Davis v. City of Hous.
| Decision Date | 28 March 2013 |
| Docket Number | No. 10 Civ. 0699(SAS).,10 Civ. 0699(SAS). |
| Citation | 959 F.Supp.2d 324 |
| Parties | Kelton DAVIS, William Turner, Edwin Larregui, Anthony Anderson, Shawne Jones, Hector Suarez, Adam Cooper, David Wilson, Geneva Wilson, Eleanor Britt, Roman Jackson, Kristin Johnson, Lashaun Smith, Andrew Washington, Patrick Littlejohn, Raymond Osorio, Vaughn Frederick,and R.E., by her parent D.E., individually and on behalf of a class of all others similarly situated, Plaintiffs, v. The CITY OF NEW YORK and New York City Housing Authority, Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Katharine E.G. Brooker, Esq., Matthew J. Moses, Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, Debo P. Adegbile, Esq., Christina Swarns, Esq., Johanna B. Steinberg, Esq., Jin Hee Lee, Esq., Johnathan Smith, Esq., Ria Tabacco, Esq., NAACP Legal Defense & Educational Fund, Inc., New York, NY, Steven Banks, Esq., William D. Gibney, Esq., Steven Wasserman, Esq., Nancy Rosenbloom, Esq., Marlen S. Bodden, Esq., Legal Aid Society of New York, New York, NY, for Plaintiffs.
Brenda E. Cooke, Judson Vickers, Wesley Bauman, Lisa Richardson, George Soterakis, Pernell Telfort, Assistant Corporation Counsel, New York City Law Department, New York, NY, for Defendant City of New York.
Steven Jay Rappaport, Esq., New York City Housing Authority, New York, NY, for Defendant NYCHA.
I. |
| 332 |
II.
339
A. |
Plaintiffs' Challenge to IO 23 Arrest Policy
344 |
ii.
Plaintiffs' Challenge to IO 23 Stop Policy
345
b. |
Documentary and Testimonial Evidence
351 |
ii.
Dr. Fagan's Analysis
352
b. |
Fourteenth Amendment Equal Protection Claims Against the City
359 |
C.
USHA Claims Against NYCHA
370
| VI. |
This case, filed in 2010, is one of three cases currently before this Court challenging aspects of the City of New York's “stop and frisk” practices. 1 What distinguishes this case from the other two is its focus on stop and frisk practices at public housing properties owned and operated by the New York City Housing Authority (“NYCHA”). Plaintiffs argue that the New York City Police Department (“NYPD”) uses unlawful stops, searches, and arrests to enforce the prohibition against trespassing in NYCHA buildings.2 According to plaintiffs, the NYPD's practices violate the Fourth Amendment to the United States Constitution, which guarantees “[t]he right of the people to be secure ... against unreasonable searches and seizures.” Plaintiffs also argue that the NYPD's practices are based on racial discrimination against African Americans and Latinos, and thus violate the Fourteenth Amendment, which guarantees “the equal protection of the laws.”
As the Supreme Court of the United States has repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” 3 In Terry v. Ohio, the Supreme Court held that under the Fourth Amendment, it is constitutionally reasonable for the police to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” 4 This form of investigative detention is now known as a Terry stop.5
In the years since Terry, the Supreme Court and the Second Circuit have developed and refined the balance under the Fourth Amendment “ ‘between the public interest and the individual's right to personal security free from arbitrary interference by law officers.’ ” 6 The long line of cases concerning “the power of the police to ‘stop and frisk’ ... suspicious persons” has frequently presented a conflict between individual liberty and dignity on the one hand, and public safety on the other.7
This case illustrates the tensions between liberty and security in particularly stark form, because it deals with police practices in and around the home, where the interests in both liberty and security are especially strong.8 The gravity of the alleged injuries to plaintiffs' liberty is reflected in the testimony of Reginald Bowman, President of the Citywide Council of Presidents, a NYCHA resident leadership group:
[W]henever I have an opportunity to talk to someone in law enforcement who might listen, my question to them is: Suppose I came into your neighborhood tonight and you were in civilian attire and you were on your way to the store to get milk and cookies for your kids, and I stopped you the way that some of your personnel do, what would you do? How would you feel about that?
...
When this type of practice is instituted and done to people on a regular basis ... I use the term “penal colony,” it's almost like we have been colonized for a decade.9
At the same time, many NYCHA tenants have expressed a desire for greater security services from the police, including “more officers on foot patrol like we used to have when officers walked around, knew residents and built relationships with them.” 10 As I noted in an earlier opinion in this case, there is a long and often underappreciated history of anti-crime activism by NYCHA tenant organizations: “ ‘The activists, most of whom were women, ... believed that securing their fair share of municipal services, including police protection, was a fundamental right ....’ ” 11
This case is solely concerned with whether the NYPD's trespass enforcement practices in NYCHA buildings violate the Constitution, or other laws. If so, the practices must stop, no matter how effective they may be. As the Supreme Court recently noted, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” 12 Just as public schools face constitutional constraints on religious expression that do not apply to private schools, and public employers face constitutional restrictions that do not apply to private employers, so public security in public housing must operate within constitutional limitations that would not apply in a purely private context. NYPD officers on patrol in NYCHA buildings are members of the City's police force. As a result, they must operate in accord with constitutional rules that would not apply to private security in a private building. The NYPD may not, for example, forcibly stop and question every person who enters a NYCHA building, as a doorman in a private building is free to do.
It is against this backdrop that I address plaintiffs' and defendants' motions for summary judgment. The parties agreed to brief these motions in two parts. The first part, adjudicated in October 2012, addressed the individual circumstances of plaintiffs' arrests and tenancies.13 The second part, adjudicated here, addresses defendants' practices and policies.
For the reasons set forth below, the parties' motions for summary judgment are granted in part and denied in part. A summary of the Court's decisions appears in the Conclusion to this Opinion.
I begin by offering a brief summary of the procedural background to plaintiffs' pending claims against the City and NYCHA. Plaintiffs' Amended Complaint identified the putative plaintiff class in this case as consisting of two overlapping subclasses, the “arrested plaintiffs” and the “resident plaintiffs.” 14 Plaintiffs identified the following thirteen plaintiffs as representing the arrested 98 plaintiffs: Anthony Anderson, Adam Cooper, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, William Turner, Andrew Washington, and David Wilson.15 Plaintiffs identified the following eight plaintiffs as representing the resident plaintiffs: Eleanor Britt, Kelton Davis, Frederick, Shawne Jones, Littlejohn, Hector Suarez, Washington, and Evans.16 Plaintiff Geneva Wilson, a NYCHA resident and aunt of David Wilson who was eighty years old at the time of the Amended Complaint, was not listed as representing either subclass.17
Prior to the filing of the Amended Complaint, nine of the named plaintiffs accepted offers of judgment from the City pursuant to Federal Rule of Civil Procedure 68, but continued to assert their claims against NYCHA: Anderson, Cooper, Davis, Jones, Larregui, Suarez, Turner, David Wilson, and Geneva Wilson.18
In the Amended Complaint, plaintiffs brought the following claims:
(1) The arrested plaintiffs who had not accepted offers of judgment from the City (Evans, Frederick, Jackson, Johnson, Littlejohn, Osorio, Smith, and Washington) brought Fourth Amendment, New York State Constitution (“NYSC”) article 1 section 12 (), and respondeat superior claims against the City. 19 Plaintiffs also alleged violations of resident plaintiffs' Fourth Amendment rights, but did not plead a claim based on these violations. 20
(2) The resident plaintiffs brought claims against the City and NYCHA under Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act” or “FHA”), the United States Housing Act (the “USHA”), the Civil Rights Act of 1866 (42 U.S.C. § 1981, or “section 1981”), and the New York State and City Human Rights Laws (the “NYSHRL” and “NYCHRL”).21
(3) All plaintiffs brought claims against the City and NYCHA under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (“Title VI”), and NYSC article 1 section 11 (...
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