Floyd v. City of New York

813 F.Supp.2d 417

David FLOYD, Lalit Clarkson, Deon Dennis, and David Ourlicht, on behalf of themselves and all others similarly situated, Plaintiffs,

v.The CITY OF NEW YORK, et al., Defendants.

No. 08 Civ. 1034(SAS).

United States District Court, S.D. New York.

Aug. 31, 2011.

Darius Charney, Esq., Sunita Patel, Esq., Taylor M. Hoffman, Esq., Covington & Burling LLP, Jonathan C. Moore, Esq., Rachel Kleinman, Esq., Beldock Levine & Hoffman LLP, New York, NY, for Plaintiffs.

Heidi Grossman, David M. Hazan, Linda Donahue, Judson Vickers, Assistant Corporation Counsel, New York City Law Department, New York, NY, for Defendants.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:I. INTRODUCTION

Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht bring this putative class action against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and unnamed New York City Police Officers (“Defendants”), alleging that defendants have implemented and sanctioned a policy, practice, and/or custom of unconstitutional stops and frisks by the New York Police Department (“NYPD”) on the basis of race and/or national origin, in violation of Section 1983 of title forty-two of the United States Code, the Fourth and Fourteenth Amendments to the United States Constitution, Title VI of the Civil Rights Act of 1964, ¹ and the Constitution and laws of the State of New York.² Plaintiffs seek equitable relief in the form of (1) a declaration that defendants' policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction enjoining defendants from continuing such policies, practices, and/or customs.³ Additionally, the named plaintiffs seek compensatory and punitive damages for themselves.⁴ Defendants now move for summary judgment on certain of the claims of plaintiffs Floyd and Ourlicht, as well as on the claims of all plaintiffs against the City of New York, Mayor Michael Bloomberg, and Commissioner Raymond Kelly.⁵

This case presents an issue of great public concern. Writ large, that issue is the disproportionate number of African–Americans and Latinos who become entangled in our criminal justice system, as compared to Caucasians. The specific claims raised in this case are narrower—that there is a widespread pattern and practice of suspicionless and race-based stops and frisks by the NYPD. Nonetheless, these claims are raised in the larger context of the historically racialized nature of criminal justice in this country, and the extensively documented racial disparities in the rates of stops, arrests, convictions, sentences, and executions that continue through the present day.

Relatedly, racial profiling—that is, stopping an individual on the basis of his race rather than on the basis of reasonable suspicion—has become a topic of significant debate over the past fifteen years. While it is generally accepted that racial profiling is wrong and prohibited by the United States Constitution, how to end the practice is a more difficult and delicate question.

Since the mid–1990s, New York City has experienced a precipitous decline in crime rates.⁶ The reasons for this decline are not clear. Some claim that it results from innovative policing policies influenced by the “broken windows” theory of crime control, beginning under Mayor Rudolph Giuliani and Police Commissioner William Bratton, and continuing under current Mayor Michael Bloomberg and Police Commissioner Raymond Kelly.⁷ Others argue that the drop in crime must be due to economic or other factors, as crime rates declined in cities nationwide during the same period, irrespective of variations in policing policies.⁸

In either case, it is clear that the policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching “almost 600,000 a year.” ⁹ There is “a disturbingly large racial disparity in who is victimized by these practices,” ¹⁰ although the precise extent of the disparity and its causes are matters of dispute. While the City credits its “pre-emptive” policing, and accompanying high stop rates, for the decline in crime,¹¹ plaintiffs argue that African–American and Latino men have been the targets and borne the brunt of these policies, as hundreds of thousands of law-abiding citizens have been stopped, questioned, and frisked based, in large part, on their race.¹²

This is not the first time the City of New York has been accused of racial profiling. In particular, a previous lawsuit before this Court, Daniels v. City of New York,¹³ was resolved through a settlement agreement requiring the City to adopt several remedial measures intended to reduce racial disparities in stops and frisks. Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy; revised the UF250 form, otherwise known as a “Stop, Question and Frisk Report Worksheet,” ¹⁴ so that stops would be more accurately documented; and instituted regular audits of the UF250 forms, among other measures.¹⁵

Thus, clearly this is not a case where the City has failed to take any action to address the documented disparities. Yet plaintiffs contend that the City's actions have been woefully inadequate—in fact, so inadequate that the City has constructively acquiesced in a widespread pattern of unconstitutional stops and frisks, and exhibited deliberate indifference to the need for sufficient training, supervision, monitoring, and discipline to avert such constitutional violations, thereby warranting the imposition of municipal liability. ¹⁶ Notably, this is not a question of municipal liability for an unusual yet foreseeable violation—an accident waiting to happen-but rather for a situation that thousands of NYPD patrol officers confront on a daily basis: deciding whether they are justified in stopping a resident based on factors giving rise to reasonable suspicion.

As the Supreme Court recognized in Terry v. Ohio, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” ¹⁷ Being stopped and frisked is a sufficiently unwelcome intrusion that the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases in which the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City's crime rate. It is deeply troubling if thousands of New Yorkers are being stopped each year without reasonable suspicion, and even more troubling if African–American and Latino New Yorkers are being singled out for such treatment. It is against this backdrop that I consider defendants' instant motion for summary judgment. For the reasons set forth below, defendants' motion is granted in part and denied in part.

II. BACKGROUND

Each of the named plaintiffs alleges that he was stopped, questioned, and frisked by the NYPD without reasonable suspicion on one or more occasions. In the instant motion, defendants challenge plaintiffs' claims with respect to two of those specific incidents—Floyd's February 2008 stop and Ourlicht's June 2008 stop.¹⁸ In Floyd's case, the particular NYPD officers have been identified, while in Ourlicht's case, the officers have not been identified and defendants contest whether Ourlicht was in fact stopped by NYPD officers. ¹⁹

In addition to their claims based on particular incidents, plaintiffs, individually and on behalf of a putative class, allege that the NYPD has engaged in an unconstitutional pattern and practice of using race and/or national origin rather than reasonable suspicion as the determinative factor in deciding whether to stop and frisk individuals, in violation of the Fourth Amendment.²⁰ Plaintiffs further allege that this pattern and practice, which principally victimizes African–American and Latino males, violates the Equal Protection Clause of the Fourteenth Amendment.²¹

Plaintiffs contend that these constitutional violations are “the result of, and are directly and proximately caused by, policies, practices and/or customs devised, implemented and enforced by the City, Commissioner Kelly and [Mayor] Bloomberg.” ²² Specifically, they allege that the City, Commissioner Kelly and Mayor Bloomberg have acted with deliberate indifference by

(a) failing to properly screen, train, and supervise NYPD officers, (b) inadequately monitoring NYPD officers and their stop and frisk practices, (c) failing to sufficiently discipline NYPD officers who engage in constitutional abuses, and (d) encouraging, sanctioning, and failing to rectify the NYPD's unconstitutional practices.²³

A. The February 2008 Incident Alleged by Floyd

Floyd, an African–American man, testified that on February 27, 2008, he was walking on the path adjacent to the house in which he lived at 1359 Beach Avenue in the Bronx, New York.²⁴ He encountered the basement tenant, also an African–American man, who indicated that he was locked out of his apartment and asked for help.²⁵ Floyd, whose godmother owned the building, went upstairs to retrieve the key.²⁶ Unsure of the correct key for the basement lock, he retrieved seven to ten keys, some on chains and some loose, which he took back outside with him.²⁷ Floyd and the tenant went to the basement apartment door and started trying the various keys. ²⁸ After trying five or six keys, they found the correct one. ²⁹

However, before they could open the door, three NYPD officers approached them—Officer Joyce, Officer Hernandez, and Sergeant Kelly.³⁰ The officers asked the two men what they were doing, told them to stop, and proceeded to frisk them.³¹ The officer who frisked Floyd reached into both of his front pockets, which contained a phone, his keys, and some change. ³² The officers then turned the...