Floyd v. City of N.Y.

• Decision Date: 17 September 2013
• Docket Number: Nos. 08 Civ. 1034(SAS), 12 Civ. 2274(SAS).,s. 08 Civ. 1034(SAS), 12 Civ. 2274(SAS).
• Citation: 959 F.Supp.2d 691
• Parties: David FLOYD, et al., Plaintiffs, v. CITY OF NEW YORK, Defendant. Jaenean Ligon, et al., Plaintiffs, v. City of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

959 F.Supp.2d 691

David FLOYD, et al., Plaintiffs,

v.CITY OF NEW YORK, Defendant.

Jaenean Ligon, et al., Plaintiffs,

v.City of New York, et al., Defendants.

Nos. 08 Civ. 1034(SAS), 12 Civ. 2274(SAS).

United States District Court,

S.D. New York.

Sept. 17, 2013.

Jonathan C. Moore, Esq., Jenn Rolnick Borchetta, Esq., Beldock Levine & Hoffman LLP, Darius Charney, Esq., Sunita Patel, Esq., Chauniqua Young, Esq., Baher Azmy, Esq., Eric Hellerman, Esq., Kasey L. Martini, Esq., Bruce Corey, Esq., Covington & Burling LLP, New York, NY, for Floyd Plaintiffs.

Alexis Karteron, Esq., Christopher Dunn, Esq., Daniel Mullkoff, Esq., NY Civil Liberties Union Foundation, New York, NY, Mariana Kovel, Esq., Scott Levy, Esq., The Bronx Defenders, Bronx, NY, Juan Cartagena, Esq., Foster Maer, Esq., Roberto Concepcion, Jr., Esq., LatinoJustice Prldef, J. McGregor Smyth, Jr., Esq., NY Lawyers for the Public Interest, New York, NY, for Ligon Plaintiffs.

Linda Donahue, Heidi Grossman, Assistants Corporation Counsel, Special Federal Litigation Division, New York City Law Department, New York, NY, for Floyd and Ligon Defendants.

Steven R. Newmark, General Counsel, Office of the Public Advocate, John Siegal, Esq., Fernando A. Bohorquez, Jr., Esq., Jacqlyn R. Rovine, Esq., Baker & Hostetler LLP, New York, NY, for Amicus Curiae New York City Public Advocate Bill de Blasio.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. BACKGROUND

By letter dated August 27, 2013, defendants (“City”) in the above-captioned actions moved for a stay of this Court's August 12 Orders pending appellate review.¹ On September 6, 2013, plaintiffs opposed the request for a stay.² Declarations in opposition to the stay were also received from City Council Speaker Christine Quinn; City Council Members Helen Foster and Robert Jackson; Joo–Hyun Kang, the Director for Communities United for Police Reform; and named plaintiff David Ourlicht.³ In addition, Public AdvocateBill de Blasio submitted an amicus curiae letter in opposition to the stay.⁴ On September 12, 2013, defendants filed a letter in reply to plaintiffs' opposition.⁵ For the following reasons, the request for a stay is DENIED.

The standard for obtaining a stay pending appeal is well-established, as is the burden of proof. The court must consider: “ ‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.’ ” ⁶ “The degree to which a factor must be present varies with the strength of the other factors, meaning that more of one factor excuses less of the other.” ⁷ The party seeking the stay bears the burden of proving that a stay is necessary.⁸ The Second Circuit has noted that this is “a difficult burden.” ⁹ Finally, “a stay is not a matter of right, even if irreparable injury might otherwise result.” ¹⁰

II. DISCUSSIONA. The Relief Ordered

Contrary to statements by certain high-level city officials and pundits, this Court did not order an end to the practice of stop and frisk. Rather, this Court ordered that such activity be conducted in accordance with well-established controlling law from both the United States Supreme Court and the Second Circuit Court of Appeals.

In furtherance of this goal, the immediate relief ordered by this Court in the Remedies Opinion consisted of (1) appointing a Monitor to ensure that the New York City Police Department (“NYPD”) carries out its stop and frisk activities in a manner consistent with the mandates of the Fourth and Fourteenth Amendments to the United States Constitution; (2) appointing a Facilitator to meet with stakeholders in the community—including the NYPD, the Corporation Counsel, the Mayor, the City Council, the police unions, tenant associations, churches, schools, block associations, and any others that the Facilitator may identify—to suggest reforms that would accomplish the goal of conducting essential law enforcement activity in a constitutional manner; and (3) conducting a pilot project requiring the use of body-worn cameras by police officers on patrol in five select precincts, under appropriate terms and conditions to be recommended by the Monitor. The costs associated with the activities of the Monitor, the Facilitator, and their necessary staff must be borne by the City.

Long-range relief requires the NYPD to institute new mechanisms for the training, supervision, monitoring, and disciplining of officers with respect to stop and frisk activity. This relief includes revising the UF–250 form used to record stop activity, designing a tear-off form or card for police officers to give to the stopped person, improving the written records of stops and/or frisks in officer activity logs, improving training materials and classes, strengthening oversight by superior officers, and applying internal discipline where needed. The vast majority of these reforms will not be implemented until the Facilitator and the Monitor have the opportunity to work with the community, the NYPD, and the other stakeholders identified above to recommend appropriate reforms.

In short, the only activity at this stage is discussion between the Monitor, the Facilitator, and the parties to develop the remedies described above. No other specific relief is imminent, much less ordered.

B. Likelihood of Success on the Merits

The Supreme Court has held that the first two factors—likelihood of success on the merits and irreparable harm—“are the most critical.” ¹¹ Defendants have presented no cogent argument that they are likely to succeed on their appeal of this Court's Orders. Defendants assert in a single conclusory paragraph in their opening letter brief that the Court erred in finding violations of the Fourth Amendment, violations in Floyd of the Fourteenth Amendment, and “any actionable widespread pattern or practice, deliberate indifference or causation” under Monell v. Department of Social Services.¹² The City also asserts that the injunctive relief ordered in Floyd is “not narrowly tailored or clear enough to address found wrongs, particularly as it has no discernible end point or standards to measure success.” ¹³

Putting aside that the City made no convincing showing of a likelihood of success on appeal, the City's final point regarding the allegedly inappropriate injunctive relief is particularly troubling. The reason the relief is not yet “clear,” that no end point is yet “discernible” and that “standards” have not yet been determined is because the remedial phase of the case is ongoing and no final order has yet issued. Plaintiffs identify this as a problem of “ripeness,” “non-finality,” “non-appealability,” and lack of appellate jurisdiction.¹⁴ Regardless of the legal basket in which the argument is placed, the result is the same. It takes time to fashion appropriate remedies. While the Court used the term “immediate” relief, this merely prioritized relief that should be implemented at the earliest practicable time, ¹⁵ as opposed to longer-range relief, which will not be implemented until after the completion of the Joint Remedial Process. The Remedies Opinion outlined the relief to be imposed in Floyd and—with more specificity—in Ligon. However, implementing remedies is a process—and a process that is still in its earliest stages. It is unlikely that any orders will issue for several months. The only action required of the City to date is attendance at meetings with the Monitor.

C. Irreparable Harm

1. The City's Arguments

The City argues that irreparable harm is “imminent” for a number of reasons. First, the City worries that communicating a summary of the Liability Opinion (through a FINEST message to all officers) will cause confusion if this Court's interpretation of the law is overturned. Similarly, any retraining of officers on the legal aspects of stop and frisk, and then any changes in the practices of monitoring, supervision, and discipline that will implement that retraining, will also result in confusion should the Court's orders be overturned on appeal.

Second, the City argues that irreparable harm will result from the body-worn camera pilot project. Specifically, the City argues that this pilot project will cause significant harm “in terms of time, resources and possible impingement on privacy rights of the public.” ¹⁶

Third, the City argues that this Court's orders violate principles of federalism, resulting in “constitutional harm which is always irreparable.” ¹⁷ The City claims that the constitutional harm arises from an “unjustified incursion into the municipality's authority to police its citizens.” ¹⁸

2. The Response

The City's first argument is circular. The Court's orders simply require that the NYPD conform its policies and practices to well-established constitutional requirements. The City's argument here is merely a restatement of its argument regarding the likelihood of success on the merits. Because it believes the Court's decisions are based on an erroneous view of the law—despite repeated citations to Supreme Court and Second Circuit controlling law—it also believes that irreparable harm will result from basing any relief on those decisions. Thus, the City's argument conflates the first two factors and fails to prove either one.

With respect to the pilot project on body-warn cameras, it is undisputed that the project will require the expenditure of time and resources, but it is also clear that the Monitor will oversee the project to ensure that the privacy rights of both police officers and citizens are carefully protected. The purpose of the experiment is to ensure that both police and citizens benefit from the recording of stop and frisk encounters—which will provide a contemporaneous and presumptively incontestable record of what occurred during the encounter. Again, it does...