Floyd v. City of N.Y.

959 F.Supp.2d 540

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

v.The CITY OF NEW YORK, Defendant.

No. 08 Civ. 1034(SAS).

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

Aug. 12, 2013.

Darius Charney, Esq., Sunita Patel, Esq., Baher Azmy, Esq., Rachel Lopez, Esq., Ghita Schwarz, Esq., Chauniqua Young, Esq., Philip I. Irwin, Esq., Eric Hellerman, Esq., Gretchen Hoff Varner, Esq., Kasey Martini, Esq., Bruce Corey, Jr., Esq., Covington & Burling LLP, Jonathan Moore, Esq., Jenn Rolnick Borchetta, Esq., Beldock Levine & Hoffman LLP, New York, NY, for Plaintiffs.

Heidi Grossman, Brenda Cooke, Linda Donahue, Morgan Kunz, Joseph Marutollo, Suzanna Publicker, Lisa Richardson, Judson Vickers, Assistant Corporation Counsel, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I.

INTRODUCTION

556

II.

EXECUTIVE SUMMARY

557

III.

APPLICABLE LAW

563

A.

Monell Liability

563

B.

Stops, Frisks, and Searches Under the Fourth Amendment

565

1.

The Definition of a Stop

565

2.

Stops Must Be Based on Reasonable Suspicion

567

3.

Protective Frisks for Weapons

568

4.

Searching into Clothing for Weapons

569

5.

De Bour and the Fourth Amendment

569

C.

Equal Protection Under the Fourteenth Amendment

570

IV.

FINDINGS OF FACT

572

A.

Overview of Uncontested Statistics

572

B.

Expert Testimony

576

1.

The Liability Experts

576

2.

The Fourth Amendment Claim

578

a.

Overview of Key Issues

578

b.

Dr. Fagan's Method of Classifying Stops

579

c.

Unreliable Stop Factors

580

d.

Quantifying the Magnitude of Apparently Unjustified Stops Based on UF–250 Stop Factors

582

3.

The Fourteenth Amendment Claim

583

a.

Overview of Key Issues

583

b.

Competing Benchmarks

583

c.

Findings Based on Dr. Fagan's Analyses

588

C.

Institutional Evidence of Deliberate Indifference

589

1.

Early Notice: the 1999 AG Report

590

2.

Pressure to Increase Stops

591

a.

Compstat: Pressure on Commanders

592

b.

Evidence of Pressure in Survey Data

594

c.

Further Evidence of Pressure on Officers

596

i.

Pressure Before the 2010 Quota Law

596

ii.

Pressure After 2010 Quota Law

600

d.

Conclusion

602

3.

Targeting “the Right People”

602

4.

Inadequate Monitoring and Supervision

607

a.

Inadequate Documentation and Document Review

607

b.

Inadequate Supervision

610

5.

Partially Inadequate Training

613

6.

Inadequate Discipline

617

7.

Ongoing Notice of Constitutional Violations

620

D.

Individual Stops

624

1.

Unconstitutional Stop and Frisk

625

a.

Leroy Downs

625

i.

Findings of Fact

625

ii.

Mixed Findings of Fact and Law

627

b.

Devin Almonor

628

i.

Findings of Fact

628

ii.

Mixed Findings of Fact and Law

630

c.

Cornelio McDonald

630

i.

Findings of Fact

630

ii.

Mixed Findings of Fact and Law

632

d.

Nicholas Peart—August 5, 2006

633

i.

Findings of Fact

633

ii.

Mixed Findings of Fact and Law

635

e.

Nicholas Peart—April 13, 2011 Stop

635

i.

Findings of Fact

636

ii.

Mixed Findings of Fact and Law

636

f.

Ian Provost

637

i.

Findings of Fact

637

ii.

Mixed Findings of Fact and Law

639

g.

David Ourlicht—January 30, 2008 Stop

640

i.

Findings of Fact

640

ii.

Mixed Findings of Fact and Law

641

h.

Clive Lino—February 5, 2008 Stop

642

i.

Findings of Fact

642

ii.

Mixed Findings of Fact and Law

644

i.

Lalit Clarkson

645

i.

Findings of Fact

645

ii.

Mixed Findings of Fact and Law

646

2.

Unconstitutional Frisk Only

646

a.

Dominique Sindayiganza

646

i.

Findings of Fact

646

ii.

Mixed Findings of Law and Fact

648

b.

David Floyd—April 20, 2007 Stop

649

i.

Findings of Fact

649

ii.

Mixed Finding of Fact and Law

650

c.

David Floyd—February 27, 2008 Stop

650

i.

Findings of Fact

650

ii.

Mixed Findings of Fact and Law

652

d.

Clive Lino—February 24, 2011 Stop

652

i.

Findings of Fact

652

ii.

Mixed Findings of Fact and Law

654

e.

Deon Dennis

655

i.

Findings of Fact

655

ii.

Mixed Findings of Fact and Law

656

3.

Failure of Proof

656

a.

John Doe Stops of Nicholas Peart in Spring 2008 and February 2010 and David Ourlicht in February and June 2008

656

b.

Kristianna Acevedo Stop

657

c.

Clive Lino—August 3, 2008

658

V.

CONCLUSIONS OF LAW

658

A.

The City Is Liable for Violations of Plaintiffs' Fourth Amendment Rights

658

1.

Deliberate Indifference

658

2.

Widespread Practice

659

B.

The City Is Liable for Violations of Plaintiffs' Fourteenth Amendment Rights

660

1.

Policy of Indirect Racial Profiling

660

a.

Intentionally Discriminatory Application of a Facially

Neutral Policy

661

b.

Express Classification

663

c.

Conclusion

664

2.

Deliberate Indifference

665

VI.

CONCLUSION

667

Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

— Railway Express Agency v. People of State of New York, 336 U.S. 106, 112–13, 69 S.Ct. 463, 93 L.Ed. 533 (1949) (Jackson, J., concurring)

It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’

— Terry v. Ohio, 392 U.S. 1, 16–17, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.

— United States v. Broomfield, 417 F.3d 654, 655 (7th Cir.2005) (Posner, J.)

I. INTRODUCTION

New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist—indeed the Constitution mandates it.

This case is about the tension between liberty and public safety in the use of a proactive policing tool called “stop and frisk.” The New York City Police Department (“NYPD”) made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person's life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.

Plaintiffs—blacks and Hispanics who were stopped—argue that the NYPD's use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on “reasonable suspicion” as defined by the Supreme Court of the United States; ¹ and second, that stops be conducted in a racially neutral manner.²

I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court's mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.” ³

This case is also not primarily about the nineteen individual stops that were the subject of testimony at trial.⁴ Rather, this case is about whether the City has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.⁵

The Supreme Court has recognized that “the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security.” ⁶ In light of the very active and public debate on the issues addressed in this Opinion—and the passionate positions taken by both sides—it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.

Plaintiffs requested that this case be tried to the Court without a jury. Because plaintiffs seek only injunctive relief, not damages, the City had no right to demand a jury. As a result, I must both find the facts and articulate the governing law. I have endeavored to exercise my judgment faithfully and impartially in making my findings of fact and conclusions of law based on the nine-week trial held from March through May of this year.

I begin with an Executive Summary of the most important points in the Opinion. Next, I address the legal standards governing the ability of police to conduct stops and frisks. I provide a statistical overview of the 4.4 million stops made between January 2004 and June 2012, followed by a discussion of the expert analyses of those stops. I then address the question of whether the City had notice of allegations of racial profiling in the conduct of stops and frisks, and the institutional response to that notice in terms of monitoring, supervision, training, and discipline. After addressing these big picture issues, I make findings of fact with respect to each of the nineteen stops of the twelve class...