do not include instructor notes and other material that would make the instructional goals clear and facilitate quality control in the implementation of scenarios when they are passed on to other instructors.
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3. Course and Teacher Evaluation The monitor team’s observations also suggest that the Police Academy should develop a more comprehensive plan for evaluating both the quality of instructors and the content of the curriculum. Such a plan could include: (1) Academy evaluators observing classes more closely; (2) asking recruits for their evaluations immediately after the end of the subject area—for example, when the class completes “Policing Legally” (see below at pages 23-25), recruit officers could complete an evaluation of the sessions on this topic; and (3) evaluating certain training, for example in-service training, by surveying officers’ knowledge and attitudes both before and after the training to see whether the training accomplished its goals, and, if not, what could be improved. One specific recommendation regarding the content of the Policing Legally sessions is to provide recruits with more instruction on how to prepare a stop report form and activity log. Greater emphasis should be put on developing, articulating and writing reasonable suspicion for stops and frisks. Recruits should be required to prepare stop reports based on scenarios they observe. More experienced officers and supervisors have said that they too would benefit from this kind of training once the new stop report is approved. As for evaluating instructors, it would be useful if they were evaluated early in an instructor’s assignment. Instructors with poor evaluations could then be identified early and given the support they need. This support could include more intensive training or more supervision. Performance by recruits on trimester exam questions relating to Policing Legally, Policing Impartially and Policing in a Multicultural Society could be
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used as one way to obtain feedback concerning how well the instructor communicates the curriculum.
4. Subject Integration Street encounters and trespass enforcement are critical areas of police operations, and training would be enhanced if the legal and other principles in those areas were integrated into other relevant areas of instruction (e.g., car stops, use of force, racial bias, and search and seizure). This integration should focus on both the timing of the blocks of instruction and the ways in which the areas of instruction relate to each other. Universities often use “teaching teams” to handle complex multi-disciplinary topics, and the Academy could benefit from a similar approach. B. Recruit Training
1. Stop, Question and Frisk a. Milestones
Training for recruits on stop, question and frisk must provide recruits with the standards for what a stop is, when a stop may be conducted and when a frisk may be conducted.
b. Status and Assessment In April 2015, the court approved training materials—Policing Legally: Investigative Encounters—for the recruit class then at the Academy. The training materials included a student guide and a PowerPoint presentation. The NYPD also prepared an instructor lesson plan, exam questions and role-play scenarios. The course covers Terry stops and the four levels of DeBour encounters; what constitutes a stop;
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when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted.
Training on stops and frisks for the January class of recruits began in May 2015, and the monitor team observed training, as did one of the plaintiffs’ experts. Slight revisions were made to the Policing Legally course for the June 2015 and October 2015 recruit classes. These revisions were reviewed by the parties and approved by the monitor. The Academy also expanded the use of scenarios for its recruit courses. This expanded scenario-based training uses the mock environments (e.g. subway stations, streetscapes) at the new Academy and provides recruits with additional experiential training. The NYPD has begun a new field orientation program for recruits. They are taken out of the classroom for approximately two weeks during their six-month Academy training and placed in precincts, transit districts and housing PSAs to get hands-on experience and a practical context for their classroom training.
2. Racial Profiling a. Milestones
The NYPD’s training regarding racial profiling must clearly state the difference between the constitutionally permissible use of race in a stop based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops.
b. Status and Assessment In April 2015, the court approved training materials for the Academy’s Policing Impartially course, including a student guide and PowerPoint presentation. The NYPD also prepared an instructor’s lesson plan, exam questions and scenarios, which were
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reviewed by the parties and approved by the monitor. These materials address the Department’s prohibition against racial profiling and other forms of bias-based policing, as well as the impact of unconscious bias on the exercise of discretion. They also include information on police history and bias, and how knowledge of this history can help officers be more effective. The Academy also provides recruits with a course on Policing in a Multicultural Society.
Based on experience from the January training class, changes to the training on racial profiling were made for the July and October 2015 Academy classes. These included additional scenarios to make recruits more aware of issues regarding bias and how to avoid it. These changes have been reviewed by the parties and approved by the monitor. The NYPD anticipates additional revisions to its recruit training on racial profiling as it develops in-service training on implicit bias and procedural justice, described below in Section IV.C.5. In addition, the NYPD, the plaintiffs and the monitor are discussing development of a training scenario to address the NYPD’s revised racial profiling policy (P.G. 203-25) that prohibits the targeting of racially defined groups for stops simply because they appear more frequently in local crime suspect data.
3. TAP Training a. Milestones
Training regarding stops outside TAP buildings must be included in Police Academy recruit training. The training must instruct officers that mere presence near, entry into or exit from a TAP building is not an “objective credible reason” to approach a person to request information.
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b. Status and Assessment In April 2015, the court approved training materials for Academy recruits regarding TAP policies (a student guide and PowerPoint presentation). The NYPD also prepared instructor lesson plans, exam questions and scenarios that were reviewed by the parties and approved by the monitor. These materials cover stops both outside and inside TAP buildings and are not limited to TAP buildings in the Bronx. In October 2015, the NYPD combined the TAP recruit materials with the training materials approved by the court in Davis governing housing patrols in and around NYCHA buildings. These materials were reviewed by the parties and were approved by the monitor. They meet the requirements of the court’s orders.
4. Davis/NYCHA Training a. Milestones
On April 28, 2015, the court in Davis approved the settlement relating to trespass enforcement in NYCHA buildings, including a lesson plan for training recruit officers on interior patrols. The lesson plan included discussions of hypothetical situations in NYCHA buildings featuring NYPD officers engaging in both appropriate and inappropriate conduct. The court also approved a lesson plan for officers assigned to the Housing Bureau dealing with enforcement of the NYCHA house rules. (See Section IV.C.4 below.)
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b. Status and Assessment The NYPD incorporated the court-approved lesson plan on interior patrols into Academy training for its January 2015 recruit class. For the July and October 2015 recruit classes, the NYPD combined the chapters on TAP and NYCHA interior patrols so that the lesson plan included court-approved materials from the TAP lesson plan and the NYCHA lesson plan. The student guide and the PowerPoint also combined TAP and NYCHA materials. Some of the hypothetical examples from the Davis lesson plan were revised to feature TAP situations. These materials were reviewed by the parties, finalized in November 2015 and approved by the monitor. They meet the requirements of the Davis settlement and the Ligon preliminary injunction. C. In-Service Training
1. Command Level Training a. Milestones
In-service training is conducted at several venues, one of which is at the officer’s command. There, the training sergeant or others can and often do conduct brief training sessions. The most common time for command training is at roll call. Roll call is at the beginning of the officer’s shift; it is a time when supervisors give assignments and alert officers to relevant information.
b. Status and Assessment The NYPD decided to produce short videos regarding P.G. 212-11 for roll call training to ensure that the training and information provided to NYPD members is uniform. The first of these videos has already been produced and played at roll call for all officers. In this video, the Chief of the Department, James O’Neill, introduced the
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new policy for investigative encounters and briefly explained its contents. The Department is producing four additional videos: a video explaining (1) Level 1 Requests for Information; (2) Level 2 Common Law Right of Inquiry; (3) Level 3 Terry stops; and (4) documentation requirements and supervisory responsibilities for Level 3 stops. The scripts for Chief O’Neill’s introductory video and the three videos for each DeBour level were drafted by the NYPD, reviewed and commented on by plaintiffs, and, after editing, approved by the monitor. The Levels 1, 2 and 3 videos are expected to be shown at roll calls starting in February 2016. The script for the video dealing with documentation and supervisory responsibilities will await the approval of the new stop report form (see Section III.E above).
The video for Level 3 stops will also address one of the issues discussed in the court’s opinions. In 2012, the NYPD produced a video on stop and frisk (SQF Training Video #5) that described what constituted a stop requiring reasonable suspicion. The narrator in the video states:
Usually just verbal commands, such as STOP, POLICE!!!, will not constitute a seizure. However, a verbal command, plus other actions may be considered a seizure—other actions, such as: using physical force to subdue a suspect; physically blocking a suspect’s path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground. In the Ligon preliminary injunction opinion, the court ruled that this misstates the law and that if an officer yelled “STOP, POLICE!!!” and the person stopped, the result would “usually” constitute a Terry stop. “Indeed, it is difficult to imagine many contexts in which an officer shouting this command, followed by the person stopping, would not
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constitute a Terry stop.”3 In accordance with this ruling, the Level 3 video that will be
used for roll call corrects the earlier error. The script for the video says:
The question of whether the circumstances create a situation where a reasonable person would not feel free to leave typically involves a consideration of all the facts, such as whether the officer’s gun is drawn and visible, whether the individual was prevented from moving, the location of the encounter, how many officers were involved in the encounter, whether verbal commands were given, and the content and tone of the commands. Tone really matters. You may have the impression from earlier materials that when an officer yells “STOP, POLICE!” and the person stops, that would not usually constitute a stop. That is not the case. If an officer is approaching someone from behind and says, “Hey, can you hold up for a second?” that may not be a stop, but if an officer yells forcefully “Stop!” and the person stops, a court would likely find that a reasonable person would not feel free to leave.
The Department also issued a training memorandum, reviewed by the parties and
approved by the monitor, on the NYPD’s revised policy prohibiting racial profiling and
bias-based policing, P.G. 203-25. The memo summarized the new policy, defined racial
profiling and included text from Administrative Code Section 14-451 prohibiting bias-
based profiling based on several enumerated categories. This training memo was sent to
all training personnel on October 30, 2015 and was read in its entirety at roll call
trainings during the month of November 2015.
2. SQF Reference Materials
When the Department issued its revised procedures on stop and frisk in
September 2015, it also prepared reference materials for an online intranet library
(Investigative Encounters Resource Center). These materials include a detailed reference
guide, a PowerPoint presentation, summary charts and an at-a-glance booklet regarding
3 Ligon, 925 F. Supp. 2d at 535.
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investigative encounters that summarize the new procedures and the applicable legal standards under DeBour and Terry. The library also contains relevant forms (including the stop report form and tear-off receipt used in the pilot described in Section III.E above), legal bulletins and videos. The Department has created a new activity log insert summarizing the four levels of investigative encounters outlined in DeBour, as well as a police officer’s authority and limitations under each.
3. SQF In-Service Training at the Academy a. Milestones
Training for current members of the service is critically important and the most time-consuming of the NYPD’s training tasks. A central part of in-service training is when officers are assigned to locations outside their precincts (e.g., to the Police Academy) and trained in concentrated blocks of time devoted to particular subjects. Thirty-six thousand members of the service must go through the training to reinforce the proper legal standards and new policies and address any prior misunderstandings that may have developed. The in-service training should include materials on: stop and frisk; trespass enforcement; proper documentation of stops; the Department’s policy on racial profiling and bias-based policing; and new supervisory responsibilities under P.G. 21211.
b. Status and Assessment The Department is currently drafting a curriculum for a Department-wide inservice training on stop and frisk, and invited the plaintiffs and their experts to review and comment on an early draft. The one-day program will include a classroom session on the law and policy, as well as scenario-based exercises for members of the service.
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The scenarios will include examples of self-initiated stops and radio runs. The current plan is for supervisors to be trained in the same sessions as patrol officers, and there will be materials addressing their role in supervising and reviewing stops. The monitor will assess the NYPD’s in-service training after the training is approved by the court and the monitor team has observed the training sessions. These training materials, once approved, will likely include changes that should be incorporated into the recruit training.
4. Davis/NYCHA In-Service Training a. Milestones
The court-approved settlement in Davis includes a module on NYCHA house rules for officers patrolling public housing.
b. Status and Assessment The NYPD plans to conduct a separate day of in-service training for the Housing Bureau and other members of the service who patrol NYCHA buildings. That training will include a module on NYCHA house rules approved by the Davis court, as well as other training related to public housing.
5. Implicit Bias and Procedural Justice a. Milestones
In its remedial order, the court noted that it might be appropriate to conduct training for officers on the effect of unconscious racial bias. The NYPD has recognized the importance of teaching officers about the concept of implicit bias and the related concept of procedural justice.
b. Status and Assessment The NYPD is committed to including training on implicit bias and procedural justice as part of its in-service training. It currently plans to add at least one day to its in-
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service training curriculum for these topics. The Department has retained Professor Tracey Meares and Professor Phillip Atiba Goff to serve as consultants as it develops this training. Professors Meares and Goff have expertise in policing and in providing training on implicit bias and procedural justice. The Department expects these new training materials to be created in the next several months. The NYPD plans to incorporate implicit bias and procedural justice concepts into its training in many areas of enforcement beyond stop and frisk, such as issuing summonses, dealing with victims and making arrests. The monitor will assess the Department’s efforts on these topics after new training materials are developed and incorporated into the curriculum and the monitor team has observed the training.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 48 of 94 IV. Training D. Training on Supervision
D. Training on Supervision 1. Milestones
Under the new NYPD stop and frisk procedures, supervisors will be responsible for reviewing the legality of stops. Current and newly promoted supervisors and field training officers must be trained on these new responsibilities and on their responsibilities for reviewing trespass arrests. In addition, the leadership training for NYPD executives must be revised to incorporate training on the responsibilities of supervisors relating to the court orders and the parties’ agreements.
2. Status and Assessment The NYPD plans to train supervisors in several ways on their new responsibilities under revised P.G. 212-11. Initially, they will view roll call videos, including a video on documentation requirements and supervision responsibilities. They will then receive stop and frisk training during the upcoming Department-wide in-service training. Training for supervisors will deal with their new duties and responsibilities under the revised procedures. The monitor will assess compliance for this area after the in-service training is conducted. With respect to housing patrols, supervisory responsibilities regarding stops will be part of the stop and frisk in-service training. Beyond this training, the parties will be discussing any additional training that may be necessary relating to trespass enforcement. Newly promoted supervisors also need training in their promotional classes. Since the publication of the NYPD’s new stop and frisk procedures, P.G. 212-11, the Department has promoted new classes of sergeants, lieutenants and captains. The first promotions were of captains in October 2015. Although the NYPD had prepared an
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“SQF refresher” module, the materials dealt with supervisory responsibilities only in a cursory way. There was not enough time before the class began for rewriting the materials to address the supervisory responsibilities more completely. Therefore, the module was not used for this class of new captains.
New sergeants and lieutenants also were promoted, and materials regarding the new stop and frisk policies and supervisory responsibilities were included in classes for the new sergeants and lieutenants in November and December. The monitor team observed the sergeants’ and lieutenants’ training. Although some aspects of that training were useful, the materials were not sufficient. Among other things, the training needs to include a fuller discussion of what leadership means in the NYPD and of the changes to NYPD policies and practices, why they are being made and why they are important for the NYPD.
The Department has agreed that further work needs to be done on promotional training and additional materials will be prepared based on the in-service training that is now being developed.
The Field Training Officer (FTO) Field Guide was revised in June 2015 with respect to stops and frisks and trespass stops outside TAP buildings. The Department prepared a new section of the FTO Field Guide entitled “Investigative Encounters” and a refresher training module for FTOs, which includes a legal review of the prohibition against racial profiling and the policies that govern housing interior patrols. These materials were reviewed by the parties and approved by the monitor. In June 2015, FTOs
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had one day of in-service training at which they were provided presentations on several topics, including the new stop and frisk training that the new recruits had received at the Academy. A second FTO in-service training session was conducted in October 2015.
In addition, in September 2015, the Academy delivered stop and frisk training to the training sergeants who serve in the Department’s many commands. This training module provided training sergeants with an overview of the new Patrol Guide procedures regarding investigative encounters and racial profiling, the law of investigative encounters and the contents of the NYPD’s new online Investigative Encounters Resource Center. The training sergeants will be responsible for retraining officers who have been identified by supervisors as needing retraining. Going forward, the monitor will be examining how well this retraining is being implemented. V. Supervision
If the changes required by the court orders and the parties’ agreements are to be implemented and take hold, the supervisors who have most to do with the officers on the street must play an increased leadership role. This includes, especially, sergeants, who are closest to the officers, and precinct and unit commanders, who set the tone. These supervisors must ensure that their subordinates are implementing the changes required by the court orders and the parties’ agreements—that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented. Supervisors must take a more active role in supervision, oversight, teaching and, when appropriate, discipline.
On the question of discipline, although most officers understand that discipline is appropriate for deliberate violations of law or policy, they often express fear that they will face serious disciplinary action or not be indemnified in lawsuits over minor or
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inadvertent mistakes in documentation or for isolated cases of erroneous but good-faith stops or frisks. The newly approved P.G. 212-11 announces a contrary policy for the Police Department. And, as far as can be determined, officers have not been denied indemnification for minor infractions or reasonable, honest mistakes. Sergeants and other supervisors need to take an active role in trying to correct these misperceptions, especially as they may affect decisions by some officers to make or refrain from making appropriate stops.
These observations about the supervision necessary to implement the changes required by court orders and agreements do not conflict with the goals and needs of the Department. They are, in fact, similar to many comments that Commissioner Bratton and others at the NYPD have made about the need more generally to increase supervisory responsibility for sergeants and other supervisors and to push decision-making down the command structure.
A. Milestones The court orders and the parties’ agreements require that supervisory review of stop report forms and activity logs include a review not just of the completeness and accuracy of the forms, but of the constitutionality of the stop and, if conducted, the frisk and search. If an officer’s actions are improper, the officer’s supervisor must take corrective action. The Ligon remedy also requires the NYPD to develop procedures for supervisors to ensure that a stop report form is prepared for every trespass stop outside a TAP building in the Bronx. The Davis settlement provides that any additional reforms regarding supervision of officers engaged in trespass enforcement in or around NYCHA residences will be addressed by the monitor in consultation with the parties.
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B. Status and Assessment The new NYPD Patrol Guide procedures governing stops and frisks, P.G. 212-11, requires supervisors to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. The supervisor must determine whether the stop was based on reasonable suspicion of a felony or Penal Law misdemeanor; if a frisk was conducted, whether the frisk was supported by reasonable suspicion that the person was armed and dangerous; if a search was conducted, whether it was reasonable; and if force was used, whether the use of force was reasonable. The supervisor must direct the officer to make corrections to the stop report form if it is inaccurate or incomplete, and, if appropriate, instruct the officer or refer the officer for additional training or other remedial action, including, if appropriate, disciplinary action. The NYPD has stated that the review and discussion with the officer who made the stop is intended to be an occasion for teaching, rather than an attempt to catch an officer in a minor mistake of the law or policy. As noted in P.G. 212-11, instruction and training to correct isolated mistakes will generally take place in the officer’s command. However, officers who show a consistent lack of understanding of the law in this area should be referred to the Legal Bureau for retraining. The new stop report form will require supervisors to document their review and whether they took or directed any follow-up action, if appropriate.
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The NYPD’s new written policies meet the requirements of the court orders and the parties’ agreements. However, the limited review of supervisory actions based on the approximately 600 stop report forms completed during the pilot program described above in Section III.E suggests that more needs to be done before supervisors understand and exercise their new responsibilities. In future reports, the monitor will assess compliance by looking at whether the supervisory policies relating to stop and frisk and trespass enforcement are being effectively implemented in practice. The monitor team will do so by, for example, reviewing the Department’s own auditing and self-inspections on these subjects and by undertaking an independent review of a sample of stop report forms and other documentation. VI. Body-Worn Cameras (BWCs)
Beginning in December 2014, the NYPD instituted a small voluntary pilot program in which 54 officers volunteered to wear body-worn cameras (BWCs). The purpose was not to replace or circumvent the larger pilot program that had been ordered by the court. The purpose was primarily to learn about the technological challenges that might be faced in what the Department announced as its ultimate goal—to equip most of the members of the service with BWCs. The issues raised by equipping much of the police force with cameras include, but also go beyond, what the court stated as the primary focus of the pilot program it ordered—reducing unconstitutional stops and frisks. Nonetheless, the monitor team, the NYPD and the other parties recognized that it made sense for the court-ordered pilot to be designed so that the Department and the public could learn about other issues that would accompany a wider deployment of cameras. That is one reason the monitor recommended, and the court ordered, with the consent of the parties, that the pilot be restructured so that a controlled experiment could be done.
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However, using the court-ordered pilot to educate the Department and the public about issues that go beyond the subject matter of the court’s order raises additional challenges for both the monitor and the parties. Before a BWC program can be implemented, policies and procedures must be in place. Some of these will be within the monitor’s area of responsibility and some will not, which means that on some issues, the monitor will have a deciding voice, and on others, more deference will be given to the Department’s preferences. There certainly may be grey areas where it is not clear whether a policy is covered by the court order. Those will be discussed and resolved as they arise after discussion with the parties.
A. Milestones The court orders and the parties’ agreements require the NYPD to conduct a oneyear pilot program for body-worn cameras. The purpose of the pilot is to assess whether the benefits of the cameras relating to stop and frisk and trespass enforcement outweigh their financial, administrative and other costs, and whether the program should be expanded or terminated. The monitor will work with the parties to evaluate the pilot. The court ordered that the monitor establish procedures for reviewing stop recordings by supervisors and senior managers, preserving stop recordings and measuring the effectiveness of BWCs in reducing unconstitutional stops and frisks. The court required that BWCs must be worn for a one-year period by officers on patrol in one precinct per borough—specifically, the precinct with the highest number of stops in that borough during 2012. These NYPD commands were identified as the 23rd, 40th, 75th, 103rd and 120th Precincts.
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B. Status and Assessment As noted in the monitor’s first report, requiring officers in these five precincts to wear the cameras might not provide the best information regarding the benefits and costs of body-worn cameras, including whether they will be effective in reducing unconstitutional stops and frisks. The precincts with the highest counts of stop reports in 2012 were no longer the ones with the highest number of reported stops in 2014 or in 2015. In 2012, the 75th Precinct had the greatest number of reported stops in the city; in 2014, the 75th Precinct was down to sixteenth place (and in 2015, it appears likely to be around twentieth). Also, the selection of precincts in advance prevents the use of a rigorous randomized experimental design, because it precludes a random selection of commands matching those that had cameras with those that did not. The monitor team examined and discussed with the parties how to design a pilot that will yield more robust and useful information. The monitor recommended to the court that a randomized experimental design should be implemented. Such a design allows researchers to assume that the only systematic difference between the “control” group (here, those without cameras) and the “treatment group” (those with cameras) is the presence of the intervention (i.e., use of cameras). This approach permits a clearer assessment of causes and effects. The monitor is currently considering that the NYPD use a variant of the classic randomized controlled trial called “cluster” randomization. In these trials, clusters (groups) of subjects, rather than individual subjects, are randomly allocated to treatment and control conditions. In a cluster-randomized controlled trial, NYPD officers would be randomly allocated by precinct to the body-worn camera treatment group or non-body-worn camera comparison group.
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In December 2015, the court ordered, with the consent of the parties, that the NYPD use a randomized experimental design for the one-year pilot program. It is anticipated that roughly 1,000 officers will be equipped with body-worn cameras. The use of a randomized experimental design for the body-worn camera pilot will ensure that the pilot will provide the parties, the monitor, the court, and the public with better information to evaluate the effectiveness of body-worn cameras in reducing unconstitutional stops and frisks and to assess the costs and benefits of the body-worn cameras.
The City’s procurement process to acquire BWCs is underway. More than 50 proposals were submitted to the NYPD by September 3, 2015. The NYPD created a committee to review these proposals. The procurement committee is in the process of reviewing and evaluating technical proposals and on-site demonstrations from potential vendors. Vendors achieving a satisfactory evaluation will be invited to submit a pricing proposal.
In November 2015, the NYPD informed the monitor that the Department’s plans for the research and development of the BWC pilot have changed since the start of this monitorship in 2014. These plans now include outreach to other police departments that use BWCs, review of BWC policies from other jurisdictions and model policies, consideration of other ongoing Department pilots and operational and technical constraints, and outreach to obtain input from community and other interested groups.
The NYPD created an internal BWC working group, which has plans to: revise and expand its body-worn camera policy with input from internal and external stakeholders, including community members; develop training materials for the personnel
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who will use and maintain the cameras and handle video footage; and assist in devising implementation and audit plans. In November and December 2015, members of the internal BWC working group made calls to other police departments that have implemented body-worn camera programs. In December, members of the working group visited three departments (Los Angeles, Las Vegas and Oakland) that have implemented BWC programs to learn about their programs.
In January 2016, the NYPD shared a draft outline of BWC policies with internal stakeholders, plaintiffs’ counsel and the monitor. The draft outline does not necessarily state the Department’s position on what the final policies should be, but is intended to begin discussions with the monitor and the plaintiffs and with external stakeholders. The draft outline covers issues such as when the cameras should be recording, data retention, accessing and reviewing footage, privacy concerns and the use of footage as evidence, among other things. The Department plans to engage in outreach to external stakeholders to get feedback and input on the draft outline. This outreach will include: officers of every rank; unions; community members and organizations; criminal justice stakeholders, including the courts, district attorneys and defenders’ organizations; victims’ advocacy groups; privacy groups; the City Council; external oversight agencies; and other interested parties and organizations. The NYPD expects to develop a final BWC policy in March 2016.
The Department will also need to draft the necessary training materials to train the officers who will wear the cameras and the personnel who will maintain the cameras and the footage; deliver the required trainings; complete the pilot design; devise
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implementation plans; and devise auditing procedures to track compliance with BWC policies.
In the current reporting period, the monitor team continued to test the feasibility of designing and implementing a rigorous cluster-randomized controlled trial. With the assistance of the NYPD, the monitor team collected data on policing, crime and neighborhood conditions in the 77 NYPD precincts and on officers assigned to work in those precincts. The monitor team’s preliminary analyses indicate that matching precincts into pairs and randomizing precincts within each pair yields balanced treatment of control clusters (precincts) and units of analysis (officers). To ensure that the best precinct matches are made for inclusion in the BWC randomized experiment, one member of the monitor team, Professor Anthony Braga, toured all 77 precincts with members of the NYPD Risk Management Bureau to examine relevant community dynamics within and across the precincts. Professor Braga noted important qualitative variations such as the rapid gentrification of certain neighborhoods, the presence of street crews and gangs, and variations in the physical environment. These and other factors will be considered before the appropriate randomization strategy is chosen.
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 59 of 94 VII. Auditing A. Quality Assurance Division
VII. Auditing A. Quality Assurance Division 1. Milestones As part of the remedial measures, the NYPD must maintain an effective auditing
system for ensuring the constitutionality of stops and frisks and trespass arrests. The NYPD’s Quality Assurance Division (QAD) is responsible for evaluating compliance with the Department’s policies and procedures, including those relating to stop and frisk and trespass enforcement. QAD evaluates each precinct, transit district and housing PSA commands, as well as borough task forces, the Detective Bureau, the Organized Crime Control Bureau, the School Safety Division and the Traffic Enforcement Division. The audit procedures must assess both compliance with constitutional standards and whether the paperwork has been properly prepared. The Department must also perform audits to assess the extent to which stops and frisks are being conducted but not documented.
2. Status and Assessment The NYPD recognizes that its auditing practices need to be revised to meet the requirements of the court orders and the parties’ agreements, and it has begun the process of doing so as part of the Department’s efforts to improve auditing more generally. A CPA with extensive auditing experience who previously worked at a major accounting firm now directs QAD. QAD is developing new audits to evaluate compliance with the new Patrol Guide sections on investigative encounters (P.G. 212-11) and the new stop report form, upon its approval. The monitor requested that QAD draft an audit plan for stop and frisk and trespass enforcement that would state the audits that QAD plans to conduct in 2016, the audit
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procedures and methodology to be used for each audit, including the number of samples to be tested and the sampling methodology for the audits, and the frequency of the audit and the audit period to be tested. The monitor recently received a draft audit plan. The NYPD has been discussing possible audit protocols with members of the monitor team and will be discussing the draft audit plan with the monitor and the plaintiffs in the near future. Described below are some of the recent audits that QAD has conducted.
a. Current Audits of Stop Reports and Activity Logs The NYPD has reported that QAD audited more than 6,000 stop report forms and associated activity logs from January 1, 2015, to September 30, 2015, but that these reviews used the prior approach, which did not focus on the constitutionality of the stops, frisks and searches. However, the Department states that in November 2015, QAD revised its SQF audits to evaluate the officer’s description of an encounter to assess whether the description stated a lawful basis for the stop, and for the frisk and search, if these were conducted. The revised audit methodology, as described by the NYPD, also assesses whether supervisors effectively performed their responsibilities in reviewing the basis for stops and frisks, or whether they instead signed and approved forms that did not articulate reasonable suspicion or that were missing information. The NYPD has reported some of its findings and recently provided these audit reports, which the monitor team has not yet had the opportunity to review. The NYPD states that from November 5, 2015 (when the revised SQF audits began), to December 10, 2015, QAD evaluated 859 activity log entries made in 62 commands for compliance with the new Patrol Guide procedure. QAD determined that officers articulated individualized reasonable suspicion for the stop in 81 percent of those activity log entries.
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QAD found that officers articulated the basis for the frisk in 64 percent of the activity logs documenting a frisk and the basis for the search in 71 percent of the activity logs documenting a search.
These results reported by the NYPD should not be taken as conclusions about the Department’s compliance with the mandates of the court orders and the parties’ agreements, because the audits were not done on the stop report form that is now being developed for approval. That form will include more informative check boxes and spaces for narrative descriptions. And the audits were done before the Department provided significant training for the members of the service. However, the audits, together with other information reported elsewhere in this report (see subsections below), suggest that the Department faces substantial challenges in educating its officers and supervisors on the requirements of its new policies, including the requirements of documentation and supervisory review of stops.
b. Audit of Revised Stop Reports Used in a Pilot Program Revised stop report forms were used in a pilot program in seven commands, as described in Section III.E above. QAD audited the forms from the pilot and found that 28 percent of the stop report forms did not properly articulate reasonable suspicion for the stop, 27 percent of the forms documenting frisks did not properly articulate reasonable suspicion for the frisk, and 16 percent of the forms documenting searches did not state an appropriate basis for the search. Even though QAD found these deficiencies, it also found that in almost all cases supervisors did not note the deficiencies on the stop report form, and did not direct changes in the stop report or require any other corrective action. The NYPD acknowledges a need for improvement in this area; it says it expects
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compliance to improve once officers and supervisors have more training on the procedure and the law.
c. RAND Audits In the monitor’s first report, the question of under-reported stops was highlighted. These are situations in which stops were made but no corresponding stop report was filed. There are several reasons why a stop might have occurred without the appropriate documentation. The officer might not have understood when the report was required; or perhaps, more seriously, the officer did know the report was required but deliberately decided not to file one. One way the Department attempts to measure under-reporting is through what it calls a “RAND audit.” This is an audit methodology recommended to the Department in 2007 in a report done by the RAND Corporation at the request of the NYPD. In a RAND audit, the Department looks at radio transmissions. QAD uses keyword searches of the NYPD’s dispatch system (ICAD) to identify events that likely involved a stop encounter. These keywords include “stopped,” “show-up,” “holding” and “warrant check.” Once an event that looks like it might have been a stop is identified through reviewing dispatch transcripts and/or listening to the corresponding radio transmissions, QAD looks through NYPD records to determine if a corresponding stop report was prepared. QAD then forwards the audit to the command for investigation and follow-up. The commanding officer determines if the encounters identified by QAD were in fact Terry stops, for which a stop report was required to be completed, or instead are “false positives.” A “false positive” might occur, for example, when the radio transmission used the word “stopped” but was describing a stop of an automobile based on probable cause that a
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traffic infraction was committed. If, however, it is determined that a stop was made and a stop report was required but not filed, the officer is directed to prepare a report retrospectively. The command may also take corrective action, such as providing the officer with instructions regarding stop and frisk documentation requirements, directing additional training for the individual or, if appropriate, the command or recommending disciplinary action. QAD now performs RAND audits in seven commands every month, an increase since June 2015 (when five commands were audited each month) and since 2014 (when two commands were audited each quarter).
In the first half of 2015, QAD conducted RAND audits in 36 commands and identified 53 instances in which it appeared a stop might have been made and a stop report should have been prepared. The audits were forwarded to the commands for investigation. In 27 of the 53 cases, the precinct determined that a stop report was not required, either because the officer had probable cause to arrest at the beginning of the street encounter, it was a car stop with probable cause, or it was not a stop at all. In another eight cases, the stop report was either prepared and on file, or prepared by the officer and not entered into the NYPD database. In one case, the command has not submitted a response. In 17 other cases, the precinct investigations concluded that a Terry stop occurred but was not documented. In 11 of the 17 cases, the officers were given instructions on stop and frisk documentation requirements. In five cases, an entry was made in the log at the precinct in which minor infractions are recorded; these minor violations do not go into the officer’s personnel file. In one case, an officer was disciplined and as a penalty lost four hours of compensation time, which can be used as vacation time or as pay.
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In the second half of 2015 (through November 2015), QAD conducted RAND audits in 35 commands. QAD identified 69 encounters in which it appeared a stop report should have been completed but was not, and forwarded that information to the commands for investigation. According to the NYPD, those investigations determined that 41 of the 68 encounters required a stop report, but that a report had not been completed. For the 41 stops without a stop report, the commands had the officers involved complete a stop report retrospectively. QAD is awaiting responses from several commands regarding the remaining encounters. The monitor does not yet have information on corrective actions taken with respect to these encounters.
d. Audits of Enforcement Activities Initiated by Officers Another audit that QAD uses to identify stops that are missing the required stop report form is its “police-initiated enforcement audit.” This is an audit of arrests when there is no radio run or individual complainant, but the officer makes an arrest based on his or her observations and investigation—for example, an arrest for criminal possession of a controlled substance or criminal possession of a weapon when the officer sees the controlled substance or weapon. QAD audits up to 25 arrests that result from “policeinitiated enforcement” in each command quarterly. When it is determined that a stop led to the arrest, QAD reviews arrest documents and court affidavits to determine whether the officer prepared a stop report. For arrests made in the second quarter of 2015, QAD found 310 that resulted from a Terry stop, but only 18 stop reports were prepared, a 5.8 percent compliance rate. In a more recent police-initiated enforcement audit, QAD audited approximately 1,400 arrests made between November 5, 2015 and December 10,
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2015, and identified 50 arrests that resulted from a Terry stop. However, only six stop reports were prepared for the 50 arrests (a 12 percent compliance rate).
One possible reason for these low compliance rates may be that some officers believe it is not necessary to prepare a stop report if an arrest is made, since other forms related to the arrest are prepared. If that is the reason, this belief does not comport with NYPD policy.
Another source of information about undocumented stops is the CCRB. In its 2015 Semiannual Report, the CCRB noted that 16 percent of all stop and frisk complaints for which a full investigation was completed in the first half of 2015 were referred to the Department for failure to fill out the required stop report form. The CCRB referred 18 percent of the stop and frisk complaints investigated in 2014 to the Department for failure to complete a stop report.
The monitor will be conferring with the NYPD and the other parties to determine whether there are reliable methods using these and perhaps other sources of information to estimate more systematically the total number of stops made, including those that were not documented.
e. Audits of Self-Inspections by Integrity Control Officers QAD has added another audit relevant to the remedial efforts. Each precinct has an Integrity Control Officer (ICO) whose responsibilities include performing “selfinspections,” which are reviews of precinct activities to identify violations of Department procedures. One of those self-inspections is a review of stop reports. The court noted that the ICO’s review of stops as part of the precincts’ self-inspections was insufficient
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because it involved only a cursory review of the paperwork and not a substantive review of the reasons for the stop and frisk.
In July 2015, at the recommendation of the monitor, QAD began reviewing the precincts’ self-inspections. In its review, QAD determines whether the monthly selfinspections are on file, whether they have been prepared and approved by the appropriate supervisor (Commanding Officer, Executive Officer or ICO), and whether the findings of the self-inspection for the stop reports and arrests are consistent with QAD’s findings. The monitor has not yet received the results of these audits.
The NYPD will also be forming an Audit Advisory Committee consisting of five auditing professionals with expertise in internal audits, external audits, forensic investigations, risk management and compliance. The NYPD has stated that the Audit Advisory Committee will perform an initial assessment of the Department’s existing
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auditing procedures, identify areas for improvement and make recommendations in those areas. Once constituted, the committee will advise on all future audit procedures and audit plans before they are implemented by QAD.
In sum, the monitor will be evaluating NYPD’s 2016 audit plan, following up on open questions and information requested about audits already being done, and monitoring the results of new audits once they are instituted.
B. Bronx TAP 1. Milestones
Under the remedial orders in Ligon, the NYPD must develop procedures for ensuring that stop report forms are completed for every trespass stop outside a TAP building in the Bronx and that the constitutionality of those encounters is reviewed. Stop report forms for criminal trespass stops outside TAP buildings in the Bronx must be provided to Ligon counsel.
2. Status and Assessment The NYPD is examining ways to assess whether trespass stops and arrests in TAP buildings (and also in NYCHA buildings) were properly conducted and recorded. First, the NYPD is developing an audit program for trespass stops and arrests. Second, the Department is considering precinct self-inspections, in which ICOs review the stop reports and activity log entries of trespass stops and also examine the sergeants’ review of those reports. Currently, the Department is using self-inspections to monitor criminal trespass stops at TAP locations in the Bronx. Since March 2015, the ICO in each Bronx precinct reviews the trespass stops at TAP locations in that precinct (both inside and outside the
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TAP building) and prepares a spreadsheet with the date of the stop, the stop report serial number, the tax ID of the reporting officer, the date the ICO conferred with the reporting officer (if applicable), the date the ICO conferred with the officer’s supervisor (if applicable), the findings for the stop and any corrective action taken. These assessment reports, along with the stop reports and activity logs, are sent to the Office of the Chief of Patrol, which collects and combines them into a monthly survey report.
The monitor and Ligon plaintiffs’ counsel were provided these survey reports for the months of March through September 2015. Based on these reports, there were only 29 stop report forms prepared for criminal trespass stops either inside or outside TAP buildings in the Bronx for these seven months. There were no trespass stops reported at TAP buildings in the Bronx in July, August or September 2015. After reviewing these trespass stops, the precinct ICO instructed the officers on how to improve their actions for 11 of the 29 stops and gave verbal warnings to the officers for two stops. These corrective actions were usually in response to an incomplete stop report form or because the officer’s activity log was insufficient. The monitor team reviewed these 29 stop reports and activity logs and found that many of them did not articulate reasonable suspicion for the stop; likewise, when there was a frisk, many of the reports did not articulate reasonable suspicion that the person frisked was armed and dangerous. These reports highlight the need for additional training and supervision relating to these types of stops and the need for clear descriptions of the basis for the stops and frisks. To address these issues, the NYPD has drafted, and the Ligon plaintiffs and the monitor have
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reviewed, an operations order that would establish a system for monitoring and assessing stops for criminal trespass at TAP buildings in the Bronx. The monitor will submit the operations order for court approval.
C. Early Identification System (EIS) 1. Milestones
As part of its remedial efforts, the NYPD has committed itself to upgrading its current performance monitoring system and implementing an effective Early Identification System to foster the goals of the Department and the remedial reforms. An EIS is a centralized database to collect and analyze information relating to behavior that might put the Department or its officers at risk. Many major police departments use an EIS to support the supervision and management of their officers, supervisors and units. It is used to identify at-risk employees and patterns of at-risk behaviors so that they can be addressed and corrected before more serious misconduct occurs.
2. Status and Assessment The Performance Analysis Section (PAS) of the Risk Management Bureau currently tracks the performance of officers using several databases and behavioral indicators to identify officers and supervisors who display at-risk behavior. To identify members of the service who need to be placed in a monitoring program, the PAS tracks disciplinary actions, substandard evaluations, civil lawsuits, complaints to the CCRB, use of force complaints, supervisor recommendations and other negative personnel actions. The Department is currently creating a program that it hopes will improve the EIS process and make it more useful. The system in development will use more databases and sources of information to populate an alert system. In 2013, the Enterprise Liability
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Assessment Unit, now part of the Risk Management Bureau, proposed the development of the Risk Assessment Information Liability System (RAILS). RAILS was originally designed to analyze lawsuits and claims against the City and to identify patterns and trends of liability or risky behavior. The project was approved in January 2014. The NYPD has now expanded the original scope of RAILS so that it will use other data in addition to lawsuits and claims, and will be used to analyze the performance of officers and Department-wide risks. This new “scope of work” was approved in August 2015. The NYPD expects that work on the expansion of RAILS will begin by February 2016.
The Department has created a working group to discuss how the Department will use the newly expanded RAILS program and identify all of the databases that should be included. So far, the Department plans to include information on officer complaints, civil lawsuits, use of force, discipline, sick leave and overtime, traffic accidents, investigations by the IAB and criminal proceedings against officers. The NYPD has stated that it also plans to incorporate positive information on officers, including promotions, commendations and letters of reference. In addition to containing information from CCRB complaints involving stops, an EIS system could track instances in which supervisors took corrective action after their review of stops.
If developed as planned, RAILS could be an important tool in supervision and management. EIS systems often use triggers to identify when officers need review by their supervisors, and these triggers can be both quantitative (e.g., if an officer has a certain number of vehicle accidents) and comparative to an officer’s peers (e.g., if an
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officer has used force significantly more than other officers with similar assignments). Some systems can also analyze information for trends and patterns of squads and units, not just individual officers, so supervisors can be reviewed as well. However, an EIS system like RAILS will affect the behavior of officers only if supervisors use the RAILS analyses to review officers and act when appropriate. VIII. Complaints and Discipline
The court orders and the parties’ agreements require that the NYPD improve the way it deals with discipline and complaints relating to stop and frisk and trespass enforcement. A fair, accurate and prompt disciplinary system is central to the court orders and also to improving relations between police officers and their superiors and between the police and the community. The system should be seen as legitimate by the police and the community being policed.
A. Racial Profiling Allegations 1. Milestones
The court found that the NYPD did not effectively track and investigate allegations of racial profiling. The NYPD did not have a separate category for allegations of racial or other prohibited profiling, and therefore did not know how many of these complaints had been made. It also did not track the outcome of the investigations of these complaints—whether the allegation was substantiated and, if so, whether any remedial or disciplinary action was taken. The court orders and the parties’ agreements require the NYPD to begin tracking and appropriately investigating complaints it receives related to profiling.
2. Status and Assessment
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The NYPD has changed the way allegations of racial profiling and bias-based policing are categorized, processed, tracked and investigated. All profiling allegations, no matter how they are made to the NYPD (e.g., in a 311 or 911 call, by a call or visit to the IAB, or at a precinct), are now referred to IAB. IAB’s Command Center logs the complaint into its case management system—the Internal Case Information System (ICIS). In October 2014, a “profiling” category was added to that system, including nine subcategories: race, color, ethnicity, national origin, religion, age, gender, gender identity and sexual orientation. Subsequently, additional subcategories of creed, alienage, citizenship status, disability and housing status were added to track the categories listed in the New York City Administrative Code and in the NYPD’s racial profiling policy, P.G. 203-25.
The Department also changed how and by whom profiling allegations are classified and investigated. Before January 2015, these complaints were classified as “OG” or “outside guidelines,” a classification for cases considered less serious than those categorized as “M” or “misconduct” cases, which are tracked and reviewed by IAB. An allegation of police corruption is categorized as a “C” case and investigated by IAB. As of January 2015, allegations of racial or other prohibited profiling are classified as the more serious “M” cases. After the allegation is logged into the IAB case management system, the complaint is assigned for investigation. Previously, complaints of profiling were investigated by supervisors assigned to the same precinct or bureau where the subject of the investigation worked. Since January 2015, these investigations have been assigned to investigative units attached to the borough (not precinct) command or to the relevant bureau command (e.g., the Transit Bureau command). If a complaint also
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includes an allegation of corruption, the investigation will be done by IAB. Pending investigations are reviewed at monthly meetings among IAB and investigative unit supervisors, and the resulting dispositions are reviewed and tracked in IAB’s case management system.
The changes in classification, intake, assignment and investigation of profiling complaints have been made through internal memoranda and orders rather than formal changes in NYPD procedures. The NYPD is currently examining relevant Patrol Guide, Administrative Guide and Detective Guide procedures, as well as IAB’s procedures, to determine whether it believes any changes in those documents should be made. IAB is also drafting guidelines for profiling investigations and training for its Command Center, IAB investigators and the borough investigations units. The material will cover the new policies for racial profiling and bias-based policing and investigative techniques to be used regarding profiling complaints. This training, when approved, will be conducted by the IAB training unit. These changes in procedures, training and investigative guidelines have been distributed to the parties for review and comment, and will be reviewed by the monitor.
One issue identified by the monitor is that allegations of racial or other profiling allegations made to the CCRB but not the NYPD are not being investigated by either the CCRB or the Department. The CCRB does not believe that profiling complaints are within its authority to investigate complaints of force, abuse of authority, discourtesy or offensive language (FADO), and so does not investigate them. If a complainant alleges that an improper stop was made and that the officer made the stop because of the complainant’s race, the CCRB will investigate whether there was an appropriate basis for
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the stop, but will not separately investigate the racial profiling allegation. It does, however, note these allegations of profiling in its database. CCRB personnel populate an on-line form that includes a “Reason for Initial Contact.” A drop-down menu states “C/V [complainant/victim] believes racially profiled (Do not ask C/V this question. Check only if C/V volunteers this info).”
Although the CCRB has captured information about racial profiling as a reason for initial contact since 2004, it has not referred these allegations to the NYPD for investigation. At a meeting with the monitor, the CCRB chair and staff, and IAB personnel, the Department and the CCRB agreed that the CCRB would now notify IAB when the complainant/victim states that he or she was profiled. IAB and the CCRB will work together on any procedures or protocols necessary to effectuate this agreement and will examine whether there are any practices or protocols that should be established for situations in which there are parallel investigations (the CCRB investigating the FADO allegation and NYPD investigating the profiling allegation), so that duplication and/or potential disruption for complainants, witnesses and officers can be diminished.
The Department states that with profiling allegations separately categorized in the IAB’s database, IAB and the RMB will be able to analyze the data to determine trends, patterns or other indications of problematic behavior within a precinct, borough or
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bureau, or by an individual officer. Any analysis should also include the CCRB cases in which a complainant or witness believes that he or she was subject to profiling.
In 2014, there were 15 allegations of profiling made to the Department after it began tracking profiling allegations. These cases were investigated as “outside guidelines” cases at the subject officers’ commands. Of the 15 cases, the Department reported that eight allegations were unsubstantiated and five were unfounded; in two cases, the officers were exonerated.4
During 2015, IAB received 335 profiling cases containing 478 allegations of profiling. Of those 478 allegations, 345 are open, 83 were determined to be unfounded and 39 were determined to be unsubstantiated; with respect to nine allegations, the officers were exonerated. The most cited category of profiling is “color” (155 allegations). The monitor has asked for the full investigative files for a sample of these cases. When received, the monitor will review them to assess the thoroughness of the investigations.
B. Handling of Complaints Substantiated by the CCRB 1. Milestones
The court orders and the parties’ agreements require that the Department Advocate’s Office (DAO) improve its procedures for handling CCRB findings of substantiated misconduct during stops. This improvement must include increased deference to credibility determinations made by the CCRB and an evidentiary standard that is neutral between the claims of complainants and officers. If the CCRB has
4 Unfounded means there is sufficient credible evidence to believe that the officer did not commit the alleged act. Unsubstantiated means the available evidence is insufficient to determine whether the officer did or did not commit misconduct. Exonerated means the officer was found to have committed the act alleged, but the officer’s actions were determined to be lawful.
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substantiated a complaint based on the statements and credibility of the complainant, the Department cannot impose an additional requirement of corroborating physical evidence.
2. Status and Assessment The court found that the NYPD failed to impose meaningful discipline when officers engaged in unconstitutional stops and frisks. In particular, it found that even when the CCRB determined that a complaint was substantiated, the DAO conducted its own review and rejected the CCRB’s findings if the CCRB based its decision on credibility determinations in favor of civilian witnesses as against police officers. If the CCRB decision was based only on the testimony of the complainant, the court found that the DAO required additional corroborating evidence. The court cited the percentage of cases in which the DAO declined to pursue discipline in substantiated cases in the years 2007-2012, and noted that in cases in which discipline was pursued, DAO “consistently downgraded the discipline” recommended by CCRB and recommended instructions, the least severe form of discipline, in the majority of cases in most years. Several changes have been made in the way the NYPD handles cases in which allegations have been substantiated by the CCRB. First, as the result of a memorandum of understanding (MOU) between the CCRB and the Department in 2012, the CCRB now prosecutes more serious cases—those involving charges and specifications—when it substantiates the allegation. These cases are tried in the trial room of the NYPD in front of an administrative law judge; the judge’s ruling is forwarded to the police commissioner, who makes the final decision regarding both disposition and penalty. Before the MOU was put in place, the DAO prosecuted cases involving charges and specifications, and could decline to proceed in the trial room on an allegation
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substantiated by the CCRB. The DAO can no longer decide not to prosecute those cases. Under the MOU, the police commissioner does retain the authority to direct that a case not be prosecuted.
The MOU does not apply to cases in which the CCRB recommends discipline less serious than charges and specifications. The DAO continues to review the CCRB’s determination in those cases. The DAO can agree with the CCRB’s determination, decide not to go forward with the complaint (Department Unable to Prosecute, or DUP), or recommend less or more severe discipline to the police commissioner. Unlike more serious cases in which a trial is held in the NYPD trial room, there is no trial for cases in which the discipline recommended is losing up to five days of vacation (command discipline A), losing up to ten days of vacation (command discipline B), retraining or instructions.
A second change in the complaint process was the establishment of a method for the DAO to request that the CCRB reconsider its determination and recommended discipline. This reconsideration process was approved by the CCRB in December 2014. Prior to the establishment of the reconsideration process, if the DAO disagreed with a CCRB disposition, it would not send the substantiated allegation to the police commissioner for a final decision, but would decline to proceed with the case (DUP); if the DAO disagreed with the CCRB’s suggested penalty, DAO would send its recommended penalty to the police commissioner. With the new reconsideration process, if the DAO disagrees with the CCRB’s determination that an allegation was substantiated or with the CCRB’s recommended discipline, the DAO may request in writing that the CCRB reconsider the case and state why the NYPD disagrees. If the CCRB agrees to
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reconsider the case, the CCRB panel that made the initial decision can modify its decision that the allegation was substantiated or its recommendation for discipline, or it can determine that its original decision was correct. Although the DAO may seek a change in CCRB’s decisions, the DAO no longer unilaterally decides whether or not to pursue the case. If the CCRB does not agree with the DAO’s request for reconsideration and maintains its original decision, both the DAO’s recommendations and the CCRB’s recommendations are sent to the police commissioner.
The CCRB and the DAO are agreeing more often than in prior years about when an allegation is substantiated and what penalties are appropriate. According to the CCRB’s 2015 Semiannual Report, “During the first half of 2015, the DAO pursued discipline in 92% of CCRB cases, up from 89% during September to December 2014, 62% from January to August 2014, and 57% in 2013.”5
The DAO provided the monitor team with data regarding complaints in which allegations relating to stops, questions, frisks or searches were substantiated by the CCRB and sent to the NYPD in 2014 and 2015. The DAO requested that the CCRB reconsider twelve of the cases sent to the NYPD in 2014. In two of these twelve cases, the DAO recommended that the disposition of the case be changed. In both cases, after reconsideration, the CCRB changed the disposition from “substantiated” to “exonerated,” and the NYPD agreed and closed the cases administratively. In ten cases, the DAO requested that the CCRB change its penalty recommendation. The CCRB agreed with the DAO’s recommendation in one of the ten cases. In six cases, the CCRB agreed to reduce the penalty, but not as much as the DAO had recommended, and in three cases,
5 CCRB 2015 Semiannual Report, p. 28, http://www.nyc.gov/html/ccrb/downloads/pdf/2015-SemiAnnual-Report.pdf.
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the CCRB disagreed with the DAO and did not change its penalty recommendation. In those nine cases, the police commissioner agreed with the final recommendation of the DAO.
In 2015, CCRB substantiated and sent to the NYPD 255 cases involving stops, questions, frisks or searches and one case involving an allegation of an improper trespass arrest. The DAO has reviewed 160 of these cases; 96 are still under review. Of the 160 cases reviewed, the DAO agreed with the CCRB’s recommendations in 142 cases (89 percent) and requested that the CCRB reconsider eighteen cases (eleven percent). In one case, the DAO requested that the penalty recommended by the CCRB be increased, and it was. In five cases, the DAO requested that the CCRB change its disposition from “substantiated” to “unsubstantiated”; the CCRB agreed in two of the five cases, but maintained its determination in the other three cases. In those cases, the police commissioner agreed with the CCRB in two and imposed training, and agreed with the DAO in the third and imposed no discipline. In twelve cases, the DAO requested that the CCRB reduce the penalty it recommended. In one of these twelve cases, the CCRB agreed to reduce its recommended penalty. In three cases, the CCRB agreed to reduce its recommended penalty, but not as much as the DAO had requested. In eight cases, the CCRB disagreed with the DAO and maintained its penalty recommendations.
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Figure 1–2015 SQF CCRB Cases (N=256)
2015 SQF CCRB Cases

38% 7%

55%

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

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

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Appendix 1 Selected Documents on Monitor Website
Home Page (http://nypdmonitor.org/) Overview (http://nypdmonitor.org/overview/) First Report of Independent Monitor (http://nypdmonitor.org/resourcesreports/monitor-reports/)
Court Opinions and Orders (http://nypdmonitor.org/resourcesreports/court-opinions-and-orders/)
Floyd v. City of New York Remedial Order Floyd v. City of New York Liability Opinion Floyd v. City of New York Modification of Remedial Order Ligon v. City of New York Preliminary Injunction Davis v. City of New York Settlement and Exhibits Modification of Order with respect to Body-Worn Camera Pilot
Policies (http://nypdmonitor.org/resourcesreports/policies/)
Revised Policy on Stop and Frisk (P.G. 212-11) Revised Policy Prohibiting Racial Profiling and Bias-Based Policing (P.G. 203-25) Davis Letter on Policy Floyd Letter on Policy Ligon Letter on Policy
Training (http://nypdmonitor.org/resourcesreports/training/)
Stop and Frisk Investigative Encounters-Policing Legally, Recruit Student Guide Investigative Encounters-Policing Legally, Recruit Student Guide-Updated Investigative Encounters-Policing Legally, Recruit PowerPoint Presentation FTO Guide-Investigative Encounters FTO Training-Investigative Encounters, PowerPoint Presentation
Racial Profiling and Bias-Based Policing Policing Impartially, Recruit Student Guide Policing Impartially, Recruit Student Guide-Updated Policing Impartially, Recruit PowerPoint Presentation Policing Impartially, Recruit PowerPoint Presentation (part 2) Policing Impartially, Recruit PowerPoint Presentation (part 3)
Housing Trespass Affidavit Program (TAP), Recruit Student Guide Trespass Affidavit Program (TAP), Recruit PowerPoint Presentation NYCHA and TAP Housing Interior Patrol, Recruit Lesson Plan NYCHA and TAP Housing Interior Patrol, Recruit Student Guide NYCHA and TAP Housing Interior Patrol, Recruit PowerPoint Presentation NYCHA Rules and Regulations, In-service Lesson Plan
1

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 89 of 94 Body-Worn Cameras (http://nypdmonitor.org/resourcesreports/body-worn-cameras/)
Summary of Body Worn Camera Pilot Design Monitor’s Recommendation to Modify Remedial Order Modification of Order on Body-Worn Camera Pilot NYPD letter Outlining Plan for Body Worn Camera Policies NYPD Reference Materials (http://nypdmonitor.org/resourcesreports/nypd-reference-materials/) Investigative Encounters Reference Guide Investigative Encounters At a Glance Booklet Investigative Encounters Chart A Investigative Encounters Chart B Investigative Encounters Memo Book Insert
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Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 90 of 94
Appendix 2

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 91 of 94

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 92 of 94

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 93 of 94

Case 1:12-cv-02274-AT-HBP Document 245 Filed 02/16/16 Page 94 of 94

 
 Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 1 of 48

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
JAENEAN LIGON, eta!., individually and on behalf of a class of all others similarly situated;
Plaintiffs,
-against-
THE CITY OF NEW YORK. eta!.; Defendants.

VSDCSDNY DOCUMENT ELECTRONICALLY FILED . DDOACT#I :Pit£-.D-:.....,7!'!"'"0'':/*/'-1""/[~1_.,....
12 Civ. 2274 (AT)

STIPULATION OF SETTLEMENT AND ORDER WHEREAS, on March 28, 2012, plaintiffs in the above-captioned action filed a Complaint pursuant to 42 U.S.C. § 1983; the Fourth and Fourteenth Amendments to the United States Constitution; the Constitution and laws ofthe State ofNew York; and WHEREAS, beginning on October 15. 2012, the Court held a hearing on plaintiffs' motion for a preliminary injunction; and WHEREAS, in a January 8, 2013 Opinion and Order, subsequently amended on February 14, 2013, the Court granted the plaintiffs' motion for a preliminary injunction, proposed entering several forms of preliminary relief, and postponed ordering that relief until after a consolidated remedies hearing could be held in the instant matter and the related case of Floyd, eta!. v. City ofNew York, 08 Civ. 1034 (AT); and WHEREAS, on February 11, 2013, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, the Court certified a preliminary injunction class defined as follows: All individuals who have been or are at risk of being stopped outdoors within the vicinity of Bronx apartment buildings enrolled in the NYPD's Trespass Affidavit Program (also referred to as

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 2 of 48

''Operation Clean Halls") without legal justification by NYPD officers on suspicion of trespassing in said buildings; and
WHEREAS, in an August 12, 2013 Opinion and Order in the instant matter and the related case of Floyd, et al. v. City of New York, 08 Civ. 1034 (AT), the Court imposed a final order of preliminary injunction and ordered several forms of preliminary relief; and
WHEREAS, the tern1s of this Stipulation of Settlement and Order ("Stipulation") were extensively and vigorously negotiated in good faith over a period of several months; and
WHEREAS, the negotiations have resulted in this Stipulation which, subject to the approval of the Court, fully resolves this action in the manner and upon the terms set forth below;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:

A. INTRODUCTION

1.

The Parties enter into this Stipulation after arm's length good faith negotiations

for the purpose of avoiding the burdens of further litigation and to mutually support vigorous,

lawful, and nondiscriminatory enforcement of the law. Settlement of this action under the terms

stated in this Stipulation is in the public interest as it avoids further diversion of private and City

resources to adversarial action by the Parties.

2.

Defendants deny any and all liability and deny that they had or have a policy or

engaged in or currently engage in a pattern or practice of conduct that deprived persons of rights,

privileges, or immunities secured or protected by the Constitution and laws of the United States.

3.

This Stipulation does not, and shall not be deemed to, constitute an admission by

Defendants as to the validity or accuracy of any of the allegations, assertions, or claims made by

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 3 of 48
Plaintiffs. This Stipulation does not constitute an admission, adjudication, or finding on the merits ofthe above-captioned action.
4. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391.
B. DEFINITIONS 1. "'Stipulation" shall mean this Stipulation of Settlement and Order executed by the Parties in the above-captioned action. 2. "Parties" shall mean Named Plaintiffs and Defendants. 3. "Plaintiffs" shall mean the Named Plaintiffs and Settlement Class, defined below. 4. "Named Plaintiffs" shall mean Plaintiffs Jaenean Ligon, Jerron Grant, Fawn Bracy, William Bracy, Jacqueline Yates, Letitia Ledan, Roshea Johnson, Jovan Jefferson, Kieron Johnson, Angel Ortiz, Fernando Moronta, Abdullah Turner, and Charles Bradley. 5. "Settlement Class" shall mean the class of plaintiffs agreed upon by the Parties, described in Paragraph C (2), infra. 6. "Class Counsel" shall mean the attorneys of record in the above-captioned action. 7. "Defendants" shall mean the City of New York, William Bratton, Johnny Blasini, Gregory Lomangino, Joseph Koch, Kieran Ramdeen, Joseph Bermudez, Miguel Santiago, and John Does 1-12. 8. "City" shall mean the City ofNew York. 9. "NYPD" shall mean the New York City Police Department. 10. "TAP Buildings'' shall mean any apartment buildings enrolled m a Trespass Affidavit Program.
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11. "'Trespass Affidavit Program" or "TAP" shall mean any program through which NYPD officers gain permission to patrol in and around privately-owned residential apartment buildings for the purpose of combating criminal activity.
12. "PG 212-59" shall mean NYPD Patrol Guide 212-59, which instructs NYPD officers on the proper perfom1ance of interior patrols in TAP Buildings. defined in Paragraph B (1 0), above.
13. "Floyd/Ligon Remedial Order" shall mean the joint Opinion and Order in Floyd v. City ofNew York, No. 08 Civ. 1034 and this case, dated August 12, 2013 (ECF 120), as modified by the Order Modifying Remedial Order, dated July 30, 2014 (ECF 198).
14. "Court-Ordered Monitoring" shall mean the oversight by a monitor appointed by the Court, ofthe implementation ofthe standards and remedies described herein, and of remedies that will be developed by such monitor pursuant to Sections I and J of this Stipulation and/or in the Joint Remedial Process described in the Floyd/Ligon Remedial Order.
15. "Substantial Compliance" shall mean both compliance with all material aspects of the reforms pertaining to the above-captioned action arising from the recommendations of the Court-Ordered Monitoring, which shall be measured using milestones to be set in the CourtOrdered Monitoring, and the reforms required by this Stipulation. Noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a failure of Substantial Compliance. However, temporary compliance during a period of otherwise sustained non-compliance shall not constitute Substantial Compliance.
16. "Preliminary Approval Date" shall mean the date on which the Court endorses this Stipulation.
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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 5 of 48

17. ''Dismissal Date" shall mean the date on or shortly after the Final Approval Date, defined below, on which the District Court dismisses the case with prejudice.
18. "Effective Date" shall mean (30) days after the "'Dismissal Date," following the "Final Approval Date," defined below, and shall also be the date upon which this Stipulation enters into effect, subject to Paragraph N (5).
19. "Final Approval Date" shall mean the date on which this Court approves this Stipulation and Order, following a fairness hearing.
C. SETTLEMENT CLASS REGARDING ENFORCEMENT PRACTICES IN AND AROUND TAP BUILDINGS

1. On February 11, 2013, pursuant to Rule 23 (b) (2) of the Federal Rules of Civil

Procedure, the Court certified a class defined as follows: All individuals who have been or are at

risk of being stopped outdoors within the vicinity of Bronx apartment buildings enrolled in the

NYPD's Trespass Affidavit Program (commonly referred to as ''Operation Clean Halls'') without

legal justification by NYPD officers on suspicion of trespassing in said buildings.

2.

Plaintiffs and the City hereby agree to certification of a Settlement Class which is

defined as follows: All individuals who have been or are at risk of being stopped, frisked,

arrested, searched, or issued a summons inside or outdoors within the vicinity of apartment

buildings enrolled in a Trespass Affidavit Program-defined as any program through which

NYPD officers gain permission to patrol in and around privately-owned residential apartment

buildings for the purpose of combating criminal activity-without legal justification by NYPD

officers on suspicion oftrespassing in said buildings.

3.

The Named Plaintiffs and the City agree that the Named Plaintiffs shall serve as

class representatives of the Settlement Class. The Plaintiffs and the City further agree that Class

Counsel shall serve as counsel to the Settlement Class.

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 6 of 48
4. To effectuate the agreement of the Named Plaintiffs and the City regarding the certification of the Settlement Class, they agree that the Class Counsel will submit to the Court a motion on consent of the Defendants, seeking certification of the Settlement Class at the time this Stipulation is submitted to the Court for approval.
D. MUTUAL AGREEMENT OF PRINCIPLES 1. The Parties agree that TAP Building residents and their authorized visitors have the same legal rights as the residents and authorized visitors of any other residential building in New York City, and deserve the utmost courtesy and respect during their interactions with NYPD officers. 2. The Parties agree that the further development of cooperative and trusting relationships between NYPD officers and TAP Building residents facilitates effective policing, and that negative interactions between NYPD officers and TAP Building residents and their authorized visitors can have a long-lasting, harmful impact on those relationships. 3. The Parties agree that the secured access of building entryways and effective policing within the building are necessary to maintain the safety and security of TAP Buildings. 4. The Parties agree that in performing patrols in or around TAP Building residences, the NYPD's primary role is to provide a safe and secure living environment for TAP Building residents and their guests. 5. The Parties agree that the proper enforcement of New York State trespass law is an important component of the maintenance and security ofTAP Buildings. 6. The Parties agree that the enforcement ofNew York State trespass law must, at all times, comply with the U.S. Constitution and all other relevant state and federal laws.
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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 7 of 48
7. The Parties agree that it is imperative to have policies and procedures to prevent TAP Building residents and their authorized guests from being subjected to requests for information without objective credible reasons, accusatory questions without a founded suspicion that criminal activity is afoot, stops or detentions without reasonable suspicion, or arrests or summonses without probable cause.
8. The Parties agree that proper and sufficient training, supervision, monitoring, and disciplining ofNYPD officers are necessary to prevent unlawful stops, arrests and/or summonses in or around TAP Buildings.
E. NYPD ENFORCEMENT ACTIVITIES IN AND AROUND TAP BUILDINGS 1. The NYPD shall develop, adopt and implement the standards regarding enforcement activities in and around TAP Buildings set out below in Paragraphs E (l)(a-m) and shall implement policies and procedures, training, supervision, and monitoring programs sufficient to consistently follow, apply, and use those standards:
a. NYPD officers must have at least an "objective credible reason" to approach a person in or around a TAP Building to initiate a Level 1 encounter, as defined in People v. DeBow·, 40 N.Y.2d 210 (1976), and its progeny. A person's mere presence in or near, entry into, or exit out of a TAP Building does not constitute an objective credible reason to approach;
b. NYPD officers who request information from any person in or around a TAP Building, during a Level 1 encounter, must not question that person in an accusatory manner, or create a situation (either by words or actions) that would cause a reasonable person to believe that s/he cannot terminate the encounter and walk away;
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c. NYPD officers must have a ·'founded suspicion" to approach a person in or

around a TAP Building to engage in a Level 2 encounter, as defined in People v.

DeBour. 40 N.Y.2d 210 (1976), and its progeny. A person's mere presence in or

near, entry into, or exit out of a TAP Building does not constitute founded

suspicion of criminality;

d. NYPD officers engaged in a Level 2 encounter may ask a person in or around a

TAP Building pointed or accusatory questions, but officers may not detain a

person or otherwise create a situation (by words or actions) where a reasonable

person would believe that s/he cannot terminate the encounter and walk away ;

e. NYPD officers must have "reasonable suspicion" of a felony or Penal Law

misdemeanor to conduct a Level 3 stop within the meaning of People v. DeBow·,

40 N.Y.2d 210 (1976), and its progeny, or a stop within the meaning of Terry v.

Ohio, 392 U.S. 1 (1968), and its progeny, in or around a TAP Building;

f.

The following circumstances, or any combinations thereof, are insufficient to

constitute "reasonable suspicion:"

1. a person's mere presence in or near, entry into, or exit out of a TAP

Building;

11. a person's silence or refusal to provide information or identification

when questioned by the police; or

iii. a person's passing through a door of a TAP Building that has a broken

lock or that has been propped open;

g. NYPD officers must complete a standardized form to document every Level 3

stop conducted in or around a TAP Building. For as long as the NYPD requires

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 9 of 48
officers to complete the Stop Report, PO 383-151 (03-16), under Docket Entry No. 247, attached as Exhibit A, or its electronic equivalent, to document the circumstances of stops, NYPD officers must complete that form for every Level 3 stop conducted in or around a TAP Building; h. If the NYPD adopts a different written report documenting the circumstances of stops, NYPD officers must complete a report for every Level 3 stop conducted in or around a TAP building, or its electronic equivalent, that records basic information, including the following: whether the stop occurred inside or outside the TAP building; the crime suspected by the officer when the stop was initiated; the stop location; the time and duration of the stop; the length of any prior observation of the stopped individual, if any; the factors that contributed to suspicion of the stopped person; actions taken to stop and/or detain the person prior to arrest; whether the stopped individual was ultimately frisked, searched, summonsed or arrested; whether other individuals were stopped during the same investigative encounter; whether the reason for the stop was explained to the stopped individual; demographic information about the individual stopped, including race, sex, and age; the identification produced by the stopped individual, if any was provided; information about any contraband or weapons recovered during the stop; and identifying information regarding the officer who conducted the stop. This report must also include a narrative section where the officer must record, in sum and substance, in his/her own words, the basis for the stop, and separately explain in sum and substance, why a pat down, frisk or search
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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 10 of 48

was performed, if those actions occurred, and the basis for believing the person was armed and dangerous.

1.

NYPD officers must have ·'probable cause" of criminal activity in order to make

an arrest of any person in or around a TAP Building and NYPD officers must

have "probable cause" of non-criminal violations committed in their presence or

of criminal activity in order to issue a summons to any person in or around a TAP Building;

J.

NYPD officers must complete a Trespass Crimes Fact Sheet (PD 351-144), under

Docket Entry No. 249, attached as Exhibit B, or its electronic equivalent, for

every trespass arrest made in or around a TAP Building prior to the arraignment

of the defendant in the criminal case in order to document the circumstances leading to the officer's encounter with the defendant, the officer's investigation into the defendant's authority to be present in the building, any statements made by the defendant, the basis of the officer's belief that the defendant did not have authority to be present in the building, and any arrest evidence or contraband

recovered by the officer;

k. With the exception of consent frisks, no NYPD officer shall conduct a frisk of a

person encountered in or around a TAP Building, unless the officer reasonably

suspects that the person encountered is armed and dangerous, and such frisk

extends no further than is necessary for the discovery of suspected weapons;

I.

With the exception of consent searches, no NYPD officer shall conduct a search

extending beyond a frisk of a person, encountered in or around a TAP Building,

unless the officer is conducting a search incident to arrest, or a search of an area

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 11 of 48

that was frisked by an officer, and that frisk revealed an object that the officer

reasonably believed to be a weapon;

m. If NYPD officers establish posts inside or near the entrances of TAP buildings,

they may conduct investigative encounters of the vast majority of the persons who

enter or exit such buildings, only if the officers have an objective credible reason

for each person the officer engages in a Level 1 encounter, or founded suspicion

for each person the officer engages in a Level 2 encounter, or reasonable

suspicion for each person the officer engages in a Level 3 encounter.

F. REVISIONS TO NYPD PATROL GUIDE

I.

Plaintiffs and the City have extensively negotiated the tem1s of Section 212-59 of

the NYPD's Patrol Guide and have agreed to revisions that will promote constitutional

interactions between NYPD officers and persons encountered during interior patrols in TAP

Buildings. The revised provisions are as specified in the 5-20-16 PG 212-59 AND PG 208-03

Draft Interim Order approved by the Court, under Docket Entry No. 249, and attached as Exhibit

C to this Stipulation.

2. If it has not already done so, the NYPD shall promulgate the revised version of

PG 212-59 within 30 days of the Final Approval Date. The revised version of PG 212-59 shall

take effect upon promulgation.

3.

With the exception of formatting changes that are non-substantive, if the NYPD

wishes to amend PG 212-59 or to replace it entirely with a different written policy during the

Court-Ordered Monitoring period, it shall first submit any such revision or alternative policy to

Class Counsel and the Monitor, and provide them 14 days to comment. After the Court-Ordered

Monitoring period concludes, but before this Court's jurisdiction in this matter terminates, with

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 12 of 48

the exception of formatting changes that are non-substantive, if the NYPD wishes to amend PG 212-59 or to replace it entirely with a different written policy, it shall first submit any such revision or alternative policy to Class Counsel and provide them 14 days to comment. If the NYPD makes formatting changes that are non-substantive to PG 212-59, it must provide a copy of the revised version of PG 212-59 to Class Counsel within 14 days. Any amended policy or substitute policy must comply with the principles and standards set forth in Section E of this Stipulation.

G. FORMS/REVISIONS TO TRESPASS CRIMES FACT SHEET

I.

When NYPD officers effect an arrest for trespass in or around a TAP building, the

officers shall complete NYPD's Trespass Crimes Fact Sheet, or its electronic equivalent, prior to

the arraignment of the defendant in the criminal case.

2. The revised version of the Trespass Crimes Fact Sheet, to which both Plaintiffs and the City agree, is attached to this Stipulation as Exhibit B.

3. If it has not already done so, the NYPD shall promulgate and begin using the Trespass Crimes Fact Sheet within 30 days of the Final Approval Date.

4. With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the Trespass Crimes Fact Sheet or to replace it entirely with a different form during the Court-Ordered Monitoring period, it shall first submit any such revisions or alternative form to Class Counsel and the Monitor and provide them 14 days to comment. After

the Court-Ordered Monitoring period concludes, but before this Court's jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the

NYPD wishes to amend the Trespass Crimes Fact Sheet or to replace it entirely with a different

form, it shall first submit any such revision or alternative form to Class Counsel and provide

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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 13 of 48
them 14 days to comment. If the NYPD makes formatting changes that are non-substantive to the Trespass Crimes Fact Sheet, it must provide a copy of the revised version of the Trespass Crimes Fact Sheet to Class Counsel within 14 days. Any amended form must comply with the principles and standards set forth in Paragraph E( 1)U) of this Stipulation.
5. With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the Stop, Question and Frisk Worksheet, which may also be referred to as a Stop Report or "UF 250," or replace it entirely with a different form during the Court-Ordered Monitoring period, it shall first submit any such revision or alternative form to the Class Counsel and the Monitor and provide them with 14 days to comment. After the Court-Ordered Monitoring period concludes, but before this Court's jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend the report used to document stops in or around TAP Buildings with a different form, it shall first submit any such revision or alternative form to Class Counsel and provide them with 14 days to comment. If the NYPD makes formatting changes that are non-substantive to the report used to document stops, it must provide a copy of the revised version of such report to Class Counsel within 14 days. Any amended or substitute form must satisfy the requirements of Paragraph E (l)(g).
H. REVISIONS TO NYPD ADMINISTRATIVE GUIDE PROCEDURE 303-27, "TRESPASS AFFIDAVIT PROGRAM"
1. Plaintiffs and the City have extensively negotiated the tenns of the NYPD Administrative Guide Procedure 303-27, entitled "Trespass Affidavit Program'' and have agreed to revisions to ensure proper administration of TAP. The revised version of the NYPD Administrative Guide Procedure 303-27 entitled "Trespass Affidavit Program", to which both
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Plaintiffs and the City agree, is as specified in the 8-4-16 Draft Interim Order attached as Exhibit D to this Stipulation.

2. Pursuant to the revisions to the NYPD Administrative Guide procedure 303-27 entitled "Trespass Affidavit Program," the NYPD agrees to consistently follow, apply, and use the following standards:

a.

The NYPD shall not initially enroll a building in TAP, unless there have been

recent incidents, including but not limited to, criminal activity and/or complaints

at or near a residential multiple dwelling building in the preceding 12 months, and

the building's owner or owner's authorized agent indicates in substance, the

following: that he or she will conspicuously post signs indicating that trespassing

is prohibited and that only residents and invited guests are authorized to be inside the building, and that the building's owner or owner's authorized agent will

communicate to all tenants and management personnel that police officers will be periodically entering and patrolling the building;

b. Before the expiration of a building's first six months in TAP, the precinct Crime Prevention Officer, or another Member of Service designated by the Commanding Officer, will evaluate whether to renew a building's participation in the program for another six months, based on recent incidents, including but not limited to

criminal activity and complaints in the preceding six months;

c.

Before the expiration of a building's second consecutive six months in TAP, the

precinct Commanding Officer will determine whether to renew a building's

participation in the program for another six months, based on recent incidents,

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including but not limited to criminal activity and complaints in the preceding six months. d. The Office of the Borough Commander must be notified when it has been determined that there is a need for a building to remain in TAP beyond one year. If the Borough Commander determines that a building should remain in TAP beyond one year, the Borough Commander shall make a recommendation to the Office of the Chief of Patrol, which will issue final approval for the renewal. 3. The NYPD shall promulgate the revised version of the NYPD Administrative Guide Procedure 303-27 entitled ''Trespass Affidavit Program" within 30 days of the Final Approval Date. 4. With the exception of formatting changes that are non-substantive, if the NYPD wishes to amend NYPD Administrative Guide Procedure 303-27 or the TAP Owner's Affidavit Form 651-51 or to replace either document entirely with a different written policy or form, during the Court-Ordered Monitoring period, it shall first submit any such revision or alternative policy to Class Counsel and the Monitor and provide them with 14 days to comment. After the Court-Ordered Monitoring period concludes, but before this Court's jurisdiction in this matter terminates, with the exception of formatting changes that are non-substantive, if the NYPD wishes to amend NYPD Administrative Guide Procedure 303-27 or the TAP Owner's Affidavit, or replace either document entirely, it shall first submit any such revision or alternative policy or form to Class Counsel and provide them 14 days to comment. If the NYPD makes formatting changes that are non-substantive to NYPD Administrative Guide Procedure 303-27 or the TAP Owner's Affidavit Form 651-51, it must provide a copy ofthe revised version ofthe document to
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Class Counsel within 14 days. Any amended policy, substitute policy, or form must comply with the standards identified in Paragraphs 2(a)- (d) of this section.
I. TRAINING 1. The NYPD will ensure that every member of the NYPD who engages in enforcement activity in or around TAP Buildings receives training in the standards identified in Section E of this Stipulation. This training and a timeline for its implementation will be developed through the Court-Ordered Monitoring process and will incorporate various forms of training content into the NYPD's recruit, in-service, and promotional training programs. Such training may include written material, role play scenarios, video programs, and other appropriate methods that reflect the standards identified in Section E of this Stipulation. 2. The NYPD will ensure that every member of the NYPD who is involved in the administration ofTAP is trained on the standards identified in Section H of this Stipulation. This training, and a timeline for its implementation, will be developed through the Court-Ordered Monitoring process. 3. Following promulgation ofthe revised training materials discussed in Paragraphs I( 1) and (2), if the NYPD wishes to amend the training or to replace it entirely during the CourtOrdered Monitoring period, it shall first submit any such revisions or alternative materials to Class Counsel and the Monitor, and provide them 14 days to comment. After the Court-Ordered Monitoring period concludes, but before this Court's jurisdiction in this matter terminates, if the NYPD wishes to amend or to replace entirely, any of the revised training materials discussed in Paragraphs I(I) and (2), it shall first submit any such revision or alternative materials to Class Counsel and provide them 14 days to comment. Any such revised training materials must reflect the standards identified in Section E of this Stipulation.
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J. ADDITIONAL REFORMS AND COURT-ORDERED MONITORING 1. Plaintiffs and the City stipulate that changes to the NYPD's training, supervision, auditing, monitoring, and discipline of officers, regarding stops and arrests made on suspicion of trespassing in TAP Buildings, summonses issued on suspicion of trespassing in TAP Buildings, and compliance with procedures for TAP Administration, identified in Section H, will be addressed as part of the Court-Ordered Monitoring ordered by the Court in the Floyd/Ligon Remedial Order, through the development of reforms, in addition to those specified in this Stipulation. However, the parties agree that with regard to compliance with the procedures for TAP Administration, the duration of the monitoring will conclude 1 year after the Effective Date provided the NYPD is in substantial compliance. The Monitor shall not have the authority to recommend changes to Exhibits C and D, which will be promulgated by the NYPD pursuant to Sections F and H above, unless those changes concern training, supervision, monitoring, and discipline of officers. 2. The terms and provisions of the Floyd/Ligon Remedial Order, including but not limited to, the provisions specifying the Monitor's role and functions and the duration of the Court-Ordered Monitoring, are incorporated in full into the above-captioned case for the purpose of enforcing this Stipulation as it pertains to reforms to the NYPD's policies and practices regarding trespass enforcement in or around TAP Buildings, including training, supervision, auditing, monitoring, and discipline of officers. The Parties stipulate that, for the purposes of resolving Plaintiffs' claims in the above-captioned action, the Court-Ordered Monitoring in this action shall end when the Court-Ordered Monitoring ends in the Floyd action. assummg substantial compliance in this action as defined in section B (15) of this Stipulation.
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3. After the termination of Court-Ordered Monitoring, a second remedial phase of this action shall commence. During the second remedial phase of this action, Class Counsel shall review compliance with this Stipulation. During the second remedial phase of this action, the City shall provide to Class Counsel, the NYPD documents, data, and records described in section M(l) of this Stipulation. Any information, documents, data and records provided pursuant to this agreement, not otherwise publicaJJy available, shall not be used by Class Counsel to aid or commence the prosecution of any other litigation and shall not otherwise be publicly disclosed except in court filings in this action. The Defendants do not waive or limit in any manner, any rights, privileges or defenses relating to their production of documents, data, and information. The second remedial phase of this action shall continue until the Court's jurisdiction terminates, for the purposes of reviewing, enforcing and ensuring compliance with this Stipulation, with the understanding that any pending fee motion or any other ancillary matter pending before the Court shall not be deemed to extend the City's obligation to produce information, documents, data, or records under this section. Any dispute regarding document production under this section shall be resolved by the Court.
4. All orders issued by the Court in connection with the Floyd/Ligon Remedial Order related to trespass enforcement, have full force and effect in the above-captioned action. The orders of the Court concerning the process by which the Court addresses the Monitor's final recommendations, including the orders dated February 3, 2015 (ECF 206) and April 27, 2015 (ECF 231 ), also have full force and effect in the above-captioned action.
K. INDIVIDUAL DAMAGES 1. The City has agreed to pay damages to the Named Plaintiffs totaling two-hundred thirty-five thousand dollars ($235,000), to settle their individual claims.
18

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 19 of 48

2. The Plaintiffs and City agree that each Named Plaintiff will sign and execute a Release and an Affidavit Regarding Status of Liens. The failure of an individual plaintiff to execute any of the aforementioned documents will result in non-payment of damages to that Named Plaintiff, but will not otherwise affect the operation of this Stipulation or the rights of any other Named Plaintiff or member of the Settlement Class.

L. ATTORNEYS' FEES AND COSTS

l.

The City has agreed to pay attorneys' fees totaling two-million, five-hundred

eighty-five thousand, one-hundred and one dollars ($2,585, 101) and costs and expenses totaling

fifty-five thousand, four-hundred thirty-two dollars ($55,432) for attorney time and expenses

incurred through June 30, 2016. Class Counsel represents that they are authorized to receive

payment on behalf of the Plaintiffs in full satisfaction of all claims for attorney's fees, costs and

expenses, in, arising from, or in connection with this action, from the beginning of time through

and until June 30, 2016. Class Counsel agree that payment shall be made by a single check made

to New York Civil Liberties Union Foundation.

2.

The City shall also pay reasonable attorneys' fees and costs to Class Counsel for

time and expenses incurred in this matter, from July 1, 2016, until Court jurisdiction in this

matter terminates. During this period, Class Counsel agrees to submit to the City for

reimbursement a single joint application for all fees, costs, and expenses for all attorneys and

paralegals incurred between January 1 and June 30 and between July 1 and December 30, with

the submissions being made by July 15 for the first half of the year and by February 15 for the

second half. Class Counsel agrees to engage in good-faith discussions and negotiations, if

applicable, concerning the associated fees and costs, and further agrees to provide the City with

additional information and/or documentation upon request, concerning the associated fees and

19

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 20 of 48
expenses that would reasonably assist the City in its review process. After the City has received the requisite documents and information, has had sixty (60) days to review and engage in any necessary good-faith negotiations, the Class Counsel may then submit the associated fee demand to the Court if a dispute remains between the parties. Any dispute over fees and costs shall be adjudicated by the Court. The City reserves its right to object to any application for such fees and costs. Alternatively. if the parties are able to resolve a request for fees and costs by Class Counsel, the parties shall submit a stipulation regarding the request to the Court for approval.
M. NYPD DOCUMENT MAINTENANCE AND DISCLOSURE 1. During the duration of this Stipulation, including both the Court-Ordered Monitoring phase and the second remedial phase of review (as described in Section J(3) of this Stipulation), the NYPD shall maintain all records, including but not limited to documents and data, that document its compliance or non-compliance with all remedies specified directly by or incorporated into this Stipulation. In addition, for the duration of this Stipulation, the NYPD shall maintain all records regarding any investigation of misconduct relating to any complaint pertaining to a stop, summons, and/or arrest for suspicion of trespass on TAP Buildings, as well as disciplinary files maintained in conjunction therewith. 2. The City shall disclose to Class Counsel and the Monitor during the CourtOrdered Monitoring any information related to the Court-Ordered Monitoring that the Monitor determines should be disclosed to Class Counsel, and such information shall be disclosed at intervals determined by the Monitor.
20

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 21 of 48
N. PRELIMINARY APPROVAL ORDER, CLASS NOTICE, COURT JURISDICTION, AND TERMINATION OF THIS STIPULATION 1. As soon as practicable after execution of the Stipulation, Class Counsel shall submit to the Court the Stipulation and a motion seeking entry of a preliminary approval order that requests, among other things, the preliminary approval of the settlement set forth in this Stipulation, the approval of the publication of a class notice, and the setting of a date for the fairness hearing. Reasonable costs of publication of class notice shall be borne by the City. 2. On or after the Final Approval Date, the Parties will jointly request that the District Court enter this Stipulation as an order and dismiss the above-captioned action with prejudice, while retaining jurisdiction for purposes of review, enforcement, and ensuring compliance with this Stipulation. The District Court shall also retain jurisdiction over this action for the purpose of adopting any orders resulting from the Court-Ordered Monitoring and enforcing compliance with any other terms and provisions of this Stipulation. 3. The Parties stipulate that, for the purposes of resolving Plaintiffs' claims in the above-captioned action, the duration of the second remedial phase in this action shall end when the Court's jurisdiction ends in the Floyd action, assuming substantial compliance in this action as defined in Section B(l5) of this Stipulation. The Parties also stipulate that if the City continues to establish Substantial Compliance for two consecutive years after Court-Ordered Monitoring ends, the Plaintiffs will not oppose a motion by the City to terminate the Court's jurisdiction. 4. The dismissal of the above-captioned action shall be with prejudice and without costs, expenses, or fees in excess of the amount authorized by the Court or agreed upon by the Parties in accordance with Section L herein.
21

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 22 of 48
5. The terms of this Stipulation shall be a full, final, and complete resolution of this action. Notwithstanding the foregoing, in the event that any appeals or petitions are taken or filed regarding the Court's approval of the settlement or entry of a final judgment in this action, any and all obligations required to be undertaken pursuant to this Stipulation by Defendants are stayed pending final determination of any such appeals or petitions. The Stipulation shall not become effective nor shall the Defendants be required to undertake any obligations in the event that the final determination of any such appeals or petitions results in a rejection of the settlement as set forth in this Stipulation or a reversal of the order dismissing the action.
0. ENFORCEMENT AND DISPUTE RESOLUTION 1. At any time prior to the expiration of this Stipulation, should the Plaintiffs determine that the City has failed to comply with any term(s) of this Stipulation the Plaintiffs agree that the Class Counsel shall promptly provide written notifications of such non-compliance to the Deputy Commissioner of Legal Matters of the NYPD and to the Office of the Corporation Counsel. During the period of Court-Ordered Monitoring, Class Counsel shall also provide written notice to the Monitor. All notices submitted pursuant to this section shall contain the phrase "NOTICE OF NON-COMPLIANCE" conspicuously placed on the top of the first page of the notice and in a subject line of any emailed notification. If notification of non-compliance is served by mail, Plaintiffs will write: "URGENT-TIME SENSITIVE" on any envelopes mailed to the City containing such notice. The City shall substantively respond in writing to any such notification within forty-five (45) days. The Parties agree to engage in good-faith discussions and/or negotiations concerning the alleged non-compliance. 2. Should the City agree that it has not complied with a certain term or terms specified in the notification provided by the Class Counsel, the Parties shall attempt to agree on a
22

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 23 of 48
date or dates by which the City shall come into compliance. If the parties can agree on such date or dates, the City shall come into compliance by that date or dates.
3. Should the City dispute the determination of non-compliance by the Plaintiffs or if the Parties cannot agree on a date or dates by which the City will come into compliance after good-faith negotiations between the Parties, the Class Counsel may apply to the Court for an order directing specific performance of that term or terms. The Plaintiffs cannot make such an application until at least fourteen (14) days after the City's written response, pursuant to section 0(1), to the Plaintiffs' initial notification of non-compliance (subject to the Parties having engaged in good-faith discussions and/or negotiations after the Plaintiffs' notification of noncompliance and during the 14-day period). unless the City's alleged noncompliance presents a substantial risk of significant irreparable ham1 that cannot be remedied after the 45-day period, in which case the Plaintiffs may seek immediate judicial relief. The Plaintiffs agree not to seek contempt in conjunction with any motion for specific performance made under this paragraph.
4. If the Court issues an order of specific performance pursuant to Paragraph 3 of this section and the Plaintiffs believe that the City has failed to comply with that order, the Class Counsel may seek immediate relief from the Court, including contempt.
5. The Parties reserve their right to appellate review of the Court's decisions concerning compliance under the Stipulation, as governed by applicable law.
6. The provisions of this section 0 are the exclusive means for enforcing the terms of this Stipulation.
P. RELEASE 1. Except as indicated in Paragraph 3 of this section, the Stipulation, as of the Effective Date, resolves in full any and all claims or rights of action against the Defendant and its
23

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 24 of 48

predecessors, successors, or assignees together with past, present and future officials, employees,

representatives, and agents of the NYPD, and the City of New York (the ··Released Persons"), by

any Plaintiffs, including all members of the Settlement Class and all Class Representatives.

contained in and/or arising from the Complaint in this action, and any other claims or rights of

action that Plaintiffs may have based upon or arising from any alleged policy, pattern or practice

of unconstitutionality in the trespass stop, question, frisk, arrest, search, and summons practices

of the NYPD, that could have been raised at this time in this action and for which the Named

Plaintiffs had standing to raise at the time of the Named Plaintiffs' execution of their release in

this action, with the exception of the Named Plaintiffs' individual damages claims for which

separate stipulations and releases will be required per Paragraph K(2) herein.

2.

Except as indicated in Paragraph 3 of this section and Section L(2) of this

Stipulation, as of the Effective Date, Plaintiffs, including all members of the Settlement Class

and Class Representatives, hereby release and waive any and all claims and rights to pursue,

initiate, prosecute or commence any and all causes of action, claims, damages, awards, equitable,

legal and administrative relief, interest, demands or rights, including claims for attorneys' fees,

costs and expenses, before any court, administrative agency or other tribunal, or to file any

complaint with regard to acts of commission or omission by the Released Persons related to,

connected with, arising out of, or based upon, the allegations contained in, or arising from, the

Complaint in this action for which the Named Plaintiffs had standing to raise at the time of the

Named Plaintiffs' execution of their release in this action, with the exceptions of the Named

Plaintiffs' individual damages claims, for which separate stipulations and releases will be

completed per Paragraph K(2) herein.

24

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 25 of 48

3.

This Stipulation, with the exception of the Named Plaintiffs, does not affect the

rights of other individual members of the Settlement Class to bring individual damages claims

against Defendant for what they believe is a violation of their rights, including any claims related

to, connected with, arising out of, or based upon the allegations contained in or arising from the

Complaint in this action.

4.

This release will be, and may be, raised as a complete defense to and will

preclude any action or proceeding encompassed by the release of the Released Persons, subject

to Paragraph P(3), above.

Q. APPLICATION AND PARTIES BOUND

1.

This Stipulation applies to, and is binding upon, the Plaintiffs and/or the members

of the Settlement Class, including the Named Plaintiffs, Class Counsel, Defendants, and the

City's officers, agents, employees, successors, and assigns. This Stipulation is enforceable only

by the Plaintiffs and/or a member of the Settlement Class, including the Named Plaintiffs and

Defendants. The undersigned representatives of the Plaintiffs and/or the Settlement Class,

including the Named Plaintiffs, certify that they are authorized to enter into and consent to the

terms and conditions of the Stipulation and to execute and legally bind the Plaintiffs and/or the

members of the Settlement Class, including the Named Plaintiffs, to it. The undersigned

representatives of the Defendants certify that they are authorized to enter into and consent to the

terms and conditions of the Stipulation and to execute and legally bind the Defendants to it.

R. MODIFICATION OF THE SETTLEMENT STIPULATION AND ORDER

I.

This Stipulation represents the entire agreement among the Parties, and no oral

agreement entered into at any time nor any written agreement entered into prior to the execution

of this Stipulation shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and

25

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 26 of 48

conditions contained herein, or to determine the meanmg of any provisions herein. This Stipulation can be modified only on the written consent of the Named Plaintiffs and the City, or upon order of the Court.

S. NOTIFICATION OF PARTIES UNDER THE SETTLEMENT STIPULATION AND ORDER

1.

All notices contemplated by this Stipulation, other than notice to the Settlement

Class pursuant to Section N, shall be in writing and shall, unless expressly provided otherwise

herein, be delivered by hand delivery and by email, and shall be addressed as follows:

FOR THE PLAINTIFF CLASS:

Christopher Dunn Molly Kovel Jordan Wells New York Civil Liberties Union 125 Broad Street, 191h Floor New York, NY 10004 Tel. (212) 607-3300 cdunn@nyclu.org mkovel@nyclu.org jwells@nyclu.org

Johanna Steinberg Bronx Defenders 360 East 161 st Street Bronx, NY 10451 johannas@bronxdefenders.org

Jeffrey J. Resetarits Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 jeffrey.resetarits@shearman.com

FOR DEFENDANTS:

Thomas Giovanni Amatullah K. Booth New York City Law Department Office of the Corporation Counsel

26

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 27 of 48

I00 Church Street New York, NY 10007 Tel. (212) 356-3500 Tel. (212) 356-3534 tgiovann@ law .nyc. gov abooth@law .nyc.gov
Deputy Commissioner for Legal Matters New York City Police Department 1 Police Plaza New York, NY 10038

2.

In the event that any substitution in counsel designated to receiVe

communications under this Stipulation is made, all counsel shall be promptly informed,

and the name and contact information for such substitute counsel shall be promptly

provided.

T. NULLIFICATION

1.

In the event the Comt does not approve this Stipulation, the parties shall meet and

confer in good faith to determine whether to agree upon a modified Stipulation. If they are

tmable to do so, this Stipulation shall become null and void, and this case shall be restored to the

active docket so the plaintiffs can proceed with the · · tion.

Jordan Wells NEW YORK CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street, 19th Floor New York, NY 10004 TeL (212)607-3300 cdunn(aJnyclu.org
mkovel~gnyclu.org
jwells(g nyclu.org

haryW. Cart Corporation Counsel of the City ofNew York Amatullah Booth NEW YORK CITY LAW DEPARTMENT 100 Church Street
New York, NY 10007
Tel. (212) 356-3534 abooth{[L).law.nyc.gov
Attorneyfor Defendants
27

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 28 of 48
ca~~ BRONX DEFENDERS 360 East 161st Street Bronx, NY 10451 johannas@bronxdefenders.org ~Jk_, FosterMaer LATINOJUSTICE/PRLDEF 99 Hudson Street, 14th Floor New York, NY 10013
gor Smyth, Jr. NEW RK LAWYERS FOR THE PUB C INTEREST
est 30th Street, 11th Floor New York, NY 10001 TeL (212) 224-4664 Attorneysfor Plaintiffs
Dated: New York, New York January {<6, 2017 ·
28

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 29 of 48

SO ORDERED
Dated: New York, New York July 19, 2017

--~egUnited States District Judge

29

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 30 of 48

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 31 of 48
Case 1:12-cv-02274-AT-HBP Document 247 Filed 03/25/16 Page 6 of 25

(COMPLETE ALL CAPTIONS)

Pet. Serial No.

ICAD No.

Date ofOcc.

Pet OfOcc.

Period Of Observation Prior To Stop
Address/Intersection Or Cross Streets Of Stop

D Inside D Outside

Type Of Location (Describe:)

Stop Was:

Officer in Uniform?

If no, how Identified?

D Shield

DYes DNa

D Verbal

Crime Suspected (e.g., Robbery. Burglary, Criminal Trf!lspass, etc.)

D J.D. Card

Check All Factors That Led to Stop and Explain in the Narrative Section

D Concealing or Possessing a Weapon 0 Casing Victim or Location

D Engaging in a Drug Transaction

D Matches a Specific Suspect Description

D Actlng as a Lookout

0 Proximity to the Scene of a Crime

D Identified Crime Pattern {Pattern No.__) 0 other (Describe in "Narrative" Section}

Name Of Person Stopped

Address

Identification: 0 Verbal
D Other (Describe) Sex: D Male Race: D White
D Female
Age

Build

Did Officer Explain Reason For Stop? Information Card Given to Person Stopped?

0 Yes 0 No

D Yes 0 No

If You Answered No to Either of the Previous Two Questions, Explain the Reasons in

the Narrative Section on the Rear Side.

Were Other Persons Stopped/ 0 Yes Total No. Stopped Pet. Serial Nos.

Questioned/Frisked?

0 No

Did a Body-Worn Camera (BWC) Capture 0 Yes

the Event in Whole or in Part

0 No

Body-Worn Camera Serial Number

Actions Taken to Stop and/or Delain Prior to Arrest D Verbal Command/Instruction D Impact Weapon D Drawing/Pointing Firearm D Physical Force/Restraint 0 Handcuff Suspect D O.C. Spray D CEW D Other (Describe)

Was Suspect Arrested? Offense

DYes DNa

I

Was Summons Issued?

DYes DNo

Arrest No.
I
Summons No.

Remarks Made by Person Stopped

®
Narrative (Describe the Circumstances That Led to the Stop):

Was Other Contraband Found? 111 Yes, Describe Contraband and Location

DYes

DNo

®

r<eporting MU::> (Kant(, Name Printed)

riignature

'Tax No.

lc;ommand

IDate

Supervisory Action (Must Complete): Supervisor on Scene During Stop? ..... D Yes D No

Encounter Reviewed With Officer? ... D Yes D No

Sufficient Basis for Stop?

DYes DNo

Report Accurate and Complete? .....0 Yes 0 No

Sufficient Basis for Frisk?

DYes 0 No

Corresponding Activity Log Entry Reviewed? 0 Yes 0 No Sufficient Basis for Search? DYes DNo

Reviewing Supervisor (Rank, Name Printed)

0 N/A 0 N/A

Signature

ret. Serial No.

Follow-Up Action (IfAppropriate): Report Corrected. . 0 Training.......... 0 Instruction . . . . . . . 0 Disciplinary Action . 0

Tax No.

Command

Date

Time

®

0
P.l
UJ CD
I->
I->
N I
C'")
< I
0 N N -.J
.j:::..
I
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-I I
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-o

0

0

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®

3

CD

.::.:.:.:.1..

N
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-.J

I!
CD 0..
w 0
N
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Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 32 of 48

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 33 of 48
IBITB

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 34 of 48

Case 1:12-cv-02274-AT-HBP Document 249 Filed 06/02/16 Page 28 of 35

TRESPASS CRIMES -FACT SHEET AND SUPPORTING DEPOSITION
PO 351-144 (Rev. 03-16)
NOTE: This Form Must be Completed by the Officer Who Made the Observations that Led to the Defendant's Arrest.

Defendant's Name: _ _ _ _ __

Arrest No.:

- - - - - - - - - - - - - - - - ' S h i e l d No. _____, a New York City Police Officer/Detective assigned to the _ _ _ _ _ _ _ (command), deposes and swears as follows: On _ _ _ _ _ _ _,(date), at _ _ _ (lime), at _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ (/oca/ion),

while on patrol inside this dwelling, an apartment building where people reside, I observed the defendant inside this location as described below.

1. At this time, a sign stating in substance:

0 No trespassing

0 Tenants and their guests only

0 No loitering

0 Anyone who remains unlawfully upon these premises will be prosecuted

0 Other: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

was posted at/on (Indicate location of sign)-----:-:------,-----,-...,---.,.---,-------:-For NYCHA arrests only: If the defendant was arrested for presence in a restricted area (e.g. the roof), was there a conspicuously posted sign at that location that prohibited entry in that specific restricted area? 0 Yes 0 No
IF YES, where was that sign? - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

2. I 0 DID 0 DID NOT observe the defendant entering the apartment building. IF YOU DID: a) How did the defendant gain access to the b u i l d i n g ? - - - - - - - - - - - - - - - - - - - - -

b) Did you observe the door to be locked? 0 Yes 0 No
3. How long did you observe the defendant before you approached him or h e r ? - - - - - - - - - - - - 4. Where was the defendant when he/she was first approached?
0 Lobby D Stairwell 0 Roof 0 Roof Landing 0 Basement 0 Hallway
0 Outdoors ( d e s c r i b e ) - - - - - - - - - - - - - - - - 0 O t h e r - - - - - - - - - - - 5. Describe the factors that Jed you to approach and question the defendant:

6. Was the defendant asked any of the following questions? If yes, please provide the substance of the defendant's response(s) below_ •
a) Do you live in the building? D Yes 0 No IF ASKED, response: - - - - - - - - - - - - - - - b) Do you have identification? D Yes 0 No IF ASKED, r e s p o n s e ; - - - - - - - - - - - - - - - c) Are you visiting someone in the building? D Yes 0 No IF ASKED, response: ~---------d) Did the defendant provide a name of the person he or she was visiting? D Yes 0 No IF YES, response:
e) Did the defendant provide an apartment number? 0 Yes 0 No IF YES, Apt No. IF YES, did you go to the apartment the defendant indicated? 0 Yes 0 No IF Yes, what happened?
• CPL § 710.30 notice is served for defendant's statement(s) which was/were made at or about the time of the above incident OVER

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 35 of 48
case 1:12-cv-02274-AT-HBP Document 249 Filed 06/02/16 Page 29 of 35
f) Do you have business In the building? 0 Yes 0 No IF ASKED, response: - - - - - - - - - - - - g) Did the defendant make any other statements not indicated In No. 6(a)- 6(f) above? 0 Yes 0 No IF Yes, the defendant also stated in s u b s t a n c e : - - - - - - - - - - - - - - - - - - - - - - - - - -

NOTE: If you were unable to verify that the defendant was a tenant or an authorized guest, did you direct the
defendant to leave before the arrest? 0 Yes 0 No

7. The statements provided in No. 6 were made at approximately ____ (time) a t - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - = - - - - : ( l o c a t i o n ) on

(date).

I was present for the statements provided in No.6 above. 0 Yes 0 No If you were not present, provide the

information ofat least one officer who was present for such statements:

Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Shield N o . - - - - - - - -

8. Were there any other facts beyond the statements listed in No. 6 that caused you to believe that the defendant was not a tenant, guest or on business in the building prior to arrest?

9. The defendant did not have permission or authority to be inside the dwelling based on Information and belief the source of which is as follows: (you must choose one) 0 I observed the defendant trespass inside a New York City Housing Authority building. I am a member of the New York City Police Department and as such I am an agent of this dwelling and defendant did not have permission and authority to enter or remain in the area he/she was found.
0 The attached owner's/managing agent's affidavit, which was signed within the last six months, authorizes
members of the NYPD to act as an agent of the owner/managing agent of said dwelling pursuant to the Trespass Affidavit Program (TAP). (Attach owner/managing agent affidavit).
10. Was arrest evidence or contraband recovered from the defendant? 0 Yes 0 No
a) If YES, describe the evidence and EXACTLY where the evidence was recovered. If it was recovered from the defendant's person indicate where on their person:

b) Did you recover the evidence? 0 Yes 0 No. If NO, did you observe the recovery of the evidence? 0 Yes 0 No.
c) Indicate officer who recovered evidence:

Rank/Name

Shield No.

Tax N o . - - - - -

d) Describe WHEN the evidence was recovered (e.g. before the arrest, during a frisk, incident to arrest):

e) At what location was the evidence recovered (e.g. at the scene, in the precinct/command)

False statements made herein by Deponent are punishable as a class A misdemeanor pursuant to section 210.45 of the Penal Law.

Deponent/Officer's Signature Print Rank/Full Name Verification by Desk Officer:
Desk Officer's Signature Print Rank/Full Name

Tax No. Tax No.

Date Command
Date Command

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 36 of 48

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 37 of 48 Case 1:12-cv-02274-AT-HBP Document 249 Filed 06/02/16 Page 8 of 35

DRAFT INTERIM ORDER

SUBJECT: REVISION TO PATROL GUIDE 212-59, "INTERIOR PATROL" AND PATROL GUIDE 208-03, ARRESTS- "GENERAL PROCESSING"

DATE ISSUED:
05-20-16

REFERENCE:

NUMBER:

*P.G. 212-59 AND P.G. 208-03 DRAFT 11

1. In order to enhance the interior patrol of multiple dwelling buildings enrolled in the Trespass Affidavit Program, Patrol Guide 212-59, "Interior Patrol" has been revised.
2. Therefore, effective immediately, Patrol Guide 212-59, ''Interior Patrol" is SUSPENDED and the following new procedure entitled, ';Interior Patrol of Multiple Dwelling Buildings Enrolled in the Trespass Affidavit Program" will be complied with:

PURPOSE SCOPE

To prevent, detect and take necessary enforcement action regarding illegal activity occurring in lobbies, stairwells, interior hallways, rooftops, basements and other common areas of multiple dwelling buildings enrolled in the Trespass Affidavit Program (TAP) that are not owned by the New York City Housing Authority, in a manner that respects the rights ofTAP building residents and guests.
Authorization for interior patrol, the tactically planned patrol ofthe common areas of multiple dwelling buildings, is obtained through the Trespass Affidavit Program. Members of the service shall conduct all inquiries, interactions, and enforcement activities in Trespass Affidavit Program buildings with the courtesy, professionalism, and respect to which all persons are entitled in their own homes. This procedure must be applied consistent with Patrol Guide 212-11, "Investigative Encounters: Requests for Information, Common Law Right ofInquiry and Level 3 Stops." Patrol Guide 212-1I and the corresponding training materials establish the parameters for all investigative encounters irrespective of location ofoccurrence.

PROCEDURE

To conduct interior patrols in residential multiple dwelling buildings enrolled in the Trespass Affidavit Program:

PLATOON

1.

COMMANDER/

PATROL

SUPERVISOR/

ASSIGNED

2.

SUPERVISOR

3.

Ensure TRESPASS CRIMES - OWNER'S AFFIDAVIT(S) (PD651051) or New York County District Attorney's Supporting Affidavit(s) for the scheduled locations(s) were signed by the Owner/Managing Agent within the last six months. Assign teams of two or more uniformed members of the service to conduct interior patrol at designated times and locations. a. Schedule interior patrols based on times when illegal activities are
prevalent. Consider the appropriate number of teams necessary to perform a particular interior patrol. a. The number of uniformed members that are required to conduct a
particular interior patrol assignment should be based on the size of the building, the number and location of exits, and the nature of the crimes being addressed.

1 of6

Case 1:12-cv-02274-AT-HBP Document 296 Filed 07/19/17 Page 38 of 48
Case 1:12-cv-02274-AT-HBP Document 249 Filed 06/02/16 Page 9 of 35

PLATOON

4.

COMMANDER/

PATROL

SUPERVISOR/ 5.

ASSIGNED

SUPERVISOR

(continued)

Instruct uniformed members performing interior patrol that, absent exigent circumstances, two or more uniformed members must remain together at all times.
Ensure all interior patrols are conducted in an appropriate manner with special attention to:
a. Proper tactics
b. Required equipment (e.g., serviceable flashlight, O.C. spray, etc.) c. Radio transmissions
d. Proper documentation (e.g., ACTIVITY LOG [PD112-145] entry, STOP REPORT [PD383-151], WHAT IS A STOP? [PD383-153] informational card, etc.).

UNIFORMED 6. Respond to location at designated time and coordinate activities with other

MEMBER OF

assigned unifonned members.

THE SERVICE 7.

an Notify Communications Section radio dispatcher utilizing radio code
10-751, and make ACTIVITY LOG entry of the time and street

address upon entering the building.

8. Inspect front, rear and other exterior doors, and the interior of the lobby.

a. Determine whether doors are secured.

9. Document in ACTIVITY LOG whether signs prohibiting trespassing are

legible and prominently displayed in areas where persons entering the

building can readily see them.

a. If signs are missing, illegible or defaced, notify the crime

prevention officer.

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

the stairs.

a. Patrol the roof, roof landing, elevator rooms, and any other

accessible installations.

b. Patrol each floor, staircase and hallway within the building from

the top floor to the ground floor

c. Patrol all accessible basement areas.

11. Be alert for persons who may be engaged in criminal activity.

a.

Conduct all investigative encounters in accordance with P.G. 212-

11, "Investigative Encounters: Requests for Information, Common

Law Right ofInquiry and Level 3 Stops, " and, if applicable, with the

procedures for trespass investigations as set forth in step "12,''

below.

b. If a person is stopped, a STOP REPORT shall be prepared

pursuant to P.G. 212-11, "Investigative Encounters: Requests for

Information, Common Law Right ofInquiry and Level 3 Stops, '' and

an ACTIVITY LOG entry shall be made to document the

encounter.

(1) Check the appropriate box indicating the stop is related to a

Trespass Affidavit Program building.

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UNIFORMED MEMBER OF THE SERVICE (continued)

c. Take police action pursuant to P.G. 208-01, "Law of Arrest" or Patrol Guide Series 209. "Summonses, " only if there is probable cause to believe that a person has committed a felony or misdemeanor, or the person committed a violation in the officer's presence.

NOTE

Mere presence in or near a building enrolled in the Trespass Affidavit Program does not provide a basis to approach and conduct an investigative encounter, nor does it establish reasonable suspicion for a stop. When approaching a person based only on an objective credible reason (Level 1 Request for Information), members are prohibited from requesting consent to search the person.

12. Trespass Investigation: Be alert for persons who may be engaged in Criminal Trespass.
a. Level 1 Request for Information: If there is an objective credible reason to approach such a person based on observed behavior or other credible information, a member of the service may approach and ask in a non - threatening and non - accusatory manner: (I) If he or she lives in the building
(2) If he or she is visiting someone in the building (3) If he or she has business in the building. b. Level 2 Common Law Right of Inquiry: If, based on the answers to questions in the initial encounter and/or observed behavior, there is a founded suspicion of Criminal Trespass, take reasonable measures to verify the person's authorization to be in the building.

NOTE

Do not use a tone or take steps that would create a situation where a reasonable person would not foe/ free to leave when there is less than reasonable suspicion that the person is a trespasser.

c. Level3 Terry Stop: Stop a person in accordance with P.G. 212-11, "Investigative Encounters: Requests for Information, Common Lav.• Right of Inquiry and Level 3 Stops, " and take reasonable measures to investigate only if there is reasonable suspicion to believe that the person has committed, is committing, or is about to commit Criminal Trespass. Such measures include, but are not limited to, the following:
(1) Temporarily detaining the person while another uniformed member visits the building resident whom the person claims to be visiting; and/or
(2) Requiring the person to accompany uniformed member to the apartment of the building resident whom the person claims to be visiting.

NOTE

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

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UNIFORMED MEMBER OF THE SERVICE (continued)

d. Take police action pursuant to P.G. 208-01, "Law of Arrest" or Patrol Guide Series 209, "Summonses, " only if there is probable cause to believe that the person committed Trespass. A reasonable investigation is ordinarily necessary to determine whether probable cause exists.
(I) Make ACTIVITY LOG entry describing the details of arrest/summons.
(2) Document investigative steps taken prior to making the arrest or issuing the summons including the factors used to determine that the person knowingly entered or remained unlawfully particularly if signs are not present or visible.
(3) Utilize Department-issued smartphone to photograph sign(s) prohibiting trespassing or document the warning and the location in ACTIVITY LOG.

NOTE

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

e. In all cases when an arrest is made for Criminal Trespass, the arresting officer must:
(1) Prepare a TRESPASS CRIMES - FACT SHEET (PD351144) and submit to the Desk Officer for review
(2) Prepare a STOP REPORT, ifappropriate
(3) Submit the TRESPASS CRIMES- OWNER'S AFFIDAVIT or New York County District Attorney's Supporting Affidavit, as appropriate, for the building to the desk officer.
13. Notify Communications Section radio dispatcher upon exiting the
building and make an ACTIVITY LOG entry indicating the time the interior patrol was completed and any conditions noted.

DESK OFFICER 14. 15. 16.

Ensure that the completed TRESPASS CRIMES- FACT SHEET and the TRESPASS CRIMES - OWNER'S AFFIDAVIT or New York County District Attomey' s Supporting Affidavit, as appropriate, are included in the an·est package for all arrests that include a charge of Criminal Trespass.
Review the TRESPASS CRIMES- FACT SHEET for accuracy and completeness and endorse in the appropriate space on the form. a. Have TRESPASS CRIMES- FACT SHEET photocopied. b. Return original TRESPASS CRIMES - FACT SHEET to the
arresting officer for inclusion in the arrest package.
Have photocopies of TRESPASS CRIMES - FACT SHEETS placed in chronological order in a binder and maintained at the desk.

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ADDITIONAL DATA

During the course of an interior patrol, members of the sen>ice are likely to encounter other persons in the building. While detecting trespassers inside buildings enrolled in the Trespass Affidavit Program is an important public safety function, it is equally critical that members of the service treat residents and their guests with courtesy, professionalism and respect at all times.
Ifa member ofthe service has reason to seek to determine ifa person is authorized to be
in the building, the member may ask for the person 's voluntary cooperation. When feasible and consistent with safety, advise the person that the purpose of the interior patrol is to keep the building safe and ensure that only tenants and their invited guests are within the building, and advise the person that he or she is free to leave (unless the person is under arrest or detained in a Level 3 stop). A person's refitsal or inability to produce identification or provide information does not elevate the level ofthe encounter.
However, if the individual refuses or is unable to explain his or her presence in the
building, the member may instmct the person that he or she must leave the building or be subject to arrestfor Trespass.

The TRESPASS CRIMES- OWNER'S AFFIDAVIT (PD651-051) will be utilized for Department Trespass Affidavit Program buildings in the Bronx, Brooklyn, Staten Island and Queens. The New York County District Attorney's Office manages a Trespass Affidavit Program in Manhattan and utilizes its own supporting affidavits.

The TRESPASS CRIMES- FACT SHEET (PD351-144) will be prepared in every instance, including Manhattan, where a uniformed member ofthe sen•ice effects a Trespass arrest in a building participating in a Trespass Affidavit Program.

RELATED PROCEDURES

Law ofArrest (P.G. 208-01) Arrests- General Processing (P.G. 208-03) Investigative Encounters: Requests for Information, Common Law Right ofInquiry and Level3 Stops (P.G. 212-11) Interior Patrol ofHousing Authority Buildings (P.G. 212-60) Trespass Affidavit Program (A. G. 303-27) Summonses (P. G. 209 Series)

FORMS AND REPORTS

ACTIVITY LOG (PDI12-145) STOP REPORT (PD383-151) WHATIS A STOP? (PD383-153) TRESPASS CRIMES- OWNER'S AFFIDAVIT (PD651-051) TRESPASS CRIMES-FACTSHEET (PD351-144)

3. Patrol Guide 208-03, ·'Arrests- General Processing" is amended as follows:

a. ADD new subdivision "!!." following step "23," opposite actor ''ARRESTING
OFFICER," on page "&"to read:

"ARRESTING OFFICER

TRESPASS CRIMES- FACT SHEET (PD351-144), if
appropriate.
ill Prepare the form if the arrest includes a charge
for Trespass or Criminal Trespass."

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b. REVISE '·FORMS AND REPORTS' on page ''13" to read:

'·FoRMS AND REPORTS

ACTIVITYLOG (PD112-145)
ARRESTREPORT- SUPPLEMENT (PD244-157l ARRESTDOCUMENTATION CHECKLIST (PD240-010) COMPLAINT REPORT WORKSHEET (PD313-152A) DATARREST PACKAGE (PD260-123) DESKAPPEARANCE TICKET INVESTIGATION (PD360-081) JUVENILE ARREST INVESTIGA110N/PROBA110N INTAKE REPORT WORKSHEET (PD277-151A) MEDICAL TREATMENT OF PRISONER (PD244-150l MIRANDA WARNINGS FOR JUVENILE IN1ERROGA110NS (PD244-1413) MISSING- UNIDENTIFIED PERSON REPORT (PD336-151) ON-LINE BOOKING SYSTEM ARREST WORKSHEET (PD244-159) PRISONER PEDIGREE CARD (PD244-092) PRISONER TRANSPORT DISPATCH (PD171-132) PROPERTY CLERK INVOICE (PD521-141) PROPERTY CLERK INVOICE WORKSHEET (PD521-14JA) REQUESTFOR LABORATORYEXAMINA110NREPORT(PD521-168) SUPPORTING DEPOSITION (PD244-060l TRESPASS CRIMES- FACT SHEET (PD351-144l UNUSUAL OCCURRENCE REPORT (PD370-152)
Omni{orm Complaint Revision"

4. REVISE references to Patrol Guide 212-59, "Interior Patrol" in Patrol Guide 212-11, 212-60, Administrative Guide 303-27 and wherever else it appears in the Department Manual to read:

"Patrol Guide 212-59, 'Interior Patrol of Multiple Dwelling Buildings Enrolled in the Trespass Affidavit Program"

5. Upon publication, this Interim Order has been incorporated into the On-Line Patrol Guide and the On-Line Administrative Guide.

6. Any provisions of the Department Manual or other Department directive in conflict with the contents ofthis Order are suspended.

BY DIRECTION OF THE POLICE COMMISSIONER

DISTRIBUTION All Commands

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DRAFT INTERIM ORDER

SUBJECT: REVISION TO ADMINISTRATIVE GUIDE 303-27, "TRESPASS AFFIDAVIT PROGRAM" AND PATROL GUIDE 202-26, "CRIME PREVENTION OFFICER"

DATE ISSUED:
08-04-16

REFERENCE:

NUMBER:

*A.G. 303-27 AND P.G. 202-26

DRAFT3

1. In order to enhance the effectiveness and documentation of interior patrols conducted in multiple dwelling buildings that participate in the Department's Trespass Affidavit Program (TAP).
Administrative Guide 303-27, "Trespass Affidavit Program" has been revised. In addition, th.e TRESPASS CRIMES - FACT SHEET {PDl51·144) has been revised and retitled, '"TRESPASS CRIM.ES- FACT SHEET AN.D StiPPORTING DEPOSITION (PI>351-144)'~ and will be prepared in every instance where a uniformed member of the service effects an arrest for trespass in or around any
building participating in the Trespass Affidavit Program. Uniformed members are reminded that the TRESPASS CRIMES -OWNER'S AFFIDAVIT (PD651-051) will continue to be utilized for TAP buildings in the Bronx, Brooklyn, Staten Island and Queens (the New York County District Attorney's Office manages a Trespass Affidavit Program in Manhattan and utilizes its own supporting affidavits). Commands may not alter the content of these forms for any purpose and may not use any form other than TRESPASS CRIMES - OWNER'S AFFIDAVIT to enroll a building in the Trespass Affidavit Program. Any request from a District Attorney's Office to make changes to either of these forms must
first be referred to the Legal Bureau.

2. Therefore, effective immediately, Administrative Guide 303-27, "Trespass Affidavit Program" is SUSPENDED and the following procedure will be complied with:

PURPOSE SCOPE

To obtain authorization from a multiple dwelling building's owner/authorized agent to conduct interior patrols, in buildings that are not owned by the New York City Housing Authority.
Authorization for interior patrol, the tactically planned patrol of the interior hallways, stairways and rooftops of multiple dwelling buildings is obtained through the Department's Trespass Affidavit Program. Patrolling multiple dwelling buildings for criminal activity, including trespassing under the Trespass Affidavit Program, is a valuable problem-solving tooL as well as an important component of the Department's crime reduction strategy.

PROCEDURE
CRIME PREVENTION OFFICER

When recent incidents, including but not limited to, criminal activity and/or complaints at or near a residential multiple dwelling building within the last 12 months indicate that the Department's Trespass Affidavit Program would be useful:
1. Confer with members of the community and analyze current crime trends to identify multiple dwelling buildings appropriate for the Trespass Affidavit Program.
2. Confer with the commanding officer to ensure that the buildings enrolled in the Trespass Affidavit Program can be patrolled with sufficient frequency to reduce criminal activity and/or address community complaints at these residential multiple dwelling buildings.
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CRIME

3. Obtain authorization, except in Manhattan, from the multiple dwelling building's

PREVENTION

owner/authorized agent to participate in the Trespass Affidavit Program.

OFFICER

a. Have the owner/authorized agent sign a TRESPASS CRIMES -

(continued)

OWNER'S AFFIDAVIT (PD651-051) which authorizes the

Department to conduct interior patrols for a period of six months.

b. Ensure that TRESPASS CRIMES - OWNER'S AFFIDAVIT(S)

or New York County District Attorney Trespass Affidavits, as

appropriate, are properly signed and permit the arrest of persons in

the building who are not:

(1) Residents; OR

(2) Guests; OR

(3) Otherwise authorized to be in the building.

c. Participating owners/authorized agents must post signs informing

all persons entering, in substance, that trespassing is prohibited.

d. The signs should be posted in areas where persons entering the

building can readily observe them. Suggested locations for these

signs include, but are not limited to, the vestibule entrance,

vestibule, above the elevator, courtyard, roof, any restricted area

and other common areas.

NOTE

The crime prevention officer will not(fY the building's owner/authorized agent if it is reported that the signs are missing, illegible or defaced.

e. Obtain from the owner/authorized agent the keys to the building. 4. Prior to the expiration of a building's six-month enrollment in the
program, confer with members of the community and analyze current crime trends to determine if the condition has been corrected or if a continuation of interior patrols in the building is warranted. 5. If additional interior patrols are necessary, recommend to the commanding officer that the building be enrolled for another six-month period. 6. Evaluate any requests to renew enrollment and determine whether the building would benefit from six more months of interior patrols before the TRESPASS CRIMES- OWNER'S AFFIDAVIT or New York County District Attorney Trespass Affidavit, as appropriate, expires.

NOTE

Prior to the expiration of a building's first six months in the program, the command's crime prevention officer or another member ofservice as designated by the commanding o.fficer, will evaluate whether to renew a building's participation in the program for an additional six months. This determination should be based on recent incidents, including but not limited to, criminal activity and complaints during the preceding six month
period.

COMMANDING 7. OFFICER

Prior to the expiration of a building's second consecutive six month enrollment in the Trespass Affidavit Program, determine whether to renew the building's participation in the program for another six months, based on recent incidents, including but not limited to, criminal activity and complaints during the preceding six month period.

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COMMANDING OFFICER (continued)
PATROL BOROUGH COMMANDER CHIEF OF PATROL CRIME PREVENTION OFFICER
ADDITIONAL DATA

a. Submit a report on Typed Letterhead notifying the borough commander whenever a determination is made to continue enrollment beyond one year indicating the basis for the decision.
8. Direct the crime prevention officer or other designated member of the service to complete the renewal of participation in the Trespass Atlidavit Program by fulfilling the requirements of step ·'3."
9. Whenever a building is not renewed for participation in the TAP program, have the building owner/authorized agent instructed to notify the residents in writing.
10. Submit a quarterly report on Typed Letterhead to the Chief of Patrol through channels, identifying those buildings that were evaluated and the final determination for each building.
11. Review the request to renew enrollment of building in the program beyond one year.
12. Make a recommendation to the Chief of Patrol.
13. Review requests to renew participation in the Trespass Affidavit Program for any building beyond one year.
14. Maintain copies of TRESPASS CRIMES - OWNER'S AFFIDAVIT(S) or New York Country District Attorney's supporting affidavits, as appropriate.
15. Maintain a current list of Trespass Affidavit Program buildings containing the following information: a. Address and description of location b. Nature ofproblem(s) or condition(s) c. Times when illegal activity is prevalent d. The expiration date for the affidavit.
16. Ensure that the following are accessible to the desk officer at all times: a. TRESPASS CRIMES- OWNER'S AFFIDAVIT(S) or New York County District Attorney's supporting affidavits. as appropriate b. TRESPASS CRIMES .. FACT SHEET AND SllPPORTING DEPOSITION(S) (PD35l·l.44) c. List of current Trespass Affidavit Program buildings.
17. Contact the Legal Bureau for approval if a District Attorney's Office makes a request to modify either the TRESPASS CRIMES - OWNER'S AFFIDAVIT or the TRESPASS CRIMES • FACT SHEET ANll SUPPORTING DEPOS.ITION.
Commanding officers may utilize precinct community affairs officers and/or neighborhood coordination officers (NCOs) to assist in identifYing buildings that are appropriate for the Trespass Affidavit Program. Special care should be taken to enroll multiple dwelling buildings that have both demonstrated a specific need for interior patrol based on complaints and an owner/authorized agent committed to providing secured access to the building and willing to comply with the requirements ofthe program.

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ADDITIONAL DATA (continued)
RELATED PROCEDURES FORMS AND REPORTS

The Community Affairs Bureau, Crime Prevention Division will offer resources (e.g., organize tenant patrol, physical survey of building, etc.) to eradicate existing illegal activity and deterrence .fi·om future occurrences.

The TRESPASS CRIMES- OWNER'S AFFIDAVIT (PD651-051) will be utilized for Department Trespass Affidavit Program buildings in the Bronx, Brooklyn, Staten Island and Queens. The New York County District Attorney's Office manages a Trespass Affidavit Program in Manhattan and utilizes its own supporting affidavits. Therefore, to enroll a multiple dwelling building in Manhattan, members of the service should refer the owner/authorized agent to the New York County District Attorney's Community
Affairs Unit.

The TRESP.4~~· CRIMES • F:4CT S,HEET AND SUPPORTING DEPOS1TION

(PDJ$.1-.144) will be prepared in every instance where a uniformed member of the

service effects a trespass arrest in or

any building participating in a Trespass

Affidavit Program.

For Trespass Affidavit Program buildings in New York County, the crime prevention officer will act as liaison to the New York County District Attorney's Communi(v Affairs Unit. All Department and New York County District Attorney Trespass Affidavit Program affidavits expire six months from the date the owner/authorized agent signed affidavit.

Interior Patrol of Multiple Dwelling Buildings Enrolled in the Trespass Affidavit Program (P.G. 212-59)

TRESPASS CRIMES- OWNER'S AFFIDAVIT (PD651-051) TRESPASS CRIMES .. FACT SHEET AND SUPPORTING .DEPd~lTION (PDJSJ-
144)

3.

Patrol Guide 202-26, Crime Prevention Officer" is amended as follows:

a.

"r ADD new step "19," opposite actor "CRIME PREVENTION OFFICER," on page

to read:

"CRIME PREVENTION OFFICER

Administer the Trespass Affidavit Program in accordance with Administrative Guide 303-27, 'Trespass Affidavit Program'."

4. Commands will requisition the following revised form through the Quartermaster Section using the following information:

INDEX NUMBER
xxxx

PDNUMBER PD351-144 [Rev. XX-XX]

TITLE
TRESPASS CRIMF~~ ~ FACT SH.EET AND SUl)PORTINtlDEPOSITION

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5. Effective immediately, existing copies of the TRESPASS CRIMES- FACT SHEET (PD351-144) are OBSOLETE and should be destroyed upon receiving the revised Department form.
6. Upon publication, this Interim Order has been incorporated into the On-Line Administrative Guide and On-Line Patrol Guide.
7. Any provisions of the Department Manual or any other Department directive in conflict with the contents of this Order are suspended. BY DIRECTION OF THE POLICE COMMISSIONER DISTRIBUTION All Commands

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 Case 1:12-cv-02274-AT-HBP Document 309 Filed 01/29/18 Page 1 of 5

Case 1:12-cv-02274-AT-HBP Document 309 Filed 01/29/18 Page 2 of 5
a. The Purpose and Goals of the JRP
In advance of the Floyd trial, the plaintiffs submitted briefing on their requested injunctive relief in the event that the plaintiffs successfully established that the City was liable for constitutional violations. Pls. MOL in Support of Requested Injunctive Relief, Dkt # 268 (“Remedies Br.”). Therein, the plaintiffs requested three categories of reforms: (1) a “Joint-Remedial Process” for developing reforms to address the violations proven at trial, which would involve the parties and community stakeholders (Remedies Br. at 8-16); (2) a set of reforms to be developed outside of that process (Remedies Br. at 16-20); and (3) the appointment of an Independent Monitor. (Remedies Br. at 20-27). After finding the City liable, the Court in sum and substance granted all three requests. See Remedial Order, Dkt # 372 (“Remedial Or.”).1 All of the reforms so-ordered by the court thus far have come from category (2), which is the part of the process identified in the Remedial Order as the “Immediate Reform Process.” Remedial Or. at 13-25.
In support of their request for the JRP, the plaintiffs cited evidence that the NYPD deliberately disregarded complaints about the stop and frisk practice for more than fourteen years. Remedies Br. at 15-16. Plaintiffs argued that community stakeholder input was needed “in the joint development of the Court’s injunctive remedies” to address the NYPD’s indifference to “public outcry from all sectors” about its widespread pattern and practice of unconstitutional stops. Remedies Br. at 8-9. Immediately following the trial and before the Court issued the decision on liability, the plaintiffs submitted proposed findings of fact citing testimony and documents submitted during trial that proved this pattern of deliberate indifference. Pls. Proposed Findings of Fact and Conclusions of Law, Dkt # 366 at 38-46.
In its liability decision, the Court found in favor of the plaintiffs on this point, holding that that the City was deliberately indifferent to notice of constitutional violations. Liability Or. at 61 et seq. The Court found that “[t]he NYPD has received thorough and consistent notice of constitutional problems in its stop practices from multiple sources, including the media, community members, community and legal organizations, individual police officers, and the class members and attorneys in this case.” Id. at 111. Despite this “actual and constructive notice since at least 1999,” the NYPD “repeatedly turned a blind eye to clear evidence of unconstitutional stops and frisks.” Id. at 178. Notably, the Court found that the City’s indifference to public outcry extended over the tenure of multiple mayors and police commissioners. Id. at 111-117. Based on these and other findings, the Court ordered the development of “Joint Process Reforms” through the JRP. Remedial Or. at 28-32.
In ordering the JRP reforms, the Court opined that input, from those most affected by unlawful stops into a set of reforms would be critical to remedying the constitutional violations established at trial:
1 In the Davis settlement, it was agreed that “the Court-Ordered Monitoring related to trespass enforcement in or around NYCHA residences will be identical to the Court Ordered Monitoring in the Floyd Remedies Opinion . . . .” Stipulation of Settlement and Order, Davis v. City of New York, 10 Civ. 699 (S.D.N.Y. Feb. 4, 2015), Dkt. #330, at 10-11. Thus, as part of the Remedial Order, the JRP applies with equal force in the Davis case. See also Stipulation of Settlement and Order, Ligon v. City of New York, 12 Civ. 2274, (S.D.N.Y. July 19, 2017), Dkt # 296, at 4, 17.
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Case 1:12-cv-02274-AT-HBP Document 309 Filed 01/29/18 Page 3 of 5
[C]ommunity input is . . . [a] vital part of a sustainable remedy in this case. The communities affected by the NYPD’s use of stop and frisk have a distinct perspective that is highly relevant to crafting effective reforms. No amount of legal or policing expertise can replace a community’s understanding of the likely practical consequences of reforms in terms of both liberty and safety. . . . If the reforms to stop and frisk are not perceived as legitimate by those most affected, the reforms are unlikely to be successful.
Remedial Or. at 29. The Court further ordered that “[a]n essential aspect of the Joint Process Reforms will be the development of an improved system for monitoring, supervision, and discipline.” Remedial Or. at 23.
Consistent with the Court’s orders, the Facilitator’s team, the parties, and community stakeholders designed and implemented a process for securing input into reforms from those most affected by the NYPD’s unlawful stop and frisk practices. Over a two-year period, the JRP included sixty-four focus groups, twenty-eight community forums, and more than a dozen meetings with community, legal, and policy organizations. Numerous community organizations expended their resources to make this input process happen. All told, thousands of people provided input into the design of JRP reforms. The Remedial Order required negotiations among the parties and community stakeholders to draft JRP reforms. Remedial Or. at 30-31 (providing in enumerated sections 1, 2, 8 that the parties and stakeholders are to work with the Facilitator to negotiate a set of joint process reforms). In the event of an impasse, the Remedial Order provides that the Facilitator will submit a report and recommendations on the JRP and that the parties will have the opportunity to comment. Remedial Or. at 32 (enumerated section 9).
b. The JRP Impasse
In April 2017, with the process of obtaining input completed, the parties and community stakeholders began discussing JRP reform proposals based on that input, consistent with the Remedial Order’s requirements. During negotiations, the plaintiffs and community stakeholders proposed numerous reforms to NYPD discipline, monitoring, and supervision practices, tailored to addressing the constitutional violations established at trial. Unfortunately, the parties have reached a complete impasse.2
Having reached an impasse, the Remedial Order now requires the public filing of the Facilitator’s Report and briefing from the parties so that the Court may determine what reforms to so-order. Importantly, though, the impasse between the parties is not only about the substance of reforms – though the impasse includes that issue. More fundamentally, there is an impasse about the requirements of the Remedial Order with respect to the JRP itself. Specifically, there is a dispute about whether there will be any so-ordered reforms through the JRP at all. The procedure articulated in the Remedial Order did not contemplate this kind of impasse.
2 We are not recounting the substance of our negotiations on particular reforms because we agreed to keep those details private in order to foster more robust and candid negotiations.
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Case 1:12-cv-02274-AT-HBP Document 309 Filed 01/29/18 Page 4 of 5
II. A JRP Status Conference and Scheduling Order is Necessary and Appropriate
The Court has inherent authority to require status conferences and enter scheduling orders to facilitate the management of complex matters. See Escoffier v. City of New York, 13 CV 03918 (JRP) (DF), 2017 WL 65322. *7, 2017 U.S. Dist. LEXIS 988 (S.D.N.Y. Jan. 4 2017) (noting court’s “inherent authority to manage litigation”); Advanced Analytics, Inc. v. Citigroup Global Markets, Inc., 301 F.R.D. 47, 51 (S.D.N.Y. 2014) (same). Status conferences and scheduling orders are customary and routine in remedial processes involving police departments and other public agencies. See, e.g., U.S. v. City of New York, 1:07-cv-02067 (NGG) (in remedial process involving New York City Fire Department and court-appointed monitor who regularly files status reports, court held seven status conferences in the past year); U.S. v. Seattle, 12-cv-1282 (in first three years of remedial process involving the Seattle Police Department and an independent monitor, court held six status conferences and entered various scheduling orders).
There are several substantive and procedural matters that need to be managed in order for the Court to render a determination on the JRP reforms, and a status conference would facilitate the development and timeline of an appropriate process. First, Plaintiffs seek an order directing the Facilitator to immediately and publicly file the primary community input materials from the JRP. This includes the Facilitator’s summary of the JRP input process; the anonymized focus group transcripts; and formal non-party written submissions made to the Facilitator as part of what the Facilitator termed “Leadership Meetings.” The immediate submission of these materials is necessary to enable the parties to prepare anticipated motions and to ensure appropriate public transparency about this extensive community input process. Second, Plaintiffs seek a date certain for the issuance of the Facilitator’s Report that would allow for the expeditious resolution of the parties’ disputes about the JRP. Third, we seek an order scheduling motions on the JRP, which will include, at least, a motion by the plaintiffs to enforce the injunction and so-order JRP reforms. It would serve the interests of judicial economy to hold a status conference to determine and set out the best timing and sequence for these submissions, motions, and proceedings.
Notably, in light of the parties’ impasse about the requirements of the JRP, there is an increased need for a transparent process around the determination of the JRP reforms – which are a critical component of the injunction the plaintiff class secured. As the Second Circuit has opined, “[t]he notion that the public should have access to the proceedings and documents of courts is integral to our system of government.” U.S. v. Erie County, 763 F.3d 235, 238-39 (2d Cir. 2014) (opining that “it is essential that the people themselves have the ability to learn of [and] monitor . . . the actions of their representatives and their representative institutions.”). See also Newsday LLC v. County of Nassau, 730 F.3d 156, 164 (2d Cir. 2013) (discussing First Amendment values underpinning public court proceedings and the “need . . . for the public to have confidence in the administration of justice”) (citation and quotation omitted). This high-profile remedial process is administering reforms on behalf of three city-wide plaintiff classes to address a government entity’s widespread constitutional violations. More than a thousand people participated in the JRP with the expectation of designing reforms to NYPD discipline, monitoring, and supervision practices. Without a status conference and a scheduling order that requires a clear process for resolving the JRP reforms, we are concerned the legitimacy of and public confidence in the stop and frisk remedial process will be compromised.
4

Case 1:12-cv-02274-AT-HBP Document 309 Filed 01/29/18 Page 5 of 5

 
 Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 1 of 19
Eighth Report of the Independent Monitor Evaluation of NYPD Body Worn Camera
Implementation in NYCHA Housing Developments
Peter L. Zimroth
July 27, 2018
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al. Davis, et al. v. City of New York, et al.

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 2 of 19
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor
Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long
John MacDonald James McCabe
Jane Perlov James Yates

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 3 of 19
Monitor’s Eighth Report
I. Introduction
In August 2016, the monitor filed its Third Report: Interim Briefing on Body-Worn Camera Pilot Program. That report described the research design for a randomized control trial of body-worn cameras (BWCs) in the New York City Police Department (NYPD), to be implemented pursuant to the requirements of the amended remedial order in Floyd v. City of New York, 959 F. Supp. 2d 668 (S.D.N.Y. 2013) (Remedial Order at Floyd Dkt. No. 372, Amended Remedial Order at Floyd Dkt. No. 522)
In June 2017, the monitor filed its Sixth Report, The NYPD’s Body-Worn Camera Pilot: Research and Evaluation Plan. That report described the monitor’s research and evaluation design for the BWC pilot, providing details about how the camera and control precincts were selected and matched and how the results of the camera experiment would be judged. The NYPD launched the BWC pilot program in April 2017 and by November 2017 the pilot was fully implemented, with approximately 1,200 officers in 20 precincts wearing cameras for a oneyear period. Those 20 precincts were matched with 20 precincts where officers were not wearing cameras. The goal of the pilot program is to assess the costs and benefits of deploying cameras and whether deployment results in reducing unconstitutional stops and frisks.
Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Police Service Areas (PSA) were not included in the randomized control trial. This Eighth Report describes the monitor’s research plan for evaluating BWCs for Housing Bureau officers. The report explains the rationale and design for the evaluation as well as its limitations. This report includes technical language describing the PSA BWC quasi-experiment. It is important to
1

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 4 of 19
include the technical details of the research design so that outside experts can examine the design and, if they wish, run their own analyses with data to be made available at a later date. II. Randomized Control Trial of Body Worn Cameras
The remedial opinion in Floyd v. City of New York and Ligon v. City of New York noted the potential benefits of outfitting NYPD officers with body-worn cameras. These potential benefits included the creation of objective records of stop-and-frisk encounters, encouraging lawful and respectful police-citizen interaction when both parties know exchanges are recorded, alleviating mistrust between the NYPD and the public, and offering a way to substantiate whether NYPD officers are wrongly or rightly accused of misconduct. The court order required the federal monitor to establish procedures for the review of stop recordings by supervisors and senior managers, the preservation of stop recordings, and the measurement of effectiveness of BWCs in reducing unconstitutional stops and frisks. The court order also mandated the NYPD to work with the federal monitor to conduct a one-year pilot BWC program to determine whether the benefits of the cameras outweigh their financial, administrative, and other costs and whether the program should be expanded or terminated.
The federal monitor team developed a cluster-randomized controlled trial to evaluate the implementation of BWCs in the Patrol Services Bureau (PSB).1 Briefly, 40 NYPD precincts with the highest number of Civilian Complaint Review Board (CCRB) complaints were matched into 20 similar pairs based on policing, crime, and neighborhood characteristics. All NYPD patrol officers working in the third platoon (3 PM – 11 AM shift) and anti-crime unit assignments in these 20 matched pairs were eligible to participate in the cluster randomized
1 The Patrol Services Bureau is the bureau in the NYPD that includes patrol officers and other NYPD members assigned to the 77 precincts in New York City. The Housing Bureau is the bureau within the Department that includes patrol officers and other NYPD members who work in the nine PSAs in New York City. The details of the cluster-randomized controlled trial design are available at http://nypdmonitor.org/wp-content/uploads/2017/10/201706-29-MonitorsSixthReport.pdf (accessed 2/25/2018).
2

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 5 of 19
experiment. One precinct of each matched precinct pair was randomly designated the treatment precinct and assigned BWCs for a one-year study time period. The other precinct in the matched pair was designated the control precinct and did not receive cameras. The implementation of the BWC cluster randomized experiment began on April 24, 2017 in the 34 Precinct. The remaining treatment precincts received the BWC technology in a staggered manner with the final treatment precinct, Precinct 121, receiving BWCs on November 14, 2017.
NYPD Housing Bureau officers working in the nine PSAs were scheduled to receive BWCs as part of a citywide rollout plan launched after the implementation of the PSB cluster randomized controlled trial. Given the small number of PSAs and the complexities associated with citywide BWC implementation, it was not possible to design a randomized experimental evaluation of the placement of BWCs on NYPD PSA officers. As detailed in Section V below, the federal monitor team will be using two separate quasi-experimental designs to evaluate BWC impacts on the provision of police services at the PSA command level and the individual officer level. Quasi-experimental designs seek to approximate characteristics of a true experiment without the benefit of random allocation of units to treatment and control conditions.2 As such, quasi-experiments do not have the same high degree of internal validity as randomized controlled trials. Nonetheless, well-designed quasi-experiments can sometimes produce results that are of similar quality to randomized controlled trials.3 III. NYPD Provision of Policing Services to NYCHA Housing Developments
Figure 1 presents the NYPD organizational chart for the provision of policing services to NYCHA housing developments by Patrol Borough, PSA, and Precinct. The NYPD is responsible for providing policing services to residents in NYCHA housing developments in 58
2 Campbell, Donald and Julian Stanley. 1966. Experimental and Quasi-Experimental Designs for Research. Chicago: Rand McNally. 3 Lipsey, M., & Wilson, D. (1993). Practical Meta-Analysis. Thousand Oaks, CA: Sage Publications.
3

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 6 of 19 Precincts (75.3% of 77 total precincts). There are 19 precincts without NYCHA housing developments (24.7% of 77 total precincts). In the 58 Precincts with NYCHA housing developments, the NYPD Housing Bureau provides policing services to housing developments in 33 Precincts (56.9% of 58) while the remaining 25 Precincts are served by the PSB. Figure 1.
Source: New York City Police Department There are 343 NYCHA housing developments4 spread throughout New York City’s five
boroughs, covering 3.794 total square miles of land area (Table 1). The NYPD Housing Bureau
4 Following the structure of the data file provided to the monitor team by the NYPD (12/27/2017), the development counts were based on unique Tenant Data System (TDS) numbers that NYCHA uses to distinguish tenant applications to specific housing developments. As such, these counts included housing developments with related
4

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 7 of 19

provides policing services to residents in 258 NYCHA housing developments (75% of 343) in 33

precincts through nine PSAs in four boroughs: Brooklyn, Bronx, Manhattan, and Queens. This

includes some 333,977 residents in 149,684 apartments. The NYPD PSB provides policing

services to residents in 85 NYCHA housing developments (25% of 343) in 25 precincts in the

five boroughs (including the Staten Island Housing Unit). This includes some 59,401 residents

in 28,385 apartments.

The 85 NYCHA housing developments that receive policing services from the PSB

through 25 precincts are part of the cluster randomized controlled trial evaluating the

implementation of BWCs on patrol officers. Since the NYPD Housing Bureau does not provide

patrol services through the PSAs in these precincts, these 85 housing developments will not be

included in the PSA evaluation plan.

Table 1. Developments, Buildings, Land Areas, Total Apartments, and Total Residents by PSA

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9

Total Developments
20 43 28 32 29 26 49 19 12

Total Buildings
35 92 56 46 49 52 75 35 27

Land Area (sq. mi.)
.483 .458 .379 .227 .257 .183 .307 .445 .334

Total Apartments
17,219 19,537 19,420 16,399 17,176 13,953 20,128 14,133 11,719

Total Residents
36,764 43,906 45,186 35,243 37,834 29,185 49,248 31,278 25,333

PSA total

258

467

3.073

149,684

333,977

PSB total

85

158

.721

28,385

59,401

NYPD total

343

625

3.794

178,069

393,378

names as distinct developments. For instance, in PSA 6, the Douglass I (TDS 082), Douglass II (TDS 582), and Douglass Addition (TDS 148) represented three distinct housing developments in Table 1 rather than being aggregated as one larger housing development that shared the “Douglass” name attribution. We supplemented the NYPD data with the “NYCHA Data Development Book File,” publicly available at https://data.cityofnewyork.us/Housing-Development/NYCHA-Development-Data-Book/evjd-dqpz (downloaded 12/28/2017).
5

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 8 of 19

Table 2 presents summary data for the mean number of NYPD officers assigned, mean number of 911 emergency calls for service dispatched, mean number of major crime complaints (murder, rape, robbery, felony assault, burglary, grand larceny, and grand larceny auto), mean number of arrests (including arrests for felonies, misdemeanors, violations, and infractions), mean number of arrests where force was used by the officer(s) making the arrest(s), and mean number of stop reports in the nine PSAs between 2015 and 2017. There are notable variations in these six measures across the nine PSAs. For instance, PSA 6 had the smallest mean number of officers assigned (158.3) while PSA 2 had the largest number of officers assigned (328.0).

Table 2. NYPD Officer Staffing and Work Activities in Nine PSAs, 2015 – 20175

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9 PSA total

Mean Officers
246.3 328.0 262.0 166.3 245.7 158.3 241.3 193.0 217.3 2058.3

Mean 911

Mean

Calls Major Crimes

Mean Arrests

29,280.3 17,979.3 22,117.0 12,284.0 21,489.3 14,743.0 22,109.7 16,803.7 21,037.7 177,844.0

512.0 696.0 638.7 388.0 567.7 432.3 677.3 605.0 284.3 4,801.3

1,790.7 2,350.7 2,089.3 1,759.7 3,125.0 1,497.0 3,651.7 2,046.0 1,264.0 19,574.0

Mean Arrests w/force
8.3 65.0 53.7 22.0 51.3 15.3 43.7 27.3 16.3 333.0

Mean SQF reports
241.7 121.7 124.3 204.7 204.3 153.0 313.7 178.7 65.7 1,607.7

Table 3 presents descriptive characteristics and CCRB complaint histories of 1,916

NYPD patrol officers assigned to the PSA commands as of December 31, 2017. The vast

majority of NYPD patrol officers held the police officer rank (88.7%), while a much smaller

share held the sergeant rank (11.3%). NYPD patrol officers in the PSA commands were

primarily male (81.9%), had an average age of 33.6 years, and averaged 6.8 years on the job.

5 The NYPD provided the aggregate PSA data and individual PSA patrol officer data to the monitor team (on 3/27/2018 and 4/24/2018, respectively).

6

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 9 of 19

PSA patrol officers were racially diverse: 36.2% were Hispanic, 34.3% were white, 19.2% were black, and 10.3% were Asian/Pacific Islander. PSA patrol officers rarely generated CCRB complaints. Indeed, some 51% of PSA patrol officers had not generated a single CCRB complaint over the course of their career as of December 31, 2017. PSA patrol officers generated, on average, .175 CCRB complaints per year on the job (or less than one complaint every five years).

Table 3. Descriptive Characteristics and CCRB Complaint History of NYPD Patrol Officers Assigned to PSA Commands (December 31, 2017 snapshot), N = 1,916

Officers Assigned
Rank Gender Race Age Years on job

PSA 1 PSA 2 PSA 3 PSA 4 PSA 5 PSA 6 PSA 7 PSA 8 PSA 9
Police Officer Sergeant

Number
236 311 243 150 215 147 218 178 218
1,700 216

Male Female
Hispanic White Black Asian / Pacific Islander
Mean Standard deviation Range

1,569 347
693 658 367 198
33.6 6.8 21 – 59

Mean Standard deviation Range

6.8 5.5 <1 – 31

Percent 12.3 16.2 12.7 7.8 11.2 7.7 11.4 9.3 11.4
88.7 11.3
81.9 18.1
36.2 34.3 19.2 10.3

7

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 10 of 19

CCRB complaint rate

Mean Standard deviation Range

No complaints

978

One or more

938

complaints

.175 .273 0 – 3.2
51.0 49.0

IV. Timing of the Body-Worn Camera Treament in PSAs The NYPD placed BWCs on patrol officers working the third platoon (3 PM – 11 PM
shift) and anti-crime units in 20 treatment precincts6 during their “Phase 1” implementation to satisfy the requirements of the randomized experimental evaluation. Phase 1 implementation started on April 24, 2017 and ended November 14, 2017. During the “Phase 2” implementation, the NYPD will place BWCs on all officers (including the first and second platoons) in the remaining commands. Officers in the 20 control precincts matched to the 20 treatment precincts will not receive BWCs until at least one full year after the implementation of BWCs in the treatment precinct within their matched pairs. Phase 2 implementation started the week of December 4, 2017 and will continue through the week of December 30, 2018.
NYPD Housing Bureau officers in the nine PSAs will be equipped with BWCs over the course of a nearly 11-month time period (Table 4). The PSA implementation began the week of February 12, 2018 (PSA 8) and will end the week of December 16, 2018 (PSA 9). The implementation date of BWCs in each PSA represents the initiation of the direct treatment on officers within each of these Housing Bureau commands. As shown in Figure 1, PSA officers deliver policing services to housing developments within precincts. As such, NYPD Housing Bureau officers can also receive indirect treatment via their presence within a precinct that has

6 These 20 treatment precincts are the 13, 18 (MTN), 25, 30, 34, 42, 43, 44, 47, 48, 60, 63, 67, 71, 72, 79, 102, 105, 115, and 120.
8

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 11 of 19

already adopted BWCs on its officers as part of the Phase 1 and 2 implementations. The

presence of precinct officers with BWCs at calls for service in housing developments (e.g.,

providing back-up to PSA officers) may influence PSA officer and citizen behavior during these

encounters. The evaluation plan needs to consider both direct and indirect effects of BWCs on

selected outcomes.

Table 4. Implementation of Direct and Indirect Treatment in PSAs

PSA Precinct Direct Treatment

1

60

Phase 2 - week of 6/18/2018 (PSA)

Indirect Treatment Phase 1 - 6/7/2017, Phase 2 - 9/24/2018 (Pct)

1

61

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 4/16/2018 (Pct)

1

63

Phase 2 - week of 6/18/2018 (PSA

Phase 1 - 9/13/2017, Phase 2 - 7/19/2018 (Pct)

1

69

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 7/15/2018 (Pct)

1

76

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 7/15/2018 (Pct)

1

78

Phase 2 - week of 6/18/2018 (PSA) Phase 2 - 8/26/2018 (Pct)

2

73

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 10/14/2018 (Pct)

2

75

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 1/22/2018 (Pct)

2

77

Phase 2 - week of 10/21/2018 (PSA) Phase 2 - 9/24/2018 (Pct)

3

79

Phase 2 - week of 3/5/2018 (PSA)

Phase 1 - 8/8/2017, Phase 2 - 5/29/2018 (Pct)

3

81

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 9/17/2018 (Pct)

3

84

Phase 2 - week of 3/5/2018 (PSA)

Phase 1 - 5/1/2018 (Pct)

3

88

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 3/5/2018 (Pct)

3

90

Phase 2 - week of 3/5/2018 (PSA)

Phase 2 - 3/12/2018 (Pct)

4

5

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 8/26/2018 (Pct)

4

7

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 7/8/2018 (Pct)

4

9

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 6/11/2018 (Pct)

4

10

Phase 2 - week of 4/9/2018 (PSA)

Phase 2 - 8/19/2018 (Pct)

5

23

Phase 2 - week of 12/2/2018 (PSA) Phase 2 - 12/4/2017 (Pct)

5

25

Phase 2 - week of 12/2/2018 (PSA) Phase 1 - 8/24/2017, Phase 2 - 7/22/2018 (Pct)

5

28

Phase 2 - week of 12/2/2018 (PSA) Phase 2 - 10/7/2018 (Pct)

6

24

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 6/4/2018 (Pct)

6

26

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 4/16/2018 (Pct)

6

32

Phase 2 - week of 8/19/2018 (PSA) Phase 2 - 11/18/2018 (Pct)

7

40

Phase 2 - week of 7/1/2018 (PSA)

Phase 2 - 1/8/2018 (Pct)

7

42

Phase 2 - week of 7/1/2018 (PSA)

Phase 1 - 7/17/2017, Phase 2 - 5/1/2018 (Pct)

8

43

Phase 2 - week of 2/12/2018 (PSA) Phase 1 - 8/28/2017, Phase 2 - 4/9/2018 (Pct)

8

45

Phase 2 - week of 2/12/2018 (PSA) Phase 2 - 2/22/2018 (Pct)

8

47

Phase 2 - week of 2/12/2018 (PSA) Phase 1 - 7/24/2017, Phase 2 - 4/16/2018 (Pct)

9

103

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 1/15/2018 (Pct)

9

107

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 5/15/2018 (Pct)

9

113

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 11/25/2018 (Pct)

9

114

Phase 2 - week of 12/16/2018 (PSA) Phase 2 - 10/28/2018 (Pct)

9

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 12 of 19
V. Quasi-Experimental Designs to Estimate BWC Impacts The implementation of the BWC treatment for PSAs faciliates the use of a non-
randomized cluster stepped-wedge evaluation design.7 Figure 2 illustrates the basic structure of a stepped-wedge design where all clusters eventually move from the no-treatment control group to the treatment group.8 In the PSA BWC evaluation, the design will include a pre-intervention period in which no PSA commands (“clusters” of officers) are exposed to the BWC treatment. Subsequently, at regular intervals (the “steps”), one PSA command will cross from the notreatment control group to the BWC intervention group under evaluation. This process will continue until all nine PSAs have crossed over to be exposed to the BWC intervention. At the end of the study, there will be a period when all PSA commands are exposed to the BWC intervention. Data collection will continue throughout the evaluation, so that each PSA will contribute observations under both control and treatment periods.
The evaluation will rely on the timing of BWC treatment in PSAs and will control for differences between areas that are fixed during the study interval, such as size of housing developments and surrounding neighborhood poverty. Two complementary quasi-experimental analyses will be used to estimate the impact of the placement of BWCs on NYPD officers assigned to PSAs on selected outcome measures. The first analysis estimates BWC impacts at the PSA command level by using panel regression models to analyze direct effects associated with the implementation of BWCs in PSAs and indirect effects associated with the adoption of PSAs in surrounding precincts. The second analysis also uses panel regression models to estimate BWC impacts at the PSA officer level by exploiting the natural variation in the
7 Hu, Y., & Hoover, D.R. (2018). “Non-Randomized and Randomized Stepped-Wedge Designs Using an Orthogonal Least Squares Framework.” Statistical Methods in Medical Research, 27 (4): 1202 – 1218. 8 Figure 2 was adapted from Hemming, K. et al. (2015). “The Stepped Wedge Cluster Randomized Trial: Rationale, Design, Analysis, and Reporting.” British Medical Journal (Clinical Research ed.), 350: h391.
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Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 13 of 19
implementation of BWCs in PSAs over time. We use CCRB complaints as an exemplar outcome measure in the description of our quasi-experimental designs below in subsections V.A and V.B.9 The full range of outcome measures to be analyzed in the BWC PSA evaluation is described in the final section. Figure 2.
A. PSA Command-Level Analysis Quasi-experimental interrupted time series analysis, involving before and after measurements for a particular dependent variable, represents a common type of evaluation research found in criminology and criminal justice. One of the intended purposes for doing this type of quasi-experimental research is to capture longer time periods and a sufficient number of
9 CCRB complaints are rare events and, as such, count regression models will be used to estimate the impact of the treatment. See Berk, R. and MacDonald, J. 2008. “Overdispersion and Poisson Regression.” Journal of Quantitative Criminology, 24 (3): 269 – 284. The models described below serve as examples to illustrate the logic of our analytical approach. We will adjust the analyses as appropriate given the distributions of the various outcome variables (e.g., we may use ordinary least squares panel regressions for normally distributed outcome measures or we may decide to change monthly counts to quarterly counts if zero counts prove to be extensive in the officer data).
11

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 14 of 19

different events to control for various threats to validity and reliability.10 The established before-

treatment trend allows evaluators to predict what might have happened without the intervention.

The difference between what actually happened after the intervention and the predicted outcome

based on the before-treatment trend helps to determine the actual treatment effect. However, the

estimation of BWC impacts will be limited by the absence of a no-treatment control group to

account for confounding factors not specified in the models below.

The units of analysis in this quasi-experimental evaluation are “PSA-months” over a four

year period. Monthly counts of CCRB complaints will be collected for three pre-intervention

years and one intervention year (N = 9 PSAs * 12 months * 4 years = 432 PSA-months). We

will then use panel regression models to analyze the monthly change in complaint counts for

each PSA command before and after the BWCs are adopted in the PSA command and in the

surrounding precincts, controlling for other covariates. As such, a simplified version of the

proposed panel regression model is as follows:

(1) = +

+

+ +++

where i= 1… 9 PSA commands, with PSA i consisting of t = 1, …, ni monthly observations, and Yit is the outcome variable indicating the monthly count of CCRB complaints in a specific PSA i during month-year t. The regressor PSABWC is a dummy variable identifying whether a PSA

command adopted BWCs (1) or not (0), while PrecinctBWC is a dummy variable identifying

whether a precinct that intersects or contains the PSA adopted BWCs (1) or not (0). The

coefficients β1 and β2 are the estimates of direct and indirect BWC treatment, respectively, on CCRB complaints. The model will also control for factors that change each month within PSAs

that may be correlated with CCRB complaints, such as calls for service and crime, and β

10 Shadish, W., Cook, T., & Campbell, D. (1979). Experimental and quasi-experimental designs for generalized causal inference. Boston: Houghton Mifflin Company.
12

Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 15 of 19

represents the vector of estimates of these attributes (Xit). Fixed effects for PSA (αi) and year-

month (δt) are included to control for common trends to all PSAs in a given month-year and unmeasured differences between PSAs that are stable over the four-year time period. Robust

standard errors clustered by PSA-month-year will be used to assure that estimates are robust to

heteroscedasticity and unmeasured dependence at the PSA level over time.

B. PSA Officer-Level Analysis

The units of analysis in this quasi-experimental evaluation are “officer-quarters” over a

four year period. Quarterly counts of CCRB complaints will be collected for three pre-

intervention years and one intervention year (N = ~2,000 PSA officers * 4 quarters * 4 years =

96,000 officer-months). We will then use panel regression models to analyze the quarterly

change in complaint counts for each PSA officer before and after the BWCs are adopted in their

respective PSA commands and in the surrounding precincts, controlling for other covariates. As

such, a simplified version of the proposed panel regression model is as follows:

(2)

=+

+

+ +μ + + +

Where i= 1… ni officers in j=1…9 PSA commands, t = 1, …, nt quarterly observations, and Yijt is the outcome variable indicating the count of CCRB complaints for an individual officer in a

specific PSA i during quarter t. The regressor PSABWC is a dummy variable identifying whether

a PSA command adopted BWCs (1) or not (0), while PrecinctBWC is a dummy variable

identifying whether a precinct that intersects or contains the PSA adopted BWCs (1) or not (0).

The coefficient β1 and β2 are the officer-specific effect of BWC and the indirect BWC treatment effect, respectively, on CCRB complaints. In this model β represents the vector of estimates

representing the vector of covariates that change each quarter for each officer (X), such as shift

and area assignment. Fixed effects for officer (µi), PSA (αj), and year-quarter (δt) are included to

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Case 1:12-cv-02274-AT-HBP Document 330-1 Filed 07/27/18 Page 16 of 19
control for common trends to individual officers, PSAs, and time. Robust standard errors clustered by officer-PSA-quarter-year will be used.
We recognize that officers assigned to the nine PSAs during the one-year intervention period may have had varying assignments and service times during the three-year preintervention period. For instance, officers may have had previous assignments that make them more or less likely to use force in the execution of their duties or generate citizen complaints. Some officers may not have three full years of NYPD service before assignment to the PSAs. The NYPD will provide the monitor team with pre-PSA service length and assignment duty data so we can adjust our individual-level panel regression models (e.g., including pre-intervention averages for each officer) as appropriate to consider these varying pre-intervention experiences.
C. Outcome Measures The PSA quasi-experimental designs will measure the impact of BWCs on three sets of outcome measures: the civility of police-citizen interactions, police activity, and police lawfulness. The data for the study’s outcome measures will be available through official data systems of the NYPD and the CCRB. As described above, the primary analyses of these outcomes will involve the collection of data from 36-month pre-implementation (pre-test) and 12-month implementation (post-test) time periods.
1. Impact of BWCs on the Civility of Police-Citizen Interactions The available research suggests that putting BWCs on officers will improve the civility of police-citizen interactions by deterring undesirable behaviors (i.e., not wanting to be recorded on video doing something inappropriate or illegal) and stimulating desirable behaviors (i.e.,
14

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remembering to treat others with respect).11 Pre-test and post-test data will be collected and
analyzed for the following “civility/de-escalation” outcomes:
• CCRB complaints • Officer arrests with force reports • Officer injury reports • Resisting arrest data • Disorderly Conduct and Obstructing Government Administration arrests and summonses
Specific variables in these datasets will be analyzed to determine whether BWCs influence the
types of CCRB complaints, the types of force (hand strike, baton, etc.), and other relevant
subcategories for treatment officers and control officers over the course of the study time period.
2. Impact of BWCs on Police Activity
Some observers have suggested that BWCs might cause officers to be less active or more
reluctant to initiate contacts with citizens, instead focusing most of their time on dispatched
calls.12 Police officers in treatment and comparison groups will be compared over pre-test and
post-test time periods to determine whether BWCs impact their policing activity. Police activity
metrics will include:
• Monthly number of responses to citizen calls for service (data available by unit only rather than by individual officer)
• Monthly number of officer-initiated calls (data available by unit only rather than by individual officer)
• Monthly number of complaints by citizens of crime (61 reports) • Monthly number of domestic incident reports • Monthly number of arrests • Monthly number of summons
11 Barak Ariel, William Farrar, and Alex Sutherland. 2015. The effect of police body-worn cameras on use of force and citizens’ complaints against the police: A randomized controlled trial. Journal of Quantitative Criminology, 31: 509–535. 12 For instance, one recent evaluation suggests BWC officers are more likely to initiate encounters and issue citations than their non-BWC counterparts. Justin Ready and Jacob Young. 2015. The impact of on-officer video cameras on police–citizen contacts: findings from a controlled experiment in Mesa, AZ. Journal of Experimental Criminology, 11: 445–458. Another randomized controlled trial found increases in arrests and citations for BWC treatment officers relative to non-BWC control officers. Anthony A. Braga, William H. Sousa, James R. Coldren, and Denise Rodriguez. 2018. The effects of body worn cameras on police activity and police-citizen encounters: A randomized controlled trial. Journal of Criminal Law and Criminology, 108: 511–538.
15

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• Monthly number of SQF reports • Monthly number of interior patrols (data available at PSA levels only) The data will be analyzed to determine whether the monthly number of activity events changes over time. The monitor team will also examine whether the BWCs influence the likelihood of an arrest or summons in situations where a crime complaint report has been made, comparing treatment officers to control officers.
3. Impact of BWCs on Police Lawfulness Stop reports provide an opportunity to examine whether BWCs impact the lawfulness of police interactions with citizens. The monitor team will be auditing stop reports to ensure NYPD compliance with the Constitution and provisions of the Floyd., Ligon, and Davis orders. The monitor team will use cluster random sampling techniques to select stop reports each quarter to ensure a representative sample of stop reports from the annual citywide population of stop reports. In order to assess the impact of BWCs on police lawfulness in the PSAs, it will be essential to include stop reports prepared in the PSAs during one-year pre-intervention and oneyear intervention periods. The monitor team will select random samples of 300 pre-interventionperiod and 300 intervention-period stop reports that are representative of overall PSA stop reports during these two periods. The monitor team will analyze the results of reviews of PSA stop reports completed in pre-intervention and intervention periods to determine whether BWCs influence the justifications provided for the stops, frisks, and searches of subjects in these interactions (examining potential Fourth Amendment issues). The monitor team will also use stop report data to examine patterns in the racial composition of stopped subjects to determine whether the presence of BWCs influences the share of minority residents stopped by officers in the PSAs during the intervention period
16

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relative to the pre-intervention period (examining potential Fourteenth Amendment issues). We will examine other subject characteristics, such as gender, age, and stop justification. Our BWC impact analyses will build upon models and methods used in prior research appraising racial disparities in NYPD stop reports in PSAs and immediately surrounding neighborhoods.13
With respect to trespass enforcement, the monitor team will be examining trespass enforcement in the PSAs during the pre-intervention and intervention periods. This examination will depend in part on the availability of data in a readily available format. Accounting for this caveat, the monitor team is planning to look at the percentage of trespass arrests for which there was a completed Trespass Crimes Fact Sheet; counts of declined prosecutions for trespass arrests; trespass arrests identified by QAD as starting as a stop, but for which a stop report was not completed; trespass arrest reports identified by QAD as not containing prima facie evidence of probable cause; and reports of stops for trespass in TAP and NYCHA buildings. The monitor team will also analyze the results of QAD audits of police-initiated enforcement arrests to determine whether there are any differences in the number of unrecorded stops in the PSAs during the pre-intervention and intervention periods.
13 See Jeffrey Fagan, Garth Davies, and Adam Carlis. 2012. Race and selective enforcement in public housing. Journal of Empirical Legal Studies, 9: 697-728.
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 Case 1:12-cv-02274-AT-HBP Document 338 Filed 08/13/18 Page 1 of 10

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E. NULLIFICATION 1. In the event the Court does not approve this First Interim Fee Stipulation, the Parties shall meet and confer in good faith to determine whether to agree upon a modified First Interim Fee Stipulation. If they are unable to do so, this First Interim Fee Stipulation shall become null and void.

NEW YORK CIVIL LIBERTIES FOUNDATION By: Cristopher Dunn 125 Broad Street, 19th Floor New York, NY 10004 Tel. (212) 607-3300 Attorney for Plaintiffs

UNION

NEW YORK CITY LAW DEPARTMENT Office of Zachary W. Carter Corporation Counsel of the City of New York By: David Cooper 100 Church Street, Room 3-148 New York, NY 10007 Tel. (212) 356-2579 Attorney for Defendants

THE BRONX DEFENDERS By: Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 Attorney for Plaintiffs

LATINOJUSTICE/PRLDEF By: Juan Cartagena 99 Hudson Street, 14th Floor New York, NY 10013 Attorney for Plaintiffs

SHEARMAN & STERLING LLP By: Jeffrey Resetarits 599 Lexington Avenue New York, NY 10022 Attorney for Plaintiffs

NEW YORK LAWYERS FOR THE PUBLIC INTEREST By: J. McGregor Smyth, Jr. 151 West 30th Street, 11th Floor New York, NY 10001 Tel. (212) 224-4664 Attorney for Plaintiffs
SO ORDERED.
Dated: August 13, 2018 New York, New York

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Case 1:12-cv-02274-AT-HBP Document 338 Filed 08/13/18 Page 10 of 10

 
 Case 1:12-cv-02274-AT-HBP Document 379 Filed 05/09/19 Page 1 of 11

Case 1:12-cv-02274-AT-HBP Document 379 Filed 05/09/19 Page 2 of 11
was approved by the Honorable Analisa Torres on July 19, 2017, and the Main Stipulation settled the instant matter in the manner and upon the terms set forth therein; and
WHEREAS, the Defendants and the Plaintiffs agree that, having obtained the above-described relief in the Main Stipulation, pursuant to Section L therein, Plaintiffs are entitled to an award of reasonable attorneys’ fees, costs and expenses to Class Counsel for time and expenses incurred in this matter, from January 1, 2018 through December 31, 2018; and
WHEREAS, the negotiations have resulted in this fee stipulation (“Second Interim Fee Stipulation”), which is subject to Court Approval, settles the counsel fees, costs and expenses in this action, in the manner and upon the terms set forth below, for time and expenses incurred in this matter, from January 1, 2018 through December 31, 2018;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows:
A. DEFINITIONS 1. “Main Stipulation” shall mean the Stipulation of Settlement and Order, executed by the Parties in the above-captioned action, which was so ordered by the Court on July 19, 2017. 2. “Second Interim Fee Stipulation” shall mean this Stipulation of Settlement and Order of Counsel Fees, Costs and Expenses to Class Counsel for Time and Expenses Incurred in This Matter from January 1, 2018 through December 31, 2018, executed by the Parties in the above-captioned action in accordance with Section L of the Main Stipulation. 3. “Effective Date” shall mean (30) thirty days following the “Final Approval Date” defined below, and shall also be the date upon which this Second Interim Fee Stipulation enters into effect.

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4. “Final Approval Date” shall mean the date on which this Court endorses this Second Interim Fee Stipulation and following any court proceedings and/or rulings, if applicable, in connection with the approval of this Second Interim Fee Stipulation.
5. “Parties” shall mean Plaintiffs and Defendants. 6. “Plaintiffs” shall mean the Named Plaintiffs and Settlement Class. 7. “Named Plaintiffs” shall mean Plaintiffs Jaenean Ligon, Jerron Grant, Fawn Bracy, William Bracy, Jacqueline Yates, Letitia Ledan, Roshea Johnson, Jovan Jefferson, Kieron Johnson, Angel Ortiz, Fernando Moronta, Abdullah Turner, and Charles Bradley. 8. “Settlement Class” shall mean the class of Plaintiffs agreed upon by the Parties, described in Paragraph C(2) of the Main Stipulation. 9. “Defendants” shall mean the City of New York, William Bratton, Johnny Blasini, Gregory Lomangino, Joseph Koch, Kieron Ramdeen, Joseph Bermudez, Miguel Santiago, and John Does 1-12. 10. “Class Counsel” shall mean Plaintiffs’ attorneys of record in the above-captioned action, including the New York Civil Liberties Union, The Bronx Defenders, LatinoJustice PRLDEF, New York Lawyers for the Public Interest, and Shearman & Sterling LLP. 11. “City” shall mean the City of New York.
B. INTRODUCTION 1. The Parties enter into this Second Interim Fee Stipulation after arm’s length good faith negotiations for the purpose of avoiding the burdens of further litigation over the payment of counsel fees, costs and expenses to Class Counsel for time and expenses incurred in this action, from January 1, 2018 through December 31, 2018.

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2. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391.
C. COUNSEL FEES, COSTS AND EXPENSES FROM JANUARY 1, 2018 THROUGH DECEMBER 31, 2018 1. The City agrees to pay attorneys’ fees, totaling eighty-five thousand, threehundred fifty-two dollars even ($85,352.00), to Class Counsel for time and expenses incurred in this matter, from January 1, 2018 through December 31, 2018. Class Counsel represent that they are authorized to receive payment on behalf of the Plaintiffs in full satisfaction of all claims for attorneys’ fees, costs, and expenses in, arising from, or in connection with this action, from January 1, 2018 through December 31, 2018. Class Counsel hereby agree that payment for all time and expenses incurred by Class Counsel in this matter from January 1, 2018 through December 31, 2018, shall be made by a single check made payable to New York Civil Liberties Union Foundation, and Class Counsel accept said payment in full satisfaction of all claims for attorneys’ fees, costs and expenses, in, arising from, or in connection with this action, during that time period. 2. Class Counsel represent that LatinoJustice PRLDEF, New York Lawyers for the Public Interest, and Shearman & Sterling LLP have not sought any attorneys’ fees, costs or expenses in, arising from, or in connection with this action, from January 1, 2018 through December 31, 2018. 3. This payment shall be made within (60) sixty days from the Effective Date of this Stipulation and Order. No interest shall accrue if payment is issued within 60 days from the Effective Date of this Stipulation and Order. Any payment received beyond the 60 day period shall accrue interest as provided by the Federal Rules of Civil Procedure.

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4. This Second Interim Fee Stipulation may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
D. RELEASE 1. This Second Interim Fee Stipulation resolves all claims for attorneys’ fees, costs, and expenses to Class Counsel incurred for time and expenses in this matter from January 1, 2018 through December 31, 2018, in accordance with the provisions of the Main Stipulation, as set forth in Section L therein. 2. Plaintiffs hereby agree and represent that no other claims for attorneys’ fees, expenses, or costs arising out of this action, for time and expenses incurred by Class Counsel in this matter, from January 1, 2018 through December 31, 2018, shall be made by or on behalf of Class Counsel in any application for attorneys’ fees, expenses, or costs at any time. 3. This Second Interim Fee Stipulation shall not be admissible in, nor is it related to, any other litigation or settlement negotiations outside of the above-captioned action, except to enforce the terms of this agreement. 4. This Second Interim Fee Stipulation contains all the terms and conditions agreed upon by counsel for the Defendants and the Plaintiffs hereto, and no oral agreement entered into at any time nor any written agreement entered into prior to the execution of this Second Interim Fee Stipulation regarding the subject matter of attorneys’ fees, expenses, or costs to Class Counsel for time and expenses incurred in this matter, from January 1, 2018 through December 31, 2018, shall be deemed to exist, or to bind the Parties hereto, or to vary the terms and conditions contained herein, except that this Second Interim Fee Stipulation shall be interpreted in a manner consistent with the previously-executed Main Stipulation.

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E. NULLIFICATION 1. In the event the Court does not approve this Second Interim Fee Stipulation, the Parties shall meet and confer in good faith to determine whether to agree upon a modified Second Interim Fee Stipulation. If they are unable to do so, this Second Interim Fee Stipulation shall become null and void.

NEW YORK CIVIL LIBERTIES FOUNDATION By: Christopher Dunn 125 Broad Street, 19th Floor New York, NY 10004 Tel. (212) 607-3300 Attorney for Plaintiffs

UNION

NEW YORK CITY LAW DEPARTMENT Office of Zachary W. Carter Corporation Counsel of the City of New York By: David Cooper 100 Church Street, Room 3-147 New York, NY 10007 Tel. (212) 356-2579 Attorney for Defendants

THE BRONX DEFENDERS By: Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 Attorney for Plaintiffs

LATINOJUSTICE/PRLDEF By: Juan Cartagena 99 Hudson Street, 14th Floor New York, NY 10013 Attorney for Plaintiffs

SHEARMAN & STERLING LLP By: Jeffrey Resetarits 599 Lexington Avenue New York, NY 10022 Attorney for Plaintiffs
Dated: New York, New York April ____ , 2019
SO ORDERED:
____________________________________ HONORABLE ANALISA TORRES United States District Judge

NEW YORK LAWYERS FOR THE PUBLIC INTEREST By: J. McGregor Smyth, Jr. 151 West 30th Street, 11th Floor New York, NY 10001 Tel. (212) 224-4664 Attorney for Plaintiffs

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E. NULLIFICATION 1. In the event the Court does not approve this Second Interim Fee Stipulation, the Parties shall meet and confer in good faith to determine whether to agree upon a modified Second Interim Fee Stipulation. If they are unable to do so, this Second Interim Fee Stipulation shall become null and void.

NEW YORK CIVIL LIBERTIES FOUNDATION By: Christopher Dunn 125 Broad Street, 19th Floor New York, NY 10004 Tel. (212) 607-3300 Attorney for Plaintiffs

UNION

NEW YORK CITY LAW DEPARTMENT Office of Zachary W. Carter Corporation Counsel of the City of New York By: David Cooper 100 Church Street, Room 3-147 New York, NY 10007 Tel. (212) 356-2579 Attorney for Defendants

THE BRONX DEFENDERS By: Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 Attorney for Plaintiffs

LATINOJUSTICE/PRLDEF By: Juan Cartagena 99 Hudson Street, 14th Floor New York, NY 10013 Attorney for Plaintiffs

SHEARMAN & STERLING LLP By: Jeffrey Resetarits 599 Lexington Avenue New York, NY 10022 Attorney for Plaintiffs
Dated: New York, New York April ____ , 2019
SO ORDERED:
____________________________________ HONORABLE ANALISA TORRES United States District Judge

NEW YORK LAWYERS FOR THE PUBLIC INTEREST By: J. McGregor Smyth, Jr. 151 West 30th Street, 11th Floor New York, NY 10001 Tel. (212) 224-4664 Attorney for Plaintiffs

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E. NULLIFICATION 1. In the event the Court does not approve this Second Interim Fee Stipulation, the Parties shall meet and confer in good faith to determine whether to agree upon a modified Second Interim Fee Stipulation. If they are unable to do so, this Second Interim Fee Stipulation shall become null and void.

NEW YORK CIVIL LIBERTIES FOUNDATION By: Christopher Dunn 125 Broad Street, 19th Floor New York, NY 10004 Tel. (212) 607-3300 Attorney for Plaintiffs

UNION

NEW YORK CITY LAW DEPARTMENT Office of Zachary W. Carter Corporation Counsel of the City of New York By: David Cooper 100 Church Street, Room 3-147 New York, NY 10007 Tel. (212) 356-2579 Attorney for Defendants

THE BRONX DEFENDERS By: Johanna B. Steinberg 360 East 161st Street Bronx, NY 10451 Attorney for Plaintiffs

LATINOJUSTICE/PRLDEF By: Juan Cartagena 99 Hudson Street, 14th Floor New York, NY 10013 Attorney for Plaintiffs

SHEARMAN & STERLING LLP By: Jeffrey Resetarits 599 Lexington Avenue New York, NY 10022 Attorney for Plaintiffs
Dated: New York, New York April ____ , 2019
SO ORDERED:
____________________________________ HONORABLE ANALISA TORRES United States District Judge

NEW YORK LAWYERS FOR THE PUBLIC INTEREST By: J. McGregor Smyth, Jr. 151 West 30th Street, 11th Floor New York, NY 10001 Tel. (212) 224-4664 Attorney for Plaintiffs

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 Case 1:12-cv-02274-AT-HBP Document 401 Filed 08/12/19 Page 1 of 6

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WHEREAS, this Order is vital to the success of the study; WHEREAS, the study requires that those being studied give their informed consent to participate in the study; WHEREAS, issuance of this Order will substantially further the ability to obtain informed consent; WHEREAS, candid communication between the officers being observed in the study and the study’s observers will be furthered by the entry of this Order; WHEREAS, the observers require confidentiality protection in order to do their jobs without fear of becoming witnesses against those they observe; WHEREAS, the information made confidential by this Order would not exist without the study, and the purpose of creating that information is to serve the purposes of the study; NOW, THEREFORE, upon the Application of Peter L. Zimroth, Independent Monitor, and for good cause, it is hereby ORDERED on this 12 day of August 2019: 1. The following definitions shall apply to this Confidentiality Order unless otherwise specified: a. “Confidential Information” shall mean all information that any
Observer obtains or creates through participation in the Study, including, but not limited to, everything that the Observer sees and hears while accompanying NYPD officers and all materials that the Observer creates or receives that the Observer would not create or receive but for the Observer’s participation in the Study.
2

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b. “Observer” shall mean any person who has begun training for, or been hired to, engage in observational data collection for the Study, as described in the ordered study proposal located at ECF No. 687-1 on the Floyd docket.
c. “Study” shall mean the study outlined in the proposal located at ECF No. 687-1 on the Floyd docket.
d. “Monitor” shall mean Peter L. Zimroth, the members of the team that advise and assist him with the work of monitorship in the abovecaptioned actions, and any consultant retained by him to assist in the work of the monitorship, including Professor Stephen Mastrofski and the staff of the Institute for State and Local Governance of the City University of New York. “Monitor” shall not mean any person to whom the definition of “Observer” applies; that person is an Observer.
e. “Class Representatives” shall mean the Named Plaintiffs in each of the above-captioned actions, as further defined in their respective proceedings.
f. “Class Members” shall mean the class defined by the court in Floyd and Davis and the class agreed upon by the parties in Ligon, as further defined in the proceedings in the above-captioned actions.
g. “Plaintiffs’ Counsel” shall mean any attorney assigned to represent the Class Representatives and Class Members in the above-captioned actions in any capacity, regardless of whether that attorney is an
3

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attorney of record in any of the above-captioned actions, their employers, and personnel of their employers. h. “City” shall mean the City of New York, and for purposes of this Confidentiality Order, shall be construed to specifically include the New York City Law Department (“Law Department”) and the New York City Police Department (“NYPD”) unless otherwise noted herein. 2. No Observer may share Confidential Information in any way, except to the Monitor or this Court, or persons approved to receive Confidential Information by this Court. This prohibition includes, but is not limited to, disclosure of Confidential Information in any testimony or in any response to any subpoena or other legal process. 3. Every recipient of Confidential Information may not share that information with any person or entity other than the Monitor and this Court, in the manner approved by the Monitor or this Court. This prohibition includes, but is not limited to, disclosure of Confidential Information to Plaintiffs’ Counsel or the City, or in any testimony or in any response to any subpoena or other legal process. The Monitor may publish Confidential Information in his discretion, but all published Confidential Information shall be altered, if necessary, to avoid revealing the identity of any employee of the NYPD or any Observer. Once the Monitor publishes Confidential Information, it shall cease to be Confidential Information.
4

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4. Confidential Information may be disclosed upon order of this Court to a person or entity if that person or entity demonstrates to this Court an extraordinary circumstance or compelling need for the Confidential Information within the meaning of Second Circuit law. The person or entity must petition this Court to determine whether the extraordinary circumstance or compelling need exists, and shall not have the ability to review the Confidential Information unless and until the Court finally determines that the extraordinary circumstance or compelling need exists. This Court will review Confidential Information in camera. Once Confidential Information is disclosed to a person or entity through this process, it shall cease to be Confidential Information.
5. The Monitor, the City, Plaintiffs’ Counsel, officers of the NYPD, and Observers shall have the right to petition this Court to enforce the terms of this Confidentiality Order.
6. Every Observer must agree to the terms of this Confidentiality Order to participate in the Study in any way.
7. This Confidentiality Order augments but does not revoke, supersede, or modify any prior confidentiality orders from this Court or written agreements among the parties.
8. This Confidentiality Order will survive the termination of the monitorship and this Court’s jurisdiction in the above-captioned actions, and will continue to be binding upon all persons with Confidential Information.
5

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9. During the monitorship and thereafter, this Court shall retain jurisdiction over all persons subject to this Confidentiality Order to the extent necessary to enforce any obligations arising hereunder. Additionally, this Court reserves the right, in its sole discretion, to modify this Confidentiality Order at any time.
Dated: New York, New York ______A__u_g_u_st__1_2_, 2019
SO ORDERED: HONORABLE ANALISA TORRES United States District Judge
6

 
 Case 1:12-cv-02274-AT-HBP Document 410 Filed 01/07/20 Page 1 of 99
Peter L. Zimroth +1 212.836.7316 Direct Peter.Zimroth@arnoldporter.com
January 7, 2020
VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312
Re: Floyd, et al. v. City of New York, 08-CV-1034 (AT), Ligon, et al. v. City of New York, et al., 12-CV-2274 (AT), Davis, et al. v. City of New York, et al., 10-CV-0699 (AT), Tenth Report of the Independent Monitor
Dear Judge Torres, I am submitting for filing a corrected Tenth Report of the Independent Monitor. In
the report filed on December 16, 2019, there were inaccuracies in Chart 17, “PIE Audits with Command Responses,” on page 66. The attached report contains the corrected Chart 17. There are no other changes from the original report filed in December 2019.
Respectfully submitted,
Peter L. Zimroth Monitor
Attachment: Tenth Report of the Independent Monitor
Arnold & Porter Kaye Scholer LLP 250 West 55th Street | New York, NY 10019-9710 | www.arnoldporter.com

Case 1:12-cv-02274-AT-HBP Document 410 Filed 01/07/20 Page 2 of 99
Tenth Report of the Independent Monitor Peter L. Zimroth
December 16, 2019
Corrected Report filed: January 7, 2020
Floyd, et al. v. City of New York Ligon, et al. v. City of New York, et al.

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Davis, et al. v. City of New York, et al.
MONITOR TEAM
Peter L. Zimroth Monitor
Richard Jerome Deputy Monitor Anthony A. Braga Cassandra Chandler Jennifer Eberhardt Demosthenes Long John MacDonald James McCabe
Jane Perlov James Yates

Case 1:12-cv-02274-AT-HBP Document 410 Filed 01/07/20 Page 4 of 99

TABLE OF CONTENTS

Page

I. INTRODUCTION................................................................................................................... 1 II. GUIDANCE FOR SUBSTANTIAL COMPLIANCE ..................................................................... 4 III. WRITTEN POLICIES .............................................................................................................. 6
A. Stop and Frisk Policies..................................................................................................... 6 B. Stop Report Form............................................................................................................ 9 C. Racial Profiling Policies ................................................................................................. 14 D. Davis/NYCHA Interior Patrol Policies............................................................................ 17 E. Trespass Affidavit Program (TAP) Policies .................................................................... 22 F. Trespass Crimes Fact Sheet (TCFS) ............................................................................... 29 IV. SUPERVISION..................................................................................................................... 30 V. TRAINING .......................................................................................................................... 36 A. In-Service Stop and Frisk and Racial Profiling Training................................................. 37 B. Recruit Training............................................................................................................. 40 C. Training for Newly Promoted Supervisors.................................................................... 43 D. Basic Plainclothes Course.............................................................................................. 44 E. Housing One-Day Training ............................................................................................ 44 F. Training for Investigating Profiling and Biased-Based Policing Complaints ................. 45 G. Field Training Officer (FTO) Guide and Training ........................................................... 46 H. Training on Fair and Impartial Policing Training ........................................................... 46 I. Refresher Training Course for Investigative Encounters .............................................. 48 VI. BODY-WORN CAMERAS .................................................................................................... 49 A. Precinct-Level BWC Pilot............................................................................................... 49 B. PSA BWC Pilot ............................................................................................................... 51 C. Citywide Expansion of BWCs ........................................................................................ 52 D. Guidance for Compliance—Body-Worn Cameras ........................................................ 52 VII. AUDITING .......................................................................................................................... 53 A. Auditing of Stop Reports and Activity Logs................................................................... 53 B. QAD Audits for Undocumented Stops .......................................................................... 64 C. QAD Auditing of Trespass Crimes Fact Sheets.............................................................. 66 D. Guidance for Compliance—Auditing ............................................................................ 67
i

Case 1:12-cv-02274-AT-HBP Document 410 Filed 01/07/20 Page 5 of 99 VIII. PERFORMANCE EVALUATIONS ......................................................................................... 68
A. Performance-Evaluation System for Officers and Detectives ...................................... 68 B. Guidance for Compliance—Performance Evaluations ................................................. 71 IX. COMPLAINTS AND DISCIPLINE .......................................................................................... 73 A. NYPD Investigations of Profiling Allegations ................................................................ 73 B. NYPD Handling of Substantiated CCRB Cases ............................................................... 79 X. COMBINED PILOT .............................................................................................................. 86 XI. EARLY INTERVENTION PROGRAM..................................................................................... 89
ii

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TENTH REPORT OF THE INDEPENDENT MONITOR I. INTRODUCTION
In 2008, a class action lawsuit was brought challenging the stop, question and frisk practices of the NYPD (Floyd v. City of New York). A second lawsuit, Ligon v. City of New York, challenged stops and trespass arrests at private buildings that were enrolled in the Trespass Affidavit Program (TAP), whereby owners allowed the NYPD to patrol their buildings. In a third case, Davis v. New York, plaintiffs challenged stops and trespass arrests and other trespass enforcement efforts in public housing developments.
After a nine-week trial in Floyd, the federal district court ruled that the NYPD’s stop and frisk practices violated the Fourth Amendment protections against unreasonable search and seizure, and, because of the discriminatory nature of the stops, the Fourteenth Amendment’s promise of equal protection under the law. 959 F. Supp. 2d 540 (2013). The court found that officers were making stops without reasonable suspicion and were targeting persons of color. Id. As a result, the court ordered the NYPD to implement reforms to ensure compliance with state and federal law. 959 F. Supp. 2d 668 (2013).
The court order, issued on August 12, 2013, required NYPD to make changes to its policies, training, supervision, auditing, performance evaluation system and discipline. The court also directed NYPD to institute a pilot of police officer body-worn cameras (BWCs). The court appointed a monitor, Peter Zimroth, to assist the parties in developing and implementing reforms, and to report to the court and the public on the Department’s progress in complying with the court’s requirements. The court also directed the parties to participate in a community engagement process called the Joint Remedial Process overseen by a facilitator to determine whether additional remedial measures should be recommended and ordered. In April 2015, the parties settled the
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Davis case, involving policing at New York City Housing Authority (NYCHA) properties. In July 2017, the parties in Ligon settled their case. The court appointed Peter Zimroth monitor in those matters. The Ligon and Davis settlements are each incorporated by court order into the monitorship.
The monitor’s efforts started in November 2014 and is now entering its sixth year. This report describes the compliance efforts made by the City and NYPD and what is left to do. It also lays out guidance regarding how the monitor will decide whether to recommend to the court a finding that the NYPD is in substantial compliance with the court’s orders.
There have been significant changes in the five years of the monitorship.  Policies. The Department has revised its policies on stop and frisk, interior patrol of TAP and NYCHA locations, and racial profiling, among others.  Training. The Department has developed and is implementing revised training on investigative encounters, racial profiling, interior patrol of NYCHA and TAP buildings, basic plainclothes training, promotional training, and training for Police Academy recruits.  Revisions to Auditing. The Department has instituted improved auditing methods and a new auditing plan will be submitted for court review.  Body-Worn Cameras. BWCs were initially launched for the pilot study required by the court, but are now being used by all patrol officers and sergeants citywide.  Performance Evaluation. The Department eliminated methods of evaluation that required officers to count their stops daily and monthly, which in turn had induced officers to increase these activities regardless of their legality.
At the same time these changes were being made, “neighborhood policing” was instituted in almost all commands; a program titled “Operation Impact” was eliminated, so the most inexperienced officers, just out of the Police Academy, were no longer assigned to “hot spots” in neighborhoods with the most crime. Also, the New York City Council enacted new laws encouraging civil summonses instead of criminal summonses for low-level quality of life
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violations (Criminal Justice Reform Act of 2016, https://council.nyc.gov/legislation/criminaljustice-reform/) and the Right to Know Law which require officers to provide more information to members of the public with whom they interact, and to get consent for many searches. The Department and city prosecutors also shifted marijuana enforcement from arrests to criminal summonses (https://www1.nyc.gov/site/nypd/about/about-nypd/policy/marijuana-law.page).
Reported stops made by NYPD members have decreased dramatically since the apex of stops in 2011. Reported stops went from 685,000 in 2011 to 11,238 in 2018. The monitor has consistently raised concerns about stops not being reported, and the NYPD agrees that there are more stops than are being reported. But the reality is that there has been a striking decrease in stops, even if the numbers of stops reported in recent years are undercounted. This decrease occurred while violent crime in New York City continue to decline. Concerns about changing the Department’s prior stop and frisk approach and going “back to the bad old days” of high crime in the City were misplaced.
This report is organized in the following fashion. Section II describes what is meant by “substantial compliance” and the approach that the monitor will take in making his assessment of substantial compliance. In Section III, the report describes the court-ordered requirements for written policy changes pursuant to the Floyd remedial order and the Ligon and Davis settlements and then, for each policy requirement, reviews the efforts made by the Department to implement the policies in practice, and the monitor’s assessment of those efforts. After written policies, the report covers the requirements for compliance, the efforts made by NYPD to comply, and the monitor’s assessment of those efforts for the following topics: Supervision (IV), Training (V), Body-Worn Cameras (VI), Auditing (VII), Performance Evaluations (VIII), and Complaints and Discipline (IX). Section X describes a pilot study that the monitor has proposed and the court
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approved to test the impact of two policy changes that the facilitator recommended. Section XI reviews the court orders requiring the NYPD to implement a program for “systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or trespass enforcement,” and the Department’s efforts in doing so.
The NYPD has made many important changes in the five years of this monitorship. Plaintiffs’ counsel have also contributed in a collaborative effort to advance the reforms required by the court orders. The monitor’s mandate is to focus on what has not yet been done in order for the Department to come into “substantial compliance”; and that mainly is what is discussed in this report. But focusing on what is left to do should not be taken as a diminution of the significant achievements in the past five years or the hard work it took to get here. II. GUIDANCE FOR SUBSTANTIAL COMPLIANCE
In its July 30, 2014, Order Modifying Remedial Order, the court included the following two provisions regarding substantial compliance:
c. “Substantial compliance” in Floyd shall be defined as compliance with material aspects of the Immediate and Joint Process Reforms to be approved and so-ordered by the Court. “Substantial compliance” in Ligon shall be defined as compliance with all material aspects of the Ligon Preliminary Injunction Relief. In either case, noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a failure of substantial compliance. However, temporary compliance during a period of otherwise sustained non-compliance shall not constitute substantial compliance. d. Substantial compliance shall be measured using the milestones to be set by the Monitor …. The Ligon settlement stipulation and the Davis settlement have similar provisions regarding substantial compliance. Pursuant to the court’s order, the monitor and his team have undertaken the task of setting forth in detail how he will determine whether the NYPD is in substantial compliance and thus whether he will forward that recommendation to the court for approval. The NYPD, the New York
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City Law Department and plaintiffs’ counsel met with the monitor team for many hours over the course of months to discuss these issues. The attempt was to come to mutual understandings of: (1) what the specific requirements of the remedial order were; (2) what sources of information the monitor would use to determine compliance; and (3) what sorts of analyses and metrics the monitor would use to evaluate compliance. Ultimately, although consensus might be desirable, it is the monitor’s responsibility to make these determinations, subject of course to review by the court. As a result of this process, the monitor set out his views on more than 90 separate required tasks. Attached as Appendix 1 is an Excel spreadsheet listing each task, the text from which the requirement is derived, the definition of compliance, the methodology for assessing compliance, and the data needed for the monitor’s compliance review.
The individual requirements are part of a broader assessment of whether the NYPD is in substantial compliance with the overriding requirements of the remedial order—to wit, whether there is lawful policing under the Fourth and Fourteenth Amendments. If there are individual incidents of non-compliance, the monitor will assess whether they have been identified and corrected through instruction, retraining and, when appropriate, discipline. As stated in the Monitor’s Seventh Report, “[t]he question at the end of the day will be whether each of the remedial measures, working together, provides a system of constitutional, respectful policing.”
For a few tasks, an assessment of compliance is simple. For example, the court ordered the NYPD to modify its stop report in specified ways. The NYPD made those changes and the court approved the revised stop report. However, for most tasks, the evaluation of compliance is more complicated. For the policy changes that are required, the monitor evaluates both the revisions or creation of the required policy and the implementation of that policy in practice.
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“Changing written policy is not meaningful unless the change is implemented and sustained in the field. That requires that officers be appropriately trained and supervised, that the NYPD’s systems of rewards and discipline support the requirements, and that the Department have in place auditing and review mechanisms to detect when officers are not following the policies, and effective processes to correct violations and minimize future violations. It is the monitor team’s job to assess each of these areas.” Monitor’s Seventh Report, p. 1.
For some requirements, there are specific quantitative targets that need to be met. For others, the monitor will use a combination of quantitative measures and qualitative assessments of the NYPD’s efforts. In addition, if the NYPD achieves substantial compliance with regard to a specific task, the monitor’s responsibility will be to assess whether compliance has been maintained and whether it is having the desired effect of meeting the fundamental goals of the court-ordered reforms. For example, even though the court has approved basic stop and frisk training, if it turns out that certain aspects of that training are not being implemented on the street, the monitor and ultimately the court would have to consider whether changes are required in that training.
In the following sections, the report discusses each requirement for substantial compliance. III. WRITTEN POLICIES
A. Stop and Frisk Policies The NYPD’s written policy regarding stop, question and frisk is in Section 212-11 of the Patrol Guide. This Patrol Guide section describes the procedure to be followed when an officer stops a person based on reasonable suspicion that the person has committed, is committing, or is about to commit a felony or Penal Law misdemeanor. The court in Floyd recognized that the practice, known as “stop and frisk” or “stop, question and frisk,” can be an important tool to further public safety. The court ruled, however,
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that to comply with the Constitution, the Department needed to make the following changes to the Patrol Guide:
 The Patrol Guide must state what constitutes a stop; when a stop may be conducted; when a frisk may be conducted; and when a search may be conducted.
 The Patrol Guide must include a definition of “reasonable suspicion,” the standard needed for a stop.
 The Patrol Guide must state clearly that officers must have separate reasonable suspicion that a person is armed and dangerous in order to conduct a frisk of that person.
 The Patrol Guide must require officers to document the stop and articulate reasonable suspicion for the stop, and, if conducted, for the frisk.
 The Patrol Guide must require supervisory review of stops, including review of the constitutionality of the stop, and not just that a stop report form was filled out. In August 2015, the court approved a new Patrol Guide section on stop and frisk, P.G. 212-
11, Investigative Encounters: Requests for Information, Common Law Right of Inquiry and Level 3 Stops. The Patrol Guide also addresses investigative encounters between officers and civilians that are less intrusive than stops or arrests. These encounters are governed by People v. DeBour, which sets out four levels of encounters: a simple Request for Information (Level 1); a Common Law Right of Inquiry (Level 2); a Terry stop, when an officer detains a person to investigate (Level 3); and an arrest (Level 4). The investigative encounters procedures, P.G. 212-11, describe the standards that govern each level.
Since 2015, there have been several changes to P.G. 212-11; some were approved by the court, and those not requiring court approval were approved by the monitor. In March 2016, the court approved changes to P.G. 212-11 to reconcile the procedures with the new stop report form. Additional changes were made when the stop report became electronic. In October 2018, the Department proposed and the court approved changes to P.G. 212-11 to comply with the Right to Know Law enacted by the City Council. These laws require officers in certain nonemergency
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encounters to identify themselves by name, rank and command, explain the reason for the stop, and hand out business cards if no one is arrested or issued a summons. They also require officers to inform people of their right not to consent to a search if consent would be necessary to perform the search.
1. Guidance for Compliance—Written Stop and Frisk Policies and Implementation
As noted above, the NYPD has revised its policies to comply with the court’s orders and the court has approved those changes. It is now the role of the monitor to assess whether the policies are being implemented in practice. Compliance with the court’s requirements on stop and frisk policies will be achieved when:
1. Stops made by NYPD officers comply with NYPD’s new policies and with federal and state standards.
2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors, who then take appropriate action to deal with what they found.
3. Stop reports that do not articulate reasonable suspicion are identified by the Department’s auditing arm, the Quality Assurance Division (QAD), and corrective action is taken with respect to the relevant officers and supervisors.
4. QAD evaluates BWC footage of stop encounters described in audited stop reports and identifies stops when the BWC footage is contrary to the reasonable suspicion articulated in the stop report, and corrective action is taken with respect to the relevant officers and supervisors.
5. NYPD officers offer a business card to persons stopped but not arrested or issued summonses.
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Substantial compliance will be assessed by a combination of quantitative measures (the percentage of compliant stops, frisks and searches) and a qualitative assessment of the Department's efforts to ensure that stops are constitutional, including an assessment of the Department’s corrective measures mentioned in items 2 and 3 above. The monitor team is also reviewing BWC footage and associated stop reports to assess whether the BWC footage and the stop reports are consistent, in order to evaluate whether officers are accurately reporting the encounters on their stop reports.
B. Stop Report Form The court orders require that the NYPD develop and implement a stop report form to be used by officers every time a person is stopped. In March 2016, the court approved the NYPD’s stop report form, and in January 2017, the Department began using an electronic form that officers can fill out on their phones, on tablets, or on a computer at the command. The stop report has two narrative sections: one in which the officer states the reasons for the stop and a second in which the officer states the reasons for the frisk and the search, if conducted. The stop report also has a section in which supervisors document the review required by NYPD policy (P.G. 212-11) and any follow-up action. An officer’s supervisor must confirm that he or she reviewed the constitutionality of the stop and discussed the facts of the stop with the officer. The supervisor must check boxes indicating whether or not: (1) the supervisor reviewed the encounter with the officer; (2) the report was accurate and complete; (3) the corresponding activity log entry was reviewed; (4) the supervisor was present on the scene; (5) there was a sufficient basis for the stop; and (6) there was a sufficient basis for the frisk or search, if conducted. The supervisor must also note whether any corrective action was taken. The Department has made several changes to the stop report. When a stop is based on a radio run (a communication from a dispatcher over the radio, often based on a call for service),
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officers are now required to indicate if the call was based on an anonymous or verified caller, since that information can determine the level of authority an officer is legally allowed to exercise. To comply with the Right to Know Law, the new stop report requires officers to indicate if they sought consent to search and whether it was given. The court approved these changes to the stop report form on October 26, 2018.
1. Guidance for Compliance—Stop Report Form and Implementation Although the stop report itself meets the requirements of the court order, the monitor must evaluate whether the court’s requirements are being met in practice. Compliance with this provision will be achieved when: 1. Level 3 Terry stops made by NYPD officers are documented on stop reports. 2. In stop reports, officers articulate reasonable suspicion for the stop and frisk, if conducted, and the basis for a search, if conducted. 3. BWC footage of stops are not contrary to the reasonable suspicion articulated in stop reports of the same encounters. 4. Officers who make stops and do not document them are instructed or disciplined as appropriate. 5. Supervisors are reviewing the constitutionality of their officers’ stops and documenting their reviews on stop reports. The monitor has raised two areas of serious concern in prior reports. The first is the underreporting of stops. In 2018, although there were approximately 16,000 patrol officers, there were only 11,238 reported stops. This underreporting of stops has been acknowledged by the Department and by officers and supervisors in focus groups conducted by the monitor, and explicitly identified in NYPD audits (discussed in Section VII below). Any assessment of
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compliance with the court’s remedial orders will be impossible unless the Department finds ways to ensure that to a large extent unreported stops are no longer an issue.
The second area of concern is whether supervisors are taking seriously their responsibility to review the constitutionality of stops. At trial, the court found there had been pro forma approval of stops, meaning that there was no substantive supervisory review of the constitutionality of stops. The policies for supervisory review are now in place, and supervisors must state on the stop report form their views as to whether there was a sufficient basis for the stop and a sufficient basis for the frisk or search, if one was conducted. In 2018, out of 11,238 recorded stops, only 58 supervisors noted on the stop reports that the report failed to articulate reasonable suspicion. In the 58 cases in which the reviewing supervisor checked “No” under the caption “Sufficient Basis for Stop,” the following follow-up actions were taken: five were given discipline; 40 were given training, instructions, or both training and instructions; and supervisors listed no follow-up for 13 officers. For the 6,659 stops in which a frisk was conducted, 65 supervisors checked “No” under the caption “Sufficient Basis for Frisk.” In those 65 cases, the following actions were taken: four officers were given discipline; 46 were given training, instructions, or both training and instructions; and in 15 cases no follow-up action was reported. In 3,742 stops, a search was reported. In 45 cases, the supervisor checked “No” under the caption “Sufficient Basis for Search.” The following actions were taken in those cases: 21 officers were given training, instructions, or training and instructions; and in 24 cases, no follow-up action was reported. This issue is discussed further in Supervision, Section IV below.
Officers who do not submit stop reports after a stop and supervisors who do not adequately review those that are submitted are violating the Department’s policies and the court’s orders. The monitor is evaluating how the Department is addressing these significant concerns. The monitor
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has requested data from the NYPD regarding actions taken for the failure to complete a stop report, and will report on that data in a future report. The monitor also pressed the Department to emphasize the need for compliance by instituting a process similar to Compstat.1 The suggestion was that this new process would bring commanding officers and other senior command officials to a meeting at which they would be questioned about compliance, a light would be shone on both poor performance and superior implementation, and those senior officers would be expected to discuss ways to improve the performance of their subordinates. The Department has now put such a program in place—the RISKS Reviews discussed next.
2. RISKS Reviews The NYPD has developed a process it has labeled “RISKS Reviews” (Remediation of Identified Situations Key to Success) based on the monitor’s suggestion. Beginning in December 2018, the Department has held meetings with commands to serve as a forum in which identified issues of risk are brought to light for evaluation. These issues include the underreporting of stops, constitutionality of stops, legality of trespass enforcement, and compliance with policies regarding the use of BWCs, including proper activation, deactivation and categorization, tagging and supervisory reviews of videos. Each command will be brought in for a RISKS Review approximately twice a year. During the period between meetings, relevant statistics (including those generated through audits and selfinspections) are generated for all commands, with rankings of boroughs and commands included. The RISKS Review relies on a two-part process. The first part is a “roll-out,” where commands from an entire patrol borough are assembled together to get a presentation from the Risk
1 Compstat is a management tool used by the NYPD involving weekly meetings at which commanders are brought to police headquarters to respond to questions and data from NYPD executives.
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Management Bureau (RMB) about the key performance indicators being tracked and, therefore, the expectation for the commands. The Chief of Department has attended these roll-outs and begun the sessions with a statement on the importance of conducting Level 3 stops constitutionally and documenting every stop. RMB then provides an explanation of the RISKS Reviews, a review of Patrol Guide requirements for stops, trespass enforcement and BWC recording, a discussion of possible strategies to gain further compliance with applicable Patrol Guide requirements, and a discussion of additional risks that may need to be addressed.
The second part of the process is the “review.” The review involves 30-minute meetings at RMB with supervisory officers from each command in the Patrol Borough. The meetings are chaired by the Deputy Commissioner for Risk Management and co-chaired by the Chief of Strategic Initiatives. Required attendees from each command include the Commanding Officer, the Executive Officer, the Integrity Control Officer, the Special Operations Lieutenant and the Training Sergeant. Members from the appropriate Patrol Borough attend, as well as representatives from both the Chief of Department’s Office and the operational bureau under review (Patrol, Housing or Transit).
The first RISKS Review meeting occurred in mid-December 2018. All commands went through their first RISKS Reviews by October 2019. Members of the monitor team have attended most of these sessions.
With regard to Level 3 stops and BWC usage, the purpose of the RISKS Review is to ensure compliance with the requirements pertaining to the preparation and supervisory review of stop reports and the activation of BWCs, not to seek an increase in police activity or stops. That message has been emphasized consistently at the RISKS Review meetings. These reviews are
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interactive and attendees discuss potential barriers as well as proactive efforts to overcome barriers to full compliance in the areas of stops, trespass enforcement and BWC usage.
Failure of documentation is one of the issues discussed. Several of the commands have started doing their own RAND reviews (labeled as such because these were initially conducted by the RAND Corporation). The command does a search of ICAD dispatches to identify encounters in which the words “Stopped,” Warrant Check,” “Holding” or “Show-up “are used.2 The Integrity Control Officer (ICO) (or other member doing the RAND audit) will evaluate the encounter to see if it appears that a stop occurred and, if so, check to see whether a stop report was prepared. In addition, the Special Operations Lieutenants, who oversee the plainclothes anti-crime team at the command, have been queried about the team’s activities and what efforts the command is making to identify stops that are not documented. There has also been a consistent focus on the command’s self-inspections of stop reports, with the Chief from Patrol Services noting that if deficiencies are missed in the self-inspections, that means there are failings at several levels: the officer making the stop and writing the stop report; the supervisor who missed the deficiency in reviewing the stop report; the ICO who missed it in the self-inspection; and the Commanding Officer or Executive Officer who signed off on the self-inspection.
C. Racial Profiling Policies The NYPD’s policy barring racial profiling and other bias-based policing, P.G. 203-25, was approved by the court on August 24, 2015. The patrol guide defines racial profiling as police action, including stops, frisks, arrests or other law enforcement actions, or the failure to perform a police action, motivated, even in part, by the actual or perceived race, color, ethnicity or national origin of an individual. Race may be considered only if it is part of a reliable and specific suspect
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description that includes not just race, gender and age, but other identifying characteristics or information. The policy also includes a description of Section 14-151 of the New York City Administrative Code prohibiting bias-based profiling. The Administrative Code includes demographic categories in addition to race, color and national origin: creed, age, alienage or citizenship status, gender, sexual orientation, disability and housing status.
1. Guidance for Compliance—Racial Profiling Policy As with the Department’s stop and frisk policy, substantial compliance regarding the racial profiling policy also requires that Department personnel be trained on the policy and that the Patrol Guide section be followed in practice. Training on the Department’s racial profiling policies is part of the in-service training on stops and frisks. See Section V below. Compliance with the Department’s racial profiling policies will be achieved when: 1. Stops made by NYPD officers comply with NYPD’s new policies and with federal and state standards regarding racial profiling. 2. Data on stops, frisks and searches made by NYPD officers do not show racial disparities that are not explained by legally justified reasons, and that are practically significant in magnitude and are unlikely to be due to chance. 3. Communications from NYPD leadership (executives, commanding officers and others) and in stop report narratives do not indicate a targeting of defined racial or ethnic groups for stops because of their prevalence in local crime suspect data. The monitor will assess the Department’s compliance with its racial profiling policies and the Fourteenth Amendment by using statistical analyses of NYPD’s stop and frisk data conducted by experts on the monitor team. The monitor team has examined whether rates of compliance with legal standards for stops, frisks and searches differed by race, and if so, whether those differences were due to chance or not. The analysis also examined whether there were changes to racial
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disparity over time. A summary of the data and conclusions of this analysis is included in Section VII, Auditing, below.
The monitor team is considering other analyses of stop and frisk data to assess whether there are statistically and practically significant racial disparities and whether these racial disparities are declining over time. However, significant underreporting would undermine the conclusions of these analyses. For this reason, the analyses listed below will need to wait until the Department has sufficiently addressed the lack of documentation.
1. An analysis of outcomes from stops (frisks, searches, summonses and arrests, force) for Blacks and Hispanics compared to similarly situated non-Hispanics; and
2. An analysis of the recovery rate of contraband and weapons for stops of Blacks and Hispanics compared to similarly situated non-Hispanics.
The monitor team will also conduct analyses for assessing compliance with the Davis orders. The monitor team is currently considering the following types of analyses:
1. Comparison of trespass stops, arrests and summonses over time in and around NYCHA developments;
2. Comparison of outcomes (frisk, searches, use of force, and enforcement activity) from stops in NYCHA developments and around NYCHA developments over time;
3. Examination of whether outcomes vary by whether an officer is assigned to the Housing Bureau or other NYPD units;
4. Examination of racial disparities in outcomes from stops in NYCHA developments compared to outcomes from stops of persons stopped in similar contexts;
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5. Assessment of enforcement activity (stops, arrests and summonses) at various distances from NYCHA (inside, immediate surroundings and further away) and whether the enforcement activities vary by race;
6. Assessment of relative racial disparity in enforcement activity (stops, arrests and summonses) in NYCHA properties compared to disparities in areas with otherwise similar crime rates;
7. Assessment of whether the rate of each outcome (e.g., level of enforcement activity) per block in and around NYCHA housing is similar to what one would expect from other blocks with comparable levels of crime; and
8. Assessment of whether NYCHA developments with comparable levels of crime but different racial distributions of residents have different levels of enforcement activity (stops, arrests and summonses).
The monitor’s assessment of compliance with the Department’s racial profiling policies will also include qualitative analyses. Among other things, the qualitative analysis will include: (1) how the NYPD addresses and investigates racial profiling complaints; (2) how it incorporates race issues in its training; and (3) communications from NYPD leadership (executives, commanding officers and others) to ensure that they do not target defined groups for stops because of their prevalence in local crime suspect data. Compliance or non-compliance with other requirements, such as ensuring documentation of stops, will also inform the monitor’s assessment.
D. Davis/NYCHA Interior Patrol Policies The Davis settlement, incorporated in a court order, requires that the Patrol Guide provision for the interior patrol of NYCHA buildings (P.G. 212-60) promote constitutional interactions between NYPD officers and persons encountered during interior patrols. Among other things, the Patrol Guide states that, without more, entering, being in or exiting a NYCHA building is not an
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“objective credible reason” justifying an officer’s approach and request for information, nor does it establish reasonable suspicion for a Level 3 Terry stop. P.G. 212-60 also states that arrests for trespass in restricted areas, such as roofs or roof landings, must be made with appropriate notice (e.g., through a conspicuously posted sign). The policy for interior patrols of NYCHA buildings was approved by the court and became effective on April 25, 2017.
The Patrol Guide also requires officers to complete a form documenting all trespass arrests in NYCHA buildings (the Trespass Crimes Fact Sheet (TCFS)). Officers must provide information about what led them to approach the person and what led them to believe that the person was a trespasser. Since May 2017, the NYPD has used the court-approved TCFS for all trespass arrests in both NYCHA buildings and TAP buildings.
1. Guidance for Compliance—NYCHA Interior Patrol Policy Trespass enforcement at NYCHA properties has declined significantly. From 2014 to 2018, trespass arrests in NYCHA developments declined by more than 70 percent. Trespass summonses have declined similarly. Stops at NYCHA properties have declined by more than 50 percent from 2015 to 2018. Moreover, trespass arrests at NYCHA properties have declined for Blacks in a greater proportion than for Whites (see Appendix 2). Even though fewer, the stops, summonses and arrests that are made must be legal and must meet the court’s requirements. Compliance with this provision will be achieved when: 1. Stops made by NYPD officers at NYCHA properties comply with NYPD’s new policies and with federal and state standards. 2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors and appropriate corrective action is taken.
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3. Stop reports that do not articulate reasonable suspicion are identified by QAD, and corrective action is taken with respect to the relevant officers and supervisors.
4. Trespass arrests made at NYCHA properties comply with the NYPD’s policies and with federal and state standards.
The monitor team reviewed a sample of BWC videos tagged as Interior Patrols of NYCHA locations. In 2018, there were 44,208 videos uploaded to the BWC data management system using the tag “Interior Patrol–NYCHA.” A sample of videos was selected to identify encounters in which it appeared likely that enforcement actions were taken, as well as to evaluate routine interior patrols. The monitor team reviewed a sample of 180 videos tagged as including an enforcement action and 180 uncategorized videos.3
In only 101 of the 360 videos (28.1%), the recording officer had significant public contact with a person during the Interior Patrol.4 Even though 180 videos were tagged as involving an enforcement encounter, more than 80 of those videos did not include a significant public encounter. There were 141 persons encountered in these 101 interior patrols. The charts below identify the race and gender of the persons encountered, where the persons were first encountered and the level of the first encounter.
3 Of the 44,208 videos recorded, 42,797 were labeled as “Uncategorized,” and 1,411 videos were labeled as “Arrest,” “Summons” or “Investigative Encounter.” A random sample of 180 “Uncategorized” videos and 180 videos tagged as including an enforcement action (stops, arrests or summonses) were selected. Using a confidence level of 95 percent, a sample of 360 videos from a population of 44,208 results in a confidence interval of 5 percent. 4 Significant public contact is defined as any encounter between the officer and a member of the public that lasts longer than 30 seconds. Routine interactions with staff members of the building, other officers or persons in their official capacity (FDNY, EMS, Postal Service, etc.) were not considered.
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Chart 1. NYCHA BWC Videos

Gender
Male Female Total

Frequency 104 37 141

Percent 73.8 26.2 100

Race
White Black Hispanic Asian Total

Frequency 12 95 33 1 141

Percent 8.5 67.4 23.4 .7 100

Level at First Encounter

Frequency Percent

Level 1

31

22.0

Level 2

7

5.0

Level 3

22

15.6

Level 4

81

57.4

Total

141

100

Location of Encounter_

Frequency

Stairway

48

Hallway

42

Lobby

9

Roof Landing/Stairs

18

Roof

6

Inside Apartment

7

Street/Front of Bldg. 11

Total

141

Percent 34.0 29.8 6.4 12.8 4.3 5.0 7.8 100

The monitor team’s review of the BWC videos determined that the officers’ actions

appeared to meet the Terry and DeBour standards and Department policies in 94 of the 101

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interactions (93%), involving 127 of the 141 persons (90%) encountered. However, the monitor team did note that officers approached and questioned four people, in three encounters, when it did not appear that the officers had an objective credible reason to approach them. Three of the four were detained without reasonable suspicion and one was asked accusatory questions without founded suspicion. In four other encounters, officers stopped nine people when it did not appear that officers had reasonable suspicion to stop them. In one of those encounters, a person was given a summons without the requisite probable cause. For 22 others stopped, the officers appeared to have the appropriate legal justification for the stop. For 81 people, the officers had probable cause to arrest when they were first encountered, mostly because they were on the roof or roof landing or were observed smoking marijuana or other drugs. Of these 81 people, 48 (59%) were arrested and 11 (13%) were issued a summons; for 22 people (27%) engaged at Level 4, no enforcement action was taken.
The monitor team also reviewed a sample of criminal trespass arrests at NYCHA properties. The Monitor requested the Trespass Crimes Fact Sheet (TCFS) and the Online Booking Sheets (OLBS) for 300 randomly selected trespass arrests at NYCHA locations. The NYPD provided the OLBS for the 300 arrests, but provided the TCFS for only 67 arrests. These were the TCFS that were audited by QAD; the Department will be collecting the other TCFS from PSAs and providing them to the monitor team. In reviewing the 67 TCFS, the monitor team determined that eight (12%) did not articulate an objective credible reason for the approach. In two of the 67 arrests (3%), the monitor team determined that the TCFS did not articulate probable cause for the trespass arrest. The monitor team will revisit this data when the Department provides the other 233 TCFS.
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E. Trespass Affidavit Program (TAP) Policies In 2013, in the Ligon case, the court issued an injunction requiring changes to the NYPD’s procedures for stops and frisks at TAP locations. TAP is a program in which police officers conduct interior patrols in certain private apartment buildings. The injunction applied only to Bronx locations. There followed a citywide settlement agreement, filed in July 2017, which spelled out the requirements for DeBour encounters at TAP locations. In June 2016, the court approved P.G. 212-59, the NYPD procedures for interior patrols in buildings enrolled in TAP, a program in which police officers conduct interior patrols in certain private apartment buildings. The NYPD published P.G. 212-59 in April 2017 and conducted roll call training on interior patrols in TAP buildings in June and July 2017. Stops inside and outside TAP buildings must comply with the NYPD’s stop and frisk policies, P.G. 212-11. In addition, P.G. 212-59 states that “mere presence” in a TAP building, or entry into or exit from a TAP building, does not constitute an “objective credible reason” for a DeBour Level 1 approach and request for information, nor does it constitute reasonable suspicion for a Level 3 Terry stop. The Department has also revised its administrative guide governing the requirements and procedures for entry into and continued enrollment in the TAP program, A.G. 303-27. For a building to be enrolled in the program, the owner must certify concerns regarding criminal activity or community complaints in the building, such as trespassing or drug activity within the last year. Crime prevention officers in each precinct are responsible for enrolling the buildings in the TAP program and then must assess every six months whether the buildings still meet the criteria for renewing enrollment.
1. Guidance for Compliance—TAP Policies In 2017, the Risk Management Bureau (RMB) met with the crime prevention officers in each Patrol Borough to review the new criteria for enrolling and renewing buildings in the TAP
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program. Each precinct then determined whether buildings already enrolled should remain in the program. As of the first quarter of 2017, 3,591 buildings were enrolled in the TAP program. As of the second quarter of 2019, only 354 buildings remained in the TAP program. With the reduction in buildings enrolled in TAP, there has also been a reduction in the use of trespass arrests and summonses at TAP locations. In 2018, there were 145 stop reports at or within 300 feet of a TAP building, 47 trespass arrests at or within 300 feet of a TAP building and 31 Criminal Court trespass summonses at or within 300 feet of a TAP building. As with Davis, the decline in enforcement does not obviate the need for NYPD to meet its constitutional obligations for the stops, arrests and summonses it does make at TAP buildings. NYPD officers must follow the agreed-upon standards for investigative encounters and trespass enforcement activities in and around TAP buildings.
Compliance with these requirements will be achieved when: 1. Stops made by NYPD officers at TAP locations comply with NYPD’s policies and with federal and state standards. 2. Stop reports that do not articulate reasonable suspicion for the stop or the frisk, or do not articulate the basis for the search, are identified as deficient by supervisors, who then take appropriate action to deal with what they found. 3. Stop reports that do not articulate reasonable suspicion are identified by QAD, and corrective action is taken with respect to the relevant officers and supervisors. 4. NYPD officers follow the agreed-upon standards for investigative encounters and trespass enforcement activities in and around TAP buildings.
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The Ligon Monitoring Workplan, a draft of which was included as an appendix to the Monitor’s Ninth Report, describes each requirement in the Ligon settlement and the data and

analyses needed to assess compliance. The Ligon Monitoring Workplan has not yet been finalized.

The monitor team reviewed a sample of BWC videos tagged as “Interior Patrol–TAP.” In

2018, there were 1,126 videos uploaded to the BWC data management system using the tag “Interior Patrol–TAP.” A sample of 160 of these videos was selected from that population for review.5

In just 26 of these videos (16.25%), the recording officer had significant public contact with a person during the Interior Patrol.6 There were 46 persons encountered in these 26 interior patrols. In 134 of the 160 Interior Patrols sampled (83.8%), there were no significant public

encounters. The charts below identify the race and gender of the persons encountered, where the

person was first encountered, and the monitor team’s assessment of the level of the first encounter.

Chart 2. TAP BWC Videos

GENDER

Frequency

MALE 32

FEMALE 14

Total

46

Percent 69.6 30.4 100

5 Using a confidence level of 95%, a sample of 160 from a population of 1,126 results in a 7.18% confidence interval. 6 Significant public contact is defined as any encounter between the officer and a member of the public that lasts longer than 30 seconds. Routine interactions with staff members of the building, other officers, or persons in their official capacity (FDNY, EMS, Postal Service, etc.) were not considered.
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RACE

WHITE BLACK HISPANIC Total

Frequency 4 24 18 46

Percent 8.7 52.2 39.1 100

FIRST ENCOUNTERED

Frequency

STAIRWAY

14

HALLWAY

7

LOBBY

4

ROOF LANDING 15

ROOF

1

INSIDE APT

3

STREET

2

Total

46

Percent 30.4 15.2 8.7 32.6 2.2 6.5 4.3 100

LEVEL AT FIRST ENCOUNTER

Frequency Percent

1

18

39.1

2

1

2.2

3

2

4.3

4

25

54.3

Total 46

100

The monitor team’s review of the TAP BWC videos determined that the officers’ actions appeared to meet the Terry and DeBour standards and Department policies in 24 of the 26 interactions (92%), involving 42 of the 46 persons (91%) encountered. In one BWC video, the sergeant was observed asking two people in the lobby of the building if they lived in the building without any basis for the approach. Both persons were arrested for trespass. In a second video,
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the officer encountered two people in the stairway of the building, who then ran when they saw the officer. The officer then called out for the individuals to stop. Although the officer did have an objective credible reason to approach the persons, at Level 1, they were free to leave and even run from the officer, so the officer’s command for them to stop was not lawful. Both individuals were released after an investigation determined they lived in the building.
The monitor team also requested the TCFS and the OLBS for 47 randomly selected trespass arrests occurring within 300 feet from a TAP location. It was determined, however, that most of the arrests were at buildings not part of the TAP program at the time of the arrest; several of the arrests were at NYCHA buildings located next to buildings in TAP. The NYPD provided documents for three trespass arrests made at TAP locations. In two of the three cases, the NYPD provided a TCFS, and both articulated an objective credible reason for the approach.
The monitor team also reviewed 30 trespass arrests at TAP locations audited by QAD. Of the 30 arrests, a TCFS was prepared for 28 of the 30 arrests. The monitor team determined that the TCFS articulated an objective credible reason to approach in 25 of the 28 (89%) trespass arrests. For each of the trespass arrests, the arrest documents articulated probable cause for the arrest.
2. TAP Administration To assess the NYPD’s compliance with NYPD Administrative Guide 303-27, Trespass Affidavit Program (the revised TAP guidelines), each quarter the monitor will review the TAP enrollment and renewal forms and supporting documents for a different NYPD Patrol Borough. Compliance with the TAP administrative requirements will be achieved when: 1. Crime Prevention Officers (CPOs) obtain appropriate Trespass Crimes—Owner’s Affidavit and complete TAP enrollment forms for buildings entering the program.
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2. CPOs review and evaluate whether to renew a building’s participation in the program before the expiration of six months.
3. Commanding Officers review and evaluate whether to renew a building's participation in the program before the expiration of one year.
4. Borough Commanders are notified if there is a need for a building to remain in TAP beyond one year, and will recommend approval to the Office of the Chief of Patrol if they determine that the building should remain in the program. The Office of the Chief of Patrol will issue the final approval for renewal.
The monitor reviewed the TAP enrollment and renewal forms for Patrol Borough Brooklyn North for the renewal period ending September 2018 and for Patrol Borough Queens South for the renewal periods ending December 2018 and June 2019. The monitor team also conducted a focus group with crime prevention officers (CPOs) in May 2019.
The CPOs described their efforts to administer the TAP program. If a building owner or manager asks to be in the program, the CPOs evaluate whether the building should be enrolled in the program. For example, the CPOs will check to see if there are calls for service at the building concerning the problem(s) stated and will confer with the precinct’s field investigation officer (FIO) and neighborhood community officers (NCOs). The types of problems that are considered for inclusion in TAP include drug use in stairwells, unauthorized people in building/stairwells and quality of life offenses.7 If there are no records, the CPOs stated that they go to the building and speak with residents to verify the owner’s complaint. Before the Department revised its TAP procedures in 2017, building owners felt they had a right to be enrolled in TAP and renewals were
7 Quality of life offenses would include drinking, gambling, graffiti, loitering and noise, as well as other violations deemed a nuisance by the building owner or manager and the NYPD.
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pro forma. Building owners also viewed the NYPD as their private security force. Now, buildings are vetted to determine eligibility for enrollment. To remain in TAP, building owners and managers must attempt to implement security measures, if recommended by the CPO. If owners do not make good faith efforts to implement the recommended improvements, their buildings are unlikely to remain in TAP upon renewal.
As noted above, the monitor team requested from the NYPD and then reviewed the TAP enrollment and renewal forms and the owner’s affidavits for two patrol boroughs to assess whether the Department was complying with the new TAP administrative procedures guide. The documents thus far provided by the NYPD from Patrol Boroughs Brooklyn North and Queens South were not sufficient for the monitor to conclude that there had been compliance with TAP procedures. For Brooklyn North, TAP enrollment/renewal forms were provided for only two precincts. Consistent with TAP procedures, each form was prepared by the CPO and approved by the precinct commander. However, the Trespass Crimes—Owner’s Affidavits for the buildings in these precincts were not provided. In four precincts, the Trespass Crimes—Owner’s Affidavit for each building was provided, but the TAP enrollment/renewal forms were not.8
For Patrol Borough Queens South (PBQS), the NYPD provided TAP Renewal Forms for the renewal periods ending December 2018 and June 2019, Trespass Crimes—Owner’s Affidavits, eight arrest reports and/or arrest-related documents, and data relating to criminal trespass arrests and criminal court summonses in PBQS for 2018. The 101 Precinct is the sole command in PBQS with buildings enrolled in TAP during the renewal periods ending December 2018 and June 2019. TAP enrollment declined from 22 buildings in the first quarter 2018 to eight buildings in the second quarter of 2019. Four TAP renewal forms were submitted for the eight buildings in both the fourth
8 There were no TAP buildings in the 75, 84, 90 and 94 Precincts in the third quarter 2018. 28

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quarter 2018 and the second quarter 2019. The 2018 renewal forms were approved by both the CPO and the precinct commander; the 2019 forms were approved by the CPO, but were not signed or dated by the precinct commander. It is unclear from the documents provided by the NYPD whether any of the eight buildings, each of which has been enrolled in TAP for more than one year, required approval from the office of the Chief of Patrol.
Based on the monitor’s review of the documents provided for these two patrol boroughs, it appears that in some situations, the precincts have not documented the steps required by the TAP Administrative Guide. In other situations, the steps may have been taken, but the NYPD did not provide sufficient documentation to the monitor team. In only a few buildings were the correct enrollment forms completed, showing that the CPO made the appropriate assessments of the building and the commanding officer approved of the building’s enrollment or renewal. Without enrollment/renewal forms, Trespass Crimes—Owner’s Affidavits and documentation supporting enrollment or renewal for each building, it is not possible for the monitor to make a determination concerning the NYPD’s compliance with its TAP procedures.
F. Trespass Crimes Fact Sheet (TCFS) The settlements in Davis and Ligon require officers making trespass arrests in NYCHA and TAP buildings to document the arrests on a new form—the TCFS.
1. Guidance for Compliance—TCFS Compliance with this requirement will be achieved when:
1. NYPD officers complete a TCFS form (PD 351-144) prior to arraignment any time they effect an arrest for trespass in or around a NYCHA residence or TAP location.
2. The TCFS articulates a proper basis for the approach and probable cause for the trespass arrest.
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The monitor team reviewed a sample of trespass arrest reports and TCFSs for 2018 trespass arrests at TAP and NYCHA locations. The monitor team’s assessment of compliance with the TCFS requirements is described above in Sections III.D and III.E, above. IV. SUPERVISION
From the beginning of this monitorship, the monitor has recognized that significant change in the NYPD depends on first-line supervisors. Sergeants on the street must embrace the changes and be responsible for the officers in their charge. Sergeants and lieutenants must oversee, mentor and educate their officers, and precinct and unit commanders must set the right direction and tone. If supervisors do not take an active role in supervision, oversight, teaching and, when appropriate, discipline, the reforms necessary to achieve compliance will not take hold. Supervisors must ensure that the stops, frisks and trespass arrests made by their officers are legal and proper and that these activities are properly documented.
NYPD policies set out supervisors’ responsibilities. Patrol Guide 212-11 requires documentation of all stops and establishes the responsibilities of supervising officers up the chain of command. Supervisors are required to respond to the scene of stops when feasible, discuss the circumstances of the stop with the officer making the stop before the end of the officer’s tour, and review the officer’s stop report form and activity log. If a stop report is inaccurate or incomplete, the supervisor must direct the officer to make the necessary corrections. If the supervisor determines that the officer did not have reasonable suspicion for the stop, reasonable suspicion for the frisk or an appropriate basis for the search, the supervisor must document that and specify an appropriate follow-up: instruction, additional training or, when warranted, discipline. These supervisory responsibilities have been emphasized in the Department’s training, but putting in place the right policies and training is not the same as having those policies and that training applied in practice.
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1. Guidance for Compliance—Supervision

Compliance with this provision will be achieved when:

1. Supervisors review stops for constitutionality in a comprehensive manner and take

appropriate corrective action when they identify improper stops, frisks or searches.

2. Supervisors who observe or learn of officers who make a stop but do not document

the stop with a stop report take appropriate corrective action.

3. ICOs complete self-inspections of stop reports and review the reports for

constitutionality.

The monitor team has examined a sample of stop reports audited by QAD, as well as ICO

self-inspections and QAD’s audit of supervisory review. The monitor team also assesses NYPD’s

efforts through RISKS Reviews and follow-up training conducted for supervisors who do not

identify deficient stop reports or trespass arrests.

To date, there are still very few instances in which supervisors are noting on stop reports

an insufficient basis for the stop, frisk or search and identifying corrective action. Chart 3 below

shows that supervisors: identified an insufficient basis for the stop in 58 of 11,239 stop reports;

identified an insufficient basis for a frisk in 65 of 6,659 stops in which a frisk was conducted; and

identified an insufficient basis for a search in 45 of 3,742 stops in which a search was conducted.

Chart 3. Supervisory Actions on Stop Reports

# Stop Reports
Full Year 11,239 2018

# Reviewing Supervisor Determined No RS for Stop 58

# Stop Reports with Frisks
6,659

# Reviewing Supervisor Determined No RS for Frisk 65

# Stop Reports with Searches
3,742

# Reviewing Supervisor Determined Search Not Justified 45

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Chart 4 below shows the following for each quarter of 2018: the number of stop reports

that QAD audited; the number of stop reports in those audits that QAD determined did not

articulate reasonable suspicion (RS) for the stop; and the number of those same stop reports that

the reviewing supervisor determined did not articulate reasonable suspicion for the stop. The chart

also compares the number of stop reports that QAD determined did not articulate reasonable

suspicion for the frisk, if conducted, with the number of reports for which the supervisors found

no reasonable suspicion for the frisk, and a similar comparison of QAD’s and the supervisors’

determinations regarding the number of stop reports that did not articulate a basis for the search,

if conducted.

Chart 4. Supervisory Actions on Stop Reports Compared to QAD Assessments

Quarter
1Q2108 2Q2018

# Stop Report s Audite d by QAD
1,838
1,850

# QAD Determine d No RS for Stop

# Reviewing Supervisor Determined No RS for Stop

# QAD Determined No RS for Frisk

#

# QAD

Reviewing Determine

Supervisor d Search

Determined Not

No RS for Justified

Frisk

# Reviewing Supervisor Determined Search Not Justified

423

8

102

4

29

0

326

10

87

4

60

3

3Q2018 1,503 236

20

84

4

15

4

Although very few supervisors identified deficiencies on the completed stop reports, the NYPD has noted that supervisors sent a significant number of stop reports back to the officers for corrections before they signed off on the reports. According to the NYPD, supervisors corrected 28 percent of the stop reports completed in 2018. The NYPD has not reported how many of those corrections related to the officers’ articulation of reasonable suspicion for the stop or frisk or basis for the search, or instead were corrections for other reasons (e.g., typos or failure to complete other

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unrelated fields in the report). The monitor team will be reviewing supervisors’ corrections to stop reports to assess whether supervisors are taking additional appropriate actions on stop reports.
Another way the monitor assesses supervision is to examine the self-inspections of stop reports conducted by the command’s ICO. Each month, the ICO of each command must examine the most recent 25 stop reports filed by officers in the command and review whether the stop and any frisk or search, if conducted, were proper, and whether the supervisor who approved the stop report properly assessed the legality of the stop. The self-inspection is then signed off by the command’s executive officer or commanding officer. When QAD conducts its audits of each command, it also examines the command’s self-inspections. If a stop report is reviewed by both the ICO in a self-inspection and QAD in its audit, QAD reviews whether the ICO’s findings are consistent with its auditors’ findings. Inconsistencies between the self-inspections and QAD’s audits are identified in the command’s RISKS Review profile. If the ICO determined that the stop or frisk narrative in the stop report was sufficient, but QAD determined that the stop report did not articulate reasonable suspicion, the ICO’s self-inspection is discussed at the RISKS Review meeting. Chart 5 below show the results of QAD’s assessments of the ICO self-inspections for 2018. Chart 5. QAD Audit v. Command Self-Inspections of 2018 Stop Reports

Quarter

# Stop Reports Audited by QAD

# Stop Reports Audited by QAD in Command SelfInspection

% Stop Reports Audited by QAD in Command SelfInspection

# QAD/Cmd Consistent

% QAD/Cmd Consistent

1Q2018 2Q2018 3Q2018 4Q2018
Total

1,838 1,850 1,809 1,696 7,193

1,396 1,386 1,181 865 4,828

76%

858

62%

75%

896

65%

65%

756

64%

51%

585

68%

67%

3,095

64%

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The Department has created a protocol to give supplemental training to supervisors who

repeatedly approve deficient stop reports. Supervisors who have approved multiple stop reports

that QAD determined to be deficient are scheduled to take the in-service investigative encounters

training if they have not already attended that training. Those who have already received the

training are sent to a smaller refresher class. Supervisors who have approved more than three

deficient stop reports have their stop reports and other paperwork reviewed by attorneys in RMB.

They also receive one-on-one training from an attorney in RMB aimed at the specific deficiencies

that have been identified. The chart below lists the number of supervisors who have been retrained

based on their approval of deficient stop reports.

Chart 6. Supervisor Retraining

1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

2 Deficient Stop Reports Approved by Supervisor; Supervisor Retrained 28 5 * * *

3 or More Deficient Stop Reports Approved; Supervisor Retrained 9 3 12 3 12

* In the first six months of 2018, RMB sent supervisors for retraining who approved two deficient stop reports, but sent supervisors who approved three deficient stop reports for retraining after that, leaving it to the command to take corrective action for those who approved one or two deficient reports.

In addition to retraining, a number of commands have issued CRAFT reports for supervisors who approve deficient stop reports.9 In the fourth quarter of 2018, 91 supervisors were

given a “Needs Improvement” CRAFT report for approving a deficient stop report.

9 CRAFT stands for Cop’s Rapid Assessment Feedback Tool. Supervisors can issue a Supervisory Comment Form in the CRAFT system for an officer’s positive actions or negative actions (Needs Improvement). The CRAFT “Needs Improvement” report is now used by NYPD instead of the Minor Violations Log, which was a logbook kept at the command but was not tracked Departmentwide.
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The Department’s RISKS Reviews are also a way for the Department leadership to emphasize the importance of supervision to achieve compliance. The monitor team has attended RISKS Reviews for all of the patrol precincts. During these meetings, Department leadership looks to the commanding officer to describe the proactive steps the command is taking to address compliance problems. The command profile provided to the command for RISKS Review meetings highlights compliance (or lack thereof) with respect to stop encounters and stop documentation and with BWC procedures. One particular area examined is whether the results of the command’s self-inspections of stop reports, generally performed by the ICO, are consistent with QAD’s audits of stop reports. Another focus of these meetings is the review by supervisors of officers’ BWC video, with the Department stressing that the reviews are not just a box checked, but an opportunity to identify positive conduct, negative conduct and training opportunities. Each command will be called back for a review roughly six months after the first review, and they are told that the Department expects to see improvement in any area in which it is needed.
The general philosophy behind the RISKS Reviews is that they are not “gotcha” meetings, but a collaborative approach to understanding barriers to full compliance. This is an appropriate strategy, but the process must create the right incentive for compliance. Expected performance must be reinforced and poor performance must be identified. Here, as elsewhere, there needs to be both positive reinforcement of expected performance and negative consequences for poor performance, so that sought-for behavior becomes habitual. The monitor has provided the NYPD with recommendations for potential ways to improve the RISKS Reviews. Additional information that could be included in a command profile and discussed at the RISKS Review meetings include:
 Stop reports identified by supervisors on the report as deficient, and any follow-up actions noted, along with stop reports determined by QAD to be deficient, but not identified by supervisors
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 Stop and frisk post-training exam scores from each command
 Discipline imposed for serious failures, such as failing to complete a stop report when one was required.
 Number of profiling complaints in the command
The monitor also recommended that RMB document any “homegrown” proactive efforts to
address compliance at the command level to share with the Department.
V. TRAINING The Department, plaintiffs’ counsel and the monitor team have worked diligently over the
five years of the monitorship to develop training materials required by the court orders and stop
and frisk and trespass enforcement policies. To date, the following training courses have been
approved by the court:
In-Service Stop and Frisk and Racial Profiling Training for Police Officers In-Service Stop and Frisk and Racial Profiling Training for Supervisors (Sergeants and
Lieutenants) Recruit Training—Policing Legally Recruit Training—Policing Impartially Recruit Training—Interior Patrol (NYCHA and TAP buildings) Recruit Training—Characteristics of Armed Suspects Training for Newly Promoted Supervisors Basic Plainclothes Training Investigating Racial Profiling and Biased Based Policing Complaints One-Day Housing Training for Housing Bureau officers
The court also approved the scripts for roll call training videos on investigative encounters and
interior patrols in NYCHA and TAP buildings after the Department developed court-approved
Patrol Guide sections on those topics. The current version of the approved training materials may
be found at http://nypdmonitor.org/training/.
Compliance with the training requirements will be achieved when:
1. NYPD training instructors provide training consistent with the court-approved
training materials.
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2. NYPD patrol officers and detectives are trained on the subjects of the courtapproved training.
3. NYPD supervisors are trained on the subjects of the court-approved training for reviewing officer stops and documentation of stops.
4. NYPD recruit officers are trained on the court-approved training.
The monitor’s assessment of substantial compliance with the court’s training requirements will also take into account whether officers are applying the training in the field, as reflected in their stop reports, trespass arrest documentation and an assessment of unreported stops.
A. In-Service Stop and Frisk and Racial Profiling Training 1. Content of the Stop and Frisk Training Materials
The training materials cover the fundamental principles of stop, question and frisk, trespass enforcement and bias-free policing. Opportunities for discussion about the role of race in investigative encounters are included in several places. The materials describe the difference between the constitutionally permissible use of race based on a specific, reliable suspect description and the constitutionally impermissible targeting of racially defined groups for stops. The materials also effectively convey the changes in NYPD procedures governing investigative encounters and interior patrols, as well as what is expected of officers and supervisors regarding the documentation and supervision of stops and trespass arrests. In sum, the training materials meet the requirements of the court orders.
At the beginning of the training, attendees see an important statement by the Police Commissioner that explains how the training grew out of the stop and frisk litigation, how the overuse and misuse of stop and frisk harmed both the Department and some of the communities it
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serves, that the responsibility for this misuse rests with the leadership of the Department, and that the Department now owes its members a comprehensive training course so they understand what, under the law and Department procedure, they can and cannot do. The video can be seen at http://nypdmonitor.org/resourcesreports/training.
An attorney from the Department’s RMB or from a local district attorney’s office and uniformed members of the service co-teach an interactive class on the law and procedures regarding investigative encounters. The NYPD has added additional material covering the new Right to Know Law. After this portion of the course, the class breaks for a meal.
For the supervisors’ course, the content of the post-meal session includes discussions of video footage from NYPD BWCs with a focus on sergeants’ and lieutenants’ role as supervisors, particularly with regard to how to supervise stops and how to discuss stop reports with their subordinates, and the need to ensure proper documentation of all stops. For the officers’ training, the post-meal session includes reviews of BWC footage involving investigative encounters, after which the instructors discuss both good and bad examples of stop reports for those encounters. The NYPD has added a section on procedural justice in the post-meal session for officers and supervisors and has also included BWC videos of self-initiated stops.
The court approved training materials for NYPD’s in-service training on Investigative Encounters for NYPD supervisors (sergeants and lieutenants) on December 5, 2017. After the training materials were revised to address Right to Know Law issues, the stop and frisk course for patrol officers was approved by the court on July 10, 2018.
2. Roll-out of Stop and Frisk Training The Department determined that supervisors would be trained first so the training could cover additional material on supervisory responsibilities. Training for supervisors began in December 2017. The Department began training its patrol officers in February 2018 to pilot
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proposed changes to the training materials. Training for officers continued after the training materials were revised to address Right to Know Law issues. The training is being held at the Tactical Village at Rodman’s Neck. To increase the effectiveness of the training, each class is limited to 30-35 officers or supervisors. The training is taught every weekday and is taught on both the day (7x3) and evening (3x11) tours.
According to the NYPD, as of September 5, 2019, 17,843 police officers and 592 detectives have gone through the training and 2,775 sergeants and 1,001 lieutenants have been through training. Still to be trained as of that date, according to the NYPD, were 4,222 police officers, 4,844 detectives, 1,719 sergeants and 709 lieutenants. The Department currently anticipates that all uniformed members of the service will have received this training by the summer of 2020.
3. Observations of Stop and Frisk Training Since January 2018, the monitor team has observed numerous classes of both supervisors and patrol officers. Plaintiffs’ counsel also have attended training classes on a quarterly basis. The monitor team and plaintiffs’ counsel have shared with the Department observations and views about the course materials, the way the materials have been presented and the course instructors. The monitor team observed SQF training in April, July and October 2019. The instructors observed by the monitor team were knowledgeable and followed the approved materials. Although they varied in style and in their ability to engage the officers, the instructors were quite good. One area in the morning sessions was not covered sufficiently. The material about NYCHA and TAP interior patrols was covered in approximately five minutes. Although, as noted by one of the instructors, a full day of instruction will be given to the Housing Bureau and precinct personnel who patrol public housing in their commands, this section should be discussed more
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thoroughly, as patrol officers policing TAP buildings will not be getting the Housing Bureau training.
The afternoon session included viewing and discussion of video footage and completed stop reports. The classes went through the strengths and weakness of stop reports completed in class, as well as common errors and mistakes in stop reports. There was also a new emphasis from previously observed sessions on the four elements of procedural justice: Voice (actively listening); Neutrality (ensuring fairness); Respect (treating people with dignity); and Trustworthiness (being transparent).
B. Recruit Training Recruit training was a particular focus of attention for the parties and monitor at the beginning of the remedial effort, as there was a recruit class that started in January 2015, shortly after the start of this monitorship. The monitor, the NYPD and the plaintiffs recognized that the new class of recruits could not be trained using materials that the court and the NYPD had found inadequate. The parties worked to develop new student guides, lesson plans, PowerPoint presentations and scenarios for several subjects. Training materials for Police Academy recruit classes on stop and frisk, racial profiling and interior patrols for TAP and NYCHA buildings were rewritten and approved by the court in April 2015. The materials for these courses have been revised as new NYPD policies were approved (e.g., P.G. 212-11, Investigative Encounters). The course on investigative encounters (Policing Legally) was also updated to reflect the electronic stop report form. The course on interior patrols of TAP and NYCHA buildings was updated to reflect the new procedures governing those topics, P.G. 212-59 and P.G. 212-60.
1. Recruit Training on Stop, Question and Frisk A recruit training class entitled “Policing Legally—Street Encounters” covers the legal standards governing when an officer may stop, question and frisk a person. The training
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emphasizes that the legal authority for a stop does not automatically provide the authority for a frisk. To frisk a person, the officer must have reasonable suspicion that the person stopped is armed and presently dangerous. The training materials stress that an encounter between a civilian and an officer is a “stop” when a reasonable person would not feel free to disregard the officer and walk away. Such an encounter requires the officer to have reasonable suspicion that the person was engaged in or is about to be engaged in criminal conduct. The course covers Terry v. Ohio and the four levels of DeBour encounters.
In 2018, the parties agreed on additional changes to the Policing Legally recruit materials. The primary purpose of these changes was to ensure consistency with the in-service investigative encounters training being taught at Rodman’s Neck to incumbent officers. One significant change was the addition of BWC videos as a tool to review each level of investigative encounter. Information regarding the requirements of the Right to Know Law was also added to this curriculum. The revised Policing Legally training materials were approved by the court on August 14, 2018.
The Monitor team observed Policing Legally classes early in the monitorship, and returned to the Police Academy to observe these classes in the summer of 2018 and the summer of 2019. Team members found the instruction to be consistent with the court-ordered materials and well presented, with significant recruit engagement.
2. Recruit Training—Policing Impartially The remedial order requires new training on the NYPD’s prohibition of racial profiling. Under that policy, officers may not use race as a motivating factor, even in part, for law enforcement action, unless the action is based on a reliable and specific suspect description. A general suspect description, such as “young, black male,” is not sufficient; in addition, the fact that a particular group may appear more frequently in local crime statistics is not enough information
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for there to be reasonable suspicion for a stop. The class material includes information regarding bias and police history and how knowledge of this history can help officers be more effective.
Monitor team members observed this class in 2018 and in July and October 2019. Plaintiffs’ counsel also observed two sessions. The course was presented well and followed the general course guide and approved material. The instructor for the April 2019 class opened the course describing how everyone has biases, and how the way in which officers approach individuals may be a reflection of those biases. He noted that officers must make an effort to be aware of and control their biases, and that biases are more likely in situations when officers have discretion to take law enforcement action. The instructor also reinforced the difference between criminal profiling and racial profiling several times. The instructor for the October class followed the instructor materials, but did not elaborate on the materials and engage the recruits, although there was opportunity to do so.
Monitor team members have noted that discussions of bias-based policing, profiling and community respect have been interspersed in several of the recruit training courses and the associated scenario-based training, beyond Policing Impartially. Incorporating these themes consistently throughout the training modules will support the building of a Department culture.
3. Recruit Training—Interior Patrol In 2015, the NYPD combined recruit training materials regarding patrols at TAP buildings with the training materials approved by the court in Davis governing housing patrols in and around NYCHA buildings. The training materials were approved by the monitor and meet the requirements of the court orders. The training instructs recruits that mere presence near, entry into or exit from a TAP or NYCHA building is not an “objective credible reason” to approach a person to request information. The training also includes hypothetical scenarios for both TAP and
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NYCHA buildings. Monitor team members have observed these classes and have found the instruction to be consistent with the approved materials.
4. Recruit Training—Recognizing the Characteristics of Armed Suspects
One recruit training segment identified in the Floyd liability and remedies decisions as needing revision was a training module conducted by the Firearms Training Section on the characteristics of armed suspects.10 This training teaches recruits about factors that should raise their awareness when they attempt to determine whether or not an individual they encounter is armed. A revised version of this training was approved by the court in February 2017.
Monitor team members and plaintiffs’ counsel observed this training in July 2019. The class was taught by a 27-year veteran of the NYPD who has taught similar material for more than 10 years. The instruction followed the court-approved lesson plan and covered all of the learning objectives. The instructor went to great lengths to emphasize that this was not a stand-alone lesson and that this training must be considered in the context of all other lessons/training received (e.g., investigative encounters training). He noted that none of the characteristics singularly was sufficient to show reasonable suspicion that a person was carrying a firearm.
C. Training for Newly Promoted Supervisors Training materials for newly promoted sergeants and lieutenants were approved by the court on March 27, 2018. A principal focus of this training is the expanded responsibilities of supervisors, particularly sergeants, under the new Patrol Guide procedure for investigative encounters and specifically with regard to the stop report. The format of the training has been changed to encourage class participation and add BWC video, and is similar to the in-service
10 Floyd v. City of New York, 959 F. Supp. 2d 540, 614 (S.D.N.Y. 2013) (liability decision); see Floyd v. City of New York, 959 F. Supp. 2d 668, 680 (S.D.N.Y. 2013) (remedies opinion).
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training described above for incumbent sergeants and lieutenants. The monitor team has not observed this training since 2017, and will plan to observe and report on the training in the next report.
D. Basic Plainclothes Course The NYPD conducts a three-day training course for officers who will be starting as plainclothes officers, including officers who will be joining a precinct-based anti-crime or conditions unit, or any other unit that works in plainclothes. It is important to ensure that these officers get training on stop and frisk policies, because their work often involves actively seeking to detect and apprehend suspects and because they are making a significant proportion of the NYPD’s reported stops. On August 14, 2018, the court approved revised training materials for a module on investigative encounters that is part of a three-day course given to plainclothes officers. The revisions were done to make sure the materials were consistent with the in-service investigative encounters training. In addition, BWC videos involving plainclothes officers were added to the training to demonstrate some of the main teaching points. The monitor team plans to observe upcoming plainclothes training and report in a future report. E. Housing One-Day Training On May 29, 2019, the court approved materials for a one-day training that will be given to all Housing officers. The Davis settlement requires that the Department provide in-service training so that officers who conduct interior patrols in NYCHA buildings are familiar with the posted rules and regulations in those buildings and have guidance on how to maintain the proper balance between enforcing the law and respecting the rights of residents and their guests. After a long period of negotiations, the parties came to a consensus on language that carefully strikes this balance. The training encourages officers to use their discretion when appropriate. The NYPD
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began this training in October 2019. The monitor team and plaintiffs’ counsel observed this training in November 2019.
F. Training for Investigating Profiling and Biased-Based Policing Complaints Training for Internal Affairs Bureau (IAB) investigators and investigators from patrol borough investigative units regarding investigations of profiling allegations (Internal Investigators Course, Module Number 04, Profiling and Bias-Based Policing) was approved by the court in January 2019. The training module is designed to provide investigators with the fundamental skills to process and investigate complaints regarding the NYPD’s policy prohibiting racial profiling and bias-based policing. Upon completion of the module, class participants should understand the NYPD’s policy, the procedures for investigating racial profiling and bias-based policing allegations, and strategies for investigating those allegations. The standards for when investigators can substantiate or find a profiling allegation unfounded, even in the absence of corroborating physical or documentary evidence, are explained. The monitor team observed this training in July 2019. The instructors used the courtapproved PowerPoint slides and lesson plan, were familiar with the material and did a good job covering it, including the learning objectives stated at the beginning of the presentation. The instructors emphasized Department policy prohibiting officers from targeting members of a racial or ethnic group for police action because they appear more frequently in local crime suspect data. Although this was not part of the written training materials, the instructors addressed a number of additional issues on racial profiling investigations:  The officers should not close out a case as unfounded because the complainant was found guilty of the underlying criminal case.  The fact that the subject officer and the complainant are of the same race does not mean that there is no racial profiling; that cannot be a reason for closing the case as unfounded.
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 If the investigator has not been able to contact the complainant, the investigator should check to see if the complainant might be incarcerated. The instructors discussed investigative steps that should be taken when investigating racial
profiling allegations: contact the complainant; permit the complainant to tell the full story without interruption and ask follow-up questions after; and don’t close a case simply because the complainant is uncooperative. Investigators were encouraged to look for trends such as similar allegations against the subject officer, and to compare the officer’s activity to those of peers on similar tours. It was also suggested that investigators check the officer’s Civilian Complaint Review Board (CCRB) history for “racial slurs” or other offensive language allegations. However, there was limited description of what would constitute a pattern and how investigators should identify trends. This training was not a “how to” course for investigating racial profiling investigations; rather, the NYPD states that borough investigators receive detailed instructions on investigations in other IAB courses. The monitor recommends that the training be conducted in a more interactive manner, perhaps by reviewing prior investigations or including scenarios of good and poor interviews of complainants and subject officers.
G. Field Training Officer (FTO) Guide and Training The training for FTOs has been revised to reflect changes to the in-service investigative encounters training. In addition, BWC videos have been added to the training and the PowerPoint presentation has been made more engaging. H. Training on Fair and Impartial Policing Training The court’s Remedial Order noted that it may be appropriate for the Department to conduct training “on the effect of unconscious racial bias.” Early in the monitorship, the Department committed itself to developing training on implicit bias and procedural justice. “Implicit bias” is the concept that people make automatic, unconscious associations between groups of people and
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stereotypes about those groups, and arise from the particular environment (neighborhood, family, friends, media, etc.) in which they grew up, live and work. “Procedural justice” is a phrase used to describe the necessity of treating civilians with respect, listening to them and explaining the officer’s actions.
In 2017, the NYPD contracted with an outside vendor, Fair and Impartial Policing, LLC (FIP), http://www.fairimpartialpolicing.com/, to create the training materials and teach the course. Specific sessions of the training are tailored to particular audiences depending on whether they are senior executives, mid-level managers, supervisors or police officers. The training includes discussion of the history of New York City and the NYPD, and how that history relates to legitimacy and procedural justice both within the Department and in the communities being policed. The point of the training is to make officers more aware of biases so that those biases do not interfere with the officers’ law enforcement functions.
Professor Jennifer Eberhardt, a member of the monitor team and one of the leading experts in the country on implicit bias in the law enforcement context, reviewed the training materials and provided feedback and suggestions for edits to the NYPD and FIP, as did plaintiffs’ counsel and one of the plaintiffs’ experts, Professor Jack Glaser. Based on that input, some parts of the training materials were revised. FIP instructors presented the training to the monitor team and plaintiffs’ counsel, who provided feedback. In September 2019, the plaintiffs reviewed the revised FIP training materials and discussed their views with the CEO of FIP.
In February 2018, the Department began the FIP training for all 36,000 uniformed members of the service, including those at the highest levels of the Department (e.g., the Commissioner, the First Deputy Commissioner, and all the commanding officers of the precincts and other
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commands). The NYPD also conducted train-the-trainer sessions for instructors at the Police

Academy, who began presenting the training for recruit officers in August 2018.

Although the court did not require training on implicit bias or procedural justice, the

monitor believes that this training could contribute to the Department’s efforts to reach substantial

compliance. As of September 20, 2019, 30,611 members of the service have gone through the FIP

training.

1st Chief

Asst. Deputy

PC

of D.C Chief

Insp. DI Capt. Lt. Sgt. P.O.

Dep.

Chief Chief

Staff

1 1

1 14 14 15

45

89 163 340 1,821 4,454 20,086

Although implicit bias training for police officers, and the FIP training in particular, has been conducted throughout the country, what is less clear is what impact this training has on officers’ attitudes and behavior. There have not yet been any systematic scientific evaluations of the training. The NYPD is working with the IACP-University of Cincinnati Center on Police Research and Policy and with the Finn Institute for Public Safety at SUNY Albany to evaluate NYPD’s implicit bias training of patrol officers. The evaluation is designed to determine the effectiveness of the training in raising officers’ awareness of and knowledge about unconscious bias and providing officers the skills to manage their own unconscious biases.
I. Refresher Training Course for Investigative Encounters The NYPD and the parties recognize that the one-time training on stop and frisk at Rodman’s Neck or at the Police Academy will not be sufficient to instruct and prepare recruits and officers to properly conduct stops and frisks and supervisors to review stops and frisks. The NYPD has taken several steps beyond the Rodman’s Neck training, including: delivery of refresher training at precinct roll calls upon requests of training sergeants; placement of the investigative

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encounters lesson plan on the RMB website; creation, distribution and posting of an investigative encounters summary chart; and delivery of refresher training at RISKS roll-out meetings.
In addition, the NYPD has committed to developing “booster” or refresher training for officers and supervisors, including officers who recently graduated from the Police Academy. The supervisors’ “booster” training will include additional material regarding review of stop reports and the responsibilities of supervisors. This training will likely be in the form of an online course, and will include a post-training quiz. The training materials for this course will be reviewed by the parties and the monitor and submitted for court review.
Compliance with the requirements for refresher training will be achieved when: 1. NYPD provides training consistent with court-approved training materials. 2. NYPD incumbent and probationary officers have taken a refresher course on investigative encounters. 3. NYPD supervisors have taken a refresher course on investigative encounters and supervisory responsibilities for review of stop reports and documentation. VI. BODY-WORN CAMERAS A. Precinct-Level BWC Pilot As part of the Remedial Order, the court directed the monitor to oversee a pilot of the use of BWCs by NYPD officers. The goal of the pilot program is to assess the costs and benefits of deploying cameras and whether deployment would result in reducing unconstitutional stops and frisks. The NYPD launched the BWC pilot program in April 2017; by November 2017, there were approximately 1,200 officers in 20 pilot precincts wearing cameras for a one-year period. In a randomized control trial, those 20 precincts were matched with 20 precincts in which officers were not wearing cameras. The last of the 20 pilot precincts completed the one-year study period in
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November 2018. The monitor team is currently working with the NYPD to obtain the data necessary to complete the analysis of the study and prepare a report on the pilot. The study will examine outcome measures relating to the civility of police-civilian encounters, police activity and police lawfulness.
1. Supervisory Review of BWC Videos As part of the BWC pilot, the court directed the monitor to “establish procedures for the review of stop recording by supervisors and, as appropriate, more senior managers.” In 2017, the NYPD developed a self-inspection protocol for the review of BWC videos by sergeants in the commands with BWCs. Sergeants must review five BWC videos each month. After reviewing these videos, sergeants must complete a BWC self-inspection worksheet for each video; the sergeant’s platoon commanders or lieutenant must then review two of the videos and complete the self-inspection worksheet; and the command’s executive officer must review and approve the BWC self-inspection worksheet. In addition to the self-inspection, the NYPD’s BWC patrol guide, P.G. 212-123, directs the patrol supervisor, training sergeant and ICO to “[p]eriodically review BWC video as appropriate, to provide positive feedback and address any performance or tactical deficiencies observed.” The monitor approved the Department’s protocols for supervisory review of BWC videos in August 2017. The monitor team will be reviewing a sample of BWC selfinspections for the next report.
2. Preserving BWC Videos for Investigation of Complaints The Remedial Order also directed the monitor to “establish procedures for the preservation of stop recordings for use in verifying complaints in a manner that protects the privacy of those stopped.” When the BWC pilot was launched, the NYPD did set out a procedure for sharing BWC video with the CCRB. The BWC patrol guide, P.G. 212-123, states that “[t]he Internal Affairs Bureau will process requests from the Civilian Complaint Review Board for body-worn
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camera video as per P.G. 211-14,” but it does not provide any protocol for how those videos would be shared or any timeframe for when they would be shared. Initially, there was agreement between the NYPD and the CCRB that requested BWC videos would be provided within seven business days, but this was at a time when there were only 1,000 cameras in the pilot program.
The CCRB issued its Executive Director’s November 2019 Statistical Report, with data through October 2019, about pending requests for BWC footage. According to the CCRB, there were 574 requests for BWC footage pending in November 2019, with half of the video requests pending for more than 30 days and 28 percent of the requests pending for more than 60 days. The monitor worked with the NYPD, Law Department and CCRB to determine the extent of delays and their causes, and develop a procedure for prompt access to BWC footage by the CCRB. On November 21, 2019, the NYPD and CCRB entered into a Memorandum of Understanding (MOU) to expedite production and sharing of BWC footage. The MOU is attached as Appendix 3.
B. PSA BWC Pilot Officers in NYPD’s Housing Bureau patrolling NYCHA public housing developments in Public Housing Police Service Areas (PSAs) were not included in the BWC randomized control trial. PSAs overlap with the 40 precincts in the randomized control trial, and if a PSA were selected to have cameras, the randomized control trial could include areas that also might have been selected as part of a control precinct without cameras. Professor Anthony Braga and other members of the monitor team have developed a separate research and evaluation plan for the use of cameras by Housing Bureau officers working in PSAs. The Monitor’s Eighth Report describes the monitor’s research plan for evaluating BWCs for Housing Bureau officers. NYPD Housing Bureau officers in the nine PSAs were equipped with BWCs over the course of nearly 11 months, starting with PSA 8 in February 2018 and ending
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with PSA 9 in December 2018. The study will compare officer data for the 36 months before officers were equipped with BWCs to 12 months after they were equipped with BWCs.
C. Citywide Expansion of BWCs Equipping officers with body cameras continues to be a priority for the Department. In February 2019, the NYPD completed its roll-out of BWCs to all uniformed officers performing patrol functions in Patrol Services Bureau, Housing and Transit. There are now approximately 20,000 BWCs in use by those officers. In March 2019, the NYPD began equipping with BWCs approximately 4,000 members of the service assigned to specialized units such as the Emergency Services Unit, the Strategic Response Group and Critical Response Command. The roll-out to specialty units was completed in July 2019.11 NYPD continues to expand the BWC program, and will cover executives in Patrol Services, Housing and Transit commands. Lieutenants have been issued BWCs, and two-thirds of other executives (Captains through Inspectors) have also been issued BWCs. The quantity of BWC footage being captured continues to grow exponentially. As of December 1, 2019, more than seven million videos have been recorded. As noted above, BWC videos are being added to trainings to demonstrate real-world conditions and scenarios. BWC footage is being used by precinct-level supervisors as a tool to improve their ability to supervise members of the service and has also become part of the Department’s auditing efforts. D. Guidance for Compliance—Body-Worn Cameras Compliance with the BWC provisions will be achieved when: 1. The NYPD provides the monitor with all the data necessary to complete the BWC analysis and report.
11 https://www1.nyc.gov/site/nypd/about/about-nypd/equipment-tech/body-worn-cameras.page. 52

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2. The NYPD implements supervisory reviews of BWCs consistent with the review protocols approved by the monitor.
3. The NYPD shares BWC videos with the CCRB consistent with procedures approved by the monitor. VII. AUDITING
The Quality Assurance Division (QAD) monitors compliance with Department policies and the law, including those relating to stop and frisk and trespass enforcement. QAD also periodically requires commands to submit self-inspections in order to monitor their compliance. The audit procedures address whether the appropriate paperwork was prepared (e.g., was a stop report completed), whether Department reports were prepared properly, and the quality of the information contained in the Department reports (e.g., whether the stop met constitutional standards). QAD is currently conducting four types of audits relevant to the remedial measures: (1) audits of stop reports, activity logs and associated BWC videos; (2) RAND audits to identify undocumented stops; (3) audits of police-initiated enforcement (called PIE audits), also to identify undocumented stops; and (4) audits of trespass arrests and Trespass Crime Fact Sheets (TCFS).
A. Auditing of Stop Reports and Activity Logs 1. QAD Stop Report Audit Results
QAD uses two auditing methodologies, one for Patrol Bureau commands and another for other commands, including Housing PSAs and Transit Districts. Since the fourth quarter of 2018, QAD has adopted a new auditing methodology for all Patrol Bureau commands. Stop reports in these commands are now evaluated weekly. Stop reports in other commands, including PSAs and Transit Districts, continue to be evaluated quarterly. QAD provides a detailed assessment of each command’s performance in the most recent quarter as compared to prior quarters.
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Chart 7. QAD Stop Report Audits

Period
2017 2018 1Q19

Stop Reports Evaluated
7,526

Stop Narrative Articulates Reasonable Suspicion for Stop 5,448 (72%)

6,902 5,272 (76%)

1,741 1,410 (81%)

Frisks Evaluated
4,480 3764 838

Frisk Narrative Articulates Reasonable Suspicion for Frisk 3,920 (88%)
3,424 (91%)
797 (95%)

Searches Evaluated
2,458 2175 533

Search Narrative Articulates Legal Basis for Search
2,256 (92%)
2,055 (95%)
501 (94%)

Note that QAD reviews only frisks and searches from stops that are lawful. If QAD determines that the stop report did not articulate reasonable suspicion, the frisk and search, if conducted, are not reviewed by QAD in its audits and not included in the calculations, in Chart 7 above, of the percentage of frisks with reasonable suspicion and searches with a legal basis.
As noted in Section IV, Supervision, commanding officers oversee self-inspections in their commands. Concerning stop, question and frisk, the ICO in each command must identify and evaluate the last 25 stop reports and corresponding activity log entries. If there are fewer than 25 stop reports for the month reviewed, the ICO must evaluate all of them. The results of these selfinspections are reported up the chain of command in the precinct and the borough and then QAD reviews a subset of the results to assess whether the results of the command’s self-inspection of stop reports are different than the results of QAD’s audit of stop reports. Stop reports that QAD finds deficient but that the command’s self-inspection did not, are identified in the command’s RISKS profile and are raised at the command’s RISKS Review meeting.
2. Monitor Team Review of Stop Report Audits Starting with the audits from the fourth quarter of 2016, the monitor team has obtained QAD’s audits of a sample of commands, along with the audited stop reports from those commands. The goal is to evaluate the auditors’ work and also review a sufficient number of stops to be able to make meaningful statements about citywide compliance. The stop reports are evaluated by
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three members of the monitor team. When they disagree, the stop reports are reviewed by the monitor and deputy monitor. These disagreements are discussed in monitor team meetings, and then the results are sent to QAD, which meets with the monitor team to discuss those cases in which there is a disagreement between QAD’s and the monitor’s assessment.
Chart 8 below reports on the monitor’s assessment after all these steps. For each quarter, the chart shows the number of stop reports that the monitor team reviewed and, in the second column, the number and percentage of stop reports that the monitor team determined articulated reasonable suspicion for the stop. The third column is the number of stop reports reviewed in which a frisk was conducted, and the fourth column reports the number and percentage of stop reports that articulated reasonable suspicion that the person stopped was armed and dangerous. For example, in the fourth quarter of 2016, there were 146 stops that included a frisk. The monitor team determined that 111 of those 146 stops (or 76 percent) articulated reasonable suspicion for the frisk. The fifth column reports the number of stops that included a search, and the sixth column reports the number and percentage of stop reports that the monitor team determined articulated a justification for the search.
Several things can be noted based on the monitor team’s review of stop reports. First, the level of compliant stop reports has improved over time. This is particularly true for whether the officer articulates reasonable suspicion for the stop, which occurred in a little over 80 percent of stops for the second half of 2018 compared to less than 60 percent in the first half of 2017. The percentage of officers who articulate reasonable suspicion that the person stopped was armed and dangerous (necessary for a frisk), or justification for the search, has also increased over time, although the level of compliance was fairly high even in the fourth quarter of 2016.
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Chart 8. Monitor Team Review of Stop Reports 4Q 2016 through 4Q 2018

Quarter
4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018

# Stop Reports Reviewed by Monitor Team
261 256 302 312 305 308 295 302 300

Stop Reports That Articulate Reasonable Suspicion for the Stop 121 (46%) 142 (55%) 178 (59%) 188 (60%) 212 (70%) 202 (66%) 211 (72%) 251 (83%) 239 (80%)

# Stop Reports in Which Suspect Was Frisked

Stop Reports That Articulate Reasonable Suspicion for the Frisk

146

111 (76%)

145

114 (79%)

176

143 (81%)

179

146 (82%)

171

153 (89%)

213

187 (88%)

189

169 (89%)

150

134 (89%)

184

170 (92%)

# Stop Reports Where Suspect Was Searched
67 79 91 87 107 92 81 113 113

Stop Reports That Articulate Justification for the Search
56 (84%) 68 (86%) 73 (80%) 76 (87%) 101 (94%) 84 (92%) 70 (87%) 98 (87%) 106 (94%)

Chart 9 below compares the number and percentage of stop reports each quarter that QAD determined articulated reasonable suspicion with the number and percentage of stop reports that the monitor team determined to be justified. Both QAD audits and those conducted by the monitor team show an improvement in the stops meeting the standard of reasonable suspicion. Chart 9 shows that although the monitor team’s assessment of compliance is lower than the NYPD’s assessment of compliance, the difference between the monitor team’s assessments and QAD’s assessments has decreased over time. This is likely due at least in part to the meetings with the monitor team and NYPD and a more thorough review of the stop reports by QAD as a result.

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Chart 9. QAD and Monitor Ratings of Justified Stop Reports

Audit Quarter QAD (No., % Yes) Monitor (No., % Yes) Total

1Q2017

197

142

77%

55%

256 100%

2Q2017

209

178

69%

59%

302 100%

3Q2017

219

188

70%

60%

312 100%

4Q2017

221

212

72%

70%

305 100%

1Q2018

222

202

72%

66%

308 100%

2Q2018

238

211

81%

72%

295 100%

3Q2018

240

230

88%

85%

272 100%

4Q2018

232

239

83%

80%

300 100%

Total

1,778 76%

1,602 68%

2,350 100%

3. Analysis of Racial Disparities in Stop Reports Deemed Not Justified As part of the monitor’s assessment of the Department’s compliance with its racial

profiling policies, the monitor conducted an analysis of whether there are racial disparities in the

stop reports that the monitor team found deficient in articulating reasonable suspicion for stops,

frisks or searches. The race of the person being stopped was noted in 97.5 percent of the forms that were reviewed by the monitor.12 Chart 10 below shows, for each quarter, the number of stop

12 For ease of interpretation of categories, the race of the person stopped was collapsed into three categories, representing whether the person was Black (Black, n=1,295, 56.48%, Black Hispanic,
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reports reviewed by the monitor team broken down by the race of the person stopped, and then the percentage of those stop reports that the monitor team determined articulated reasonable suspicion.13
The overall improvement in constitutionality of reported stops according to the monitor team’s review of stop reports appears to have occurred primarily among persons stopped who were identified as being Black or Hispanic. This is reflected in the fact that for Blacks and Hispanics stopped, there is a substantial improvement in the overall percentage of stops rated as meeting constitutional standards. The percentage of stop reports audited over time (1Q2017 to 4Q2018) that were judged to meet constitutional standards, however, continues to be significantly lower for stops of Blacks and Hispanics than that for stops of Whites.
n=222, 9.68%), Hispanic (White Hispanic, n=520, 22.68%), White/Other (White, n=211, 9.2%; Asian, n=42, 1.83%; Middle Eastern, n=3, 0.13%). These are the same categories used in prior analyses by the monitor and by plaintiffs’ expert. 13 Again, it should be noted that these analyses (stops, frisks and searches) are based on stops for which there was a completed stop report, and thus would not provide any information about stops that are not reported.
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Chart 10. Monitor Judgments That Stop Reports Articulate Reasonable Suspicion, by Race of Person Stopped

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race indicated

Total No., Percentage Justified Total

1Q2017

54

156

67%

49%

41

5

256

59%

100%

55%

2Q2017

38

191

74%

60%

70

3

302

51%

0%

59%

3Q2017

33

213

79%

60%

57

9

312

56%

22%

60%

4Q2017

23

181

74%

69%

91

10

305

73%

40%

70%

1Q2018

15

210

80%

67%

74

9

308

58%

67%

66%

2Q2018

21

215

71%

71%

53

6

295

72%

83%

72%

3Q2018

41

153

78%

84%

68

10

272

87%

100%

85%

4Q2018

31

198

90%

76%

66

5

300

85%

100%

80%

Total

256

76%

1,517 67%

520

57

2,350

68%

65%

68%

The monitor team’s expert, John MacDonald, examined these data to test whether the

differences between the monitor’s ratings for stops of Whites and the monitor’s ratings for stops

of Blacks or Hispanics were likely due to chance or not. The method used compared the disparities

in justified stops by race identified by the monitor team to 1,000 simulations where the ratings (the

percentages of justified stops) were not associated with a particular racial category, but were

randomly scrambled among the racial categories. The results from this test show that the lower

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percentage of justified stops for Blacks (67%) and Hispanics (68%) relative to Whites (76%) would occur by chance in only 0.1 percent and 1.8 percent of 1,000 times, respectively. Looking at the more recent stop reports for 2018, however, the difference in ratings for justified stops for Blacks (74%) and Hispanics (75%) relative to Whites/Others (81%) is smaller. Using the same test, one would expect these differences to occur by chance 17 percent and 25 percent in 1,000 times, respectively. This disparity is no longer statistically significant at the five percent level. The 2018 data indicates that there appears to be some narrowing of the racial disparity gap in the constitutionality of rated stops in the more recent quarters.
The monitor team also rated the constitutional justification for frisks if they occurred during the audited stops. The percentage of frisks that the monitor team rated as being justified has also improved over time, from a low of 79 percent in the first quarter of 2017 to a high of 92 percent in the fourth quarter of 2018. Just as interesting, the percentage of justified frisks was higher for Blacks (86%) and Hispanics (88%) compared to Whites (84%). These differences in justified frisks would occur by chance 51 percent and 18 percent in 1,000 times, respectively. These disparities are not statistically significant at the five percent level. This suggests that the racial disparities for frisks is narrow, if at all, and likely a chance occurrence due to which cases were sampled for auditing.
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Chart 11. Monitor Assessments that Frisk Is Justified, by Race of Person Frisked

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race indicated

Total No., Percentage Justified Overall

1Q2017 17 71%

108

19

1

145

80%

79%

100%

79%

2Q2017 14 79%

117

43

2

176

81%

84%

50%

81%

3Q2017 14 79%

126

36

3

179

82%

81%

100%

82%

4Q2017 12 75%

106

48

5

171

90%

92%

100%

90%

1Q2018 6

152

50

5

213

100%

86%

92%

80%

88%

2Q2018 10 80%

150

24

5

189

90%

92%

80%

90%

3Q2018 17

77

38

6

138

100%

87%

95%

100%

91%

4Q2018 22 91%

124

35

3

184

94%

89%

100%

92%

Total 112 84%

960

293

30

1,395

86%

88%

90%

87%

The monitor team also rated the constitutional justification for searches if they occurred

during the audited stops. The percentage of searches that the monitor team rated as being justified

also has improved over time, from a low of 80 percent in the second quarter of 2017 to a high of

94 percent in the fourth quarter of 2018. The results show a lower percentage of searches rated as

being justified for Blacks (88%) and Hispanics (90%) compared to Whites (96%). These

differences would occur by chance 1.5 percent and 4.6 percent in 1,000 times, respectively. This

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suggests that the racial disparity gap in justification of searches is not likely a chance occurrence,

due to cases sampled.

Chart 12. Monitor Assessments That Search Is Justified, by Race of Person Searched

Audit Quarter

Total No., Percentage Justified White/Other

Total No., Percentage Justified Black

Total No., Percentage Justified Hispanic

Total No., Percentage Justified No race Indicated

Total No., Percentage Justified Total

1Q2017 15

39

24

1

79

100%

77%

92%

100%

86%

2Q2017 11

53

27

91

82%

85%

70%

80%

3Q2017 11

56

20

87

100%

80%

100%

87%

4Q2017 8

64

30

2

107

100%

95%

91%

100%

94%

1Q2018 7

52

30

3

92

100%

87%

97%

100%

91%

2Q2018 2

63

16

81

50%

87%

87.5%

86%

3Q2018 12

60

32

2

106

100%

93%

91%

100%

93%

4Q2018 11

74

26

2

113

100%

93%

92%

100%

94%

Total

77

461

208

756

96.%

88%

90%

90%

4. QAD Audits of BWC Videos Associated with Stop Reports and Arrests

In the fourth quarter of 2017, QAD began auditing BWC videos associated with the five

most recent stop reports that indicate there is a corresponding BWC video. These videos and their

corresponding stop reports are reviewed for completeness, professionalism, consistency with the

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stop report narratives and whether the “What Is a Stop?” information card or, more recently, the officer’s business card was handed out. Chart 13 below. A similar analysis is performed for the

five most recent arrest reports that indicate they have corresponding BWC videos. Chart 14 below.

In the case of arrests, the videos and arrest reports are reviewed for completeness and whether a

stop report was prepared if the arrest arose out of a stop. In the majority of cases, QAD found that

the video was either consistent with the narratives in the stop report or inconclusive.

Chart 13. QAD Audits of Stop Reports with Associated BWC Video

Number of Videos Reviewed
4Q2017 64

Video Consistent with Stop Narrative
58%

Video Inconsistent with Stop Narrative
0%

Video Inconclusive with Regard to Stop Narrative
42%

1Q2018 84

68%

3%

30%

2Q2018 168

124 (74%)

1 (0.5%)

43 (26%)

3Q2018 277 4Q2018 466 1Q2019 757

230 (83%) 367 (79%) 660 (87%)

7 (3%) 63 (13%) 96 (13%)

40 (15%) 36 (8%) 1 (0.1%)

Chart 14. QAD Audits of Arrest Reports with Associated BWC Video

2Q2018 3Q2018 4Q2018 1Q2019

Number of Videos Reviewed
38 144 418 818

Video Consistent with Arrest Report 37 (97%)
139 (96%)
410 (98%)
764 (93%)

Video Inconsistent with Arrest Report 1 (3%)
5 (4%)
8 (2%)
54 (7%)

The monitor team will be reviewing the BWC videos audited by QAD for the first quarter of 2019

and will report on those reviews in the next report.

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B. QAD Audits for Undocumented Stops The documentation of stops is essential for the Department to demonstrate substantial compliance with the remedial orders. QAD performs two types of audits to determine whether or not stops are being properly documented: RAND audits and police-initiated enforcement audits.
1. RAND Audit Results QAD continues to audit the potential underreporting of stop reports by using what has been labeled a RAND audit. As discussed above, this audit program is designed to identify stop encounters using radio transmissions to identify instances in which stop reports should have been prepared. QAD uses keyword searches of ICADs to identify events that likely involved stop encounters. These keywords are “Stopped,” “Show-up,” “Holding” and “Warrant Check.” Once a potential stop encounter is identified, through the review of ICADs and/or listening to the corresponding radio transmissions, NYPD records are reviewed to determine if a corresponding stop report was prepared. If there is BWC video of the event, QAD reviews the video as part of this analysis. If the auditor determines that a stop report may have been required, the matter is referred to the command for further investigation. The command then reports back to QAD whether the encounter did, in fact, require a stop report and whether one was filed. Chart 15 below shows that in 2018, there were 26 Terry stops without a stop report prepared.
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Chart 15. RAND Audits with Command Responses

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Total RAND Audits Indicating a Possible Stop 28 28 31 21 23 21 25 26 25 17

Stop Reports Prepared
8 6 6 12 12 12 13 6 11 11

Report Deemed Not Necessary After Command Investigation 8 10 9 4 6 7 5 12 5 6

Total Terry Stops
20 17 22 17 17 14 20 14 20 13

Terry Stop Without Stop Report
12 11 16 5 5 2 7 8 9 2

Compliance Rate (%) (Stop Reports Prepared/Total Stops)
40% 35% 27% 71% 71% 86% 65% 43% 55% 85%

Below are the follow-up actions taken by the commands for members who did not document stops.

Chart 16. Command Follow-Up Action

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Terry Stop Without Stop Report
12 11 16 5 5 2 7 8 9 2

Command Discipline
2 0 0 0 4 1 1 1 1 0

Instructions/ Training
3 6 8 3 1 0 3 4 0 0

Minor Violations Log or CRAFT Supervisory Report 14 5 5 5 1 0 1 3 3 8 2

No Disciplinary Action
2 0 3 1 0 0 0 0 0 0

14 The minor violations log was a logbook kept at each command that recorded minor violations of Department rules by members of the service. The information in these logs was not tracked centrally, it did not become part of a member’s personnel record, and there were no penalties or additional consequences for being listed in the log. The NYPD has replaced the minor violations log with a CRAFT Supervisor’s Comment Form.
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2. Results from Audits of Police-Initiated Enforcement QAD also uses police-initiated enforcement audits to detect undocumented stop

encounters. These audits look at the last 25 arrests in each command from the audit period that

result from police-initiated enforcement (PIE). These are defined as arrests in which the People

of the State of New York are the complainants on the Complaint Report, such as criminal

possession of a controlled substance and criminal possession of a weapon. Arrest reports are

reviewed to determine whether or not a stop report should have been completed for the encounter.

When an auditor determines that an arrest report possibly required a stop report and no stop report

was filled out, the arrest report is sent to the command for further investigation.

Chart 17. PIE Audits with Command Responses

4Q2016 1Q2017 2Q2017 3Q2017 4Q2017 1Q2018 2Q2018 3Q2018 4Q2018 1Q2019

Arrests Audited Possibly Requiring Stop Reports 103 161 154 194 225 120 149 192 162 156

Stop Report Not Required
50 95 104 122 171 74 103 121 74 63

Command Response Missing
7 23 6 26 0 4 5 19 37 72

Stop Report Required
46 43 44 46 54 42 41 52 51 21

Stop Report on File
20 19 13 12 20 18 16 22 34 13

Percentage Compliance (SR on file/SR Required)
44% 44% 30% 26% 37% 43% 39% 42% 67% 62%

C. QAD Auditing of Trespass Crimes Fact Sheets Officers are required to fill out a TCFS for all trespass arrests in and around NYCHA

buildings and buildings enrolled in TAP. QAD auditors review whether or not a TCFS was

prepared when required, whether or not the officer articulated a proper basis for the approach, and

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whether the arrest documentation articulates probable cause for the arrest. As noted in Chart 18

below, in the first quarter of 2019, NYPD officers completed a TCFS for only 21 of 30 (70%)

trespass arrests at TAP locations, and articulated probable cause for trespass arrests at TAP

locations in only 18 of 30 arrests (60%). These levels of compliance require particular attention.

Chart 18. QAD Audits of TCFS

2018

TAP Trespass Arrest Had TCFS
82% (140/171)

TAP TCFS Articulated Proper Basis for Approach
98% (137/140)

TAP Trespass Arrests Articulated Probable Cause 75% (129/171)

NYCHA Trespass Arrest Had TCFS
85% (516/604)

NYCHA TCFS Articulated Proper Basis for Approach
97% (501/516)

NYCHA Trespass Arrests Articulated Probable Cause 94% (567/604)

1Q19 70% (21/30) 91% (19/21)

60% (18/30)

93%

99% (144/146) 92%

(146/157)

(145/157)

D. Guidance for Compliance—Auditing The NYPD has revised its auditing protocols and methodologies many times during this monitorship, often in response to suggestions from the monitor and the parties. Protocols, templates and worksheets for audits will continue to be revised in an iterative process to improve the Department’s process for identifying and correcting errors. However, the Department will need to finalize an auditing plan for the court’s review that describes the types of audits that will be conducted and the general methodology for those audits. The protocols, worksheet and templates used by the auditors can be submitted to the court for its information, without requiring changes to these documents to be approved each time there is a revision. Compliance with auditing requirements will be achieved when the NYPD establishes an auditing plan that: 1. Provides a sampling methodology for auditing stop reports and includes a review of BWC videos as part of the SQF audits.

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2. Provides audit procedures for stop reports, assessing whether: (i) officers sufficiently articulated reasonable suspicion as the basis for the stop; (ii) officers sufficiently articulated the legal basis for a frisk and/or search, if applicable; and (iii) supervisors reviewed the form and made correct determinations about the legality of the stop, frisk and search and took appropriate follow-up action.
3. Includes a review and audit of command self-inspections. 4. Includes audit procedures for trespass arrests and associated TCFS at NYCHA and TAP locations, assessing whether (i) officers sufficiently articulated a legal basis for the approach; (ii) officers sufficiently articulated probable cause for the arrest; and (iii) there was appropriate supervisory review. 5. Provides procedures for audits of police-initiated enforcement arrests. 6. Provides procedures for RAND audits. The NYPD distributed its Auditing Plan to the parties in September and the monitor team and parties met to discuss the plan. In November, the NYPD distributed a revised Auditing Plan that addressed the monitor team’s and plaintiffs’ concerns. Going forward, for example, the NYPD plans to review the BWC videos associated with each of the stop reports that it audits. The monitor and the parties will be working to finalize an auditing plan to submit to the court for review. VIII. PERFORMANCE EVALUATIONS A. Performance-Evaluation System for Officers and Detectives At trial, the court found that NYPD “officers [were] routinely subjected to significant pressure to increase their stop numbers, without corresponding pressure to ensure that stops [were] constitutionally justified.” Floyd, 959 F. Supp. 2d at 602. The NYPD’s performance-evaluation system was one of the sources of this pressure. Id. at 590, 592-94. In November 2017, the court
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approved the monitor’s recommendation regarding a new performance-evaluation system that the Department began earlier that year for patrol officers.
In the new system, the lawfulness of stops and the accuracy of stop reports play a role, but the number of stops does not. The court reviewed and approved the monitor’s recommendation and ordered that the monitor review and assess certain aspects of the system. The review is to ensure that, in practice, the new system does not “reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness” or undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments. ECF 564.15
There are four significant components of the new evaluation system. The first is the Officer Profile Report, an electronic form that is automatically generated monthly. This report compiles data from numerous Department databases and compares the officer to other officers in his or her precinct, borough and citywide. It does not count the number of stops made by the officer. The second component is the Supervisor Feedback Form, which allows supervisors to highlight commendable actions by an officer or note areas that may need improvement. A third component is the Officer Self-Report Form, which allows officers to document notable actions they consider
15 Pursuant to the court order, “the Monitor shall, in his bi-annual reports, review and assess the NYPD’s performance-evaluation system to ensure that, on paper and in practice, it does not (a) reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness or (b) undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedies Opinion.” “During the period of Court supervision, Court approval is required before the NYPD implements any proposed change to the performance-evaluation system that may (a) introduce a mechanism to count the number of stops conducted by an officer or (b) affect the manner in which the quality and lawfulness of stops are assessed. The NYPD shall notify the Monitor and the parties of any such proposed change so that the Monitor—in consultation with the parties—may seek Court approval.”
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to be positive, such as community engagement, problem-solving or achievements in crime
prevention.
The fourth component is the Quarterly Evaluation, which took effect in April 2017 for the
first quarter of 2017. Supervisors are instructed to review the Officer Profile Report as well as any
Supervisor Feedback Forms and Officer Self-Report Forms from the relevant period prior to
completing the Quarterly Evaluation. Supervisors use the Quarterly Evaluation to rate officers in
12 performance categories or “dimensions” on a scale from one to four. The fourth quarter
evaluation will provide the supervisor with a summary box to recap the officer’s performance over
the entire year.
The 12 performance categories are:
1. Problem Identification/Solving 2. Adaptability and Responsiveness 3. Judgment 4. Integrity 5. Application of Law and Procedures 6. Community Interaction 7. Departmental Interaction 8. Professional Image and Maintenance of Equipment 9. Quality and Timeliness of Reports 10. Initiative 11. Leadership 12. Implementation of Proactive Policing Strategies (for members who perform
administrative functions, a different dimension, Competence in Unit’s Mission, replaces this dimension)
An important question for the monitor is whether the system is working as designed. Are
the data that are supposed to be feeding into the Officer Profile Report being incorporated into the
system? And, importantly, are supervisors completing the evaluations of their officers? An initial
problem with the performance evaluation system was that when a supervisor found an insufficient
basis for a stop, frisk or search, that data from the stop reports was not showing up in the Officer
Profile Report. After the monitor raised this issue with the NYPD in 2018, a technical fix was
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instituted so that the data now automatically populates the given member’s monthly Officer Profile Report.
In June 2019, the monitor team met with the NYPD to review the operation of the performance evaluation system. The Personnel Bureau is now responsible for ensuring that supervisors are completing evaluations of their officers. For the third quarter of 2018, evaluations were completed for 16,288 officers, but 3,891 evaluations were not completed on time. For the fourth quarter of 2018, evaluations for 15,819 officers were completed, but evaluations for 4,154 were not completed on time. The Personnel Bureau states that it is focusing on the problem of late evaluations or supervisors who fail to complete evaluations of their officers, and the monitor will examine this issue going forward.
The new evaluation system covers the evaluation of officers and detectives only, and does not change the evaluation system for sergeants, lieutenants, captains and other supervisors. Expansion of this system to sergeants and lieutenants will be a topic of discussion during the next round of collective bargaining with the NYPD sergeants’ and lieutenants’ unions.
B. Guidance for Compliance—Performance Evaluations Compliance with court requirements for the Performance Evaluation system will be achieved when on paper and in practice it does not: 1. Reinstitute pressures that result in a focus on the quantity of stops without regard to their lawfulness. 2. Undermine the goals of the remedial process, including compliance with the Fourth and Fourteenth Amendments of the Constitution as required by the Remedial Opinion. To evaluate whether the performance evaluation system meets these criteria, the Monitor has undertaken a number of steps. The monitor team has reviewed the evaluations for officers receiving a “Needs Improvement” rating for Application of Law and Procedures, Accuracy and
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Timeliness of Department Reports and Implementation of Proactive Policing for the fourth quarter of 2018. The monitor team also reviewed data on officers receiving a “Needs Improvement” CRAFT supervisory feedback report for those dimensions. In addition, the monitor team has conducted focus groups of supervisors regarding the performance evaluation system, and talked with officers and supervisors when making site visits to commands.
The monitor team’s review of that data and discussions with supervisors indicates that the NYPD’s performance evaluation system, as it is being implemented in practice, does not lead supervisors to pressure officers to make more stops without regard to the lawfulness of those stops. The monitor team did not find cases in which officers were given negative evaluations because of a lack of stop activity. Nor was there evidence that the system is undermining the goals of the remedial process.
In reviewing the Supervisory Feedback Forms, we noted that the largest category of negative CRAFT entries was for an officer’s failure to activate his or her BWC when NYPD policy required mandatory activation, or for turning off the BWC prematurely. There were a small number of negative CRAFT reports for officers whose stop reports did not articulate reasonable suspicion for the stop or frisk, or for failure to complete a stop report when a stop was made, and there were also some negative CRAFT entries for supervisors who approved stop reports when a self-inspection or a QAD audit determined that the stop report was deficient. These examples support the goals of the remedial process. There was one aspect of the performance evaluation system that the monitor did raise with the NYPD. According to the NYPD’s Performance Evaluation System Guide, when a supervisor rates an officer as “Needs Improvement,” “Exceeds Expectations” or “Exceptional,” the rating should be supported by official documentation. In reviewing the quarterly evaluations with a “Needs Improvement” rating, however, the monitor
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team noted that many supervisors did not comment on or document the reasons for that rating, but

instead left blank the field for comments and documentation.

IX. COMPLAINTS AND DISCIPLINE

The court’s remedial order required the NYPD to change its policies and practices with

respect to investigations of racial profiling and other bias-based profiling allegations as well as its

handling of civilian complaints that have been substantiated by the CCRB.

A. NYPD Investigations of Profiling Allegations

The NYPD investigates all profiling allegations related to race and biased-based policing,

whether the allegation is made directly to the Department or referred from the CCRB. On January

3, 2019, the court approved an IAB guide section and related training that provide detailed

guidance on how to process and investigate profiling complaints. All allegations of profiling are

included in the IAB log and investigated by the NYPD.

Complaints of biased policing are down thus far in 2019. IAB received 641 such

complaints between January 1, 2018 and October 31, 2018 and only 429 during the same period

in 2019. However, as noted in the Monitor’s Ninth Report and continuing today, there have been

no profiling allegations substantiated.

Chart 19. Profiling Case Dispositions by Year, 2014 – October 31, 2019

Unfounded Unsubstantiated Exonerated Partially Substantiated* Information and Intelligence Open or Active Substantiated Total

2014 2 6 2 0
0
0 0 10

2015 159 109 11 30
0
34 0 343

2016 204 261
0 35
0
62 0 562

2017 310 444
2 45
1
56 0 858

2018 311 361
8 36
1
27 0 744

2019 120 132
2 23
1
151 0
429

Total 1,106 1,313
25 169
3
330 0
2,946

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* These are cases in which other allegations in a profiling complaint were substantiated, but not profiling allegations.
As noted in Section V, Training, the NYPD has revised its training for investigators of profiling complaints: investigators should not close out a case as unfounded because the complainant was found guilty of the underlying criminal case; the fact that the subject officer and the complainant are of the same race does not mean that there is not racial profiling and investigators cannot close a case for that reason; and if the investigator has not been able to contact the complainant, the investigator should check to see if the complainant might be incarcerated. In addition, the NYPD made improvements to its case management system so that investigators now cannot close a case unless they have documented at least three attempts to contact the complainant.
1. Monitor Review of Profiling Investigations The monitor team reviewed a sample of 24 racial profiling cases in 2017 and reviewed another sample of 22 cases in 2019. The sample chosen for review was of cases in which officers had multiple profiling complaints. Many of the investigations reviewed were completed before the NYPD made changes to its case management system, which now requires certain investigatory steps be taken. In September and October 2019, the NYPD provided the monitor team with an additional 43 cases for review, which the monitor team will review for a later report. The monitor team’s review included listening to the investigators’ interviews with the complainants, subject officers and other witnesses, as well as examining any video evidence or documents in the investigative file. Although some investigations were quite thorough and impartial, based on the monitor team’s review, there were others reviewed that did not meet the standards necessary for an NYPD investigation. Each deficiency listed below appeared in at least one of the cases reviewed:
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 Not interviewing the complainant, or witness, or subject and witness officers  Asking questions of the complainant or the subject and witness officers that suggested the
investigator had already reached a conclusion  Asking questions of the complainant that suggested the investigator doubted the validity of
the complaint or the credibility of the complainant  Conducting perfunctory interviews (some interviews of subject officers lasted less than
four minutes)  Not following up on leads  Taking too long to contact either the complainant or the subject officer  Not doing the appropriate investigative canvasses for video or eyewitnesses  Not connecting important pieces of evidence across cases from the same unit  Failing to note trends in the subject officer’s actions, words or behavior, including not
examining the subject officer’s Central Personnel Index (CPI) and prior complaints
The inadequacies of the investigations that the monitor team reviewed should have been
caught by the immediate supervisor or during the review process up the chain of command, but all
of the investigations were approved by supervisors without the problems being addressed. Even
in the investigations that the monitor team determined to be thorough, the investigations could
have been improved with some structural changes to the way these complaints are being
investigated. For example, in most of the cases reviewed, there was a substantial delay in
contacting and interviewing the complainant. Complaints received at the IAB Command Center
are processed and either assigned to an Investigations Unit or investigated by IAB personnel.
Pursuant to the IAB’s guide for processing and investigating profiling complaints, IAB Guide 620-
58, the commander of an Investigations Unit has up to ten days after receiving a case to assign that
case to an investigator. The assigned investigator then has up to ten days to make initial contact
with the complainant. Missed opportunities to interview potential witnesses or secure evidence
(e.g., from video recording systems) can result from a lengthy case intake and case assignment.
Although the IAB guide for processing and investigating profiling complaints was
reviewed by the parties and approved by the monitor and then by the court, the monitor team’s
review of investigations determined that this process should be modified. Profiling investigations 75

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should be pursued with the same vigor and creative thinking that NYPD investigators apply to criminal cases. Impartial and thorough investigations are imperative, even if thorough investigations of the profiling allegations reviewed by the monitor team might still have resulted in insufficient evidence to substantiate the allegations.
In order to assess how these investigations might be better handled, the monitor team met with three groups of NYPD investigators who specialize in investigations: homicide detectives, IAB investigating supervisors and EEO investigators. The monitor team identified several recommendations for improving the investigation of profiling complaints based on its review of profiling cases, the results of the focus groups with IAB case investigators, homicide detectives and EEO investigators, and discussions with the parties. The monitor shared these recommendations with the NYPD in September 2019:
1. Improve initial case assessment and assignment. IAB and the Detective Bureau have guidelines for steps that investigators need to take within the first 72 hours of being assigned a case, including contacting the complainant within 24 hours. NYPD should establish similar guidelines for profiling investigations to ensure that evidence is preserved, video is obtained, witnesses are located and complainants are interviewed while their memory is fresh. Complainants should be contacted as soon as possible to arrange a time and place to meet. When appropriate, a canvass of the area for possible witnesses and to secure video or other evidence should take place within 72 hours of the NYPD receipt of the complaint.
2. Investigative steps that should be taken. Investigators should include the following steps in their investigations: review of the public social media of both the complainant and subject officer; video canvass of the location of the incident (included in the IAB
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procedures for investigating profiling complaints, IAB Guide 620-58, step 5); BWC review; and in-person interview of complainant in a neutral or comfortable location. Also, a canvass of the scene during the same time that the incident occurred may be more likely to identify witnesses. Investigators should be granted access to the IAB Computer Crimes Unit, which has expertise in social media searches, to review the public social media of complainants and officers. Prior profiling allegations against the subject officer should be reviewed and assessed for trends and commonality with respect to the officer’s behavior or types of statements in the case being investigated. This is also set out in the IAB procedures, IAB Guide 620-58, step 11. Investigators also should permit the complainants to provide an account of the incident, uninterrupted by questions. 3. Improve case management and supervision. The Detective Bureau has timelines for investigative reports and supervisory review and feedback. An initial investigative report must be completed and reviewed by a supervisor within three days; at day seven, the case is discussed and supervisory direction is given; at 21 days, decisions are made on the status of the case (close case, make arrest, additional steps to be taken in case). A similar case review system should be set up for profiling investigations, with the 21day review perhaps extended, if appropriate, to accommodate subject officer interviews. The investigator’s immediate supervisor plays a critical role in ensuring a comprehensive investigation. Supervisors should document their analyses and conclusions. 4. Develop a mediation program for profiling complaints. Although the CCRB offers mediation as an option for complainants and officers in certain cases, the NYPD does
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not have a mediation program for complainants and officers to discuss each other’s perspective on the encounter that led to allegations of profiling. The NYPD agrees that mediation may be a beneficial way to address some of the profiling allegations. The NYPD recently informed the monitor that it is in the process of amending its procedures for profiling investigations in light of the monitor’s recommendations as follows: (1) a reduction in time to assignment of case and contact with complainant; (2) a review of public social media of both complainant and subject officer when appropriate; (3) designation of specific investigators at the borough Investigations Unit level as primary investigators for these cases; and (4) additional training for supervisors up to and including the borough adjutant regarding proper review of these cases.16 These changes will be reflected in a revised IAB investigative guide that will be reviewed by the parties and submitted for court review. The NYPD is working with the CCRB to develop a mediation pilot for profiling complaints that the Department expects to launch in January 2020. In addition to investigating the individual profiling complaints, there are other steps that the monitor discussed with the NYPD that the Department should consider in addressing concerns about racial profiling. 1. Leverage the IAB Statistical Unit to analyze racial profiling complaints. The IAB Statistical Unit or some other unit in the NYPD should analyze patterns and trends of profiling complaints, as well as examining social media. The unit can examine enforcement practices to assess whether Department or command policy or practices are contributing to the generation of profiling complaints. The NYPD should examine
16 The borough adjutant is the executive in each patrol borough who supervises the borough investigations unit and oversees the disciplinary system in the borough command. P.G. 202-02.
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whether such policies or practices are examples of selective enforcement or, alternatively, legitimate policies that still may lead to the impression that a particular group is being targeted for enforcement purposes. 2. Integrity testing. IAB does integrity testing to test a variety of policy and law violations. The monitor will be discussing with the NYPD what kind of integrity tests are currently being done and whether they can be adapted to develop integrity testing for racial profiling, as well as illegal stops and frisks and trespass arrests. 3. Include profiling complaints in the command’s RISKS Review (see Section III above). 4. Include profiling complaints, even if not substantiated, in the Department’s early intervention system (EIS). The NYPD has informed the monitor that it plans to make changes to its EIS so that there will be a review of officers with multiple profiling complaints. 5. Review BWC videos of the encounters that led to profiling complaints to examine whether there are particular aspects of the encounters that lead to complaints. This could be a particularly useful way to assess the interactions of officers who have multiple profiling complaints. The NYPD also could compare the BWC videos of officers with multiple complaints with BWC videos of officers in the same squad without complaints. Review of the BWC videos may help the Department develop a template or methodology for identifying and addressing problems leading to complaints.
B. NYPD Handling of Substantiated CCRB Cases At trial, the court found that the NYPD failed to impose meaningful discipline when the CCRB determined that officers engaged in unconstitutional stops and frisks. The court’s order
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requires the NYPD to improve its procedures for handling CCRB findings of substantiated misconduct during stops. Specifically, the Department Advocate’s Office (DAO) must provide more deference to credibility determinations made by the CCRB, use an evidentiary standard that is neutral between the claims of complainants and officers, and not require that physical evidence corroborate the complaint. The sections below provide updated data on the NYPD handling of substantiated CCRB cases through April 2019.
1. NYPD Discipline and Penalties Imposed The graphs and charts below show the final discipline and penalties imposed for substantiated CCRB cases sent to the NYPD in 2014 through 2018. The data illustrate the decline in the incidence and severity of the final discipline and penalties imposed. This decline resulted from both changes in the initial CCRB recommendations made to the NYPD and the final disposition and penalties imposed by the NYPD. The past several years has seen a substantial change in the frequency with which the CCRB recommends charges and specifications. The monitor examined CCRB disciplinary recommendations in cases involving allegations relating to stop and frisk cases and trespass enforcement cases specifically. Based on data provided by the NYPD to the monitor, it appears that, over time, in such cases the CCRB’s recommendations have generally decreased in severity. In particular, recommendations of charges and specifications declined sharply from 2014 to 2018, from 102 cases in 2014 (57 percent of the total) to 15 in 2018 (17 percent of the total).
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Chart 20. CCRB’s Initial Disciplinary Recommendations, 2014-2018

Instructions Training Command Discipline A Command Discipline B Charges and Specifications Other TOTAL

2014 20 1 4
51
102
119 179

2015 58 22 6517
7418
48
120 268

2016 4 69 72
44
23
0 212

2017 4 22 41
16
19
0 102

2018 15 14 15
28
15
121 88

The police commissioner makes the final determination about the discipline imposed. The chart below compares the CCRB’s initial discipline recommendations with the final discipline imposed by the NYPD for 39 closed 2018 cases involving stops, frisks and searches.
Chart 21. Comparison of Recommended Penalties to Final Disposition, 2018

2018 Penalty Type, Closed Cases Charges and Specifications Command Discipline B Command Discipline A Training Instructions No Disciplinary Action Case Closed Administratively Total

CCRB Recommended Discipline 1 15 9 7 6 0 1 39

Final Penalty
1 2 12 12 3 6 722 39

17 Includes five cases in which instructions were also recommended and three cases in which training was also recommended. 18 Includes one case in which Instructions were also recommended and four cases in which Training was also recommended. 19 In 2014, there was one case in which the CCRB’s disciplinary recommendation is listed in the data as “Command Discipline” without specifying whether level A or B was recommended. 20 In 2015, one case is listed as “NDA” in the data. The notes on the case indicate that the complaint was received after the statute of limitations had run. 21 CCRB initially recommended charges and specifications, but then reconsidered on its own and unsubstantiated the case. 22 Of the seven cases closed administratively, one was unsubstantiated by the CCRB, three were closed because the statute of limitations expired, two officers were dismissed on unrelated cases, and one case involving force had been previously adjudicated by the NYPD.
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2. DAO Reconsideration Request Data The DAO reviews the CCRB’s findings and recommendations for discipline regarding allegations the CCRB has substantiated. In 2014, the NYPD and the CCRB established a new “reconsideration process,” in which the DAO may ask the CCRB to reconsider its findings on whether allegations were substantiated or its recommendations for discipline. The CCRB may then choose to change or maintain its original conclusions. Alternatively, in certain circumstances (such as when a case is running out of time to be tried under the statute of limitations), the DAO may unilaterally recommend a different disposition or discipline to the Police Commissioner, without requesting reconsideration by the CCRB. In either case, the Police Commissioner makes the final decision on what discipline, if any, to impose after reviewing both the CCRB’s and the DAO’s findings and recommended remedy. The NYPD provided the monitor with data regarding substantiated CCRB cases involving stop, question, frisk, search or trespass allegations, the DAO reconsideration requests, and the outcomes of those reconsideration requests. The DAO agreed with CCRB’s findings and recommendations in a majority of the cases in which allegations were substantiated by the CCRB. However, the rate of agreement decreased from 2014 to 2018. In 2014, the DAO agreed with the CCRB findings and recommendations in 82 percent of cases. In 2015, the DAO agreed with 73 percent of the substantiated CCRB cases. In 2016, the rate of agreement was 52 percent; in 2017, it was 57 percent; and in 2018, it was 51 percent. The data below for 2017 and 2018 do not include 12 and 49 cases, respectively, that were substantiated by the CCRB but are still being considered for reconsideration or for which the reconsideration process has not been completed.
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Chart 22. DAO Agreement with CCRB Recommendations, 2014-2017

Year

Substantiated SQF CCRB Cases Sent to NYPD

Cases in Which NYPD Agreed with CCRB Discipline Recommendation23 (%)

2014 193 2015 355 2016 222 2017 90 2018 39

159 (82%) 260 (73%) 115 (52%) 57 (54%) 20 (51%)

Cases in Which DAO Requested Reconsideration of CCRB Discipline and/or Disposition 20
47
88 14 6

Cases in Which NYPD Changed Disposition or Discipline Recommendation Without Reconsideration 14
48
19 25 1324

In almost half of the cases in which the DAO sought reconsideration, the DAO’s disagreement was with the discipline recommended by the Board panel, rather than with the CCRB’s investigation, its credibility determinations or its substantiated findings. Additionally, in those cases where there was no reconsideration request, but the DAO recommended to the Police Commissioner a different result than recommended by the CCRB, the majority of those cases involved a disagreement about the CCRB’s discipline recommendation, not about whether the allegations should be substantiated. For example, in 2018, of the 39 closed cases, the DAO disagreed with the CCRB’s substantiation finding in six cases: three in which the DAO asked for reconsideration and three in which it did not. Chart 23 below shows the number and percentage of cases in which the DAO asked for reconsideration of CCRB’s substantiation of stop and frisk or trespass cases. The DAO has requested reconsideration of the CCRB’s findings in a relatively small portion of cases with allegations based on stop, question, frisk, searches or trespass

23 These numbers include cases where the CCRB recommended instructions but the NYPD imposed training. 24 This includes seven cases closed administratively.
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enforcement: six percent of cases substantiated in 2015, 22 percent of those substantiated in 2016,

11 percent of those substantiated in 2017, and eight percent of those substantiated in 2018.

Chart 23. DAO Reconsideration of CCRB Finding of Substantiation

2015 2016 2017 2018

Total CCRB Cases
355 222
90 39

DAO Reconsideration of CCRB Substantiated Finding (%)
22 (6%) 48 (22%) 10 (11%)
3 (8%)

The reconsideration process creates an opportunity for dialogue between the CCRB and

the DAO about particular cases. Sometimes, with the benefit of the DAO’s views or new facts or

disciplinary information the DAO provides, the CCRB will agree with the DAO’s suggested

disposition. Other times, the CCRB will modify its recommended discipline in response to a DAO

request, but not to the extent the DAO suggested. The approximate numbers of stop and frisk

cases in which either outcome has occurred are summarized in the following chart.

Chart 24. CCRB Determinations on Reconsideration Requests in Cases

Year Total Reconsideration

CCRB Agreed with DAO CCRB Reduced Discipline But

Reqs.

Request

Not as Far as DAO Suggested

2015

47

13 (2 partial)*

14

2016

88

13 (1 partial)

4

2017

14

2 (1 partial)

1 (partial)

2018

6

0

0

* “Partial” means that there was more than one substantiated allegation in a complaint, and

that the CCRB agreed with the DAO reconsideration request or reduced the discipline for

at least one of the allegations in the complaint.

3. Variance Memoranda

Currently, the MOU between the Department and CCRB provides that, in cases prosecuted

by the CCRB’s Administrative Prosecution Unit (APU), the Police Commissioner should notify

CCRB when he or she intends to impose discipline that is of a lower level than that recommended

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by CCRB or by an NYPD Trial Commissioner. The notice is to be given ten days prior to imposition of the discipline with a detailed explanation of the reasons for deviating from CCRB’s recommendation. CCRB has five days to respond before the final determination.
By reason of recently adopted changes to the NYC Charter, the Police Commissioner will now have to write a “written report” no later than 45 days after imposing a “different penalty or level of discipline than that recommended by the Board or by the deputy commissioner responsible for making disciplinary recommendations ….” The report will include a “detailed explanation of the reasons for deviating” from the recommendations. Further, if the imposed penalty or level of discipline is lower than the recommendations, the report will “also include an explanation of how the final disciplinary outcome was determined, including each factor the Police Commissioner considered in making his or her decision.” The requirement took effect immediately upon certification of the election results by the Board of Elections on December 6, 2019. It is unclear, at this time, what amendments, if any, may be made to the MOU as a result of this additional mandate.
4. Other Misconduct Noted; Failure to Complete Stop Report If the CCRB, in the course of its complaint investigation, identifies misconduct outside of its jurisdiction, the Board refers the misconduct to the NYPD for investigation and any additional action. These cases are referred to as Other Misconduct Noted, or OMN, cases. For example, if the CCRB investigates a complaint involving a stop, frisk or search, and determines that the subject member or members made a Terry stop but did not complete a stop report for the encounter, the CCRB refers the case to the NYPD as OMN. The CCRB also makes an OMN referral where the investigation determines that a member of service may have made a false official statement in a case involving a stop, frisk or search allegation. The Internal Affairs Bureau logs these cases, assigns them to the command for investigation and tracks the outcomes. Below are the outcomes
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of the NYPD’s investigations of CCRB’s OMN referrals for failure to complete a stop report for completed CCRB cases from 2015 through 2018. For the year 2019, as of September 1, 2019, the

CCRB has made three OMN referrals to the Department for failure to compete a stop report; those

three cases are still open and being investigated at the commands.

Chart 24. Outcomes for Failure to Complete Stop Report (OMN Cases)

A-CD B-CD C&S Training Instructions Minor Procedural Violations Substantiated NDA-DUP-None Exonerated Unfounded Unsubstantiated Other Still Open

2015 32 3 0 7 61 0
0 14 4 2 1 4 8 136

2016

2017

2018

24% 18 16% 22 31% 9 16%

2% 5 4% 0

0%

1 2%

0% 0 0% 1

1%

0 0%

5% 19 16% 8

11% 2 4%

45% 53 46% 26 36% 12 21%

0% 2 2% 1

1%

0 0%

0% 0 0% 0 10% 6 5% 8 3% 4 3% 2 2% 2 2% 1 1% 4 3% 2 3% 3 3% 1 6% 0 0% 0 100% 116 100% 72

0%

1

11% 5

3%

7

1%

0

3%

14

1%

2

0%

4

100% 57

2% 9% 12% 0% 25% 4% 7% 100%

* Substantiated disposition, but no penalty listed. ** Includes the following dispositions: Filed, Info/Intel, No Disposition, No Record
Found, Resigned.

X. COMBINED PILOT On May 15, 2018, the court-appointed facilitator, the Hon. Ariel Belen, filed his Final

Report and Recommendations on the Joint Remedial Process with the court. ECF No. 597. Judge

Belen recommended that the court order 14 specific reforms. On July 19, 2018, the court ordered

a pilot program to study one of the facilitator’s recommendations, the electronic documentation of Level 1 and 2 encounters.25 Three weeks later, the court ordered a pilot program to study another

25 Floyd ECF No. 619.
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of the facilitator’s recommendations, the activation of BWCs during Level 1 encounters.26 On November 9, 2018, the monitor submitted a proposal combining the two court-ordered pilots into one. In response to objections from plaintiffs’ counsel, the monitor submitted a reply and revised proposal in January 2019, which was approved by the court on February 7, 2019.27
The combined pilots will be overseen by the monitor, who retained Professor Stephen Mastrofski and CUNY’s Institute for State and Local Governance (ISLG) to assist in its planning and implementation. The pilot will use systematic social observations—in other words, trained observers will ride along with officers and collect data. Results from the pilot will inform the court on the impact of implementing one or both of these proposed changes. Among the questions to be addressed by the pilot are:
1. How frequently do encounters occur at each level? 2. How frequently do Level 1 and Level 2 encounters escalate to higher levels? 3. To what extent are police initiating Level 1, Level 2 and Level 3 encounters without
appropriate levels of knowledge or suspicion? 4. Would either of the proposed changes, or both together, reduce the risk of police-
citizen encounters contrary to Terry and DeBour standards? 5. To what extent are police not documenting Level 3 stops, and would (either or both)
the proposed changes reduce undocumented stops? 6. Would additional documentation or BWC recording provide useful data in
assessing Fourth and Fourteenth Amendment violations? 7. Are there encounters for which recording would not provide benefits (e.g.,
encounters not involving an investigative or law enforcement purpose), such that privacy concerns might outweigh any justification for recording? 8. What is the additional burden placed upon the police by requiring additional documentation of the citizen encounters?
26 Floyd ECF No. 634. 27 Floyd ECF No. 691.
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The pilot study will observe officers operating under the four different conditions: (a) control—no change in policy; (b) electronic documentation of Level 1 and Level 2 encounters; (c) mandatory activation of BWCs at Level 1 encounters; and (d) electronic documentation for Level 1 and Level 2 encounters and BWC activation at Level 1. Observations of the police encounters with the public will occur in a range of police units that frequently engage the public—precinct officers assigned to patrol cars, plainclothes anti-crime teams, and PSA Housing officers performing interior patrols. The study anticipates observing approximately 170 tours, which should yield over 1,500 observed contacts. Based on this expected sample size, the study will have sufficient statistical power to detect differences among the four conditions. The study also will include efforts to measure whether and how officers will react to having observers. It will compare the activity of officers when observers are in the car with the activity of the same officers on comparable shifts the week before and week after, when they do not have observers.
Extensive efforts are being made to prepare for the pilot program, including: developing the data collection instruments and protocols for the observers; creating a sampling frame for selection of the commands and officers to be observed; recruiting and training the observers; fieldtesting the instruments and protocols; and having the NYPD develop an operations order for the commands that will be implementing the new procedures during the pilot. The NYPD is in the process of developing a phone application for officers to record data during Level 1 and Level 2 encounters. In addition, because the officers being observed must voluntarily consent to be observed, the confidentiality of observer information is critical. The monitor submitted and the court approved a confidentiality order ensuring that the information observers obtain through participation in the study will be used only for the study’s purposes. Floyd v. City of New York,
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ECF No. 735. The monitor team anticipates that the combined pilot, including the observations in the field, analysis of the data collected and writing the report will be completed in 18 months.
Compliance will be achieved when: 1. The NYPD participates in the pilot study and provides the monitor team the relevant data to complete its analysis and report. XI. EARLY INTERVENTION PROGRAM In response to another recommendation made in the facilitator’s report, the court, on November 20, 2018, ordered that the Department, in consultation with the monitor, submit a plan to implement a program to systematically receive, assess and act on five specific categories of information regarding officer conduct.28 The categories are: (a) declinations of prosecutions by the District Attorneys in New York City; (b) suppression decisions by courts precluding evidence as a result of unlawful stops and searches; (c) court findings of incredible testimony by police officers; (d) denials of indemnification and/or representation of police officers by the New York City Law Department; and (e) judgments and settlements against police officers in civil cases where, in the opinion of the New York City Law Department, there exists evidence of police malfeasance. The Department submitted its plan to the court on January 14, 2019.29 Plaintiffs’ counsel submitted two responses raising concerns regarding certain aspects of the plan.30 Since then, there have been ongoing discussions between the parties in an attempt to achieve consensus on the best way for the Department to take this information into account and act upon it, when appropriate. Compliance will be achieved when:
28 Floyd, ECF No. 662. 29 Floyd, ECF No. 681. 30 Floyd, ECF No. 686; Ligon, ECF No. 364.
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Case 1:12-cv-02274-AT-HBP Document 410 Filed 01/07/20 Page 95 of 99 1. The NYPD implements a program to receive, assess, and act on information
regarding adverse findings on unlawful stops and trespass enforcements, in accordance with a plan approved by the court.
2. Data on declined prosecutions, adverse credibility findings, suppression decisions, lawsuits and denials of indemnification are included in the Department’s early intervention system.
3. Commanding officers and RMB implement and document interventions for officers identified through data on at-risk behaviors in the categories identified by the court.
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APPENDIX 1 GUIDANCE FOR COMPLIANCE ASSESSMENTS
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APPENDIX 2 TRESPASS ARRESTS IN NYCHA AND ELSEWHERE
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APPENDIX 3 MEMORANDUM OF UNDERSTANDING BETWEEN THE CIVILIAN COMPLAINT REVIEW BOARD AND THE NYPD
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MEMORANDUM OF UNDERSTANDING

MEMORANDUM OF UNDERSTANDING BETWEEN THE NEW YORK CITY POLICE DEPARTMENT AND THE NEW YORK CITY CIVILIAN COMPLAINT .
REVIEW BOARD

Memorandum of Understanding ("MOU") entered into on this

day of N:::32019,

between the New York City Police Department ("NYPD"), with headquarters at One Police Plaza,

New York, New York 10038; and the New York City Civilian Complaint Review Board

("CCRB"), with offices at 100 Church Street, New York, New York 10007 (collectively the

"Parties").

WHEREAS, Section 440 of the New York City Charter gives CCRB the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language ("FADO"); and

WHEREAS, in accordance with Section 440 of the New York City Charter, CCRB's investigators collect and review all available evidence, such as documents and video and audio recordings, including footage from body worn cameras ("BWC"), and interview all available victims, witnesses, subject officers, and witness officers, among others, as part of its investigative process, and

WHEREAS, Section 1-23(e) of Title 38-A of the Rules of the City of New York states that the CCRB may obtain records and other materials from NYPD which are necessary for the investigation of complaints submitted to the CCRB, except such records and materials that cannot be disclosed by law, and the CCRB may issue subpoenas for those requests; and

WHEREAS, the CCRB's Administrative Prosecution Unit ("APU"), which was created pursuant to a separate Memorandum of Understanding between CCRB and NYPD dated April 2, 2012, is authorized to prosecute substantiated cases where the CCRB has recommended that Charges and Specifications be brought against a subject officer, except in those cases where the Police Commissioner retains jurisdiction; and

WHEREAS, Section 440 of the New York City Charter requires that NYPD provide assistance as CCRB may reasonably request, cooperate fully with CCRB investigations, and provide the CCRB, upon request, records and other materials necessary for the investigation of

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complaints submitted to CCRB, except such records or materials that cannot be disclosed by law; and
WHEREAS, Section 434 of the New York City Charter gives the Police Commissioner cognizance and control over the disposition and discipline of the department and police force; and
WHEREAS, Section 14-115 of the New York City Administrative Code gives the Police Commissioner discretionary power to discipline members of the department for criminal offenses, neglect of duty, violation of rules, neglect or disobedience of orders, conduct injurious to the public peace or welfare, or immoral conduct or conduct unbecoming of an officer, by reprimand, suspension, with or without pay, or dismissal; and
WHEREAS, while the CCRB investigates civilian complaints independent from NYPD, CCRB's Charter-mandated jurisdiction over FADO complaints brought by civilians against members of NYPD makes the CCRB an integral component of NYPD's disciplinary process;
WHEREAS, the NYPD has provided body-worn cameras ("BWC") to police officers on patrol and has begun wider deployment of BWCs to officers throughout the department, and the camera footage routinely captures interactions between police officers and members of the public whom they encounter while on patrol;
WHEREAS, the CCRB routinely requests BWC footage from the NYPD in connection with investigations it conducts and it is in both parties' interests to create an efficient process by which CCRB can request such footage from NYPD and NYPD can provide such footage to CCRB;
WHEREAS, CCRB and NYPD agree that premature submission of a search request, without information that can be obtained through a diligent investigation prior to submission of the form, is counterproductive and contrary to the intent of this agreement as it will routinely result in multiple requests in the same case causing delays in providing video footage to the CCRB by the NYPD;
WHEREAS, by signing this agreement the NYPD intends to expeditiously process requests for BWC footage it receives from CCRB and to provide relevant footage to CCRB, and CCRB intends to make diligent efforts to collect and identify relevant facts and information in connection with complaints it receives before requesting BWC footage so that requests made to
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the NYPD will contain as many facts as possible, making it easier for NYPD to identify relevant footage and significantly reducing the need for NYPD to conduct multiple searches for each case;
NOW THEREFORE, upon the mutual agreement of the Parties, it is agreed as follows:
I. CREATION OF BWC SEARCH AND REVIEW FACILITY 1 NYPD will set up a secure search and viewing room at 100 Church Street, 12th Floor, New York, NY, 10007, or some other mutually convenient location, with at least ten (10) computer terminals ("Secure Room"). A sufficient number of computer terminals will be staffed by an NYPD employee and a CCRB employee during all operating hours specified below, for the purpose of entering search criteria and identifying BWC video(s) responsive to search requests submitted by the CCRB. The remaining computers will be available for CCRB staff to view BWC videos that were responsive to CCRB's particular search requests. 2. The NYPD and CCRB will each make a supervisor available to address issues that may arise in the Secure Room. 3. The Secure Room will be accessible to CCRB personnel during normal business hours— Monday to Friday, specific times to be agreed upon by the NYPD and the CCRB. 4. Each CCRB investigator and staff member granted access to the secure room will sign a confidentiality and non-disclosure agreement in regard to the information observed or obtained in the Secure Room. 5. Each CCRB investigator will have their own unique user name and password for both the Vievu Solution and Axon Evidence.com systems, which can only be logged into on computers located in the Secure Room dedicated for this purpose. All logins under each user name will be recorded and subject to audit by the NYPD. Misuse of a user name and/or access privileges or improper dissemination of any information obtained from search results shall be grounds for revocation or suspension of the offender's access privileges by the NYPD. 6. CCRB investigators will obtain the same training for both the Vievu Solution and Axon Evidence.com systems, by each system's vendor, as is provided to NYPD personnel for the searching and retrieval of video evidence, including all updates and refresher courses. Costs for such training will be borne by CCRB.
II. SEARCHING AND REVIEW OF BWC FOOTAGE 1. CCRB investigators may submit search requests for BWC video in any case where the CCRB has received a complaint from a member of the public against a uniform member of the NYPD for alleged incidents of misconduct which fall under CCRB's jurisdiction.
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2. In order to initiate a search, the CCRB investigator must complete a BWC search request form, providing as much information as is available to the investigator at the time of the request. Prior to submitting the search request, the CCRB investigator shall review all records that already have been provided by the NYPD, to determine if those records contain information needed for the search request form and shall diligently conduct as many investigatory steps as reasonable to locate additional information necessary to conduct a comprehensive search. After the request form is complete, the CCRB investigator shall email the search request form to BWC-Legal@nypd.org.
3. After receiving the BWC search request form, the NYPD, in the presence of a CCRB employee, will search both the Vievu Solutions and Axon Evidence.com software to locate any videos responsive to the search criteria.
a. The NYPD will use the search terms listed on the search form provided by the CCRB investigator. The search terms submitted by CCRB must be reasonably related to the information provided in the complaint or information obtained during CCRB's investigation. Except in exceptional circumstances, CCRB shall submit no more than ten (10) search terms in a search request.
b. If the search criteria is too broad or too narrow to reasonably identify relevant BWC video(s), the NYPD and CCRB employees shall confer to adjust the search parameters, and, if necessary, request additional information from the CCRB investigator who submitted the search request.
c. The CCRB employee will determine which BWC video(s) returned by the search are relevant and should be made available for viewing by the investigator making such request.
d. Once a video is determined to be relevant:
i. In Vievu Solutions, each video will be tagged in the event field with the corresponding CCRB number.
ii. In Axon Evidence.com, a case will be created and titled with the corresponding CCRB case number.
e. The entire NYPD BWC database shall be available for search. To the extent that certain videos are on "lockdown" and are unavailable, the search results shall reflect that the video exists, but that it is unavailable, or NYPD personnel with access to "lockdown" videos will perform an independent search of such videos and represent to CCRB that the requested video exists, but is not accessible.
4. BWC video(s) deemed relevant and responsive to a search request will be shared in its entirety by NYPD staff and accessible by CCRB via the terminals in the Secure Room designated for video review.
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a. None of the video(s) uploaded for review purposes shall be redacted, clipped, edited, deleted or altered in any way.
b. The CCRB investigator who submitted the BWC search request shall be notified when the BWC video(s) becomes accessible in the Secure Room. The CCRB investigator will appear at the Secure Room, at a time convenient for the investigator, and review the uploaded video(s) to determine which video(s), or portion(s) thereof, is relevant and needed for the CCRB investigation.
5. CCRB investigators are strictly prohibited from making any sound or video recordings of any BWC video, or segments thereof, on cell phones or other recording devices.
6. CCRB investigators may take notes during the review of BWC video. 7. CCRB investigators shall not use any information obtained during this process that is
unrelated to the incident under investigation. a. If, while reviewing video related to a complaint, the CCRB investigator recognizes or believes that he or she has observed potential misconduct by an NYPD uniform member of the service ("UMOS") unrelated to the incident under investigation by the CCRB, the investigator shall refer the incident to the NYPD's Internal Affairs Bureau. The CCRB investigator shall not commence an investigation into the unrelated incident. b. The NYPD IAB Liaison will inform the CCRB of the actions, including dispositions, it has taken in response to any such referral.
c. If CCRB subsequently receives a complaint from a member of the public regarding the incident that was referred to Internal Affairs Bureau, the NYPD will provide the footage related to the initial referral, pursuant to a new request from CCRB, and subject to the subsequent provisions of this agreement.
III. PRODUCTION OF RESPONSIVE FOOTAGE 1. After the CCRB investigator determines which shared BWC video(s), or portion(s) thereof, is relevant to the CCRB investigation, the CCRB investigator shall send an email to BWCLegal@nypd.org requesting the specific footage to be shared with the CCRB for download purposes. a. The email shall include, the CCRB case number, the requested file name(s), name(s) of the UMOS, if known, and the time stamps for the specific portion of the BWC video(s) being requested, in those instances where the entire video is not being requested.
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2. Absent exceptional circumstances, requested BWC video(s) not requiring redaction shall be provided to the CCRB within ten (10) business days. The NYPD shall make best efforts to provide redacted video(s) within twenty-five (25) business days.
3. The entirety of the requested footage shall be provided, subject to the following provisions and subsection (d) of subdivision (3) of this section.
a. If the BWC video request is denied or all or any portion of the requested footage is redacted, clipped, altered, or deleted in any way, the changes must be specified in writing by the NYPD along with an explanation and rationale for the denial, redaction, or clipping, including specific citation to the statute (including subdivision(s), where applicable) and/or legal provision relied upon, if applicable.
b. NYPD may redact and/or clip the provided footage according to the following considerations, as well as subsection (d) below:
i. Medical treatment being provided to any private citizen or UMOS. ii. Any NYPD computer, mobile data terminal, cell phone, or other
equipment depicting: (a)confidential databases or (b) confidential information. iii. Any UMOS cell phone depicting personal photos, phone numbers or social media accounts unrelated to the investigation. iv. Any key pad code entries for Department facilities. v. Protecting the identity of any undercover officer or confidential informant. In cases where an undercover officer's image is redacted, NYPD will inform CCRB of the individual's UC Number. c. For recordings related to cases sealed pursuant to Criminal Procedure Law §§ 160.50/160.55 or Family Court Act §§ 375.1, 375.2, recordings containing the identity of the victim of a sex crime pursuant to Civil Rights Law § 50-b, or recordings depicting a juvenile questioned or detained by the Department, if the CCRB does not have a release from the individual(s) whose case has been sealed, from the victim(s) of the sex crime, or the parent/guardian of the juvenile, the NYPD will blur the faces and redact the audio of all personally identifying information such as name, date of birth, and address, as well as the audio of any admission of a sex offense pursuant to CRL 50-b of the individual(s) from whom the CCRB has not obtained consent or a release.
d. NYPD shall not refuse to disclose or delay disclosure of footage on the ground that it is conducting a concurrent or parallel investigation, except for those investigations being conducted by the Force Investigation Division and other sensitive force investigations not being conducted by FID. Notwithstanding, upon the conclusion of the investigation, the BWC footage will be shared with CCRB.
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e. Disputes over whether a video is relevant to a CCRB investigation will be resolved through the procedure described in Section IV, entitled "Dispute Resolution."
f. CCRB will adopt procedures to obtain valid consent, when possible, to view and use BWC footage without redaction or blurring at the start of its investigation. Informed, verbal consent shall be sufficient. CCRB investigators shall affirm in writing on their search request form that they have obtained valid consent from the proper party, including the name of the individual providing consent. (i) CCRB will endeavor to obtain written waivers/consent from depicted complainants, if possible, and will ensure that CCRB employees accepting complaints via telephone, in-person or otherwise use scripted language seeking a verbal waiver/consent from depicted complainants for recordings related to cases sealed pursuant to Criminal Procedure Law §§ 160.50/160.55 or Family Court Act §§ 375.1, 375.2, recordings containing the identity of the victim of a sex crime pursuant to Civil Rights Law § 50b, or recordings depicting a juvenile,.
4. NYPD shall share the requested footage via the Vievu Solutions or Axon Evidence.com software systems with the CCRB staff designated in both systems, which will only include members of the CCRB NYPD Liaison Unit. The footage may be downloaded by members of the CCRB NYPD Liaison Unit which has the necessary download capabilities.
IV. DISPUTE RESOLUTION 1. If the CCRB disagrees with the NYPD's denial, redaction or clipping, of requested BWC video, the Parties shall meet and confer to try to resolve the dispute. 2. If the Parties are unable to resolve the dispute, the dispute will be referred to the New York City Law Department ("Law Department") for review. Disputes will be resolved by the Corporation Counsel or his or her designee. The dispute resolution request shall include a copy of the NYPD's denial, the CCRB's explanation for why the recording should have been disclosed, and any 'other relevant information. A person designated by the NYPD's Deputy Commissioner, Legal Matters shall be copied on any dispute resolution request sent by the CCRB to the Law Department. 3. Both parties agree to timely provide the Law Department with any materials or information it requests in order to resolve the dispute. The NYPD and CCRB agree to accept the determination of the Law Department. 4. If prior to the Law Department issuing a determination, the NYPD reconsiders its denial, redaction, editing, deletion or clip, it shall immediately provide the CCRB with the
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recording and notify the Law Department that the dispute has been resolved and no determination is necessary. If the CCRB withdraws its challenge to the NYPD's denial, redaction, or clip, prior to the Law Department issuing a determination, it shall promptly notify the NYPD and the Law Department that no determination is necessary.
V. CONFIDENTIALITY 1. The CCRB agrees that records and BWC recordings obtained from the NYPD, and any materials created therefrom, are confidential, must be kept secure and may not be disclosed or made public, except as may be mandated by lawful order of a court of competent jurisdiction or statute. 2. The Parties shall comply with all applicable laws, rules, regulations, and agreements pertaining to the confidentiality, privacy and security of the information accessed pursuant to this MOU. 3. In the event that the CCRB receives a subpoena, judicial order, or other legal process for copies of records related to a sealed case, the CCRB shall notify the NYPD, in writing as soon as practicable. The CCRB shall not release the records without first notifying the NYPD. 4. In the event that the CCRB receives a Freedom of Information Law ("FOIL") request for records that include NYPD records obtained pursuant to this MOU, the CCRB shall consult and cooperate with NYPD in responding to the FOIL request. Both NYPD and CCRB shall each designate a FOIL representative for the purpose of resolving any disagreements. If the Parties cannot agree on which, if any, records should be disclosed pursuant to FOIL, the records in dispute shall not be disclosed until the Law Department issues a determination. 5. Nothing in this Agreement shall prevent the CCRB from notifying complainants and/or victims of the findings of the CCRB's investigation.
VI. TERM AND TERMINATION 1. Termination of this Agreement requires thirty (30) days written notice to the other Party. Subdivision (1) of Section I of this MOU shall become effective immediately upon the execution of this agreement by the Parties, however, the remaining portions of this
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agreement shall not take effect until the satisfaction of Subdivision (1) of Section I. This agreement shall remain in effect until terminated in writing by either party.

VII. NOTICES

1. Notices to be sent pursuant to this Agreement shall be sent to:

If to CCRB: NYC Civilian Complaint Review Board General Counsel 100 Church Street, 10th Floor New York, NY 10007

If to NYPD: Deputy Commissioner, Legal Matters New York City Police Department One Police Plaza, Room 1406 New York, NY 10038

VIII.

MERGER AND MODIFICATION
1. This MOU constitutes the entire agreement among the Parties, and merges all prior discussions, agreements or understandings regarding its subject matter into it. No prior agreements, oral or otherwise, regarding the subject matter of this MOU, shall be deemed to exist or to bind either of the Parties hereto.
2. This MOU shall only be modified in a writing signed by the Parties.

IX. NO THIRD-PARTY BENEFICIARY
1. This MOU shall be binding upon and for the benefit of the Parties hereto and their respective successors and permitted assigns. The provisions of this MOU shall be for the sole benefit of the Parties hereto and no other person or entity shall be a third-party beneficiary thereof.

IN WITNESS THEREOF, the Parties have executed this MOU by the signatures of duly authorized officials.

NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD

NEW YORK CITY POLICE DEPAR

Fred Davie CHAIR, CCRB

Ja s P. O'Neill POLICE COMMISSIONER

 
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findings of incredible testimony by police officers; (d) denials of indemnification and/or representation of police officers by the New York City Law Department; and (e) judgments and settlements against police officers in civil cases where, in the opinion of the New York City Law Department, there exists evidence of police malfeasance; and
WHEREAS, the NYPD has consulted with the Monitor and Plaintiffs’ counsel and finalized a plan to implement the above program;
NOW, THEREFORE, it is hereby ORDERED on this 2nd day of June 2020 that: 1. The NYPD shall make reasonable efforts to systematically obtain the following categories of information in the manner described herein:
a. From the District Attorney’s Offices of Bronx, Kings, New York, Queens, and Richmond Counties (collectively, “District Attorney’s Offices”), data, preferably in digitized, automated form, regarding all declinations of prosecutions falling into any of the following categories:
(i) complainant or witness failed to positively identify defendant; or (ii) incorrect or missing paperwork; or (iii) insufficient evidence; or (iv) lack of element of crime; or (v) lack of jurisdiction; or (vi) lack of nexus between defendant and crime; or (vii) mere presence of defendant at location; or (viii) no personal observation of violation by arresting officer; or (ix) potential search and seizure issues; or (x) unavailability of arresting officer; or
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(xi) prosecutorial discretion; or (xii) summonsable offense. b. From the Office of Court Administration and the United States Attorney’s Offices for the Eastern and Southern Districts of New York, suppression decisions in which evidence was precluded as a result of court findings of unlawful stops and searches from state and federal criminal proceedings, juvenile delinquency proceedings, and child abuse and neglect proceedings. The following types of documents and information shall be obtained, preferably as digitized automated data, to the extent that they are available: (i) Aggregate data and individual records of all suppression hearings
and/or decisions in which a decision was made to suppress evidence, including the names of police officers and supervisors on the scene at the time of the encounter and/or police officers testifying about the encounter; and (ii) transcripts of suppression hearings; and (iii) written opinions or decisions, if available, concerning suppressed evidence. When required by New York State law, the NYPD shall file an unsealing application to obtain the above information in this section. The NYPD shall request that the Office of Court Administration and relevant personnel in the U.S. Attorney’s offices work with the NYPD to develop standard, efficient, and mutually acceptable procedures to ensure these data are routinely provided and shall approach the Court if external obstacles impede this obligation.
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c. From the District Attorney’s Offices, New York City Law Department, and the United States Attorney’s Offices for the Eastern and Southern Districts of New York, judicial decisions finding a police officer not credible, including from state and federal criminal proceedings, juvenile delinquency proceedings, and child abuse and neglect proceedings. The following types of documents in cases regarding court findings of incredible testimony shall be obtained, to the extent that they are available:
(i) Aggregate data and individual records of all court findings of incredible testimony, including the names of police officers and supervisors on the scene at the time of the encounter and/or police officers testifying about the encounter; and
(ii) transcripts of hearings regarding court findings of incredible testimony; and
(iii) written opinions or decisions regarding court findings of incredible testimony.
When required by New York State law, the NYPD shall file an unsealing application to obtain the above information in this section.
d. From the New York City Law Department, in any civil lawsuit alleging an unconstitutional stop, unconstitutional trespass enforcement, or racial profiling, including racial slurs, and if the Law Department declined to indemnify or represent a police officer, the civil complaint, notices of claim, and the declination letter. The NYPD shall also solicit from the Law Department the general basis for the declination of indemnification or representation, and identification of material(s) that directly underlie the general basis, to
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the extent that information is not protected from disclosure by operation of law or applicable privilege.
(i) In this order, the term “racial profiling” means police action initiated with race, color, ethnicity, or national origin as a motivating factor.
(ii) In this order, the term “racial slur” includes offensive language, and derogatory remarks or gestures, based on race, color, ethnicity, or national origin.
e. From the New York City Law Department, in any civil lawsuit or settlement alleging an unconstitutional stop, an unconstitutional trespass enforcement, or racial profiling, including racial slurs, where there has been a judgment or settlement against a police officer, and where there exists evidence that that police officer violated a rule or regulation of the NYPD, identification of such evidence, including, but not limited to, notices of claims and civil complaints, to the extent that the evidence is not protected from disclosure by operation of law or applicable privilege.
2. All such information in paragraph 1 shall be entered into computerized relational databases and commands shall be notified in the event of: (a) declinations of prosecution by the District Attorney’s Offices; (b) suppression decisions by courts precluding evidence as a result of unlawful stops and searches; (c) court findings of incredible testimony by police officers; (d) declinations of indemnification and/or representation of police officers by the New York City Law Department as described in paragraph 1(d) above; and (e) judgments and settlements against police officers in civil cases as described in paragraph 1(e) above.
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3. The NYPD shall systematically assess the following categories of information in

the manner described herein:

a. The NYPD shall utilize an Early Intervention Committee (“Committee”) to

systematically assess information regarding adverse findings on the conduct of police

officers involving illegal stops, illegal trespass enforcements, or racial profiling, including

racial slurs. The Committee shall be comprised of executive-level personnel representing

the Deputy Commissioner of Legal Matters, the Deputy Commissioner of Equity and

Inclusion, the Deputy Commissioner of Risk Management, the Chief of Department, the

Chief of Detectives, the Chief of Patrol, and the Chief of Personnel. The Committee must

convene no less than once every three months.

b. The NYPD shall designate personnel to compile the above categories of

information on a regular basis and identify police officers who may require early

intervention (“Subject Officers”). The designated NYPD personnel shall enter the

compiled information into a database, and ensure that the compiled information is

transmitted to the Committee.

c.

The Committee shall set forth a written policy for the evaluation of the

information collected with sufficient detail to guide its assessments of individual officers

and the extent and manner of intervention to be applied. The policy should allow for a

range of appropriate remedial measures including, but not limited to:

(i) refresher trainings;

(ii) mentoring;

(iii) monitoring;

(iv) enhanced supervision;

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(v) change of assignment;

(vi) health and wellness referral; and

(vii) referral for potential disciplinary action to an internal NYPD bureau, or

for criminal investigation to an external agency, such as a District

Attorney’s Office.

The policy shall provide flexibility to tailor interventions to each Subject Officer’s

circumstances. The policy shall contain guidelines to ensure consistent, fair, and

proportionate outcomes. The policy shall be posted on the NYPD public website.

d. The Committee shall track metrics to measure performance of the program,

including: (a) number of police officers assessed, categorized by type of threshold

triggered; (b) number of police officers who triggered the early intervention system

mechanism more than once; (c) number of interventions or remedies directed, categorized

by type and duration; (d) number of police officers successfully completing written action

plans referred to in paragraph 4.d; (e) number of police officers subject to early intervention

who continued to be flagged for monitoring once the recommended intervention was

complete; (f) number of police officers who become the subject of Civilian Complaint

Review Board or NYPD investigations, or lawsuits, after entry into the program; and (g)

number of police officers terminated or placed on dismissal probation after entry into the

program. The NYPD shall report on these metrics quarterly. The quarterly reports shall

be statistical and summary in nature without identifying characteristics, and shall be

publicly available.

e.

The Committee, in consultation with the Monitor and available to Plaintiffs

prior to adoption, shall develop a program for systematically receiving and assessing

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information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements for consideration in officer performance evaluations, transfer requests and discretionary promotional decisions. Such assessments and relevant information shall be provided to the Police Commissioner, or the Police Commissioner’s designee(s), for consideration by personnel making performance evaluations, transfer or discretionary promotional decisions, on a case by case basis, as the Police Commissioner deems appropriate.
f. The Committee must assess a Subject Officer’s need for early intervention when a Subject Officer crosses designated thresholds. A Subject Officer crosses a designated threshold when he or she:
(i) receives three or more declinations of prosecution relating to the categories specified in paragraph 1(a)(i)-(xii) in a twelve-month period; or
(ii) receives a suppression decision in a case in which evidence was precluded as a result of an allegation of an unlawful stop, frisk, search, trespass enforcement or racial profiling, including racial slurs; or
(iii) receives a court finding of incredible testimony; or (iv) is a named defendant in a lawsuit and the New York City Law
Department has declined to represent the Subject Officer; or (v) is a named defendant in a lawsuit and the New York City Law
Department has declined to indemnify the Subject Officer; or (vi) is a named defendant in any lawsuit alleging an unconstitutional stop,
an unconstitutional trespass enforcement, or racial profiling or racial
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slurs where there has been a judgment or settlement against a police officer, and where there exists evidence that the police officer violated a rule or regulation of the NYPD; or (vii) receives any complaint containing an allegation of racial profiling or racial slurs. 4. The NYPD shall systematically act on the following categories of information in the manner described herein: a. The Committee shall determine if intervention with respect to a Subject Officer is appropriate after reviewing: (1) all relevant details pertaining to the underlying facts of the incident or incidents that caused the Subject Officer to cross a threshold; (2) the Subject Officer’s disciplinary history and performance monitoring; (3) the Subject Officer’s tenure with the NYPD; (4) the Subject Officer’s performance evaluations; (5) the Subject Officer’s past and current assignments; and (6) whether the Subject Officer has appeared before the Committee more than once. The Committee may also utilize or consult with other NYPD resources, such as a NYPD health and wellness representative or the commander of the Training Academy. When appropriate, the Committee shall select from a range of interventions, including, but not limited to: (i) refresher trainings; (ii) mentoring; (iii) monitoring; (iv) enhanced supervision; (v) change of assignment; (vi) health and wellness referral; and
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(vii) referral for potential disciplinary action to an internal NYPD bureau, or for criminal investigation to an external agency, such as a District Attorney’s Office.
b. The Committee shall review, and the NYPD shall enter into the computerized database described in paragraph 2 above, all relevant data pertaining to officers identified as lacking in credibility or flagged as ineffective by the District Attorney’s Offices. This shall include any relevant or associated case materials obtained or received by the Early Intervention Committee, the Adverse Credibility Committee, any of their constituent members, or any other bureau or office within the NYPD. Where relevant information exists, it shall factor into the decision-making of the Committee, be associated with the Subject Officer in the computerized database, and be considered in connection with any early intervention determination.
c. The Committee, before making its decision, shall ask the commanding officer or their designee for their recommendation on what early intervention would be effective and, if there had been any prior efforts at interventions, their effectiveness.
d. The Committee, within seven business days of making a decision, shall communicate the appropriate intervention to the Subject Officer’s commanding officer, along with any other relevant internal stakeholders, in a written action plan, and return a copy of the written action plan to the Risk Management Bureau (“RMB”). RMB must file the written action plan in a database in a manner that permits analysis in the aggregate. In the event that the Committee determines that no intervention is required, RMB shall log the non-intervention in a database.
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 CLOSED,CASREF,COMPLEX−CSMGMT,ECF,RELATED
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:12−cv−02274−AT−HBP

Ligon et al v. City of New York et al Assigned to: Judge Analisa Torres Referred to: Magistrate Judge Henry B. Pitman Related Case: 1:10−cv−00699−AT−HBP Cause: 42:1983 Civil Rights Act
Plaintiff
Jaenean Ligon individually and on behalf of her minor son, J.G.

Date Filed: 03/28/2012 Date Terminated: 07/19/2017 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alexis Brie Karteron New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 607−3300 Fax: (212)−607−3318 Email: alexis.karteron@law.rutgers.edu TERMINATED: 06/06/2016

Christopher T Dunn New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212) 344−3005 Fax: (212) 344−3318 Email: cdunn@nyclu.org ATTORNEY TO BE NOTICED

Daniel Erik Mullkoff New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212)−607−3385 Fax: (212)−607−3318 Email: dmullkoff@nyclu.org TERMINATED: 02/25/2014

Foster S. Maer Puerto Rican Legal Defense and Education Fund, Inc 99 Hudson Street 14th Floor New York, NY 10013 (212)−739−7507 Fax: (212)−431−4276 Email: foster_maer@prldef.org ATTORNEY TO BE NOTICED

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

Jeffrey Jason Resetarits Shearman & Sterling LLP (NY) 599 Lexington Avenue New York, NY 10022 (212)−848−7116

Fax: (646)−848−7116 Email: jeffrey.resetarits@shearman.com ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−838−7878 Fax: 718−665−0100 Email: jennb@bronxdefenders.org ATTORNEY TO BE NOTICED
Johanna Beth Steinberg The Bronx Defenders 360 East 161st Street Bronx, NY 10451 718−508−3447 Fax: 718−838−7819 Email: johannas@bronxdefenders.org TERMINATED: 07/18/2019
John A. Nathanson Shearman & Sterling LLP (NY) 599 Lexington Avenue New York, NY 10022 (212)−848−8611 Fax: (646)−848−8611 Email: john.nathanson@shearman.com ATTORNEY TO BE NOTICED
Jordan Wells American Civil Liberties Union of Southern California 1313 W. 8th St. Suite 200 Los Angeles, CA 90017 213−977−9500 Email: jwells@nyclu.org TERMINATED: 10/12/2018
Juan Cartagena Latinojustice Prldef 99 Hudson Street New York, NY 10013 (212)−219−3360 Fax: (212)−431−4276 Email: jcartagena@latinojustice.org ATTORNEY TO BE NOTICED
Kevin Eli Jason NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 212−965−2221 Email: kjason@nyclu.org TERMINATED: 10/01/2019
Mariana Louise Kovel New York Civil Liberties Union 125 Broad St. 19th Floor New York, NY 10004 212−607−3300 Fax: 212−607−3329

Email: mkovel@nyclu.org TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant U.S.D.C.−S.D.N.Y. Pro Se Office 500 Pearl St. New York, NY 10007 ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin Shearman & Sterling LLP (NY) 599 Lexington Avenue New York, NY 10022 (212)−848−5213 Fax: (646)−848−5213 Email: mayer.grashin@dechert.com TERMINATED: 05/14/2013
Michael Grunfeld Pomerantz LLP 600 Third Ave, 20th Floor New York, NY 10016 212−661−1100 Fax: 917−463−1044 Email: mgrunfeld@pomlaw.com ATTORNEY TO BE NOTICED
Paige Lynn Berges Shearman & Sterling LLP (NY) 599 Lexington Avenue New York, NY 10022 (212) 848−4000 Fax: (646) 848−8049 TERMINATED: 08/29/2012
Roberto, Jr. Concepcion Pechman Law Group PLLC 488 Madison Avenue New York, NY 10022 212−583−9500 Fax: 212−308−8582 Email: concepcion@pechmanlaw.com TERMINATED: 04/03/2014
Sarah Pazit Lustbader Shearman & Sterling 599 Lexington Ave. New York, NY 10022 (212)−848−7081 Fax: (646)−848−7081 Email: sarah.lustbader@shearman.com ATTORNEY TO BE NOTICED
Scott Duffield Levy The Bronx Defenders 860 Courtlandt Ave. Bronx, NY 11238 (718)−838−7833 Fax: (718)−508−3547 Email: scottl@bronxdefenders.org ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman

Plaintiff
Fawn Bracy individually and on behalf of her minor son, W.B.

The Bronx Defenders 360 East 161st Street Bronx, NY 10451 (347)−842−1335 Email: shakeerr@bronxdefenders.org TERMINATED: 08/30/2019
Taylor Scott Pendergrass New York Civil Liberties Union 125 Broad Street, 17th floor New York, NY 10004 (212)−607−3344 Fax: (212)−607−3300 Email: tpendergrass@nyclu.org TERMINATED: 03/10/2014
Tiana Jeanne Peterson Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 (212) 848−5222 Fax: (646) 848−5222 Email: tiana.peterson@shearman.com ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address)

Plaintiff
Jacqueline Yates individually and on behalf of a class of all others similarly situated

TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014

Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Letitia Ledan individually and on behalf of a class of all others similarly situated

Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018

Plaintiff
Roshea Johnson individually and on behalf of a class of all others similarly situated

ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta

Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED

Kieron Johnson individually and on behalf of a class of all others similarly situated

represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jovan Jefferson individually and on behalf of a class of all others similarly situated

Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018

Plaintiff
A.O. by his parent DINAH ADAMES

Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer

(See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass

Plaintiff
Abdullah Turner individually and on behalf of a class of all others similarly situated

(See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Fernando Moronta individually and on behalf of a class of all others similarly situated

Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016
Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address)

Plaintiff
Charles Bradley individually and on behalf of a class of all others similarly situated

TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012
Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Alexis Brie Karteron (See above for address) TERMINATED: 06/06/2016

Christopher T Dunn (See above for address) ATTORNEY TO BE NOTICED
Daniel Erik Mullkoff (See above for address) TERMINATED: 02/25/2014
Foster S. Maer (See above for address) ATTORNEY TO BE NOTICED
J. McGregor Smyth , Jr (See above for address) ATTORNEY TO BE NOTICED
Jeffrey Jason Resetarits (See above for address) ATTORNEY TO BE NOTICED
Jennifer Rolnick Borchetta (See above for address) ATTORNEY TO BE NOTICED
Johanna Beth Steinberg (See above for address) TERMINATED: 07/18/2019
John A. Nathanson (See above for address) ATTORNEY TO BE NOTICED
Jordan Wells (See above for address) TERMINATED: 10/12/2018
Juan Cartagena (See above for address) ATTORNEY TO BE NOTICED
Kevin Eli Jason (See above for address) TERMINATED: 10/01/2019
Mariana Louise Kovel (See above for address) TERMINATED: 04/04/2018 ATTORNEY TO BE NOTICED
Maxwell Christopher Fabricant (See above for address) ATTORNEY TO BE NOTICED
Mayer Benjamin Grashin (See above for address) TERMINATED: 05/14/2013
Michael Grunfeld (See above for address) ATTORNEY TO BE NOTICED
Paige Lynn Berges (See above for address) TERMINATED: 08/29/2012

V. Defendant City of New York

Roberto, Jr. Concepcion (See above for address) TERMINATED: 04/03/2014
Sarah Pazit Lustbader (See above for address) ATTORNEY TO BE NOTICED
Shakeer Mostafa Rahman (See above for address) TERMINATED: 08/30/2019
Taylor Scott Pendergrass (See above for address) TERMINATED: 03/10/2014
Tiana Jeanne Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Amatullah Khaliha Booth Office of the Corporation Counsel, NYC Law Department 100 Church Street New York, NY 10007 212−356−3534 Email: abooth@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
David Allen Cooper New York City Law Department 100 Church Street New York, NY 10007 (212) 356−3535 Email: dcooper@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph Anthony Marutollo New York City Law Department 100 Church Street New York, NY 10007 (212)−788−1300 Fax: (212)−788−0367 Email: jmarutol@law.nyc.gov TERMINATED: 03/18/2015 LEAD ATTORNEY
Joy Tolulope Anakhu New York City Law Department 100 Church Street New York, NY 10007 (212) 356−2323 Email: janakhu@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mark David Zuckerman New York City Law Department 100 Church St.

Defendant
Raymond W. Kelly Commissioner of the New York City Police Department

New York, NY 10007 212−356−3519 Email: mzuckerm@law.nyc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke New York City Law Department 100 Church Street New York, NY 10007 (212) 513−0462 Fax: (212) 788−0367 Email: bcooke@law.nyc.gov TERMINATED: 02/23/2015
Lisa Marie Richardson New York City Law Department 100 Church Street, Room 4−114 New York, NY 10007 (212) 442−0832 Fax: (212) 788−9776 Email: lrichard@law.nyc.gov TERMINATED: 09/04/2015
Raju Sundaran New York City Law Department 100 Church Street Room 6−188 New York, NY 10007 (212)−788−0467 Fax: (212)−788−9776 Email: rsundara@law.nyc.gov ATTORNEY TO BE NOTICED
Richard Keith Weingarten New York City Law Department 100 Church Street New York, NY 10007 (212) 788−0682 Fax: (212) 788−9776 Email: rweingar@law.nyc.gov ATTORNEY TO BE NOTICED
represented by Joseph Anthony Marutollo (See above for address) TERMINATED: 03/18/2015 LEAD ATTORNEY
Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED

Defendant Police Office Johnny Blasini
Defendant Police Officer Gregory Lomangino
Defendant Police Officer Joseph Koch
Defendant Police Officer Kieron Ramdeen

represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address)

Defendant Joseph Bermudez
Defendant Police Officer Miguel Santiago
Defendant Police Officers John Does 1−12 Facilitator Nicholas Turner VERA Institute 233 Broadway 12th Floor New York, NY 10279 (212) 334−1300 TERMINATED: 11/10/2014 Facilitator Ariel E. Belen JAMS 620 Eight Avenue, 34th Floor New York, NY 10018 Monitor

TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED
represented by Mark David Zuckerman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brenda Elaine Cooke (See above for address) TERMINATED: 02/23/2015
Lisa Marie Richardson (See above for address) TERMINATED: 09/04/2015
Richard Keith Weingarten (See above for address) ATTORNEY TO BE NOTICED

Peter L Zimroth Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019 212−836−7316 V. Intervenor Patrolmen's Benevolent Association of the City of New York, Inc.
Intervenor Detectives' Endowment Association, Inc.

represented by James M. McGuire Dechert LLP 1095 Avenue of The Americas New York, NY 10036 (212) 698−3658 Fax: (212) 698−0489 Email: jmcguire@hsgllp.com TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Gilbert Dechert, LLP (NYC) 1095 Avenue of the Americas New York, NY 10036−6797 (212)698−3886 Fax: (212)698−3599 Email: michael.gilbert@dechert.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel Dechert, LLP (DC) 1341 27th Street NW Washington, DC 20007 (202)−261−3403 Fax: (202)−261−3143 Email: steven.engel@dechert.com TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul Dechert LLP Cira Circle, 2929 Arch Street Philadelphia, PA 19104 (215)−994−2708 Fax: (215)−665−2708 Email: elisa.wiygul@dechert.com TERMINATED: 05/01/2015
Lindsay Elizabeth Ray Dechert LLP (NYC) 1095 Avenue of the Americas New York, NY 10036−6797 (212)−698−3533 Email: lindsay.ray@dechert.com ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Intervenor NYPD Captains Endowment Association
Intervenor Lieutenants Benevolent Association of the City of New York, Inc.

Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address) TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015
Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address) TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015
Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED
represented by James M. McGuire (See above for address) TERMINATED: 11/20/2017 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven A. Engel (See above for address) TERMINATED: 11/14/2017 LEAD ATTORNEY
Elisa Talora Wiygul (See above for address) TERMINATED: 05/01/2015

Lindsay Elizabeth Ray (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/28/2012
03/28/2012 03/28/2012 03/28/2012 03/28/2012
04/02/2012 04/02/2012 04/02/2012 04/02/2012 04/02/2012

# Docket Text
1 COMPLAINT against Joseph Bermudez, Johnny Blasini, City of New York, John Does 1−12, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Filing Fee $ 350.00, Receipt Number 1033692)Document filed by A.O., Letitia Ledan, Jaenean Ligon, Fernando Moronta, Jacqueline Yates, Kieron Johnson, Abdullah Turner, Charles Bradley, Roshea Johnson, Jovan Jefferson, Fawn Bracy.(mro) (Entered: 03/29/2012)
SUMMONS ISSUED as to Joseph Bermudez, Johnny Blasini, City of New York, John Does 1−12, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (mro) (Entered: 03/29/2012)
CASE REFERRED TO Judge Shira A. Scheindlin as possibly related to 10−cv−699. (mro) (Entered: 03/29/2012)
Case Designated ECF. (mro) (Entered: 03/29/2012)
2 STANDING ORDER IN RE PILOT PROJECT REGARDING CASE MANAGEMENT TECHNIQUES FOR COMPLEX CIVIL CASES IN THE SOUTHERN DISTRICT OF NEW YORK (See M−10−468 Order filed November 1, 2011). This case is hereby designated for inclusion in the Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York (the Pilot Project), unless the judge to whom this case is assigned determines otherwise. This case is designated for inclusion in the Pilot Project because it is a class action, an MDL action, or is in one of the following Nature of Suit categories: 160, 245, 315, 355, 365, 385, 410, 830, 840, 850, 893, or 950. The presiding judge in a case that does not otherwise qualify for inclusion in the Pilot Project may nevertheless designate the case for inclusion in the Pilot Project by issuing an order directing that the case be included in the Pilot Project. The description of the Pilot Project, including procedures to be followed, is attached to this Order. (Signed by Judge Loretta A. Preska on 10/31/2011) (mro) (Entered: 03/29/2012)
3 SUMMONS RETURNED EXECUTED. City of New York served on 3/28/2012, answer due 4/18/2012. Service was accepted by Dmitriy Aronov. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
4 SUMMONS RETURNED EXECUTED. Raymond W. Kelly served on 3/28/2012, answer due 4/18/2012. Service was accepted by David Goldfarb. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
5 SUMMONS RETURNED EXECUTED. Kieron Ramdeen served on 3/30/2012, answer due 4/20/2012. Service was accepted by Sgt. Theresa Sadlier. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
6 SUMMONS RETURNED EXECUTED. Gregory Lomangino served on 3/30/2012, answer due 4/20/2012. Service was accepted by Sgt. Traci Jamerson−Barrett. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
7 SUMMONS RETURNED EXECUTED. Joseph Koch served on 3/30/2012, answer due 4/20/2012. Service was accepted by Sgt. Traci Jamerson−Barrett. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn

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Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
8 SUMMONS RETURNED EXECUTED. Miguel Santiago served on 3/30/2012, answer due 4/20/2012. Service was accepted by P.A. Cathay Murray. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
9 SUMMONS RETURNED EXECUTED. Joseph Bermudez served on 3/30/2012, answer due 4/20/2012. Service was accepted by Principal Keisha Sasso. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 04/02/2012)
10 NOTICE OF APPEARANCE by Mark David Zuckerman on behalf of City of New York, Raymond W. Kelly (Zuckerman, Mark) (Entered: 04/03/2012)
CASE ACCEPTED AS RELATED. Create association to 1:10−cv−00699−SAS−HBP. Notice of Assignment to follow. (pgu) (Entered: 04/03/2012)
11 NOTICE OF CASE ASSIGNMENT to Judge Shira A. Scheindlin. Judge Unassigned is no longer assigned to the case. (pgu) (Entered: 04/03/2012)
Magistrate Judge Henry B. Pitman is so designated. (pgu) (Entered: 04/03/2012)
12 NOTICE OF APPEARANCE by Roberto, Jr. Concepcion on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Concepcion, Roberto, Jr.) (Entered: 04/11/2012)
13 NOTICE OF APPEARANCE by Joseph Anthony Marutollo on behalf of City of New York, Raymond W. Kelly (Marutollo, Joseph) (Entered: 04/12/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Initial Pretrial Conference held on 4/17/2012. (djc) (Entered: 05/09/2012)
14 SCHEDULING ORDER:All depositions related to the motion for a preliminary injunction shall be completed by June 22, 2012. The plaintiffs shall submit an opening brief in support of their motion for a preliminary injunction by July 12, 2012;. The defendants' shall submit a brief in response by August 2, 2012. The plaintiffs shall submit any reply brief by August 13, 2012. (Signed by Judge Shira A. Scheindlin on 4/20/2012) (mro) (Entered: 04/23/2012)
15 TRANSCRIPT of Proceedings re: CONFERENCE held on 4/17/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: William Richards, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 5/29/2012. Redacted Transcript Deadline set for 6/7/2012. Release of Transcript Restriction set for 8/3/2012.(McGuirk, Kelly) (Entered: 05/02/2012)
16 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 4/17/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 05/02/2012)
17 NOTICE OF APPEARANCE by Mariana Louise Kovel on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Kovel, Mariana) (Entered: 05/22/2012)
18 ANSWER to 1 Complaint, with JURY DEMAND. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago.(Zuckerman, Mark) (Entered: 05/29/2012)

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19 NOTICE OF APPEARANCE by Taylor Scott Pendergrass on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Pendergrass, Taylor) (Entered: 05/29/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Initial Conference held on 5/29/2012. (cd) (Entered: 06/06/2012)
20 MEMORANDUM OPINION AND ORDER: #101911 This putative class action challenges the New York City Police Department's implementation of Operation Clean Halls, a program pursuant to which police officers patrol inside and around thousands of private residential apartment buildings throughout New York City. Plaintiffs allege that they and their minor children have been unlawfully stopped, questioned, frisked, and/or arrested in or around their homes or their family members' homes. The parties' first discovery dispute involves defendants' request for the unsealing of records relating to any prior arrests of plaintiffs. Defendants have no legitimate reason to examine paperwork from an old arrest for possession of drugs or disorderly conduct that terminated in a plaintiff's favor and was sealed pursuant to important state privacy law. When it can, the federal interest in broad discovery should accommodate this New York privilege. Defendants must be provided access to prior arrest records and paperwork only for charges of trespass or related crimes for the past ten years. Plaintiffs should also disclose to defendants the length of time that they were detained and incarcerated as a result of any prior arrests and any emotional or physical injuries that they suffered as a result of those arrests. This disclosure may be made in a sworn affidavit, but does not require the unsealing of arrest records. If, despite this guidance, the parties still disagree about the unsealing of particular arrest files, I will adjudicate the disputes on a case−by−case basis. (Signed by Judge Shira A. Scheindlin on 6/12/2012) (rjm) Modified on 6/13/2012 (jab). (Entered: 06/12/2012)
25 INTERNET CITATION NOTE: Material from decision with Internet citation re: 20 Memorandum & Opinion. (tro) (Entered: 07/17/2012)
21 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 (Unsealing of arrest records/other disputes during depositions). Referred to Magistrate Judge Henry B. Pitman. (Signed by Judge Shira A. Scheindlin on 6/12/2012) (cd) (Entered: 06/13/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 6/13/2012. (mro) (Entered: 06/15/2012)
22 NOTICE OF APPEARANCE by Richard Keith Weingarten on behalf of Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago (Weingarten, Richard) (Entered: 06/18/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/28/2012. (djc) (Entered: 07/06/2012)
23 ORDER: The scheduling order regarding plaintiffs' motion for a preliminaryinjunction is amended to reflect the following dates: July 6 Plaintiffs to disclose incidents at issue; July 13 Defendants to disclose fact witnesses;July 13 Plaintiffs to identify their expert; July 27 Plaintiffs to produce expert report; Sept. 10 Fact discovery cut−off; Sept. 14 Defendants to produce expert report; Sept. 21 Plaintiffs to file moving brief; Sept. 28 Expert discovery cut−off; Oct. 5 Defendants to file opposition brief; Oct. 9 Plaintiffs to file reply brief; (Expert Witness List due by 9/28/2012, Fact Discovery due by 9/10/2012, Motions due by 9/21/2012, Responses due by 10/5/2012, Replies due by 10/9/2012.) (Signed by Judge Shira A. Scheindlin on 6/28/2012) (djc) (Entered: 06/29/2012)
24 STIPULATED PROTECTIVE ORDER: regarding procedures to be followed that shall govern the handling of confidential material. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 7/03/2012) (ama) (Entered: 07/05/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/6/2012. (cd) (Entered: 07/12/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/10/2012. (cd) (Entered: 07/12/2012)

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26 NOTICE OF APPEARANCE by Mayer Benjamin Grashin on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Grashin, Mayer) (Entered: 07/20/2012)
27 NOTICE OF APPEARANCE by John A. Nathanson on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Nathanson, John) (Entered: 07/20/2012)
28 NOTICE OF APPEARANCE OF PRO BONO COUNSEL by Paige Lynn Berges on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Berges, Paige) (Entered: 07/23/2012)
29 TRANSCRIPT of Proceedings re: CONFERNCE held on 5/29/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Samuel Mauro, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/17/2012. Redacted Transcript Deadline set for 8/27/2012. Release of Transcript Restriction set for 10/25/2012.(McGuirk, Kelly) (Entered: 07/24/2012)
30 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 5/29/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/24/2012)
31 NOTICE OF APPEARANCE by Tiana Jeanne Peterson on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Peterson, Tiana) (Entered: 07/25/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/26/2012. (Landers, Rigoberto) (Entered: 08/10/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/26/2012. (pl) (Entered: 09/13/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/30/2012. (Landers, Rigoberto) (Entered: 08/10/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 7/30/2012. (pl) (Entered: 09/13/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 8/2/2012. (djc) (Entered: 08/06/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/8/2012. (lmb) (Entered: 08/27/2012)
32 OPINION AND ORDER # 102238: For the reasons stated above, defendants' request to summarily reject plaintiffs' motion for a preliminary injunction is denied. (Signed by Judge Shira A. Scheindlin on 8/21/2012) (djc) Modified on 8/24/2012 (ft). (Entered: 08/21/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 8/21/2012. (djc) (Entered: 08/28/2012)
33 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Mark D. Zuckerman dated 8/7/2012 re: Counsel for Defendants writes to respectfully request that the Court again consider the issues raised at the May 29, 2012 conference held in this matter in light of discovery that has taken place since that time, and summarily deny or defer plaintiffs' application for a preliminary injunction for the reason that the issue that the Ligon plaintiffs wish to raise at the upcoming hearing is just one subset of what is being litigated in the previously filed Floyd class action. ENDORSEMENT:

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The Clerk is directed to docket the parties' letters dated August 7,9,13,14 and 16. (Signed by Judge Shira A. Scheindlin on 8/23/2012) (pl) Modified on 8/23/2012 (pl). (Entered: 08/23/2012)
34 Letter addressed to Judge Shira A. Scheindlin from Christopher Dunn dated 8/9/2012 re: counsel writes on behalf of the plaintiffs in this challenge to certain aspects of the NYPD's "Clean Halls" program, we write in response to the City's August 7, 2012, letter asking the Court to summarily deny the plaintiffs' planned motion for a preliminary injunction or to defer the preliminary injunction hearing scheduled for October 2012. Document filed by Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(pl) (Entered: 08/23/2012)
35 Letter addressed to Judge Shira A. Scheindlin from Christopher Dunn dated 8/13/2012 re: counsel writes on behalf of the plaintiffs, we write to follow up on last Thursday's telephone conference during which the Court requested information about the distribution of Clean Halls buildings amongst the five boroughs. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(pl) (Entered: 08/23/2012)
36 Letter addressed to Judge Shira A. Scheindlin from Mark D. Zuckerman dated 8/14/2012 re: counsel for defendants writes with respect to the four issues that are set forth in this letter. Document filed by Joseph Bermudez, Johnny Blasini, City of New York, John Does 1−12, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago.(pl) (Entered: 08/23/2012)
37 Letter addressed to Judge Shira A. Scheindlin from Christopher Dunn dated 8/16/2012 re: counsel writes in response to the portions of tile City's August 14 letter following up on last Thursday's telephone conference with the Court about the City's request for summary denial of the plaintiffs' planned motion for a preliminary injunction. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(pl) (Entered: 08/23/2012)
38 NOTICE OF ATTORNEY WITHDRAWAL: Paige Berges is no longer affiliated with Shearman & Sterling LLP, but the firm continues to act as counsel for Plaintiffs. Counsel further requests that no documents or other pleadings be given or served upon the above−mentioned attorney., Attorney Paige Lynn Berges terminated. (Signed by Magistrate Judge Henry B. Pitman on 8/29/2012) (lmb) (Entered: 08/30/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 9/7/2012. (mro) (Entered: 09/11/2012)
39 TRANSCRIPT of Proceedings re: CONFERNCE held on 8/9/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/9/2012. Redacted Transcript Deadline set for 10/18/2012. Release of Transcript Restriction set for 12/17/2012.(McGuirk, Kelly) (Entered: 09/13/2012)
40 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERNCE proceeding held on 8/9/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 09/13/2012)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference held on 9/13/2012. (pl) (Entered: 09/26/2012)
41 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Mark D. Zuckerman dated 9/14/2012 re: I write in opposition to the letter of Alexis Karteron, Esq. of this afternoon seeking a two−day extension of time for plaintiffs' to submit their moving brief in support of their application for a preliminary injunction from

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September 21, 2012 to September 25, 2012. ENDORSEMENT: Plaintiffs' brief is due September 24. Defendants' opposition is due October 8. Plaintiffs' reply is due, with a courtesy copy delivered to chambers, by noon on October 12. No further extensions for any reason., ( Motions due by 9/24/2012., Responses due by 10/8/2012., Replies due by 10/12/2012.) (Signed by Judge Shira A. Scheindlin on 9/18/2012) (lmb) (Entered: 09/18/2012)
42 MOTION for Preliminary Injunction. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 09/24/2012)
43 MEMORANDUM OF LAW in Support re: 42 MOTION for Preliminary Injunction.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 09/24/2012)
44 DECLARATION of Daniel Mullkoff in Support re: 42 MOTION for Preliminary Injunction.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Karteron, Alexis) (Entered: 09/24/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Default Hearing held on 9/24/2012. (djc) (Entered: 09/26/2012)
45 NOTICE OF APPEARANCE by Sarah Pazit Lustbader on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Lustbader, Sarah) (Entered: 10/01/2012)
46 MOTION in Limine. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 10/01/2012)
47 MEMORANDUM OF LAW in Support re: 46 MOTION in Limine.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 10/01/2012)
48 DECLARATION of Daniel Mullkoff in Support re: 46 MOTION in Limine.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Karteron, Alexis) (Entered: 10/01/2012)
49 MEMORANDUM OF LAW in Opposition re: 46 MOTION in Limine.. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Marutollo, Joseph) (Entered: 10/05/2012)
50 DECLARATION of Mark Zuckerman in Opposition re: 46 MOTION in Limine.. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Marutollo, Joseph) (Entered: 10/05/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 10/5/2012. (mro) (Entered: 11/13/2012)
51 MEMORANDUM OF LAW in Opposition re: 42 MOTION for Preliminary Injunction.. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Marutollo, Joseph) (Entered: 10/06/2012)

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52 DECLARATION of Mark Zuckerman in Opposition re: 42 MOTION for Preliminary Injunction.. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O)(Marutollo, Joseph) (Entered: 10/06/2012)
53 NOTICE OF APPEARANCE by Brenda Elaine Cooke on behalf of Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago (Cooke, Brenda) (Entered: 10/09/2012)
54 REPLY MEMORANDUM OF LAW in Support re: 46 MOTION in Limine.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 10/09/2012)
55 DECLARATION of Alexis Karteron in Support re: 46 MOTION in Limine.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Karteron, Alexis) (Entered: 10/09/2012)
56 DECLARATION of Mark D. Zuckerman in Opposition re: 42 MOTION for Preliminary Injunction.. Document filed by City of New York. (Attachments: # 1 Exhibit A)(Zuckerman, Mark) (Entered: 10/11/2012)
57 ORDER granting in part and denying in part 46 Motion in Limine. For the reasons stated at today's conference, plaintiffs' Motion in Limine is granted in part and denied in part. The Clerk of the Court is directed to close this motion [Docket No. 46]. (Signed by Judge Shira A. Scheindlin on 10/11/2012) (mro) (Entered: 10/12/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Pre−Motion Conference held on 10/11/2012. (mro) (Entered: 11/13/2012)
58 REPLY MEMORANDUM OF LAW in Support re: 42 MOTION for Preliminary Injunction.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 10/12/2012)
59 DECLARATION of Alexis Karteron in Support re: 42 MOTION for Preliminary Injunction.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Karteron, Alexis) (Entered: 10/12/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/15/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/16/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/17/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/18/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean

10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/19/2012 10/22/2012 10/23/2012

Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
60 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/11/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Kristen Carannante, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013.(Moya, Goretti) (Entered: 10/19/2012)
61 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/11/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 10/19/2012)
62 TRANSCRIPT of Proceedings re: CONFERENCE held on 9/24/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Khristine Sellin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013.(Moya, Goretti) (Entered: 10/19/2012)
63 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 9/24/12 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...(Moya, Goretti) (Entered: 10/19/2012)
64 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/9/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2012. Redacted Transcript Deadline set for 11/26/2012. Release of Transcript Restriction set for 1/22/2013.(Moya, Goretti) (Entered: 10/19/2012)
65 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/9/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Moya, Goretti) (Entered: 10/19/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/19/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/22/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. (rjm) (Entered: 10/25/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Motion Hearing held on 10/23/2012 re: 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O.

11/05/2012
11/07/2012 11/09/2012 11/09/2012 11/09/2012 11/09/2012 11/13/2012
11/13/2012
11/13/2012
11/13/2012

(rjm) (Entered: 10/25/2012)
66 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Alexis Karteron dated 11/5/2012 re: Counsel for the plaintiffs request that the pending brief deadlines be adjusted as follows: (1) a three day extension of time, until Friday, November 9, for the plaintiffs to file their Motion for Class Certification; and (2) a two−day extension of time, until Friday, November 16, for the plaintiffs and the defendants to file their post−hearing briefs. ENDORSEMENT: Plaintiffs' request is granted. The deadline for plaintiffs' Motion for Class Certification is extended until November 9, 2012. The deadline for plaintiffs' and defendant's post−hearing briefs is extended until November 16, 2012. So ordered. (Motions due by 11/9/2012.) (Signed by Judge Shira A. Scheindlin on 11/5/2012) (ft) (Entered: 11/07/2012)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 11/7/2012. (js) (Entered: 12/14/2012)
67 MOTION to Certify Class. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 11/09/2012)
68 MEMORANDUM OF LAW in Support re: 67 MOTION to Certify Class.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 11/09/2012)
69 DECLARATION of Christopher Dunn in Support re: 67 MOTION to Certify Class.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 11/09/2012)
70 DECLARATION of J. McGregor Smyth, Jr. in Support re: 67 MOTION to Certify Class.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 11/09/2012)
71 TRANSCRIPT of Proceedings re: TRIAL held on 10/15/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
72 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/15/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
73 TRANSCRIPT of Proceedings re: TRIAL held on 10/16/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
74 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/16/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)

11/13/2012 11/13/2012 11/13/2012 11/13/2012 11/13/2012 11/13/2012 11/13/2012 11/13/2012 11/13/2012

75 TRANSCRIPT of Proceedings re: TRIAL held on 10/17/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
76 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/17/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
77 TRANSCRIPT of Proceedings re: TRIAL held on 10/18/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
78 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/18/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
79 TRANSCRIPT of Proceedings re: TRIAL held on 10/19/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
80 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/19/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
81 TRANSCRIPT of Proceedings re: TRIAL held on 10/22/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
82 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/22/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
83 TRANSCRIPT of Proceedings re: TRIAL held on 10/23/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court

11/13/2012 11/13/2012 11/13/2012 11/20/2012 11/20/2012 11/20/2012 11/26/2012
11/26/2012 11/28/2012

Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
84 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 10/23/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
85 TRANSCRIPT of Proceedings re: TRIAL held on 11/7/2012 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Ann Hairston, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 12/7/2012. Redacted Transcript Deadline set for 12/17/2012. Release of Transcript Restriction set for 2/14/2013.(McGuirk, Kelly) (Entered: 11/13/2012)
86 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a TRIAL proceeding held on 11/7/12 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 11/13/2012)
87 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Mark D. Zuckerman dated 11/19/12 re: Counsel for the defendants requests a one week extension of time to respond to plaintiffs' motion for class certification from 11/27/12 to 12/4/12. ENDORSEMENT: Request granted. Defendants opposition to the class certification motion is extended to December 4, 2012. The reply is due December 18, 2012. Set Deadlines/Hearing as to 67 MOTION to Certify Class:( Responses due by 12/4/2012, Replies due by 12/18/2012.) (Signed by Judge Shira A. Scheindlin on 11/19/2012) (mro) (Entered: 11/20/2012)
88 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago.(Marutollo, Joseph) (Entered: 11/20/2012)
89 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Mullkoff, Daniel) (Entered: 11/20/2012)
90 ORDER: 1. Plaintiffs' Table 14, annexed to Plaintiffs' November 16 letter to the court ("11/16/12 Ltr."), is hereby admitted into evidence as part of the record of the Preliminary Injunction Hearing ("PI Hearing") as Exhibit 98.2. Plaintiffs' Table 15, annexed to the 11/16/12 Ltr., is hereby admitted into evidence as part of the record of the PI Hearing as Exhibit 99. 3. Defendants' Table 9, annexed to Defendants' November 5 letter to the court ("11/15/12 Ltr.") is received into evidence as part of the record of the PI Hearing, subject to reconciling the number of stops in Dr. Fagan's Exhibit 8. 4. Defendants' Table 10, annexed to the 11/15/12 Ltr. is received into evidence subject to deletion of the rows relating to 2012. Defendants should submit revised Tables 9 and 10 forthwith. (Signed by Judge Shira A. Scheindlin on 11/26/2012) (djc) (Entered: 11/26/2012)
91 PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 11/26/2012)
92 NOTICE OF CHANGE OF ADDRESS by Juan Cartagena on behalf of All Plaintiffs. New Address: LatinoJustice PRLDEF, 99 Hudson St., 14th Floor, New York, New

11/30/2012
12/04/2012 12/18/2012 01/08/2013
01/08/2013 01/11/2013 01/11/2013 01/11/2013 01/11/2013 01/11/2013 01/11/2013

York, United States 10013, 212−219−3360. (Cartagena, Juan) (Entered: 11/28/2012)
93 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Brenda F. Cooke dated 11/29/12 re: Counsel writes to request for admission in to evidence the attached versions of Dr. Smith's Table 9 (defendants' Exhibit LLLL) and Table 10(defendants' Exhibit MMMM). ENDORSEMENT: The Clerk of Court is directed to docket this letter together with the attachments. Defendants' exhibits LLLL and MMMM are received as evidence. So ordered. (Signed by Judge Shira A. Scheindlin on 11/30/2012 (as per Chambers)) (mro) (Entered: 12/03/2012)
94 MEMORANDUM OF LAW in Opposition re: 67 MOTION to Certify Class.. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Marutollo, Joseph) (Entered: 12/04/2012)
95 REPLY MEMORANDUM OF LAW in Support re: 67 MOTION to Certify Class.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Mullkoff, Daniel) (Entered: 12/18/2012)
96 OPINION & ORDER re: #102768 42 MOTION for Preliminary Injunction. filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. For the reasons explained above, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined. The Clerk of the Court is directed to close this motion [Docket No. 42]. A conference is scheduled for January 31, 2013 at 4:30 pm. (Signed by Judge Shira A. Scheindlin on 1/8/2012) (djc) Modified on 1/9/2013 (jab). (Entered: 01/08/2013)
Set/Reset Hearings: Status Conference set for 1/31/2013 at 04:30 PM before Judge Shira A. Scheindlin. (djc) (Entered: 01/08/2013)
97 FILING ERROR − NO ORDER SELECTED FOR APPEAL − NOTICE OF APPEAL. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Zuckerman, Mark) Modified on 1/11/2013 (tp). (Entered: 01/11/2013)
***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney Zuckerman, Mark to RE−FILE Document No. 97 Notice of Appeal. No order being appealed was selected. Re−file the document as a Corrected Notice of Appeal event and select the correct Order being appealed. (tp) (Entered: 01/11/2013)
98 CORRECTED NOTICE OF APPEAL re: 97 Notice of Appeal, 96 Memorandum & Opinion,,. Document filed by Joseph Bermudez, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Zuckerman, Mark) (Entered: 01/11/2013)
Appeal Fee Due: for 98 Corrected Notice of Appeal, 97 Notice of Appeal. Appeal fee due by 1/25/2013. (tp) (Entered: 01/11/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 98 Corrected Notice of Appeal, 97 Notice of Appeal. (tp) (Entered: 01/11/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 74 Notice of Filing Transcript, 40 Notice of Filing Transcript, 96 Memorandum & Opinion, 53 Notice of Appearance filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, 46 MOTION in Limine filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 19 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 63 Notice of Filing Transcript, 83 Transcript,, 72 Notice of Filing Transcript, 89 Proposed Findings of Fact, filed by

Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 76 Notice of Filing Transcript, 73 Transcript, 32 Memorandum & Opinion, 9 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 85 Transcript,, 28 Notice of Appearance of Pro Bono Counsel, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 57 Order on Motion in Limine, 80 Notice of Filing Transcript, 1 Complaint, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 47 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 64 Transcript,, 49 Memorandum of Law in Opposition to Motion filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 3 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 10 Notice of Appearance filed by Raymond W. Kelly, City of New York, 43 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 39 Transcript,, 45 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 71 Transcript,, 18 Answer to Complaint filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 87 Endorsed Letter, Set Motion and R&R Deadlines/Hearings,,,, 68 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 8 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 61 Notice of Filing Transcript, 25 Internet Citation, 29 Transcript,, 6 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 54 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 60 Transcript,, 48 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 58 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 26 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 38 Order, Add and Terminate Attorneys,, 69 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 31 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 23 Order, Set Deadlines,,,,,, 22 Notice of Appearance filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 15 Transcript,, 59 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 56 Declaration in Opposition to Motion filed by City of New York, 98 Corrected Notice of Appeal filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 24 Protective Order, 51 Memorandum of Law in Opposition to Motion filed by Gregory Lomangino, Raymond W. Kelly,

Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 79 Transcript,, 95 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 90 Order,,, 20 Memorandum & Opinion,,,,,, 84 Notice of Filing Transcript, 82 Notice of Filing Transcript, 65 Notice of Filing Transcript, 81 Transcript,, 34 Letter,, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, 12 Notice of Appearance, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 2 Standing Order re Complex Civil Cases,,,, 41 Endorsed Letter, Set Deadlines,,,,,, 77 Transcript,, 91 Proposed Findings of Fact, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 93 Endorsed Letter,, 14 Scheduling Order, 7 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 66 Endorsed Letter, Set Deadlines,,,,,, 13 Notice of Appearance filed by Raymond W. Kelly, City of New York, 75 Transcript,, 21 Order Referring Case to Magistrate Judge, 97 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 78 Notice of Filing Transcript, 5 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 52 Declaration in Opposition to Motion,, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 30 Notice of Filing Transcript, 88 Proposed Findings of Fact filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 94 Memorandum of Law in Opposition to Motion filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 37 Letter,, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 17 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 55 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 67 MOTION to Certify Class. filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 36 Letter, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12, 86 Notice of Filing Transcript, 11 Notice of Case Assignment/Reassignment, 92 Notice of Change of Address filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 62 Transcript,, 42 MOTION for Preliminary Injunction. filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 27 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 33 Endorsed Letter,,, 35 Letter,, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 44 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 50 Declaration in Opposition to Motion, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 4 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 70 Declaration in Support of Motion, filed by Kieron

01/14/2013 01/22/2013 01/29/2013 01/31/2013
01/31/2013 01/31/2013 01/31/2013 02/07/2013 02/11/2013
02/14/2013

Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 16 Notice of Filing Transcript, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 01/11/2013)
USCA Appeal Fees received $ 455.00 receipt number 465401057495 on 1/14/2013 re: 98 Corrected Notice of Appeal filed by Joseph Koch, Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Miguel Santiago, City of New York. (nd) (Entered: 01/14/2013)
99 OPINION AND ORDER: Defendants' request for a stay is granted pending a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon. Defendants' request for a postponement of the Floyd trial is denied. (Signed by Judge Shira A. Scheindlin on 1/22/2013) (ago) (Entered: 01/22/2013)
100 NOTICE OF APPEARANCE by Michael Grunfeld on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates (Grunfeld, Michael) (Entered: 01/29/2013)
101 MANDATE of USCA (Certified Copy) as to 98 Corrected Notice of Appeal filed by Joseph Koch, Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Miguel Santiago, City of New York, 97 Notice of Appeal, filed by Joseph Koch, Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Miguel Santiago, City of New York USCA Case Number 13−0175. The parties in the above−referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 1/31/2013. (tp) (Entered: 01/31/2013)
Transmission of USCA Mandate/Order to the District Judge re: 101 USCA Mandate.(tp) (Entered: 01/31/2013)
102 Letter addressed to Judge Shira A. Scheindlin, from Alexis Karteron, dated 1/28/2013, re: on behalf of the plaintiffs in this matter, we address the proposed collaborative remedial process for all three stop−and−frisk cases and address ongoing proceedings in Ligon. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(ja) (Entered: 01/31/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 1/31/2013. (ft) (Entered: 02/06/2013)
103 NOTICE OF CHANGE OF ADDRESS by J. McGregor Smyth, Jr on behalf of All Parties. New Address: New York Lawyers for the Public Interest, 151 West 30th Street, 11th Floor, New York, NY, USA 10001, 212.244.4664. (Smyth, J.) (Entered: 02/07/2013)
104 OPINION AND ORDER #102902 re: 67 MOTION to Certify Class. filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. Because plaintiffs have satisfied the requirements of Rule 23, their motion for class certification solely for the purpose of preliminary injunctive relief is granted. The Clerk of the Court is directed to close this motion [Docket Entry # 67]. (Signed by Judge Shira A. Scheindlin on 2/11/2013). No Appearance Sheet Needed − ECF will send Opinion automatically to all attorneys. (pl) Modified on 2/11/2013 (pl). Modified on 2/14/2013 (rsh). (Entered: 02/11/2013)
105 AMENDED OPINION & ORDER #102768: This case, filed in 2012, is one of three cases currently before this Court challenging aspects of the New York City Police Department's "stop and frisk" practices. Of the three cases, this case is the most narrow. It deals only with stops made by the police on suspicion of trespass outside of certain privately−owned buildings in the Bronx. But the legal issues raised by this case have roots that stretch back decades. For the reasons explained herein, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined. No action is required by the Clerk of the Court, because plaintiffs' motion has already been closed. (Signed by Judge Shira A. Scheindlin on 2/14/2013) (ja) Modified on

02/14/2013
02/19/2013 03/04/2013 04/11/2013 05/06/2013 05/14/2013
06/05/2013 07/08/2013 07/12/2013
07/12/2013 07/12/2013

2/19/2013 (rsh). (Entered: 02/14/2013)
106 ORDER re 105 Amended Opinion & Order: Since the publication of the January 8, 2013 Opinion and Order in Ligon v. City of New York, three errors in the Opinion have come to light as set forth herein. None of these errors alters the holding of the January 8 Opinion or any material aspect of the Opinion's preliminary injunction analysis. Nevertheless, in order to correct these errors, I am today issuing an Amended Opinion and Order. The only changes are those noted herein, and the deletion of unnecessary material int he Conclusion on page 150. The Amended Opinion is now the accurate version for all purposes. The Clerk is directed to docket this Order and the Amended Opinion and Order. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 2/14/2013) (ja) (Entered: 02/14/2013)
107 NOTICE OF CHANGE OF ADDRESS by Michael Grunfeld on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. New Address: Shearman & Sterling LLP, 599 Lexington Avenue, New York, NY, 10022, 212−848−7179. (Grunfeld, Michael) (Entered: 02/19/2013)
108 BRIEF on Proposed Remedial Relief. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 03/04/2013)
109 BRIEF on proposed remedial relief. Document filed by City of New York.(Zuckerman, Mark) (Entered: 04/11/2013)
110 NOTICE OF APPEARANCE by Scott Duffield Levy on behalf of Jaenean Ligon (Levy, Scott) (Entered: 05/06/2013)
111 NOTICE OF ATTORNEY WITHDRAWAL: The following attorney stated herein hereby withdraws her appearance in the above−captioned matter since she is no longer counsel for plaintiff's Jaenean Ligon et al. Mayer Grashin is no longer affiliated with Shearman & Sterling LLP but the firm continues to act as counsel for Plaintiffs. Counsel further requests that no documents or other pleadings be given or served upon the above−mentioned attorney. (Signed by Judge Shira A. Scheindlin on 5/13/2013) (ja) (Entered: 05/15/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 6/5/2013. (Reily, James) (Entered: 06/25/2013)
112 MOTION (Proposed Remedies). Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Marutollo, Joseph) (Entered: 07/08/2013)
113 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Alexis Karteron, dated 7/2/2013, re: request a pre−motion conference concerning a motion for an extension of time to serve Johnny Blasini, a retired NYPD officer who was named as a defendant in the Complaint in this matter. Although the 120−day period for service under Federal Rule of Civil Procedure 4(m) has expired, this Court may extend the time for service. The plaintiffs submit that the Court should do so here because granting the extension of time would conserve judicial resources without prejudicing Mr. Blasini. ENDORSEMENT: The Court is directed to docket this letter as Docket No. 113. (Signed by Judge Shira A. Scheindlin on 7/12/2013) (ja) (Entered: 07/12/2013)
114 MEMORANDUM OPINION AND ORDER: #103374 While plaintiffs have failed to demonstrate good cause, this Court grants plaintiffs a discretionary extension under Rule 4(m) to serve Blasini. Plaintiffs must serve Blasini by no later than August 2, 2013. (Signed by Judge Shira A. Scheindlin on 7/12/2013) (ja) Modified on 7/18/2013 (jab). (Entered: 07/12/2013)
115 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Joseph A. Marutollo, dated 7/10/2013, re: Defendants request that the Court deny plaintiffs' July 2, 2013 request for an extension of time to serve defendant Police Officer Johnny Blasini ("P.O. Blasini"), who is retired from the NYPD. ENDORSEMENT: The Court is directed to docket this letter as Docket No. 114. (Signed by Judge Shira A.

07/19/2013 07/24/2013 07/26/2013 08/02/2013 08/08/2013 08/12/2013
08/13/2013
08/13/2013
08/16/2013
08/16/2013 08/16/2013 08/16/2013

Scheindlin on 7/12/2013) (ja) (Entered: 07/12/2013)
116 SUMMONS RETURNED EXECUTED. Johnny Blasini served on 7/19/2013, answer due 8/9/2013. Service was accepted by Eileen Flaherty, NYPD Legal Bureau. Document filed by A.O.; Letitia Ledan; Jaenean Ligon; Fernando Moronta; Jacqueline Yates; Kieron Johnson; Abdullah Turner; Charles Bradley; Roshea Johnson; Jovan Jefferson; Fawn Bracy. (Mullkoff, Daniel) (Entered: 07/19/2013)
117 RESPONSE to Motion re: 112 MOTION (Proposed Remedies).. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Karteron, Alexis) (Entered: 07/24/2013)
Minute Entry for proceedings held before Magistrate Judge Henry B. Pitman: Telephone Conference regarding deposition dispute held on 7/26/2013. (bh) (Entered: 07/26/2013)
118 REPLY MEMORANDUM OF LAW in Support re: 112 MOTION (Proposed Remedies).. Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Zuckerman, Mark) (Entered: 08/02/2013)
119 ANSWER to 1 Complaint, with JURY DEMAND. Document filed by Johnny Blasini.(Zuckerman, Mark) (Entered: 08/08/2013)
120 OPINION AND ORDER re: 112 MOTION (Proposed Remedies), filed by City of New York. The defendant in Floyd and the defendants in Ligon are ordered to comply with the remedial orders described herein. The Clerk of the Court is directed to close the Ligon defendants' motion regarding proposed remedies. [No. 12 Civ. 2274, Dkt. No. 112] (Signed by Judge Shira A. Scheindlin on 8/12/2013) (ja) (Main Document 120 replaced on 8/23/2013) (tro). (Entered: 08/12/2013)
121 OPINION AND ORDER: On January 31, 2013, a joint conference was held in Floyd v. City of New York, No. 08 Civ. 1034; Ligon v. City of New York, No. 12 Civ. 2274; and Davis v. City of New York, No. 10 Civ. 0699. The transcript for the conference has been docketed in Davis at Dkt. No. 266. The Clerk of the Court is directed to docket the transcript of the conference in the Floyd and Ligon dockets as well. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ja) (Entered: 08/13/2013)
122 OPINION AND ORDER: On January 31, 2013, a joint conference was held in Floyd v. City of New York, No. 08 Civ. 1034; Ligon v. City of New York, No. 12 Civ. 2274; and Davis v. City of New York, No. 10 Civ. 0699. The transcript for the conference has been docketed in Davis at Dkt. No. 266. The Clerk of the Court is directed to docket the transcript of the conference in the Floyd and Ligon dockets as well. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 8/13/2013) (ama) (Entered: 08/13/2013)
123 NOTICE OF APPEAL from 106 Order,,, 105 Memorandum & Opinion,,, 120 Memorandum & Opinion,. Document filed by Joseph Bermudez, Johnny Blasini, City of New York, John Does 1−12, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Cooke, Brenda) (Entered: 08/16/2013)
Appeal Fee Due: for 123 Notice of Appeal. Appeal fee due by 8/30/2013. (tp) (Entered: 08/16/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 123 Notice of Appeal. (tp) (Entered: 08/16/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 110 Notice of Appearance filed by Jaenean Ligon, 74 Notice of Filing Transcript, 40 Notice of Filing Transcript, 96 Memorandum & Opinion,, 53 Notice of Appearance filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, 46 MOTION in Limine filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 19 Notice of Appearance filed by

Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 63 Notice of Filing Transcript, 113 Endorsed Letter, 83 Transcript, 72 Notice of Filing Transcript, 112 MOTION (Proposed Remedies) filed by City of New York, 89 Proposed Findings of Fact, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 76 Notice of Filing Transcript, 73 Transcript,, 32 Memorandum & Opinion, 118 Reply Memorandum of Law in Support of Motion filed by City of New York, 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12, 9 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 85 Transcript,, 28 Notice of Appearance of Pro Bono Counsel, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 57 Order on Motion in Limine, 121 Memorandum & Opinion, 117 Response to Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 119 Answer to Complaint filed by Johnny Blasini, 80 Notice of Filing Transcript, 1 Complaint, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 47 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 64 Transcript, 49 Memorandum of Law in Opposition to Motion filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 115 Endorsed Letter, 3 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 10 Notice of Appearance filed by Raymond W. Kelly, City of New York, 114 Memorandum & Opinion, 43 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 39 Transcript, 45 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 71 Transcript, 18 Answer to Complaint filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 87 Endorsed Letter, Set Motion and R&R Deadlines/Hearings, 122 Memorandum & Opinion, 68 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 8 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 116 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 61 Notice of Filing Transcript, 25 Internet Citation, 111 Order, 103 Notice of Change of Address filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Raymond W. Kelly, Kieron Ramdeen, Jacqueline Yates, Roshea Johnson, Joseph Bermudez, John Does 1−12, A.O., Gregory Lomangino, Fawn Bracy, Jaenean Ligon, Miguel Santiago, City of New York, Joseph Koch, Charles Bradley, Johnny Blasini, Fernando Moronta, Jovan Jefferson, 29 Transcript, 6 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 105 Memorandum & Opinion, 54 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 120 Memorandum & Opinion, 60 Transcript,, 48 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 102 Letter, filed

by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 58 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 26 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 38 Order, Add and Terminate Attorneys, 69 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 31 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 23 Order, Set Deadlines, 22 Notice of Appearance filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 15 Transcript, 59 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 106 Order, 56 Declaration in Opposition to Motion filed by City of New York, 98 Corrected Notice of Appeal filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 109 Brief filed by City of New York, 24 Protective Order, 51 Memorandum of Law in Opposition to Motion filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 79 Transcript, 95 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 90 Order, 20 Memorandum & Opinion, 84 Notice of Filing Transcript, 82 Notice of Filing Transcript, 65 Notice of Filing Transcript, 108 Brief filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 99 Order, 107 Notice of Change of Address, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 81 Transcript, 34 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 12 Notice of Appearance, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 2 Standing Order re Complex Civil Cases, 41 Endorsed Letter, Set Deadlines, 77 Transcript,, 91 Proposed Findings of Fact, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 93 Endorsed Letter, 14 Scheduling Order, 7 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 104 Memorandum & Opinion, 101 USCA Mandate, 66 Endorsed Letter, Set Deadlines, 13 Notice of Appearance filed by Raymond W. Kelly, City of New York, 75 Transcript, 21 Order Referring Case to Magistrate Judge, 100 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 97 Notice of Appeal, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 78 Notice of Filing Transcript, 5 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 52 Declaration in Opposition to Motion, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 30 Notice of Filing Transcript, 88 Proposed Findings of Fact filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 94 Memorandum of Law in Opposition to Motion filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 37 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan

08/19/2013 08/23/2013 08/27/2013
08/28/2013 08/29/2013

Jefferson, 17 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 55 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 67 MOTION to Certify Class filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 36 Letter, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, John Does 1−12, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, 86 Notice of Filing Transcript, 11 Notice of Case Assignment/Reassignment, 92 Notice of Change of Address filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 62 Transcript, 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 27 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 33 Endorsed Letter, 35 Letter,, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 44 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 50 Declaration in Opposition to Motion, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 4 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 70 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 16 Notice of Filing Transcript, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 08/16/2013)
USCA Appeal Fees received $ 455.00 receipt number 465401074871 on 8/19/2013 re: 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12. (nd) (Entered: 08/19/2013)
145 INTERNET CITATION NOTE: Material from decision with Internet citation re: 120 Memorandum & Opinion. (Attachments: # 1 Internet Citation) (sj) (Entered: 09/20/2013)
124 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Heidi Grossman and Linda Donahue dated 8/27/2013 re: We write on behalf of defendants in the above−referenced cases to seek a stay of the injunctive relief ordered in this Court's Remedies Opinion and Order, dated August 12, 2013, (the "Remedies Order"; Floyd Dkt. 372; Ligon Dkt. 120), issued in conjunction with this Court's Liability Opinion in Floyd on the same date (the "Liability Order"; Floyd Dkt. 373), and the amended preliminary injunction Opinion in Ligon, issued on February 14, 2013 (Ligon Dkt. 105), collectively "the District Court Orders." ENDORSEMENT: The Clerk of the Court is directed to docket this letter. (Signed by Judge Shira A. Scheindlin on 8/27/2013) (tn) (Entered: 08/27/2013)
125 ENDORSED LETTER addressed to Judge Shira A. Scheindlin from Alexis Karteron dated 8/27/2013 re: The Ligon plaintiffs respectfully request that the Court permit them till Friday, September 6, 2013 to respond to the defendants' request for a stay of the injunctive relief ordered in the Court's Remedies Opinion and Order, dated August 12, 2013. ENDORSEMENT: Plaintiffs' request is hereby granted. Plaintiffs have until September 6, 2013 to respond to the City's stay request. (Signed by Judge Shira A. Scheindlin on 8/28/2013) (rsh) (Entered: 08/28/2013)
126 ORDER: The Court's June 5, 2013 scheduling order is amended as follows: Fact discovery is to be completed by November 27, 2013; Expert discovery is to be completed by March 28, 2014. (Expert Discovery due by 3/28/2014., Fact Discovery due by 11/27/2013.) (Signed by Judge Shira A. Scheindlin on 8/28/2013) (rsh)

08/29/2013
09/04/2013
09/05/2013 09/06/2013 09/06/2013
09/11/2013 09/12/2013

(Entered: 08/29/2013)
127 ORDER: On August 27, 2013, fifteen days after this Court issued the Remedies Opinion in Floyd and Ligon, the City of New York submitted to this Court a letter motion requesting a stay of the Opinion pending appeal. Plaintiffs in Floyd and Ligon promptly requested until September 6, 2013 to submit letters in opposition to the City's motion. The City opposed plaintiffs' requests, arguing that plaintiffs should be granted no more than three days to draft an opposition letter, because this is the time normally allotted for responses to pre−motion letters under this Court's Individual Rules. The City's stay request is a motion, not a pre−motion letter, and the City had fifteen days to prepare its motion. Plaintiffs will have ten days, including the Labor Day weekend, to prepare their opposition letter. Thus, plaintiffs' opposition will be due by September 6, 2013. The City's reply will be due by September 12, 2013, pursuant to the City's request. (Signed by Judge Shira A. Scheindlin on 8/29/2013) (rsh) (Entered: 08/29/2013)
128 SUPPLEMENTAL ORDER: This Order supplements the Remedies Opinion of August 12, 2013, which ordered the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop and frisk practices of the New York City Police Department ("NYPD"). The Opinion stated that the Joint Remedial Process would be guided by a Facilitator to be named by the Court. I am now appointing Nicholas Turner, President and Director of the VERA Institute of Justice, as the Facilitator. After previously working at VERA for nine years, Mr. Turner was recently named as the Institute's fifth President... Based in New York City, the VERA Institute is widely recognized for its use of rigorous testing and broad−based collaboration to help governments plan, implement, and evaluate improvements to the justice system... VERA has a long history of working to improve public safety by strengthening the ties between police and the community. In the early 1980s, VERA partnered with the NYPD to develop the Community Patrol Officer Program, one of the first community policing programs in the country. A 1999 study of two police precincts in the South Bronx examined approaches to respectful and effective policing in minority communities. SO ORDERED. (See Order). (Signed by Judge Shira A. Scheindlin on 9/4/2013) (ja) Modified on 9/5/2013 (ja). (Entered: 09/04/2013)
129 NOTICE OF APPEARANCE by Jeffrey Jason Resetarits on behalf of Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Resetarits, Jeffrey) (Entered: 09/05/2013)
130 OPPOSITION BRIEF re: 124 Endorsed Letter,,,. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Affidavit of Christopher Dunn, # 2 Exhibit A to Dunn Declaration)(Karteron, Alexis) (Entered: 09/06/2013)
131 ENDORSED LETTER addressed to Judge Shira A. Scheindlin, from Steven R. Newmark and John Siegal, dated 9/6/2013, re: New York City Public Advocate Bill de Blasio (the "Public Advocate") requests leave to submit this letter brief as amicus curiae in opposition to the Defendant City of New York's request for a stay pending appeal of the Court's Remedies Opinion and Order, dated August 12, 2013 (the "Remedies Order", Floyd, ECF No. 372, Ligon, ECF No. 120), issued in conjunction with the Court's Liability Opinion in Floyd on the same date... For the foregoing reasons, on behalf of the Public Advocate for the City of New York, we respectfully request that the Court deny the City's request for a stay of the Remedies Order pending appeal. ENDORSEMENT: The Clerk of the Court is directed to docket this amicus letter brief. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 9/6/2013) (ja) Modified on 9/10/2013 (ja). (Entered: 09/09/2013)
132 NOTICE OF APPEARANCE by James M. McGuire on behalf of Patrolmen's Benevolent Association of the City of New York, Inc., Detectives' Endowment Association, Inc., NYPD Captains Endowment Association, Lieutenants Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/11/2013)
133 MOTION to Intervene. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains

09/12/2013
09/12/2013
09/12/2013 09/12/2013 09/12/2013 09/12/2013 09/12/2013

Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(McGuire, James) (Entered: 09/12/2013)
134 FILING ERROR − DEFICIENT DOCKET ENTRY − FILER ERROR − NOTICE OF APPEAL from 121 Memorandum & Opinion, 122 Memorandum & Opinion, Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc. Filing fee $ 455.00, receipt number 0208−8862132. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McGuire, James) Modified on 9/12/2013 (tp). (Entered: 09/12/2013)
135 NOTICE OF APPEAL from 106 Order,,, 105 Memorandum & Opinion,,, 120 Memorandum & Opinion,. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. Filing fee $ 455.00, receipt number 0208−8862136. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (McGuire, James) (Entered: 09/12/2013)
136 MEMORANDUM OF LAW in Support re: 133 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/12/2013)
137 DECLARATION of Joseph Alejandro in Support re: 133 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 09/12/2013)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 135 Notice of Appeal. (tp) (Entered: 09/12/2013)
***NOTE TO ATTORNEY REGARDING DEFICIENT APPEAL. Note to Attorney McGuire, James No. 134 Notice of Appeal. FILING ERROR − DEFICIENT DOCKET ENTRY − FILER ERROR. (tp) (Entered: 09/12/2013)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for, 110 Notice of Appearance filed by Jaenean Ligon, 74 Notice of Filing Transcript, 40 Notice of Filing Transcript, 96 Memorandum & Opinion, 53 Notice of Appearance filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, 46 MOTION in Limine filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 19 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 63 Notice of Filing Transcript, 113 Endorsed Letter, 83 Transcript, 72 Notice of Filing Transcript, 112 MOTION (Proposed Remedies) filed by City of New York, 89 Proposed Findings of Fact, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 76 Notice of Filing Transcript, 73 Transcript, 32 Memorandum & Opinion, 118 Reply Memorandum of Law in Support of Motion filed by City of New York, 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12, 9 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 85 Transcript, 28 Notice of Appearance of Pro Bono Counsel, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 57 Order on Motion in Limine, 121 Memorandum & Opinion, 117 Response to Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea

Johnson, Fernando Moronta, A.O., Jovan Jefferson, 119 Answer to Complaint filed by Johnny Blasini, 80 Notice of Filing Transcript, 1 Complaint, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 47 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 64 Transcript, 49 Memorandum of Law in Opposition to Motion filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 115 Endorsed Letter, 3 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 10 Notice of Appearance filed by Raymond W. Kelly, City of New York, 114 Memorandum & Opinion, 43 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 39 Transcript, 45 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 71 Transcript, 18 Answer to Complaint filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Joseph Bermudez, 87 Endorsed Letter, Set Motion and R&R Deadlines/Hearings, 122 Memorandum & Opinion, 68 Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 8 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 116 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, A.O., Jovan Jefferson, 61 Notice of Filing Transcript, 25 Internet Citation, 111 Order, 103 Notice of Change of Address filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Raymond W. Kelly, Kieron Ramdeen, Jacqueline Yates, Roshea Johnson, Joseph Bermudez, John Does 1−12, A.O., Gregory Lomangino, Fawn Bracy, Jaenean Ligon, Miguel Santiago, City of New York, Joseph Koch, Charles Bradley, Johnny Blasini, Fernando Moronta, Jovan Jefferson, 29 Transcript, 6 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 105 Memorandum & Opinion, 54 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 120 Memorandum & Opinion, 60 Transcript, 48 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 102 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 58 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 26 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 38 Order, Add and Terminate Attorneys, 69 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 31 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 23 Order, Set Deadlines, 22 Notice of Appearance filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 15 Transcript, 59 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 106 Order, 56 Declaration in Opposition to Motion filed by City of New

York, 98 Corrected Notice of Appeal filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 109 Brief filed by City of New York, 24 Protective Order, 51 Memorandum of Law in Opposition to Motion filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 79 Transcript, 95 Reply Memorandum of Law in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 90 Order, 20 Memorandum & Opinion, 84 Notice of Filing Transcript, 82 Notice of Filing Transcript, 65 Notice of Filing Transcript, 108 Brief filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 99 Order, 107 Notice of Change of Address, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 81 Transcript, 34 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 12 Notice of Appearance, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 2 Standing Order re Complex Civil Cases, 41 Endorsed Letter, Set Deadlines, 77 Transcript,, 91 Proposed Findings of Fact, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 93 Endorsed Letter, 14 Scheduling Order, 7 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 104 Memorandum & Opinion, 101 USCA Mandate, 66 Endorsed Letter, Set Deadlines, 13 Notice of Appearance filed by Raymond W. Kelly, City of New York, 75 Transcript, 21 Order Referring Case to Magistrate Judge, 100 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 97 Notice of Appeal, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 78 Notice of Filing Transcript, 5 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 52 Declaration in Opposition to Motion, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 30 Notice of Filing Transcript, 88 Proposed Findings of Fact filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 94 Memorandum of Law in Opposition to Motion filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 37 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 17 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 55 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 67 MOTION to Certify Class filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 36 Letter, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, John Does 1−12, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, 86 Notice of Filing Transcript, 11 Notice of Case Assignment/Reassignment, 92 Notice of Change of Address filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 62 Transcript, 42 MOTION for Preliminary Injunction filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 27 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 33

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09/16/2013

Endorsed Letter, 35 Letter,, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 44 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 50 Declaration in Opposition to Motion, filed by Raymond W. Kelly, Kieron Ramdeen, Joseph Bermudez, Gregory Lomangino, Miguel Santiago, City of New York, Joseph Koch, 4 Summons Returned Executed, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 70 Declaration in Support of Motion, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Jacqueline Yates, Roshea Johnson, A.O., Fawn Bracy, Jaenean Ligon, Charles Bradley, Fernando Moronta, Jovan Jefferson, 16 Notice of Filing Transcript, 125 Endorsed Letter, 132 Notice of Appearance, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 136 Memorandum of Law in Support of Motion, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 128 Order, 137 Declaration in Support of Motion, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 135 Notice of Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 124 Endorsed Letter, 130 Opposition Brief, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O., 134 Notice of Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 133 MOTION to Intervene filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 131 Endorsed Letter, 129 Notice of Appearance filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, 126 Order, Set Deadlines, 127 Order, were transmitted to the U.S. Court of Appeals. (tp) (Entered: 09/12/2013)
138 NOTICE OF APPEARANCE by Steven A. Engel on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 09/12/2013)
139 LETTER addressed to Judge Shira A. Scheindlin from defendant City of New York dated September 12, 2013 re: Reply in connection with August 27, 2013 stay application. Document filed by City of New York.(Marutollo, Joseph) (Entered: 09/12/2013)
Minute Entry for proceedings held before Judge Shira A. Scheindlin: Status Conference held on 9/12/2013. (Reily, James) (Entered: 09/24/2013)
140 ORDER: The briefing schedule for the police unions' motions to intervene in the above−captioned actions is as follows: (1) Responses to the police unions' motions are to be filed by October 11, 2013. The Floyd and Ligon plaintiffs' briefs are not to exceed a combined length of twenty−five pages. Defendants' brief is not to exceed fifteen pages. (2) The police unions' replies in further support of their motions are to be filed by October 25, 2013 and are not to exceed a combined length of twenty pages. SO ORDERED. ( Responses due by 10/11/2013, Replies due by 10/25/2013.) (Signed by Judge Shira A. Scheindlin on 9/13/2013) (ama) (Entered: 09/13/2013)
141 TRANSCRIPT of Proceedings re: CONFERENCE held on 8/22/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Thomas Murray, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After

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that date it may be obtained through PACER. Redaction Request due 10/10/2013. Redacted Transcript Deadline set for 10/21/2013. Release of Transcript Restriction set for 12/19/2013.(Rodriguez, Somari) (Entered: 09/16/2013)
142 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 8/22/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 09/16/2013)
143 OPINION AND ORDER: For the reasons set forth above, the City's request for a stay of this Court's August 12 Orders is DENIED. (Signed by Judge Shira A. Scheindlin on 9/17/2013) (ja) (Entered: 09/17/2013)
144 SUPPLEMENTAL ORDER: This Order supplements the Remedies Opinion of August 12, 2013, which ordered the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop and frisk practices of the New York City Police Department ("NYPD"). The Opinion stated that the Joint Remedial Process would be guided by a Facilitator to be named by the Court. On September 4, 2013, I appointed Nicholas Turner, President and Director of the VERA Institute of Justice, as the Facilitator. To help the Facilitator and the Monitor in their challenging tasks, I am appointing an Academic Advisory Council consisting of professors from area law schools. These professors have generously agreed to provide their expertise in a pro bono capacity. The Chair of the Council is Professor Bennett Capers of Brooklyn Law School. The other members of the Advisory Council are: Ian Ayres, William K. Townsend Professor Law, Yale Law School; Alafair S. Burke, Professor of Law, Maurice A. Deane School of Law at Hofstra University; Miriam Gohara, Visiting Assistant Professor, Columbia Law School; Taja−Nia Y. Henderson, Associate Professor of Law, Rutgers School of Law−Newark; Tanya K. Hernandez, Professor of Law, Fordham University School of Law; Conrad Johnson, Clinical Professor of Law, Columbia Law School; William E. Hellerstein, Professor of Law (retired), Brooklyn Law School; K. Babe Howell, Associate Professor of Law, CUNY School of Law; Olatunde Johnson, Professor of Law, Columbia Law School; Tracey L. Meares, Walton Hale Hamilton Professor of Law, Yale Law School; Janice Tudy−Jackson, Lecturer in Law, Columbia Law School; Steve Zeidman, Professor of Law, Director of Criminal Defense Clinic, CUNY School of Law. (Signed by Judge Shira A. Scheindlin on 9/18/2013) (tro) (Entered: 09/18/2013)
146 MANDATE of USCA (Certified Copy) as to 135 Notice of Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 134 Notice of Appeal,, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. USCA Case Number 13−3442. The parties in the above−referenced case have filed a stipulation withdrawing this appeal pursuant to FRAP 42. The stipulation is hereby "So Ordered". Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 9/26/2013. (tp) (Entered: 09/27/2013)
Transmission of USCA Mandate/Order to the District Judge re: 146 USCA Mandate. (tp) (Entered: 09/27/2013)
147 TRANSCRIPT of Proceedings re: motion held on 9/12/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Andrew Walker, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/28/2013. Redacted Transcript Deadline set for 11/7/2013. Release of Transcript Restriction set for 1/4/2014.(McGuirk, Kelly) (Entered: 10/03/2013)
148 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a motion proceeding held on 9/12/13 has been filed by the court

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reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 10/03/2013)
149 ADDENDUM TO STIPULATION AND PROTECTIVE ORDER: Regarding procedures to be followed that shall govern the handling of confidential material. NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and among the attorneys for plaintiffs and defendants, that the July 3, 2012 Stipulation and Protective Order is amended to include the following Confidential Materials: The documents referenced herein shall be subject to all of the terms and conditions of the July 3, 2012 Stipulation and Protective Order, except that such documents and information shall not be deemed "Confidential Materials" to the extent, and only to the extent, that they are (i) lawfully obtained by plaintiffs from sources other than defendants, or (ii) are otherwise publicly available. IT IS FURTHER STIPULATED THAT: If any party believes a document not described in paragraphs 1 through 25, supra, should nevertheless be considered confidential, it shall inform the opposing party of such belief, and the parties shall endeavor in good faith to reach agreement regarding the nature of the document. If the parties are unable to reach an agreement, then the party seeking to have the document deemed confidential may make an application to the Court. Such application shall only be granted for good cause shown. And a set forth herein. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 10/07/2013) (ama) (Entered: 10/07/2013)
150 MEMORANDUM OF LAW in Opposition re: 133 MOTION to Intervene.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner. (Karteron, Alexis) (Entered: 10/11/2013)
151 DECLARATION of Alexis Karteron in Opposition re: 133 MOTION to Intervene.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Karteron, Alexis) (Entered: 10/11/2013)
152 LETTER addressed to Judge Shira A. Scheindlin re: Motions to Intervene. Document filed by City of New York.(Marutollo, Joseph) (Entered: 10/18/2013)
153 TRANSCRIPT of Proceedings re: CONFERENCE held on 10/4/2013 before Judge Shira A. Scheindlin. Court Reporter/Transcriber: Karen Gorlaski, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/18/2013. Redacted Transcript Deadline set for 12/2/2013. Release of Transcript Restriction set for 1/26/2014.(Rodriguez, Somari) (Entered: 10/25/2013)
154 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 10/4/13 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(Rodriguez, Somari) (Entered: 10/25/2013)
155 REPLY MEMORANDUM OF LAW in Support re: 133 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 10/25/2013)
156 MANDATE of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123. Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court's August 12, 2013 remedial order and preliminary injunction ("Remedies Opinion"). It is hereby ORDERED that the

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District Courts January 8, 2013 "Opinion and Order," as well as the August 12, 2013 "Liability Opinion" and "Remedies Opinion," each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals. The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule: Defendants shall perfect their appeals by January 24, 2014. Plaintiffs shall file by February 28, 2014. Defendants shall reply by March 14, 2014. Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course. The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process. Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...."), and that the appearance of partiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly−designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals. In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued. The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/31/2013. (nd) (Entered: 10/31/2013)
NOTICE OF CASE REASSIGNMENT to Judge John G. Koeltl. Judge Shira A. Scheindlin is no longer assigned to the case. (sjo) (Entered: 10/31/2013)
157 CORRECTED MANDATE of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123. Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court's August 12, 2013 remedial order and preliminary injunction ("Remedies Opinion"). It is hereby ORDERED that the District Court's January 8, 2013 "Opinion and Order," as well as the August 12, 2013 "Liability Opinion" and "Remedies Opinion," each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals. The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:Defendants shall perfect their appeals by January 24, 2014. Plaintiffs shall file by February 28, 2014. Defendants shall reply by March 14, 2014. Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course. The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process. Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 ("A judge should avoid impropriety and the appearance of impropriety in all activities."); see also Canon 3(C)(1) ("A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned...."), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge's improper application of the Court's "related case rule," see transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a), and by a series of media interviews and public statements purporting to respond publicly to criticism of the District Court. Accordingly, we conclude that, in the interest, and

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appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly−designated District Judge shall implement this Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals. In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued. The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court. In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 10/31/2013. (nd) (Entered: 11/01/2013)
NOTICE OF CASE REASSIGNMENT to Judge Analisa Torres. Judge John G. Koeltl is no longer assigned to the case. (sjo) (Entered: 11/01/2013)
158 PER CURIAM OPINION of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12. USCA Case Number 13−3088; 13−3123.These cases, motions of which were argued in tandem and decided on October 31, 2013, and which concern the so−called "stop−and−frisk" policies of the New York City Police Department, have, quite apart from the underlying merits, raised a number of unusual procedural issues. In a separate opinion published contemporaneously with this one, we explain the basis of our prior, brief order reassigning these cases from Judge Shira A. Scheindlin to a new district judge of the United States District Court for the Southern District of New York, to be chosen randomly. In this opinion, we address the unprecedented motion filed by Judge Scheindlin herself, through counsel, to appear and seek reconsideration of our order of reassignment. The motion, submitted substantially in the form of a brief in favor of reconsideration, presents the threshold question whether, in the circumstances presented, a district judge may participate as a party, as an intervenor, or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we DENY Judge Scheindlin's motion to appear in this Court in support of retaining authority over these cases. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/13/2013. (nd) (Entered: 11/14/2013)
159 OPINION of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12. USCA Case Number 13−3088; 13−3123. This opinion explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin's appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that "reassignment is advisable to preserve the appearance of justice." Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/13/2013. (nd) (Entered: 11/14/2013)
160 LETTER MOTION for Extension of Time to Complete Discovery addressed to Judge Analisa Torres from Alexis Karteron dated 11/20/2013. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 11/20/2013)
161 ORDER: On October 31, 2013, the United States Court of Appeals for the Second Circuit issued a mandate directing the District Court to "implement th[e] Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals." Corrected Mandate 3, Oct. 31, 2013, ECF No. 157. In a letter dated November 20, 2013, Plaintiffs state, "[c]ounsel for the defendants indicated this week, without explanation, that they do not agree that discovery in this case is stayed. If Your Honor does not believe that discovery is stayed by the Second Circuit's mandate, the plaintiffs respectfully request that the Court extend the current discovery deadline by 60 days and provide the parties with guidance on the appropriate method of raising discovery disputes." Defendants are

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directed to respond to Plaintiffs' letter by November 22, 2013. (Signed by Judge Analisa Torres on 11/21/2013) (rsh) (Entered: 11/21/2013)
162 PER CURIAM OPINION of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123. For the foregoing reasons, we DENY the motions of appellant City of New York, seeking to modify the Court's stay order of October 31, 2013 to include vacatur of the District Courts February 14, 2013 order in Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013), and August 12, 2013 orders in Floyd v. City of New York, −−− F. Supp. 2d −−−−, No. 08−cv−1034, 2013 WL 4046209 (S.D.N.Y. Aug. 12, 2013); −−− F. Supp. 2d −−−−, No. 08−cv−1034, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013) without prejudice (as indicated above). We also DENY the November 13, 2013 motions by counsel for Judge Scheindlin to appear in order to oppose the Citys motions for modification, for the reasons stated in In re Motion of District Judge, −−− F.3d −−−−, Nos. 13−3123, 13−3088 (2d Cir. Nov. 13, 2013), and, because in any event, they are moot. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 11/22/2013. (nd) (Entered: 11/22/2013)
163 LETTER addressed to Judge Analisa Torres dated November 22, 2013 Document filed by Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago.(Marutollo, Joseph) (Entered: 11/22/2013)
164 ORDER denying 160 Letter Motion for Extension of Time to Complete Discovery. On October 31, 2013, the United States Court of Appeals for the Second Circuit issued a mandate directing the District Court to "implement th[e] Court's mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals." Corrected Mandate 3, Oct. 31, 2013, ECF No. 157. By letter dated November 20, 2013, Plaintiffs state, "[c]ounsel for the defendants indicated this week, without explanation, that they do not agree that discovery in this case is stayed. If Your Honor does not believe that discovery is stayed by the Second Circuit's mandate, the plaintiffs respectfully request that the Court extend the current discovery deadline by 60 days and provide the parties with guidance on the appropriate method of raising discovery disputes." By letter dated November 22, 2013, Defendants state that, "they read the Second Circuit's November 1, 2013 Corrected Mandate to stay only the proceedings related to the preliminary injunction... and not discovery [but] can certainly understand, however, plaintiffs' contrary reading in light of the broad wording of the Corrected Mandate. Further, defendants do not dispute, under all of the circumstances, that it would make sense to stay all proceedings pending the outcome of the appeal." Plaintiffs' request is DENIED. Pursuant to the Second Circuit's stay of "all proceedings," the parties are ORDERED to cease discovery. (Signed by Judge Analisa Torres on 11/22/2013) (rsh) (Entered: 11/22/2013)
165 MOTION for Daniel Mullkoff to Withdraw as Attorney. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Mullkoff, Daniel) (Entered: 12/20/2013)
166 MANDATE of USCA (Certified Copy) as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123. DefendantAppellant City of New York moves for a limited remand to the District Court for the purpose of exploring a resolution to these cases. Also pending before the Court are motions to intervene as party appellants in both Floyd v. City of New York and Ligon v. City of New York, filed by the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association, and the Captains' Endowment Association and a motion to intervene as a party appellant in Floyd v. City of New York, filed by the Sergeants Benevolent Association (collectively the "police unions"). We hereby GRANT the City's motion on terms indicated in this opinion. We VACATE the stay of proceedings in the District Court entered as part of the Court's Orders of October 31, 2013 and November 13, 2013, In re Reassignment of Cases, 736 F.3d 118 (2d Cir. 2013), to the extent necessary to pursue settlement negotiations among such concerned or interested parties as the District Court deems appropriate, and REMAND the cause to the District Court (Analisa Torres, Judge) for further proceedings consistent with this opinion. The

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schedule for briefing and other filings in the Court of Appeals is hereby STAYED pending the outcome of the proceedings in the District Court. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 2/21/2014. (nd) (Entered: 02/24/2014)
167 ORDER. The Police Unions shall file supplemental moving papers by March 5, 2014. The parties shall file supplemental opposition papers by March 10, 2014. The Police Unions shall reply by March 14, 2014. The parties are directed to continue settlement discussions during the briefing period and to submit a joint letter to the Court by March 4, 2014, indicating whether they desire the Court's participation in aid of settlement. In light of the revised briefing schedule, the Clerk of Court is directed to terminate the motion at ECF No. 133. Terminating 133 Motion to Intervene. (Signed by Judge Analisa Torres on 2/25/2014) (rjm) (Entered: 02/25/2014)
Set/Reset Deadlines: Motions due by 3/5/2014. Responses due by 3/10/2014. Replies due by 3/14/2014. (rjm) (Entered: 02/25/2014)
168 MEMO ENDORSEMENT granting 165 Motion to Withdraw as Attorney. ENDORSEMENT: Counsel's motion to withdraw is GRANTED. The Clerk of Court is directed to remove Daniel Mullkoff's appearance from the docket and name from the ECF distribution list. Attorney Daniel Erik Mullkoff terminated. (Signed by Judge Analisa Torres on 2/25/2014) (lmb) (Entered: 02/25/2014)
169 JOINT LETTER addressed to Judge Analisa Torres from Alexis Karteron, Esq. dated March 4, 2014 re: status of settlement negotiations. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 03/04/2014)
170 MOTION for Elisa T. Wiygul to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9417879. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A − Certificate of Good Standing, # 2 Text of Proposed Order)(Wiygul, Elisa) (Entered: 03/04/2014)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 170 MOTION for Elisa T. Wiygul to Appear Pro Hac Vice. Filing fee $ 200.00, receipt number 0208−9417879. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 03/05/2014)
171 MOTION to Intervene. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/05/2014)
172 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 171 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/05/2014)
173 DECLARATION of Steven A. Engel in Support re: 171 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Engel, Steven) (Entered: 03/05/2014)
174 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/05/2014)
175 ORDER FOR ADMISSION OF ELISA T. WIYGUL PRO HAC VICE: granting 170 Motion for Elisa T. Wiygul to Appear Pro Hac Vice. (Signed by Judge Analisa Torres

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on 3/6/2014) (ajs) (Entered: 03/06/2014)
176 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 171 MOTION to Intervene. (Corrected Supplemental Memorandum of Law). Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/06/2014)
177 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/06/2014)
178 MOTION for Taylor Pendergrass to Withdraw as Attorney. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Pendergrass, Taylor) (Entered: 03/07/2014)
179 MEMO ENDORSEMENT on MOTION TO WITHDRAW AS COUNSEL. The motion to withdraw as counsel is GRANTED. The Clerk of Court is directed to remove Taylor Pendergrass' appearance from the docket and name from the ECF distribution list. So ordered. Granting 178 Motion to Withdraw as Attorney. Attorney Taylor Scott Pendergrass terminated. (Signed by Judge Analisa Torres on 3/10/2014) (rjm) (Entered: 03/10/2014)
180 MEMORANDUM OF LAW in Opposition re: 171 MOTION to Intervene.. Document filed by Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Cooke, Brenda) (Entered: 03/10/2014)
181 DECLARATION of Darius Charney, Esq. in Opposition re: 171 MOTION to Intervene.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q)(Karteron, Alexis) (Entered: 03/10/2014)
182 MEMORANDUM OF LAW in Opposition re: 171 MOTION to Intervene.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Karteron, Alexis) (Entered: 03/10/2014)
183 DECLARATION of Darius Charney, Esq. in Opposition re: 171 MOTION to Intervene.. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R)(Karteron, Alexis) (Entered: 03/11/2014)
184 SUPPLEMENTAL REPLY MEMORANDUM OF LAW in Support re: 171 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/14/2014)
185 DECLARATION of Steven A. Engel in Support re: 171 MOTION to Intervene.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Attachments: # 1 Exhibit A)(Engel, Steven) (Entered: 03/14/2014)

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186 CERTIFICATE OF SERVICE. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 03/14/2014)
187 MOTION for Roberto Concepcion, Jr. to Withdraw as Attorney. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Concepcion, Roberto, Jr.) (Entered: 04/02/2014)
188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,. Document filed by A.O., Joseph Bermudez, Johnny Blasini, Fawn Bracy, Charles Bradley, City of New York, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Raymond W. Kelly, Joseph Koch, Letitia Ledan, Jaenean Ligon, Gregory Lomangino, Fernando Moronta, Kieron Ramdeen, Miguel Santiago, Abdullah Turner, Jacqueline Yates.(Cooke, Brenda) (Entered: 04/03/2014)
189 DECLARATION of Zachary W. Carter in Support re: 188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.. Document filed by A.O., Joseph Bermudez, Johnny Blasini, Fawn Bracy, Charles Bradley, City of New York, Jovan Jefferson, John Does 1−12, Kieron Johnson, Roshea Johnson, Raymond W. Kelly, Joseph Koch, Letitia Ledan, Jaenean Ligon, Gregory Lomangino, Fernando Moronta, Kieron Ramdeen, Miguel Santiago, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A)(Cooke, Brenda) (Entered: 04/03/2014)
190 JOINT MEMORANDUM OF LAW in Support re: 188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.. Document filed by A.O., Joseph Bermudez, Johnny Blasini, Fawn Bracy, Charles Bradley, City of New York, Jovan Jefferson, John Does 1−12, Kieron Johnson, Roshea Johnson, Raymond W. Kelly, Joseph Koch, Letitia Ledan, Jaenean Ligon, Gregory Lomangino, Fernando Moronta, Kieron Ramdeen, Miguel Santiago, Abdullah Turner, Jacqueline Yates. (Cooke, Brenda) (Entered: 04/03/2014)
191 MEMO ENDORSEMENT on MOTION TO WITHDRAW AS COUNSEL. ENDORSEMENT: Roberto Concepcion, Jr.'s request to withdraw as counsel is GRANTED. The Clerk of Court is directed to remove his appearance from the docket and name from the ECF distribution list. So ordered. Granting 187 Motion to Withdraw as Attorney. Attorney Roberto, Jr. Concepcion terminated. (Signed by Judge Analisa Torres on 4/2/2014) (rjm) (Entered: 04/03/2014)
192 REPLY MEMORANDUM OF LAW in Opposition re: 188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 04/08/2014)
193 MEMORANDUM OF LAW in Opposition re: 188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Engel, Steven) (Entered: 04/09/2014)
194 RESPONSE in Support of Motion re: 188 JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.JOINT MOTION to Amend/Correct 120 Memorandum & Opinion,.. Document filed by A.O., Joseph Bermudez, Johnny Blasini, Fawn Bracy, Charles Bradley, City of New York, Jovan Jefferson, John Does 1−12, Kieron Johnson, Roshea Johnson, Raymond W. Kelly, Joseph Koch, Letitia Ledan, Jaenean Ligon, Gregory Lomangino, Fernando Moronta, Kieron Ramdeen, Miguel Santiago, Abdullah Turner, Jacqueline Yates. (Dunn, Christopher) (Entered: 04/10/2014)
195 LETTER addressed to Judge Analisa Torres from Darius Charney, Esq. dated 06/10/2014 re: pending motions. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean

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Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 06/10/2014)
196 NOTICE OF APPEARANCE by Jordan Wells on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Wells, Jordan) (Entered: 06/18/2014)
197 OPINION AND ORDER re: (436 in 1:08−cv−01034−AT−HBP) MOTION to Intervene. filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., (171 in 1:12−cv−02274−AT−HBP) MOTION to Intervene filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., (441 in 1:08−cv−01034−AT−HBP) SUPPLEMENTAL MOTION to Intervene Pursuant to Federal Rule of Civil Procedure 24 filed by Sergeants Benevolent Association. The Unions' motions to intervene are DENIED for three reasons: (1) the motions are untimely; (2) the Unions have no significant protectable interests relating to the subject of the litigation that would warrant intervention; and (3) even if their alleged interests were cognizable, the Unions lack standing to vindicate those interests on appeal. The parties' motion for an order modifying the Remedial Order is GRANTED. The modification shall be set forth in a separate order to be issued forthwith. The Unions' request to participate in the settlement of Floyd and Ligon is, therefore, DENIED as moot. The Unions' request to participate in the remedial phase of Floyd is also DENIED as moot because the Remedial Order already offers "police organizations" the opportunity to participate in the development of reforms to NYPD stop−and−frisk policies and procedures through the "Joint Remedial Process." To the extent the Unions request to participate in the remedial phase of Ligon, that request is DENIED for the same reasons the Court denies their motion to intervene for the purpose of appealing the Remedial Order. Having resolved the motions to intervene, and having approved the terms of the parties' proposed resolution of the City's appeals, the Court has continuing jurisdiction only "insofar as is necessary to effectuate a settlement." Ligon, 743 F.3d at 365. Accordingly, by August 6, 2014, the City shall submit a letter to the Court indicating the status of its pending appeals. This Court shall take no further action unrelated to effectuating the parties' settlement unless and until the Court of Appeals dissolves the stay or otherwise returns jurisdiction to the District Court. The Clerk of Court shall terminate the motions at ECF Nos. 436 and 441 in Floyd and ECF No. 171 in Ligon. (Signed by Judge Analisa Torres on 7/30/2014) (tro) (Entered: 07/30/2014)
198 ORDER MODIFYING REMEDIAL ORDER terminating 188 Motion to Amend/Correct 120 Memorandum & Opinion. For the reasons stated in an Opinion and Order of even date, and pursuant to the directive of the United States Court of Appeals for the Second Circuit to "effectuate a settlement," Mandate and Opinion, (Feb. 21, 2014), Floyd, ECF No. 426; Ligon, ECF No. 166, IT IS ORDERED that paragraph 12 on page 13 of the Remedial Order, Floyd, ECF No. 372; Ligon, ECF No. 120, is deleted and the following is substituted in its place: 12. a. The Monitor's position will come to an end in Floyd no sooner than three years after the Court's entry of the final order approving the Immediate Reforms to be developed in Floyd and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Immediate and Joint Process Reforms to be approved and so−ordered by the Court in Floyd. If the City fails to make such showing, the Monitor's position will continue until such time as the City can make the required showing of substantial compliance. b. The Monitor's position with respect to the preliminary injunctive relief in Ligon will come to an end no sooner than three years after the Court's entry of the final order approving the preliminary injunctive relief set forth in Section III of this Order, entitled "Remedies in Ligon" (the "Ligon Preliminary Injunctive Relief") and if and only if the City can show by a preponderance of the evidence at that time that it has achieved substantial compliance with all of the Ligon Preliminary Injunctive Relief. If the City fails to make such showing, the Monitor's position will continue until such time as the City can make the required showing of substantial compliance. c. "Substantial compliance" in Floyd shall be defined as compliance with all material aspects of the Immediate and Joint Process Reforms to be approved and so−ordered by the Court. "Substantial compliance" in

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Ligon shall be defined as compliance with all material aspects of the Ligon Preliminary Injunctive Relief. In either case, noncompliance with mere technicalities, or temporary failure to comply during a period of otherwise sustained compliance will not constitute a failure of substantial compliance. However, temporary compliance during a period of otherwise sustained non−compliance shall not constitute substantial compliance. d. Substantial compliance shall be measured using the milestones to be set by the Monitor pursuant to paragraph 5 above. The Clerk of Court shall terminate the motions at ECF No. 456 in Floyd and ECF No. 188 in Ligon. (Signed by Judge Analisa Torres on 7/30/2014) (tro) (Entered: 07/30/2014)
199 LETTER addressed to Judge Analisa Torres from Defendants dated August 6, 2014 re: Your Honor's July 30, 2014 Opinion and Order. Document filed by City of New York.(Marutollo, Joseph) (Entered: 08/06/2014)
200 NOTICE OF INTERLOCUTORY APPEAL from 197 Memorandum & Opinion,,,,,,,,,,. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. Filing fee $ 505.00, receipt number 0208−9974060. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Engel, Steven) (Entered: 08/06/2014)
Transmission of Notice of Appeal and Certified Copy of Docket Sheet to US Court of Appeals re: 200 Notice of Interlocutory Appeal,. (nd) (Entered: 08/07/2014)
Appeal Record Sent to USCA (Electronic File). Certified Indexed record on Appeal Electronic Files for 200 Notice of Interlocutory Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc. were transmitted to the U.S. Court of Appeals. (nd) (Entered: 08/07/2014)
201 OPINION of USCA as to 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123. For the reasons set forth in this opinion, Judge Torres's July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions' motions to intervene in the appeals are DENIED, the City's motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion. Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions perspectives in any ongoing District Court proceedings, nothing in this opinion should be construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Certified: 10/31/2014. (nd) (Entered: 10/31/2014)
202 MANDATE of USCA (Certified Copy) as to 200 Notice of Interlocutory Appeal, filed by Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Detectives' Endowment Association, Inc., Patrolmen's Benevolent Association of the City of New York, Inc., 123 Notice of Appeal, filed by Gregory Lomangino, Raymond W. Kelly, Kieron Ramdeen, Miguel Santiago, City of New York, Joseph Koch, Johnny Blasini, Joseph Bermudez, John Does 1−12 USCA Case Number 13−3123−cv; 14−2834−cv. For the reasons set forth in this opinion, Judge Torres's July 30, 2014 decision is AFFIRMED as being an appropriate exercise of her discretion, the police unions' motions to intervene in the appeals are DENIED, the City's motion for voluntary dismissal of the appeals with prejudice is GRANTED, and the causes are REMANDED for such further proceedings before Judge Torres as may be appropriate in the circumstances. The mandate shall issue seven days from the date of the filing of this opinion. Nothing that we have written here, or that the parties have suggested, should foreclose any reliance by the unions on collective bargaining rights afforded to them under the Labor Management Relations Act and state and local law. Moreover, in view of the possible relevance of the unions perspectives in any

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ongoing District Court proceedings, nothing in this opinion should be construed to inhibit the District Court from considering the interests of the unions, either as amici curiae, or on such other terms as the District Court may deem appropriate. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 11/7/2014. (nd) (Entered: 11/10/2014)
203 ORDER APPOINTING FACILITATOR: This Order supplements the Remedies Opinion of August 12, 2013, which directed the parties to engage in a community−based remedial process (the "Joint Remedial Process") to develop sustainable reforms to the stop−and−frisk practices of the New York City Police Department ("NYPD"). By Supplemental Order dated September 4, 2013, the Court appointed Nicholas Turner as Facilitator to guide the Joint Remedial Process. Due to professional obligations that have arisen since his appointment, Mr. Turner has withdrawn as Facilitator. The Court now appoints as Facilitator the Honorable Ariel E. Belen, a retired Associate Justice of the Supreme Court of the State of New York, Appellate Division, Second Department, currently serving as a neutral mediator and arbitrator at JAMS, an alternative dispute resolution ("ADR") provider. Justice Belen, a graduate of Cornell Law School, began his legal career as a public defender with the Legal Aid Society of New York (1981−1990). At Legal Aid, he represented indigent criminal defendants, frequently participating in suppression hearings concerning, among other issues, stop−and−frisk violations. Later, at the City of New York Law Department, he worked as an Assistant Corporation Counsel (1990−1993), Deputy Chief of the Brooklyn Tort Division (1993−1994), and Chief of the Bronx Borough Office (1994), representing police officers sued for alleged civil rights violations, unlawful detentions, and the use of excessive force. Beginning in 1995, Justice Belen served in Kings County as a New York State Supreme Court Justice in various capacities, including in the trial court, at the Appellate Term, and as Administrative Judge of the Civil Term. Justice Belen was appointed to the Appellate Division, Second Department in 2008. In 2012, he joined JAMS. Justice Belen chairs the ADR Committee of the New York County Lawyers' Association and is a Member of the Executive Advisory Committee of the International Institute for Conflict Prevention & Resolution Panel of Distinguished Neutrals. (Signed by Judge Analisa Torres on 11/10/2014) (mro) (Entered: 11/10/2014)
204 MOTION for Brenda Elaine Cooke to Withdraw as Attorney . Document filed by Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago.(Cooke, Brenda) (Entered: 01/26/2015)
205 DECLARATION of Brenda Elaine Cooke in Support re: 204 MOTION for Brenda Elaine Cooke to Withdraw as Attorney .. Document filed by Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Cooke, Brenda) (Entered: 01/26/2015)
206 ORDER REGARDING MONITOR'S FINAL RECOMMENDATIONS: Accordingly, it is ORDERED that: 1. After consultation with the parties, the Monitor shall, over the course of the monitorship, deliver to the parties written, final recommendations for the implementation of remedies ("Final Recommendation"). A Final Recommendation shall be labeled as such, dated, and signed by the Monitor. 2. If a party does not wish to object to a Final Recommendation, the party shall, as soon as possible, notify the Monitor and the other parties in writing. 3. If a party does wish to object to a Final Recommendation, the party shall: a. within 5 days of receiving a Final Recommendation, notify the Monitor and the other parties in writing that there will be an objection; and b. within 14 days of receiving a Final Recommendation, submit a letter to the Court on ECF of no more than five single−spaced pages stating the grounds for the objection. 4. Following the submission of a letter under paragraph 3(b), the Court shall issue an order approving or denying the Final Recommendation. 5. If a party fails to make a timely notification under paragraph 3(a) or fails to timely file a letter under paragraph 3(b), the Final Recommendation shall be deemed adopted by the parties, and the Monitor shall submit it to the Court for approval. 6. If the Monitor seeks to file any materials under seal, he shall inform the parties and e−mail a letter to the Court explaining the basis for his request. The Court shall notify the Monitor and the parties of its decision. The Monitor may then, to the extent permitted by the Court, file the redacted materials on ECF and the full, unredacted materials under seal in accordance with this district's procedures. SO ORDERED. (Signed by

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Judge Analisa Torres on 2/3/2015) (ajs) (Entered: 02/03/2015)
207 ORDER REGARDING MONITOR AND FACILITATOR COMPENSATION: This Agreement, by and between Peter L. Zimroth (Monitor) and New York City (City) is effective as of the last date signed below (Start Date) and, unless sooner terminated, shall terminate upon the termination by the Court of the Monitor's duties. The Monitor and New York City are sometimes referred to individually as a Party and together as the Parties; as further set forth therein. (Signed by Judge Analisa Torres on 2/6/2015) (mro) (Entered: 02/06/2015)
208 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/06/2015 re: Final Recommendations re: FINEST Messages. Document filed by Peter A. Zimroth.(Zimroth, Peter) (Entered: 02/06/2015)
209 MEMO ENDORSEMENT on re: (479 in 1:08−cv−01034−AT−HBP) Letter filed by Peter A. Zimroth, (208 in 1:12−cv−02274−AT−HBP) Letter filed by Peter A. Zimroth. ENDORSEMENT: The Monitor's Final Recommendations with respect to the FINEST message in Floyd v. City of New York are APPROVED. (Signed by Judge Analisa Torres on 2/6/2015) (mro) (Main Document 209 replaced on 2/23/2015) (ajs). (Entered: 02/06/2015)
210 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/20/2015 re: Amended Final Recommendation for FINEST Message in Floyd. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 02/20/2015)
211 MEMO ENDORSED ORDER on MOTION TO WITHDRAW granting 204 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Brenda Elaine Cooke's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Brenda Elaine Cooke terminated. (Signed by Judge Analisa Torres on 2/23/2015) (ajs) (Entered: 02/23/2015)
212 MEMO ENDORSEMENT on re: (482 in 1:08−cv−01034−AT−HBP) Letter filed by Peter A. Zimroth, (210 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, re: Amended Final Recommendation for FINEST Message in Floyd. ENDORSEMENT: The Monitor's Amended Final Recommendations with respect to the FINEST message in Floyd v. City of New York is APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 2/23/2015) (ajs) (Main Document 212 replaced on 2/23/2015) (ajs). (Entered: 02/23/2015)
213 LETTER addressed to Judge Analisa Torres from Steven A. Engel dated March 4, 2015 re: February 3 Order Regarding Monitor's Final Recommendations. Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/04/2015)
214 ORDER: By March 13, 2015, each party shall file a letter with respect to the application made by the Patrolmen's Benevolent Association and the Sergeants Benevolent Association by letters dated March 4 and March 6, 2015, respectively. SO ORDERED. (Signed by Judge Analisa Torres on 3/9/2015) (ajs) (Entered: 03/09/2015)
215 NOTICE OF APPEARANCE by Lisa Marie Richardson on behalf of Joseph Bermudez, Johnny Blasini, City of New York, Raymond W. Kelly, Joseph Koch, Gregory Lomangino, Kieron Ramdeen, Miguel Santiago. (Richardson, Lisa) (Entered: 03/12/2015)
216 LETTER MOTION for Extension of Time to file response to the letters filed by the PBA and SBA addressed to Judge Analisa Torres from Lisa M. Richardson dated March 12, 2015. Document filed by City of New York.(Richardson, Lisa) (Entered: 03/12/2015)
217 AMENDED LETTER MOTION for Extension of Time to respond to PBA and SBA letters addressed to Judge Analisa Torres from Lisa M. Richardson dated March 12, 2015. Document filed by City of New York.(Richardson, Lisa) (Entered: 03/12/2015)
218 ORDER finding as moot 216 Letter Motion for Extension of Time; granting 217 Letter Motion for Extension of Time. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/12/2015) (ajs) (Entered: 03/12/2015)

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219 LETTER MOTION for Extension of Time addressed to Judge Analisa Torres from Christopher Dunn dated 3/13/2015. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Jacqueline Yates.(Dunn, Christopher) (Entered: 03/13/2015)
220 ORDER granting 219 Letter Motion for Extension of Time. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/13/2015) (ajs) (Entered: 03/13/2015)
221 MOTION to Withdraw as Attorney . Document filed by City of New York.(Marutollo, Joseph) (Entered: 03/17/2015)
222 DECLARATION of Joseph A. Marutollo in Support re: 221 MOTION to Withdraw as Attorney .. Document filed by City of New York. (Marutollo, Joseph) (Entered: 03/17/2015)
223 JOINT LETTER addressed to Judge Analisa Torres from Christopher Dunn dated 3/18/15 re: the application made by the the Patrolmen's Benevolent Association and the Sergeants Benevolent Association. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Wells, Jordan) (Entered: 03/18/2015)
224 LETTER addressed to Judge Analisa Torres from Lisa M. Richardson dated March 18, 2015 re: City's response to the PBA and SBA letters dated March 4, 2015 and March 6, 2015. Document filed by City of New York.(Richardson, Lisa) (Entered: 03/18/2015)
225 MEMO ENDORSEMENT granting 221 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Joseph A. Marutollo's appearance from the docket and name from the ECF distribution list. Attorney Joseph Anthony Marutollo terminated. (Signed by Judge Analisa Torres on 3/18/2015) (spo) (Entered: 03/18/2015)
226 LETTER addressed to Judge Analisa Torres from Steven A. Engel dated March 18, 2015 re: Response to letters by City of New York and Plaintiffs dated 3/18/15. Document filed by Patrolmen's Benevolent Association of the City of New York, Inc..(Engel, Steven) (Entered: 03/19/2015)
227 ORDER: By letter dated March 18, 2015, the City suggests a way for all five police unions to participate in the remedial process now. Under the City's approach, the City will share proposals with the unions before providing them to the Monitor and the Plaintiffs. The unions may then offer their comments, which the City will convey to the Monitor. The City will continue to confer with the unions about substantial revisions proposed by the Monitor and the Plaintiffs.1 This approach affords the unions "a practical opportunity" to inform the Monitor of their viewpoints before the Monitor reaches conclusions and submits Final Recommendations to the Court. Accordingly, the unions' request is GRANTED to the extent that the Court invites the unions to participate in the manner described above. (Signed by Judge Analisa Torres on 3/19/2015) (mro) (Entered: 03/19/2015)
228 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated April 20, 2015 re: Final Recommendation Concerning Training Material for Current Academy Class. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1 − Student Guide for Policing Legally, # 2 Exhibit 2 − Powerpoint for Policing Legally, # 3 Exhibit 3 − Student Guide for Policing Impartially, # 4 Exhibit 4 − Part 1 of 4 − Powerpoint for Policing Impartially, # 5 Exhibit 4 − Part 2 of 4 − Powerpoint for Policing Impartially, # 6 Exhibit 4 − Part 3 of 4 − Powerpoint for Policing Impartially, # 7 Exhibit 4 − Part 4 of 4 − Powerpoint for Policing Impartially, # 8 Exhibit 5 − Student Guide for Patrol of Multiple Dwelling Bldgs in TAP, # 9 Exhibit 6 − Powerpoint for Patrol of Multiple Dwelling Bldgs in TAP)(Zimroth, Peter) (Entered: 04/20/2015)
229 LETTER addressed to Judge Analisa Torres from Alexis Karteron dated April 20, 2015 re: Monitor Recommendation re: Training Material for Current Academy Class. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah

04/24/2015
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09/03/2015 09/03/2015

Turner, Jacqueline Yates.(Kovel, Mariana) (Entered: 04/20/2015)
230 MEMO ENDORSEMENT on re: (228 in 1:12−cv−02274−AT−HBP) Letter, filed by Peter L Zimroth, (505 in 1:08−cv−01034−AT−HBP) Letter, filed by Peter A. Zimroth, re: Final Recommendation Concerning Training Material for Current Academy Class. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 4/24/2015) (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4 − Part 1, # 5 Exhibit Exhibit 4 − Part 2, # 6 Exhibit Exhibit 4 − Part 3, # 7 Exhibit Exhibit 4 − Part 4, # 8 Exhibit Exhibit 5, # 9 Exhibit Exhibit 6)(ajs) (Entered: 04/24/2015)
231 FIRST AMENDMENT TO ORDER REGARDING MONITOR'S FINAL RECOMMENDATIONS: The Court's February 3, 2015 Order Regarding Monitor's Final Recommendations is amended such that the following paragraph is added: 7. The Monitor shall submit for the Court's review any material changes to a previously approved Final Recommendation. Changes that are not material do not require the Court's approval. SO ORDERED. (Signed by Judge Analisa Torres on 4/27/2015) (ajs) (Entered: 04/27/2015)
232 MOTION for Elisa T. Wiygul to Withdraw as Attorney . Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(Wiygul, Elisa) (Entered: 05/01/2015)
233 AFFIDAVIT of Elisa T. Wiygul in Support re: 232 MOTION for Elisa T. Wiygul to Withdraw as Attorney .. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Wiygul, Elisa) (Entered: 05/01/2015)
234 MEMO ENDORSED ORDER on NOTICE OF MOTION FOR WITHDRAWAL OF APPEARANCE granting 232 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Elisa T. Wiygul's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Elisa Talora Wiygul terminated. (Signed by Judge Analisa Torres on 5/1/2015) (ajs) (Entered: 05/01/2015)
235 STATUS REPORT. First Report of the Independent Monitor Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 07/09/2015)
236 STATUS REPORT. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 08/07/2015)
237 LETTER addressed to Judge Analisa Torres from Alexis Karteron, Esq. dated August 10, 2015 re: Monitor's Recommendation of August 7, 2015. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 08/10/2015)
238 NOTICE OF APPEARANCE by Amatullah Khaliha Booth on behalf of City of New York. (Booth, Amatullah) (Entered: 08/20/2015)
239 MEMO ENDORSEMENT on re: (236 in 1:12−cv−02274−AT−HBP) Status Report filed by Peter L Zimroth, (347 in 1:10−cv−00699−AT−HBP) Status Report filed by Peter L. Zimroth, (514 in 1:08−cv−01034−AT−HBP) Status Report filed by Peter A. Zimroth. Final Recommendations regarding P.G. 212.11 and P.G. 203.25. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 8/24/2015) (ama) (Entered: 08/24/2015)
240 MOTION for Lisa M. Richardson to Withdraw as Attorney . Document filed by City of New York.(Richardson, Lisa) (Entered: 09/03/2015)
241 DECLARATION of Lisa M. Richardson in Support re: 240 MOTION for Lisa M. Richardson to Withdraw as Attorney .. Document filed by City of New York. (Richardson, Lisa) (Entered: 09/03/2015)

09/04/2015 12/07/2015 12/08/2015
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242 ORDER granting 240 Motion to Withdraw as Attorney. GRANTED. SO ORDERED. Attorney Lisa Marie Richardson terminated. (Signed by Judge Analisa Torres on 9/4/2015) (ajs) (Entered: 09/04/2015)
243 STATUS REPORT. Recommendation Regarding Body−Worn Camera Program Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 12/07/2015)
244 ORDER MODIFYING REMEDIAL ORDER (BODY−WORN CAMERA PILOT PROGRAM): It is anticipated that roughly 1,000 officers will be equipped with body−worn cameras. The use of a randomized experimental design for the body−worn camera pilot will ensure that the pilot will provide the parties, the Monitor, the Court, and the public with better information to evaluate the effectiveness of body−worn cameras in reducing unconstitutional stops−and−frisks and in assessing the costs and benefits of the body−worn cameras. Accordingly, on consent of the parties, it is ORDERED that the NYPD use a randomized experimental design for the body−worn camera one−year pilot program. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 12/8/2015) (kko) (Entered: 12/09/2015)
245 STATUS REPORT. Second Status Report Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 02/16/2016)
246 STATUS REPORT. Recommendation Regarding Stop Report Form Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 03/23/2016)
247 MEMO ENDORSEMENT on re: (246 in 1:12−cv−02274−AT−HBP) Status Report filed by Peter L Zimroth, (354 in 1:10−cv−00699−AT−HBP) Status Report filed by Peter L. Zimroth, (526 in 1:08−cv−01034−AT−HBP) Status Report filed by Peter A. Zimroth, re: Recommendation Regarding Stop Report Form. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 3/25/2016) (kko) (Entered: 03/25/2016)
248 STATUS REPORT. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 05/31/2016)
249 MEMO ENDORSEMENT on re: (248 in 1:12−cv−02274−AT−HBP) Status Report filed by Peter L Zimroth, (357 in 1:10−cv−00699−AT−HBP) Status Report filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. SO ORDERED. (Signed by Judge Analisa Torres on 6/2/2016) (mro) (Entered: 06/03/2016)
250 MOTION for Alexis Karteron to Withdraw as Attorney . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Karteron, Alexis) (Entered: 06/03/2016)
251 MEMO ENDORSEMENT granting 250 Motion for Alexis Karteron to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Alexis Karteron's appearance from the docket and name from the ECF distribution list. SO ORDERED. Attorney Alexis Brie Karteron terminated. (Signed by Judge Analisa Torres on 6/6/2016) (kko) (Entered: 06/06/2016)
252 NOTICE OF APPEARANCE by Johanna Beth Steinberg on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Steinberg, Johanna) (Entered: 06/30/2016)
253 NOTICE OF CHANGE OF ADDRESS by Mariana Louise Kovel on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. New Address: New York Civil Liberties Union, 125 Broad St., 19th Fl., New York, NY, United States 10004, 212−607−3300. (Kovel, Mariana) (Entered: 08/08/2016)
254 STATUS REPORT. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 08/09/2016)
255 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 12, 2016 re: Consent to Search. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 10/12/2016)

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256 STATUS REPORT. re: Recommendation Regarding Electronic Stop Report Form Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 11/10/2016)
257 STATUS REPORT. Fourth Report of the Independent Monitor Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 11/18/2016)
258 ORDER: Consensual searches are not the subject matter of this litigation and, therefore, the Court rejects Plaintiffs' argument that court approval of the Agreement is required. Accordingly, Plaintiffs' request is DENIED. (Signed by Judge Analisa Torres on 11/22/2016) (cf) (Entered: 11/22/2016)
259 MEMO ENDORSEMENT on re: 256 Status Report filed by Peter L Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 11/22/2016) (cf) (Entered: 11/22/2016)
260 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 5/5/2017 re: Recommendation regarding roll−call training on policies for stops in TAP buildings. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 01/05/2017)
261 LETTER addressed to Judge Analisa Torres from Jordan Wells dated 1/18/2017 re: Objection to Monitor recommendation regarding roll−call training on Trespass Affidavit Program. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Wells, Jordan) (Entered: 01/18/2017)
262 FIRST LETTER addressed to Judge Analisa Torres from Amatullah Booth dated January 20, 2017 re: Defs' support of the Monitor's recommendation dated Jan. 5, 2017, under Docket Entry No. 260 and notification of Defs' intent to file a substantive response on Feb. 6, 2017, to Pls' objection, under Docket Entry No. 261. Document filed by City of New York.(Booth, Amatullah) (Entered: 01/20/2017)
263 MEMO ENDORSEMENT on re: 262 Letter, filed by City of New York. ENDORSEMENT: GRANTED. (Signed by Judge Analisa Torres on 1/23/2017) (cf) (Entered: 01/23/2017)
264 NOTICE OF APPEARANCE by Jennifer Rolnick Borchetta on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Abdullah Turner. (Borchetta, Jennifer) (Entered: 01/26/2017)
265 CONSENT MOTION to Approve Preliminary Approval of Class−Action Settlement and Conditional Certification of Settlement Class . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Text of Proposed Order to Grant Plaintiffs' Motion for Preliminary Approval of Class Action Settlement)(Kovel, Mariana) (Entered: 02/02/2017)
266 MEMORANDUM OF LAW in Support re: 265 CONSENT MOTION to Approve Preliminary Approval of Class−Action Settlement and Conditional Certification of Settlement Class . . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Kovel, Mariana) (Entered: 02/02/2017)
267 DECLARATION of Christopher Dunn in Support re: 265 CONSENT MOTION to Approve Preliminary Approval of Class−Action Settlement and Conditional Certification of Settlement Class .. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, Resume of Christopher Dunn, # 2 Exhibit B, Resume of Johanna Steinberg, # 3 Exhibit C, Resume of Foster Maer, # 4 Exhibit D, Resume of McGregor Smyth, # 5 Exhibit E, Resume of Mariana Kovel, # 6 Exhibit F, Resume of Jeffery Resetarits, # 7 Appendix Index of Exhibits to Dunn Declaration)(Kovel, Mariana) (Entered: 02/02/2017)
268 DECLARATION of Jordan Wells in Support re: 265 CONSENT MOTION to Approve Preliminary Approval of Class−Action Settlement and Conditional Certification of Settlement Class .. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1

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Exhibit A, Proposed Stipulation of Settlement, # 2 Exhibit B, Proposed Notice to Class, # 3 Exhibit C, Sample List of TAP Buildings, # 4 Appendix Index of Exhibits to Wells Declaration)(Kovel, Mariana) (Entered: 02/02/2017)
269 FIRST LETTER addressed to Judge Analisa Torres from Amatullah K. Booth dated February 6, 2017 re: Defendants' Response to Plaintiffs' January 18, 2017 letter, objecting to the Monitor's January 5, 2017 Recommendation. Document filed by City of New York.(Booth, Amatullah) (Entered: 02/06/2017)
270 FIRST LETTER addressed to Judge Analisa Torres from Amatullah K. Booth dated February 8, 2017 re: Defs' Letter in Support of the Court's Approval of Settlement. Document filed by City of New York.(Booth, Amatullah) (Entered: 02/08/2017)
271 LETTER addressed to Judge Analisa Torres from Jordan Wells dated Feb. 13, 2017 re: in response to defendants' letter and in further support of plaintiffs' objection to proposed roll call training. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Kovel, Mariana) (Entered: 02/13/2017)
272 ORDER GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS−ACTION SETTLEMENT AND CONDITIONAL CERTIFICATION OF SETTLEMENT CLASS granting 265 Motion to Approve. NOW THEREFORE, IT IS HEREBY ORDERED: The Court hereby preliminarily approves the Stipulation, attached as Exhibit A to the Declaration of Jordan Wells, as being fair, reasonable and adequate to the class, defined in 2 below, subject to further consideration at the Fairness Hearing, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. (As further set forth in this Order.) A Fairness Hearing will be held before Judge Analisa Torres on June 6, 2017, at 10:30 a.m. in Courtroom 15D, at the Daniel Patrick Moynihan Courthouse, 500 Pearl Street, New York, New York, at which time the Court will determine whether the Stipulation should receive final approval as fair, reasonable, and adequate, and whether it shall be entered as an order in this action. (Signed by Judge Analisa Torres on 2/15/2017) (cf) Modified on 2/15/2017 (cf). (Entered: 02/15/2017)
Set/Reset Hearings: Fairness Hearing set for 6/6/2017 at 10:30 AM in Courtroom 15D, 500 Pearl Street, New York, NY 10007 before Judge Analisa Torres. (cf) (Entered: 02/15/2017)
273 LETTER addressed to Judge Analisa Torres from Jin Hee Lee dated 2/15/2017 re: Ligon v. City of New York, No. 12 Civ. 2274 (AT)(HBP) Ligon Plaintiffs Objection to Monitors Recommendation. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Lee, Jin Hee) (Entered: 02/15/2017)
274 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 02/17/2017 re: Monitors Recommendation for Recruit Training. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 02/17/2017)
275 MEMO ENDORSEMENT on re: (541 in 1:08−cv−01034−AT−HBP) Letter filed by Peter A. Zimroth, (274 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, (366 in 1:10−cv−00699−AT−HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 2/24/2017) (cf) (Entered: 02/24/2017)
276 ORDER: The Monitor his submitted recommendations regarding training to be given at roll call regarding enforcement activities in and near residences enrolled in the Trespass Affidavit Program ("TAP"). ECF No. 260. Plaintiffs object to the Monitor's recommendation with respect to the voice−over script for slide 17 of the proposed training. ECF No. 261. In particular, Plaintiffs worry that the training "would permit officers who lack probable cause to believe a person is trespassing nonetheless to order the person to leave and then to use a failure to comply with that order to justify an arrest." Id. at 1. Additional letters were filed by Defendants, Plaintiffs, and the plaintiffs in Davis v. City of New York, No. 10 Civ. 699. ECF Nos. 269, 271, 273. In June 2016, the Court approved revisions to Patrol Guide ("P.G.") 212−59, which sets forth the procedures governing interactions between the police and the public in and

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around TAP buildings. ECF No. 249. All parties supported the approval of these revisions. Id. at 6. The proposed voice−over script for slide 17 includes some but not all of the language in P.G. 212−59. The Court finds that the addition of language from P.G. 212−59 to the proposed voice−over script for slide 17 clarifies the probable cause requirement. Accordingly, the Monitor's recommendation is APPROVED with the following modification of the proposed voice−over script for slide 17: Now let's discuss how you can deal with a person who is uncooperative and won't answer your questions, or where you can't verify a person's authority to be in the building. At Levels 1 and 2, when individuals are free to walk away, a person's decision to leave the building, remain silent, or refuse to provide information or identification when questioned by the police does not give you reasonable suspicion to stop or probable cause to arrest. Even at Level 3, you may detain the person but he or she is still not required to answer your questions. Remember, the burden of proving that an individual does not have authority to be in the building rests on the Police. The individual is not required to answer questions, not even about his or her authority to be in the building. If you suspect the person does not have authority to be in the building, but the person cannot or refuses to explain his or her presence in the building, and you are unable to verify the person's authority to be in the building, you may instruct that person that he or she must leave the building, and that refusal may result in arrest for Criminal Trespass. However, you may only arrest the person if there is probable cause to believe that the person committed a trespass. A reasonable investigation is ordinarily necessary to determine whether probable cause exists. A person's refusal or inability to produce identification or provide information does not elevate the level of the encounter. (Signed by Judge Analisa Torres on 3/21/2017) (mro) (Entered: 03/21/2017)
277 LETTER addressed to Judge Analisa Torres from Zachary W. Carter dated March 29, 2017 re: The Facilitator's Compensation Agreement and Additional Consultants. Document filed by City of New York.(Anakhu, Joy) (Entered: 03/30/2017)
278 MEMO ENDORSEMENT on re: (277 in 1:12−cv−02274−AT−HBP) Letter filed by City of New York, (543 in 1:08−cv−01034−AT−HBP) Letter filed by The City of New York. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 3/31/2017) (cf) (Entered: 03/31/2017)
279 JOINT LETTER MOTION for Extension of Time to Complete Class Notice addressed to Judge Analisa Torres from Mariana (Molly) Kovel dated March 31, 2017. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Wells, Jordan) (Entered: 03/31/2017)
280 ORDER granting 279 Letter Motion for Extension of Time. GRANTED. (Signed by Judge Analisa Torres on 4/3/2017) (cf) (Entered: 04/03/2017)
281 NOTICE of Notice pursuant to the Class Action Fairness Act ("CAFA"), 28 U.S.C. § 1715 re: 268 Declaration in Support of Motion,,. Document filed by City of New York. (Attachments: # 1 Affidavit Affidavit of Service for the CAFA Notice)(Booth, Amatullah) (Entered: 04/10/2017)
282 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated April 11, 2017 re: Memorandum Regarding Approval of Policies for NYPD Body−Worn Camera Pilot Program. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 04/11/2017)
283 NOTICE OF APPEARANCE by Joy Tolulope Anakhu on behalf of City of New York. (Anakhu, Joy) (Entered: 04/21/2017)
284 DECLARATION of Mariana Kovel in Support re: 265 CONSENT MOTION to Approve Preliminary Approval of Class−Action Settlement and Conditional Certification of Settlement Class .. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Nicholas Turner, Jacqueline Yates. (Kovel, Mariana) (Entered: 04/28/2017)
285 STATUS REPORT. Monitors Fifth Report: Analysis of NYPD Stops Reported, 2013−2015 Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 05/30/2017)

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286 NOTICE OF APPEARANCE by David Allen Cooper on behalf of City of New York. (Cooper, David) (Entered: 06/01/2017)
287 LETTER addressed to Judge Analisa Torres from Mariana Kovel dated June 2, 2017 re: Declaration re. Attorney Fees in Settlement. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit 1: Summary of Attorneys' Fees)(Kovel, Mariana) (Entered: 06/02/2017)
Minute Entry for proceedings held before Judge Analisa Torres: Fairness Hearing held on 6/6/2017. (AH) (Entered: 06/06/2017)
288 CONSENT MOTION to Approve Settlement Agreement and Award Attorneys' Fees., CONSENT MOTION to Certify Class . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit A, Signed Stipulation of Settlement)(Kovel, Mariana) (Entered: 06/21/2017)
289 MEMORANDUM OF LAW in Support re: 288 CONSENT MOTION to Approve Settlement Agreement and Award Attorneys' Fees.CONSENT MOTION to Certify Class . . Document filed by Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Kovel, Mariana) (Entered: 06/21/2017)
290 DECLARATION of Mariana Kovel in Support re: 288 CONSENT MOTION to Approve Settlement Agreement and Award Attorneys' Fees.CONSENT MOTION to Certify Class .. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Kovel, Mariana) (Entered: 06/21/2017)
291 STATUS REPORT. Monitors Sixth Report: NYPDs Body−Worn Camera Pilot−−Research and Evaluation Plan Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 06/29/2017)
292 LETTER addressed to Judge Analisa Torres from David Cooper dated July 3, 2017 re: Defendant City's Letter in support of the Court's approval of the Settlement Agreement in this action. Document filed by City of New York.(Cooper, David) (Entered: 07/03/2017)
293 LETTER addressed to Judge Analisa Torres from David Cooper dated July 3, 2017 re: Letter in support of the proposed Sharing Order submitted to the Orders and Judgments Clerk earlier today. Document filed by City of New York. (Attachments: # 1 Exhibit Proposed Sharing Order)(Cooper, David) (Entered: 07/03/2017)
294 SHARING ORDER: NOW, THEREFORE, The City of New York seeks authorization from the Court to share recordings with the Monitor. The Monitor and his team will view and maintain all shared body−worn camera recordings for the purpose of fulfilling his Monitor responsibilities. With the Court's permission, the NYPD will proceed to share recordings with the Monitor and his team in the manner set forth herein, and as further set forth in this order. (Signed by Judge Analisa Torres on 7/17/2017) (ap) (Entered: 07/17/2017)
295 ORDER GRANTING THE PARTIES' CONSENT MOTION FOR CERTIFICATION OF SETTLEMENT CLASS, FINAL APPROVAL OF CLASS−ACTION SETTLEMENT AND AWARD OF ATTORNEYS' FEES granting 288 Motion to Approve Settlement Agreement and Award Attorneys' Fees; granting 288 Motion to Certify Class. IT IS HEREBY ORDERED: The Court hereby certifies the plaintiff class in this action, defined as further set forth in this Order. For the reasons stated on the record at the June 6, 2017 fairness hearing, the Court approves the Stipulation of Settlement as being fair, reasonable and adequate to the class, and finds that the attorneys' fees, expenses, and individual damages awards to named plaintiffs are reasonable. (Signed by Judge Analisa Torres on 7/19/2017) (cf) (Entered: 07/19/2017)
296 STIPULATION OF SETTLEMENT AND ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343. Venue is proper in the United States District Court for the Southern District of New York pursuant to 28 U.S.C. § 1391. The City has agreed to pay damages to the Named Plaintiffs totaling two−hundred thirty−five thousand dollars ($235,000), to

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settle their individual claims. The City has agreed to pay attorneys' fees totaling two−million, five−hundred eighty−five thousand, one−hundred and one dollars ($2,585,101) and costs and expenses totaling fifty−five thousand, four−hundred thirty−two dollars ($55,432) for attorney time and expenses incurred through June 30, 2016. The dismissal of the above−captioned action shall be with prejudice and without costs, expenses, or fees in excess of the amount authorized by the Court or agreed upon by the Parties in accordance with Section L herein. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 7/19/2017) (cf) (Entered: 07/19/2017)
297 TRANSCRIPT of Proceedings re: HEARING held on 6/6/2017 before Judge Analisa Torres. Court Reporter/Transcriber: Khristine Sellin, (212) 805−0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 8/16/2017. Redacted Transcript Deadline set for 8/28/2017. Release of Transcript Restriction set for 10/24/2017.(McGuirk, Kelly) (Entered: 07/26/2017)
298 NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a HEARING proceeding held on 6/6/17 has been filed by the court reporter/transcriber in the above−captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 07/26/2017)
299 NOTICE OF APPEARANCE by Michael J. Gilbert on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Gilbert, Michael) (Entered: 11/13/2017)
300 NOTICE OF WITHDRAWAL OF APPEARANCE: Steven Engel, hereby respectfully withdraws his appearance as counsel for Patrolmen's Benevolent Association of the City of New York, Inc., the Detectives' Endowment Association, Inc., the NYPD Captains Endowment Association and the Lieutenants Benevolent Association of the City of New York, Inc., and requests removal from service of any fu11her pleadings in connection with the above−captioned matter, as further set forth in this Order. Attorney Steven A. Engel terminated. (Signed by Judge Analisa Torres on 11/14/2017) (cf) (Entered: 11/14/2017)
301 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated November 16, 2017 re: Recommendation Regarding In−Service Stop and Frisk Training for Sergeants and Lieutenants. Document filed by Peter L Zimroth. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5)(Zimroth, Peter) (Entered: 11/16/2017)
302 MOTION for James M. McGuire to Withdraw as Attorney . Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc..(McGuire, James) (Entered: 11/20/2017)
303 AFFIDAVIT of James M. McGuire in Support re: 302 MOTION for James M. McGuire to Withdraw as Attorney .. Document filed by Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (McGuire, James) (Entered: 11/20/2017)
304 ORDER granting 302 Motion to Withdraw as Attorney. Attorney James M. McGuire terminated (HEREBY ORDERED by Judge Analisa Torres)(Text Only Order) (DN) (Entered: 11/20/2017)
305 MEMO ENDORSEMENT on re: (384 in 1:10−cv−00699−AT−HBP) Letter, filed by Peter L. Zimroth, (301 in 1:12−cv−02274−AT−HBP) Letter, filed by Peter L Zimroth, (571 in 1:08−cv−01034−AT) Letter, filed by Peter L. Zimroth ENDORSEMENT: The Court has reviewed the training materials attached to this letter, and they are hereby APPROVED. In addition, good cause having been shown, the request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge

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Analisa Torres on 12/5/2017) (mro) (Entered: 12/06/2017)
306 STATUS REPORT. Monitor's Seventh Status Report Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 12/13/2017)
307 MEMO ENDORSEMENT on re: (577 in 1:08−cv−01034−AT) LETTER MOTION for Conference on the Joint Remedial Process addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 10, 2018. filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht, (387 in 1:10−cv−00699−AT−HBP) LETTER MOTION for Conference addressed to Judge Analisa Torres from Angel Harris dated 01/10/2018. filed by Rikia Evans, Vaughn Frederick, Patrick Littlejohn, Lashaun Smith, Raymond Osorio, Shawne Jones, Andrew Washington, Eleanor Britt, Roman Jackson, Hector Suarez, Kristin Johnson. ENDORSEMENT: By January 24, 2018, the City of New York shall respond to this letter. (Responses due by 1/24/2018) (Signed by Judge Analisa Torres on 1/17/2018) (cf) (Entered: 01/17/2018)
308 MEMO ENDORSEMENT on re: (579 in 1:08−cv−01034−AT) Response to Motion filed by The City of New York ENDORSEMENT: By January 25, 2018, Plaintiffs shall reply to this letter. (Signed by Judge Analisa Torres on 1/23/2018) (cf) (Entered: 01/23/2018)
309 ORDER granting in part and denying in part [387 in 10−cv−699 and 577 in 08−cv−1034] Letter Motion for Conference. GRANTED in part and DENIED in part. Plaintiffs' request for a date certain for the issuance of the Facilitator's Final Report is GRANTED. Plaintiffs' requests for a status conference, the immediate publication of the input materials, and a scheduling order on motions are DENIED. In order to facilitate a free and open exchange among stakeholders, it is ORDERED that: By March 2, 2018, the Facilitator shall distribute a confidential and private draft of his Final Report to the parties. By March 23, 2018, the parties shall provide the Facilitator with confidential and private written comments, if any, on the draft. By April 13, 2018, the Facilitator and the parties shall conclude discussion on the Joint Process Reforms. By April 30, 2018, the Facilitator shall file on the public docket the Final Report and the input materials, redacted as necessary. (Signed by Judge Analisa Torres on 1/29/2018) (cf) (Entered: 01/29/2018)
310 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated February 22, 2018 re: Recommendation Regarding Training for Newly Promoted Sergeants and Lieutenants. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 02/22/2018)
311 MEMO ENDORSEMENT on re: (585 in 1:08−cv−01034−AT) Letter filed by Peter L. Zimroth, (310 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, (393 in 1:10−cv−00699−AT−HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: The Court, having reviewed the training materials on Investigative Encounters for Newly Promoted Sergeants and Lieutenants, ECF No. 585, and having received no objections, hereby APPROVES the materials. (Signed by Judge Analisa Torres on 3/27/2018) (cf) (Entered: 03/27/2018)
312 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Mariana Kovel to Withdraw as Attorney for Plaintiffs and Plaintiff Class. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Affidavit in support of Motion to Withdraw as Counsel)(Kovel, Mariana) Modified on 4/13/2018 (db). (Entered: 04/03/2018)
313 ORDER granting 312 Motion to Withdraw as Attorney. Attorney Mariana Louise Kovel terminated. (Signed by Judge Analisa Torres on 4/4/2018) (DN) (Entered: 04/04/2018)
314 ORDER granting 589 Letter Motion for Extension of Time to File in 08−cv−1034−AT. GRANTED. (Signed by Judge Analisa Torres on 4/19/2018) (mro) (Entered: 04/20/2018)
315 ORDER: GRANTED. By June 8, 2018, the parties shall file their comments. By June 22, 2018, amici curae shall file their comments, if any. By June 29, 2018, the parties shall file their replies. Decision on the request for oral argument is held in abeyance. (Signed by Judge Analisa Torres on 5/7/2018) (cf) (Entered: 05/07/2018)

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316 NOTICE OF APPEARANCE by Shakeer Mostafa Rahman on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Rahman, Shakeer) (Entered: 05/21/2018)
317 BRIEF Plaintiffs' Comments on the Joint Remedial Process Reforms. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Rahman, Shakeer) (Entered: 06/08/2018)
318 BRIEF The Way Forward − The NYPD's Response to the Joint Remedial Process Report. Document filed by City of New York.(Cooper, David) (Entered: 06/08/2018)
319 BRIEF The New York City Law Department's Comments on Specific Recommendations in the Joint Remedial Process Final Report and Recommendations. Document filed by City of New York.(Cooper, David) (Entered: 06/08/2018)
320 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated June 25, 2018 re: Recommendation Regarding In−Service Stop and Frisk Training for Patrol Officers. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 06/25/2018)
321 NOTICE OF APPEARANCE by Lindsay Elizabeth Ray on behalf of Detectives' Endowment Association, Inc., Lieutenants Benevolent Association of the City of New York, Inc., NYPD Captains Endowment Association, Patrolmen's Benevolent Association of the City of New York, Inc.. (Ray, Lindsay) (Entered: 07/09/2018)
322 MEMO ENDORSEMENT on re: (403 in 1:10−cv−00699−AT−HBP) Letter filed by Peter L. Zimroth, (609 in 1:08−cv−01034−AT) Letter filed by Peter L. Zimroth, (320 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 7/10/2018) (cf) (Entered: 07/10/2018)
323 BRIEF re: 319 Brief, 318 Brief Containing Reply in Further Support of the Responses Submitted by the New York City Law Department and the New York City Police Department. Document filed by City of New York.(Cooper, David) (Entered: 07/16/2018)
324 BRIEF Plaintiffs' Reply in Further Support of the Joint Remedial Process Reforms. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Appendix Letters From Named Plaintiffs in Floyd and Ligon)(Wells, Jordan) (Entered: 07/16/2018)
325 ORDER REGARDING DOCUMENTING POLICE−CITIZEN ENCOUNTERS: The Court concludes that further study on this recommendation is necessary. Accordingly, it is hereby ORDERED that: By September 13, 2018, the parties shall submit a joint proposal for a pilot program, to be overseen by the Monitor, to study the electronic recording of first− and second−level police−citizen encounters. The proposal shall consider social science best practices. In developing the proposal, the parties shall consult with experts and the Monitor. (As further set forth in this Order.) After consulting the parties, the Monitor shall report to the Court whether the benefits of recording lower−level encounters outweigh the financial, administrative, and other costs, and whether the program should be expanded or terminated. The City shall bear the cost of the pilot program. (Signed by Judge Analisa Torres on 7/19/2018) (cf) (Entered: 07/19/2018)
326 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 07/25/2018 re: Recommendation Regarding Basic Plainclothes Training for New Plainclothes Officers. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 07/25/2018)
327 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated 07/25/2018 re: Recommendation Regarding Recruit Training on Investigative Encounters. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 07/25/2018)
328 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated July 25, 2018 re: Application for Confidentiality Order. Document filed by Peter L Zimroth. (Attachments: # 1 Text of Proposed Order)(Zimroth, Peter) (Entered: 07/25/2018)

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329 ORDER: On July 25, 2018, the Monitor filed an application for a confidentiality order. See Floyd v. City of New York, No. 08 Civ. 1034, ECF No. 622. By August 2, 2018, the parties shall file their objections, if any, to the application. (Signed by Judge Analisa Torres on 7/26/2018) (cf) (Entered: 07/26/2018)
330 STATUS REPORT. Eighth Report of the Independent Monitor: Evaluation of NYPD Body−Worn Camera Implementation in NYCHA Housing Developments Document filed by Peter L Zimroth. (Attachments: # 1 Report)(Zimroth, Peter) (Entered: 07/27/2018)
331 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated July 31, 2018 re: Amended Proposed Confidentiality Order [328−1]. Document filed by Peter L Zimroth. (Attachments: # 1 Text of Proposed Order)(Zimroth, Peter) (Entered: 07/31/2018)
332 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2018 re: A Proposed Revision to the Amended Proposed Confidentiality Order. Document filed by City of New York.(Cooper, David) (Entered: 08/02/2018)
333 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated August 2, 2018 re: Objection to Proposed Protective Order (Dkt # 328). Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Borchetta, Jennifer) (Entered: 08/03/2018)
334 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated August 3, 2018 re: Objection to City's Requested Modification (Dkt # 332). Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Borchetta, Jennifer) (Entered: 08/03/2018)
335 LETTER MOTION for Leave to File Responses in support of and in opposition to the Monitor's Application for a Confidentiality Order addressed to Judge Analisa Torres from David Cooper dated August 3, 2018. Document filed by City of New York.(Cooper, David) (Entered: 08/03/2018)
336 ORDER granting 335 Letter Motion for Leave to File Document. It is hereby ORDERED that: 1. CPR's motion for leave to file an amicus brief is GRANTED; 2. By August 16, 2018, Defendant shall file its response to Plaintiffs' objections and CPR's amicus brief; and 3. By August 21, 2018, Plaintiffs shall file their reply, if any. The Clerk of Court is directed to terminate the motions at ECF Nos. 629 and 631 in Floyd v. City of New York, No. 08 Civ. 1034. (Signed by Judge Analisa Torres on 8/9/2018) (kgo) (Entered: 08/09/2018)
Set/Reset Deadlines: Reply to Response to Brief due by 8/21/2018. Responses to Brief due by 8/16/2018 (kgo) (Entered: 08/09/2018)
337 ORDER REGARDING BODY−WORN CAMERAS: that: 1. By October 19, 2018, the parties shall submit a joint proposal for a pilot program, to be overseen by the Monitor, to study requiring patrol officers to activate BWCs during Level 1 encounters under De Bour. The proposal shall consider social science best practices. In developing the proposal, the parties shall consult with experts and the Monitor. After consulting with the parties or their experts, the Monitor shall also consider whether it is feasible to integrate this pilot program into the BWC Pilot, or whether it must be conducted separately. 2. The proposal shall include: a. A timeline for the planning, implementation, and analysis of the data gathered during the implementation of the program; b. A plan for monitoring the program during the implementation stage; c. A plan for assessing whether requiring activation of BWCs during Level 1 encounters enhances the NYPD's ability to capture on BWCs encounters that escalate to Level 2 or Level 3; and d. A plan for considering the privacy implications and effect on police−community relations of activating BWCs during Level 1 encounters. 3. After consulting the parties, the Monitor shall report the study's findings to the Court. The City shall bear the cost of the pilot program. (Signed by Judge Analisa Torres on 8/9/2018) (tn) (Entered: 08/09/2018)
338 STIPULATION OF SETTLEMENT OF COUNSEL FEES, COSTS, AND EXPENSES TO CLASS COUNSEL FOR TIME AND EXPENSES INCURRED IN THIS MATTER FROM JULY 1, 2016 THROUGH DECEMBER 31, 2017, AND

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ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: "Main Stipulation" shall mean the Stipulation of Settlement and Order, executed by the Parties in the above−captioned action, which was so ordered by the Court on July 19, 2017. Class Counsel represent that LatinoJustice PRLDEF and the New York Lawyers for the Public Interest have not sought any attorneys' fees, costs or expenses in, arising from, or in connection with this action, from July 1, 2016 through December 31, 2017. This payment shall be made within (60) sixty days from the Effective Date of this Stipulation and Order. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/13/2018) (cf) Modified on 10/29/2018 (cf). (Entered: 08/13/2018)
339 MEMO ENDORSEMENT on re: (326 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, (408 in 1:10−cv−00699−AT−HBP) Letter filed by Peter L. Zimroth, (620 in 1:08−cv−01034−AT) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 8/14/2018) (cf) (Entered: 08/14/2018)
340 MEMO ENDORSEMENT on re: (621 in 1:08−cv−01034−AT) Letter filed by Peter L. Zimroth, (327 in 1:12−cv−02274−AT−HBP) Letter filed by Peter L Zimroth, (409 in 1:10−cv−00699−AT−HBP) Letter filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. In addition, the Monitor's request to file the unredacted training materials and videos under seal is GRANTED. (Signed by Judge Analisa Torres on 8/14/2018) (cf) (Entered: 08/14/2018)
341 LETTER addressed to Judge Analisa Torres from David Cooper dated August 16, 2018 re: Support for the Monitor's Application for a Confidentiality Order. Document filed by City of New York. (Attachments: # 1 City's Redlined Copy of the Amended Proposed Confidentiality Order)(Cooper, David) (Entered: 08/16/2018)
342 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated August 21, 2018 re: Response in Further Opposition to Confidentiality Order. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Abdullah Turner.(Borchetta, Jennifer) (Entered: 08/21/2018)
343 ORDER granting [641 in 08−cv−1034] Letter Motion to File Amicus Brief. GRANTED. By August 23, 2018, Communities United for Police Reform shall file its amicus curiae in further opposition. (Responses to Brief due by 8/23/2018) (Signed by Judge Analisa Torres on 8/22/2018) (cf) (Entered: 08/22/2018)
344 LETTER addressed to Judge Analisa Torres from Evan Chesler dated October 1, 2018 re: Confidentiality Order. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6)(Zimroth, Peter) (Entered: 10/01/2018)
345 ORDER denying (648 in 08cv1034) Letter Motion for Leave to File Document. Plaintiffs now file a request for leave to file more papers. ECF No. 648. As stated, Plaintiffs have already filed two submissions on this issue, ECF Nos. 627 & 639, and in total, the Court has received seven submissions, ECF Nos. 627, 635, 638, 639, 640, 643, 647. The Court, therefore, has sufficient briefing to decide the issue. Accordingly, Plaintiffs' motion for leave to file an additional submission is DENIED. The Clerk of Court is directed to terminate the motion at ECF No. 648 in Floyd v. City of New York, No. 08 Civ. 1034. SO ORDERED. (Signed by Judge Analisa Torres on 10/2/18) (yv) (Entered: 10/02/2018)
346 NOTICE OF APPEARANCE by Kevin Eli Jason on behalf of A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Jason, Kevin) (Entered: 10/10/2018)
347 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Judge Analisa Torres on 10/11/2018) (cf) (Entered: 10/11/2018)
348 FILING ERROR − DEFICIENT DOCKET ENTRY − MOTION for Jordan Wells to Withdraw as Attorney for Plaintiffs. Document filed by A.O., Fawn Bracy, Charles

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Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Affirmation of Jordan Wells in Support of Motion)(Wells, Jordan) Modified on 11/6/2018 (ldi). (Entered: 10/12/2018)
349 MEMO ENDORSEMENT granting 348 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Jordan Wells' appearance from the docket and name from the ECF distribution list. Attorney Jordan Wells terminated (Signed by Judge Analisa Torres on 10/12/2018) (cf) (Entered: 10/12/2018)
350 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 10/19/2018)
351 MEMO ENDORSEMENT on re: ( 350 in 1:12−cv−02274−AT−HBP) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth., (655 in 1:08−cv−01034−AT) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth., (429 in 1:10−cv−00699−AT−HBP) LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated October 19, 2018 re: Recommendation Regarding Stop and Frisk Procedures and Stop Report. Document filed by Peter L. Zimroth. ENDORSEMENT: With respect only to matters that are subject to the Court's approval, the Monitor's request is GRANTED. The Court does not address issues arising under the Right to Know Act, as they are not within the scope of the monitorship. SO ORDERED. (Signed by Judge Analisa Torres on 10/26/2018) (rjm) Modified on 10/26/2018 (rjm). (Entered: 10/26/2018)
352 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated November 9, 2018 re: Recommendation Regarding Combined Pilot Study. Document filed by Peter L Zimroth. (Attachments: # 1 Protocol for Combined Pilot)(Zimroth, Peter) (Entered: 11/09/2018)
353 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated November 21, 2018 re: Pls. Partial Objection to Monitor Recommendation (Dkt No. 352). Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Appendix 1, # 2 Appendix 2)(Borchetta, Jennifer) (Entered: 11/21/2018)
354 LETTER MOTION for Leave to File a Response to Plaintiffs' November 21, 2018 Objection addressed to Judge Analisa Torres from David Cooper dated November 29, 2018. Document filed by City of New York.(Cooper, David) (Entered: 11/29/2018)
355 ORDER granting 354 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 11/30/2018) (cf) (Entered: 11/30/2018)
356 LETTER addressed to Judge Analisa Torres from David Cooper dated December 5, 2018 re: Response to Plaintiffs' Objection dated November 21, 2018. Document filed by City of New York.(Cooper, David) (Entered: 12/05/2018)
357 STATUS REPORT. Recommendation Regarding IAB Guide and Training on Profiling Investigations Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 12/20/2018)
358 MEMO ENDORSEMENT on re: (439 in 1:10−cv−00699−AT−HBP) Status Report filed by Peter L. Zimroth, (357 in 1:12−cv−02274−AT−HBP) Status Report filed by Peter L Zimroth, (676 in 1:08−cv−01034−AT) Status Report filed by Peter L. Zimroth. ENDORSEMENT: APPROVED (Signed by Judge Analisa Torres on 1/3/2019) (cf) (Entered: 01/03/2019)
359 LETTER MOTION for Extension of Time to File the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated January 7, 2019. Document filed by City of New York.(Cooper, David) (Entered: 01/07/2019)

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360 ORDER granting 359 Letter Motion for Extension of Time to File. GRANTED. (Signed by Judge Analisa Torres on 1/7/2019) (cf) (Entered: 01/07/2019)
361 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated January 11, 2019 re: Ninth Report of the Independent Monitor. Document filed by Peter L Zimroth. (Attachments: # 1 Ninth Report of the Independent Monitor, # 2 Appendix 1, # 3 Appendix 2)(Zimroth, Peter) (Entered: 01/11/2019)
362 LETTER addressed to Judge Analisa Torres from David Cooper dated January 14, 2019 re: the NYPD's Plan to Implement Facilitator's Recommendation No. 1. Document filed by City of New York. (Attachments: # 1 Plan to Implement Facilitator's Recommendation No. 1)(Cooper, David) (Entered: 01/14/2019)
363 MEMO ENDORSEMENT on (682 in 08−CV−1034) LETTER. ENDORSEMENT: GRANTED. (Signed by Judge Analisa Torres on 1/16/2019) (jwh) (Entered: 01/16/2019)
364 LETTER addressed to Judge Analisa Torres from Shakeer Rahman dated January 28, 2019 re: Ligon Plaintiffs' Response to NYPD's Plan for Implementation of Facilitator Recommendation #1. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Rahman, Shakeer) (Entered: 01/28/2019)
365 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated January 29, 2019 re: Recommendation Regarding Combined Pilot Study. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14)(Zimroth, Peter) (Entered: 01/29/2019)
366 LETTER MOTION for Leave to File a Response to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated January 30, 2019. Document filed by City of New York.(Cooper, David) (Entered: 01/30/2019)
367 ORDER granting 366 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 1/30/2019) (cf) (Entered: 01/30/2019)
368 ORDER denying [690 in 08−cv−1034] Letter Motion for Leave to File Document. Having reviewed the submissions of the parties and amicus curiae with respect to the proposed pilot program, ECF Nos. 660, 669, 673−75, 687, it is hereby ORDERED that: 1. Plaintiffs' motion for leave to file additional papers, ECF No. 669, is DENIED; and 2. The proposed pilot study, ECF No. 687−1, is APPROVED. The Clerk of Court is directed to terminate the motion at ECF No. 690. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 2/7/2019) (cf) (Entered: 02/07/2019)
369 LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated February 7, 2019. Document filed by City of New York.(Cooper, David) (Entered: 02/07/2019)
370 ORDER granting 369 Letter Motion for Extension of Time to File Response/Reply. So Ordered. (Signed by Judge Analisa Torres on 2/7/2019) (js) (Entered: 02/08/2019)
371 SECOND LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated February 28, 2019. Document filed by City of New York.(Cooper, David) (Entered: 02/28/2019)
372 ORDER granting 371 Letter Motion for Extension of Time to File Response/Reply. GRANTED. (Signed by Judge Analisa Torres on 2/28/2019) (cf) (Entered: 02/28/2019)
373 THIRD LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's

03/08/2019 03/22/2019
03/22/2019
04/12/2019
04/12/2019 05/09/2019 05/09/2019

Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated March 8, 2019. Document filed by City of New York.(Cooper, David) (Entered: 03/08/2019)
386 ORDER granting 373 Letter Motion for Extension of Time to File Response/Reply: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/8/2019) (jwh) (Entered: 06/21/2019)
374 FOURTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated March 22, 2019. Document filed by City of New York.(Cooper, David) (Entered: 03/22/2019)
375 ORDER granting 374 Letter Motion for Extension of Time to File Response/Reply re 374 FOURTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 3/22/2019) Responses due by 4/12/2019 (ks) (Entered: 03/22/2019)
376 FIFTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated April 12, 2019. Document filed by City of New York.(Cooper, David) (Entered: 04/12/2019)
377 ORDER granting 376 Letter Motion for Extension of Time to File Response/Reply. GRANTED. (Signed by Judge Analisa Torres on 4/12/2019) (cf) (Entered: 04/12/2019)
378 PROPOSED STIPULATION AND ORDER. Document filed by City of New York. (Cooper, David) (Entered: 05/09/2019)
379 STIPULATION OF SETTLEMENT AND ORDER OF COUNSEL FEES, COSTS, AND EXPENSES TO CLASS COUNSEL FOR TIME AND EXPENSES INCURRED IN THIS MATTER FROM JANUARY 1, 2018 THROUGH DECEMBER 31,2018: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the undersigned, as follows: "Main Stipulation" shall mean the Stipulation of Settlement and Order, executed by the Parties in the above−captioned action, which was so ordered by the Court on July 19, 2017. "Second Interim Fee Stipulation" shall mean this Stipulation of Settlement and Order of Counsel Fees, Costs and Expenses to Class Counsel for Time and Expenses Incurred in This Matter from January 1, 2018 through December 31, 2018, executed by the Parties in the above−captioned action in accordance with Section L of the Main Stipulation. "Effective Date" shall mean (30) thirty days following the "Final Approval Date" defined below, and shall also be the date upon which this Second Interim Fee Stipulation enters into effect. The City agrees to pay attorneys' fees, totaling eighty−five thousand, three−hundred fifty−two dollars even ($85,352.00), to Class Counsel for time and expenses incurred in this matter, from January 1, 2018 through December 31, 2018. Class Counsel represent that they are authorized to receive payment on behalf of the Plaintiffs in full satisfaction of all claims for attorneys' fees, costs, and expenses in, arising from, or in connection with this action, from January 1, 2018 through December 31, 2018. Class Counsel hereby agree that payment for all time and expenses incurred by Class Counsel in this matter from January 1, 2018 through December 31, 2018, shall be made by a single check made payable to New York Civil Liberties Union Foundation, and Class Counsel accept said payment in full satisfaction of all claims for attorneys' fees, costs and expenses, in, arising from, or in connection with this action, during that time period. This payment shall be made within (60) sixty days from the Effective Date of this Stipulation and Order. No interest shall accrue if payment is issued within 60 days from the Effective Date of this Stipulation and Order. Any payment received beyond the 60 day period shall accrue interest as provided by the Federal Rules of Civil Procedure. And as set forth herein. SO ORDERED. (Signed by Judge Analisa Torres on 5/09/2019) (ama) (Entered: 05/09/2019)

05/28/2019
05/29/2019 06/07/2019 06/07/2019 06/14/2019 06/18/2019 06/28/2019
06/28/2019 07/08/2019 07/09/2019 07/11/2019 07/18/2019 07/18/2019

380 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated May 28, 2019 re: Recommendation Regarding Training Materials for Housing Bureau Members. Document filed by Peter L Zimroth. (Attachments: # 1 Housing One−Day Training Scenarios, # 2 Lobby Trespass Scenario, # 3 Stairwell Trespass Scenario, # 4 Shots Fired Ingterior Patrol Scenario, # 5 Roof Trespass Scenario)(Zimroth, Peter) (Entered: 05/28/2019)
381 MEMO ENDORSEMENT on re: (464 in 1:10−cv−00699−AT−HBP) Letter, filed by Peter L. Zimroth, (380 in 1:12−cv−02274−AT−HBP) Letter, filed by Peter L Zimroth, (706 in 1:08−cv−01034−AT) Letter, filed by Peter L. Zimroth. ENDORSEMENT: APPROVED. (Signed by Judge Analisa Torres on 5/29/2019) (cf) (Entered: 05/29/2019)
382 SIXTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1 addressed to Judge Analisa Torres from David Cooper dated June 7, 2019. Document filed by City of New York.(Cooper, David) (Entered: 06/07/2019)
383 ORDER granting 382 SIXTH LETTER MOTION for Extension of Time to File Response/Reply to Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1. GRANTED. SO ORDERED. Responses due by 8/2/2019. (Signed by Judge Analisa Torres on 6/7/2019) (jca) (Entered: 06/07/2019)
384 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated June 14, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 06/14/2019)
385 LETTER addressed to Judge Analisa Torres from Shakeer Rahman dated June 18, 2019 re: the Monitor's Proposed Pilot Study Confidentiality Order. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Rahman, Shakeer) (Entered: 06/18/2019)
387 ENDORSED LETTER addressed to Judge Analisa Torres from "the City Prsecutors" dated 6/28/2019 re: request leave to submit comments by Friday, July 19, 2019, regarding the Monitor's proposed confidentiality order and letter in support, which he submitted on June 14, 2019. See Doc. No. 712 (08−CV−1034). ENDORSEMENT: GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 6/28/2019) (kv) (Entered: 06/28/2019)
388 LETTER addressed to Judge Analisa Torres from Shakeer Rahman dated June 28, 2019 re: Monitor's Proposed Pilot Study Confidentiality Order. Document filed by Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Rahman, Shakeer) (Entered: 06/28/2019)
389 LETTER MOTION for Leave to File Comment in Connection with the Proposed Pilot Study Confidentiality Order addressed to Judge Analisa Torres from David Cooper dated July 8, 2019. Document filed by City of New York.(Cooper, David) (Entered: 07/08/2019)
390 ORDER granting 389 Letter Motion for Leave to File Document. GRANTED. SO ORDERED. (Signed by Judge Analisa Torres on 7/9/2019) (rro) (Entered: 07/09/2019)
391 LETTER addressed to Judge Analisa Torres from David Cooper dated July 11, 2019 re: Comment on Proposed Pilot Study Confidentiality Order. Document filed by City of New York.(Cooper, David) (Entered: 07/11/2019)
392 MOTION for Johanna Beth Steinberg to Withdraw as Attorney . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Steinberg, Johanna) (Entered: 07/18/2019)
393 MEMO ENDORSEMENT granting 392 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Johanna B. Steinberg's appearance from the docket and name from the ECF distribution list.

07/26/2019 07/26/2019 08/02/2019
08/02/2019 08/06/2019 08/12/2019 08/12/2019 08/12/2019 08/30/2019 08/30/2019
09/03/2019
10/01/2019 10/01/2019

Attorney Johanna Beth Steinberg terminated (Signed by Judge Analisa Torres on 7/18/2019) (cf) (Entered: 07/19/2019)
394 LETTER MOTION for Leave to File Remark Regarding the Proposed Modification Contained in the City Prosecutors' Amicus Brief addressed to Judge Analisa Torres from David Cooper dated July 26, 2019. Document filed by City of New York.(Cooper, David) (Entered: 07/26/2019)
395 ORDER granting 394 Letter Motion for Leave to File Document. GRANTED. (Signed by Judge Analisa Torres on 7/26/2019) (cf) (Entered: 07/26/2019)
396 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2019 re: Submission of NYPD's Response Addressing Plaintiffs' Counsel's Concerns About the NYPD's Plan to Implement Facilitator's Recommendation No. 1. Document filed by City of New York. (Attachments: # 1 Response to Plaintiffs' Submissions on Department's Response to Court Order Regarding Facilitator's Recommendation No. 1)(Cooper, David) (Entered: 08/02/2019)
397 LETTER addressed to Judge Analisa Torres from David Cooper dated August 2, 2019 re: Remark on the District Attorneys' Amicus Brief. Document filed by City of New York.(Cooper, David) (Entered: 08/02/2019)
398 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated August 6, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 08/06/2019)
399 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated August 12, 2019 re: Pilot Study Confidentiality Order. Document filed by Peter L Zimroth. (Attachments: # 1 Exhibit 1)(Zimroth, Peter) (Entered: 08/12/2019)
400 ORDER: Having reviewed the submissions of the Monitor, the parties, it is hereby ORDERED that the proposed confidentiality order, Floyd, ECF No. 734−1, is APPROVED. (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/12/2019) (cf) (Entered: 08/12/2019)
401 CONFIDENTIALITY ORDER...regarding procedures to be followed that shall govern the handling of confidential material... (As further set forth in this Order.) (Signed by Judge Analisa Torres on 8/12/2019) (cf) (Entered: 08/12/2019)
402 MOTION for Shakeer Mostafa Rahman to Withdraw as Attorney . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Rahman, Shakeer) (Entered: 08/30/2019)
403 MEMO ENDORSEMENT granting 402 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Shakeer Rahman's appearance from the docket and name from the ECF distribution list. Attorney Shakeer Mostafa Rahman terminated (Signed by Judge Analisa Torres on 8/30/2019) (cf) (Entered: 08/30/2019)
404 ORDER. It is hereby ORDERED that: 1. By September 17, 2019, Defendants shall file their response to Plaintiffs' Motion for Reconsideration; and 2. By September 24, 2019, Plaintiffs shall file their reply, if any. SO ORDERED. (Responses due by 9/17/2019. Replies due by 9/24/2019.) (Signed by Judge Analisa Torres on 9/3/2019) (rjm) (Entered: 09/03/2019)
405 MOTION for Kevin E. Jason to Withdraw as Attorney . Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Jason, Kevin) (Entered: 10/01/2019)
406 MEMO ENDORSEMENT granting 405 Motion to Withdraw as Attorney. ENDORSEMENT: GRANTED. The Clerk of Court is directed to remove Kevin E. Jason's appearance from the docket and name from the ECF distribution list. SO ORDERED. (Signed by Judge Analisa Torres on 10/1/2019) Attorney Kevin Eli Jason terminated (ks) (Entered: 10/01/2019)

10/10/2019 10/25/2019 12/16/2019 01/07/2020 01/14/2020 05/01/2020
05/05/2020
05/26/2020
05/28/2020 05/28/2020 05/29/2020 06/01/2020

407 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated October 10, 2019 re: the City of New York's Filing Concerning the Pilot Study Confidentiality Order. Document filed by Peter L Zimroth.(Zimroth, Peter) (Entered: 10/10/2019)
408 ORDER: The Floyd Plaintiffs now move for reconsideration of that order pursuant to Local Civil Rule 6.3. ECF No. 740. (As further set forth in this Order.) For the reasons stated above, the Floyd Plaintiffs' motion for reconsideration of the Pilot Confidentiality Order is DENIED. (Signed by Judge Analisa Torres on 10/25/2019) (cf) (Entered: 10/25/2019)
409 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated December 16, 2019 re: The Tenth Report of the Independent Monitor. Document filed by Peter L Zimroth. (Attachments: # 1 BWC Memorandum of Understanding, # 2 Compliance Metrics)(Zimroth, Peter) (Entered: 12/16/2019)
410 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated January 7, 2020 re: The Corrected Tenth Report of the Independent Monitor. Document filed by Peter L Zimroth. (Attachments: # 1 BWC Memorandum of Understanding, # 2 Compliance Metrics)(Zimroth, Peter) (Entered: 01/07/2020)
411 LETTER addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated January 14, 2020 re: Monitor's Tenth Report. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates.(Borchetta, Jennifer) (Entered: 01/14/2020)
412 LETTER addressed to Judge Analisa Torres from Plaintiffs dated May 1, 2020 re: compliance monitoring of the consent decree. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates. (Attachments: # 1 Exhibit Stipulation of Settlement and Order dated 07/19/2017 (ECF 296)).(Dunn, Christopher) (Entered: 05/01/2020)
413 ORDER: The Agreement by and between Peter Zimroth (Monitor) and New York City (City) approved by the Court on February 6, 2015, Floyd v. City of New York, Document 478, is amended by adding the following subparagraphs to subparagraph 2.3: 2.3.24 Rob Voigt, $200 per hour 2.3.25 Nick Camp, $200 per hour. This amended Agreement is effective as of the date signed below and, unless sooner terminated, shall terminate upon the termination by the Court of the Monitor's duties. (Signed by Judge Analisa Torres on 5/5/2020) (cf) (Entered: 05/05/2020)
414 ORDER: Accordingly, it is hereby ORDERED that: 1. By June 2, 2020, Defendant shall file its response to Plaintiffs' proposed order to show cause. 2. By June 9, 2020, the Monitor shall file a response. The Court will notify the parties if it determines that a hearing is necessary. SO ORDERED., ( Replies due by 6/9/2020., Show Cause Response due by 6/2/2020.) (Signed by Judge Analisa Torres on 5/26/2020) (ama) (Entered: 05/26/2020)
415 LETTER addressed to Judge Analisa Torres from Peter L. Zimroth dated May 28, 2020 re: Joint Brief of The Parties Regarding NYPDs Early Intervention Proposal. Document filed by Peter L Zimroth..(Zimroth, Peter) (Entered: 05/28/2020)
416 JOINT BRIEF of The Parties Regarding NYPDs Early Intervention Proposal. Document filed by Peter L Zimroth. (Attachments: # 1 Appendix A, # 2 Appendix B).(Zimroth, Peter) (Entered: 05/28/2020)
417 LETTER MOTION for Extension of Time to File Response to the Floyd and Davis Plaintiffs' Proposed Order to Show Cause With Emergency Relief addressed to Judge Analisa Torres from David Cooper dated May 29, 2020. Document filed by City of New York..(Cooper, David) (Entered: 05/29/2020)
418 ORDER granting 417 Letter Motion for Extension of Time to File. GRANTED. By June 8, 2020, Defendant shall file it's response to the Floyd, Davis, and Ligon Plaintiff's submissions. It is further ORDERED that the deadline for the Monitor to file a response is EXTENDED to June 15, 2020. Replies due by 6/15/2020. (Signed by Judge Analisa Torres on 6/1/2020) (cf) (Entered: 06/01/2020)

06/01/2020 06/02/2020
06/02/2020
06/04/2020 06/05/2020 06/05/2020 06/09/2020 06/09/2020 06/09/2020 06/09/2020 06/10/2020 06/12/2020

Set/Reset Deadlines: Replies due by 6/15/2020. Show Cause Response due by 6/8/2020. (cf) (Entered: 06/01/2020)
419 ORDER: WHEREAS, the NYPD has consulted with the Monitor and Plaintiffs' counsel and finalized a plan to implement the above program; NOW, THEREFORE, it is hereby ORDERED on this 2nd day of June 2020 that: 1. The NYPD shall make reasonable efforts to systematically obtain the following categories of information in the manner described herein: a. From the District Attorneys Offices of Bronx, Kings, New York, Queens, and Richmond Counties (collectively, "District Attorney's Offices"), data, preferably in digitized, automated form, regarding all declinations of prosecutions falling into any of the following categories: categories: (i) complainant or witness failed to positively identify defendant; as further set forth in this Order. The Committee shall review, and the NYPD shall enter into the computerized database described in paragraph 2 above, all relevant data pertaining to officers identified as lacking in credibility or flagged as ineffective by the District Attorney's Offices. (Signed by Judge Analisa Torres on 6/2/2020) (cf) (Entered: 06/02/2020)
420 LETTER MOTION to Compel Defendants to produce information concerning social−distancing enforcement and the consent decree addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated June 2, 2020. Document filed by A.O., Fawn Bracy, Charles Bradley, Jovan Jefferson, Kieron Johnson, Roshea Johnson, Letitia Ledan, Jaenean Ligon, Fernando Moronta, Abdullah Turner, Jacqueline Yates..(Borchetta, Jennifer) (Entered: 06/02/2020)
421 LETTER MOTION for Leave to File Excess Pages in connection with the City's Response to the Floyd, Davis, and Ligon Plaintiffs' submissions addressed to Judge Analisa Torres from David Cooper dated June 4, 2020. Document filed by City of New York..(Cooper, David) (Entered: 06/04/2020)
422 ORDER granting 421 Letter Motion for Leave to File Excess Pages. GRANTED. Defendant may file a response no to exceed 50 pages. (Signed by Judge Analisa Torres on 6/5/2020) (cf) (Entered: 06/05/2020)
423 LETTER addressed to Judge Analisa Torres from Benjamin Gruenstein dated June 5, 2020 re: [Dkt. No. 412] compliance monitoring of the consent decree. Document filed by Peter L Zimroth. (Attachments: # 1 Appendices 1−6).(Zimroth, Peter) (Entered: 06/05/2020)
424 OPPOSITION BRIEF re: 420 LETTER MOTION to Compel Defendants to produce information concerning social−distancing enforcement and the consent decree addressed to Judge Analisa Torres from Jenn Rolnick Borchetta dated June 2, 2020. . Document filed by City of New York..(Cooper, David) (Entered: 06/09/2020)
425 DECLARATION of David Cooper in Support re: 424 Opposition Brief,. Document filed by City of New York. (Attachments: # 1 Exhibit A through O).(Cooper, David) (Entered: 06/09/2020)
426 LETTER MOTION to Seal addressed to Judge Analisa Torres from RAJU SUNDARAN dated JUNE 9, 2020. Document filed by City of New York..(Sundaran, Raju) (Entered: 06/09/2020)
427 ***EX−PARTE***DECLARATION of RAJU SUNDARAN in Support re: 426 LETTER MOTION to Seal addressed to Judge Analisa Torres from RAJU SUNDARAN dated JUNE 9, 2020.. Document filed by City of New York. (Attachments: # 1 Exhibit A, # 2 Exhibit B)Motion or Order to File Under Seal: 426 .(Sundaran, Raju) (Entered: 06/09/2020)
428 ORDER granting 426 Letter Motion to Seal. GRANTED. The redacted information is protected by N.Y. CPL 160.50, and sealing is justified to "lessen the adverse consequences of unsuccessful...criminal prosecutions". Berry v. Newton, 06 Civ. 4086, 2008 WL 2876553 at 3* (S.D.N.Y. July 9 2008). (Signed by Judge Analisa Torres on 6/10/2020) (cf) (Entered: 06/10/2020)
429 MEMO ENDORSEMENT on re: 412 Letter, filed by Kieron Johnson, Letitia Ledan, Abdullah Turner, Fawn Bracy, Jacqueline Yates, Jaenean Ligon, Charles Bradley, Roshea Johnson, Fernando Moronta, Jovan Jefferson, A.O. ENDORSEMENT Plaintiffs' request is DENIED for the reasons set forth in the Monitor's letter dated June 5, 2020, ECFNo. 423. (Signed by Judge Analisa Torres on 6/12/2020) (cf)

(Entered: 06/12/2020)

 
 13-3123; 13-3088 In re Motion of District Judge - Ligon; Floyd et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand thirteen.

Present:

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

_____________________________________

In re Motion of District Judge
_____________________________________ _____________________________________

Jaenean Ligon, et al.,

Plaintiffs-Appellees,

v. City of New York, et al.,

Defendants-Appellants.

_____________________________________ _____________________________________

13-3123

David Floyd, et al.,

Plaintiffs-Appellees,

v. City of New York, et al.,

Defendants-Appellants.

_____________________________________

13-3088

Burt Neuborne, New York, NY, for Judge Shira A. Scheindlin.

PER CURIAM

These cases, motions of which were argued in tandem and decided on October 31,

2013, and which concern the so-called “stop-and-frisk” policies of the New York City

Police Department, have, quite apart from the underlying merits, raised a number of

unusual procedural issues. In a separate opinion published contemporaneously with this

one, we explain the basis of our prior, brief order reassigning these cases from Judge

Shira A. Scheindlin to a new district judge of the United States District Court for the

Southern District of New York, to be chosen randomly. In this opinion, we address the

unprecedented motion filed by Judge Scheindlin herself, through counsel, to appear and

seek reconsideration of our order of reassignment. The motion, submitted substantially in

the form of a brief in favor of reconsideration, presents the threshold question whether, in

the circumstances presented, a district judge may participate as a party, as an intervenor,

or as an amicus curiae in an appeal of her decisions. For the reasons set forth below, we

DENY Judge Scheindlin’s motion to appear in this Court in support of retaining authority

over these cases.

BACKGROUND1

These cases deal with the constitutionality of certain practices of the New York

City Police Department (“NYPD”). The practices—and these cases themselves—present

issues of prominent public concern and have attracted intense scrutiny in the media. On

August 12, 2013, following a nine-week trial in Floyd v. City of New York, Judge

1 In this section, we recite only the facts directly relevant to this opinion. A more complete history of these cases may be found in our separate opinion published today, addressing the merits of reassigning the cases to a new district judge.

2

Scheindlin held that the City of New York (the “City”) violated the Fourth and Fourteenth Amendments by acting with deliberate indifference towards the NYPD’s practice of unconstitutional stops and unconstitutional frisks and by adopting a policy of “indirect racial profiling” that targeted racially defined groups for “stops-and-frisks.”2 Judge Scheindlin also ordered an array of injunctive remedies, including but not limited to the appointment of a monitor, the institution of a program requiring certain officers to wear cameras on their persons, and the amendment of the forms used to document stopand-frisks.3
After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.4
On November 8, 2013, Judge Scheindlin moved in this court, through counsel, for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions
2 See Floyd v. City of New York, __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013).
3 See Floyd v. City of New York, __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013).
4 See Floyd v. City of New York, No. 13-3088, Dkt. 247; Ligon v. City of New York, No. 13-3123, Dkt. 174.
3

for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel’s sua sponte order of removal.”5 On November 9, 2013, Judge Scheindlin’s counsel, now styling himself as amicus curiae on her behalf, filed a letter urging us to vacate our order of reassignment “to terminate a dispute that is distracting attention from the underlying merits.”6
DISCUSSION We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one. Indeed, we note in the motion itself some inconsistency in its theory of Judge Scheindlin’s relationship to the proceedings in this Court. The motion requests leave for
5 Scheindlin Mot. for Leave to Appear re: Order of Removal, at 2. Attorney Burt Neuborne is the only person to have actually entered an appearance on Judge Scheindlin’s behalf. See Local Rule 12.3(b) (“An attorney, other than the initial counsel of record, who appears in a case in any capacity on behalf of a party or an amicus curiae must file the Notice of Appearance Form for Substitute, Additional, or Amicus Counsel at the time the attorney enters the case.”). We do observe, however, that, pursuant to Local Rule 29.1(a), we “ordinarily will deny leave to file an amicus brief when, by reason of a relationship between a judge assigned to hear the proceeding and the amicus curiae or its counsel, the filing of the brief might cause the recusal of the judge.” Mr. Neuborne labors under no such disability.
6 See Note 14, post, for the full text of this letter.
4

her lawyers “to appear either as counsel to the District Judge, or as amici curiae on her
behalf.”7 Additionally, the motion purports to seek relief “in the nature of an order under
Rule 21(b)(4) of the Federal Rules of Appellate Procedure.”8 This locution is notable
because Rule 21 governs “Writs of Mandamus and Prohibition, and Other Extraordinary
Writs,” and provides that the “trial-court judge may request permission to address the
petition [for mandamus] but may not do so unless invited or ordered to do so by the court
of appeals.”9
Rule 21, however, does not apply to these proceedings because there has been no
petition for a writ of mandamus or any other type of extraordinary writ in these cases.
The Supreme Court has long instructed that the writ of mandamus is “a ‘drastic and
7 Scheindlin Mot., at ¶ 46.
8 Id. at 2 (emphasis added). Judge Scheindlin asserts several other legal bases for her motion, none of which in our view supports, or even suggests, a district judge’s right to formally contest reassignment. In addition to Rule 21, her motion “is brought pursuant to Rules . . . 27, and 29 of the Federal Rules of Appellate Procedure; 28 U.S.C § 2106; 28 U.S.C. § 1651 (the All Writs Act); and the First and Fifth Amendments to the Constitution of the United States.” Scheindlin Mot. at 2. Rule 27 (governing “Motions”) and Rule 29 (governing “Brief of an Amicus Curiae”) are general provisions that do not provide a procedural predicate for her unprecedented motion. Similarly, Section 2106 of Title 28, entitled “Determination,” states that “[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.” While this provision establishes what an appellate court may do, it does not speak to a district judge’s role in that process. The All Writs Act gives courts the authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Although we have recognized numerous injunctions and orders of a district court appropriately authorized under the All Writs Act, we are aware of no precedent that establishes a district judge’s right to join an ongoing proceeding by formally contesting an appellate court’s order of reassignment. Finally, the constitutional amendments on which she relies are also inapplicable. The freedom of speech protected by the First Amendment does not mean that there can be no limitations such as those contemplated under section 455(a), on what a federal judge may say, much less on where she can say it, especially as it relates to pending litigation. As discussed in our accompanying opinion, numerous courts of appeals have reassigned cases due to an appearance of partiality that was traceable to speech by a district judge. Similarly, the Due Process Clause of the Fifth Amendment is inapplicable in these circumstances, because reassignment of a case is not a legal injury to the district judge, and we have made no finding of judicial misconduct that a judge might have the right to contest.
9 Fed. R. App. P. 21(b)(4).
5

extraordinary’ remedy ‘reserved for really extraordinary causes.’”10 No writ of
mandamus is involved in this appeal: We have not issued an extraordinary writ to the
district judge, nor is there a petition for a writ directed to us. For this reason, the case
presented here is quite unlike those in which other district judges have appeared before this court pursuant to specific statutory authority.11 Outside of the context of a writ of
mandamus, it is procedurally improper for a District Judge to enter an appearance in an
appeal of her own decisions, whether as a party, intervenor, or amicus.
We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case.12 While a district judge may believe
that he or she has expended a great deal of effort and energy on a case, only to see it
reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment
allows the courts to ensure that cases are decided by judges without even an appearance
10 Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004) (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)); see also In re The City of New York, 607 F.3d 923, 932-33 (2d Cir. 2010) (enumerating requirements for the writ).
11 See Fed. R. App. P. 21; see, e.g., U.S. Sec. & Exch. Comm’n v. Citigroup Global Mkts. Inc., 673 F.3d 158, 169 (2d Cir. 2012) (appointing counsel to represent Judge Jed S. Rakoff in a mandamus proceeding); In re Austrian & German Holocaust Litig., 250 F.3d 156, 160 (2d Cir. 2001) (acknowledging that the Second Circuit properly invited Judge Shirley Kram to respond through counsel to mandamus petitions).
12 In somewhat similar circumstances, the then-Chief Judge of the Central District of California, Manuel L. Real, refused to reassign, pursuant to mandate of the Ninth Circuit, a case over which he had been presiding. Instead, he directed the parties to brief whether the Ninth Circuit had the power to reassign cases. See Brown v. Baden, 815 F.2d 575, 576 (9th Cir. 1987). The Ninth Circuit then issued a writ of mandamus requiring reassignment, explaining that “[t]here is no doubt as to our authority to order a case reassigned” and that “[i]n the scheme of the federal judicial system, the district court is required to follow and implement our decisions just as we are oath- and duty-bound to follow the decisions and mandates of the United States Supreme Court.” Id. at 576. Chief Judge Real then petitioned for a writ of certiorari to appeal the Ninth Circuit’s decision to the Supreme Court, which the Supreme Court denied without comment. See Real v. Yagman, 484 U.S. 963 (1987).
6

of partiality.13 A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.
To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.
Finally, we note that Judge Scheindlin’s counsel, now purporting to serve as amicus “to the district judge,” filed a supplemental letter on November 9, 2013, wherein he urges that we vacate parts of our order of October 31, 2013, “without prejudice,” which would “permit the parties to raise the issues” without “being forced to address them in the context of an unseemly dispute among judges” and in a way that would “terminate a dispute that is distracting attention from the underlying merits.”14 First, we
13 See 28 U.S.C. § 455(a); see also In re Murchison, 349 U.S. 133, 136 (1955) (“[T]o perform its high function in the best way justice must satisfy the appearance of justice.” (internal quotation marks omitted)); United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1966) (“[R]eassignment is advisable to preserve the appearance of justice.” (internal quotation marks omitted)) (abrogated on other grounds).
14 The letter in full reads as follows: Burt Neuborne
40 Washington Square South New York, New York 10012
212 998-6172 burt.neuborne@nyu.edu
November 8, 2013
7

cannot subscribe to the view that a decision of this Court—made pursuant to a statute
passed by Congress—should be vacated because a non-party (even a judge) claiming to
be affected by that order believes that the issue has become controversial or “distracting.”
Second, as we observe in our accompanying opinion, reassignment is an ordinary
tool used by our judicial system to maintain and promote the appearance of impartiality
Hon. John M. Walker, Jr. Hon. José Cabranes Hon. Barrington D. Parker, Jr. United States Court of Appeals
for the Second Circuit Thurgood Marshall United States Courthouse Foley Square New York, New York 10007
Re: In re Order of Removal of District Judge Ligon v. City of New York, 13-3123 (corrected)
Floyd v. City of New York, 13-3088
Your Honors:
We write as amici curiae on behalf of the District Judge herein, with her approval and consent. We believe, and the District Judge concurs, that it is in the best interests of all concerned to terminate a dispute that is distracting attention from the underlying merits, while preserving the rights of the parties to raise the issue in the ordinary course.
Accordingly, we urge the panel to withdraw, without prejudice, so much of its order herein, dated October 31, 2013, as sua sponte found that the District Court’s actions had “run afoul” of the Code of Conduct for United States Judges, and directed her removal as presiding judge in Ligon v. City of New York, 13-3123 (corrected), and Floyd v. City of New York, 13-3088. Such a course of conduct would permit the parties to raise the issues at an appropriate point in the proceedings without being forced to address them in the context of an unseemly dispute among judges.
Respectfully,
Burt Neuborne (Counsel of Record)
Norman Dorsen Arthur R. Miller
Judith Resnik Frederick A.O. Schwarz Amici Counsel to the District Judge
cc: all interested counsel
8

across the federal courts.15 We recognize that it is frustrating to work extensively on a case that is later reassigned, and that reassignment, even if only based on an appearance of partiality, is a displeasing occurrence for any district judge, particularly for a longserving and distinguished one such as Judge Scheindlin, but we are confident that these matters will be ably handled, without any arguable appearance of partiality, by another of her capable colleagues.
CONCLUSION For the foregoing reasons, we DENY Judge Scheindlin’s motion to appear in this Court in support of retaining authority over these cases.
15 See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v. Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d Cir. 2003); United States v. Padilla, 186 F.3d 136, 143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the appearance of justice would best be preserved by reassignment.”); United States v. Londono, 100 F.3d at 242 (“To reassign a case on remand, we need only find that the facts might reasonably cause an objective observer to question the judge’s impartiality, or absent proof of personal bias requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.” (alterations, citations, and internal quotation marks omitted)); see also In Re Reassignment of Cases, Nos. 13-3123, 13-3088, at 13 nn. 29-30 (2d Cir. Nov. 13, 2013).
9

 
 13-3123; 13-3088 In re Reassignment of Cases: Ligon; Floyd et al. v. City of New York, et al.
United States Court of Appeals
FOR THE
SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 13th day of November, two thousand thirteen.

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

In re Reassignment of Cases _____________________________________

Jaenean Ligon, et al.,

Plaintiffs-Appellees,

v.

City of New York, et al.,

Defendants-Appellants.

_____________________________________

13-3123

David Floyd, et al.,

Plaintiffs-Appellees,

v.

City of New York, et al.,

Defendants-Appellants.

____________________________________

13-3088

PER CURIAM These cases, motions of which were argued in tandem, deal with an issue of great
significance: the constitutional boundaries of practices by the New York City Police Department (“NYPD”) that subject citizens to being stopped and frisked. On August 12, 2013, Judge Shira A. Scheindlin, a long-serving and distinguished jurist of the United States District Court for the Southern District of New York, held that the City of New York (“the City”) had violated the plaintiffs’ Fourth and Fourteenth Amendment rights, and ordered the City to engage in a variety of remedial measures and activities.
On August 27, 2013, the City moved in the district court to stay those remedies, pending an appeal on the merits of the district court’s decision. Judge Scheindlin denied the motions. On September 23, 2013, the City moved in this Court to stay the imposition of the district court’s remedies. By order dated October 31, 2013, we both granted that stay and, because the appearance of impartiality had been compromised by certain statements made by Judge Scheindlin during proceedings in the district court and in media interviews, we reassigned the cases to a different district judge, to be chosen randomly.1 We now explain the basis for that order, which is superseded by this opinion.2
BACKGROUND We emphasize that the merits of this litigation are not before us and are not at issue here. Accordingly, we neither express nor intimate any views on the merits of the underlying actions.
1 See Appendix A. 2 On November 8, 2013, Judge Scheindlin moved in this court through counsel for “leave in the nature of an order under Rule 21(b)(4) of the Federal Rules of Appellate Procedure governing mandamus proceedings providing for appellate review of motions for judicial disqualification pursuant to 28 U.S.C. § 455, authorizing counsel to appear on behalf of the District Judge in order to address the factual and legal sufficiency of the Motion Panel’s sua sponte order of removal.” We address this motion by the district judge to appear in support of retaining authority over these cases in a separate opinion published contemporaneously with this one.
2

This opinion deals only with our procedural decision to direct the reassignment of the cases and turns on how the cases came before Judge Scheindlin and the media interviews she gave during the pendency of these lawsuits.
For the sake of clarity, we recite the procedural history that has led us to this point. In January 2008, the plaintiffs in Floyd filed a class action alleging that the NYPD violated the Fourth and Fourteenth Amendments through a pattern and practice of stopping and frisking without reasonable suspicion. In March 2012, the plaintiffs in Ligon filed a class action alleging that the NYPD violated the Fourth Amendment by engaging in a practice of unlawfully stopping, frisking, and arresting persons for trespass because of their presence in or near buildings enrolled by their landlords in an NYPD crime prevention program known as the Trespass Affidavit Program (“TAP”).
When filing, the plaintiffs in Floyd marked the case on the appropriate form as related to Daniels v. City of New York, No. 99-cv-1695, an earlier case over which Judge Scheindlin presided. Likewise, the plaintiffs in Ligon marked that case as related to Davis v. City of New York, No. 10-cv-699, over which Judge Scheindlin was also presiding.3 Because Daniels, although terminated a month earlier, and Davis had been assigned to Judge Scheindlin, Floyd and Ligon were forwarded to her, pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges,4 and she accepted them both as related cases.
3 Prior to Ligon being filed, Judge Scheindlin had accepted Davis as related to Floyd, so in that sense, Ligon also descends directly from Daniels via Floyd and Davis.
4 In relevant part, Rule 13 provides: (c) Assignment of cases and proceedings that are designated as related.
(i) Disclosure of contention of relatedness.
3

In a decision dated January 8, 2013, and amended on February 14, 2013, Judge
Scheindlin granted the Ligon plaintiffs’ motion for a preliminary injunction, holding that they
had “shown a clear likelihood of proving that defendants have displayed deliberate indifference
toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP
buildings in the Bronx.”5 In a separate opinion, Judge Scheindlin granted the defendants’ motion
to stay any remedies until after the “issuance of a final decision regarding the appropriate scope
of preliminary injunctive relief, and the appropriate scope of permanent injunctive relief (if any)
in Floyd.”6
On August 12, 2013, following a nine-week trial in Floyd, Judge Scheindlin held that the
City of New York violated the plaintiffs’ rights under the Fourth Amendment and the Equal
Protection Clause of the Fourteenth Amendment.7 The same day, Judge Scheindlin issued an
opinion setting forth remedial measures in both Floyd and Ligon8 intended to bring the NYPD’s
use of stop-and-frisk into compliance with the Fourth and Fourteenth Amendments.9
When a civil case is filed or removed or a bankruptcy appeal or motion to withdraw the reference of an adversary proceeding from the bankruptcy court is filed, the person filing or removing shall disclose on form JSC44C any contention of relatedness. A copy of that form shall be served with the complaint, notice of removal, appeal or motion. (ii) Civil cases that are designated as related.
A case designated as related shall be forwarded to the judge before whom the earlier-filed case is then pending who has the sole discretion to accept or reject the case. Cases rejected by the judge as not related shall be assigned by random selection. 5 Ligon et al. v. City of New York et al., 925 F. Supp. 2d 478, 485 (S.D.N.Y. 2013). 6 Ligon et al. v. City of New York et al., Nos. 12-cv-2274, 08-cv-1034, 2013 WL 227654, at *4 (S.D.N.Y. Jan. 22, 2013). 7 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, No. 08-cv-1034, 2013 WL 4046209, at *7 (S.D.N.Y. Aug. 12, 2013). 8 See Floyd et al. v. City of New York et al., __ F. Supp. 2d __, Nos. 08-cv-1034, 12-cv-2274, 2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013). 9 Id. at *13.
4

On August 16, 2013, the defendants in both cases filed notices of appeal in this court. On August 27, 2013, the City of New York moved in the district court to stay the remedies in Floyd and Ligon, pending the outcome of the appeals process. On September 17, 2013, Judge Scheindlin denied the City’s stay motions. On September 23, 2013, the City moved in this court to stay the district court’s August 12, 2013 remedies order.
Following oral argument, this panel, on October 31, 2013, stayed, “the District Court’s January 8, 2013 ‘Opinion and Order,’ as well as the August 12, 2013 ‘Liability Opinion’ and ‘Remedies Opinion,’ each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants.” This panel also concluded “that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.”10 We now explain in greater detail the basis for our decision to reassign the cases.
DISCUSSION Title 28, United States Code, section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” This statute embodies the principle that “to perform its high function in the best way justice must satisfy the appearance of justice.”11
10 See Appendix A, at 3. 11 In re Murchison, 349 U.S. 133, 136 (1955) (internal quotation marks omitted).
5

The goal of section 455(a) is to avoid not only partiality but also the appearance of partiality.12 The section does so by establishing an “objective standard ‘designed to promote public confidence in the impartiality of the judicial process.’”13 The rule functions as a critical internal check to ensure the just operation of the judiciary. Our Court, sitting en banc, has stated that there exists “unusual circumstances where both for the judge’s sake and the appearance of justice, an assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.”14 And as other circuits have correctly noted, “‘if the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal.’”15
We emphasize at the outset that we make no findings of misconduct, actual bias, or actual partiality on the part of Judge Scheindlin. Following our review of the record, however, we conclude that her conduct while on the bench, which appears to have resulted in these lawsuits being filed and directed to her, in conjunction with her statements to the media and the resulting stories published while a decision on the merits was pending and while public interest in the outcome of the litigation was high, might cause a reasonable observer to question her impartiality. For this reason, her disqualification is required by section 455(a).
12 See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988). 13 SEC v. Drexel Burnham Lambert Inc. (In re Drexel Burnham Lambert Inc.), 861 F.2d 1307, 1313 (2d Cir. 1988) (quoting H.R. Rep. No. 1453, reprinted in 1974 U.S.C.C.A.N. 6351, 6354-55). 14 United States v. Robin, 553 F.2d 8, 9-10 (2d Cir. 1977) (en banc) (internal quotation marks and citations omitted). 15 In re Boston’s Children First, 244 F.3d 164, 167 (1st Cir. 2001) (quoting Nichols v. Alley, 71 F.3d 347, 352 (10th Cir. 1995)); see also United States v. Dandy, 998 F.2d 1344, 1349 (6th Cir. 1993).
6

A.
The appearance of partiality stems in the first instance from comments made by Judge
Scheindlin that a reasonable observer could interpret as intimating her views on the merits of a
case that had yet to be filed, and as seeking to have that case filed and to preside over it after it
was filed. These comments were made in the earlier case of Daniels v. City of New York, No.
99-cv-1695, in which the City entered into a settlement agreement requiring it, inter alia, to
establish policies that prohibited racial profiling. Ten days before Judge Scheindlin’s
supervisory authority under the settlement agreement was set to expire, she heard argument on a motion brought by the Daniels plaintiffs to extend the settlement period.16 The transcript of the
hearing indicates that the City had substantially complied with the relief required by the
settlement and that the plaintiffs were seeking information from the City beyond that required to
be furnished by the settlement agreement.
Observing that the settlement agreement did not entitle the plaintiffs to the relief they
sought, Judge Scheindlin counseled:
THE COURT: [. . .] why don’t you file a lawsuit
Mr. COSTELLO: We did, we are here.
THE COURT: No, you are struggling with the December 31, 2007 deadline in a 1999 case. And if you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.
How could it not be related to this whole long seven or eight years we have lived together in this case? Because you are trying to put a square peg in a round hole. And trying to force yourselves to argue what the settlement means, that it doesn’t mean if you have a timely lawsuit -- you seem to have compiled interesting arguments[.] Ms. Grossman [attorney for the City] has not rebutted -- maybe she did, that’s why we didn’t do something, because we didn’t want them to write this
16 See Appendix B (transcript of hearing).
7

letter, she -- let’s just say she hasn’t substantially responded to your letter. If one had only your letter, it would look like you have a lawsuit. So instead of struggling to telling [sic] me about a stipulation of settlement, why don’t you craft a lawsuit?
(TR 10-11) (emphasis added). She returned to the idea of bringing a suit alleging that the City
had violated their racial profiling policies and suggested a basis for the suit:
THE COURT: what I am trying to say - - I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit. You can simply - MR. MOORE: $350 THE COURT: I knew I had it wrong. The [C]ity violates its own written policy, the City has a policy that violates -- they have violated their policy, here is the proof of it, please give us the remedy. Injunction or damages, or whatever lawyers ask for in compliance. So for $350 you can bring that lawsuit and it is timely.
(TR 14, 15) (emphasis added). And again:
THE COURT: I don’t understand why we have to potentially have, you know, months of briefing when it does fit under this stipulation or it doesn’t, that Raffo applies or it doesn’t that the court has the power to extend the supervision, that we want our immediate appeal to the circuit. Why do you need that if you have a lawsuit? Bring it. They have a written policy, right? MR. GROSSMAN: Yes, your Honor. THE COURT: If you think they are violating their written policy, sue them.
(TR 15) (emphasis added).
Judge Scheindlin then advised the plaintiffs that if they filed such a suit, they would
successfully obtain relevant documents produced by the government:
THE COURT: . . . There is enough in the public record to craft the suit.
And then in that suit simply say, we want produced all that was produced in the 1999 lawsuit. I don't know how you could lose getting it. It may be a question of whether it is still going to be under protective order or not. But I can hardly imagine not getting it. You know what I am saying? It is so obvious to me that any Judge would require them to reproduce it to you in the same format that you have it, that you will have it again. Whether or not it remains confidential.
8

(TR 18) (emphasis added). After the plaintiffs indicated their willingness to bring the new suit,
she repeated her earlier suggestion that the cases were related and indicated her willingness to
keep the newly filed case:
MR. MOORE: To the extent that some of the materials have already been made public. THE COURT: what’s public is public, -- If you cite to the Rand study, publicly, nobody can criticize you for that. If they do, they weren’t acting in good faith. If I can get the Rand study on the internet, it is public -MR. MOORE: you can go to the NYPD website, your Honor. THE COURT: There you go, that’s public. You can use that. And as I said before, I would accept it as a related case, which the plaintiff has the power to designate. I think this current motion is withdrawn. Thank you.
(TR 42) (emphasis added).
We believe that a reasonable observer viewing this colloquy would conclude that the
appearance of impartiality had been compromised. We do not mean to suggest that a district
judge can never engage in a colloquy with a party during which the judge advises the party of its
legal or procedural options. However, we think, particularly in combination with the public
statements described below, that a reasonable observer could question the impartiality of the
judge where the judge described a certain claim that differed from the one at issue in the case
before her, urged a party to file a new lawsuit to assert the claim, suggested that such a claim
could be viable and would likely entitle the plaintiffs to documents they sought, and advised the
party to designate it as a related case so that the case would be assigned to her.17
17 The designation by parties, and acceptance by district judges, of cases as related to other pending matters pursuant to Rule 13 of the Local Rules for the Division of Business Among District Judges, is a routine practice that promotes judicial efficiency and economy. Our decision in this opinion should not be construed as casting doubt on the proper designation and acceptance of cases as “related” in the normal course—that is, when a district judge does not invite the filing of a suit and encourage its direction to their Court. We also note that, for civil matters, the Rule explicitly anticipates cases being marked as related to “earlier-filed case[s] . . . then pending,” see Rule 13(c), which is “designed to reduce litigants’ costs by informally consolidating proceedings in related cases,” Chase Manhattan
9

B.
This appearance of partiality by Judge Scheindlin at the Daniels hearing was exacerbated
as a result of interviews she gave to the news media during the course of the Floyd litigation.
Cases involving public comment by a presiding judge, other than statements in open court, are
infrequent. As the First Circuit has remarked, “[j]udges are generally loath to discuss pending
proceedings with the media.”18 Of course, not every media comment made by a judge is
necessarily grounds for recusal.19 We note that Judge Scheindlin did not specifically mention the
Floyd or Ligon cases in her media interviews. However, a judge’s statements to the media may
nevertheless undermine the judge’s appearance of impartiality with respect to a pending
proceeding, even if the judge refrains from specifically identifying that proceeding in his remarks
to the media. Because context is always critical, the relevant question at all times remains
whether, under the circumstances taken as a whole, a judge’s impartiality may reasonably be
called into question.20 Because there is no scienter requirement in section 455,21 the test is not
Bank, N.A. v. Celotex Corp., 56 F.3d 343, 347 (2d Cir. 1995). Here, at the time Floyd was filed in January 2008, Daniels, to which it was accepted as “related,” was closed.
Judge Scheindlin’s motion, the subject of the separate opinion we file today, contends that the “District Court’s recognition that judicial economy would be served by the invocation of the related case doctrine codified in Local Rule 13 is analogous to the decision of the Motion Panel to issue an order retaining jurisdiction over the appeal herein in the name of judicial economy.” To be sure, both Local Rule 13 dealing with related cases in the district court, and the practice in this court by which a motion panel may choose to hear the appeal on the merits, are designed to conserve judicial resources. However, in the court of appeals, because the case is the same case and not just a related case, and no litigant is involved with the decision, there can be no forum-shopping.
In any event, the gravamen of why reassignment of this case is necessary is not simply the use of Local Rule 13. It is the appearance of partiality that was created by Judge Scheindlin’s conduct throughout the December 21, 2007 hearing in suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case, as well as the media interviews she gave during the Floyd proceedings.
18 In re Boston’s Children First, 244 F.3d at 169. 19 See, e.g., United States v. Fortier, 242 F.3d 1224, 1229-30 (10th Cir. 2001) (superseded by statute on other grounds); In re Barry, 946 F.2d 913, 914 (D.C. Cir. 1991). 20 See United States v. Amico, 486 F.3d 764, 775 (2d Cir. 2007).
10

how a judge intended his remarks to be understood, but whether, as a result of the interviews or
other extra-judicial statements, the appearance of impartiality might reasonably be questioned.
In late May 2013, at the conclusion of the evidence in Floyd, when public interest from
reporting on that trial was high, and months before she had produced a decision, Judge
Scheindlin made herself available for interviews by the Associated Press, The New Yorker, and the New York Law Journal.22 The “lede” of the AP article dated May 18, 2013, read “[t]he
federal judge presiding over civil rights challenges to the stop-and-frisk practices of the New
York Police Department has no doubt where she stands with the government. ‘I know I’m not
their favorite judge,’ U.S. District Judge Shira A. Scheindlin said during an Associated Press
interview Friday.” The lengthy profile of Judge Scheindlin in The New Yorker, for which she
agreed to be interviewed, was titled, “Rights and Wrongs: A Judge Takes on Stop-and-Frisk.”
The writer, implying that Judge Scheindlin was aligned with the plaintiffs, wrote,
[t]he primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for more than a decade. In decision after decision, she has found that cops have lied, discriminated against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with the Democratic candidates united in their opposition to the stop-and-frisk policies of the Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite the rules of engagement between the city’s police and its people.
While nothing prohibits a judge from giving an interview to the media, and while one
who gives an interview cannot predict with certainty what the writer will say, judges who
affiliate themselves with news stories by participating in interviews run the risk that the resulting
21 See Liljeberg, 486 U.S. at 859. 22 Jeffrey Toobin, Rights and Wrongs: A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013 (attached hereto as Appendix C); Larry Neumeister, NY “Frisk” Judge Calles Criticism “Below-the-Belt”, The Associated Press, May 19, 2013 (attached hereto as Appendix D); Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 20, 2013 (attached hereto as Appendix E).
11

stories may contribute to the appearance of partiality. It is perhaps illustrative of how such situations can get out of the control of the judge that, later in The New Yorker piece, the article quotes a former law clerk of Judge Scheindlin: “As one of her former law clerks put it, ‘What you have to remember about the judge is that she thinks cops lie.’”
Further, in those two articles, as well as the New York Law Journal article, Judge Scheindlin describes herself as a jurist who is skeptical of law enforcement, in contrast to certain of her colleagues, whom she characterizes as inclined to favor the government. Given the heightened and sensitive public scrutiny of these cases, interviews in which the presiding judge draws such distinctions between herself and her colleagues might lead a reasonable observer to question the judge’s impartiality. As the First Circuit put it, “the very rarity of such public statements, and the ease with which they may be avoided, make it more likely that a reasonable person will interpret such statements as evidence of bias.”23
C. In our previous order, we referenced the Code of Conduct for United States Judges. We now clarify that we did not intend to imply in our previous order that Judge Scheindlin engaged in misconduct cognizable either under the Code of Conduct or under the Judicial Conduct and Disability Act, 28 U.S.C. §§ 372, et seq. No such finding is required under section 455,24 and we do not find that there was any judicial misconduct or violation of any ethical duty. “To reassign a case on remand, we need only find that the facts might reasonably cause an objective observer to question the judge’s impartiality, or absent proof of personal bias
23 In re Boston’s Children First, 244 F.3d at 170; see also United States v. Microsoft Corp., 253 F.3d 34, 115 (D.C. Cir. 2001) (“Judges who covet publicity, or convey the appearance that they do, lead any objective observer to wonder whether their judgments are being influenced by the prospect of favorable coverage in the media.”).
24 See In re Boston’s Children First, 244 F.3d at 168.
12

requiring recusation [sic], that reassignment is advisable to preserve the appearance of justice.”25
Even where there is reason to believe that a district judge would fairly conduct further
proceedings on remand, “in determining whether to reassign a case we consider not only whether
a judge could be expected to have difficulty putting aside his previously expressed views, but
also whether reassignment is advisable to preserve the appearance of justice.”26 Such a decision
“does not imply any personal criticism of the trial judge,”27 and none is intended here. Indeed,
for example, in United States v. Quattrone, we ordered reassignment because “portions of the
transcript raise[d] the concern that certain comments could be viewed as rising beyond mere
impatience or annoyance” even though there was no “evidence that the trial judge made any
inappropriate statements leading us to seriously doubt his impartiality.”28
Reassigning a case to a different district judge, while not an everyday occurrence, is not
unusual in this Circuit.29 Nor is reassigning a case to a different district judge an unusual
occurrence in our sister Circuits.30 Indeed, as noted in our accompanying opinion, reassignment
25 United States v. Londono, 100 F.3d 236, 242 (2d Cir. 1996) (internal quotation marks and citations omitted) (abrogated on other grounds).
26 United States v. Campo, 140 F.3d 415, 420 (2d Cir. 1998) (internal quotation marks omitted). 27 United States v. Quattrone, 441 F.3d 153, 192-93 (2d Cir. 2006) (internal quotation marks omitted). 28 Id. 29 See, e.g., United States v. Steppello, 664 F.3d 359, 367 (2d Cir. 2011); United States v. Hernandez, 604 F.3d 48, 55-56 (2d Cir. 2010); United States v. Al-Moayad, 545 F.3d 139, 178-79 (2d Cir. 2008); United States v. DeMott, 513 F.3d 55, 59 (2d Cir. 2008); United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007); Armstrong v. Guccione, 470 F.3d 89, 113 (2d Cir. 2006); Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120, 128 (2d Cir. 2003); Mackler Prods., Inc. v. Cohen, 225 F.3d 136, 146 (2d Cir. 2000); United States v. Padilla, 186 F.3d 136, 143 (2d Cir. 1999) (“In view of the district judge’s statements, particularly regarding Padilla’s counsel, the appearance of justice would best be preserved by reassignment.”). Additionally, it bears noting that in none of these cases was the affected district judge afforded “an opportunity to be heard” prior to the disqualification action of the Court of Appeals, much less did the affected district judge ever seek to participate in the appellate proceedings involving the district judge’s decisions. 30 See, e.g., United States v. Clawson, 650 F.3d 530, 539 (4th Cir. 2011); John v. Goetz, 626 F.3d 356, 36365 (6th Cir. 2010); In re United States, 614 F.3d 661, 666 (7th Cir. 2010) (“No reasonable person would fail to perceive a significant risk that the judge’s rulings in the case might be influenced by his unreasonable fury toward
13

is simply a mechanism that allows the courts to ensure that cases are decided by judges without
even an appearance of partiality.
Although the possible recusal of Judge Scheindlin was not raised either by the parties or
the judge herself in the district court or this court, there is no barrier to our reassigning the cases
nostra sponte. Indeed, in numerous cases in recent years, we have found it appropriate to
reassign a case without the issue having been raised or briefed by the parties or considered by the district judge.31 To be sure, in the usual case, “a federal appellate court does not consider an issue not passed upon below.”32 But as Justice Black, writing for the unanimous Supreme Court,
recognized more than seventy years ago, “[t]here may always be exceptional cases or particular
circumstances which will prompt a reviewing or appellate court, where injustice might otherwise
result, to consider questions of law which were neither pressed nor passed upon by the court . . . below.”33 More recently, Justice Souter, writing for the Court, reaffirmed that when an appellate
court may consider a legal issue not raised below is a “matter ‘left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases,’”34 and we recently
the prosecutors.”); Microsoft Corp., 253 F.3d at 107-117; In re Boston’s Children First, 244 F.3d at 164; United States v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996) (stating that courts of appeals in the first instance are empowered to reassign cases where, under 28 U.S.C. § 455(a), the district judge’s “impartiality might reasonable be questioned”); United States v. Cooley, 1 F.3d 985, 992-96 (10th Cir. 1993); In re School Asbestos Litig., 977 F.2d 764, 798 (3d Cir. 1992); United States v. Torkington, 874 F.2d 1441, 1446 (11th Cir. 1989) (“We have the authority to order reassignment of a criminal case to another district judge as part of our supervisory authority over the district courts in this Circuit.”); Brown v. Baden, 815 F.2d 575, 575 (9th Cir. 1987); Potashnick v. Port City Const. Co., 609 F.2d 1101, 1120 (5th Cir. 1980).
31 See, e.g., Steppello, 664 F.3d at 367; Cullen v. United States, 194 F.3d 401, 408 (2d Cir. 1999); Londono, 100 F.3d at 242 (abrogated by statute on other grounds); Sobel v. Yeshiva Univ., 839 F.2d 18, 37 (2d Cir. 1988); see also United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006) (noting that in some reassignment cases, the reassignment has been “initiated sua sponte by the court on the defendants behalf”).
32 Singleton v. Wulff, 428 U.S. 106, 121 (1976). 33 Hormel v. Helvering, 312 U.S. 552, 557 (1941). 34 Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008) (quoting Singleton, 428 U.S. at 121).
14

reaffirmed the same principle.35 Given the importance of maintaining the judiciary’s appearance of impartiality, we think that it is well within our discretion to order reassignment in these cases.
CONCLUSION This opinion explains the basis for our order of October 31, 2013, directing the reassignment of these cases to a randomly selected district judge and supersedes that order. To reiterate, we have made no findings that Judge Scheindlin has engaged in judicial misconduct. We conclude only that, based on her conduct at the December 21, 2007 hearing and in giving the interviews to the news media in May 2013, Judge Scheindlin’s appearance of impartiality may reasonably be questioned within the meaning of 28 U.S.C. § 455 and that “reassignment is advisable to preserve the appearance of justice.”36
35 See United States v. Sum of $185,336.07 United States Currency Seized From Citizen’s Bank Account L7N01967, 731 F.3d 189, 195 n.6 (2d Cir. 2013).
36 Londono, 100 F.3d at 242.
15

APPENDIX A

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

United States Court of Appeals
FOR THE
SECOND CIRCUIT

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

Present:

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

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

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________ _____________________________________

David Floyd, et al.,

Plaintiffs-Appellees.

v. City of New York, et al.,

Defendants-Appellants,

_____________________________________

13-3123 (Corrected)
13-3088

Pending before the Court is a motion filed by Appellants City of New York et al. seeking a stay of the District Court’s August 12, 2013 remedial order and preliminary injunction (“Remedies Opinion”).
It is hereby ORDERED that the District Court’s January 8, 2013 “Opinion and Order,” as well as the August 12, 2013 “Liability Opinion” and “Remedies Opinion,” each of which may or will have the effect of causing actions to be taken by defendants or designees of the District Court, or causing restraints against actions that otherwise would be taken by defendants, are STAYED pending the disposition of these appeals.
The appeal by defendants in both (consolidated) actions shall continue in the normal course, under the following schedule:
Defendants shall perfect their appeals by January 24, 2014.
Plaintiffs shall file by February 28, 2014.
Defendants shall reply by March 14, 2014.
Oral argument shall be heard on a date after March 14, 2014, to be set by the Court in due course.
The cause is REMANDED to the District Court for the sole purpose of implementation of this Order, and the mandate shall otherwise remain with this Court until the completion of the appeals process.
Upon review of the record in these cases, we conclude that the District Judge ran afoul of the Code of Conduct for United States Judges, Canon 2 (“A judge should avoid impropriety and the appearance of impropriety in all activities.”); see also Canon 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned . . . .”), and that the appearance of impartiality surrounding this litigation was compromised by the District Judge’s improper application of the Court’s “related case rule,” see Transfer of Related Cases, S.D.N.Y. & E.D.N.Y. Local Rule 13(a),1 and by a series of media
1 In a proceeding on December 21, 2007 involving the parties in Daniels v. City of New York, No. 99 Civ. 1695 (S.D.N.Y. filed Mar. 8, 1999), the District Judge stated, “[I]f you got proof of inappropriate racial profiling in a good constitutional case, why don’t you bring a lawsuit? You can certainly mark it as related.” She also stated, “[W]hat I am trying to say, I am sure I am going to get in trouble for saying it, for $65 you can bring that lawsuit.” She concluded the proceeding by noting, “And as I said before, I would accept it as a related case, which the plaintiff has the power to designate.” Two of the attorney groups working on behalf of plaintiffs in Daniels, a case
2

interviews and public statements purporting to respond publicly to criticism of the District Court.2
Accordingly, we conclude that, in the interest, and appearance, of fair and impartial administration of justice, UPON REMAND, these cases shall be assigned to a different District Judge, chosen randomly under the established practices of the District Court for the Southern District of New York. This newly-designated District Judge shall implement this Court’s mandate staying all proceedings and otherwise await further action by the Court of Appeals on the merits of the ongoing appeals.
In taking these actions, we intimate no view on the substance or merits of the pending appeals, which have yet to be fully briefed and argued.
The mandate shall ISSUE FORTHWITH for the sole purpose of implementation of this Order and shall otherwise remain in this Court.
In the interest of judicial economy, any question, application, or further appeal regarding the scope of this Order or its implementation shall be directed to this panel, which will hear the case on the merits in due course.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk
challenging the New York Police Department’s stop-and-frisk practices, helped file Floyd the next month. See generally Joseph Goldstein, A Court Rule Directs Cases Over Friskings to One Judge, N.Y. Times, May 5, 2013.
2 See, e.g., Mark Hamblett, Stop-and-Frisk Judge Relishes her Independence, N.Y. Law Journal, May 5, 2013; Larry Neumeister, NY “Frisk” Judge Calls Criticism “Below-the-Belt,” The Associated Press, May 19, 2013; Jeffrey Toobin, A Judge Takes on Stop-and-Frisk, The New Yorker, May 27, 2013.
3

APPENDIX B

1

1 UNITED

COURT

1

UTHERN

2

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2

3

NI

3

4

PI nt

4

5

v.

5

6

E

F

6

7

nd

7

8 ----

--- -- -x

8

N

rk, N

9

m r21,2007

9

4:50 p.m.

10

10

1 1

1 1

. SHI

HEIN UN,

1 2

12

Judge

1 3

1 3

14

1 5

16

1 7

18

19

20

21

22

23

24

25

UTH

ISTRI

,P. .

12) 5 03

2

IPd

1

(In open urt)

2

MS.

MAN- ur nor, m I ju bring one issue

3

ur ntion?

4

THE COURT: Not until I h you.

5

ood rnoon, Mr. Moo

6

MR.M RE: ood rn n, Judge.

7

THE

rn n, Ms

110.

8

MS.

rn n, ur Honor.

9

THE URT: Mr. Franklin.

10

And who is e

n in

n all

1 1

S.

nor, this is

g , he

12 is a

uate from our offi

1 3

nd g

rn n, s. ssm

d Ms.

14

nah

1 5

IS I

16

MS.

MAN: The m

1 7

nfidential m ri during our

me

nce

me

n

d Iju

18

bring

urt's ntion! in th

lieve the

19

urtroom might h

bri moment. r

20

pi

un

rai th e issues

21 while we h

her

22

I think we a

m. n.

23

THE U

who

e

j th are

24 he on the criminal e. Who are the other

25

I

We with the

r for n tutional

UTHERN DISTRI

,P. .

12) 5 0300

3

Pdan

1 Rights.

2

THE U

u h rn

3

val E: I am an rn

4

I am a paralegal.

5

THE URT: Th

- I understand ur point.

6

n I can, I'd be h

g the criminal case out the

7 u m.

n

8

me g

on this m r Daniels versus

9 The ity of New York.

10

Ih aI

m r 14,

11 2 7. nd th

s king anum r thi s. t I sup se

12 on the m imm iate basis th

king some kind of an

13 o er

nding the urt su rvision no less n a

14 months, for the sole purpose of letting them fully bri the

15 reque for reli in this I r. So the is no rush.

16

th

s ng, the

have no rush and

1 7

r is

the d

nsent a

r-th

18 month adjournment minimally, ju

eve

can these

19 issues ful bri

and on the Ie. And if the urt denies

20 I the Ii

21

But rather th h

rk it out in eight or nine

22 d

u s ng JU

g

me kind

23 ju

nsion or som mg.

24

n't go i the re

the Ii th seek,

25 mo in rms

zing the I rs, b the large

SOUTH N ISTRI

1 5 0300

4

IPdan

1 overall summary is th the h

n a I k of mpliance in

2

ous

th the stipul

leme. d

e

3

urt should modify the pul

lement order,

4 spe fic performan of rtain

the stipulation of

5 settlement.

6

And then th

k r the third point

7 is

I ink u

,whe th

e

8 should a modifi

ive order

some of

9 the

nfidential.

10

ne

s

will have use some

11 the

rm on

rmine wh

do with

12 the motion. But, s ndly, they a s ng some of it h

n

13 disci

e d ndant in

her

d it is

14 al

much discuss ! and u should withd the

design n

15 if it h

n publicly disci ed.

1 6

Then I ived a I r in sponse d

m r

17 19 b

Ily

in cham

m r 20,

1 8

a rei

d on t

1 9

e long and short of it, I h nit h a chan

20

I But I did have the

21 opportunity

If

long, I guess,

22 the es

't II h

the is a

23 I

single s

es,

them.

24

And e quick summ

n

25 pi ntiffs want p nd that the s ement

SOUTHERN OISTRI

I P.

12) 5-0300

5

IPdan

1 things it d snit

the all

b h

nit breaches

2

I,

d

ui e d nda

3

h.

4

a number times in the I r,

5 plainti may h wanted the stipulation of settlement s

6 these things, but it d nit. And the

in nse d

7 d i s eme

ons.

if th didn't g

8 th

mplain about it now.

9

nd so the d ndant opposes all the reque for

10

ifi on the stipul on, op s

1 1

an I op ses

12 the

line, and opposes the modifi on the

13 p

14

id, it would nonetheless helpful to

15 the urt and all the parties, in the nine d remaining

16

n now and the 31

m r,

- deny this in an

17 o erly hion

nding the d

18

If the d ndant refuses

is

19 will

bri

for the ne nine d

20 th show

s nd ur hri

S,

21 th

u.

22

h the

r

ume I but I

23 n

9 enough a

figu it out. And if u

24

do

much I through hri mas and N

25

Who is

ng the I

SOUTHERN ISTRI

12) 805 0300

6

IPdan

1

MR.M

. Ms.

110.

2

E

II, Ms.

110 I think u h

3 ught the burden m

ument the u ent

4

a ply I r. I think you n to an r all the points

5 th Ms. rossman made in her very thorough submission point

6

i nt.

her i

u noti

closely

7 from the merits, so to speak. And th try not to II me

8

whether or not, u kn the

9 discrimin ion, or whether

on.

10

t

kp

u

t

k

is

11 or isn't in the ipulation. Wh rights u have or don't

12 h in the ipul on.

1 3

d I unde

th is a ntract th

14

ng, no m r how bad things may

s not part

15 this

ui

16

other I uit brin

1 7

Butth

some interesting allian on the

18

iation The ty New rk, whe th

19

denying any further Ii

d th

20

P

ent r them. d it did

21

m

r them.

22

urt -- n there is no

23 gu

e s lement d ume ,

24 th

nvincing demon ion

25

nt discrimination uld not m n th the d nd

SOUTHERN DI CT REPORTERS, P. .

12) 805 0300

7

Pd

1

violating the provisions of the settlement

ment.

2

rt is

Iy the situ on I m

in,

3

rt of sing problems th a

ry

4

sting but not part of this

ement

ment.

5 think you n to g me a ply bri if you wish, orally.

6

MS.

s, your Honor. I try my be

7

ne i th the c

s

j u the

8 th there no in substantial m ies in the nsent

9 dec

10

THE U

the nsent d ree, I think

11 some

h

hibit

12

MS. ROSSMAN: s, your Honor.

1 3

THE

going h

show e, do

14 II

ree, sh me the langu e.

1 5

: In s ion l! your Honor, in s on

16 1.

1 7

me ju back up one s nd, ur Honor. I think

18 the

! and this is

of what we would Ii

19 bri

urt, there are two

th the u uld

20

n nt dec and also grant our

21

Ion. ne is within the u

Ie

22

d under R

ifi on.

23

r

24

ing, the non-

d s

rman

25

mpt p i n g th would suit, flow m th

which

UTHERN DISTRI REPORTE ,P..

12) 805 0300

8

IPdan

1

solution mechanism in the

ment itself, if

2

da under

, a much mo flexible

3

s into

unt the public i re and the

4 change in circum

s. The ci doesn't address th

all.

5

THE URT: No, th n

Ruffo, I donlt think

6 th did. I

it rly quickly.

7

MS.

: Under the d in R

think

8 th the modifi on would appropri

9

Putting that ide for the moment,

king

10 the langu e the

ree, s

the

11 pul on

a

n

1 2

arding racial or ethnic or nation origin profiling, th

13 mplies with the Uni

5 n tution and the New

14

n itution.

1 5

And I think th we have shown th the is dence

16 of al profiling going on.

1 7

THE URT:

n the 15 den of ial

18 profiling, th

raph d snit h anything do with

19 th

20

It

that the NYPD shall h a written poli th

21 complies h the nstitution of both the Un

sand

22 N

th s wh th h

23

-I

u example, I

24 th

a wri n Ii

mplies hit, d th th

25 01 it I the time.

wouldn't h viol

SOUTHERN DISTRI

12) 5 0300

9

IPd

1 paragraph 1. Paragraph 1

you h to have a written

2

Ii th complies

the

3

MS.

: -- if you

pa raph 1 in

4

nn ion with, which requi s ining on the poli

5 training on the offi

in p and frisk procedu S, in

6 s on E the is a provision in the for palm rds which go

7 out ind duals in the mmun If th

lieve th h

8

n impro rly pped and frisked th can file a mplaint

9 with the ivilian mplaint Revi

10

think that all th m ns there was an

1 1 impl on this Ii

12

THE COURT: -- u a king me to rewri your

13 s lement

ment. This is

h

, It IS n a

14

I don't want anybody to be confused by

ing the

15 record. I am saying hypoth ically if th h a written

16 policy th complies with the nstitution of the United

s

17 and New rk

ial and hnic origin

18 profil ing! t h s

ph 1.

19

th th

01 ng

20 their

21

Num

UI s them h

propri

22

n Ii

23

That ms

the ole

IS n on th

24 the

ment.

in the

25

g

th it will n

SOUTHERN I

REPO

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5 0300

10

IPd

1 inappropri racial profiling. The is no guarantee in he

2 It is

the me thing

Judge pi

t ng

3

4

MS. COSTELLO: If you I k

on 2, which s

5 that the NYPD m alter the policy

6

THE URT: - let me

th

7

It s

The

m al r the

8 profiling poli

1.

9

That ju m

isn't in

10

mpli

! and th

is in

11 mplian ,I don't

r 2 p

u e

12 gu

e th

m

talking ut.

1 3

MS.

I think num

rei s

14 al ring the poli And I think th

nt of this

1 5

ment was not to bargain for a poli that meant nothing

16 that the NYPD uld ju go out d viol

pi

urth

1 7

endment rights d Fou nth end me rig with no

18 re u e pi ntiffs. I think th would--

19

THE URT: m

it is an

don't u file a

20

uit?

21

MS.

We did,

here.

22

THE COU No, u

ruggling with the

mber

23 31! 2007 d line in a 1999

. And if u g p

24 in p ri

al profiling in a g

n itution

25 why don't u bring a I

u

rtainly mark it

UTHERN DISTRI

, P.

12) 805 03

1 1

IPdan

1 lated.

2

H

uld it n

is Ie long s n

3 or eight

h

ether on this

use

4 you trying to put a squ peg in a round hole. And trying

5 to force you Ives argue what the 5 lement m 5, th it

6 doesn't m if you h a timely I uit - you 5

h

7 compi! in

ing a ume Ms. 55

h

b

8 maybe she did, th why we didn't do mething,

use

9 didn't

them

r, she - I s JU s

10 she h n't su

s

r. one h

1 1 only your I r, it would look Ii

12 in

ling

lIing me

a

Ion

1 3

ement, why don't u craft a I uit?

14

MS. COSTELLO: We could, but the only other issue

15 is --

16

THE URT: That's wh would I Ii

turn

1 7

talk ut the non mpli

18

MR. M

Judge, uld I ju

a things,

19

ut the notion that wh we

20

simply a pi

r th h no

21 sub

it.

22

THE URT: I didn't it no sub ceo

23 didn't h the wo gua

. Didn't she

r

24 the we no gu

And Judge

25 in his

ement. I didn't h time re

sion, I

SOUTH N DI

REPO

5 0300

1 2

1 only read the two I r s . m mes a Judge h

me time

2

I didn't h

ti e, es

the

3

came in

4

: To the e nt th given my involvement

5 with the

in the beginning, I can sh any light on th ,

6 on wh our unde

ding , about wh we

ning

7 r.

8

We Ii

g ing a licy th the

9 c would put into

That , it is

n why we

lOb ught the I uit. And

Ms.

110 d, the

1 1

n

- th didn't ju

change e

n

12

do s ral things.

1 3

t h

fi nd the m ch r d

14

ument I'd like

rrupt u JU

15 for a minute, and

this criminal e.

16

1 7

THE URT:: I think u

s king, Mr. Moo

18

MR. M

I h

ne I 0 rvation

19

ut my unde

ding in the u

ng this

20 d

21

I find it hard

Ii th

22

s

U ! or

II,

23

a

but

Ilow it.

24

U

5

h

25

d --

UTH ERN ISTR! REPO

12) 5 0300

1 3

an

1

MR. MOORE: -- I think th

th in their I r,

2

n change the Ii

long we h a

3 wri n poli

es ntially do wh

r we want.

4

I ju think th if that's, in

wh the

5 position of the city of New York is, it is a significant

6 di ren

m wh

unde

we

ing, which

a

7

th had some substan

it. Not ju a Ii on

8

r.

9

Ii

Sl the Thi nth Amendment

10

lishing sl

long

h

amendment th

u

1 1

It h sl

But in practi we still h sl

12

It s ms me it is a

r

I i rp

on

13 of the words in the d

m nt add ss

14 wh we beli

rious issue with respect to racial

15 profiling which, appa ntly, h not gone

And n their

16

udy th th

mmission

e th

17 with s

e n

PS, but n the

18 fris

IS a

disparity, th s their own

19 ex

imony, their own ex

port.

20

I ju find the notion th

tying to

21

e in a law hool exe i

g ing a Ii

22 th h

23

THE

II

24

M M

ntrary my unde

ding and

25 ntrary --

SOUTHERN DISTRI REPORTERS, p,

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IPdan

1

THE

RT: - I will qu from page 4 the I r,

2 the fi full

h

3

ing) In nclusion, it is important

4 that plaintiffs vigorously bargain for a provision which

5 would c

for an obligation on the part of the d nd

6 gu

th the would no racial profiling. The city

7

such a rm r

ns he

8 n oti

9

M M RE: I don't know, there is no citation

10th

is no it is

in a

it

11 it

ing sile th

th

uldn't s

u,

12

to the city, and you

ing to mply with th

13 goi

ally implement the Ii

14

I don't think I m n, a municipality that

15 adopt a poli should be then saying, now th

h adopted

16 a written poli

don't h

implement it in practi

17 When, in , th

making -- th

I you kn the

1 8

inform ion sent out th the

ial

19

E U

I am su

20 am going

uble r s ng i r $65 u n bring

21 that I uit.

simply --

22

M M R $350.

23

THE COURT: I kn Ih it ng.

24

The c

Ii the ci h

25 a Ii th 01 s -

h

their Ii

UTHERN DI ICT

1 2)

300

1 5

IPdan

1 is the proof of it, pi

give us the medy. Injunction or

2 d

! or

rl

k r in mplian

3

for $350 u can bring th

uit

it is

4 timely.

5

I don't understand why h to potentially have,

6

u know, months of briefing when it d s fit under this

7 ipu on or it d snit, th

pli

it d snit

8 th the urt h the power to

nd the su

9 want an imm

peal the circuit. Why do u n th

l O u h a I u Bring it. Th h a n Ii

11 rig

1 2

MS. GROSSMAN: s, your Honor.

1 3

THE URT: If u think t a 01 ng eir

14 written poli sue them.

1 5

MS. COSTELLO: Your Honor, just two quick ints. One

16 is about the point ur Honor's raising ut ju filing a n

17 I uit.

18

The one issue for us in th particular nario is

19

the p

0 er is ill in

this

20 ends, we h

back all of the d

unless the

21

urt is p

modify the p

order and lift i

22

would n

nefit of that d until filed a new

23

e and eng

and battles with the ci

g

24 th same inform on n, and then an er Ie ra

25 p

order ain.

SOUTHERN DI CT REPO

12) 5 300

16

IPd

1

we see it in the inte

of judici

nomy, if

2 the urt uld lift the p

order in this e, sin

3 under the I guage the stipul on and pointed, if the

4 information is herwi made publicly lable.

5

THE URT: That's something I do want to Ik the

6 city ut.

7

If it is publicly

Ie, then I don't unde nd

8 why u 't u publicly-available information in drafting

9 ur suit, or for wh

her purpose. If mething is

10 publi

I Ie

it and

who is in the

11 public lib

g it, or using the In

g it, if

12 anybody calls the city's 9 n book offi

it, then it

13 is public.

14

Can you do this from public inform ion or n

1 5

MS. COSTELLO: It is not th publicly lable.

16

THE URT: You can't h it both

If it is

17 public u can u it d I don't think the ci

r ue

18th you 't.

19

n

u bac

k

it is Iy n public,

20 then you

aking their ument.

21

MS.

: It is public. The only problem is th

22

the c h put out, ju

Ms.

23

sm

use it h

r

24 we would Ii

rm

out the

25 Rand rpo lon,

a

udy, is th the

UTHERN DISTRI R , P .

12) 5 0300

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IPd

1 Rand rporation and the NYPD's spin using magic wands about

2

the d m s, our

is d

on

3 ex sh us different things, that the nd information h

4 us benchmark and other statistical m hods to plain

5

it is publicly available in the sen that the NYPD and the

6 Rand publi ion h written d Is in the Daily Nand

7

erwise m e th

rm on lable. But in the nse

8 the d th

h th m

9 put out, is not publicly

that's our

10

5 our imp

dour

ci 5 and

11 nu

the

rns 5

1 2

our inform ion is d rent than what the

13 has, me which is the e

14

Rand

hed me the me nclusions about the

15 d

But th h also ignored some of the her

16 inform on, particularly lal disparities d the frisks

1 7

and the

ns

th

think

18 indi

19

M

ur Honor, in rms how the d is

20 II

the d on dis

m the city, which ma

21 it th

ier

mp

22

is information is public, but it is public in hard

23

pies. d so it is public n on th ugh the d

24 but al th ugh the udy th th the city,

the

25 city coun I. But th

the d is he

UTHERN I

,P. .

12) 5-0300

18

IPdan

1 but it is in a form

rms of

2 m ng

I I

ich uld

3

us months to

4

THE URT:

ier, Ms.

110

5 spond with how difficult it would to

rial

6

n, The is enough in the public

rd

7

d

suit si ply

we

p u

I th

8 produ in the 1999 I uit.

9

I don't know h you uld I

ing it. It m be

lOa que n wh

II going

under p

11 0 er or n

h

1m

g ng it, u

12 know what I am

me th anyJudge

13

Id

p

u in the e

14 th you h i t , th

u will h

n. Whether or not

15 it mains confidential.

16

MR. FRANKLIN: We'll h

ain, but we h

go

17 th ugh the same p ss h gone through. We

turn

18 everything

the city under this p

order.

19

g

h

ain

cui the same

20

h

21

goth ugh

culatin

22 Why uld th

23

MR. FRANK N:

under the p

o er

24

g them k th information.

25

THE URT: Not ju wh they g

UTHERN DISTRI REPORTERS, P. .

12) 805 0300

19

IPdan

1

MR. FRANKLIN: If my

ing is

, it's what

2 th

us d

3

MS.

rything de

from the U 50

4 d

e.

it is the

al physical dis that the d IS

5

ned on, which thousands and -- ns -- hundreds of

6 thou s entries, well as any information th we

7 derived. any

th our

h done

8 with coding, would h to be given k to the city. We

9

uldn't

n th information.

10

THE URT:: ur rn work produ and publish

11 m

would h

go

1 2

ms odd me. I don't know why it n't be

1 3

under the rms

nfidentiality. is is

14 practical.

1 5

MS. COSTELLO: Your Honor, if I uld, I am ju gOing

16

one minute and look the p

order m

17 su

18

MR. FRANKLIN: Unless the ci disputes th .

19

E

We n't g

r off the

20 sub

21

: Judge, the p

0 er -

22

THE

th

23

MR.M

a py.

24

THE

I Ms.

sma Is th

25

UTHERN DI

, P. .

12) 5 300

20

IPdan

1

MS.

MAN: your Honor

2

MR. M RE:

hand u up a

judge.

3

THE URT:: This is june 31 ,2000 - I'm sorry

4 Janu 31, 2000.

! it will be eight

this january.

5

MR.M RE:

raph 7, I think, is the provision

6 th is at issue he

7

THE U

s

it.

in Within 30 d

8

r the rmin ion of this e, including any ap s, the

9

nfidential m rials, including all pies, n s and other

10m rials con ning or

in rm

11

! shall

u ng

12

! or upon their con nt, destroyed. And all pe ons

13 who sess such

rials sh I rify their

rn or

14 destruction byaffid

to the producing

15 attorn . And pa

: (Reading) The rms of this

16 order may modified by further order the

1 7

obviously 30 d

rmin on

IS

18 January 30, 2008, right? If the

rmin

mber 31

19

MAN. , thin

ur Honor, the rmination

20 d

in the

21 d

ment.

22

uldn't

se th

uld

23

this stuff

u

o.

24

MS.

MAN: Th did.

all docume

25 th

urn when the

ment was

ERN DI

REPORTERS, P. .

12) 5 300

21

IPdan

1 and when it was finali by the Court.

2

the

me in

s ep

0 er d

3

Iy s th the plaintiffs n to return the

4 documents, maintain the nfidentiality, and

r

5 the

ment sun . Th s ex

ment

6 rmin

7

The p

0 er

the pi

subj

8

the p

order, m

nfidential ity,

9 but --

10

THE URT:

II

u all.

1 1

I II

12 now still retain until Janu 30, 2008, thirty d

rthe

13 rmi on this e.

14

I am still supervising this

, that's why u

15 worried about my nding it none d becau my

16 supervision runs out on

mber 31 ! '07. I still h this

1 7

e.

the rei it is not 30 d

rmination

1 8

this

Th

king a ut the ry

rial th

19 h

20

M

material

21

THE URT:

ntly

ber.

u

22

u didn't urn it 30 d

r the

r

23 bvious it is n due k till Janua 30 or 31

2 8.

24

II I am ng is, by then if u h a I uit

25

nding and n the ve

e m rial,

I

the

SOUTH N DISTRI

RTERS, P. .

12) 5 300

22

IPdan

1 authority to modify the rms of this order by a further order

2 the urt, which the

, then I II, and I II

3

u h the m rial, hold on to it, rem ns

4 nfidential, mebody

otherwise, and u it

u n

5 to u it in ur n lawsuit.

6

I don't want pi games he , if the is a

7 01 ion the c

ling Ii

th n

8 wh it is call ,.

9

MR. MOORE: Th s wh it is called.

10

RT:

ge. Kind a --

11

nonraci

1 2

THE

is a violation of it, the

13 isa 01

sal uit, th s

14

It still rikes me making it mo difficult, a

15 squa

in a round hole, to fo it into this stipul ion

16

settlement, and got into all these que ions about u tri

17

g a gu

18

u didn't g

u fought r it, but

19th

it

u. I I

20 But okay, this is only the inning. We go through their

21 whole I r and pond to all their poin . We didn't g

22

u re going -- we

with 1.

23

MR. M RE: Ju one

nd, Judge.

24

THE URT: s.

25

(Discussion the record)

SOUTHERN DISTRI REPO

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12) 5 0300

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IPdan

1

MS. GROSSMAN: Your Honor, if I m just d ss the

2 issue the nfide ial

3

THE URT: s.

4

MS. G MAN: If you were to I k paragraph 4 --

5 I'm rry, H4.

6

THE COURT: Wh ipul ion s lement,

7

MS.

4.

8

THE

s, 0

9

MS.

MAN: If you would r with me, your Honor.

10 If I

u through the fi and pi n wh it

1 1

h4 ell it

12 nfidential d uments-

1 3

THE URT:

a min ! I on e 11 -- oh,

14 H,o

1 5

MS. ROSSMAN: (Reading) All nfidential documents

16 subj

the January 31 , 2000 protective order, and pies

17 m

produ

pi nti

d nd prior the

18

, shall

rn

rpo

I

19 offi upon the

d Unless prior to th d

20 d

slyauthori the ntion s ific

21

uments i mi in writing by plaintiffs until, the

22

,the rmination the ipul on.

23

Now, I

a b . Th

rm Ion

24 all the d ume p d during the litig on. The

25 plaintiffs complied with th provision in the

ment and

UTHERN DISTRI REPO

, P.

12) 805 300

24

IPd

1 returned all the documents to the city with the ex ption of a

2

put in

ng, a th we

3 all

main n.

4

Now we m on to all d uments provid to plaintiffs

5 in any form by d ndan under the rms and during the

cou

6

this pul on sh I d m

nfidenti ,a

7 pi nti

Ion

offi all

8 such d uments,

pies m

upon the

9

In on of this

on.

10

e

d

11 of the

ment, the plaintiffs, under the rms of this

1 2

ement, which th

r, ich

1 3

to returned to the city.

14

THE URT: Well, that's good, but I don't think it is

15 good enough. Becau I think the urt's order is ambiguous or

16 ntradi

th

ng th it nds 30 d

1 7

r the rmination

e.

"18

N

rp the ph e rmination of

19 is e di ntly an I do. I don't h it in front

20 me, I will find Actually it is

h to this in the

21 p

the p

0 er

22

M

KLlN: it's the I

ment.

23

THE URT: I h it d

Jan

31 ! 2000. Is th

24

of the ipul ion settlement -

I it mu

25

hibit

the ipulation of ement. d the exhibit

SOUTHERN DISTRICT REPORTERS, P..

12) 5 0300

25

7c1Pdan

1

If s

ry d of the termination of this e.

2 Ih

the same pul ion of

3

ement th

. And-

4

MR. MOO -- essentially wh

a Iking about

5 is 30 d

6

THE COURT: Oh, I unde nd. But the

d sn

7

h these

Ie

this mpl

d

8 it al s ms childish me. It is in your I r, it is all

9 the

10

Ih

two nfH ng clauses in nt

1 1

e Ie e ,.

1 2

MS. ROSSMAN: I Ii , your Honor, if u

to

1 3

k

h 4, e plain m ing --

14

THE COURT: -

15

MS. ROSSMAN: -- the same

1 6

THE COURT: H4.

17

MS.

MAN: H4.

18

THE COURT:: I kn

H4 d, I don't even a ue

19 th it is wrong, but it

h hibit . hibit

20 lis me th wi in 30 d

rmination the e,

21

this

is open until the urt's su rvision ends on

22

m r 31 2 7

23

M M RE: Judge -

24

THE

and it

th I have the

r

25 m ify t

order

time.

SOUTHERN ISTRI REPO

I P. .

12) 5 300

26

IPdan

1

In rms this - by further order of the urt.

2

nly h the

r modi th

3 p

order until

mber 31 of '07.

4

And to that e nt, I surely would modify it my

5 own reading of it, which is 30 d

r the e rmin s,

6 which is January 30, '08.

7

I am h

ping with ur I r if u

8 to go through ch rand

, and try to II m

ur

9 points in ur I r, try to nvin me. I don't like the

10 id

having

rk on it in the n eight d under th

11 gun. B th

it is ming It d s n s m me

12 th would

1 3

MS.

ur Honor, putti

ide the issue

14 the modifi on it

s the racial profiling issues.

1 5

THE COURT: s turn to something else then.

16

MS. COSTELLO: The specific rform

issues other

1 7

th which would include the training.

18

THE URT::

talk about it. The city

19

ut that . I don't a subh ing ually

20 training.

21

Ms.

sman

II me whe in this I r it i

22

MR. M

on

23

THE

ion . The it is, ning,

24 o

25

MS.

Iy under the

on,

SOUTHERN DI

R RTERS,

12) 5-0300

27

IPdan

1 and I will point the urt to 5, and actually

on of

2 e ipul on-

3

THE URT: -- E is the one th

r

4

MS. COSTELLO' Yes.

5

THE COURT: Training.

6

MS.

had

ral nversations with

7 the c th

ut the

th there

8 has n r

rifi

the training s ified in

9 s ion E h

urred.

10

The

s position is, I unde

d i is th

1 1

n

d

uld di

th

1 2

THE

k at the plain langu e of the

13 s lement

men

14

I don't know how much

ing to have to

15 but we wi II read much

to.

16

1: The NYPD has ndu

in service training

1 7

ing the ial profiling poli which h

n p nted

1 8

NYPD mmands. The NYPD sh I provide nu in-servi

19 training ardi the ial profiling poli

20

2. The NYPD shall maintain that portion of the poli

21

emy curriculum th

ns training arding the

22

ial profiling poli

23

3: The NYPD sh

n poli offi

24

ut the I al d

r ndu

d

25 d umenting p,qu on and frisk ivity. ntinue to

SOUTHERN DISTRI

12) 5 0300

28

IPdan

1 implement the poli

emy curriculum for training police

2

cer ru

the I al d

r

3

ndu ng and d umenting p, que ion and frisk activity.

4 And continue to provide training for police

emy

5 instructors,

6

MR. M R

Judge -

7

E U

a ut the I

d

es r

8 conducting for and - and then all I can s

ragraph

9 4

I the NYPD shall

the NYPD

10 sh I inue p

nl

11

Num r 6 s

Ii

emy II ntinue

12 consider informally,

al inciden brought to i

ntion

13 r use in t ning.

14

7 s , the NYPD is

ng the ruit curriculum

15 and is part the p

mmissioner will conduct a

16 review.

1 7

8

, the NYPD will

p de full

18 p m

rg

d lie nan

ning,

19

9: The municipal d nd

h provid

d

20 10

: The NYPD shall ntinue to docume training

provid

21

pulation in the e manner and nsi nt with

22

ng p

d p u s empl

the NYPD.

23

Now, I h

it all. Nowhe d

th

24 will turn anything r cI s un

cI s

25 un I.

SOUTHERN DISTRICT REPORTERS, P.

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7clPdan

1

MR. MOORE: To rify, the word rifi on d s not

2

3

THE U

r port or turn over -

4

MR. M R - if you look subs on 5 the

5

ment.

6

THE URT:

me now turn 5.

7

e NYPD shall su

,mon rand t n

rs

8

arding the al profiling policy

forth below.

9

MR, MOO

th s an rm

duty on the NYPD.

10

THE U

true.

1 1

su se, mon rand t n

1 2

arding the ial profiling.

1 3

In order d rmine wh erth a Ifi II ing

14 their du whether th h

up to the rms this

1 5

me nt, we would argue that th should II us what th

16 are doing.

17

THE URT: Why didn't u

into the

18

eme Why didn't u

u on a qua rly

19

IS

mmg m rials for

20

There is nothing in the There no obligations

21 other than do But not

u know th ugh

22 d umentation.

23

MR. M R

if th a n doing it, the on

24 we n kn if th

doing it is by king them if th

25

doing it.

UTHERN DISTRI

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IPdan

1

THE URT: I understand.

2

M

. It ms me

th s an inhe

3 obligation on the part of the city.

4

THE URT: But this thing

signed Jan

9,2004.

5 I mean, th almost four

ago. Did you

them

6 a demand' r and

pi e document th

doing

7

nin

r

Ii

u

- or

Ii

ua n

8 doing training, we worried ut that, pi

nd us

9 copies--

10

MS.

: -- we did -

11

THE

doing this on

m r 21

12 of '0

1 3

14

1 5

16

1 7

18

19

20

21

22

23

24

25

31

IPdan

1

MS.

Part of this! your Honor, is that we

2

mpting

it 0

th the eMs. ss

and

3 I, in

4

THE URT: I h r you. But the position u put

5 me in is to h

me kind of

bri motion, you would like

6 to bri the

bri Ruffo and i

7p e 0

ur bri due on 10m. on the 2

8 and their bri

lOon the 28th, and the ply on the 31

9

MS.

: Th s wh

proposed, there six

10 months

nsion.

1 1

on

1 2

MS. COSTELLO:

I your Honor. me of the

1 3

th

cited

uld II th the

14

uitable power of the urt

1 5

THE COURT:: Didn't I do it and undo it?

16

MS.

You did undo it.

1 7

THE

an opinion

18

MS.

Part of that ur Hono

th we

19 h not

the dispute solution in the dec

d we

20 h

21

THE URT: th wrote you didn't. Didn't u

22

th

ssman, th didn't II the dispu

23

olution al

24

MS.

MAN- Th s right.

25

MS.

di

UTHERN DISTRI REPORTERS, P.

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IPd

"I

THE URT: But I am not being g n much time to

2 unde

ng u didn't,

s ng

3 something

. in wh way didn't th file a

4 disp

lution

5

MS.

MAN: th we suppos to wait until 30

6 d

urt.

7

E

u

8

MS.

MAN: From the d

,g

9 notification to us. The notifi

required to

10 g is by and hand rvi

1 1

THE U

d th

u a I r.

1 2

MS.

MAN: Frid

nmg.

1 3

THE URT:

mber wh

14

MS. ROSSMAN: N mber 30, Frid evening, 7:03 p.m.

15 And th did not del r a d ument by hand Frid for us to

16 h noti. nd it wasn't until Monday,

mber 3, there

17 no hand del ry all. th h nit mpH

th the

18 rms of the

ment in rms of giving p

19 then would bring us

nd the

mber 31 suns provision

in

20 rms of when th would be Ie

k Ii from the urt.

21

The fi time th

the issue ut the

22 p ling

on N m r 30.

23

MR. MOORE: Judge--

24

MS.

MAN: the first time th rais an issue

25

ut another i m n rning joint mmunity rums

on

SOUTHERN DISTRICT REPORTERS, P.

12) 5-0300

33

IPdanC

1 November 30.

2

THE U Which lis within the 30 d

u

3

ng out the hnicali the

on th it is

4 important was because, th s important because u weren't in

5 the offi

7:03 on a Frid night and didn't it until

6 Mond

7

The

is s ng it didn't h

al n

on

8 N mber 30, but on

m r 3.

9

MR. MOORE: We we before you in April, and

10 raisi the issues ut the

t th h nit produ the

11 d

e. d, u

we didn't g th

r.

1 2

THE COURT: I know -

1 3

M MOORE: th

rt sid

us a little

14 bit. And I think, though, th now th

had the

15 d

16

THE URT:: -- but th didn't

to things like

17 n having proof t nmg,

proof of communi

rum,

18 which u didn't think

going on. There re other

19

mplai that u uld h rai in time g some

20 rulings on viol ions or n .

21

I might have ill d the end of the d with

22

ining, th

23 u,

uld ue

k on

ion

24

we suppos

judge mplian

It

25 g di

ry. But dis ry is diffe nt than a po ing

UTHERN ISTRI REPORTERS,

12) 805-0300

34

IPdan

1 requi ment.

2

M MOO ' I guess it brings me

other

3 which if, in ,the ty is of the opinion th all th

4 h to do is have a written poli and th h a written

5 poli wh harm is there to the city in agreeing

nd

6 this r two months, th months, wh

r it m

, if in

7

th s a I th it uires them do is h

8 mething on per th

won't eng e

9

THE URT: -- u don't know if th h a written

10

Ii

1 1

M

I do

th impleme

a

n

12 poli There

-- I h nit I ked at it in the I

1 3

. But I do Ii there is a

n Ii

14

My point is that if, in fact, all th

required

15 do under this lement ag ment is to have a written poli

16 wh harm is the in

nding this ag ment for a uple of

17 months, r us

the iss sand d de, r

18 in

,d

want just put this thing bed

19 and, you kn

other

If th s

20 do.

21

If

Ii th that

ial profiling

22 is there,

a ry ng

ut tryi ng put a

23

u

und hole, wh

might . But my

24 poi

uld there

I guess the answer is,

25 it's ammon n

ument. It is n a I rly ument.

SOUTHERN DISTRI REPO

,P. .

12) 805 300

35

IPd

1 Th s the problem.

2

THE U Unfo n

all cho this

3 profession, and me d we k you elves why.

4

h the right to stand on hnicalities.

5 The Sup me urt issued me opinion I

that d,

6 the eral judge th

the Supreme urt s d you

7 tim e

u h

fi Ie ap

n d

r

8 judgement, lling your attorn you want an appeal is n

9 enough. u should have Ii ned to th Federal judge.

10

The nsenting ju i

a

, but the u

11 hit.

er ju

ht it

a fine ing

12 it on the

I The District judge told the pri ner

13 u

time.

r pri ner should h kn

r

14 than a federal judge. The I is full of technicalities.

1 5

Why d

nd it? Because th

16 don't want to. And if th

,th don't want

1 7

Wh am I going

Iy

18 speaking, he's right, why don't u g us all time to bri

19 this and d ide thi Th

uld

th

ry ni

20 d line.

21

u

me g it on the -- would u

22

nd this

th

g a bri ng

23 hedule.

24

MS.

MAN: ur Honor, I n

ori

25

th

UTHERN DISTRI

I P.

12) 5 300

36

IPdan

1

MS.

: I h one point on the training issue,

2

hibit l o u r I r, the

m r 4 I r th I

3 Ms. ssman. If u I k the third page

the

4 bottom -

5

THE URT: I got a problem, the N m r 30

6

r

7

MS.

no, I'm

the I r

8 del red to the urt I Frid

9

THE COURT:: Oh,

10

MS.

t

1 1

E U

m r 30 I r.

1 2

MS. COSTELLO:

it is

ur Honor.

1 3

THE U

hibit 2 is the

r.

14

MS. COSTELLO: The should a m b e r 4 I r,

15 your Honor.

16

THE COURT: Th

hibit 3. Page 2 at the bottom.

17

MS. COSTELLO: n the n

plain the c

18 th

think th

in

with the training

19

ui ments, ju as

in mpli

20 with the auditing the training ui ments.

21

THE URT: But u didn't bring it

ntion,

22 is all I am trying

urse, now wh

ng

23 is u did

lution m

ism. Is th

24

u

r41 r u did, in

25

the disp

uirement?

SOUTH ERN DISTRI REPO

, P.

12) 5 300

37

7c1Pdan

1

MR. MOORE:

2

MS.

Ms. ross

and I h

ions

3 in which were mpting to s if the city would g us

4

me d umentation showing th the training had urred.

5

THE COURT: Ms. rossman, did the plaintiff sati

6 the disp

lution by sing the issue on ptember

7

MS.

MAN: On the t nin

8

THE URT: In writing.

9

MS.

MAN: The one pi on the training, s.

10 But when I mention th the issue ut the ial p ling

1 1

fi -- fi

1 2

THE COURT: -- but got I of issues. s d

13 with t ning.

14

th satisfied the dispute

1 5

MS. GROSSMAN:

1 6

THE U Wh flows from the fact that th

d

17 the disp

solution m hanism on the t ning int?

18 u rai some kind of d n .

19

MS.

MAN: I'm sorry, ur Honor, re u

20

d

21

,wh fl

m the

th th

22

the disp

lution m hanism.

23

MS,

MAN: Our

nse t

ur Honor,

24 th

misi rp

the

ment, th th

rewriting

25 the

nt,

SOUTHERN DISTRI

I P. .

12) 805 0300

38

IPdan

1

THE URT: Meaning procedurally, if th

sfi

2 the disp

solution m hanism 9 ng u 30 d , wh

3 fl

allowed to me to urt,

4

s.

5

THE

th alluded to me court on th

6 one

use th

the disp - and th want

7

in their

the

ing

8 viol

nd su rvision,

9 and/or m

ific rforman

10

MS.

ur Honor, the

ment is ve

11 s

s fic

rman

d then I would

1 2

ur Honor, th th have to provide sufficient noti

1 3

en Ie I

d 9

1 4

n d . And to 9 noti

h

15 believe is contemplated by the

ment.

16

THE COURT: Well, I don't know. Th

the

17 disp

lution m hanism, all

I on this

18 issue, and th I then th h the right

me

urt.

1 9

d th h

me to urt.

20

I can

on their mpl nt arding

21

ining, I n

full bri ngs in 0 er 9 the

22

urt an app pri amount of time d ide whether the

h

23

n a viol on. I h

nd the d line d de the

24 m ion properly.

25

MS. G MAN: We would submit, ur Honor, th

SOUTHERN DISTRI REPO

I P. .

12) 805 300

39

IPdan

1 th s not the dispute that is not a medy lable under

2

me .

3

THE URT: The m you

to is, th

4 bring a dispute to court r giving you 30 d noti

5

MS. ROSSMAN: But the is no --

6

THE URT: - inherent power. I can't decide a

7

on th n bri . It is time it

b ught

8 the expi ion of this ag ment, th satisfied the dispu

9

lution mechanism, the Court h the power to operate its

10 own d

I canlt d ide a m on, an Impo

one, th

11

bri

1 2

Is the any other exhau

issue,

k,

1 3

mmg on Should

ntinue

r

14 sin

that u -- what's the n

1 5

MS. GROSSMAN: Your Honor, I would ju add on the

16 training pi ,the is no good-faith bell given. What

17 JU walked th ugh of the rifi ion th the

18

en

e --

19

THE

- but Mr. Moore ma s some practi

20 point. The is no point in the city

do mething,

21 the is no way to find out whether th

mply. Otherwi

22

u h a right without a m

u h

ingless

23

me

24

Th

n

the i nt the

25 will provide t ining but ha, h if we don

u

find

SOUTHERN DI

I P. .

12) 5-0300

40

IPdan

lout and unit

us to go task for it. That 't m

2 sense.

3

MS. G

MAN: ur Honor --

4

THE URT: but I am going to run out of time and

5 patien shortly. I would like to move right

the training

6 to the n

haustive claim. Is there another

7

MS.

MAN: m I ju

h

on on the

8 trainin

9

THE URT: No.

10

MS.

MAN: talk -- we h n

ions on the

11 due

ing

1 2

THE COURT: - no.

1 3

MS.

MAN:

k d

the

me and we

14 rej

it-

1 5

THE COURT: no --

16

MS. ROSSMAN: the pi ntiffs

1 7

THE COURT: no, I don't want

anymo

ut

18 training. I want h other issues th

for the

19

urt.

20

Wh other issues h you

21

MS. COSTELLO: We going

n e the her

22 issues, they minor.

think the ning is the --

23

THE URT: -- the ci s th have a right

24

d on the hni ity on the I ion the ial

25 profiling Ii you didn't g them the n

till

m r

SOUTHERN DISTRI REPORTERS, P. .

12) 5-0300

41

IPdan

1 3, you can't bring that one to urt in time for the

2 pu on

e ent

pi

the on one

s

3

is the mmg.

4

If that's all h to do between now and the 31 ,

5 m we can bri it and decide it. It is one issue not five,

6 n four, not six.

7

I II

p

a u

in a und hole a

8 all you h to do is bring a I uit, my interpretation

9 that protect order is th you have the documents till the

10 end Jan

1 1

M FRANKLIN: ur onor, can

mm

12

THE URT: PI e.

1 3

(

14

THE COURT: Mr. Moo

1 5

MR. MOORE: Judge, after consulting with my

16 II ues, I think we h come to a ition th if

17 h -- if the u is willing to rmit us hold the d

18th

h until the end of Janu 30 d

r the

19 expi ion of this

ment,

withd

20 this motion this point. And eng e in this p ss of

21 bringing another I uit or not.

22

THE U I think I d it many times on this

23

I th

on this

me

nd

24 th is the

s wh it s d, 30 d

r

25 the rmin ion of this

I which to me it finally

UTHERN ISTRI REPORTERS, P.

12) 5 300

42

7c1PdanC

1 rmi

rmin on December 31, '07, th

main

2 nfidential. But th d nit m n u It u them.

3

MR. MOOR

nt th some of the m rials

4 h already been made public,

5

THE URT: - wh public is public. If you cite

6 to the Rand study, publicly, nobody can critici you for th

7 If th do, th

nit ng in 9 faith. If I n 9

8 the nd study on the Intern I it is public -

9

MR. M RE:

u can

the NYPD bs

ur

10 Honor.

1 1

E U

public.

u

12 th And

id

I I would

pt it a

13

e, which the pi ntjff h the

r design

14

I think this current motion is withdrawn. Thank you.

1 5

ALL UNSEL: Thank u, your Honor.

16

17

18

19

20

21

22

23

24

25

SOUTHERN I

12) 5 0300

APPENDIX C

11/11/13

Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

ANNALS OF LAW
RIGHTS AND WRONGS
A judge takes on stop-and-frisk.
by Jeffrey Toobin
MAY 27, 2013
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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? Photograph by Antonio Bolfo.

“I don’t love trials,” Judge Shira Scheindlin said recently. “They are not a good way to tell a story. They are not efficient. And they are often so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

Daniel Patrick Moynihan building, off Foley Square, in lower Manhattan, after a long day of

presiding in Floyd v. City of New York, which is the latest legal challenge to the stop-and-frisk

practices of the New York Police Department. “What I really like to do is write opinions,” the

Judge said. “There you get to do what you think is right, what you believe in. You’re pushing the

margins of the envelope, being willing to be creative.”

It was after seven o’clock in the evening, and the courthouse was nearly empty. At sixty-six,

Scheindlin is renowned for her work ethic and her demands on her staff. Her clerks work from 9

A.M. until 8 P.M. every weekday. They can get lunch at the courthouse cafeteria but must eat it in

chambers. They are also expected to work six hours over the weekend. (They can choose which

day.)

In her office, Scheindlin was relaxed and expansive, especially when she talked about her two

children, a son who is a violist with the Metropolitan Opera orchestra and a daughter who is a

political consultant and pollster in Israel. (Her husband, Dr. Stanley Friedman, is an associate dean

at SUNY-Downstate Medical Center.) On the bench, though, she is unflaggingly rigorous. She listens

to testimony, reads the transcript on her computer in real time, e-mails her clerks, and sips endless

cups of Diet Coke. Lawyers who appear before her often describe her as opinionated and brusque.

(“I’ve heard enough.” “Move along.” “I’ve ruled, counsel.”)

The primary outlet for Scheindlin’s judicial creativity has been an enduring battle she has fought

with the N.Y.P.D. A federal judge since 1994, she has been hearing lawsuits against the police for

more than a decade. In decision after decision, she has found that cops have lied, discriminated

against people of color, and violated the rights of citizens. Now, in the midst of a mayoral race, with

the Democratic candidates united in their opposition to the stop-and-frisk policies of the

Bloomberg administration, the Floyd case represents Scheindlin’s greatest chance yet to rewrite

the rules of engagement between the city’s police and its people. David Floyd, the lead plaintiff, is

an African-American medical student who had been stopped and searched twice. The core allegation

in the case is that the N.Y.P.D. is systematically violating the rights of its citizens with unlawful

stop-and-frisks, particularly by targeting minorities. The questions before Scheindlin are profound.

Crime has declined in New York in recent years, as it has in other cities around the country. But

why? And at what cost to the civil liberties of its people? Has New York City conducted a long-

term, racially motivated campaign to deprive thousands of its citizens of their constitutional rights?

Or, as Mayor Bloomberg and others maintain, has the city created one of the great law-enforcement

success stories in recent American history?

T he concept behind stop-and-frisk, which is sometimes also called “stop, question, and frisk,” is a simple and venerable one. Police officers may arrest a suspect only if they have probable cause to believe that he committed a crime. What can they do if they suspect that someone is involved in criminal activity but lack sufficient grounds to make an arrest? The Supreme Court

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

addressed the subject in Terry v. Ohio, in 1968. According to Chief Justice Earl Warren’s opinion,

a stop is permissible only when “a police officer observes unusual conduct which leads him

reasonably to conclude in light of his experience that criminal activity may be afoot.” In other

words, the level of certainty needed for an officer to make such a stop is less than probable cause;

the standard is often described as “reasonable suspicion.” According to the Terry decision, the

judgment by the officer must be made on the basis of “specific reasonable inferences” from the

evidence, not “inarticulate hunches.” By and large, this remains the law today. Stop-and-frisk

encounters are also known as “Terry stops.”

“Stop, question, and frisk has been around forever,” William Bratton, a former police

commissioner in Boston, New York, and Los Angeles, told me. “It’s a basic tool. It’s the most

fundamental practice in American policing. It is done every day, probably by every city force in

America. If the police are not doing it, they are probably not doing their job.” Bratton served as

Mayor Rudolph Giuliani’s first commissioner of the N.Y.P.D., from 1994 to 1996, and is widely

credited with changing the orientation of the police from responding to crime to preventing it.

Through much of the second half of the twentieth century, crime and disorder, in forms ranging

from graffiti to murder to a crack epidemic, plagued New York. The police appeared powerless to

address these scourges. “Around 1960, New York City basically stopped policing,” Bratton told me.

“The police were no longer engaged in controlling behavior in the streets. We changed that. If

people are drinking cans of beer on the corner, you stop that behavior. If somebody is urinating

against a building, or if you suspect somebody is casing a building for a burglary, you stop them. Of

course police should be doing that. You make the streets safe, and, besides, a lot of these people

committing these minor crimes turn out to have warrants out against them for more serious things.”

The approach is known as Broken Windows, after a 1982 article in the Atlantic by James Q. Wilson

and George L. Kelling. Bratton’s interpretation of the Broken Windows approach called for

vigorous police enforcement of minor crimes like fare-beating and intrusive panhandling as a tool

to preserve public order and, at the same time, to catch criminals. In addition, the N.Y.P.D. under

Bratton began to make extensive use of data to identify crime-prone areas and focus resources on

them—an approach sometimes called “hot-spot policing.” Along the way, especially in high-crime

neighborhoods, cops stopped people not just in the act of committing minor crimes but also for

suspicious behavior.

Stop-and-frisk—indeed, aggressive policing generally—presents significant challenges for

judges. Months, or even years, after a confrontation between a cop and a suspect, the judge must

determine if the stop was legal and thus whether the evidence gathered can be used in court or

should be suppressed. “Most judges are reluctant to grant suppression motions,” Erin Murphy, a

professor at the New York University School of Law, said. “It’s hard for judges to look a police

officer in the eye and say he didn’t follow the law. And of course it’s only defendants who look

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

guilty who file suppression motions. It’s every judge’s worst nightmare that a released defendant

will show up in the newspaper the next day for committing some horrible crime. If you suppress

evidence, you are making it hard or impossible to prosecute a guilty person. That’s a really difficult

emotional and political decision for a judge to make.”

The matter of Antonio Fernandez presented such a dilemma for Judge Scheindlin. On May 12,

1995, police received a 911 call reporting a gang meeting in progress at a small park in the Bronx.

The caller said that one member, a Hispanic man wearing a white-and-black jacket, had a gun. The

officers who responded found about fifty or sixty men, all Hispanic, milling around. The police

frisked one man, who had no contraband. Then they followed a group of three or four men who had

been standing to the side of the main group. One of them was Fernandez, who was stopped, frisked,

and found to have a small amount of marijuana. At the station house, he was frisked again, and

police said that he had a fully loaded .38-calibre revolver hidden in his crotch.

Fernandez was charged with illegal possession of a handgun, and the case was assigned to

Scheindlin, who was in her early days on the federal bench. Fernandez argued that the Terry stop was

illegal, and that the gun should be suppressed as illegally obtained evidence. Scheindlin agreed,

writing in an opinion that, “based on the facts presented here, the police did not have reasonable

suspicion to stop Defendant and his companions.” In part, Scheindlin said, the stop-and-frisk was

illegitimate, because the anonymous tip was too vague to lead to Fernandez, but her opinion

reflected a disbelief in the officers’ testimony. According to the officers, Fernandez’s first frisk

produced a small amount of marijuana, but the second yielded a large handgun. As Scheindlin wrote,

“It is extremely difficult to believe that the same officer could have missed a bulky .38 caliber

revolver hidden in Defendant’s pants.”

The case might have passed without notice, but Antonio Fernandez was not an ordinary

defendant. He was better known as King Tone, the leader of the Latin Kings, one of the most

notorious drug gangs in the United States, and he was being charged as part of a huge crackdown on

the group by the United States Attorney’s office for the Southern District of New York. “Scheindlin

is one of the very few judges who would have had the guts to toss out a case like that one,” a former

prosecutor familiar with the case said. (Three years later, Fernandez was prosecuted for heroin and

cocaine trafficking and sentenced, by a different judge, to twelve years.) Scheindlin’s ruling in the

Fernandez case set a template for her handling of criminal cases. As one of her former law clerks

put it, “What you have to remember about the Judge is that she thinks cops lie.”

According to a study prepared by the Mayor’s office, Scheindlin suppresses evidence on the

basis of illegal police searches far more than any of her colleagues—twice as often as the second-

place judge. This may mean that Scheindlin is uniquely courageous—or that she is uniquely biased

against cops. (Scheindlin has said that the study is misleading, because it reflects only her written

opinions, rather than bench rulings, in which she almost invariably rejects motions to suppress.)

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

Still, she embraces her maverick status. Many judges in the Southern District previously worked as

prosecutors in the U.S. Attorney’s office there, but she was not among them. “Too many judges,

especially because so many of our judges come out of that office, become government judges,”

Scheindlin told me. “I don’t think I’m the favorite of the U.S. Attorney’s office for the Southern

District. Because I’m independent. I believe in the Constitution. I believe in the Bill of Rights.

These issues come up, and I take them quite seriously. I’m not afraid to rule against the

government.”

Scheindlin grew up in Detroit. Her mother was a schoolteacher, and her father, who emigrated from the Soviet Union, ran a Jewish civic organization. “We were a political family,” she told me. “My father was the official Jew for many committees in the state.” For a time, the family lived in a house once owned by a brother of Walter Reuther, the United Auto Workers labor leader. “The house had a bullet hole, from where someone had taken a shot at him,” she said. “It was a tough town.”
At the University of Michigan, Scheindlin majored in Chinese history, then continued her studies for seven years at Columbia. She never received her doctorate. “The language defeated me,” she said. “The prospect of reading original documents in Chinese was just too difficult.” Scheindlin drifted into law school, graduating from Cornell in 1975. She spent her final year of law school at Columbia, where she took a class with Ruth Bader Ginsburg, who became a mentor. Ginsburg introduced her to the legal side of the women’s-rights movement, and, while still a student, Scheindlin played a role in a case that brought equal pay to female academics at the City University of New York.
For the next two decades, Scheindlin did a little bit of everything in the law. She was in private practice, a federal prosecutor in Brooklyn, general counsel to the New York City Department of Investigation, and a magistrate (a lower-level federal judge), also in Brooklyn. In 1994, at the recommendation of Senator Daniel Patrick Moynihan, who had been encouraged by Ginsburg, President Clinton nominated Scheindlin to the federal bench in Manhattan. Her professional roots in Brooklyn, which is known as the Eastern District of New York, separated her from the start from the clubby world of the Southern District.
A defining event of Scheindlin’s tenure as a federal judge took place on February 4, 1999. On that day, four plainclothes officers shot and killed Amadou Diallo, an unarmed African immigrant, who was in the vestibule of his apartment building, in the Soundview section of the Bronx. (The officers, who thought Diallo was reaching for a gun, were charged with manslaughter. They were acquitted by a jury in Albany, where the case had been moved because of pretrial publicity in the Bronx.) The Diallo case suggested a dark side of Giuliani-era policing. The same aggressiveness that led New York cops to arrest minor offenders could turn, in certain circumstances, into a predatory approach to non-offenders, especially racial minorities. Crime rates (for whatever

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

reason) had fallen dramatically during the Giuliani administration, but the Diallo case raised

concerns about the N.Y.P.D.’s new tactics. “The idea behind proactive policing was to get guns off

the street, which was fine as far as it went, but what it meant on the street was the cops tossed every

young black man that they saw,” Jonathan Moore, a veteran civil-rights lawyer, said. “That’s what led

to Diallo.”

In response to Diallo’s death, Moore and the Center for Constitutional Rights, a legal-advocacy

group, filed the first class-action lawsuit challenging the city’s stop-and-frisk policies. The case,

Daniels v. City of New York (Kelvin Daniels was the lead plaintiff), was randomly assigned to

Judge Scheindlin, and years of legal skirmishing followed. The parties settled in 2004. The city

agreed to establish a written policy governing its stop-and-frisk practices and to improve the

training of officers in conducting legal Terry stops.

In retrospect, though, the most important part of the Daniels settlement may have involved

record-keeping. The city agreed to create a kind of checklist, which police officers would complete

each time they conducted a stop-and-frisk. During the next decade, the police filled out more than

four million of these forms, which served as indispensable evidence for the Center for

Constitutional Rights and others in lawsuits against the city.

Scheindlin has a bright and airy courtroom, one floor below her chambers, and the Floyd trial, now in its third month, has settled into a routine. In jury trials, judges avoid signalling their views, so as not to influence the jurors; but in bench trials there’s less reason for judges to be reticent. By this point, Judge Scheindlin’s views seem etched on the faces of the lawyers before her. Moore and his colleagues bound in and greet the Judge with confident half-smiles; the team from the city’s law department already look like disaster survivors, just trying to hang on. Moore and his team linger after court, chatting with spectators; the city’s lawyers, led by Brenda Cooke, scurry for the door, avoiding eye contact. (Closing statements are expected this week; Scheindlin will probably render her decision within sixty days.)
The plaintiffs’ key witness was Jeffrey Fagan, a criminologist and statistician, and a professor of law at Columbia, who has spent much of the past decade scrutinizing the city’s vast database of stop-and-frisk reports. The stop-and-frisk form, known as the UF-250, contains boxes for police officers to check to explain why a suspect was stopped. Some of the boxes refer to specific behavior: a suspicious bulge in clothing, or a refusal to comply with an officer’s directions. More than half of the four million UF-250 forms included checks in the box labelled “Furtive movements.” In his report, Fagan concluded that the furtive-movement box, without more evidence, suggested an unconstitutional Terry stop—that is, one not supported by reasonable suspicion of a crime. According to an algorithm that Fagan devised, eighty-two per cent of the stops were justifiable, twelve per cent were ambiguous, and six per cent appeared to be unjustified. Projecting that ratio over a decade, Fagan concluded that the N.Y.P.D. had made more than two hundred and

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sixty thousand illegal stop-and-frisks.

The plaintiffs have emphasized that only six per cent of stops led to arrests, just two per cent

yielded seizures of contraband, and only a tenth of one per cent led to seizures of guns. According

to Moore, “What this means is that the stops are unjustified more than ninety per cent of the time.”

Moreover, the plaintiffs used Fagan’s findings to support a claim that the police engaged in racial

discrimination. According to Fagan’s analysis, N.Y.P.D. stop-and-frisks are significantly more

frequent for black and Hispanic residents—constituting eighty-four per cent of the stops—than

they are for white residents, even after adjusting for local crime rates, the racial composition of the

local population, and other social and economic factors. “Statistics is a big part of how we are

proving racial discrimination by the police,” Darius Charney, who is a co-lead counsel, with Moore,

in the Floyd case, said. “We don’t need to find blatant racial animus. It doesn’t have to be motivated

by hatred of black or Hispanic people. We are looking at evidence of stereotypical thinking. We’re

looking for cops using race as a factor to make these decisions in a law-enforcement context. It’s

using race as a proxy for crime.”

In public, police officials have a clear answer to these accusations. “We have had tremendous

success,” Raymond Kelly, the police commissioner since 2002, told me. “Crime is down, and stop-

and-frisk is an important reason why.” Civil libertarians say that other factors (such as changing

inner-city demographics and the end of the crack epidemic) are involved, and dispute any clear

correlation between more aggressive police behavior and the falloff in crime. What is indisputable

is that since Bloomberg took office, in 2002, murders have dropped twenty-eight per cent, to four

hundred and nineteen in 2012, the lowest number since the city began keeping records, in 1963.

Even compared with other cities where crime has also declined, New York has experienced

dramatic changes. Since 2002, major crimes across the country have declined fourteen per cent; in

New York, they have declined thirty-four per cent. The contrast is even more striking between New

York and other big cities. If New York had Detroit’s murder rate last year, there would have been

forty-five hundred murders in the city—more than ten times the actual number.

Lawyers for the city tried to make the argument before Scheindlin about the effectiveness of

stop-and-frisk, but she shut them down before they had the chance. In order to rebut Fagan’s

analysis of the UF-250 forms, they sought the testimony of Dennis Smith, a professor of public

policy at New York University who is an expert on police management. In particular, the city

lawyers wanted Smith to testify about his view that the stop-and-frisk policy was an important factor

in what they termed “the historic crime decline achieved by New York City.”

In a pretrial ruling, Scheindlin excluded much of Smith’s proposed testimony. She said that

“permitting the parties to delve into the question of whether the stop-and-frisk program actually

reduces crime would risk turning the trial into a policy debate over the wisdom of the program

rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.” Still, as the trial has

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unfolded, city lawyers have continued to argue that stop-and-frisk has been a success—to

Scheindlin’s mounting irritation. When Brenda Cooke, the city’s lead attorney, who was cross-

examining Fagan, tried to make that point, Scheindlin cut her off.

“I got to put a stop to this,” the Judge said. “It is not a good use of my time. For one thing, I’ve

said repeatedly that one issue that is not present here is the effectiveness of this policy, because

that’s not for this court. This court is only here to judge the constitutionality. . . . We could stop

giving Miranda warnings. That would probably be exciting for reducing crimes. But we don’t allow

that. So there are a number of things that might reduce crime, but they’re unconstitutional. This

court is only concerned with the Constitution, not with the effectiveness of the policy. I’ve tried

and tried to explain that. This is my third or fourth try.”

Even then, the city’s witnesses persisted in defending stop-and-frisk as a sure means to reduce

crime. In a way, the entire conflict in the case came down to a single exchange between Moore and

Joseph J. Esposito, who had just stepped down, after thirteen years, as the chief of department in

the N.Y.P.D., the highest-ranked uniformed officer in the force. Chief Espo, as he is known, was a

renowned figure in the N.Y.P.D., and his demeanor on the stand suggested that he was more

accustomed to giving orders than to answering questions. Esposito poorly concealed his contempt

as Moore, shambling but relentless, pursued him about the propriety of stop-and-frisk. Moore

noted that the number of stop-and-frisks had increased from approximately ninety-seven thousand,

in 2002, to almost six hundred and eighty-five thousand, in 2011.

“So that increase is all on your watch, correct?” Moore asked.

“Yes, it is,” Esposito said, plainly seething. After a slight pause, he volunteered, eyes flashing,

“As is the forty-per-cent decrease in crime during my time—as is the eighty-per-cent decrease in

the last twenty years.”

I n the Southern District, plaintiffs in civil cases can designate new cases as related to old ones and thus guarantee that the same judge presides. Ever since the Daniels case, civil-rights and civil-liberties groups have continued to challenge the stop-and-frisk policies of the N.Y.P.D. Each time, the plaintiffs have made sure that the cases went before Judge Scheindlin, who currently has three such class actions on her docket. The Floyd case challenges the practice citywide; Davis v. City of New York, which will go to trial later this year, involves stops at city-owned housing projects; and Ligon v. City of New York, which is farthest along in the process, concerns searches at privately owned properties around the city.
The Ligon case was initiated by the Bronx Defenders, a nonprofit organization that represents indigent defendants in the borough. The lawsuit was based on the experience of, among others, Charles Bradley, a fifty-year-old security guard from the South Bronx who went to visit his fiancée at her apartment building, in the Parkchester neighborhood, on May 3, 2011. When he went upstairs, she didn’t answer her doorbell at first—she is deaf in one ear—so Bradley went

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downstairs to wait. “An officer got out of an unmarked van and came up to me,” Bradley recalled. “I

just accommodated the officer to the best of my ability, and, in turn, what happened was, he went

into my pockets. . . . There was nothing in my pockets except my house keys, my cell phone, my

wallet. The thing about it that was so appalling was that I had spent my last dollar to see my loved

one. And then he said, ‘Fuck that, you’re going in.’ ” Bradley was arrested for trespassing, a

misdemeanor, and strip-searched.

At the local precinct, Bradley was given a Desk Appearance Ticket, a common first step in the

legal process for minor offenses in New York City. He was instructed to appear in criminal court

on July 19th, but he faced a more immediate problem. “There was a domino effect from being

arrested,” Bradley said. The arrest would be reported to a New York State licensing agency for

security guards, and that might mean the loss of Bradley’s job. “I need a license to be a security

guard, and I would have lost it if they pressed charges,” he said. “If I lose my license, I lose my

income. I could have been put into homelessness for all this.”

Bradley took the ticket to the offices of the Defenders, who have pioneered what they call

“holistic defense,” a method based on recognizing that, for criminal defendants like Bradley,

deportation, eviction, or the loss of parental rights may be more ruinous than conviction or jail.

Bradley met with two lawyers—an employment specialist and a criminal-defense attorney. “Charles

was freaking out,” Molly Kovel, the employment lawyer, said. “We had seen it before. Many of our

clients are security guards or cabdrivers, and both are licensed by the government. For a lot of

minor crimes, the bigger threat to their lives is losing their jobs, rather than getting convicted.”

Kovel kept the licensing authorities at bay while a colleague, Cara Suvall, dealt with the criminal

case. “I had the problem of how to prove his innocence,” Suvall said. “So we went and got a

notarized letter from his fiancée saying that he really was visiting her. I took it to the district

attorney, and they agreed to drop the charges.”

Still, the experience of Bradley and others prompted the Bronx Defenders to file a class-action

suit against the city. The case focussed on the N.Y.P.D.’s Operation Clean Halls program, through

which private landlords give the police advance permission to patrol their property. This led to

Ligon v. City of New York, in which the Defenders were joined by the New York Civil Liberties

Union, the public-interest group Latino Justice, and the law firm of Shearman & Sterling. (Jaenon

Ligon, the lead plaintiff in that class action, had also claimed to be the victim of an unlawful stop-

and-frisk.) They charged that the police were using Operation Clean Halls to conduct

unconstitutional stop-and-frisk searches of innocent citizens like Bradley.

At a hearing in October, 2012, Scheindlin listened to testimony from both Bradley and Miguel

Santiago, the officer who placed the cuffs on him. Santiago testified that Bradley was in a “drug-

prone location” in a high-crime neighborhood and was “suspiciously walking back and forth”

outside the building. Santiago said that he approached Bradley by saying, “Excuse me, sir, could you

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come over here?” and that Bradley could not tell him his girlfriend’s name or produce any

identification. But Judge Scheindlin noted that Santiago’s paperwork contradicted his account in

several ways—he had written, for example, that he approached Bradley inside the building.

In a hundred-and-fifty-seven-page opinion, handed down on January 8th this year, Scheindlin

gave the Defenders a resounding victory. “Officer Santiago claimed that he was able to see

Bradley’s suspicious behavior even though he was inside a police van parked across the street,

twenty or thirty feet from the door, separated from Bradley not only by the street but by the

windows of the front door, a vestibule, the windows of an inner door, and the hallway,” Judge

Scheindlin observed. “I find Bradley’s account credible.” She was especially moved by Bradley’s

story. “If an unjustified stop happens to lead to an unjustified arrest for trespassing, as it did in

Charles Bradley’s case, not every overburdened public defender will have the wherewithal to obtain

a notarized letter from the defendant’s host explaining that the defendant was invited, as Bronx

Defender Cara Suvall did on behalf of Bradley,” she wrote. “When considering the relative

hardships faced by the parties, it is important to consider the potentially dire and long-lasting

consequences that can follow from unconstitutional stops.” Scheindlin concluded that a “very large

number of constitutional violations took place” as a result of Operation Clean Halls.

Scheindlin had found the city liable in the Ligon case, but what was the remedy? Here the Judge

sprang a surprise. She wrote that she was going to decide the city’s punishment in the Ligon case

(which the city had already lost) at the end of the Floyd trial (which had not even taken place). In

other words, it looked as though Scheindlin were scheduling her remedies hearing as if she had

already ruled against the city in Floyd. In a footnote, Scheindlin added, “I emphasize that this ruling

should in no way be taken to indicate that I have already concluded that plaintiffs will prevail in

Floyd.” But the city lawyers in the Floyd case are skeptical that the Judge’s mind is open. “It’s like

she has scheduled our sentencing before she’s even found us guilty,” one said.

P olitically, the verdict on stop-and-frisk seems already clear. The Democratic mayoral candidates running to succeed Michael Bloomberg all criticize stop-and-frisk, differing only in the intensity of their complaints. Christine Quinn, the City Council speaker, said recently, at Barnard College, “I want to leave it as a tool in police officers’ toolboxes,” but she noted, “We need to put an infrastructure of reform around stop-and-frisk.” Bill de Blasio, the public advocate, said at a mayoral forum, “We need to send a message to every young man of color that they are beloved, they are valuable, they are our future. You can’t do that if you’re constantly treating people as suspects.” John Liu, the comptroller, has gone even further. “Stop-and-frisk doesn’t have to be amended, it has to be ended,” he said at the forum.
In response, Bloomberg took the unusual step last month of giving a speech to the leadership of the N.Y.P.D. in which he both celebrated his record in reducing crime and addressed the allegations in the Floyd case. “As the ongoing federal court case is now demonstrating for any objective

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observer to see,” the Mayor said, “the N.Y.P.D. conducts stops based on seeing something

suspicious, or witnesses’ descriptions of suspects, not on any preconceived notions, or on

demographic data that would have you stopping old women as often as you stop young men.”

Commissioner Kelly, for his part, is dismissive of the mayoral candidates’ criticism. “This is just

pandering. This is what goes on in New York politics,” he told me. “They try and get as far left as

they can for the primary, where it’s just a tiny number of people who are voting. Then the challenge

is to get to the center for the general election. That’s all that’s going on here.”

In the courtroom, before Judge Scheindlin, the city is attempting to put on a defense. The

lawyers are pushing back on the plaintiffs’ most incendiary claim—that the stop-and-frisk policy

has been applied in a racially discriminatory manner. “It’s close to a perfect correlation between

who is committing crime and who is being stopped,” Celeste Koeleveld, the deputy Corporation

Counsel who is supervising the defense, said. “That’s true in minority neighborhoods, and also in

predominantly white areas, like Staten Island.” She noted that more than half of the N.Y.P.D.

consists of racial minorities. Kelly goes further, asserting that stop-and-frisk protects, rather than

oppresses, the African-American community. In a speech last month before Al Sharpton’s National

Action Network, Kelly said, “African-Americans, who represent twenty-three per cent of the city’s

population, made up sixty-four per cent of the murder victims and seventy-one per cent of the

shooting victims in this city last year.” He added, “African-American men between the ages of

sixteen and thirty-seven, who are just four per cent of the city’s population, comprise forty per cent

of those murdered citywide; eighty-two per cent of these young men were killed with a firearm. As

a city, as a society, we cannot stand idly by in the face of these facts.” He said, “I believe that this

tactic is lifesaving,” and, referring to Terry v. Ohio, he added, “It is also lawful and constitutional as

upheld by the U.S. Supreme Court in 1968.”

Nevertheless, it appears that public criticism—and Scheindlin’s rulings—has already changed

the behavior of the police. In March, just as the Floyd trial was beginning, the N.Y.P.D. revised its

instructions to officers in filling out the stop-and-frisk reports, demanding that they provide

narrative details on their reasons for the confrontations. More significant, perhaps, in the first

quarter of this year the number of police stops dropped by fifty-one per cent.

I n both the Floyd and the Ligon cases, the plaintiffs are asking for Scheindlin to appoint an independent monitor, to make sure that the police comply with the Constitution. They want the Judge to impose a sort of receivership on the police, creating a dual internal authority as a check on the existing leadership. As a model, the plaintiffs’ lawyers cite a case in Cincinnati a decade ago, in which the city agreed to fund an independent monitor who filed regular reports on the local cops’ compliance with the law. (Bloomberg called this notion a recipe for chaos.) The idea of the independent monitor, like the lawsuits themselves, is rooted in the hope that a single judge can diagnose a complex problem and reform a huge organization like the New York Police Department

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based on the imperfect medium of trial testimony. Scheindlin’s dedication to protecting citizens’

rights is beyond question; it is less clear that she has the wisdom, or even the ability, to impose her

vision in the real world of New York.

Scheindlin’s confidence in her understanding of the Constitution remains unshaken. Back in her

chambers, after a long day of testimony from a plaintiff’s expert on police procedures, Scheindlin

talked about another celebrated case of hers. Shortly after the terrorist attacks of September 11,

2001, investigators found the name and phone number of Osama Awadallah on a scrap of paper in a

car rented by one of the hijackers. On September 21, 2001, F.B.I. agents in California arrested

Awadallah. He was not charged with any crime but was held as a material witness. On October 10th,

he testified before a grand jury in New York that he was acquainted with one of the hijackers but

denied knowing another who lived in the San Diego area. He was indicted for perjury, but on April

20, 2002, before the trial had even begun, Scheindlin threw out the case against him.

In a pair of lengthy opinions, Scheindlin said that the government had violated the material-

witness law, by holding Awadallah too long and under unduly harsh conditions. She quoted the

famous Supreme Court case of Ex Parte Milligan, in 1866: “The Constitution of the United States

is a law for rulers and people, equally in war and in peace, and covers with the shield of its

protection all classes of men, at all times, and under all circumstances.” The Court of Appeals

reversed Scheindlin’s ruling and ordered her to bring Awadallah to trial. The trial ended in a hung

jury; in a second trial, he was acquitted.

“That case was just an enormously satisfying experience,” Scheindlin told me. “What I did was

gutsy, because it was so close to 9/11. For me to suppress that evidence stunned people, because

there was no question that he did know the hijackers. You saw the world changing in how each jury

saw the case. The first jury was eleven-to-one to convict. But by the time of the second trial the

Bush policies were unpopular, and he was acquitted. That was a vindication.”

Each day, before Scheindlin goes to court, the last thing she sees in her chambers is a framed

copy of an article she co-wrote with Brian Lehman, a former law clerk, in the New York La w

Journal. Headlined “ONE DAY IN SEPTEMBER,” and published in September of 2006, it was, like

many stories published around that time, a commemoration of an anniversary. “It was a day in

September that changed America forever,” she wrote. But her story wasn’t about September 11,

2001. It was about September 25, 1789, the day that Congress passed the Bill of Rights. Thanks to

that document, the authors wrote, “If a judge decides that a defendant’s rights have been violated and

the case is dismissed, a remarkable thing happens: the government bows to the rule of law.” ♦

PHOTOGRAPH: REPORTAGE BY GETTY IMAGES
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APPENDIX D

NY 'frisk' judge calls criticism 'below-thebelt'
By LARRY NEUMEISTER May 19, 2013 2:44 PM
NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-andfrisk practices of the New York Police Department has no doubt where she stands with the government.
"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday. It was another moment of candor for a judge known for her call-it-as-she-sees-it manner and willingness to confront government lawyers in a courthouse where many judges — former federal prosecutors themselves — seem less inclined.
"I do think that I treat the government as only one more litigant," she said during the interview that proceeded with a single rule: no questions about the trial over police tactics that reaches closing arguments Monday.
The trial has put the NYPD and City Hall on the defensive as they justify a long-running policy of stopping, questioning and frisking some residents to deter crime. Critics say it discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic, since it has been found to be legal, but she does have the power to order reforms in how it is implemented.
During the trial, she's shown an impatience with lawyers on both sides when they stray from the topic at hand, and a willingness to directly question witnesses — including police supervisors — about the nuts and bolts of trying to keep streets safe.
"I don't think they're entitled to deference," she said of government attorneys. "I think some of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ... They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office, they know the people there, whatever. I try not to do that."

Scheindlin, 66, appointed by President Bill Clinton, has had plenty of high-profile cases in 19 years in federal court, including three trials of John "Junior" Gotti, the son of the late legendary mob boss John Gotti, two trials of a California student who knew two of the Sept. 11 hijackers and the trial of international arms dealer Viktor Bout.
The AP interview came after a New York Daily News article revealed that the staff of Mayor Michael Bloomberg had reviewed her record to show that 60 percent of her 15 written "search-and-seizure" rulings since she took the bench in 1994 had gone against law enforcement.
The judge called it a "below-the-belt attack" on judicial independence. She said it was rare when any judge grants a request to suppress evidence in a law enforcement case and that inclusion of the numerous times when she rejected the requests with oral rulings from the bench would likely reduce the total to less than 5 percent.
She said reports that the mayor's office was behind the study made it worse.
"If that's true, that's quite disgraceful," Scheindlin said. "It was very discouraging and upsetting. I can't say it has no toll."
Of such criticism, she said: "It's very painful. Judges can't really easily defend themselves. ... To attack the judge personally is completely inappropriate and intimidates judges or it is intended to intimidate judges or it has an effect on other judges and that worries me."
A Bloomberg spokesman said Saturday, "We did a simple search of publicly available written decisions, as the media is also free to do."
The New York County Lawyers' Association called the report meaningless because it sampled so few Scheindlin rulings.
Scheindlin has faced heat before, most notably a decade ago when she presided over the trials of Osama Awadallah and one newspaper labeled her "Osama's best friend," a reference that some could misinterpret to refer to Osama bin Laden.
"You could be in danger, physically," she said.
The Awadallah case is memorable to Scheindlin for how it reflected the mood of the attitude across the country after the Sept. 11 attacks. Awadallah, born in Venezuela and raised in

Jordan, was a young immigrant in San Diego who was picked up as a material witness after his telephone number was found in a car that one of the hijackers drove to the airport on Sept. 11. Prosecutors agreed he was no terrorist but claimed he intentionally misled grand jurors about how well he knew one of the terrorists. Defense attorneys said he was left confused after 20 days in detention.
She said she learned in talking to jurors after Awadallah's first trial that they came within one vote of convicting him of false statements. At the next trial, he was exonerated.
"Same evidence. Same prosecutor. Same defense lawyers. Jury goes from 11-to-1 to 12zip," she recalled. "So I asked what happened. The answer is the country had turned in a new direction."
She said immediately after Sept. 11, "people were so worried and so terrified that the next attack was around the corner that they were willing to cede many of their civil liberties."
She added: "The second half of the (President George W.) Bush term, Bush policies were not popular any longer. People were much more distant from the event of 9/11. Now they were more concerned with civil liberties and less concerned with the security threat. ... I thought it was dramatically shown by what happened in that case."
In choosing law clerks, Scheindlin looks for varied experience like her own. She has been a prosecutor and a defense lawyer and was once politically active.
"I don't want a kid who's just done seven straight years of A's at Harvard," she said. "I want to know that they've done something, worked somewhere. Some experience. Some work. Some life. That makes for a rounded person."
And should they someday become a judge, it makes them well prepared for the rare case of impact.
"That's the day you live for, to do something that you believe is right and that is upheld as right and has a national impact, that's great," Scheindlin said. "That's why people want to be judges, I think, so they can make a difference."
___
Associated Press writers Tom Hays and Colleen Long contributed to this report.

APPENDIX E

11/11/13

New York Law Journal: Stop and Frisk Judge Relishes Her Independence

ALM Properties, Inc. Page printed from: New York Law Journal
Back to Article

Stop-and-Frisk Judge Relishes Her Independence
Mark Hamblett New York Law Journal 2013-05-20 00:00:00.0

The judge presiding over one of the m ost politically charged cases in recent New York City history says her 20 years on the bench have taught her to "appreciate more than ever the words 'judicial independence.'"
Shira Scheindlin, in a recent interview during the nine-week bench trial over the constitutionality of the New York City Police Departm ent's anti-crim e stop, question and frisk policies, said there are too m any judges who don't want to take chances and deliver controversial rulings.
"They are fearful or they want a prom otion or whatever it is, they don't exercise the independence they should have. State court judges of course face re-election, which is a terrible thing, but federal judges, who are appointed for life, don't appreciate how m uch independence they have—m any of them are a little cautious, m ore cautious than they should be."
Few court observers would describe Scheindlin as cautious and the judge spoke freely when she sat down recently with the Law Journal to discuss som e of her prior decisions and her views on being a federal judge. The only subject off the table was the ongoing trial, expected to wrap up on May 20 with closing argum ents.
The judge, who already has m ade som e rulings critical of the city for stop-and-frisk, has not been reluctant to m ake controversial decisions in the realm of civil liberties and constitutional law that have drawn the ire of police and prosecutors.
"I do think judges have a duty to protect individual rights because that's what the Bill of Rights is all about," she said. "It's the responsibility of the judiciary to protect those rights granted by our Founders. Now, does that m ake m e an activist? No. Som e people have said I'm conservative because I go back to what the Founders wrote and what they m eant. I see it as abiding by m y constitutional duty and our oath."
Am ong her other m atters, Scheindlin (See Profile) has issued a series of groundbreaking opinions on e-discovery in Zub ulake v. UBS Warb urg, which she regards as her most significant case. (See, for example, NYLJ, May 13, 2003, and July 25, 2003).
She has presided over multi-district litigation on conflicts of interest at investment banks in initial public offerings, and has presided over the trials of m obster John Gotti Jr. and Police Officer Francis Livoti in the use of a deadly chokehold on Anthony Baez.
Scheindlin has held parts of New York's anti-harassment statute unconstitutional; found police in contempt for continuing to enforce a law against loitering for the purposes of begging for m oney or cruising for sex that had long been ruled unconstitutional; held the National Football League was violating the antitrust laws by preventing underclassm an Maurice Clarett from participating in the league draft (later reversed); and com pelled the Metropolitan Transportation Authority to reinstate subway advertising that m ocked Mayor Rudolph Giuliani.
"What I've learned is do what you think is right, follow the law, do what you think you can do," she said. "Sometimes there is no precedent that constrains you and you can really strike out and write what you think is the right answer."

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

Scheindlin, 66, has earned a reputation as a hard-working judge and has kept up a full docket since taking senior status last year. She takes an average of 15 new cases a month and has a pending caseload of 132, not including related cases in multidistrict litigation. Her workload is in the upper half of senior judges in the district.

She sets a quick pace in her courtroom, with little tolerance for lawyers who obfuscate or belabor a point. She often asks questions herself when things slow down, although she said, "I don't think I've committed the sin of taking over trials."

"She is a judge who runs a very, very strong courtroom and has a clear idea of how she wants to do it," said one veteran Southern District practitioner.

"I think sometimes people can be critical of her because she can sometimes be sharp to litigants, put people down and be critical. But from m y experience, when she com es on the bench, she's prepared, she has strong views and she has the courage of her convictions," he added. "Her ideas can sometimes be idiosyncratic. She's not afraid to think independently."

Scheindlin "runs a very orderly courtroom , dignified, and as a jurist she's not only sm art but she's creative," said Robert Swift of Kohn Swift & Graf in Philadelphia, who has appeared before her. "She asks good questions and is polite to counsel, but, by the sam e token, she doesn't let counsel argue silly m otions or m ake silly requests—she's well in control of her courtroom . She's certainly been reversed, but that's also indicative of a judge being certain of what the law should be—not just what it is."

Like other judges, Scheindlin said she expects lawyers who appear before her to be well prepared.

"They need to be fam iliar with the facts and the law on the spot and not say, 'Oh sorry, I have to go look that up, or 'I'm sorry, I have to ask a colleague,'" she said.

Unusual Path to the Law

Scheindlin was born in Washington, D.C., raised in Detroit, and educated at the University of Michigan, Colum bia University and Cornell Law School.

She was working at Columbia as a graduate student in Far Eastern studies, but she said the language requirements were so rigorous—years of Chinese and Japanese included—"that I knew I would never finish m y dissertation. So I said, 'What's next?'

"I really didn't know m uch about the law but I knew it offered a broad education that gives you lots of possibilities of what you might do with it afterward," she said.

"I think at that point I thought I was going to be doing divorces and house closings and DWIs," she said. "I thought I'd be a local town lawyer married to a professor on the campus."

After graduating from Cornell in 1975, she spent a year at Stroock & Stroock & Lavan, then clerked for Southern District Judge Charles Brieant and was hired by David Trager, who was then the U.S. attorney in the Eastern District. She rose from general prosecutions to handling political corruption cases before being nam ed deputy chief of the Econom ic Crim es Unit while working as Trager's administrative assistant U.S. attorney.

Scheindlin counts Trager, along with Brieant and Eastern District Judge Jack Weinstein, as mentors.

Trager, she said, "was funny, he would speak in the im perative—'you will get a clerkship, you will apply to be a m agistrate."

She spent a year as general counsel at the New York City Departm ent of Education and then returned to the Eastern District as a m agistrate judge from 1982 to 1986, where she was also appointed as special m aster by Weinstein in the Agent Orange cases and litigation over asbestos.

Scheindlin returned to private practice in 1986 as a partner with Budd, Larner, Gross, Rosenbaum, Greenberg & Sade and then Herzfeld & Rubin, where she worked as a com m ercial litigator until she was nam ed a federal judge by President Bill Clinton in 1994, part of a wave of new judges who sometimes refer to themselves as the "Class of '94."

It is rare for magistrates to be promoted to Article III judgeships, and Scheindlin said her experience as a special master and magistrate —the first woman magistrate judge or district judge in the Eastern District—helped her hit the ground running when she took the bench in Manhattan.

"I just took that bench and I knew what I was doing," she said. "And I got feedback right away like, 'Boy you look like you've been doing this forever' and I would make a joke, 'Well, that's because I have.'"

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

She added,"I was incredibly fortunate—it is not easy for those who have not had any judicial experience."

Scheindlin said she never had any interest in m oving to the U.S. Court of Appeals for the Second Circuit because cases are built at the district court level.

District judges "have a much more exciting job than the Court of Appeals, because we shape the case in the first instance. We shape the issue—the case comes in the door and we are the first judge on the line, with the first crack at giving an answer and shaping a ruling, shaping the whole future of that case, right?

"The Court of Appeals has to use what we've done—we have the tough job—all they can do is review it and say 'You got it right or you got it wrong.'"

Scheindlin said the problem with the appellate court is that "there you've got to negotiate and get votes and there's three of you and you can end up in dissent when you really don't want to. To m e, this is the best of all worlds."

One case where the circuit said Scheindlin "got it wrong" was an opinion she remains proud of—her ruling that the governm ent had abused the m aterial witness statute by detaining Osam a Awadallah in the 9/11 investigation and then prosecuting him for perjury. Awadallah had known two of the 9/11 hijackers in California (NYLJ, April 30, 2002).

Scheindlin dism issed the charges, calling it a "perjury trap" and holding the m aterial witness statute was intended to be used only for trial witnesses, not people being interviewed in connection with an investigation.

The Second Circuit reversed and sent it back for trial (NYLJ, Nov. 10, 2003). The first jury hung 11 to 1 for conviction. The second, the judge recalled, "was 12-zip for acquittal."

"What happened in between?" Scheindlin asked. "It was exactly the sam e evidence, the sam e lawyers, and it was word for word the same trial record. What happened is that, it was later in the Bush administration and his policies were no longer as popular and people had pulled back…and were now looking at som e of the consequences of the event that they didn't really like."

But the judge also said that the jury in the second trial was subjected to a "m uch stronger voir dire."

"The second questionnaire worked m uch harder to probe bias—'did you know anybody even indirectly, who was injured that day?'"

"We know that the first jury was in tears, people were crying, telling about their neighbor who had lost a son, which was not at all the point of the prosecution."

'Judges Are Hum an Beings'

Scheindlin's ruling in the Awadallah case drew criticism that she said found hard to take.

"Judges are hum an beings and it always hurts to be attacked when you can't defend yourself—that's a very painful thing," she said. "Over the years I have read editorials such as the famous 'Osama's Best Friend' after the Awadallah decision, it was hurtful.

"I would have liked to have been able to explain the decision so that the public understood it so I was not wrongly attacked but a judge doesn't have that ability," she said. "In recent years the bar associations have really stepped up to the plate and tried to defend judges, not on the m erits of their decisions but by explaining their job, that the judge is a neutral and does the best they can. To attack them personally when it's not a m atter of dishonesty, just disagreem ent, is a terrible thing."

With her involvem ent in the stop-and-frisk litigation Scheindlin has had to cope with sharp criticism from city officials like Police Commissioner Raymond Kelly, who has accused her of being in the thrall of a few civil rights lawyers.

The New York County Lawyers' Association wrote to the New York Daily News on May 15 to protest an article reporting that an "internal report" by the m ayor's office purporting to show that Scheindlin is biased against law enforcem ent because she has ruled against the police in nine of 15 written search-and-seizure opinions she has issued since 1994.

In its letter, NYCLA argued that the report was m is leading becaus e it did not cons ider her s uppres s ion decis ions from the bench. Moreover, NYCLA wrote, "Judges are not s uppos ed to grade on the curve. They are s uppos ed to decide cas es on their merits," and the report didn't consider the merits of Scheindlin's rulings.

"I think it's inappropriate to label any judge as liberal or conservative," Scheindlin said in the interview. "I like to think of m yself as a fair-m inded neutral who calls the case outcom es the way that the law and justice require."

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

Scheindlin said she thinks Americans' attitude toward civil liberties has changed since the Sept. 11, 2001, terrorist attacks.

"I think it's better—I think the worst tim e was around 9/11. People just didn't want to hear about the rights of anybody when they felt their security was threatened—so I think, actually its been slowly better for the last decade as 9/11 has receded," she said. "One worries again, though, with the Boston Marathon bombers and whether public opinion shifts back, but I don't think anybody was particularly outraged [the surviving suspect] wasn't read Miranda rights.

"It's events like this that test people's commitments to civil liberties…I think the atmosphere has been much better because more of the population has been critical of what I might call the Bush-era policies—the torture memo, the Guantanamo issue, the m ilitary courts, the detention without charges."

She said she thinks that President Barack Obama would like to close the detention center at Guantanamo but cannot get Congress to go along.

"It's deeply troubling to hold people in perpetuity without charging them ," Scheindlin said. "We like to think we don't do that."

Scheindlin said that politics influences the selection of federal judges, but that is m ainly on the appellate court level.

"Let's be realistic, these are political appointm ents and the m akeup of the circuit judges in this circuit is slowly changing now that President Obama has been here five years," she said.

But she said that the Southern District had been "extraordinarily lucky" in avoiding political polarization.

"I'm saying that it's not partisan, she said. "All through the Bush years, all through the Obam a years we have had really high quality people. We are so lucky here we don't have political hacks. We have well-qualified judges virtually across the board."

Scheindlin said that she was disappointed in the U.S. Supreme Court's ruling last month on the Alien Tort Claims Act, Kiob el v. Royal Dutch Petroleum, 569 U.S. — (2013), determining that there was no extraterritorial application of the law.

In 2009, Scheindlin had recognized aiding and abetting liability for corporations on hum an rights violations in South Africa, the case along with Awadallah that has given her the greatest pride (NYLJ, April 9, 2009). But her ruling was put on hold while the Supreme Court considered the issue.

Scheindlin said Justice Samuel Alito "reached out" and skirted the aiding and abetting question just to strike down the law on extraterritoriality grounds, and "that was sad."

Scheindlin observed that new technologies had changed the law since she joined the bench, as evidenced by her own ediscovery rulings in Zub ulake and other cases.

"This is what lawyers really talk about—social m edia, GPS, cell sites, data collection, technology-assisted review," she said. "The biggest change in the law is that all these issues that have arisen out of the new world we live in.

"Now, the civil side is very advanced, the crim inal side is just beginning to catch up, but all data is electronic data, all discovery is e-discovery," she said.

And, like m any judges, she worries about the im pact of social m edia on juries.

In the case of arm s trafficker Viktor Bout, she m ade the jury sign a "pledge" not to go on Facebook, Twitter, LinkedIn or other outlets and prom ise they would not com m unicate that way, and if they did, "they understood they would be subjected to prosecution which was supposed to be an in terrorem effect," she said.

They signed, but one juror in the whole selection process said, "'I can't sign that' and I said ' Well, thank you for telling m e, you're off," Scheindlin said. "It really is threatening to the jury system —the ease of obtaining evidence outside the courtroom . This has happened again and again."

Scheindlin has been m arried for alm os t 30 years to Stanley Friedm an, the as s ociate dean of education at SUNY Downs tate Medical Center. She has two grown children.

She adm its to having virtually no outside interests.

"I love to work," she said. "The only other way I know how to enjoy m yself is exercise. Otherwise, I'm a great reader. I love audio books."

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New York Law Journal: Stop and Frisk Judge Relishes Her Independence

She said she's at the courthouse m ost days from 10 a.m to 8 p.m ., "really living here." She also works all weekend and requires her clerks to work one weekend day.

"This is sort of m y hom e away from hom e," she said.

@|Mark Hamb lett can b e contacted at mhamb lett@alm.com.

Copyright 2013. ALM Media Properties, LLC. All rights reserved.

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Jeffrey Toobin: A Judge Takes On Stop-and-Frisk : The New Yorker

ANNALS OF LAW
RIGHTS AND WRONGS
A judge takes on stop-and-frisk.
by Jeffrey Toobin
MAY 27, 2013
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Has New York City deprived citizens of their constitutional rights or created one of the great law-enforcement success stories? Photograph by Antonio Bolfo.

“I don’t love trials,” Judge Shira Scheindlin said recently. “They are not a good way to tell a story. They are not efficient. And they are often so tedious—you saw that today.” Scheindlin was sitting at a conference table in her chambers in the

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NY 'frisk' judge calls criticism 'below-thebelt'
By LARRY NEUMEISTER May 19, 2013 2:44 PM
NEW YORK (AP) — The federal judge presiding over civil rights challenges to the stop-andfrisk practices of the New York Police Department has no doubt where she stands with the government.
"I know I'm not their favorite judge," U.S. District Judge Shira A. Scheindlin said during an Associated Press interview Friday. It was another moment of candor for a judge known for her call-it-as-she-sees-it manner and willingness to confront government lawyers in a courthouse where many judges — former federal prosecutors themselves — seem less inclined.
"I do think that I treat the government as only one more litigant," she said during the interview that proceeded with a single rule: no questions about the trial over police tactics that reaches closing arguments Monday.
The trial has put the NYPD and City Hall on the defensive as they justify a long-running policy of stopping, questioning and frisking some residents to deter crime. Critics say it discriminates against blacks and Hispanics. Scheindlin is not being asked to ban the tactic, since it has been found to be legal, but she does have the power to order reforms in how it is implemented.
During the trial, she's shown an impatience with lawyers on both sides when they stray from the topic at hand, and a willingness to directly question witnesses — including police supervisors — about the nuts and bolts of trying to keep streets safe.
"I don't think they're entitled to deference," she said of government attorneys. "I think some of the judges are a little more timid to maybe disagree with the U.S. attorney's office. ... They have to prove their case like anybody else. I don't give them special respect. Maybe some judges do because they came from the office, they know the people there, whatever. I try not to do that."