Floyd et al v. The City of New York et al

Filing 171

OPINION AND ORDER re:#101065 #154 MOTION to Amend/Correct #153 Order on Motion for Summary Judgment, filed by David Floyd, Lalit Clarkson, Deon Dennis, David Ourlicht. For the reasons stated above, plaintiff's motion to reinstate Floyd's claims arising out of his February 27, 2008 stop and frisk is granted. (Signed by Judge Shira A. Scheindlin on 11/23/2011) (lmb) Modified on 11/30/2011 (jab).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---------------------------------x
DAVID FLOYD, LALIT CLARKSON,
DEON DENNIS, and DAVID OURLICHT,
on behalf of themselves and all others
similarly situated,
Plaintiffs,

I

USDCSDNY

DOCUMENT
1ELBCfRONICAUY FILED

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OPINION AND ORDER
08 Civ. 1034 (SAS)

- against ­
THE CITY OF NEW YORK, et al.,
Defendants.

---------------------------------x
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David

Ourlicht bring this putative class action against the City of New York and named
and unnamed New York City Police Officers, alleging that defendants have
implemented and sanctioned a policy, practice, and/or custom of unconstitutional
stops and frisks by the New York Police Department ("NYPD") on the basis of
race and/or national origin, in violation of Section 1983 of title forty-two of the
United States Code, the Fourth and Fourteenth Amendments to the United States

.

Constitution, Title VI of the Civil Rights Act of 1964,1 and the Constitution and
laws of the State of New York.2
As I have previously explained, this case involves an issue of great
public concern – namely, the disproportionate number of African-Americans and
Latinos, as compared with Caucasians, who become entangled in our criminal
justice system.3 The specific allegation brought by the plaintiffs in this case is that
the NYPD is engaged in a widespread pattern and practice of suspicionless and
race-based stops and frisks.
The policing policies that the City has implemented over the past
decade and a half have led to a dramatic increase in the number of pedestrian stops,
on pace to reach 720,000 per year.4 There is “a disturbingly large racial disparity
in who is victimized by these practices,”5 although the precise extent of the
disparity and its causes are matters of dispute. While the City credits its “pre-

1

42 U.S.C. § 2000(d), et seq.

2

See Second Amended Complaint (“Compl.”) ¶¶ 2, 3.

3

See Floyd v. City of New York, — F. Supp. 2d —, No. 08 Civ. 1034,
2011 WL 3856515, at *1 (S.D.N.Y. Aug. 31, 2011).
4

See Memorandum of Law in Support of Plaintiffs’ Motion for Class
Certification at 1.
5

Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion
for Summary Judgment at 1.
2

emptive” policing, and accompanying high stop rates, for the decline in crime,6
plaintiffs argue that African-American and Latino men have been the targets and
borne the brunt of these policies, as hundreds of thousands of law-abiding citizens
have been stopped, questioned, and frisked based, in large part, on their race.7
One of the plaintiffs’ specific allegations is that on February 28, 2007,
three police officers unlawfully stopped and frisked David Floyd and then searched
his pockets. On February 24, 2011, defendants brought a motion for partial
summary judgment, arguing that the undisputed evidence showed that at the time
of his stop, the police officers had reasonable suspicion to believe that Floyd was
engaged in a burglary and were thus justified in stopping and frisking him. On
August 31, 2011, I granted defendants’ motion on the plaintiffs’ claims arising out
of that stop and frisk.8 My ruling was based on the presence of two facts that were,
at the time, undisputed: first, that when the police stopped Floyd he was standing
in front of an apartment door, trying numerous different keys on the lock, and
attempting to gain entry into the apartment; and second, that “there had been a

6

See Defendants’ Statement of Undisputed Facts Pursuant to Local
Rule 56.1 (“Def. 56.1”) ¶¶ 92-190; Supplemental Report of Jeffrey Fagan, Ph.D, in
support of Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment, at
1 n.3.
7

See Compl. ¶ 6.

8

See Floyd, 2011 WL 3856515, at *17.
3

burglary pattern for that time of day in the neighborhood.”9
On September 28, 2011, plaintiffs filed a motion for reconsideration.10
After I issued my Opinion and Order, plaintiffs analyzed the NYPD’s crime data
and, according to their analysis, found that “far from a ‘burglary pattern,’ there was
only one reported burglary in the vicinity of Mr. Floyd’s home in the two months
preceding his February 27, 2008 stop-and-frisk.”11 According to plaintiffs, this
evidence showing an absence of a burglary pattern raises a disputed issue of fact as
to whether the officers who stopped Floyd has the legally-requisite reasonable
suspicion to do so. Because there is now a disputed issue of fact, they argue,
summary judgment is inappropriate.
Defendants object to this motion.12 They argue that the plaintiffs have
not made the showing necessary for relief under Rule 60(b): the plaintiffs
previously failed to exercise due diligence to obtain the evidence regarding an
absence of a burglary pattern and thus should be precluded from presenting it now;

9

Id. at *4, *17.

10

See Memorandum of Law in Support of Plaintiffs’ Motion for Relief
Under Rule 60(b) of the Court’s August 31, 2011 Opinion and Order (“Pl. Mem.”).
11

Id. at 1.

12

See Defendants’ Memorandum of Law in Support of Their Opposition
to Plaintiffs’ Motion for Relief Under Rule 60(b) of the Court’s August 31, 2011
Opinion and Order (“Def. Mem.”).
4

the evidence would not change the result of the earlier ruling; and no extraordinary
circumstances exist to warrant relief.
For the reasons explained below, plaintiffs’ motion to reinstate David
Floyd’s claims arising out of his February 27, 2008 stop and frisk is granted.
II.

BACKGROUND
Although I provided a detailed summary of Floyd’s stop and frisk in

my previous decision, I repeat much of that summary here for the sake of
completeness. I summarize the relevant portions of my August 31, 2011 Opinion
and Order, describe the evidence regarding the crime data newly presented by the
plaintiffs (and the defendants), and then describe the evidence submitted by the
parties regarding the plaintiffs’ prior access to that crime data.
A.

The February 2008 Incident Alleged by Floyd
Floyd, an African-American man, testified that on February 27, 2008,

he was walking on the path adjacent to the house in which he lived at 1359 Beach
Avenue in the Bronx, New York.13 He encountered the basement tenant, also an
African-American man, who indicated that he was locked out of his apartment and
asked for help.14 Floyd, whose godmother owned the building, went upstairs to
13

See Def. 56.1 ¶ 438; Plaintiffs’ Reply Statement of Undisputed Facts
Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 438; Compl. ¶ 13.
14

See Def. 56.1 ¶ 438; Pl. 56.1 ¶ 438.
5

retrieve the key.15 Unsure of the correct key for the basement lock, he retrieved
seven to ten keys, some on chains and some loose, which he took back outside with
him.16 Floyd and the tenant went to the basement apartment door and started trying
the various keys.17 After trying five or six keys, they found the correct one.18
However, before they could open the door, three NYPD officers
approached them – Officer Cormac Joyce, Officer Eric Hernandez, and Sergeant
James Kelly.19 The officers asked the two men what they were doing, told them to
stop, and proceeded to frisk them.20 The officer who frisked Floyd reached into
both of his front pockets, which contained a phone, his keys, and some change.21
The officers then turned the two men around and asked again what they were
doing.22 The officers asked the men to produce identification and asked why the

15

See id.; Compl. ¶ 50.

16

See Def. 56.1 ¶ 439; Pl. 56.1 ¶ 439.

17

See Def. 56.1 ¶ 440; Pl. 56.1 ¶ 440.

18

See Def. 56.1 ¶ 442; Pl. 56.1 ¶ 442.

19

See Def. 56.1 ¶¶ 442, 456, 457, 463; Pl. 56.1 ¶¶ 442, 456, 457, 463.

20

See Def. 56.1 ¶ 445; Pl. 56.1 ¶ 445.

21

See Def. 56.1 ¶¶ 446-447; Pl. 56.1 ¶¶ 446-447.

22

See Def. 56.1 ¶ 448; Pl. 56.1 ¶ 448.
6

basement tenant did not have any.23 The officers asked whether the two men lived
there.24 Floyd gave the officers his Louisiana driver’s license and when the
officers noted that the address on the license did not match the address of the
building, he retrieved a bill from his bag, which reflected the building address.25
Officer Joyce testified that he stopped Floyd because he believed
Floyd was in the middle of committing a burglary; he saw Floyd jostling a
doorknob and nervously looking back; and he believed there had been a burglary
pattern for that time of day in the neighborhood.26 Joyce recorded Floyd’s stop and
frisk on a UF250 form, indicating that the suspected crime was burglary.27 He also
noted in the box for “Physical Force Used” that he had put his hands on Floyd
while Floyd was up against a wall.28 Regarding the circumstances that led to the

23

See id.

24

See id.

25

See Def. 56.1 ¶ 449; Pl. 56.1 ¶ 449.

26

See Def. 56.1 ¶ 457 (citing 8/25/09 Deposition of NYPD Officer
Cormac Joyce at 126:10-128:19); Pl. 56.1 ¶ 457.
27

See Def. 56.1 ¶ 458; Pl. 56.1 ¶ 458.

28

See Def. 56.1 ¶ 460; Pl. 56.1 ¶ 460; UF250 Form completed by
Officer Joyce on 2/27/08 (“Joyce UF250”), Ex. 170 to Declaration of Darius
Charney, plaintiffs’ counsel, in support of Plaintiffs’ Opposition to Defendants’
Motion for Summary Judgment (“Charney Decl.”).
7

arrest, Joyce checked the box corresponding to “Furtive Movements.”29 In the area
of the form entitled “Additional Circumstances/Factors,” with instructions to
“Check All That Apply,” Joyce checked the box corresponding to “Time Of Day,
Day Of Week, Season Corresponding To Reports Of Criminal Activity,” as well as
the boxes corresponding to “Evasive, False, Or Inconsistent Responses To
Officer’s Questions,” and to “Ongoing Investigations, e.g., Robbery Pattern,” but
did not check the box corresponding to “Area Has High Incidence Of Reported
Offense Of Type Under Investigation.”30 In response to the question “Was Person
Searched?,” Joyce checked “No.”31
Officer Hernandez testified that he suspected Floyd of committing a
burglary because he saw two men focused on the front door very close to each
other with their hands playing with the lock; because he saw one of the two men
look toward the street and then focus back on the door, as if looking to see if
anyone was looking at them; and because he knew there had been burglaries in the
43rd Precinct.32 He also testified that Floyd was holding a key ring that looked like

29

Joyce UF250.

30

Id.

31

Id.

32

See Def. 56.1 ¶ 461 (citing 8/5/09 Deposition of NYPD Officer Eric
Hernandez (“Hernandez Tr.”) at 140:21-141:9; 153:8-154:2; 169:2-19); Pl. 56.1 ¶
8

it had been made with a wire hanger with more than fifty keys on it.33 He did not
see a bulge in the clothing of either man that might indicate possession of a
weapon.34
Sergeant Kelly testified that he suspected that the two men were
committing a burglary because he saw them fumbling with a lock and jostling a
door, and because he knew there was a burglary pattern in the neighborhood.35 He
suspected that the bag at the men’s feet might have contained burglary tools.36 He
testified that as he was approaching the two men, he noticed that one of them “was
holding a very large key chain with . . . numerous keys on it, raising [his] suspicion
that maybe they were using several keys to try to get into that house.”37 He
reasoned that if they were in the process of committing a home invasion, they
might have a weapon.38 Kelly filled out a UF250, but did not make an entry in his

461.
33

See Hernandez Tr., Ex. 57 to Charney Decl., at 145:21-25.

34

See Def. 56.1 ¶ 462; Pl. 56.1 ¶ 462.

35

See Def. 56.1 ¶ 463 (citing 8/7/09 Deposition of NYPD Sergeant
James Kelly (“Kelly Tr.”), Ex. 67 to Charney Decl., at 32:25-33:25, 37:7-15,
38:24-39:18); Pl. 56.1 ¶ 463.
36

See Def. 56.1 ¶ 464; Pl. 56.1 ¶ 464.

37

Kelly Tr. at 44:3-10.

38

See Def. 56.1 ¶ 465; Pl. 56.1 ¶ 465.
9

memo book regarding the stop and frisk of Floyd.39
B.

This Court’s August 31, 2011 Summary Judgment Order
In my previous Order, I held that the officers’ stop of David Floyd

was lawful because the undisputed facts showed that they had had reasonable
suspicion, supported by articulable facts, that he was engaging in criminal
activity.40 In particular, I held the following:
1. “The existence of a midday burglary pattern is
undisputed. All three officers testified that they were aware of
such a pattern. Plaintiffs have not submitted evidence to
contradict the assertion.”41
2. “[W]hether Floyd and his neighbor were
‘nervously looking back’ toward the street is a disputed fact, as
Floyd testified that he had his back to the officers...”42
3. “[I]t is undisputed that Floyd and his neighbor
were attempting to open the door. Floyd describes trying several
different keys in the lock, while the officers describe the men as
“jostling,” “fumbling with,” or “playing with” the lock. Floyd’s
description of his activity does not contradict the officers’
description of his physical movements.”43
4. “[W]hether the men had ten keys or fifty keys is a
disputed fact, the resolution of which requires a credibility

39

See Def. 56.1 ¶ 467; Pl. 56.1 ¶ 467.

40

See Floyd, 2011 WL 3856515, at *17.

41

Id. at *15.

42

Id. at *16.

43

Id.
10

determination.”44
I found that in combination, the two undisputed facts regarding the
burglary pattern and Floyd’s effort to open the door using multiple keys “create
enough reasonable suspicion to justify the officers briefly detaining the men for an
investigatory stop.”45 I explained that neither fact, standing alone, would be
sufficient for the stop.46 The Supreme Court has clearly held that “[a]n 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.”47 And, as I explained, “jostling a lock is an activity consistent with the
criminal activity of attempting to break into a house, and consistent with the
innocent activity of trying to open a door that you are authorized to open when you
are unsure which is the correct key.”48 Standing alone, such a furtive movement
would not preclude a reasonable juror from finding that the police had lacked
reasonable suspicion to stop Floyd. In combination with the burglary pattern,
however, it would.
44

Id.

45

Id. at *17

46

See id. at n.254.

47

Illinois v. Wardlow, 528 U.S. 119, 124 (2000).

48

Floyd, 2011 WL 3856515, at *16.
11

C.

Evidence Newly-Submitted By the Plaintiffs
On September 28, 2011, twenty-eight days after I issued the summary

judgment Opinion and Order, plaintiffs filed their motion for reconsideration. The
motion is based on the findings of Jeffrey Fagan, professor of law at Columbia
University, whom plaintiffs have retained as an expert this case. According to his
affidavit, Fagan analyzed the NYPD’s criminal complaint report data in order to
determine the total number of burglaries that were reported in the vicinity of
Floyd’s home in January and February of 2008.49 Floyd’s home, at 1359 Beach
Avenue, was located in Census Tract No. 66, according to the 2000 Census.
Because Beach Avenue itself was the boundary between Census Tracts 66 and 214,
homes across the street from Floyd’s were in Census Tract 214. Fagan therefore
analyzed crime totals for both of the two tracts, which together comprise 36 square
blocks and, in 2008, were home to approximately 4,861 people.50 According to
Fagan, between January 1, 2008 and February 28, 2008, there was one burglary
reported in Census Tract 66 and were no burglaries reported in Census Tract 214.51
Defendants do not dispute Fagan’s findings. Instead, they produce

49

See Affidavit of Jeffrey Fagan ¶¶ 5-10.

50

See id. ¶¶ 11-12.

51

See id. ¶ 14.
12

evidence showing that there were more reports of burglaries and related crimes
over a larger geographic area and a longer time period. In essence, they challenge
plaintiffs’ conclusion that the data shows no pattern of burglaries. Defendants
show that in January and February of 2008, there were 66 complaints of burglaries
in the 43rd Precinct (which includes all of Census Tracts 66 and 214 and was home
to approximately 167,633 people as of the 2000 Census), 62 of which occurred
within one mile of Floyd’s home and 28 of which occurred within one half mile of
his home.52 In addition, in the six months between July 1, 2007 and December 31,
2007, there were 233 complaints of burglaries and 19 complaints of stolen property
within the 43rd Precinct.53 Finally, defendants show that for the entire borough of
the Bronx in January and February of 2008, there were 560 complaints of burglary,
116 complaints of possession of stolen property, and 6 complaints of possession of
burglar tools.54
D.

Plaintiffs’ Access to the Crime Data
Plaintiffs acknowledge that at the time their summary judgment

opposition papers were due, they were in possession of the NYPD’s data on

52

See Declaration of Tracy S. Mullet, supervisor of the Geospatial
Information and Analysis Group in the New York Police Department, ¶¶ 3-6.
53

See id. ¶¶ 9-10.

54

See id. ¶¶ 13-16.
13

reported crime in the 43rd Precinct.55 Defendants state that plaintiffs have been in
possession of the data since “no later than August 2009”56 (although they do not
specify a precise date) and plaintiffs do not contradict that statement.
Defendants also submit evidence showing that plaintiffs have known,
since at least May 11, 2009 or, at the very latest, since November 16, 2010, that
defendants would be relying in part upon a burglary pattern in order to justify the
Floyd stop and frisk.57 In their May 11, 2009 letter to the Court, copied to
plaintiffs’ counsel, defense counsel wrote that “at some point one of the officers
explained to Floyd that they stopped him because there had been robberies in the
neighborhood . . . .”58 On November 16, 2010, defendants first served their
summary judgment motion (withdrawn and later re-filed), which included the
argument that the stop was justified because there had been a mid-day burglary
pattern.59 And, as defendants point out, plaintiffs’ counsel only performed the data

55

See Pl. Mem. at 3.

56

Def. Mem. at 10.

57

See id. at 8.

58

May 11, 2009 Letter, Ex. C to Declaration of Heidi Grossman,
defendants’ counsel, in support of Defendants’ Opposition to Plaintiffs’ Motion for
Relief Under Rule 60(b) of the Court’s August 31, 2011 Opinion and Order at 5.
59

Defendants’ Memorandum of Law in Support of Their Motion for
Summary Judgment at 3.
14

analysis of the alleged crime pattern after I issued the August 31, 2011 Opinion
and Order.60
III.

LEGAL STANDARD
A.

Motion for Reconsideration
Plaintiffs have brought this motion under Federal Rule of Civil

Procedure 60(b)61 and defendants have treated it as such.62 However, Rule 60(b)
permits relief “from a final judgment, order, or proceeding” (emphasis added).63
My August 31, 2011 Opinion and Order granted in part and denied in part
defendants’ motion for summary judgement.64 Because that decision did not fully
adjudicate the parties’ claims, it was not appealable and thus not final for the
purposes of Rule 60(b).65 Therefore, plaintiffs’ motion for reconsideration cannot
60

See Def. Mem. at 9; Pl. Mem. at 4.

61

See Pl. Mem. at 1.

62

See Def. Mem. at 6.

63

Fed. R. Civ. P. 60(b). Accord Transaero, Inc. v. La Fuerza Aerea
Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) (“By its own terms, Rule 60(b) applies
only to judgments that are final.”).
64

See Floyd, 2011 WL 3856515, at *2.

65

See 12 James Wm. Moore et al., Moore’s Federal Practice, § 60.23
(2011) (“[t]he standard test for whether a judgment is ‘final’ for Rule 60(b)
purposes is usually stated to be whether the judgment is sufficiently ‘final’ to be
appealed.”); United States v. 228 Acres of Land & Dwelling, 916 F.2d 808, 811 (2d
Cir. 1990) (“[a]n order that denies summary judgment or grants partial summary
15

be properly brought under either Rule 60(b) or Rule 59. The instant motion is thus
considered as brought pursuant to Local Rule 6.3.66
Local Rule 6.3 requires litigants to bring motions for reconsideration
within fourteen days of the initial determination, unless otherwise provided by the
Court. I extended that deadline to twenty-eight days,67 so the motion is timely.
“The standard for granting such a motion is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or
data that the court overlooked – matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court.”68 “Reconsideration of a
previous order by the court is an ‘extraordinary remedy to be employed sparingly

judgment cannot by itself be the basis for an appeal, since it is nonfinal.”).
66

See Williams v. County of Nassau, 779 F. Supp. 2d 276, 280 n.2
(E.D.N.Y. 2011) (explaining that neither Rule 60(b) nor Rule 59 applies to a
motion for reconsideration of an order denying in part and granting in part a
motion for summary judgment); Kittay v. Korff (In re Palermo), No. 08 Civ. 7421,
2011 WL 446209, at *4 (S.D.N.Y. Feb. 4, 2011) (“[b]ecause a denial of a motion
to dismiss is an interlocutory order from which no appeal lies . . . a motion
pursuant to 59(e) to modify this order is procedurally improper . . . [and] the only
ground available for [defendant] to move for reconsideration is under Local Civil
Rule 6.3.”).
67

See 9/23/11 Transcript of Proceedings at 45 [Docket No. 157].

68

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
16

in the interests of finality and conservation of scarce judicial resources.’”69 The
purpose of the rule is to “ensure the finality of decisions and to prevent the practice
of a losing party examining a decision and then plugging the gaps of a lost motion
with additional matters.”70
“The major grounds justifying reconsideration are an intervening
change of controlling law, the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.”71 Defendants correctly note that,
generally, reconsideration on the basis of new evidence is only appropriate when
that evidence is truly newly discovered and could not have been found by due
diligence.72 However, courts may reconsider their previous decisions in light of
new information when manifest injustice would result from a refusal to do so.73
69

RST (2005) Inc. v. Research in Motion Ltd., 597 F. Supp. 2d 362, 365
(S.D.N.Y. 2009) (quoting In re Health Mgmt. Sys. Inc. Secs. Litig., 113 F. Supp. 2d
613, 614 (S.D.N.Y. 2000)).
70

Families for Freedom v. United States Customs & Border Prot., No.
10 Civ. 2705, 2011 WL 4599592, at *2 (S.D.N.Y. Sept. 30, 2011)
71

Virgin Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (quotation omitted).
72

See Def. Mem. at 7 (citing United States v. Potamkin Cadillac Corp.,
697 F.2d 491, 493 (2d Cir. 1983)).
73

See Mikol v. Barnhart, 554 F. Supp. 2d 498, 503 (S.D.N.Y. 2008)
(reconsideration granted, in light of newly submitted evidence, in order to prevent
a manifest injustice); Tamayo v. City of New York, No. 02 Civ. 8030, 2004 WL
725836, at *3 (S.D.N.Y. Mar. 31, 2004) (reconsideration granted in light of newly
17

The fundamental principle underlying Rule 60(b) is the need to
“strike[] a balance between serving the ends of justice and preserving the finality
of judgments.”74 That balancing act changes when the judgment at issue is not
final and the motion is brought under Local Rule 6.3. As a result, in this Circuit,
“[t]he law of the case doctrine is admittedly discretionary and does not limit a
court’s power to reconsider its own decisions prior to final judgment.”75
Ultimately, “[a] district court retains absolute authority to reconsider or otherwise
affect its interlocutory orders any time prior to appeal.”76
B.

Summary Judgment
Summary judgment is appropriate “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”77 “An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. A fact is material
submitted evidence that had long been in movant’s possession).
74

Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).

75

Virgin Atl., 956 F.2d at 1255.

76

Williams, 779 F. Supp. 2d at 280. See Fed. R. Civ. P. 54(b) (“[A]ny
order or decision, however designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does not end the action as to
any of the claims or parties and may be revised at any time before the entry of a
judgment adjudicating all the claims and all the parties’ rights and liabilities.”).
77

Fed. R. Civ. P. 56(a).
18

if it might affect the outcome of the suit under the governing law.”78
“The moving party bears the burden of establishing the absence of any
genuine issue of material fact.”79 To raise an genuine issue of material fact, and
thus defeat the summary judgment motion, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts,”
and “may not rely on conclusory allegations or unsubstantiated speculation.”80
In deciding a motion for summary judgment, a court must “construe
the facts in the light most favorable to the non-moving party and must resolve all
ambiguities and draw all reasonable inferences against the movant.”81 However,
“[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.”82
“The role of the court is not to resolve disputed issues of fact but to assess whether

78

Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d
Cir. 2010) (quotation omitted).
79

Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.

2010).
80

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)
(quotations omitted).
81

Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation

omitted).
82

Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quotation and emphasis omitted).
19

there are any factual issues to be tried.”83
C.

Stops and Frisks
“‘[T]he police can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable facts
that criminal activity may be afoot, even if the officer lacks probable cause.’”84
This form of investigative detention has become known as a Terry stop.85 “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.”86 “‘The officer [making a Terry stop] . . . must be able to
articulate something more than an inchoate and unparticularized suspicion or
hunch.’”87 “Reasonable suspicion is an objective standard; hence, the subjective

83

Brod, 653 F.3d at 164 (quotation omitted).

84

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. DeBour, 40 N.Y.2d 210 (1976).
85

See Terry v. Ohio, 392 U.S. 1 (1968).

86

Wardlow, 528 U.S. at 123 (quoting Sokolow, 490 U.S. at 7). Accord
Alabama v. White, 496 U.S. 325, 329-30 (1990); Immigration and Naturalization
Servs. v. Delgado, 466 U.S. 210, 217 (1984).
87

White, 496 U.S. at 329 (quoting Sokolow, 490 U.S. at 7).
20

intentions or motives of the officer making the stop are irrelevant.”88
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.”89 “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.”90 However, “the fact that the stop
occurred in a ‘high crime area’ [may be] among the relevant contextual
considerations in a Terry analysis.”91 A court “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.”92 “[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.”93
88

United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).

89

Terry, 392 U.S. at 22.

90

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

(1979)).
91

Id. (quoting Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972)).

92

United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotation marks
and citation omitted).
93

United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990).
21

IV.

DISCUSSION
A.

The Existence of a Burglary Pattern
The evidence newly produced by plaintiffs is deeply concerning to

this Court and it goes to the heart of this litigation. According to an expert report
previously submitted as part of this litigation, NYPD officers check off “high
crime area” as a justifying circumstance in more than fifty-five percent of all
stops.94 In addition, they check off “Time Of Day, Day Of Week, Season
Corresponding To Reports of Criminal Activity” in 34.1 percent of all stops and
“Ongoing Investigations, e.g., Robbery Pattern” in 12.2 percent of all stops.95
Shockingly, according to the report, the use of the “high crime area” justification
does not vary based on the area’s crime rate – it is checked off by police officers in
approximately fifty-five percent of all stops, regardless of whether those stops
actually take place in a high crime area, a low crime area, or an area with an

94

See Report of Jeffrey Fagan, Ph.D (“Fagan Report”) in support of
Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment at 51. The
box’s full description on the NYPD’s UF250 form is “Area Has High Incidence Of
Reported Offense Of Type Under Investigation.” These specific statistics exclude
stops made pursuant to “radio runs,” where officers are directed to a specific
location based on a civilian’s or officer’s report of crime. See Fagan Report at 35,
51.
95

See id. at 51.
22

average rate of crime.96 Equally disturbing, the report finds that in cases where
officers checked off “high crime area” on their post-stop report, they were
approximately eighteen percent less likely to have made an arrest than in cases
where they did not check that box.97 That is to say, although the Supreme Court
has held that “the fact that the stop occurred in a ‘high crime area’ [is] among the
relevant contextual considerations” in determining whether the stop was
constitutionally permissible,98 the reliance on that factor by NYPD police officers
appears to in fact reduce the likelihood that crime was indeed afoot. One
hypothesis raised by plaintiffs’ expert to explain this strange result is that:
[i]f the initial basis for suspicion leading to the stop was thin, then
adding [high crime area] . . . provides a post hoc justification to a
stop that was most likely erroneous with respect to whether crime
was afoot, and might have been based on a threshold of suspicion
that otherwise would have been legally insufficient to justify the
stop.99
It is of course not my role to make the factual determination of whether
Fagan’s data is correct, let alone whether his hypothesis properly explains that data.
It is appropriate, however, for me to observe that plaintiffs have made the NYPD’s use

96

See id. at 53.

97

See id. at 52.

98

Wardlow, 528 U.S. at 124 (quoting Adams, 407 U.S. at 144, 147-48).

99

Fagan Report at 53-55.
23

and alleged misuse of the justifications “high crime area,” “time of day,” and
“ongoing investigation, e.g., robbery pattern” a central part of their suit. And they
have now brought forward strong evidence suggesting that, at least in the case of the
NYPD’s stop of Floyd on February 27, 2008, the use of those justifications may not
have been supported by the objective pattern of crime in the neighborhood.
Officers Joyce and Hernandez and Sergeant Kelly all testified that
they stopped Floyd in part because there was a pattern of burglaries in the
neighborhood.100 The existence of such a burglary pattern was one of the two
undisputed facts that I found were necessary in order for defendants to justify
Floyd’s stop and frisk on summary judgment.101 Plaintiffs have now raised severe
doubts about the existence of that pattern by producing evidence that over the two
months prior to Floyd’s stop, there was only one burglary reported for the two
census tracts surrounding Floyd’s home.
Defendants argue that plaintiffs’ new evidence is not convincing and
should not change the outcome of my previous summary judgment Order. First,
they argue that the area selected by plaintiffs and Fagan for analysis is too small.
They do not indicate what precise area would be more appropriate, but they do

100

See Def. 56.1 ¶¶ 457, 461, 463.

101

See Floyd, 2011 WL 3856515, at *17 n.254.
24

provide statistics showing that in the two months prior to Floyd’s stop, there were
28 burglaries within one half mile of Floyd’s home, 62 burglaries within a mile of
his home, 66 burglaries within the 43rd Precinct, and 560 burglaries throughout the
Bronx.102 Defendants point out that the plaintiffs never asked defendants
Hernandez, Joyce, or Kelly about the boundaries of the burglary pattern on which
they relied when making the stop, and that plaintiffs have “not cited to any
depositions or other documents to support their use of these subjective
boundaries.”103 Furthermore, defendants argue that plaintiffs “have unilaterally
and arbitrarily determined that a two-month period is appropriate to draw the
conclusion that no pattern existed,” and point out that if the examination is
extended back to December 1, 2007, there were even more burglaries.104
Plaintiffs reply that the parties’ disagreement shows that there is a
disputed issue of material fact and that summary judgment is therefore

102

See Def. Mem. at 13-14. I must note, however, that defining the
entire Bronx as the scene of a pattern of burglary would undermine the Fourth
Amendment rights of that borough’s 1.3 million residents and their visitors and
eviscerate the logic behind the Supreme Court’s decision in Wardlow.
103

Id. at 12.

104

Id.
25

inappropriate.105 Plaintiffs argue that their position is reasonable and the dispute is
therefore “genuine” under the summary judgment standard:
plaintiffs’ use of the nine-by-four block area surrounding Mr.
Floyd’s home and the two-month time period preceding his stop
as the geographic and temporal units of their statistical analysis is
not ‘arbitrary’ but instead comports with the statements of highranking NYPD officials, defendants’ own testifying expert, and
defendant Sergeant James Kelly himself about how the NYPD
reviews and analyzes crime trends.106
Plaintiffs cite evidence showing NYPD discussions about drug offense
patterns at a single intersection in the 25th Precinct and shooting statistics in an eight
square block area in the 28th Precinct.107 More persuasively, plaintiffs point out that
the defendants’ own expert, Dennis Smith, has submitted a report explaining that
precinct-level crime analysis is out of date and that, since 2003, the NYPD has
focused on “hot spot policing” that analyzes crime patterns in smaller areas within
precincts. According to Smith, “[s]mall areas of violent crime within selected
precincts have been the locus of crime fighting efforts during the entire period” from

105

See Plaintiffs’ Reply Memorandum of Law in Further Support of
Their Motion for Relief Under Rule 60(B) from the Court’s August 31, 2011
Opinion and Order at 3.
106

Id. at 3-4.

107

See PBMN 10-10-08, Ex. 48 to Declaration of Darius Charney In
Opposition to Summary Judgment at NYC_2_00007023, NYC_2_00007026.
26

2004 to 2009.108 According to Smith, under the NYPD’s current approach, “a team
of officers is assigned to a hot spot, an Impact Zone, in precisely those blocks where
a violent crime pattern has been found.”109
In essence, plaintiffs have marshaled two central pieces of evidence in
their effort to show that the existence of a burglary pattern in the vicinity of Floyd’s
home is a disputed issue of fact: first, there was only one reported burglary in the
thirty-six square blocks surrounding his house in the two months before his stop; and
second, according to the defendants’ own expert, the NYPD analyzes crime patterns
in a block-by-block, hot-spot method.110
According to the officers who stopped Floyd, there was at the time a
pattern of burglary in the area. According to the NYPD’s data, and a method of
analysis that appears to comply with the method that the defendants’ own expert says
is used by the NYPD, there was only one reported burglary in the two months

108

Report of Dennis C. Smith at 5.

109

Id. at 11. “Another critical flaw in the model used in the statistical
analyses in the Fagan Report is the assumption, repeatedly stated, that police crime
pattern analysis and resource deployment are based at the precinct level rather than
small areas within precincts.” Id. at 17.
110

Even if there were no evidence to suggest that the NYPD measures
crime patterns in this way, there would still be a dispute of fact about whether the
officers could reasonably consider Floyd’s home to be in a “high crime area,” for
the purposes of the Fourth Amendment, given what the data shows.
27

preceding his stop. In order to survive a motion for summary judgment, Floyd must
show that – construing the facts in the light most favorable to him and resolving all
ambiguities and drawing all reasonable inferences in his favor – there exists a genuine
dispute of fact. He easily passes that hurdle.
B.

Reasonable Suspicion in the Absence of a Burglary Pattern
Defendants argue, however, that even if there is a genuine dispute of fact

as to the burglary pattern, the officers nonetheless had reasonable suspicion to stop
Floyd.111 But I squarely rejected that argument in my earlier ruling:
Plaintiffs assert that “[t]he only undisputed material facts are that
three officers observed, for no more than one minute, two Black
men trying to unlock the front door of a house in the middle of the
afternoon using keys.” To that description, I must add the
undisputed fact that the officers were aware of a midday burglary
pattern in the neighborhood. Those factors in combination—even
without the disputed facts of whether the men were nervously
looking back and whether they had ten keys or fifty—create
enough reasonable suspicion to justify the officers briefly
detaining the men for an investigatory stop.112
It was only in combination with the burglary pattern that I found that the police
officers, as a matter of law, had reasonable suspicion to stop Floyd. Defendants
cannot establish that, as a matter of law, Floyd’s furtive movements and possession

111

See Def. Mem. at 14-17.

112

Floyd, 2011 WL 3856515, at *17 (quoting Plaintiffs’ Memorandum of
Law in Opposition to Defendants’ Motion for Summary Judgment at 4).
28

of a number of keys113 were themselves sufficient to create reasonable suspicion. The
existence of the burglary pattern is a material fact because it could affect the outcome
of Floyd’s claim.
C.

The Newly Submitted Evidence
The raw data on which Professor Fagan has relied was indeed in

plaintiffs’ possession – for many months – before I granted partial summary judgment
to the defendants. And, given plaintiffs’ ample resources and expertise, they should
have been able to run the data on the existence of a burglary pattern before I issued
my Opinion. That said, the evidence was not an obvious red flag staring plaintiffs in
the face, but was rather a small part of a large data set, which required skilled work
to uncover. Plaintiffs’ failure to submit this evidence to the Court was obviously not
a tactical decision for which they must now pay the price. Instead, it was simply a
serious oversight.
Reinstating Floyd’s claims based on his stop and frisk would not reopen
a closed case or disturb a well-established decision. It would not prejudice the
defendants or punish their reliance. Nor would doing so subject any new defendants
113

Defendants argue that “Floyd’s use of a large set of keys to gain
entry” was also an undisputed fact. See Def. Mem. at 15. But Floyd testified that
he had only seven to ten keys, a fact that, if true, would not lend any reasonable
support to an officer’s suspicion that crime is afoot. Thus, I have already found
that the number of keys in Floyd’s possession raises a material issue of fact. See
Floyd, 2011 WL 3856515, at *16.
29

to litigation (since my previous Opinion denied summary judgment on the police
officers’ search of Floyd’s pockets114 ) or reduce in any way compliance with the
Supreme Court’s wisdom that “there must be an end to litigation someday”115 (since
these claims are but two of the many that plaintiffs bring in this putative class action).
But reinstating Floyd’s claims would prevent a manifest injustice.116 I
do not take lightly my decision to grant plaintiffs’ motion for reconsideration. The
great majority of requests for reconsideration based on the submission of new
evidence that could have been produced at the time of the original motion are rightly
denied. Granting such a motion is an exceptional remedy, but this is an exceptional
situation. It would be a miscarriage of justice to grant summary judgment against
Floyd on the basis of a local pattern of burglaries when the newly submitted evidence
puts the existence of such a pattern very much in doubt; that injustice would be
particularly acute given the serious concerns that the Fagan report raises about the
widespread and potentially improper reliance on such crime patterns by the NYPD.
Important factual questions of credibility are raised by the circumstances of Floyd’s

114

See Floyd, 2011 WL 3856515, at *17.

115

Ackermann v. United States, 340 U.S. 193, 198 (1950).

116

“When a party timely presents a previously undisclosed fact so central
to the litigation that it shows the initial judgment to have been manifestly unjust,”
reconsideration, even of a final judgment, is appropriate. Good Luck Nursing
Home, Inc. v. Harris, 636 F.2d 572, 577 (D.C. Cir. 1980).
30

stop - questions that go to the heart of the plaintiffs' claims - and these questions
should be answered by a jury.
V.

CONCLUSION

For the reasons stated above, plaintiffs' motion to reinstate Floyd's
claims arising out of his February 27, 2008 stop and frisk is granted.

Dated:

New York, New York
November 23, 2011

31

- Appearances -

For Plaintiffs:
Darius Charney, Esq.
Sunita Patel, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, New York 10012
[phone]

Jonathan C. Moore, Esq.
Jennifer Borchetta, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, New York 10016
[phone]

Philip Irwin, Esq.
Eric Hellerman, Esq.
Gretchen Hoff-Varner, Esq.
Covington & Burling LLP
620 Eighth Avenue
New York, New York 10018
[phone]

For Defendants:
Heidi Grossman
Linda Donahue
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]

32