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