Floyd v. City of New York
| Decision Date | 23 November 2011 |
| Docket Number | No. 08 Civ. 1034 (SAS).,08 Civ. 1034 (SAS). |
| Citation | 813 F.Supp.2d 457 |
| Parties | 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. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Darius Charney, Esq., Sunita Patel, Esq., New York, NY, Jonathan C. Moore, Esq., Jennifer Borchetta, Esq., Beldock Levine & Hoffman LLP, New York, NY, Philip Irwin, Esq., Eric Hellerman, Esq., Gretchen Hoff–Varner, Esq., Covington & Burling LLP, New York, NY, for Plaintiffs.
Heidi Grossman, Linda Donahue, Assistant Corporation Counsel, New York, NY, for Defendants.
Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht bring this putative class action against the City of New York and named and unnamed New York City Police Officers, 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
As I have previously explained, this case involves an issue of great public concern—namely, the disproportionate number of African–Americans and Latinos, as compared with Caucasians, who become entangled in our criminal justice system.3 The specific allegation brought by the plaintiffs in this case is that the NYPD is engaged in a widespread pattern and practice of suspicionless and race-based stops and frisks.
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, on pace to reach 720,000 per year.4 There is “a disturbingly large racial disparity in who is victimized by these practices,” 5 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,6 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.7
One of the plaintiffs' specific allegations is that on February 28, 2007, three police officers unlawfully stopped and frisked David Floyd and then searched his pockets. On February 24, 2011, defendants brought a motion for partial summary judgment, arguing that the undisputed evidence showed that at the time of his stop, the police officers had reasonable suspicion to believe that Floyd was engaged in a burglary and were thus justified in stopping and frisking him. On August 31, 2011, I granted defendants' motion on the plaintiffs' claims arising out of that stop and frisk.8 My ruling was based on the presence of two facts that were, at the time, undisputed: first, that when the police stopped Floyd he was standing in front of an apartment door, trying numerous different keys on the lock, and attempting to gain entry into the apartment; and second, that “there had been a burglary pattern for that time of day in the neighborhood.” 9
On September 28, 2011, plaintiffs filed a motion for reconsideration. 10 After I issued my Opinion and Order, plaintiffs analyzed the NYPD's crime data and, according to their analysis, found that “far from a ‘burglary pattern,’ there was only one reported burglary in the vicinity of Mr. Floyd's home in the two months preceding his February 27, 2008 stop-and-frisk.” 11 According to plaintiffs, this evidence showing an absence of a burglary pattern raises a disputed issue of fact as to whether the officers who stopped Floyd has the legally-requisite reasonable suspicion to do so. Because there is now a disputed issue of fact, they argue, summary judgment is inappropriate.
Defendants object to this motion.12 They argue that the plaintiffs have not made the showing necessary for relief under Rule 60(b): the plaintiffs previously failed to exercise due diligence to obtain the evidence regarding an absence of a burglary pattern and thus should be precluded from presenting it now; the evidence would not change the result of the earlier ruling; and no extraordinary circumstances exist to warrant relief.
For the reasons explained below, plaintiffs' motion to reinstate David Floyd's claims arising out of his February 27, 2008 stop and frisk is granted.
II. BACKGROUND
Although I provided a detailed summary of Floyd's stop and frisk in my previous decision, I repeat much of that summary here for the sake of completeness. I summarize the relevant portions of my August 31, 2011 Opinion and Order, describe the evidence regarding the crime data newly presented by the plaintiffs (and the defendants), and then describe the evidence submitted by the parties regarding the plaintiffs' prior access to that crime data.
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.13 He encountered the basement tenant, also an African–American man, who indicated that he was locked out of his apartment and asked for help.14 Floyd, whose godmother owned the building, went upstairs to retrieve the key.15 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.16 Floyd and the tenant went to the basement apartment door and started trying the various keys.17 After trying five or six keys, they found the correct one.18
However, before they could open the door, three NYPD officers approached them—Officer Cormac Joyce, Officer Eric Hernandez, and Sergeant James Kelly. 19 The officers asked the two men what they were doing, told them to stop, and proceeded to frisk them.20 The officer who frisked Floyd reached into both of his front pockets, which contained a phone, his keys, and some change.21 The officers then turned the two men around and asked again what they were doing.22 The officers asked the men to produce identification and asked why the basement tenant did not have any.23 The officers asked whether the two men lived there.24 Floyd gave the officers his Louisiana driver's license and when the officers noted that the address on the license did not match the address of the building, he retrieved a bill from his bag, which reflected the building address.25
Officer Joyce testified that he stopped Floyd because he believed Floyd was in the middle of committing a burglary; he saw Floyd jostling a doorknob and nervously looking back; and he believed there had been a burglary pattern for that time of day in the neighborhood.26 Joyce recorded Floyd's stop and frisk on a UF250 form, indicating that the suspected crime was burglary. 27 He also noted in the box for “Physical Force Used” that he had put his hands on Floyd while Floyd was up against a wall.28 Regarding the circumstances that led to the arrest, Joyce checked the box corresponding to “Furtive Movements.” 29 In the area of the form entitled “Additional Circumstances/Factors,” with instructions to “Check All That Apply,” Joyce checked the box corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” as well as the boxes corresponding to “Evasive, False, Or Inconsistent Responses To Officer's Questions,” and to “Ongoing Investigations, e.g., Robbery Pattern,” but did not check the box corresponding to “Area Has High Incidence Of Reported Offense Of Type Under Investigation.” 30 In response to the question “Was Person Searched?,” Joyce checked “No.” 31
Officer Hernandez testified that he suspected Floyd of committing a burglary because he saw two men focused on the front door very close to each other with their hands playing with the lock; because he saw one of the two men look toward the street and then focus back on the door, as if looking to see if anyone was looking at them; and because he knew there had been burglaries in the 43rd Precinct.32 He also testified that Floyd was holding a key ring that looked like it had been made with a wire hanger with more than fifty keys on it.33 He did not see a bulge in the clothing of either man that might indicate possession of a weapon.34
Sergeant Kelly testified that he suspected that the two men were committing a burglary because he saw them fumbling with a lock and jostling a door, and because he knew there was a burglary pattern in the neighborhood.35 He suspected that the bag at the men's feet might have contained burglary tools. 36 He testified that as he was approaching the two men, he noticed that one of them “was holding a very large key chain with ... numerous keys on it, raising [his] suspicion that maybe they were using several keys to try to get into that house.” 37 He reasoned that if they were in the process of committing a home invasion, they might have a weapon.38 Kelly filled out a UF250, but did not make an entry in his memo book regarding the stop and frisk of Floyd.39
In my previous Order, I held that the officers' stop of David Floyd was lawful because the undisputed facts showed that they had had reasonable suspicion, supported by articulable facts, that he was engaging in criminal activity. 40 In particular, I held the following:
1. 41
2. “[W]hether Floyd and his neighbor...
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