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October 20, 1999


The opinion of the court was delivered by: Scheindlin, District Judge.


Plaintiffs, a civil rights organization and six black and Latino men, bring this civil rights case under the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Fourth and Fourteenth Amendments to the United States Constitution, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and the Constitution and laws of the State of New York. In addition to money damages, they seek declaratory and injunctive relief for themselves and on behalf of a class of similarly situated individuals. Plaintiffs seek a judgment declaring the Street Crime Unit's ("SCU") practice and/or custom of suspicionless stops and frisks to be unconstitutional. Their request for injunctive relief is considerably broader.*fn1 Defendants the City of New York, Mayor Rudolph Giuliani, and Police Commissioner Howard Safir have moved to dismiss plaintiffs' equitable claims as well as their Equal Protection and conspiracy claims.*fn2 For the following reasons, defendants' motion is granted in part and denied in part.

I. Background

This case involves alleged constitutional violations by a unit of the New York City Police Department (the "NYPD") known as the Street Crime Unit (the "SCU"). The SCU is an elite squad of police officers whose purported mission is to interdict violent crime in New York City and, in particular, remove illegal firearms from the streets. Amended Complaint ("Compl.") ¶ 38. It is alleged that SCU officers subject residents of high crime areas, particularly Black and Latino men, to stops and frisks based not on reasonable suspicion but on their race and national origin. Id. ¶ 39.

The named individual plaintiffs are six Black and Latino men between the ages of 23 and 31 years old who reside in the boroughs of the Bronx and Brooklyn. Id. ¶¶ 12-17. Each plaintiff alleges that he has been stopped and frisked by police officers believed to be members of the SCU without reasonable suspicion and on the basis of his race and national origin. Id. ¶¶ 63-74. Each claims to have sustained injuries as a result of these encounters including fear of the possibility of future stops and frisks.*fn3

Plaintiff National Congress for Puerto Rican Rights ("National Congress") is a membership organization opposed to discrimination against Puerto Ricans in the United States. Compl. ¶ 18. Since 1986, it has been fighting police brutality and racially-motivated violence. Id. It has received numerous complaints from its members and others regarding "suspicionless stops and frisks of young Puerto Rican males by New York City police officers." Id. ¶ 76. National Congress has alleged that it expends substantial resources at the city, state and national levels to advocate reforms to end police misconduct. Id. ¶ 77. National Congress is not suing in a representational capacity on behalf of its members but rather in its own right for injuries it allegedly sustained as a result of the SCU's activities.

II. Discussion

A. Motion to Dismiss Standard

In a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all factual allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in plaintiff's favor. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). In deciding such a motion, a court "looks to the four corners of the complaint and evaluates the legal viability of the allegations contained therein." Hoffman v. Empire Blue Cross and Blue Shield, 96 Civ. 5448, 1999 WL 782518, at *1 (S.D.N.Y. Sept. 30, 1999) (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)).

A court should not dismiss a complaint unless it "appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Thus, the issue is not whether the plaintiff will prevail but whether it is entitled to offer evidence in support of its claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (citation omitted).

  B. Standing — Individual Plaintiffs — Constitutional

In order to invoke the jurisdiction of the federal courts, a party must "satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy." City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). Accordingly,

  [p]laintiffs must demonstrate a personal stake in the
  outcome in order to assure that concrete adverseness
  which sharpens the presentation of issues necessary
  for the proper resolution of constitutional
  questions. Abstract injury is not enough. The
  plaintiff must show that he sustained or is
  immediately in danger of sustaining some direct
  injury as the result of the challenged official
  conduct and the injury or threat of injury must be
  both real and immediate, not conjectural or

Id. at 101-02, 103 S.Ct. 1660 (citations and internal quotations omitted). Specifically, a plaintiff must demonstrate that "(1) he or she has suffered an injury; (2) the injury is traceable to the defendants' conduct; and (3) a federal court decision is likely to redress the injury." Deshawn v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing Northeastern Florida Contractors v. City of Jacksonville, 508 U.S. 656, 663, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993)). Moreover, "a plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future." Id. (citing Lyons, 461 U.S. at 105-06, 103 S.Ct. 1660). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).*fn4

Defendants contend that the present case is on "all fours" with Lyons which compels dismissal of plaintiffs' claims for injunctive and declaratory relief. In Lyons, the plaintiff had been placed in a chokehold without provocation or justification after being stopped for a minor traffic violation. 461 U.S. at 97, 103 S.Ct. 1660. Plaintiff sought injunctive relief barring the use of chokeholds alleging that police officers "`pursuant to the authorization, instruction and encouragement of defendant City of Los Angeles, regularly and routinely apply these choke holds in innumerable situations where they are not threatened by the use of any deadly force whatsoever.'" Id. at 103, 103 S.Ct. 1660. The Court found plaintiff's assertion that he may again be subject to an illegal chokehold in the future to be too speculative and dismissed the case for lack of standing. Id. at 108-09, 103 S.Ct. 1660.

The Court found the likelihood of a future encounter with the police to be remote especially in light of the assumption that individuals will conduct their activities within the law. Id. at 103, 103 S.Ct. 1660 (citing O'Shea, 414 U.S. at 497, 94 S.Ct. 669, for the proposition that "respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners"). In order to have another encounter with the police, the plaintiff would have to be "arrested in the future and provoke the use of a chokehold by resisting arrest, attempting to escape, or threatening deadly force or serious bodily injury." Id. at 108, 103 S.Ct. 1660. Thus, for the plaintiff in Lyons to establish an actual controversy, he would not only have to allege that he would have another encounter with the police but he would have to make "the incredible assertion either, (1) that all police officers in Los Angeles always choke a citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner." Id. at 106, 103 S.Ct. 1660. Such a contention, the Court noted, was squarely refuted by the record which contained no evidence of "any written or oral pronouncement by the LAPD or any evidence showing a pattern of police behavior that would indicate that the official policy would permit the application of the control holds on a suspect that was not offering, or threatening to offer, physical resistance." Id. at 110, n. 9, 103 S.Ct. 1660. The Court further noted that in the time between plaintiff's encounter with the police and the filing of the complaint, there were no "further unfortunate encounters between Lyons and the police." Id. at 108, 103 S.Ct. 1660.

Lyons is distinguishable from the present case on a number of grounds. First, there is the difference in the number of alleged constitutional violations resulting from the challenged policies. In Lyons, in addition to himself, the plaintiff alleged in his first amended complaint that 10 chokehold-related deaths had occurred as a result of defendant's official policies. 461 U.S. at 100, 103 S.Ct. 1660. Here defendants' policy, evidenced by a pervasive pattern of unconstitutional stops and frisks, has allegedly affected tens of thousands of New York City residents, most of whom have been black and Latino men. Compl. ¶ 5. Courts have not been hesitant to grant standing to sue for injunctive relief where numerous constitutional violations have resulted from a policy of unconstitutional practices by law enforcement officers. See, e.g., Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974) (injunctive relief appropriate given a "persistent pattern of police misconduct" as manifested by a series of unconstitutional acts by police officers against union organizers); Thomas v. County of Los Angeles, 978 F.2d at 508 (realistic threat of future injury found where record indicated that in numerous instances the challenged police conduct was "condoned and tacitly authorized by department policy makers").

A second distinguishing factor is that here at least three of the named individual plaintiffs claim they have been victimed by these unconstitutional practices repeatedly. See Compl. ¶¶ 63, 64, 66, 69 & 70. As plaintiffs' allegations must be accepted as true for purposes of this motion, see Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 109, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979), this alone establishes that plaintiffs face a realistic threat of future harm.*fn5 See Nicacio v. United States I.N.S., 797 F.2d 700, 702 (9th Cir. 1985) (the "possibility of recurring injury ceases to be speculative when actual repeated incidents are documented"). Unlike the situation presented in Lyons, here there is no chain of contingencies making the threat of future harm speculative. This is especially true in light of the fact that, unlike the plaintiff in Lyons, plaintiffs do not have to break the law to be exposed to the alleged constitutional violations. The fact that plaintiffs were stopped while engaging in everyday tasks further illustrates a realistic risk of future harm. Courts have distinguished Lyons and found standing where innocent individuals are victims of unconstitutional police conduct. See, e.g., Thomas, 978 F.2d at 508 (plaintiffs had standing to sue for injunctive relief because in contrast to Lyons, "many victims purportedly did nothing to warrant detention or apprehension prior to the mistreatment"); LaDuke v. Nelson, 762 F.2d 1318, 1326 (9th Cir. 1985) (court found standing where class members were subjected to constitutional injury based on completely innocent behavior).

If in fact this case is on "all fours" with any case, it is with Thomas, not Lyons. In Thomas, the plaintiffs were predominately black and Latino residents of the City of Lynwood, California. 978 F.2d at 505. They alleged that deputy sheriffs in Lynwood used excessive force in detaining minority citizens and employed unlawful procedures in searching the home of minority residents. Id. at 506. The Ninth Circuit found that "[r]epeated instances of violence and retaliatory confrontations are `continuing present adverse affects' and cause the threatened injury to be `sufficiently real and immediate to show an existing controversy.'" Id. at 507 (quoting O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). The court went on to distinguish Lyons as follows:

Id. at 507-08 (quoting Lyons, 461 U.S. at 103, 103 S.Ct. 1660). Given the similarities between Thomas and the present case, plaintiffs have adequately alleged a real and immediate threat of future injury and have thus ...

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