Floyd v. City of N.Y.

• Decision Date: 12 August 2013
• Docket Number: No. 08 Civ. 1034(SAS).,08 Civ. 1034(SAS).
• Citation: 959 F.Supp.2d 540
• Parties: 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.
• Court: U.S. District Court — Southern District of New York

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.

[959 F.Supp.2d 553]

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

[959 F.Supp.2d 555]

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)

[959 F.Supp.2d 556]

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

[959 F.Supp.2d 557]

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...