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

Filing 78

OPINION AND ORDER re: 31 FIRST MOTION for Summary Judgment on plaintiff's claims for injunctive relief, filed by The City of New York. For the reasons set forth herein, Defendants' motion for summary judgment is denied in its ent irety. The Clerk of the Court is directed to close this motion [Docket No. 31]. A conference is scheduled for August 9, 2011 at 5:00 PM. (Status Conference set for 8/9/2011 at 05:00 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 7/5/2011) (ab)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------)(
KELTON DAVIS, WILLIAM TURNER,
ALTAGRACIA HERNANDEZ, EDWIN
LARREGUI, ROMAN JACKSON,
KRISTIN JOHNSON, ELEANOR BRITT,
ANTHONY ANDERSON, LASHAUN
SMITH, SHAWNE JONES, HECTOR
SUAREZ, ADAM COOPER, ANDREW
WASHINGTON, P.L. BY HIS PARENT
LISA PIGGOTT, DAVID WILSON, AND
GENEVA WILSON, individually and on
behalf of a class of all others similarly
situated,

OPINION AND ORDER
10 Civ. 699 (SAS)

Plaintiffs,
- againstTHE CITY OF NEW YORK and NEW
YORK CITY HOUSING AUTHORITY,
Defendants.

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

INTRODUCTION
Plaintiffs bring this putaive class action against the City of New York

(the "City") and the New York City Housing Authority ("NYCHA") (collectively,
"Defendants"), alleging a pattern and practice of unlawful stops, seizures, and
arrests for trespass in NYCHA buildings in violation of sections 1983 and 1981 of
title forty-two of the United States Code, the Fourth and Fourteenth Amendments
1

to the United States Constitution, Title VI of the Civil Rights Act of 1964,1 Title
VIII of the Civil Rights Act of 1968 (“Fair Housing Act”),2 the United States
Housing Act,3 the Constitution and laws of the State of New York, and the New
York City Human Rights Law (“NYCHRL”).4 Plaintiffs seek equitable relief in
the form of (1) a declaration that Defendants’ acts, practices, policies, and
omissions in connection with patrol and arrest activities on NYCHA property are
unlawful, and (2) an injunction against their continued application.5
The City now moves for summary judgment on all of Plaintiffs’
claims for equitable relief, asserting that it has taken actions since the
commencement of litigation to address Plaintiffs’ allegations and that these actions
have rendered Plaintiffs’ claims moot. For the reasons set forth below, the City’s
motion is denied in its entirety.
II.

BACKGROUND
A.

Plaintiffs’ Allegations

The New York City Police Department (“NYPD”) is responsible for
1

See 42 U.S.C. § 2000(d).

2

See id. § 3601, et seq.

3

See id. § 1437, et seq.

4

See N.Y.C. Admin. Code § 8-101, et seq.

5

See Complaint (“Compl.”) ¶ 53.
2

patrolling public housing facilities operated by NYCHA, with the stated purpose of
preventing crime and enforcing NYCHA rules and regulations.6 The inspection of
the interior of a NYCHA building is referred to as a “vertical patrol.”7 Plaintiffs
commenced the instant action on January 28, 2010, alleging that Defendants,
operating through and in conjunction with the NYPD, “have implemented and
continue to conduct, enforce and sanction an unlawful vertical patrol and trespass
arrest policy which has resulted in a pattern and practice of illegal stops, seizures,
questioning, searches, and false arrests of residents of, and authorized visitors to,
NYCHA residences.”8
Plaintiffs contend that the NYPD improperly utilizes “checkpoints” on
NYCHA property where “officers indiscriminately stop and question every person
they observe, without objective individualized suspicion of a crime, and unlawfully
arrest individuals for trespass without probable cause.”9 Additionally, Plaintiffs
assert that the City has “failed to supervise and discipline officers” who are

6

See Defendants’ Statement of Undisputed Facts Pursuant to Local
Rule 56.1 (“Def. 56.1”) ¶ 1; Plaintiffs’ Reply Statement of Undisputed Facts
Pursuant to Local Rule 56.1 (“Pl. 56.1”) ¶ 1.
7

Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5.

8

Compl. ¶ 2.

9

Id. ¶ 3.
3

involved in these incidents, does not monitor these incidents, and has not
“instituted any follow up procedure or disciplinary action when charges are
dismissed or where it is otherwise established that an individual was arrested
without probable cause.”10
B.

Developments Since the Commencement of the Action
1.

Changes to NYPD Policy

At the time this suit was instituted, the NYPD policy at issue was
reflected, in part, in section 212-60 of the NYPD Patrol Guide (“P.G. 212-60”),
entitled “Interior Vertical Patrol of Housing Authority Buildings.”11 However,
changes to the policy were already being contemplated: in the summer of 2009,
against the backdrop of complaints by the Civilian Complaint Review Board
(“CCRB”), NYCHA representatives, and tenant leaders concerning the legality of
stops and arrests in NYCHA buildings, the NYPD leadership decided to revise
P.G. 212-60 in order to “provid[e] additional guidance to police officers patrolling
NYCHA properties.”12

10

Id. ¶ 147.

11

Id. ¶ 3. Despite its title, P.G. 212-60 is not restricted to vertical
patrols and discusses overall NYPD responsibilities throughout NYCHA property.
See Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8.
12

Def. 56.1 ¶ 17; Pl. 56.1 ¶ 17.
4

As part of the revision process, the NYPD held a meeting on October
15, 2009 with high-ranking NYCHA personnel, including NYCHA Chairman John
B. Rhea, and the Citywide Council of Presidents (“CCOP”), NYCHA’s elected
tenant association.13 The attendees agreed to establish a permanent Safety and
Security Task Force (“SSTF”), co-chaired by Chairman Rhea and the President of
the CCOP, to address NYPD and NYCHA resident relations, security on NYCHA
property, and other matters of community concern.14
The first SSTF meeting was held on December 10, 2009, with
meetings occurring at least once a month thereafter.15 Additionally, at its first
meeting, SSTF formed five subcommittees to address specific designated topics;
these subcommittees each hold regular additional meetings of their own.16 The two
subcommittees most pertinent to NYPD patrols of NYCHA property are the
NYPD’s Policies and Relationships with Residents and the NYCHA Rules and
Regulations subcommittees — together, these subcommittees address which
NYCHA rules need to be implemented and enforced.17 Through the
13

See Def. 56.1 ¶¶ 13-17; Pl. 56.1 ¶¶ 13-17.

14

See Def. 56.1 ¶¶ 24-25, 37; Pl. 56.1 ¶¶ 24-25, 37.

15

See Def. 56.1 ¶¶ 26, 33; Pl. 56.1 ¶¶ 26, 33.

16

See Def. 56.1 ¶¶ 29, 30, 34; Pl. 56.1 ¶¶ 29, 30, 34.

17

See Def. 56.1 ¶¶ 30, 31; Pl. 56.1 ¶¶ 30, 31.
5

subcommittees and SSTF, the NYPD, NYCHA, and NYCHA residents
discussed the proposed revisions to NYPD’s vertical patrol policy and reviewed
the material that was ultimately incorporated into the final policy.18
On June 8, 2010, P.G. 212-60 was replaced by Interim Order Number
23 (“I.O. 23”).19 The express purpose of I.O. 23 is “[t]o assist the Housing
Authority in enforcing its rules, limiting criminal activity, providing a safe and
secure environment and ensuring the habitability of its residential buildings for
Housing Authority residents and their guests by performing interior vertical
patrols.”20 It seeks to “provide uniformed members of the service additional
guidance concerning situations occurring within Housing Authority facilities [and
to] illustrate[] appropriate action to be taken with consideration afforded to the
uniqueness and totality of the circumstances surrounding each encounter.”21
Specifically, I.O. 23 discusses when “a uniformed member of the service may
approach and question persons who may be violating Housing Authority rules and
regulations, including potentially unauthorized persons found in Housing

18

See Def. 56.1 ¶¶ 40, 43; Pl. 56.1 ¶¶ 40, 43.

19

See Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.

20

Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9.

21

Def. 56.1 ¶ 5; Pl. 56.1 ¶ 5.
6

Authority buildings.”22
The NYPD developed a ninety-minute training curriculum for I.O. 23
(“I.O. Training”), with input allegedly incorporated from the NYPD Policies and
Relationships with Residents Subcommittee.23 The training covers: (1) “the
purpose and rationale for conducting interior vertical patrols within Housing
Authority property,” (2) “the importance of proper interactions between police
officer and Housing Authority residents,” and (3) “the revision to Patrol Guide
section 212-60, ‘Interior Vertical Patrol of Housing Authority Buildings,’” with
changes between P.G. 212-60 and its successor underlined.24
The I.O. Training was implemented in early fall 2010.25 According to
Defendants, the training is to be rolled out in two stages: Phase I training includes
“all uniform members of the Housing Bureau of all rank, including executives, as
well as members of the Patrol Services Bureau assigned to precinct housing
teams;” while Phase II training includes “police officers, sergeants, and lieutenants

22

Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.

23

See Def. 56.1 ¶¶ 45, 51; Pl. 56.1 ¶¶ 45, 51.

24

Def. 56.1 ¶ 46; Pl. 56.1 ¶ 46.

25

See Def. 56.1 ¶ 70; Pl. 56.1 ¶ 70.
7

assigned to the Patrol Services Bureau and not within a precinct housing team.”26
Defendants report that about ninety percent of Phase I has been completed, with
over eighteen hundred officers trained, with the remaining ten percent to be trained
over the next few months.27 Phase II training has yet to begin, but Defendants
assert that it will be completed within the next twelve months and will occur at the
required annual training sessions for officers, sergeants and lieutenants.28 As a
result, those officers trained during Phase I are expected to be trained again as part
of Phase II.29 The NYPD intends to provide the training to recruits in the future, as
well as higher-level supervisors not currently captured in Phase I or Phase II.30
The total anticipated cost of the training is about $2.7 million dollars.31
III.

LEGAL STANDARD
A.

Summary Judgment

26

Def. 56.1 ¶ 53; Pl. 56.1 ¶ 53. According to Defendants, officers in
Phase II interact far less frequently, if at all, with individuals on NYCHA property.
See Def. 56.1 ¶ 58.
27

See Def. 56.1 ¶ 53. Plaintiffs assert that the relevant discovery has not
been provided, and they can neither admit nor deny statements pertaining to the
details of the I.O. Training. See Pl. 56.1 ¶ 53.
28

See Def. 56.1 ¶¶ 57, 61, 63.

29

See id. ¶ 64.

30

See id. ¶ 65.

31

See id. ¶ 68.
8

Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.”32 “An issue of fact is genuine if
‘the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’ A fact is material if it ‘might affect the outcome of the suit
under the governing law.’”33 “[T]he burden of demonstrating that no material fact
exists lies with the moving party . . . .”34 “When the burden of proof at trial would
fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a
lack of evidence . . . on an essential element of the nonmovant’s claim.”35 In turn,
to defeat a motion for summary judgment, the non-moving party must raise a

32

Fed. R. Civ. P. 56(c).

33

Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
34

Miner v. Clinton County, 541 F.3d 464, 471 (2d Cir. 2008). Accord
Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004).
35

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
Accord In re September 11 Litig., 500 F. Supp. 2d 356, 361 (S.D.N.Y. 2007)
(“Where the nonmoving party bears the burden of proof at trial, the burden on the
moving party may be discharged by showing – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s
case.”) (quotation marks and citations omitted).
9

genuine issue of material fact. To do so, the non-moving party must do more than
show that there is “‘some metaphysical doubt as to the material facts,’”36 and
“‘may not rely on conclusory allegations or unsubstantiated speculation.’”37
However, “‘all that is required [from the non-moving party] is that sufficient
evidence supporting the claimed factual dispute be shown to require a jury or judge
to resolve the parties’ differing versions of the truth at trial.’”38
“In ruling on a motion for summary judgment, a court must resolve all
ambiguities and draw all factual inferences in favor of the nonmoving party.”39
However, “[i]t is a settled rule that ‘[c]redibility assessments, choices between
conflicting versions of the events, and the weighing of evidence are matters for the
jury, not for the court on a motion for summary judgment.’”40 Summary judgment
is therefore “appropriate only if there is no genuine issue of material fact and the

36

Higazy v. Templeton, 505 F.3d 161, 169 (2d Cir. 2007) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
37

Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001)).
38

Kessler v. Westchester County Dep’t of Soc. Servs., 461 F.3d 199, 206
(2d Cir. 2006) (quoting Anderson, 477 U.S. at 248-49).
39

McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (citing
Anderson, 477 U.S. at 242, 255).
40

Id. (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997)).
10

moving party is entitled to judgment as a matter of law.”41
IV.

APPLICABLE LAW
“Mootness is a doctrinal restriction stemming from the Article III

requirement that federal courts decide only live cases or controversies; a case is
moot if the parties lack a legally cognizable interest in the outcome of the case.”42
As the Supreme Court has explained,
[t]he underlying concern [of the mootness doctrine] is
that, when the challenged conduct ceases such that there
is no reasonable expectation that the wrong will be
repeated, then it becomes impossible for the court to
grant any effectual relief whatever to [the] prevailing
party. In that case, any opinion as to the legality of the
challenged action would be advisory.43
Because mootness deprives a court of subject matter jurisdiction, it may be

41

Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009). Accord Sledge v.
Kooi, 564 F.3d 105, 108 (2d Cir. 2009).
42

In re Zarnel, 619 F.3d 156, 163 (2d Cir. 2010) (quotation marks and
citation omitted). Accord Arizonans for Official English v. Arizona, 520 U.S. 43,
68 n.22 (1997) (“Mootness has been described as the doctrine of standing set in a
time frame: The requisite personal interest that must exist at the commencement of
the litigation (standing) must continue throughout its existence (mootness).”
(quotation marks and citations omitted)).
43

City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000) (quotation marks
and citations omitted).
11

evaluated at all stages of the litigation.44
“A case becomes moot when interim relief or events have eradicated
the effects of the defendant’s act or omission, and there is no reasonable
expectation that the alleged violation will recur.”45 However, “[i]t is well settled
that “‘a defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.’”46 Otherwise,
“the courts would be compelled to leave ‘[t]he defendant . . . free to return to his
old ways.’”47 Accordingly, the standard “for determining whether a case has been
mooted by the defendant’s voluntary conduct is stringent,” and the party asserting
mootness bears the “heavy burden of persua[ding]” the court that the challenged

44

See Spencer v. Kemna, 523 U.S. 1, 7 (1998) (“This case-orcontroversy requirement subsists through all stages of federal judicial proceedings,
trial and appellate.” (citation omitted)).
45

Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 647 (2d Cir.
1998). Accord United States v. Concentrated Phosphate Export Assn., 393 U.S.
199, 203 (1968) (“A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.”).
46

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 189 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S.
283, 289 (1982)).
47

Id. (quoting City of Mesquite, 455 U.S. at 289 n.10).
12

conduct cannot reasonably be expected to start up again.”48 Ultimately, however,
the decision to dismiss a case on mootness grounds “lies within the sound
discretion of the district court, and a strong showing of abuse must be made to
reverse it.”49
IV.

DISCUSSION
Defendants argue that “Interim Order 23 and the NYCHA Patrol

Training have entirely eliminated the basis for [P]laintiffs’ Monell claim against
the City.”50 Defendants assert that I.O. 23 and the I.O. Training constitute
“comprehensive” reforms that exceed Plaintiffs’ constitutional demands for
declaratory and injunctive relief, even if they do not satisfy Plaintiffs’ “rather
extensive wish list of procedures and processes that they would like to see the
NYPD implement.”51 Moreover, Defendants argue that there is no reasonable
expectation that the NYPD will resume its allegedly unlawful practices, given the

48

Id. (quotation marks and citation omitted).

49

Harrison & Burrowes Bridge Constuctors, Inc. v. Cuomo
(“Harrison”), 981 F.2d 50, 59 (2d Cir. 1992) (quotation marks and citation
omitted).
50

Defendants’ Memorandum in Support of Its Motion for Summary
Judgment on Plaintiffs’ Claims for Declaratory and Injunctive Relief (“Def.
Mem.”) at 8.
51

Id.
13

resources it has committed to revising P.G. 212-60. Accordingly, Defendants
contend that they have met their burden of establishing that “(1) there is no
reasonable expectation that the alleged violation will recur, and (2) interim relief or
events have completely and irrevocably eradicated the effects of the alleged
violation.”52 I disagree.
A.

Reasonable Expectation of Recurrence

In order for the development and implementation of I.O. 23 and the
I.O. Training to moot the case, these events must make it “absolutely clear” that the
NYPD’s allegedly unlawful practices on NYCHA property could not reasonably be
expected to recur.53 Yet Plaintiffs assert that they cannot evaluate the status and
substance of I.O. 23 and the I.O. 23 Training, on the grounds that “the relevant
discovery has not been produced.”54 It appears that Plaintiffs have not yet had
sufficient opportunity to corroborate Defendants’ assertions that I.O. 23 and the
I.O. 23 Training are fully compliant with legal requirements. To the extent that
Plaintiffs have had access to the new policy and training materials, Plaintiffs
identify various deficiencies that, in their view, “both fail to remedy the pre52

Lamar Advertising of Penn. LLC v. Town of Orchard Park, 356 F.3d
365, 375 (2d Cir. 2004).
53

Concentrated Phosphate Export Assn., 393 U.S. at 203.

54

See generally Pl. 56.1.
14

existing inadequacies and create additional violations.”55 Defendants’ rebuttals
only highlight the existence of disputed issues of fact. Accordingly, the efficacy
of the new policy guide and training curriculum is, at this stage of the litigation,
either unknown or disputed.56 Under these circumstances, Defendants cannot meet
either the standard for mootness or summary judgment.
As a threshold matter, the parties do not even agree that the
challenged conduct has in fact ceased. Defendants argue that their representations
of voluntary cessation must be credited by virtue of their governmental status. Yet
while “[s]ome deference must be accorded to a state’s representations that certain
conduct has been discontinued,”57 Defendants are not entitled to a complete
exemption from their “formidable” burden of proof.58 As Plaintiffs point out,

55

Plaintiffs’ Memorandum in Opposition to Defendants’ Motion for
Summary Judgment on Their Claims for Declaratory and Injunctive Relief (“Pl.
Mem.”) at 4.
56

See Friends of the Earth, 528 U.S. at 167 (holding that claims by
environmental groups for alleged violations by the holder of a pollutant discharge
permit were not mooted where defendant had previously achieved substantial
compliance with its permit requirements and defendant closed the offending
facility following plaintiffs’ appellate victory, because the effect of these events
was a disputed fact question — particularly as defendant retained its permit and
could ostensibly reopen another offending facility).
57

Harrison, 981 F.2d at 59.

58

Friends of the Earth, 528 U.S. at 191.
15

Defendants have provided no “admissible evidence, statistics, or reports
demonstrating that the violations articulated in the Complaint have been resolved,”
let alone completely and irrevocably eradicated.59 Indeed, Defendants concede that
the implementation of the I.O. Training is incomplete, with ten percent of Phase I
remaining and Phase II yet to begin. By implication then, the practices associated
with P.G. 212-60 are still, in some measure, extant within the NYPD.
Even assuming that the challenged conduct has ceased, Plaintiffs have
no concrete assurances that Defendants will not resume their allegedly unlawful
arrest and trespass enforcement practices. As the Second Circuit has opined, the
“determination of whether there is a reasonable expectation that the wrong will be
repeated is not foreclosed by expressions of intention by [government] officials.”60
This is particularly so where, as here, Defendants have a history of similar
wrongful behavior;61 have not admitted to any constitutional or statutory violation;
59

Pl. Mem. at 4.

60

Armstrong v. Ward, 529 F.2d 1132, 1136 (2d Cir. 1976). Accord
Hilton v. Wright, 235 F.R.D. 40, 48 n.6 (N.D.N.Y. 2006) (rejecting state official’s
argument that his change in policy and unconditional statement that he will not
reinstitute the offending policy eliminates any reasonable expectation that the
policy wll be reinstated).
61

See Ahrens v. Bowen, 852 F.2d 49, 53 (2d Cir. 1988) (rejecting a
mootness claim by the Secretary of the Department of Health and Human Services
where, inter alia, the underlying third-party conduct giving rise to the suit could
reasonably be repeated and the Secretary could again attempt to preclude the suit
16

and have refused to enter into any kind of “binding, judicially enforceable
agreement.”62 While Defendants argue that it is highly improbable that they will
resume any alleged unlawful behavior in light of the resources they have
committed to the I.O. 23 transition, they have revealed only the projected $2.7
million cost of the training, rather than the amount spent to date. In effect, the
NYPD has modified certain internal documents that do not carry the weight of a
regulation or statute, and which do not bind future officials under a different
administration. In other words, Defendants are “free to return to [their] old
ways.”63 Granting summary judgment at this stage of the litigation would
foreclose any opportunity for judicial review precisely where it may be needed the
most — in the context of alleged continuing constitutional violations by the entities
entrusted with protecting the public interest.

by granting last-minute relief to plaintiffs). Accord Casale v. Kelly, 710 F. Supp.
2d 347, 350 (S.D.N.Y. 2010) (holding the City in civil contempt for its “long
history of . . . apathetic behavior” and “lack [of] resolve to end the illegal
enforcement [of unconstitutional loitering statutes] on its own,” despite the City’s
implementation of numerous anti-enforcement provisions and statistics showing
reduced enforcement, because “[n]early every measure that the City has undertaken
has been at the direction of the Court, the prodding of plaintiffs, and/or under the
threat of sanctions”).
62

Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556,
563 (2d Cir. 1991) (quotation marks and citation omitted).
63

City of Mesquite, 455 U.S. at 289 n.10.
17

B.

Revisions to the Patrol Guide Do Not Fully Address
Plaintiffs’ Monell Claims

Perhaps most fatal to Defendants’ mootness motion is the inescapable
fact that allegations pertaining to NYPD policy constitute only one aspect of
Plaintiffs’ claim. As Plaintiffs point out, “the Complaint never equates the
NYPD’s written vertical patrol policy with the City’s larger trespass enforcement
and arrest practices.”64 For example, Plaintiffs allege that the City does not
“monitor improper stops, seizures, and searches for trespass” and does not
supervise, discipline, or otherwise follow-up with officers who do not comport
with NYPD procedures.65 Any amendments to the NYPD’s patrol guide or officer
training would not address these issues. As a result, the City’s remedial measures
do not fully respond to Plaintiffs’ allegations of wrongdoing, and therefore cannot
reasonably ensure either that the conduct at issue will not recur in the future or that
its effects have been eradicated.
Notably, a Monell claim does not restrict municipal liability to official
policies that were adopted and promulgated by City officials, but encompasses
informal customs or “‘practices . . . so permanent and well settled as to constitute a

64

Pl. Mem. at 3.

65

Compl. ¶ 147.
18

custom or usage with the force of law.’”66 As the Supreme Court explained in
Monell,
Local governing bodies . . . can be sued directly under §
1983 for monetary, declaratory, or injunctive relief where
. . . the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated
by that body’s officers. . . . [They can also be sued for]
deprivations visited pursuant to governmental ‘custom’
even though such a custom has not received formal
approval through the body’s official decisionmaking
channels.67
In other words, even granting that I.O. 23 and the I.O. Training represent
comprehensive and adequate reforms of NYPD policy, Defendants cannot establish
that there is no contrary practice or custom for which Plaintiffs may be entitled to
equitable relief. The question of whether NYPD officers actually adhere to the
new policy articulated in I.O. 23 — and the extent to which the City may tacitly

66

Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978)
(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167-168 (1970)). Accord
Zherka v. DiFiore, 412 Fed. Appx. 345, 348 (2d Cir. 2011) (“[M]unicipalities are
‘persons’ that may be held liable if a plaintiff proves the municipality violated a
federally protected right through (1) municipal policy, (2) municipal custom or
practice, or (3) the decision of a municipal policymaker with final policymaking
authority.”) (quoting Monell, 436 U.S. at 694). Cf. Los Angeles County, Cal. v.
Humphries, 131 S. Ct. 447, 451 (2010) (“We conclude that Monell’s holding
applies to section 1983 claims against municipalities for prospective relief as well
as to claims for damages.”).
67

Monell, 436 U.S. at 690-91. Accord Humphries, 131 S. Ct. at 452.
19

endorse or tum a blind eye to widespread misconduct - is not answered by
reference to NYPD policy as written. Accordingly, revisions to the Patrol Guide,
without proof of a change in practice, are insufficient to remedy the entrenched
customs and practices underlying Plaintiffs' constitutional and statutory claims.

V.

CONCLUSION
For the reasons set forth above, Defendants' motion for summary

judgment is denied in its entirety. The Clerk of the Court is directed to close this
motion [Docket No. 31]. A conference is scheduled for August 9, 2011 at 5 p.m.

Dated:

New York, New York
July 5, 2011

20

– Appearances –
For Plaintiffs:
Johnathan Smith, Esq.
Johanna B. Steinberg, Esq.
NAACP Legal Defense & Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, New York 10013
[phone]
William Gibney, Esq.
Nancy Rosenbloom, Esq.
Legal Aid Society of New York
199 Water Street
New York, New York 10038
[phone]
Katharine E.G. Brooker, Esq.
Matthew J. Moses, Esq.
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
[phone]
For Defendant City of New York:
Tonya Jenerette
Morgan David Kunz
David M. Hazan
Bradford Collins Patrick
Assistant Corporation Counsel
New York City Law Department
100 Church Street
New York, New York 10007
[phone]

21

For Defendant NYCHA:
Steven Jay Rappaport, Esq.
New York City Housing Authority
250 Broadway, 9th Floor
New York, New York 10007
[phone]

22