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Davis v. City of New York

July 5, 2011

KELTON DAVIS, WILLIAM TURNER, ALATAGRACIA HERNANDEZ, EDWIN LARREGUI, ROMAN JACKSON, KRISTIN JOHNSON, ELEANOR BRITT, ANTHONY ANDERSON, LASHAUN SMITH, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, ANDREW WASHINGTON, P.L. BY HIS PARENT LISA PIGGOTT, DAVID WILSON, AND GENEVA WILSON, 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.



The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.

OPINION AND ORDER

I. INTRODUCTION

Plaintiffs bring this putative class action against the City of New York (the "City") and the New York City Housing Authority ("NYCHA") (collectively, "Defendants"), alleging a pattern and practice of unlawful stops, seizures, and arrests for trespass in NYCHA buildings in violation of sections 1983 and 1981 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,*fn1 Title VIII of the Civil Rights Act of 1968 ("Fair Housing Act"),*fn2 the United States Housing Act,*fn3 the Constitution and laws of the State of New York, and the New York City Human Rights Law ("NYCHRL").*fn4 Plaintiffs seek equitable relief in the form of (1) a declaration that Defendants' acts, practices, policies, and omissions in connection with patrol and arrest activities on NYCHA property are unlawful, and (2) an injunction against their continued application.*fn5

The City now moves for summary judgment on all of Plaintiffs' claims for equitable relief, asserting that it has taken actions since the commencement of litigation to address Plaintiffs' allegations and that these actions have rendered Plaintiffs' claims moot. For the reasons set forth below, the City's motion is denied in its entirety.

II. BACKGROUND

A. Plaintiffs' Allegations

The New York City Police Department ("NYPD") is responsible for patrolling public housing facilities operated by NYCHA, with the stated purpose of preventing crime and enforcing NYCHA rules and regulations.*fn6 The inspection of the interior of a NYCHA building is referred to as a "vertical patrol."*fn7 Plaintiffs commenced the instant action on January 28, 2010, alleging that Defendants, operating through and in conjunction with the NYPD, "have implemented and continue to conduct, enforce and sanction an unlawful vertical patrol and trespass arrest policy which has resulted in a pattern and practice of illegal stops, seizures, questioning, searches, and false arrests of residents of, and authorized visitors to, NYCHA residences."*fn8

Plaintiffs contend that the NYPD improperly utilizes "checkpoints" on NYCHA property where "officers indiscriminately stop and question every person they observe, without objective individualized suspicion of a crime, and unlawfully arrest individuals for trespass without probable cause."*fn9 Additionally, Plaintiffs assert that the City has "failed to supervise and discipline officers" who are involved in these incidents, does not monitor these incidents, and has not "instituted any follow up procedure or disciplinary action when charges are dismissed or where it is otherwise established that an individual was arrested without probable cause."*fn10

B. Developments Since the Commencement of the Action

1. Changes to NYPD Policy

At the time this suit was instituted, the NYPD policy at issue was reflected, in part, in section 212-60 of the NYPD Patrol Guide ("P.G. 212-60"), entitled "Interior Vertical Patrol of Housing Authority Buildings."*fn11 However, changes to the policy were already being contemplated: in the summer of 2009, against the backdrop of complaints by the Civilian Complaint Review Board ("CCRB"), NYCHA representatives, and tenant leaders concerning the legality of stops and arrests in NYCHA buildings, the NYPD leadership decided to revise P.G. 212-60 in order to "provid[e] additional guidance to police officers patrolling NYCHA properties."*fn12

As part of the revision process, the NYPD held a meeting on October 15, 2009 with high-ranking NYCHA personnel, including NYCHA Chairman John B. Rhea, and the Citywide Council of Presidents ("CCOP"), NYCHA's elected tenant association.*fn13 The attendees agreed to establish a permanent Safety and Security Task Force ("SSTF"), co-chaired by Chairman Rhea and the President of the CCOP, to address NYPD and NYCHA resident relations, security on NYCHA property, and other matters of community concern.*fn14

The first SSTF meeting was held on December 10, 2009, with meetings occurring at least once a month thereafter.*fn15 Additionally, at its first meeting, SSTF formed five subcommittees to address specific designated topics; these subcommittees each hold regular additional meetings of their own.*fn16 The two subcommittees most pertinent to NYPD patrols of NYCHA property are the NYPD's Policies and Relationships with Residents and the NYCHA Rules and Regulations subcommittees - together, these subcommittees address which NYCHA rules need to be implemented and enforced.*fn17 Through the subcommittees and SSTF, the NYPD, NYCHA, and NYCHA residents discussed the proposed revisions to NYPD's vertical patrol policy and reviewed the material that was ultimately incorporated into the final policy.*fn18

On June 8, 2010, P.G. 212-60 was replaced by Interim Order Number 23 ("I.O. 23").*fn19 The express purpose of I.O. 23 is "[t]o assist the Housing Authority in enforcing its rules, limiting criminal activity, providing a safe and secure environment and ensuring the habitability of its residential buildings for Housing Authority residents and their guests by performing interior vertical patrols."*fn20 It seeks to "provide uniformed members of the service additional guidance concerning situations occurring within Housing Authority facilities [and to] illustrate[] ...


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