University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name Brown v. Kelly PN-NY-0042
Docket / Court No. 05 Civ. 5442(SAS) ( S.D.N.Y. )
State/Territory New York
Case Type(s) Policing
Case Summary
On June 9, 2005, two residents of New York City, who had been arrested and charged under NY Penal Law s. 240.35(1) for engaging in peaceful begging, filed this lawsuit in the Southern District of New York on behalf of themselves and others similarly situated. The plaintiffs sued the City of New ... read more >
On June 9, 2005, two residents of New York City, who had been arrested and charged under NY Penal Law s. 240.35(1) for engaging in peaceful begging, filed this lawsuit in the Southern District of New York on behalf of themselves and others similarly situated. The plaintiffs sued the City of New York, the New York Police Department, and the Bronx district attorney’s office under 42 U.S.C. § 1983. Represented by public and private counsel, the plaintiffs alleged that the continued enforcement of statute 240.35(1) was a violation of their rights under the First, Fourth, Fifth, and Fourteenth Amendments of the US Constitution. The plaintiffs sought injunctive and declaratory relief to end enforcement of s. 240.35(1), as well as money damages for those wrongly arrested and prosecuted under the law.

240.35(1) provided that a person is guilty of loitering when he “loiters, remains or wanders about in a public place for the purpose of begging.” In 1993, the Second Circuit declared this section of the law unconstitutional on First Amendment grounds. See Loper v. New York City Police Dept., 999 F.2d 699 (2d Cir. 1993).

On June 9, 2005, the City of New York agreed to cease enforcement of s. 240.35(1), dismiss all charges and summonses pending under the law, release those in custody solely for violating the law, and vacate all warrants relating to charges under it. This order was amended on December 14, 2006, to mandate that the NYPD conduct officer training on not enforcing s. 240.35(1).

In July of 2007, plaintiffs' motion for certification of bilateral state-wide and City-wide classes was granted. The classes consist of all those who were arrested, charged, or prosecuted for a violation of s. 240.35(1) from the date when the statute was declared unconstitutional (October 1992).

Plaintiffs Brown and Wise were awarded attorney's fees in February 2008 in the amounts of $48,000 and $275,000 respectively. In 2009, Judge Scheindlin ordered the City to release all records of those who were arrested/summonsed/charged under s. 240.35(1).

On March 11, 2008, Judge Scheindlin accepted the case Casale v. Kelly (08-cv-02173-SAS) as related to this lawsuit. The plaintiffs in Casale v. Kelly filed a class action suit against the city for continuing to enforce loitering statutes s. 240.35(3) and (7), as related after both were declared unconstitutional. These provisions dealt with loitering for the purpose of engaging in sexual conduct and loitering in a transportation facility without sufficient reason. This case can be found in the Clearinghouse under PN-NY-0044.

In an opinion on April 26, 2010, Judge Scheindlin held the City in contempt of court for failing to cooperate in ceasing the enforcement of s. 240.35(1), (3), and (7). The order subjected the City to a system of sanctions in which each future enforcement of the void laws would result in a progressively higher fine (beginning at $500).

A settlement stipulated to by the parties in January 2012 was approved by the court on January 3, 2013. It created a $15 million Class Fund for those who were arrested, charged, or summonsed under the three void sections of the loitering statute. The City was also ordered to remove all records related to the loitering incidents, and to continue training of police officers on the matter.

On July 29, 2011, Judge Scheindlin accepted the case Long v. The City of New York as related to this action. The plaintiff in that case was an individual who begged in Times Square holding a sign that said, "Help! I Need Money for Weed!". He was arrested by the NYPD on multiple occasions under the same loitering statute, NY Penal Law s. 240.35(1), and sued the City under 42 U.S.C. § 1983. The case was settled for $45,000 and $85,000 in attorney's fees. As this is an individual action, this case is not in the Clearinghouse.

Between 2010 and 2015, class members sought attorney's fees and late claimants sought settlement funds based on good cause.

In April 2015, the remaining $160,000 in the Class Fund was given to four non-profit organizations dealing with issues of homelessness.

Dan Hofman - 01/28/2016
Dan Hofman - 06/03/2016


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Issues and Causes of Action
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Issues
Affected Gender
Female
Male
Constitutional Clause
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Training
Defendant-type
Law-enforcement
General
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of New York
Plaintiff Description Homeless NY residents engaged in peaceful begging who were arrested or prosecuted for loitering.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Damages
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration not on record
Case Closing Year 2015
Case Ongoing No
Case Listing PN-NY-0044 : Casale v. Kelly (S.D.N.Y.)
Additional Resources
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Case Studies Federal Enforcement of Police Reform
By: Stephen Rushin (University of Illinois College of Law, University of California, Berkeley - Jurisprudence and Social Policy Program )
Citation: 82 Fordham Law Review 3189 (2014)
[ Detail ] [ External Link ]

  Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance
By: Mary D. Fan (University of Washington)
Citation: Forthcoming, 87 Washington L. Rev. __ (2012).
[ Detail ] [ External Link ]

  What Happens When Police Are Forced to Reform?
Written: Nov. 13, 2015
By: Kimbriell Kelly, Sarah Childress and Steven Rich (Frontline/Post)
Citation: Washington Post (Nov. 13, 2015)
[ Detail ] [ External Link ]

Docket(s)
1:05-cv-05442-SAS (S.D.N.Y.) 04/23/2015
PN-NY-0042-9000.pdf | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Stipulation and Order 06/24/2005 (S.D.N.Y.)
PN-NY-0042-0002.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Amended complaint 11/27/2006
PN-NY-0042-0001.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order [Police Reforms] 12/14/2006 (S.D.N.Y.)
PN-NY-0042-0003.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order - denial of request for more med docs 04/16/2007 (2007 WL 1138877) (S.D.N.Y.)
PN-NY-0042-0004.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Denial of contempt of court 05/31/2007 (2007 WL 1573957) (S.D.N.Y.)
PN-NY-0042-0005.pdf | WESTLAW | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Order [Class Certification] 07/24/2007 (244 F.R.D. 222) (S.D.N.Y.)
PN-NY-0042-0006.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Opinion and Order 04/26/2010 (710 F.Supp.2d 347) (S.D.N.Y.)
PN-NY-0042-0008.pdf | WESTLAW| LEXIS | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Final Judgment 01/03/2013
PN-NY-0042-0009.pdf | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Scheindlin, Shira A. (E.D.N.Y., S.D.N.Y.) [Magistrate]
PN-NY-0042-0003 | PN-NY-0042-0004 | PN-NY-0042-0005 | PN-NY-0042-0006 | PN-NY-0042-0008 | PN-NY-0042-0009 | PN-NY-0042-9000
Monitors/Masters None on record
Plaintiff's Lawyers Brinckerhoff, Matthew D. (New York)
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-9000
Kovel, Mariana Louise (New York)
PN-NY-0042-9000
Rosenfeld, Katherine (New York)
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-9000
Smyth, J. McGregor Jr. (New York)
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-9000
Defendant's Lawyers Cardozo, Michael A. (New York)
PN-NY-0042-0002 | PN-NY-0042-0009
Connell, Monica Anne (New York)
PN-NY-0042-9000
Seligman, Rachel Amy (New York)
PN-NY-0042-0002 | PN-NY-0042-9000
Other Lawyers None on record

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