Plaintiffs #1-20 v. Cnty. of Suffolk

PLAINTIFFS #1-21, individually and on behalf of all others similarly situated, Plaintiffs, v. THE COUNTY OF SUFFOLK, SUFFOLK COUNTY POLICE DEPARTMENT,EDWARD WEBBER, individually and in his official capacity, MILAGROS SOTO, individually and in her official capacity,SCOTT GREENE, individually and in his official capacity, BRIDGETT DORMER,individually and in her official capacity, SUPERVISORY JOHN DOE DEFENDANTS,individually and in their official capacities, and JOHN DOE DEFENDANTS,individually and in their official capacities, Defendants.

15 CV 2431 (WFK)(LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 12, 2021

REPORT AND RECOMMENDATION

BLOOM, United States Magistrate Judge:

Plaintiffs #1-20¹ ("plaintiffs" or "the named plaintiffs"), filed this putative class action, on behalf of themselves and others similarly situated, against the County of Suffolk ("Suffolk County" or "the County"), the Suffolk County Police Department ("the SCPD"), Commissioner Edward Webber, Lieutenant Milagros Soto, former-Sergeant Scott Greene, Officer Bridgett Dormer, Supervisory John Doe Defendants ("Supervisory John Does"), and John Doe Defendants ("John Does"), alleging defendants violated their rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, Title VI of the Civil Rights Actof 1964, 42 U.S.C. § 2000d, and the common law of the State of New York.² Specifically, plaintiffs allege that the SCPD violated the civil rights of Latinos through systemic discriminatory and unconstitutional policing policies, patterns, and practices. Plaintiffs allege that Suffolk County and the SCPD have known about these discriminatory practices for years, and thus their failure to take the necessary steps to investigate and eliminate these practices amounts to deliberate indifference. Plaintiffs allege that defendants' failure to act has facilitated and encouraged police discrimination against Latinos.

Plaintiffs move for class certification under Rule 23 of the Federal Rules of Civil Procedure, seeking declaratory and injunctive relief pursuant to Rule 23(a) and 23(b)(2) and damages pursuant to Rule 23(a) and 23(b)(3). Defendants oppose plaintiffs' motion.³ The Honorable William F. Kuntz, II referred plaintiffs' motion to me for a Report and Recommendation in accordance with 28 U.S.C. 636(b)(1)(B).⁴ For the reasons set forth herein, it is respectfully recommended that plaintiffs' motion should be granted in part and denied in part.A class should be certified under Rule 23(b)(2) and plaintiffs' counsel should be appointed as class counsel pursuant to Rule 23(g). Plaintiffs' motion for certification under 23(b)(3) should be denied without prejudice.

BACKGROUND⁵

Plaintiffs are twenty Hispanic⁶ individuals who are present and former residents of Suffolk County. Compl. at ¶¶ 4, 9-29. Plaintiffs allege that they have been subjected to discriminatory policing by the SCPD⁷ including race-based traffic and pedestrian stops as well as wrongful searches and detentions. They further allege that SCPD officers have taken their personal property, issued them unjustified traffic citations, and have otherwise harassed them. Id. at ¶ 1. As a result, plaintiffs report feeling fear, anxiety, loss, and embarrassment, especially when driving throughSuffolk County.⁸ Id. at ¶ 5. See ECF Nos. 255-274, "Plaintiffs Affidavits."⁹

Plaintiffs also allege that defendants SCPD and Suffolk County are fully aware of this discrimination and have "ignored, covered these practices up, and more generally, failed to take the actions necessary to investigate and eliminate these practices." Compl. at ¶ 2. Plaintiffs commenced this action in 2015 to compel defendants to end their systemic discriminatory policing and to obtain monetary relief for plaintiffs' damages suffered as a result of these policies. Id. at ¶ 1.

A. History: Department of Justice Investigation and Charges Against Scott Greene

In 2007, Marcelo Lucero, an Ecuadorian immigrant, was murdered by a group of teenagers in Suffolk County who referred to themselves as the "Caucasian Crew." Lucero was targeted and fatally stabbed because he was Latino. His brutal death turned the national spotlight to Suffolk County, where other Latino residents voiced their own experiences with anti-Latino violence and harassment.¹⁰ Complaints of discriminatory policing began to accumulate against the SCPD—namely, that the SCPD discouraged Latino victims from filing complaints and failed to investigate crimes and hate-crime incidents—contributing to an atmosphere of fear in the Latino community.¹¹

In response to these complaints, in September 2009, the United States Department of Justice ("DOJ") and the United States Attorney's Office for the Eastern District of New York (collectively, the "United States") commenced an investigation into the allegations of discriminatory policing. During the course of that investigation, in 2011, the United States issued a Technical Assistance letter to the SCPD which outlined numerous recommendations to address its concerns about the SCPD's policing services.¹² Compl. at ¶¶ 3, 144-54.

Around December 2013, the United States and the SCPD reached a limited settlement agreement ("the Agreement"). The Agreement acknowledged that the SCPD's policies wereinsufficient to prevent discriminatory behavior towards Latinos, memorialized the recommendations set forth in the Technical Assistance Letter, and committed the SCPD to implementing new policies and procedures to "ensure that it polices equitably, respectfully, and free of unlawful bias." DOJ Press Release at 1; Compl. at ¶ 150; see Ex. I, "DOJ Agreement." The Agreement was to remain in effect until the SCPD "substantially complied" with the Agreement for at least one year. Compl. at ¶ 151; DOJ Agreement. Plaintiffs allege that despite being aware of these discriminatory practices and years of DOJ oversight and guidance, the SCPD and the County have failed to reform their unconstitutional police services and have allowed discriminatory practices to continue.¹³

At the same time that SCPD was under investigation for discriminatory policing, defendant Scott Greene, then a SCPD sergeant with 25 years on the force, was abusing his police power by stopping Latino motorists to steal their money. Compl. at ¶¶ 79-80. Greene's stop-and-rob scheme targeting Latinos persisted for years. In 2014, following a sting operation by the Suffolk County District Attorney's Office, in which an undercover Latino officer recorded Greene stealing $100 from his vehicle during a traffic stop, Greene was arrested and indicted by two state grand juries. Id. at ¶ 81-82. In January of 2016, a New York State jury found Greene guilty of multiple counts of grand larceny, petit larceny, and official misconduct for stealing money from over two dozen Latino individuals. In April of 2016, Greene pled guilty to additional charges of grand larceny and petit larceny. See Ex. M.

All plaintiffs herein, except Plaintiff 11, were robbed by Greene. Some plaintiffs were instructed to leave their cars before Greene robbed them while he conducted warrantless searches; in other stops, Greene confiscated plaintiffs' wallets and took their money. Compl. at ¶¶ 90-131. Several plaintiffs were robbed by Greene on multiple occasions.¹⁴ Plaintiffs allege that defendant Greene is not the only SCPD officer to engage in discriminatory behavior and some plaintiffs report being stopped by other officers since Greene's arrest, in their view, for no valid reason.¹⁵ Each named plaintiff alleges that he or she was targeted for these stops by the SCPD because they are Latino. See Plaintiffs' Affidavits.

B. Summary of Plaintiffs' Claims and Defendants' Responses

1. The SCPD targets Latinos for stops, establishing a pattern and practice of discriminatory policing.

Plaintiffs allege that SCPD officers have stopped, ticketed, searched, and/or arrested Latino motorists on the basis of their ethnicity. Compl. at ¶ 30. In support of this claim, they proffer an expert report,¹⁶ which analyzed the SCPD's available traffic stop data and found that Latinos are disproportionately mistreated after being stopped. Ex. T, "Smith Report."¹⁷ Defendants reject these findings without much elaboration. See Opp. Mem. at 13. ("[T]heir expert reports are based uponspeculative allegations not supported by the record, or statistical formulas that show nothing more than the fact that Hispanic persons experienced traffic stops in Suffolk County.") Plaintiffs' expert report was based on an audit of SCPD's own traffic stop data. If the data shows no more than the fact that Latinos were stopped by the SCPD, that is likely due to the insufficiency of the collected data, as found by the DOJ's compliance reports and discussed below.

2. The SCPD has failed to collect reliable data and has failed to assess its data to prevent biased policing.

Plaintiffs allege that the data collected by the SCPD, including data collected since the DOJ Agreement, is unreliable and that if the data had been collected and audited properly, the SCPD would be on notice that their biased policing continues. Smith Report at 50-51.¹⁸

It is well established that the data collection is unreliable and that an assessment of the data was not timely made by the SCPD. The Settlement Agreement mandated that SCPD implement a system to collect traffic stop data so that the SCPD could properly analyze that data. Following the Agreement, The United States issued periodic reports that assessed the SCPD's compliance with the terms of the Agreement.¹⁹ These reports reveal that the SCPD has never been in fullcompliance with the Agreement's data requirements.²⁰ Both the United States²¹ and the SCPD²² acknowledge that the data that has been collected is unreliable. Further, the SCPD has admittedthat, at the time the instant motion was filed,²³ the SCPD never analyzed its stop data as required by the DOJ Agreement.²⁴

In addition to the...