Floyd et al v. The City of New York et al
Filing
402
OPINION AND ORDER: 103589 For the reasons set forth above, the City's request for a stay of this Court's August 12 Orders is DENIED. (Signed by Judge Shira A. Scheindlin on 9/17/2013) (ja) Modified on 9/19/2013 (ca).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DAVID FLOYD, et ai.,
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Plaintiffs,
OPINION AND ORDER
- against08 Civ. 1034 (SAS)
CITY OF NEW YORK,
Defendant.
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)(
JAENEAN LIGON, et ai.,
Plaintiffs,
12 Civ. 2274 (SAS)
- againstCITY OF NEW YORK, et ai.,
Defendants.
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)(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
BACKGROUND
By letter dated August 27,2013, defendants ("City") in the abovecaptioned actions moved for a stay of this Court's August 12 Orders pending
appellate review. l On September 6,2013, plaintiffs opposed the request for a
See 8/27/13 Letter from Heidi Grossman and Linda Donahue,
Assistants Corporation Counsel for the City, to the Court ("City Stay Ltr."). See
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stay.2 Declarations in opposition to the stay were also received from City Council
Speaker Christine Quinn; City Council Members Helen Foster and Robert Jackson;
Joo-Hyun Kang, the Director for Communities United for Police Reform; and
named plaintiff David Ourlicht.3 In addition, Public Advocate Bill de Blasio
submitted an amicus curiae letter in opposition to the stay.4 On September 12,
2013, defendants filed a letter in reply to plaintiffs’ opposition.5 For the following
reasons, the request for a stay is DENIED.
The standard for obtaining a stay pending appeal is well-established,
as is the burden of proof. The court must consider: “‘(1) whether the stay
applicant has made a strong showing that he is likely to succeed on the merits; (2)
whether the applicant will be irreparably injured absent a stay; (3) whether
also Floyd v. City of New York, No. 08 Civ. 1034, 2013 WL 4046209 (S.D.N.Y.
Aug. 12, 2013) (“Liability Opinion”); Floyd v. City of New York, No. 08 Civ. 1034,
2013 WL 4046217 (S.D.N.Y. Aug. 12, 2013) (“Remedies Opinion”) (collectively,
“August 12 Orders”).
2
See 9/6/13 Letter from Jonathan C. Moore et al., Counsel for Floyd
Plaintiffs, to the Court (“Floyd Pl. Opp. Ltr.”); 9/6/13 Letter from Alexis Karteron
et al., Counsel for Ligon Plaintiffs, to the Court (“Ligon Pl. Opp. Ltr.”).
3
See Declarations of City Council Speaker Christine C. Quinn (“Quinn
Decl.”), City Council Member Helen D. Foster (“Foster Decl.”), City Council
Member Robert Jackson (“Jackson Decl.”), et al., Exhibits to Floyd Pl. Opp. Ltr.
4
See 9/6/13 Letter from Amicus Curiae Public Advocate Bill de Blasio
to the Court (“Public Advocate Ltr.”).
5
See 9/12/13 Letter from Heidi Grossman and Linda Donahue,
Assistants Corporation Counsel for the City, to the Court (“City Reply Ltr.”).
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issuance of the stay will substantially injure the other parties interested in the
proceeding; and (4) where the public interest lies.’”6 “The degree to which a factor
must be present varies with the strength of the other factors, meaning that more of
one factor excuses less of the other.”7 The party seeking the stay bears the burden
of proving that a stay is necessary.8 The Second Circuit has noted that this is “a
difficult burden.”9 Finally, “a stay is not a matter of right, even if irreparable
injury might otherwise result.”10
II.
DISCUSSION
A.
The Relief Ordered
Contrary to statements by certain high-level city officials and pundits,
this Court did not order an end to the practice of stop and frisk. Rather, this Court
ordered that such activity be conducted in accordance with well-established
controlling law from both the United States Supreme Court and the Second Circuit
Court of Appeals.
In furtherance of this goal, the immediate relief ordered by this Court
6
Nken v. Holder, 556 U.S. 418, 434 (2009).
7
In re World Trade Ctr. Disaster Site Litig., 503 F.3d 167, 170 (2d Cir.
2007) (quotation omitted).
8
See Nken, 556 U.S. at 433–34.
9
United States v. Private Sanitation Indus. Ass’n of Nassau/Suffolk,
Inc., 44 F.3d 1082, 1084 (2d Cir. 1995).
10
Nken, 556 U.S. at 434 (quotation omitted).
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in the Remedies Opinion consisted of (1) appointing a Monitor to ensure that the
New York City Police Department (“NYPD”) carries out its stop and frisk
activities in a manner consistent with the mandates of the Fourth and Fourteenth
Amendments to the United States Constitution; (2) appointing a Facilitator to meet
with stakeholders in the community — including the NYPD, the Corporation
Counsel, the Mayor, the City Council, the police unions, tenant associations,
churches, schools, block associations, and any others that the Facilitator may
identify — to suggest reforms that would accomplish the goal of conducting
essential law enforcement activity in a constitutional manner; and (3) conducting a
pilot project requiring the use of body-worn cameras by police officers on patrol in
five select precincts, under appropriate terms and conditions to be recommended
by the Monitor. The costs associated with the activities of the Monitor, the
Facilitator, and their necessary staff must be borne by the City.
Long-range relief requires the NYPD to institute new mechanisms for
the training, supervision, monitoring, and disciplining of officers with respect to
stop and frisk activity. This relief includes revising the UF-250 form used to
record stop activity, designing a tear-off form or card for police officers to give to
the stopped person, improving the written records of stops and/or frisks in officer
activity logs, improving training materials and classes, strengthening oversight by
superior officers, and applying internal discipline where needed. The vast majority
of these reforms will not be implemented until the Facilitator and the Monitor have
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the opportunity to work with the community, the NYPD, and the other
stakeholders identified above to recommend appropriate reforms.
In short, the only activity at this stage is discussion between the
Monitor, the Facilitator, and the parties to develop the remedies described above.
No other specific relief is imminent, much less ordered.
B.
Likelihood of Success on the Merits
The Supreme Court has held that the first two factors — likelihood of
success on the merits and irreparable harm — “are the most critical.”11 Defendants
have presented no cogent argument that they are likely to succeed on their appeal
of this Court’s Orders. Defendants assert in a single conclusory paragraph in their
opening letter brief that the Court erred in finding violations of the Fourth
Amendment, violations in Floyd of the Fourteenth Amendment, and “any
actionable widespread pattern or practice, deliberate indifference or causation”
under Monell v. Department of Social Services.12 The City also asserts that the
injunctive relief ordered in Floyd is “not narrowly tailored or clear enough to
11
Id.
12
City Stay Ltr. at 2 (citing Monell, 436 U.S. 658 (1978)). The City’s
reply to plaintiffs’ opposition letter effectively acknowledges that the City does not
attempt to carry its burden of establishing the likelihood of success on the merits.
In response to plaintiffs’ argument that the City’s opening brief “made no
showing” of likely success, Floyd Pl. Opp. Ltr. at 3, the City’s reply “respectfully
refers the Court” to the totality of the legal and factual arguments submitted by the
City in “the years of litigation and substantive motion practice” prior to the August
12 Orders. City Reply Ltr. at 6–7.
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address found wrongs, particularly as it has no discernible end point or standards to
measure success.”13
Putting aside that the City made no convincing showing of a
likelihood of success on appeal, the City’s final point regarding the allegedly
inappropriate injunctive relief is particularly troubling. The reason the relief is not
yet “clear,” that no end point is yet “discernible” and that “standards” have not yet
been determined is because the remedial phase of the case is ongoing and no final
order has yet issued. Plaintiffs identify this as a problem of “ripeness,” “nonfinality,” “non-appealability,” and lack of appellate jurisdiction.14 Regardless of
the legal basket in which the argument is placed, the result is the same. It takes
time to fashion appropriate remedies. While the Court used the term “immediate”
relief, this merely prioritized relief that should be implemented at the earliest
practicable time,15 as opposed to longer-range relief, which will not be
implemented until after the completion of the Joint Remedial Process. The
Remedies Opinion outlined the relief to be imposed in Floyd and — with more
specificity — in Ligon. However, implementing remedies is a process — and a
process that is still in its earliest stages. It is unlikely that any orders will issue for
13
City Stay Ltr. at 2.
14
See Floyd Pl. Opp. Ltr. at 2.
15
See Remedies Opinion, 2013 WL 4046217, at *5 (stating that the
“Immediate Reforms” “will be developed and submitted to the Court as soon as
practicable, and implemented when they are approved”).
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several months. The only action required of the City to date is attendance at
meetings with the Monitor.
C.
Irreparable Harm
1.
The City’s Arguments
The City argues that irreparable harm is “imminent” for a number of
reasons. First, the City worries that communicating a summary of the Liability
Opinion (through a FINEST message to all officers) will cause confusion if this
Court’s interpretation of the law is overturned. Similarly, any retraining of officers
on the legal aspects of stop and frisk, and then any changes in the practices of
monitoring, supervision, and discipline that will implement that retraining, will
also result in confusion should the Court’s orders be overturned on appeal.
Second, the City argues that irreparable harm will result from the
body-worn camera pilot project. Specifically, the City argues that this pilot project
will cause significant harm “in terms of time, resources and possible impingement
on privacy rights of the public.”16
Third, the City argues that this Court’s orders violate principles of
federalism, resulting in “constitutional harm which is always irreparable.”17 The
City claims that the constitutional harm arises from an “unjustified incursion into
16
City Stay Ltr. at 2.
17
Id.
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the municipality’s authority to police its citizens.”18
2.
The Response
The City’s first argument is circular. The Court’s orders simply
require that the NYPD conform its policies and practices to well-established
constitutional requirements. The City’s argument here is merely a restatement of
its argument regarding the likelihood of success on the merits. Because it believes
the Court’s decisions are based on an erroneous view of the law — despite
repeated citations to Supreme Court and Second Circuit controlling law — it also
believes that irreparable harm will result from basing any relief on those decisions.
Thus, the City’s argument conflates the first two factors and fails to prove either
one.
With respect to the pilot project on body-warn cameras, it is
undisputed that the project will require the expenditure of time and resources, but it
is also clear that the Monitor will oversee the project to ensure that the privacy
rights of both police officers and citizens are carefully protected. The purpose of
the experiment is to ensure that both police and citizens benefit from the recording
of stop and frisk encounters — which will provide a contemporaneous and
presumptively incontestable record of what occurred during the encounter. Again,
it does not appear that any irreparable harm will result from instituting a pilot
18
Id.
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project that will be carefully developed prior to implementation and that has been
used by other police departments with apparent success.
The City’s federalism argument is equally flawed. The City has the
obligation and the right to police its citizens — but it must do so in compliance
with the dictates of the United States Constitution.19 The Court’s August 12
Orders require that all stops be based upon an objectively reasonable suspicion that
a crime has been, is being, or will be committed,20 and that all frisks be based on an
objectively reasonable suspicion “that the person stopped is armed and
dangerous.’”21 Requiring the City to follow these principles cannot as a matter of
law improperly intrude on the City’s authority to police its citizens.22
In sum, the City has failed to show that it will be irreparably harmed
19
See Sibron v. New York, 392 U.S. 40, 61 (1968) (holding that New
York “may not . . . authorize police conduct which trenches upon Fourth
Amendment rights”).
20
See generally Terry v. Ohio, 392 U.S. 1 (1968).
21
United States v. Lopez, 321 Fed. App’x 65, 67 (2d Cir. 2009) (quoting
Arizona v. Johnson, 555 U.S. 323, 326–27 (2009)).
22
Federal courts have a duty to remedy constitutional violations, even
where the relief ordered involves municipal institutions. See Brown v. Plata, 131
S. Ct. 1910, 1928–29 (2009) (“Courts may not allow constitutional violations to
continue simply because a remedy would involve intrusion into the realm of prison
administration.”); Allee v. Medrano, 416 U.S. 802, 815 (1974) (“Where, as here,
there is a persistent pattern of police misconduct, injunctive relief is appropriate.”);
Association of Surrogates & Supreme Court Reporters Within City of N.Y. v. State
of N.Y., 966 F.2d 75, 79, opinion modified on reh’g, 969 F.2d 1416 (2d Cir. 1992)
(“[S]tate budgetary processes may not trump court-ordered measures necessary to
undo a federal constitutional violation[.]”).
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absent the imposition of a stay.
D.
Harm to Plaintiffs If a Stay Is Issued
It is well-established that a violation of one’s constitutional rights
constitutes irreparable harm.23 A stay of this Court’s orders would encourage the
NYPD to return to its former practice of conducting thousands upon thousands of
improper stops — including those based merely on a person entering or exiting a
building in which he or she resides. The recent reduction in the number of stops
appears to have been a positive step toward remedying an improper practice
without sacrificing the security of the community.24 Thus, in weighing the
equities, the danger of granting a stay far outweighs any possible benefit of
granting one.
E.
The Public Interest
23
See, e.g., State of Conn. Dep’t of Envtl. Prot. v. Occupational Safety
&Health Admin., 356 F.3d 226, 231 (2d Cir. 2004). The City suggests that any
future violations of constitutional rights can be remedied by individual actions for
damages, see City Stay Ltr. at 3, but I have already noted that such suits are
“particularly ineffective as a remedy . . . 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.” Remedies Opinion, 2013 WL
4046217, at *3 n.21.
24
Compare City Stay Ltr. at 3 (noting that stops are down by more than
50% in the second quarter of 2013 compared to the second quarter of 2012), with
Office of the Mayor of New York City, Weekly Update on Murders and Shootings
in New York City (Aug. 27, 2013), Exhibit A to Ligon Pl. Opp. Ltr. (noting that
the murder rate as of August 2013 had declined by 27% as compared to the same
point in 2012 and that the number of murders committed with firearms had
decreased by 30%).
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The City’s final argument is that the public interest favors a stay. The
City dramatically declares that if this Court’s orders are not stayed, the “longstanding record of crime reduction in this city” will be reversed.25 The City goes
on to say that “[i]f officers are required to be trained on erroneous principles of
Fourth and Fourteenth Amendment law, the enforcement action that can no longer
take place will certainly jeopardize potential crime victims.”26 Finally, the City
states that public safety will suffer if police resources are spent on retraining and
body-worn camera logistics instead of actual policing.27
The City offers no evidence to support the argument that the stop and
frisk practices found unconstitutional in this Court’s opinions are necessary to
crime reduction. Indeed, the evidence cited by the City directly contradicts this
argument. The City notes that the number of stops in the second quarter of 2013 is
half what it was in the second quarter of 2012.28 Despite the precipitous decline in
the number of stops, the crime rate has continued to fall (or has certainly not
increased).29 The City presents no evidence that effective policing and
25
City Stay Ltr. at 3.
26
Id.
27
See id.
28
See id.
29
See supra note 24 (citing crime statistics). See also Public Advocate
Ltr. at 6 (noting that while the use of stop and frisk has fallen more than 50% in
New York City since last year, the overall crime rate has declined 2.7% during the
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constitutional policing are incompatible.
There is little doubt that the decrease in stops from their zenith in
2011 to today is due, in part, to this Court’s orders over the past several years, as
well as the criticisms of the City’s stop and frisk practices from diverse sources
throughout the City. Ordering a stay now would send precisely the wrong signal.
It would essentially confirm that the past practices, resulting in hundreds of
thousands of stops — overwhelmingly of minorities — that resulted in little or no
enforcement action or seizure of contraband were justified and based on
constitutional police practices. It would also send the message that reducing the
number of stops is somehow dangerous to the residents of this City. Because
neither proposition is accurate, the granting of a stay is not in the public interest.
By contrast, allowing a process of consultation with all stakeholders, and
recommendations for measured reform, is in the public interest.
A number of elected City officials reached the same conclusion. They
submitted statements opposing the City’s request for a stay. Their statements
contain frequent invocations of the public interest. For example, City Council
Speaker Christine Quinn stated that she opposes the City’s request for a stay
because the joint remedial process is integral to repairing the
damage in community relations caused by the current stop and
frisk policies and to meaningfully move forward towards
achieving reforms that balance the need for effective policing
same time period, including a 30% decline in murders).
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policies with protections for the constitutional rights of every New
Yorker, and, in particular, New York City’s minority residents.
. . . [T]he joint remedial process will facilitate a much-needed
dialogue between the NYPD and the community. . . . [T]he public
has a strong interest in beginning the remedial process
immediately and ending the practice of unconstitutional stops. . . .
[I]t is a delay in implementing important and necessary reforms
. . . that would cause irreparable harm to the City and its
residents.30
Similarly, Public Advocate Bill de Blasio stated:
A stay of the Remedies Order will result in irreparable harm to the
citizenry of New York by allowing the unconstitutional stop and
frisk violations of untold numbers of people to continue,
especially and disproportionately in communities of color. . . . It
is the irreparable harm to the constitutional rights of thousands of
New Yorkers should the Remedies Order not be implemented that
weighs decisively against granting a stay. . . . The violation of an
individual’s civil liberties and constitutional rights is per se
irreparable harm that cannot justify staying an injunction crafted
to cease and remedy the violation. . . . The City’s continued
stonewalling harms New York, and a stay would reward such
obstinance. . . . It is well-past time for the City to cease the
meritless scare tactic of contending that conforming the use of
stop and frisk to constitutional standards will increase crime or
make the public unsafe. There is simply no proof of the divisive
proposition that the District Court Orders will harm the public.31
City Council Member Helen Foster wrote:
The stay is not in the public interest. Rather, starting the reform
process through a dialogue between stakeholders and the NYPD
will immediately pave the way for meaningful changes to the
NYPD’s stop and frisk policies. Such a dialogue will also ease
30
Quinn Decl. ¶¶ 7–10.
31
Public Advocate Ltr. at 1, 4, 5, 8.
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tensions between the community and the NYPD . . . .32
Likewise, City Council Member Robert Jackson, the co-chair of the Council’s
Black, Latino and Asian Caucus, wrote:
The [Caucus] believes that this court-ordered dialogue will finally
force the NYPD to meaningfully engage with communities of
color and to confront the reality that current stop and frisk policies
reinforce negative racial stereotypes and engender a distrust of the
police. . . . The public has a strong interest in beginning the
remedial process immediately and ending the practice of
unconstitutional stops, with the dual goals of securing the liberties
guaranteed by the Constitution, as well as fostering the kind of
community trust in the NYPD that can ultimately contribute to its
efforts to reduce crime.33
The submissions of these City officials are entitled to significant weight in
determining where the public interest lies. In short, adapting the words of Judge
Susie Morgan of the United States District Court of the Eastern District of
Louisiana, the “residents of [New York] will suffer substantial harm to their
interests in having a constitutional police force if the Court grants the City’s
motion [for a stay].”34
III.
CONCLUSION
For the reasons set forth above, the City’s request for a stay of this
Court’s August 12 Orders is DENIED.
32
Foster Decl. ¶ 12.
33
Jackson Decl. ¶¶ 10, 13.
34
United States v. City of New Orleans, No. 12 Civ. 1924, 2013 WL
492362, at *4 (E.D. La. Feb. 8, 2013).
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Dated:
September 17,2013
New York, New York
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- Appearances For Floyd Plaintiffs:
For Ligon Plaintiffs:
Jonathan C. Moore, Esq.
Jenn Rolnick Borchetta, Esq.
Beldock Levine & Hoffman LLP
99 Park Avenue, Suite 1600
New York, NY 10016
(212) 490-0900
Alexis Karteron, Esq.
Christopher Dunn, Esq.
Daniel Mullkoff, Esq.
NY Civil Liberties Union Foundation
125 Broad Street, 19th floor
New York, NY 10004
(212) 607-3300
Darius Charney, Esq.
Sunita Patel, Esq.
Chauniqua Young, Esq.
Baher Azmy, Esq.
Center for Constitutional Rights
666 Broadway, 7th Floor
New York, NY 10012
(212) 614-6439
Eric Hellerman, Esq.
Kasey L. Martini, Esq.
Bruce Corey, Esq.
Covington & Burling LLP
620 Eighth Avenue
New York, NY 10018
(212) 841-1000
Mariana Kovel, Esq.
Scott Levy, Esq.
The Bronx Defenders
860 Courtlandt Avenue
Bronx, NY 10451
(718) 508-3421
Juan Cartagena, Esq.
Foster Maer, Esq.
Roberto Concepcion, Jr., Esq.
LatinoJustice PRLDEF
99 Hudson Street, 14th Floor
New York, NY 10013
(212) 219-3360
J. McGregor Smyth, Jr., Esq.
NY Lawyers for the Public Interest
151 West 30th Street, 11th Floor
New York, NY 10001
(212) 244-4664
John A. Nathanson, Esq.
Jeffrey Resetarits, Esq.
Michael Grunfeld, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, NY 10022
(212) 848-5222
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For Floyd and Ligon Defendants:
Linda Donahue
Heidi Grossman
Assistants Corporation Counsel
Special Federal Litigation Division
New York City Law Department
100 Church Street
New York, NY 10007
(212) 788-1300
For Amicus Curiae New York City
Public Advocate Bill de Blasio:
Steven R. Newmark
General Counsel
Office of the Public Advocate
One Centre Street
New York, NY 10007
(212) 669-7200
John Siegal, Esq.
Fernando A. Bohorquez, Jr., Esq.
Jacqlyn R. Rovine, Esq.
Baker & Hostetler LLP
45 Rockefeller Plaza
New York, NY 10111
(212) 589-4245
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