This is one of four ongoing cases challenging the constitutionality of the New York Police Department's "Stop and Frisk" program. See: Floyd v. City of New York (PN-NY-0009
); Daniels v. City of New York (PN-NY-0010
); and Davis v. City of New York (PN-NY-0013
On March 28, 2012, twelve New York City residents, one former New York City resident, and a class of similarly situated individuals filed this suit in the District Court for the Southern District of New York against the City of New York and the New York City Police Department (NYPD). They challenged the city's "Operation Clean Halls" initiative (later renamed the "Trespass Affidavit Program"), which allowed police officers to patrol in and around private residential apartment buildings, and allegedly resulted in thousands of illegal stops, searches, summons (citations), and arrests. The plaintiffs were represented by a group of public interest lawyers from the New York Civil Liberties Union, Bronx Defenders and LatinoJustice. They filed a lawsuit under the United States and New York Constitutions, the Fair Housing Act, and state law. The plaintiffs asked for a declaration that the NYPD's practices were unlawful and an injunction against those practices.
Operation Clean Halls had the stated purpose of combating illegal activity in apartment buildings with records of high crime. In Manhattan alone, there were at least 3,895 Clean Halls buildings. Searches and seizures occur in public areas such as courtyards, lobbies, and sidewards, and NYPD officers engage in vertical patrols (floor-by-floor sweeps), much like those that were challenged in litigation surrounding New York City Housing Authority residences. The plaintiffs alleged that they had been stopped without suspicion of unlawful behavior, and that they had been arrested or issued summons (citations) without probable cause. In multiple instances, plaintiffs were arrested for trespassing despite having another resident vouch for them. The plaintiffs alleged that these incidents were part of a larger pattern and practice in buildings enrolled in Operation Clean Halls, without meaningful correlations to actual crime levels. The residents of Clean Hall buildings were disproportionately black and Latino. The plaintiffs also alleged that the City had been deliberately indifferent to these violations in their failure to train and supervise the NYPD.
The plaintiffs asked for a class certification for all residents of Clean Hall buildings and their families, guests, and visitors and for all individuals who had been or were likely to be unlawfully stopped or arrested for being in or around building in the Operation Clean Halls initiative. The plaintiffs claimed violations of the Fourth Amendment; First and Fourteenth Amendments (free association and due process); the Fair Housing Act (discriminatory implementation); the New York Constitution; and New York Common Law (false arrest and malicious prosecution). The plaintiffs asked for a declaration that these laws had been violated. The plaintiffs also demand an injunction that required the defendants to refrain from these violations, to establish citywide standards regarding Operation Clean Halls, to establish a system for tracking and monitoring NYPD practices (with care paid to tracking race, national origin, and geography), develop appropriate training for NYPD officers; and report to the plaintiffs and the court about the steps taken to cure the violations. The plaintiffs also asked for compensatory damages and attorneys' fees and costs.
On June 12, 2012, the Court (Shira A. Scheindlin, J.) issued a memorandum opinion and order. Ligon v. City of New York, 2012 U.S. Dist. LEXIS 81526, 2012 WL 2125989 (S.D.N.Y. June 12, 2012). The defendants wanted access to paperwork on the plaintiffs' prior arrests, even if they were terminated in the plaintiffs' favor and were now sealed pursuant to state law. Judge Scheindlin ruled that there was no legitimate reason for the defendants to access those files unless they were for charges of trespass or related crimes in the past ten years. The Court also ruled that the plaintiffs must make other disclosures about the length of time they were incarcerated and any injuries they suffered as a result of prior arrests, but that that could be done by sworn affidavit.
On August 21, 2012, Judge Scheindlin issued an opinion and order allowing the plaintiffs' evidentiary hearing to proceed, regarding their request for a preliminary injunction. Ligon v. City of New York, 2012 WL 3597066 (S.D.N.Y. Aug. 21, 2012). The defendants had asked the Court to deny the plaintiffs' motion summarily, prior to a hearing. The defendants had argued (among other reasons) that there was overlap in the plaintiff classes between this case and Floyd
, so there was a risk of inconsistent adjudications. The Court pointed out that both matters were assigned to the same judge (her) and gave the defendants a choice: they could cease delaying Floyd
with interlocutory appeals or they could agree to let these plaintiffs pursue preliminary injunctive relief. The Court wrote: "the City cannot have it both ways." This case went forward with the preliminary injunction proceedings.
The preliminary injunction hearing took place in October and November 2012. On January 8, 2013, Judge Scheindlin ruled for the plaintiffs, finding that they had demonstrated the likelihood that they would prevail on the merits, and proved the city's deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx. Judge Scheindlin summarized that her conclusion was based on five categories of evidence:
(1) the testimony of a Bronx Assistant District Attorney 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 misstated the minimal constitutional standards for making stops.
The Court issued a preliminary injunction, ordering the NYPD to immediately cease performing trespass stops (in which a reasonable person would not feel free to terminate the encounter) outside TAP buildings in the Bronx without reasonable suspicion of trespass. In addition, Judge Scheindlin set out proposed relief, and consolidated a hearing on it with the already-scheduled remedial hearing in the related Floyd
litigation. The proposed relief included requirements to develop constitutionally adequate policy guidance on stops, to collect data on each such stop, and to improve supervision and training. Ligon v. City of New York, 2013 WL 71800 (S.D.N.Y. Jan. 8, 2013).
On January 11, 2013, the defendants appealed the preliminary injunction decision to the Second Circuit Court of Appeals. On January 22, 2013, District Judge Scheindlin granted the defendant's stay of relief, pending their appeal in the circuit court.
On February 11, 2013, Judge Scheindlin granted the plaintiffs' motion for class certification solely for the purpose of preliminary injunctive relief. The class included "all individuals who have been or are at risk of being stopped outdoors without legal justification by 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"). Ligon v. City of New York, 2013 WL 500272 (S.D.N.Y. Feb. 11, 2013).
After a nine-week bench trial, on August 12, 2013, Judge Scheindlin issued an order in Floyd
, finding that the City had violated the Fourth and Fourteenth Amendments by acting with “deliberate indifference” toward the NYPD's practice of making suspicion-less “stops” and “frisks” and by adopting “a policy of indirect racial profiling by targeting racially defined groups” for “stops” and “frisks.” That same day, Judge Scheindlin issued an order imposing remedies in Floyd
and Ligon in the form of various “reforms” to the NYPD's “stop and frisk” practices to be overseen by a court-appointed monitor. The Court appointed Peter Zimroth, former New York Corporation Counsel and former First Assistant District Attorney in Manhattan, to oversee the implementation of the relief. With respect to specific remedies, the Court ordered the NYPD to adopt a written policy spelling out the specific circumstances where stopping a person suspected of trespass outside a TAP building is legal. Additionally, the Court ordered the city (1) to develop procedures to ensure proper paperwork is completed for each stop outside a Bronx TAP building; (2) to develop and adopt a system for reviewing the legality of stops outside Bronx TAP buildings; and (3) to revise the NYPD's training materials and training programs to enter conformity with the law. Additionally, the Court ordered that attorney's fees and costs be rewarded on appropriate application. The City appealed in both cases and sought a stay.
In September 2013, four police unions filed notices of appeal and motions to intervene in the District Court. Three of the unions moved to intervene in both Floyd and Ligon. One union only moved to intervene in Floyd.
On October 31, 2013, the Second Circuit granted the City’s motion for a stay and ordered that the cases be reassigned from Judge Scheindlin to another district judge. The Second Circuit wrote that the "District Judge ran afoul of the Code of Conduct for United States Judges" in (a) speaking to the press and (b) encouraging the plaintiffs' counsel in Daniels
to file the Floyd
litigation, separately, rather than litigating racial profiling as part of Daniels
-- particularly in stating that she would treat the new case as related. 538 F. App'x 101 (2d Cir. 2013).
After the Second Circuit ruled, both Floyd
and Ligon were reassigned (as related) to District Judge Analisa Torres. On November 13, 2013, the Court of Appeals rejected Judge Scheindlin's motion asking to be heard on the disqualification issue and clarified the reason for reassigning the case. The Second Circuit held that the rationale for the reassignment was an appearance of impropriety, not its actual presence. 736 F.3d 118 (2d Cir. 2013).
In the meantime, NYC Mayor Bill de Blasio was elected, and took a very different approach to these cases. The city moved for limited remand from the Second Circuit to the district court for the purpose of exploring settlement. On February 21, 2014, the Second Circuit granted the City’s motion to remand to the district court to explore settlement for 45 days. The Second Circuit declined to decide the police unions' motion to intervene, preferring to let the district court decide that motion first. 743 F.3d 362 (2d Cir. 2014).
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. The City agreed to substantially comply with the injunctive relief set forth in Judge Scheindlin's August 12, 2013, remedial order, subject to the parties' application to Judge Torres to limit the term of the court-appointed monitor to three years. When the monitor’s term ended, the City agreed to authorize the Inspector General of the NYPD to take over monitoring and reporting responsibilities. The parties agreed that the agreement could be terminated once the City has maintained compliance for two years. 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. 302 F.R.D. 69 (S.D.N.Y. 2014). The police unions appealed.
However, on August 6, 2014, with the consent of the plaintiffs in Floyd and Ligon, the City moved to voluntarily dismiss its remaining appeals, with prejudice, stating that the parties had reached an agreement that resolved all the issues raised by the City's appeals in both Floyd and Ligon, and cleared the way for the parties to begin the remedial process.
On October 31, 2014, the Second Circuit granted the City’s request to voluntarily dismiss all appeals, with prejudice. In addition, the Second Circuit held that the unions’ motions to intervene were untimely and that the unions failed to establish legally protectable interests, as required to allow intervention. 770 F.3d 1051 (2d Cir. 2014).
The parties continued to work with the monitor on developing appropriate reforms. On February 3, 2015, Judge Torres issued an order regarding the procedure for the monitor to develop and the City to implement the reforms of NYPD’s stop-and-frisk activities. The monitor would consult with the parties to create a final recommendations for the implementation of remedies. Then, the court would approve or deny the final recommendations.
First, on February 23, 2015, the monitor submitted and Judge Torres approved, a memo that was read by the NYPD at 10 consecutive roll calls in all precincts detailing the reforms ordered by Judge Scheindlin in Floyd. The memo was also posted in police stations and provided to all officers. The document detailed the constitutional standards governing stop and frisks, explicitly prohibited racial profiling by police, ordered officers to include a narrative explanation for stops in their UF250 forms, and ordered the start of a pilot program outfitting police officers with body cameras.
Meanwhile, on March 18, 2015, the City suggested a way for all five police unions to participate in the remedial process. Under the City's approach, the City would share proposals with the unions before providing them to the monitor and the plaintiffs. The unions could then offer their comments, which the City would convey to the monitor. This approach would afford the unions an opportunity to inform the monitor of their viewpoints before the monitor reached conclusions and submitted the final recommendations to the Court. On March 19, 2015, Judge Torres issued an order approving this framework.
On August 7, 2015, the monitor submitted his final recommendations for reforms on racial profiling and street encounters. The new racial profiling policy imposed a categorical prohibition on racial and national origin profiling; it also prohibited other forms of biased policing not covered in the NYPD’s current policy, such as profiling on the basis of religion, gender identity or expression, sexual orientation, and housing status. The new street encounters policy regarding placed clearer legal limits on stops and frisks. It required supervisory review of officer conduct to ensure compliance with the Constitution. On August 24, 2015, Judge Torres approved the final recommendations.
On December 8, 2015, Judge Torres issued an order modifying the remedial order’s requirement that NYPD institute a pilot project in which body-worn cameras would be used for a one-year period. Judge Torres modified the order so that the NYPD would use a randomized experimental design for the body-worn camera pilot program.
As of April 1, 2016, the parties continue to implement the reforms and the monitor submits regular status reports regarding their progress.Emily Goldman - 03/02/2013
David Postel - 11/25/2013
Jessica Kincaid - 04/01/2016