Floyd et al v. The City of New York et al
Filing
372
OPINION AND ORDER: #103482 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) Modified on 8/15/2013 (ca). (Main Document 372 replaced on 8/23/2013) (tro).
UNITED STATES DISTRlCT COURT
SOUTHERN DISTRICT OF NEW YORK
,-------------------------------------------------------
)(
DAVID FLOYD, et al.,
Plaintiffs,
OPINION AND ORDER
- against
08 Civ. 1034 (SAS)
CITY OF NEW YORK,
Defendant.
--------------------------------------------------------
)(
JAENEAN LIGON, et al.,
Plaintiffs,
12 Civ. 2274 (SAS)
- against
CITY OF NEW YORK, et al.,
Defendants.
--------------------------------------------------------
)(
$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 remedies ordered below are largely drawn from submissions by plaintiffs and
the DOJ.
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
23
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.
24
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.
25
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.
26
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., POLICE COMMUNITY RELATIONS IN CINCINNATI (2009).
28
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).
30
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.
31
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”).
32
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.
34
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).
35
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.
36
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
- Appearances For Ligon Plaintiffs:
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
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
Mariana Kovel, Esq.
The Bronx Defenders
860 Courtlandt Avenue
Bronx, NY 10451
(718) 508-3421
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
Juan Cartagena, Esq.
Foster Maer, Esq.
Roberto Concepcion, Jr., Esq.
LatinoJustice PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013
(212) 219-3360
Jonathan Moore, Esq.
Jenn Rolnick Borchetta, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, NY 10016
(212) 490-0900
John A. Nathanson, Esq.
Tiana Peterson, Esq.
Mayer Grashin, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
(212) 848-5222
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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