UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 8, 2013
JAENEAN LIGON, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, J.G.; FAWN BRACY, INDIVIDUALLY AND ON BEHALF OF HER MINOR SON, W.B.; JACQUELINE YATES; LETITIA LEDAN; ROSHEA JOHNSON; KIERON JOHNSON; JOVAN JEFFERSON; A.O., BY HIS PARENT DINAH ADAMES; ABDULLAH TURNER; FERNANDO MORONTA; AND CHARLES BRADLEY, INDIVIDUALLY AND ON BEHALF OF A CLASS OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
CITY OF NEW YORK; RAYMOND W. KELLY, COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; POLICE OFFICER JOHNNY BLASINI; POLICE OFFICER GREGORY LOMANGINO; POLICE OFFICER JOSEPH KOCH; POLIC OFFICER KIERON RAMDEEN; POLICE OFFICER JOSEPH BERMUDEZ; POLICE OFFICER MIGUEL SANTIAGO; AND POLICE OFFICERS JOHN DOE 1-2, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:
OPINION & ORDER
This case, filed in 2012, is one of three cases currently before this Court challenging aspects of the New York City Police Department's "stop and frisk" practices.*fn1 Of the three cases, this case is the most narrow. It deals only with stops made by the police on suspicion of trespass outside of certain privately-owned buildings in the Bronx. But the legal issues raised by this case have roots that stretch back decades.
In 1964, New York adopted the first version of its stop and frisk law, which has since been amended several times. The essence of the law is that a police officer may stop a person in a public place when he reasonably suspects that such person is committing, has committed, or is about to commit a crime, and the officer may demand of him his name, his address, and an explanation of his conduct. Upon stopping a person, if the police officer reasonably suspects that he is in danger of physical injury, he may search the person for a deadly weapon.*fn2
This law and the policing practices associated with it have raised a host of difficult questions, including: (1) what is reasonable suspicion; (2) what constitutes a stop; (3) what is a public place; (4) when is a stopped person free to walk away from the police; and (5) when does an officer have grounds to reasonably suspect that he is danger of physical injury. None of these questions are easily answered.
In 1968, the United States Supreme Court heard a challenge to New York's stop and frisk statute in the context of two criminal convictions, and made some important points that bear repeating today.*fn3 First, the Court held that although states may develop their own laws on stop and frisk, they may not "authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct."*fn4 The Court stated, in no uncertain terms, that the question is not whether a particular search was authorized by state law but "'whether the search was reasonable under the Fourth Amendment.'"*fn5 Second, the Court held that it would not judge the constitutionality of the New York statute on its face, but rather as applied to the particular facts of the two cases it was reviewing.*fn6 Third, the Court stressed that a police officer must have reasonable grounds before he seizes a person. In that regard the Court stated: "The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries."*fn7
In confronting the issues addressed in this Opinion, I am keenly aware that this Court does not stand in the shoes of the Police Department and is in no way qualified or empowered to engage in policy determinations. The sole role of the Court is to interpret and apply the law - in this case the Fourth Amendment of the United States Constitution as interpreted by the Supreme Court of the United States and the United States Court of Appeals for the Second Circuit - to the specific facts before it. I have endeavored faithfully to carry out that limited role. My object here is only to clarify what the law permits - and does not permit - an officer to do when initiating and conducting a stop or stop and frisk of people in the public areas outside of certain privately owned buildings in the Bronx.
Plaintiffs, all of whom are African-American or Latino residents of
New York,*fn8 argue that the Police Department has a
widespread practice of making unlawful stops on suspicion of trespass
outside buildings in the Bronx that are enrolled in the Trespass
Affidavit Program ("TAP"), which was formerly known in the Bronx as
Operation Clean Halls.*fn9 This program allows "police
officers to patrol inside and around thousands of private residential
apartment buildings throughout New York City."*fn10
Plaintiffs argue that the NYPD's trespass stops outside TAP buildings
are often made without reasonable suspicion, and thus
violate the Fourth Amendment.*fn11 Plaintiffs stated
that such stops have caused them to feel "violated,"*fn12
and "defenseless."*fn15 As the Supreme Court
noted in Terry v. Ohio, even limited stops and searches represent "an
annoying, frightening, and perhaps humiliating
experience,"*fn16 and thus must be based on reasonable
On September 24, 2012, plaintiffs filed a motion for a preliminary
injunction, seeking an order requiring the NYPD to create and
implement new policies, training programs, and monitoring and
supervisory procedures that specifically address the problem of
unconstitutional trespass stops outside TAP buildings.*fn17
The preliminary injunction hearing took place between October
15 and November 7, 2012.*fn18 This Opinion addresses
I begin by summarizing the relevant legal standards, then state my findings of fact and conclusions of law. Based on all the evidence presented at the hearing, I conclude that plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside TAP buildings in the Bronx. This conclusion is based on five categories of evidence, briefly summarized here and fully explored below: (1) the testimony of Bronx Assistant District Attorney Jeannette Rucker ("ADA Rucker"), who concluded that the NYPD frequently made trespass stops outside TAP buildings in the Bronx for no reason other than that the officer had seen someone enter and exit or exit the building; (2) a sample of "decline to prosecute" forms prepared by the Bronx District Attorneys' Office, which revealed the alarming frequency of unlawful trespass stops in the vicinity of TAP buildings in the Bronx; (3) the testimony of eight plaintiffs and a non-party witness, who described remarkably similar encounters with the police when stopped in the vicinity of TAP buildings in the Bronx; (4) the analysis by Dr. Jeffrey Fagan, plaintiffs' expert, of an NYPD database of recorded stops, which provided further evidence of the frequency of apparently unlawful trespass stops outside TAP buildings in the Bronx; and (5) NYPD training materials that continue to misstate the minimal constitutional standards for making stops.
In sum, while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx. For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat.*fn19
In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.
As a result, plaintiffs are entitled to a preliminary injunction. However, with one exception, I am not yet ordering relief pending a further hearing on the appropriate scope of such relief.
II. LEGAL STANDARD FOR PRELIMINARY INJUNCTION
"'A preliminary injunction is an extraordinary remedy never awarded as
of right.'"*fn20 In general, to obtain a preliminary
injunction, the moving party must establish: (1) "that [it] is likely
to succeed on the merits," (2) "that [it] is
likely to suffer irreparable harm in the absence of preliminary
relief," (3) "that the balance of equities tips in [its] favor," and
(4) "that an injunction is in the public interest."*fn21
The Second Circuit has held that the moving party may be
entitled to a preliminary injunction even if the party is unable to
establish a likelihood of success on the merits, provided that the
party demonstrates "'a serious question going to the merits to make
them a fair ground for trial, with a balance of hardships tipping
decidedly in the plaintiff's favor.'"*fn22 In
addition, when the moving party seeks a "mandatory" injunction, that
is, an injunction that commands action rather than merely prohibiting
it, the standard is higher: "[W]here 'the injunction sought will alter
rather than maintain the status quo,' the movant must show [a] 'clear'
or 'substantial' likelihood of success."*fn23
Because plaintiffs seek mandatory injunctive relief including the drafting and distribution of new policies, the development and implementation of new training programs, and the implementation of new monitoring and supervision procedures,*fn24 they must establish a clear or substantial likelihood that they will succeed at trial.
III. APPLICABLE LAW
A. Sources of Liability
Plaintiffs bring a claim under 42 U.S.C. § 1983 alleging violations of their Fourth Amendment rights by the City of New York and several of its employees.*fn25 As the Supreme Court established in Monell v. New York City Department of Social Services,*fn26 in order to have recourse against a municipality or other local government under section 1983, plaintiffs "must prove that 'action pursuant to official municipal policy' caused the alleged constitutional injury."*fn27
In general, "[o]fficial municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law."*fn28
One way to establish an official policy is through a showing of "deliberate indifference" by high-level officials. "'[W]here a policymaking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official's inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.'"*fn29 "Deliberate indifference" requires "'proof that a municipal actor disregarded a known or obvious consequence of his action.'"*fn30
Recognizing that "deliberate indifference" is "a stringent standard of fault," the Second Circuit requires "that the policymaker's inaction was the result of 'conscious choice' and not 'mere negligence.'"*fn31 The Second Circuit has held that municipal liability can be established "by demonstrating that the actions of subordinate officers are sufficiently widespread to constitute the constructive acquiescence of senior policymakers."*fn32
A municipality may incur Monell liability based on deliberate
indifference through its training practices. Although "[a]
municipality's culpability for a deprivation of rights is at its most
tenuous where a claim turns on a failure to train,"*fn33
the Supreme Court has held that "[w]hen city policymakers are
on actual or constructive notice that a particular omission in their
training program causes city employees to violate citizens'
constitutional rights, the city may be deemed deliberately indifferent
if the policymakers choose to retain that program."*fn34
"[D]eliberate indifference may be inferred where 'the need
for more or better supervision to protect against constitutional
violations was obvious,' but the policymaker 'fail[ed] to make
meaningful efforts to address the risk of harm to
B. The Fourth Amendment, Stops, and Reasonable Suspicion
The Fourth Amendment, made applicable to the States by the Fourteenth Amendment,*fn36 states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . ."*fn37
As interpreted by the courts, the Fourth Amendment prohibits arrest without probable cause, but allows the police to "'stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity "may be afoot," even if the officer lacks probable cause.'"*fn38 "This form of investigative detention is now known as a Terry stop."*fn39
"While 'reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop."*fn40 "'The officer [making a Terry stop] . . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.'"*fn41 "Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant."*fn42
It is sometimes the case that a police officer may observe "a series of acts, each of them perhaps innocent in itself, but which taken together warrant further investigation."*fn43 "An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime."*fn44 However, "the fact that the stop occurred in a 'high crime area' [may be] among the relevant contextual considerations in a Terry analysis."*fn45
Courts reviewing stops for reasonable suspicion "must look at 'the totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing."*fn46 "[T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing."*fn47
The test for whether a Terry stop has taken place outdoors is whether "a reasonable person would feel free 'to disregard the police and go about his business.'"*fn48 "'[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.'"*fn49 "[P]olice questioning, by itself, is unlikely to result in a Fourth Amendment violation . . . [u]nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded."*fn50 The Second Circuit has held that "[a] seizure occurs when (1) a person obeys a police officer's order to stop or (2) a person that does not submit to an officer's show of authority is physically restrained."*fn51 Both Terry stops and arrests constitute "seizures" under the Fourth Amendment.*fn52
C. Criminal Trespass under New York State Law
Criminal trespass is defined under section 140 of the New York Penal Law. As the Appellate Division, First Department, of the Supreme Court of New York recently stated in a case concerning alleged trespass in a Clean Halls building:
A person is guilty of criminal trespass in the second degree when, in pertinent part, he "knowingly enters or remains unlawfully in a dwelling" (Penal Law § 140.15). A person "enters or remains unlawfully" in or upon premises "when he is not licensed or privileged to do so" (Penal Law § 140.00). "In general, a person is 'licensed or privileged' to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent" (People v. Graves, 76 N.Y.2d 16, 20 . . . ). The prosecution bears the burden of proving the absence of such license or privilege (People v. Brown, 25 N.Y.2d 374, 377 . . . ).*fn53
The trespass law also states: A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. A license or privilege to enter or remain in a building which is only partly open to the public is not a license or privilege to enter or remain in that part of the building which is not open to the public.*fn54
D. De Bour
In People v. De Bour, the New York Court of Appeals established a four-level test for determining the legality of encounters between police officers and civilians under New York state law. The more intrusive the encounter, the more justification required:
* Level 1: Approach to Request Information: "If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality."*fn55
* Level 2: The Common-Law Right of Inquiry: "Once the officer asks more pointed questions that would lead the person approached reasonably to believe that he or she is suspected of some wrongdoing and is the focus of the officer's investigation, the officer is [engaged in] a common-law inquiry that must be supported by a founded suspicion that criminality is afoot."*fn56
* Level 3: Forcible Stop: "Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person."*fn57 A Level 3 stop is legally equivalent to a Terry stop, and New York state court opinions generally refer to Level 3 De Bour stops and Terry stops interchangeably.*fn58
* Level 4: Arrest: "Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized."*fn59
At least in the context of police encounters inside TAP and NYCHA buildings, New York courts have often identified requests for name and purpose in the building as Level 1 questions.*fn60 Mere presence in a drug-prone NYCHA building with a history of trespassing has been identified as an objective, credible reason justifying Level 1 questioning.*fn61 Level 1 questioning of someone exiting a TAP building, on the other hand, appears to require more than a history of drug activity in the building.*fn62
IV. FINDINGS OF FACT
A. Evidence of an Unconstitutional Practice or Custom of the NYPD
At the hearing, plaintiffs offered three categories of evidence in support of their contention that the NYPD has a practice of making unconstitutional trespass stops outside Clean Halls buildings in the Bronx. First, plaintiffs offered the testimony of ADA Rucker regarding her concerns about trespass stops and arrests at Clean Halls buildings, corroborated by "decline to prosecute" forms from the Bronx District Attorney's office. Second, plaintiffs offered testimony regarding their personal experiences of having been stopped outside Clean Halls buildings.*fn63 Third, plaintiffs offered the expert testimony of Dr. Jeffrey Fagan regarding the number and nature of trespass stops outside Clean Halls buildings.
I address each of these categories of evidence in turn.
1. Findings of Fact Regarding Testimony of ADA Rucker and Decline to Prosecute Forms
Since 2007, ADA Rucker has been chief of the complaint and arraignments bureau at the Bronx DA. In this position, she oversees the arrest to arraignment process, ensuring "that we evaluate all cases that are coming through and making sure we are doing the right thing." ADA Rucker testified that around 2007 she started to become concerned about cases in which people were being stopped and then arrested based solely on their having entered or exited a Clean Halls building. Especially in 2009, judges began dismissing these cases frequently, sometimes saying that the police had no right to approach the arrested person in the first place.*fn64
ADA Rucker also started to receive a steady stream of complaints about trespass arrests from the defense bar, the Legal Aid Society, and the Bronx Defenders.*fn65 At first, she ignored the complaints. But in 2010, her staff began telling her that judges were not only dismissing trespass cases, but were finding evidence that the defendant lived in the building where the trespass was said to have occurred.*fn66
Finally, in 2011, ADA Rucker investigated the law governing trespass stops based on entry to and exit from a Clean Halls building, and she determined that the office's position on the prerequisites for a legal stop had been wrong.*fn67
She sent memos to a number of commanders and other police officials clarifying that, contrary to previous statements, observing someone exiting a Clean Halls building is not by itself a sufficient justification for a stop.*fn68 ADA Rucker testified that she sent the memos in her official capacity, and that the memos expressed the views of the Bronx DA's office.*fn69
I find ADA Rucker's testimony credible. It is no small matter when an ADA publicly suggests that the NYPD has been engaged in a recurring pattern of unlawful stops. Such testimony is entitled to significant weight. A prosecutor has professional and institutional incentives to be skeptical of allegations that the police are making stops and arrests without a legal basis. That ADA Rucker overcame her skepticism says a great deal about the severity of the problem she came to recognize. I also note that the NYPD itself found ADA Rucker sufficiently trustworthy to allow her to train police officers regarding procedures in the complaint room.*fn70
Yet defendants argue that ADA Rucker's impression that a problem existed regarding unlawful trespass stops at Clean Halls buildings was unfounded, and in fact rested only on the two specific cases she discussed in detail at the hearing.*fn71 Defendants' argument is without merit. ADA Rucker made clear that over the years she learned of "many" cases involving unlawful trespass stops at Clean Halls buildings,*fn72 that "the judges kept dismissing" them,*fn73 that "[a]t least five" judges had dismissed Clean Halls trespass cases based on lack of probable cause,*fn74 and that her concerns were also based on complaints from other ADAs, phone calls from the arraignment parts, and ADAs coming to her after leaving court, or when sent to her by their supervisors.*fn75 ADA Rucker explicitly stated on cross-examination that her concerns were not based only on the anonymous letter and the indoor stop highlighted by defendants.*fn76
To the extent that ADA Rucker's concerns were based partly on
statements made by non-parties who did not testify at the hearing and
whose statements do not fall under any hearsay exception, I give no
weight to the truth of those statements. I do not accept, however, the
insinuation that ADA Rucker invented the problem of unlawful Clean
Halls trespass stops in order to lessen the Bronx DA's
caseload,*fn77 or that she imagined the dismissed
trespass cases under pressure from the Bronx Defenders.*fn78
ADA Rucker's concerns are independently corroborated by
numerous "decline to prosecute" affidavit forms. As ADA Rucker
explained, the Bronx DA's office produces these affidavits after a
police officer or witness is interviewed and the office declines to
prosecute the case.*fn79
The decline to prosecute forms are an important source of information and I have reviewed each of them. Plaintiffs entered into evidence twenty-six forms generated by the Bronx DA's office in support of its decision not to prosecute cases involving arrests for trespass outside TAP buildings in the Bronx over three sample months in 2011.*fn80
Without giving weight to the truth of any hearsay statements
attributed to arrestees in the decline to prosecute forms, the forms
persuasively show that ADA Rucker was not alone in the Bronx DA's
office in perceiving a recurring problem involving legally unjustified
trespass stops and arrests outside Clean Halls buildings.*fn81
Defendants concede that the forms are, at minimum, admissible
"for the limited purpose of establishing that officers' observations
of entries/exits were the bases for the underlying stops," though
defendants question whether the forms can support this finding in the
testimony from the assigned ADA and further paperwork.*fn82
Defendants were free to elicit such testimony and introduce such paperwork. They did not.*fn83 I decline to draw inferences in defendants' favor based on the speculative possibility that further testimony would have revealed persuasive legal justifications for the stops described in the forms.
In an Appendix to this Opinion, I have collected excerpts from the twenty-six narratives of stops and arrests that appear in the decline to prosecute forms.*fn84 One of the shorter and less redacted narratives reads:
On January 5, 2011 the defendants were observed exiting a
[C]lean [H]alls building. The defendants stated they were there to visit a tenant in the building. After being arrested[,] a tenant from the building did corroborate the defendant[s'] statements and the tenant stated that both defendants were in the building as his guests.
Therefore, the People are declining to prosecute this case at this time [redacted].*fn85
Based solely on a review of these forms, none of the stops leading to the arrests described in the forms were based on a reasonable suspicion of trespass. All were based merely on exit or entry and exit from a Clean Halls building.*fn86 Thus, over the course of three months in 2011, there were at least twenty-six arrests for trespass outside Clean Halls buildings in the Bronx that resulted from stops lacking reasonable suspicion. As will be discussed in greater detail below, these arrests independently suggest a widespread practice of unlawful stops.*fn87
In sum, ADA Rucker's testimony and the supporting exhibits, including the decline to prosecute forms, contained more than enough evidence to support the conclusion that there is a clear and substantial likelihood that plaintiffs will be able to prove at trial that NYPD officers in the Bronx repeatedly stopped and questioned people on suspicion of trespass simply because they were observed exiting or entering and exiting a Clean Halls building. ADA Rucker's testimony and the supporting exhibits show that a nexus existed between the Clean Halls program and the kinds of unlawful trespass stops described by plaintiffs and quantified by Dr. Fagan, as discussed in the sections below. That is, the stops of people exiting or entering and exiting Clean Halls buildings took place because the buildings were enrolled in Operation Clean Halls.
2. Findings of Fact Regarding Plaintiffs' Stops
Plaintiffs offered testimony at the preliminary injunction hearing regarding their experiences in having been stopped on suspicion of trespass outside Clean Halls buildings in the Bronx. Sometimes plaintiffs' accounts were corroborated by other plaintiffs and witnesses. In a few cases, the parties were able to identify officers who took part in the stops, and these officers testified. In other cases, neither plaintiffs nor defendants were able to identify the officers.
Defendants argue that plaintiffs failed to provide sufficient information to identify the John Doe officers in the case, and that as a result this Court should not credit plaintiffs' testimony.*fn88 Defendants go so far as to suggest that the stops about which plaintiffs testified "may not have occurred at all."*fn89
Based on the testimony described below, I reject this contention. Perhaps the strongest sign of the credibility of plaintiffs' testimony is the striking similarities among plaintiffs' stops. A person approaches or exits a Clean Halls building in the Bronx; the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing; attempts at explanation are met with hostility; especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van in order to carry out an extended interrogation about the person's knowledge of drugs and weapons; and in some cases the stop escalates into an arrest for trespass, with all of the indignities, inconveniences, and serious risks that follow from an arrest even when the charges are quickly dropped.
Nevertheless, while I found plaintiffs' testimony credible, it would obviously have been valuable to hear from the unnamed officers involved in plaintiffs' stops. The officers were never identified. I find that this was due in part to the lack of specificity in some of plaintiffs' memories of their encounters. At the same time, I also find that defendants made inadequate efforts to identify officers based on the information plaintiffs did provide.
Defendants claim that Sgt. Robert Musick of the NYPD's Special Litigation Support Unit "conducted an exhaustive search to determine the officers involved in the purported incidents presented by plaintiffs at the hearing."*fn90 Sgt.
Musick's reference to his "limited attempts" to identify the officers is closer to the mark.*fn91 A large part of Sgt. Musick's investigation involved searches of the electronic UF-250 database, which contained only the addresses and birthdates - not the names - of individuals stopped after July 2010 when the stop did not result in a summons or arrest.*fn92
Sgt. Musick conceded that he is "definitely not an expert" at using the database.*fn93 For example, he was only able to narrow down the potential list of officers who might have stopped Jerome Grant in the summer of 2011 (discussed below) to a list of three hundred. Yet this list included officers of all ethnicities, while Grant had testified that one of the two officers was Asian. On cross-examination, Sgt. Musick explained that he had not searched for Asian officers within the list of three hundred because Grant's description of the other officer did not specify an ethnicity.*fn94 This makes no more sense than refusing to search a drawer for a pair of striped socks because one cannot remember which color shoes they match: there was no reason to make the search for the Asian officer contingent on obtaining more information about his partner. In the end, Sgt. Musick was unable to locate a single UF-250 for any of the eleven stops to which plaintiffs testified.*fn95
Because I find it extremely implausible that any plaintiff simply invented the stop or stops to which he or she testified, because defendants failed to make a sufficiently persuasive effort to identify the officers involved, and because the officers who did testify failed to undermine any plaintiff's credibility, I decline to draw speculative inferences in defendants' favor regarding the reasons that unidentified officers might have provided for their stops.
a. Charles Bradley's Stop
On May 3, 2011, after finishing his work for the day as a security guard, Charles Bradley, a black fifty-one year old resident of the Bronx, took the subway to visit his fiancee, Lisa Michelle Rappa, as they had arranged the evening before.*fn96 Rappa lived in the Bronx at 1527 Taylor Avenue.*fn97 Bradley formerly lived with Rappa and had keys to her apartment, but following a disagreement Bradley had returned his keys.*fn98 1527 Taylor Avenue is a Clean Halls building.*fn99
When Bradley arrived at Rappa's apartment building, a young man who lived on the first floor and knew of Bradley's and Rappa's relationship let Bradley into the building. Bradley then walked up the stairs to Rappa's apartment on the fifth floor and knocked. Because Rappa is deaf in one ear, Bradley waited a minute or two. When there was still no response, he returned downstairs and left the building. Outside, he looked up toward Rappa's window.*fn100
While Bradley was standing on the sidewalk, an unmarked green police van approached and an officer in the passenger seat - later identified as Officer Miguel Santiago - gestured for Bradley to come over.*fn101 After Bradley approached the van, the officer got out and asked, "What are you doing here?"*fn102
Bradley explained he was there to see Rappa, and that he worked as a security guard. Bradley testified that the officer responded to his attempts to explain his presence by suggesting Bradley was acting "like a fucking animal,"*fn103 searched
Bradley's pockets,*fn104 then told Bradley to place his hands behind his back. Once
Bradley was handcuffed, the officer placed him in the van, where there were two other officers. While the van drove away, the officers began to question Bradley: "When was the last time you saw a gun? When was the last time you got high? When was the last time you bought some drugs?"*fn105
After twenty or thirty minutes in the van, the officers stopped at the station house. Bradley was taken into a room, stripped, and told to wait.*fn106 He was searched in "inappropriate areas."*fn107 For the next two hours, he waited in a cell with other people who had been arrested. He was then fingerprinted and given a desk appearance ticket and a date to appear in court to answer the criminal charge of trespassing. Later, Bradley's defense attorney provided the Bronx DA's office with a notarized letter from Rappa stating that Bradley had been visiting her.*fn108
"[A]t that point in time," Bradley testified, "paperwork was submitted to me stating that the People of New York declined to prosecute."*fn109
Officer Santiago also testified at the hearing, explaining that he worked two tours on May 3, 2011, the first from 4 a.m. to 12:35 p.m. and the second from 1 p.m. to 9:30 p.m. Bradley's arrest took place around 5:20 p.m., after Officer Santiago had been patrolling with his partner, Officer Landro Perez, for a few hours without incident.*fn110 Officer Santiago emphasized that 1527 Taylor Avenue is in "a drug prone location" with "a lot of robberies, a lot of shootings" in the area.*fn111 It is a "high crime neighborhood."*fn112
Officer Santiago's account of Bradley's arrest differed from Bradley's in several respects. Officer Santiago claimed that before stopping Bradley, he had observed Bradley at the end of a hallway inside the building "suspiciously walking back and forth" for two or three minutes and "disappearing."*fn113 Officer Santiago claimed that he was able to see Bradley's suspicious behavior even though he was inside a police van parked across the street, twenty to thirty feet from the front door, separated from Bradley not only by the street but by the windows of the front door, a vestibule, the windows of an inner door, and the hallway.*fn114
Officer Santiago testified that he approached Bradley after Bradley exited the building and said: "Excuse me, sir, could you come over here?"*fn115 In response to Officer Santiago's questioning, Bradley could not tell him the name of his girlfriend or her apartment number, and could not produce any identification.*fn116
After he arrested Bradley for criminal trespass, they drove five or ten minutes to the precinct.*fn117 There was only one other officer in the van.*fn118 Officer Santiago did not ask Bradley any questions along the way, and Bradley was not strip-searched upon arrival at the station.*fn119
The paperwork Officer Santiago completed with regard to Bradley's stop
and arrest contained numerous, self-serving errors.*fn120
In direct contradiction
to his testimony at the hearing, Officer Santiago made the following
statements on the arrest fact sheet: first, that he observed Bradley
in the building for seven minutes; second, that he stopped Bradley
inside the building; third, that he went to the apartment Bradley said
he was visiting; and fourth, that the apartment was
occupied.*fn121 By all accounts, each of these
statements was false. Officer Santiago's credibility was further
called into question by the fact that in 2002 or 2003 he lied within
the scope of his police work by creating two improper summonses to
help a friend.*fn122 Finally, Officer Santiago failed
to complete the UF-250 form he was required to fill out for Bradley's
I find Bradley's account credible. Bradley entered a Clean Halls building based on an invitation from a tenant, walked upstairs to the tenant's residence, found the tenant not home, then returned outside and waited on the sidewalk while considering what to do. In response to Officer Santiago's questions, Bradley offered reasonable and unsuspicious answers. Bradley's conduct provided no further basis for a stop.
b. Abdullah Turner's Stops
On the evening of March 26, 2011, Abdullah Turner, a black twenty-four year old, had plans to go to an engagement party in the Bronx with his close friend Anginette Trinidad.*fn124 Both Turner and Trinidad testified at the hearing that Trinidad was carrying a sweater in a plastic bag.*fn125 When the two had nearly arrived at the party, Trinidad told Turner she had to return the sweater to someone in the next building, 2020 Davidson Avenue, which is a Clean Halls building.*fn126
While Trinidad went inside, Turner remained outside and called another close friend, Felisha Black, on his cell phone. During the call, he paced in a circle on the sidewalk, trying to stay warm.*fn127 It was "freezing cold" that night, but Turner was wearing only a cardigan sweater and t-shirt with no coat or hat.*fn128
After Turner had been pacing and talking on the phone for about five
minutes, someone "snatched the phone out of my hand."*fn129
When Turner turned,
he saw three police officers: one who was Hispanic and a little
stocky; one who was Indian, tall and slim; and a third officer that
Turner did not "get a good look at."*fn130 One of the
officers, Kieron Ramdeen, testified that he was only with one other
officer, Michael Pomerantz.*fn131 Officer Ramdeen's
testimony on this point
was not credible, as Officer Pomerantz's own memobook stated that he
was patrolling on the night of March 26 with Officer Ramdeen and
Premativo Montanez, a Hispanic officer.*fn132
Turner testified that the Hispanic officer who took his phone began questioning him about what he was doing and whether he lived at 2020 Davidson. Turner explained that his friend was returning a sweater and they were on their way to a party in the next building. The officer asked for identification, and Turner gave him his driver's license. After the officer saw that Turner did not live on the block, he asked again what Turner was doing at 2020 Davidson, and Turner explained again.*fn133 Then the officer asked: "So you don't know anybody who lives in this building?"*fn134 When Turner said no, the officer asked him to stand against the wall.*fn135
While Turner stood against the wall, the Hispanic officer entered 2020 Davidson with Turner's driver's license and cell phone still in his possession. Officer Ramdeen, now alone with Turner, continued asking Turner the same questions as before. Eventually, Trinidad emerged from the building, no longer carrying the plastic bag, and Turner pointed to her as proof of what he had been saying. Trinidad confirmed Turner's story while the other officers returned. The Hispanic officer asked for Trinidad's ID, and Trinidad gave it to him.*fn136 Then the officer asked her if she had "anything on her that she shouldn't have," and in response, Trinidad said she had "a little pocketknife that her husband gave her for protection and a bag of marijuana."*fn137
After confiscating these items, the Hispanic officer approached Turner and pointed to a sign on 2020 Davidson and asked him if he knew what the sign meant. Turner said he did not. The sign stated that 2020 Davidson was enrolled in Operation Clean Halls. The officer told Turner that he was trespassing and was going to jail. Turner asked how he could be trespassing if he was outside. The officer repeated that Turner was going to jail and placed him in handcuffs.*fn138
After being driven to the precinct in a paddy wagon, Turner spent several hours waiting, was fingerprinted, and then was transferred to central booking, where he spent several more hours. It was not until the next day that a judge released Turner. He was then obligated to return to court eight to ten times before the charges were dismissed.*fn139 Turner testified that the events on March 26 made him feel "defenseless."*fn140 Trinidad's testimony at the hearing supported Turner's account of the stop.*fn141
Officer Ramdeen testified to a different version of events. He testified that he and Officer Pomerantz were driving past 2020 Davidson when he saw Turner in the lobby. Officer Pomerantz stopped the car and Officer Ramdeen watched as Turner paced aimlessly in the lobby for two to three minutes, occasionally looking up the stairs. Aware that 2020 Davidson was a Clean Halls building, Officer Ramdeen approached Turner, who then exited the lobby. In response to Officer Ramdeen's brief questioning, Turner volunteered that his friend was engaged in a drug deal.*fn142 "I asked him what he was doing in the building and, in sum and substance, he responded with, I am not going to lie, Officer, I just came with my friend. She went upstairs to buy weed."*fn143
Officer Ramdeen did not record this alleged confession in his arrest report.*fn144
Officer Ramdeen then arrested Turner for trespassing, basing "the
charges on the fact that he had no lawful reason to be in the building
and that he knowingly was there to buy marijuana."*fn145
Officer Ramdeen could not recall having arrested Trinidad. He
conceded that neither he nor Officer Pomerantz took any steps to
investigate or arrest the drug dealer who, according to their version
of events, was operating that night a few stories above them at 2020
I find Turner's testimony to be credible. Turner stopped briefly at 2020 Davidson so that Trinidad could allegedly return a sweater. While Trinidad went inside, Turner talked on his cell phone outside for a few minutes. Officers Ramdeen, Pomerantz, and likely Montanez saw him standing outside the building in the cold, stopped him, and questioned him. Turner's responses to the officers' questions were reasonable and unsuspicious. Turner provided no other grounds for suspicion. I did not find credible Officer Ramdeen's testimony concerning Turner's spontaneous confession. Turner persuasively denied that he made the confession,*fn147 and the officers took no steps to investigate or stop the drug dealer who (according to Officer Ramdeen's testimony) was operating several floors above them. I also did not find credible Officer Ramdeen's testimony concerning his observation of Turner's suspicious pacing inside the building before the officers approached. Based on the totality of the evidence presented at the hearing, I do not believe that Turner entered the building.*fn148
Finally, Turner credibly testified to having been stopped on another night during December 2011 or January 2012 outside of his own building, 2249 Morris Avenue, which is also a Clean Halls building in the Bronx. As Turner was exiting the building, a police car pulled up. Turner's thirteen-year-old brother, a friend, and the friend's nephew were talking at the front of the courtyard. When Turner began to step out of the courtyard, a female officer got out of the car and asked whether they all lived in the building, and they all responded yes. Then the officer asked for Turner's identification, and he gave it to her.*fn149 Finally, the officer "told us that we can't stand in front of our building, so when they come back we would need to be gone."*fn150 Turner testified that he did not feel free to leave while the officer talked to him: "[S]he had my ID, and I don't know anyone . . . who ever just walked away from a cop in the middle of a conversation."*fn151 In this encounter as well, I find that Turner's behavior provided no grounds for suspicion of trespass or any other crime.
As to whether Turner's second stop was based on the suspicion of trespass, the evidence is less clear.*fn152 Nevertheless, because I found Turner's testimony credible, because the officer's questions concerned the right of Turner and the others to be on Clean Halls property, because there is no indication that the officers suspected Turner of any other crime, and because the parties were unable to locate a UF-250 or any other documentation showing otherwise, I find it more likely than not that Turner's second stop was based on the suspicion of trespass.
c. J.G.'s Stop
J.G. is the son of plaintiff Jaenean Ligon and the brother of J.A.G. and Jerome Grant. The family lives in a Clean Halls building in the Bronx.*fn153
J.G., who is black and seventeen years old, testified that the first
time he remembered being stopped around his apartment building was on
an evening in August 2011. He had gone to a nearby store to buy
ketchup for dinner. On his way back, he saw two plainclothes officers
with badges in front of his building and three uniformed officers
across the street. When J.G. reached his building, the officers
stopped him and began asking him questions, such as where he
was coming from, where he was headed, and what he had in his bag. After
J.G. answered that he had ketchup in the bag, one of the officers
asked him to raise his hands, then asked him what he had in his
pockets. The officer started to frisk him, first shaking J.G.'s
pockets, then putting a hand in J.G.'s left pocket,*fn154
J.G.'s arms down. After the search, the officer asked for J.G.'s ID
and took his name down on a notepad. Then the other officer looked in
J.G.'s bag and inspected the ketchup. The officers asked for J.G.'s
apartment number and rang the bell. Finally, after Ligon had come
downstairs and confirmed that J.G. was her son, the officers handed
her the ketchup and let them go.*fn155
Ligon's testimony supported J.G.'s account. Ligon testified that she sent J.G. to the store for ketchup one evening when she was cooking chicken and french fries. A few minutes after he left, she heard her bell ring.*fn156 Jerome Grant answered the bell and an unfamiliar voice said: "[C]an you please come down and identify your son."*fn157 Hearing these words, Ligon thought J.G. was dead or hurt. She ran downstairs and collapsed on the steps when she saw J.G. standing, uninjured, beside the officers. The plainclothes officer who was standing with J.G. approached Ligon, laughing, and handed her the ketchup.*fn158
I find J.G.'s and Ligon's testimony credible. J.G. provided no grounds for suspicion of trespass - or indeed of any other crime - as he approached his building. He also provided no grounds for suspicion in his responses to the officers' questions. J.G. provided no further basis for a stop, much less a frisk. Because the officers did not ask J.G. whether he lived in the building, it is unclear whether J.G.'s stop was based on the suspicion of trespass. Nevertheless, because J.G. was only stopped as he approached a Clean Halls building, because the officers' questions indicate no suspicion of any other crime other than trespass, and because the parties have been unable to locate a UF-250 indicating otherwise, it remains more likely than not that J.G. was stopped on suspicion of trespass - if his stop was indeed based on a particularized suspicion of any crime at all.
d. Jerome Grant's Stop
Jerome Grant, J.G.'s older brother and Ligon's son, testified that his grandmother, Betty Ligon, lives at 274 Bonner Place in the Bronx.*fn159 274 Bonner Place is a Clean Halls building.*fn160
Grant, who is black and nineteen years old, testified that the first time the police stopped him at his grandmother's building was in July 2011. He had been playing basketball with his little brother J.A.G., his cousin, and a friend. In the evening, the group needed to pick up a key from Grant's grandmother's house, so they began walking toward it and sent J.A.G. to run ahead. J.A.G. went inside the building without leaving the door open, so the others knocked loudly on the door.*fn161 Grant's cousin was "a little upset" by being locked out.*fn162
Two uniformed male police officers, one white and one Asian, approached with flashlights and asked if Grant, his cousin, and his friend lived in the building, and if they were trespassing. Grant explained that they were visiting their grandmother's apartment to get a key, and Grant's cousin asked if they were doing anything wrong.*fn163 The Asian officer responded, "I'm the one that's talking here."*fn164 When Grant's cousin said that he just wanted to know if there was a problem, the Asian officer told him to "hush up" and there would not be any problems.*fn165 Then the officers made Grant, his cousin, and his friend stand with their backs against a wall and take out their IDs.*fn166
When only Grant had an ID, the Asian officer told Grant's cousin and friend: "I could take you in because you don't have ID."*fn167 The Asian officer then wrote down Grant's cousin's and friend's names and birthdates in a notepad while the white officer did the same for Grant.*fn168
Then the Asian officer returned Grant's ID and told the group to turn around and place their hands against the wall. The Asian officer asked Grant's cousin whether he had any drugs or blades in his pockets, then grabbed his shoulders and patted him down to the ankles, stopping to remove all the contents from his pockets.*fn169 The white officer frisked Grant's friend and Grant. Finally, the Asian officer told the group to put their backs against the wall again, warned them to carry their IDs with them, and explained that the officers had wanted to make sure the group was not trespassing. J.A.G. came outside shortly after the officers left. Grant testified that he did not feel free to leave until the officers told him to go home.*fn170
I find Grant's testimony largely credible, though it conflicted in
certain minor details with his deposition testimony.*fn171
Defendants argue that the officers approached based on the
group knocking on the door, rather than on the suspicion of
trespass.*fn172 But I accept Grant's testimony that
the John Doe defendant Asian officer mentioned trespassing as the
basis for the stop.*fn173
e. Roshea Johnson's Stop
Roshea Johnson is the brother of plaintiff Letitia Ledan.*fn174
through 2010, Johnson lived at River Park Towers, a complex of
buildings in the Bronx. Sometimes he lived with Ledan, and at other
times with a friend. River Park Towers is enrolled in Operation Clean
On the morning of Father's Day 2010, Johnson, who is black and was then thirty-four years old, went to Ledan's apartment to change into clothes he had left there. To enter River Park Towers, it is not necessary to pass through security or a closed gate, or to have a key. Johnson walked into Ledan's building and took the elevator to her floor. When he knocked at Ledan's door, there was no answer. He went back to the elevator and returned to the ground floor, planning to call Ledan on the payphone in front of a supermarket in the complex.*fn176
As Johnson crossed the street to the payphone, a black van pulled up with police officers inside. One officer asked him where he was coming from.*fn177
Johnson told the officer he was coming from his sister's house but she was not home.*fn178 Then the officer "mentioned something about trespassing."*fn179 Johnson tried to tell the officer that he could prove he was not trespassing, and that he had a letter in his pocket with his name and his sister's address on it. The officer responded by handcuffing Johnson and placing him in the back of the van.*fn180
The officers then drove the van to another part of the complex and questioned Johnson.*fn181 One of the officers asked Johnson "where was the drugs or the guns at."*fn182 Johnson said he "didn't know where the drugs or the gun was."*fn183 The officers continued asking similar questions for a few minutes, then pulled out of the complex.*fn184 During the drive, the officers "said you could make it easy on yourself if you tell us where the guns and the drug was, but I didn't know where no guns or drugs was."*fn185 Finally, after about fifteen or twenty minutes, the officers pulled over at a location about a mile from River Park Towers, opened the door, and told Johnson to get out of the van.*fn186
"When I got out of the van, he said maybe you don't know nothing, and took the handcuffs off me and let me go."*fn187
Looking back, Johnson said that the encounter made him feel "angry and kind of helpless."*fn188
I find Johnson's testimony credible. Johnson provided no grounds for suspicion of trespass as he entered and exited Ledan's building. He also provided no grounds for suspicion in his interactions with the officers. Nor did Johnson's conduct provide any other basis for a stop.
f. Letitia Ledan's Stops
Letitia Ledan, Roshea Johnson's sister, testified that she has lived at River Park Towers for the past eleven years. She chairs the maintenance and elevator committee in the tenants' association. As noted above, River Park Towers is enrolled in Operation Clean Halls.*fn189
Ledan, who is black, testified that she has been stopped six times in or around her building. Twice the stops occurred outdoors. The first took place at some time in 2009, although she could not provide a more precise date. Two white male officers stopped her in front of a supermarket in the River Park Towers complex as she was about to leave the complex. They asked her whether she lived there and whether she had an ID, then took her ID, looked at it, handed it back to her, and said to have a nice day. During the roughly three-minute encounter, she did not feel free to leave because the officers were standing in front of her and had her ID.*fn190
Ledan's second outdoor stop occurred in the summer of 2011. Ledan was returning home from work in the afternoon and saw four uniformed police officers standing with her husband and two of her friends in front of her building. While one of the officers patted down one of Ledan's friends, another was patting down Ledan's husband and removing items from his pockets. As Ledan approached her building, she asked what was going on.*fn191 Then an officer approached her, and she asked, "[W]hy are you stopping us?"*fn192 The officer told her to be quiet and asked whether she lived at the building, then asked for her ID, which she gave to him.*fn193 After returning her ID and finishing the search of her husband and friends, the officers "just started walking away."*fn194 As in 2009, Ledan did not feel free to leave during the encounter because the officer blocked the entrance to her building and had her ID.*fn195
I find Ledan's testimony as to both stops credible. Ledan provided no grounds for suspicion of trespass, or any other crime, on either occasion. She also provided no grounds for suspicion in her responses to the officers' questions. Ledan's conduct provided no other basis for a stop. Based on the officers' questions, Ledan's first stop was most likely on suspicion of trespass. Plaintiffs have provided insufficient evidence, however, that Ledan's second stop was a trespass stop. The second stop could just as well have been based on the suspicion that Ledan was somehow involved in the suspected crime for which her husband and friends were stopped.
g. Fernando Moronta's Stop
Fernando Moronta, who is Latino, was thirty-six years old at the time of the hearing. He lives in a Clean Halls building in the Bronx. One day after work in the winter of 2008, Moronta went with his brother, Eladio Vasquez, to his brother's apartment building at 1453 Walton Avenue in the Bronx, which is also a Clean Halls building.*fn196
When Moronta left the building at around 10:30 p.m., a police van pulled up and half a dozen uniformed officers exited and began questioning Moronta about where he was going and what he was doing in the building. After Moronta explained that he had been at his brother's apartment, one of the officers asked if he had anything sharp in his pockets and then patted him down and searched his pockets.*fn197 Then the officer asked if they could go upstairs to confirm Moronta's story, and Moronta gave his permission. A white officer asked for Moronta's ID.*fn198 On the way up in the elevator, a black officer told Moronta that he "better be telling the truth," because if Moronta's brother did not live in the building, Moronta would be arrested for trespassing.*fn199
At the door, Moronta's brother identified Moronta, and after the white officer compared the name given to the name on Moronta's ID, "he looked at me and smirked and gave my ID back."*fn200 On the way down the elevator, the officers explained that they had stopped Moronta because "the neighborhood is bad, got drugs and stuff like that."*fn201 Moronta stated that he did not feel free to leave until he left his brother's building.*fn202
I find Moronta's testimony credible. Moronta provided no grounds for suspicion as he exited his brother's building, or in his responses to the officers' questions. Moronta's conduct provided no other basis for a stop.
h. Kieron Johnson's Stop
Kieron Johnson, who is black, was twenty-one years old at the time of the hearing. He lives in a Clean Halls building in the Bronx and testified to having been stopped in or near Clean Halls buildings seven or eight times, and to having seen others stopped about ten times. His best friend, plaintiff Jovan Jefferson, lives across the street at 1546 Selwyn Avenue, another Clean Halls building.*fn203
On a warm day in 2010, around noon, Jefferson invited Johnson over to play basketball. Johnson went to Jefferson's building and waited outside, about six steps away from the door.*fn204 After about two minutes, two uniformed officers "pulled up in a car and . . . jumped out and ran out and around me."*fn205 One asked whether Johnson had been in the building. After he replied that he had not, one of the officers asked for his ID while the other patted down his front pockets and reached into his back pockets, where he kept his wallet.*fn206 The officer looked through his wallet, then the other officer returned his ID and told him he was free to go. Until then, Johnson did not feel free to leave.*fn207
I find Johnson's testimony credible, despite his inability to offer a more precise date for the stop. Defendants argue that Johnson's stop was not for trespass, because he testified that at the time of the stop, he believed the officers were truancy officers.*fn208 But defendants offer no persuasive evidence that the officers were, in fact, truancy officers.*fn209 Even if the officers were truancy officers, defendants fail to show how this fact would undermine plaintiffs' claim that Johnson was stopped on suspicion of trespass.*fn210 Presumably truancy officers are no less able to make trespass stops than any other kind of officer. Moreover, Johnson's testimony that the officers asked him whether he had been inside the building suggests a trespass stop.*fn211
Based on Johnson's testimony, I find that he provided no grounds for suspicion of trespass as he waited outside Jefferson's building, in his responses to the officers' questions, or in any other manner.
i. Jovan Jefferson's Stop
Jovan Jefferson, who is black, was twenty years old at the time of the hearing. As noted above, he lives in a Clean Halls building in the Bronx. Jefferson testified that he had been stopped outside Clean Halls buildings about seven to eight times, and inside Clean Halls buildings about three to four times.
Jefferson's friend Brandon Muriel lives at 1515 Selwyn Avenue, another Clean Halls building in the Bronx.*fn212
Jefferson testified that his most recent stop outside a Clean Halls building occurred between April and June 2012. He and Muriel had been watching SportsCenter in Muriel's apartment when Muriel left for work. It was shortly after noon as the two of them stepped out of Muriel's building.*fn213 A passing police van stopped and three officers got out, including two that Jefferson recognized as officers named "Marquez" and "Rodriguez."*fn214 Jefferson testified that these officers had previously stopped him inside his building, and had arrested Kieron Johnson for trespass inside Jefferson's building at a time when Jefferson was with him. The officers had also arrested another friend of Jefferson's for trespass.*fn215 I find it more likely than not that Rodriguez participated in the stop that Jefferson described.
Rodriguez asked Jefferson and Muriel where they were coming from and
why they were in the building. The officers also asked Muriel for his
ID. Then Jefferson's mother drove by with his aunt.*fn216
After his mother got out and approached the officers,
Rodriguez stated that Jefferson was "free to go and that he was just
talking to me."*fn217 Jefferson testified that he did
not feel free to leave before his mother approached.*fn218
I find Jefferson's testimony largely credible, despite his failure during his deposition to remember the stop to which he testified at the hearing.*fn219 Given the number of times Jefferson has apparently been stopped, it is understandable that he might forget one and then remember it later, just as it would be understandable if a police officer were unable to remember a relatively brief, unrecorded stop. I find that neither Jefferson nor Muriel provided grounds for suspicion of trespass as they exited Muriel's building, as they responded to the officers' questions, or in any other manner.
3. Expert Testimony Regarding UF-250 Forms
Plaintiffs' expert witness, Dr. Jeffrey Fagan, is a criminologist with expertise in statistics.*fn220 Dr. Fagan performed a statistical analysis of data contained on certain UF-250 forms completed by NYPD officers in the Bronx in 2011.*fn221 As noted above, officers are required to complete a UF-250 form after each stop.*fn222 The front and back of the form contain various checkboxes and fields in which officers indicate the nature of the stop and the circumstances that led to the stop.*fn223
Dr. Fagan ultimately concluded that the NYPD recorded 1,663 stops outside a Clean Halls building in the Bronx in 2011 based only on a suspicion of trespass, and without observing any indoor behavior.*fn224 Of these stops, Dr. Fagan concluded that 1,044 lacked any justification on the front or back of the UF-250 form that would have constituted reasonable suspicion of trespass.*fn225 In other words, Dr. Fagan concluded that sixty-three percent of the recorded trespass stops outside Clean Halls buildings in the Bronx in 2011 where no indoor behavior was observed were not based on any articulated reasonable suspicion.*fn226
Defendants offer a number of arguments against Dr. Fagan's conclusions. First, they argue that it is impossible to conclude whether reasonable suspicion existed for a stop based on a UF-250 alone because "it is a conclusory form that does not capture all details, nuances and circumstances that may lead to a stop."*fn227 Defendants argue that Dr. Fagan had an obligation to incorporate into his analysis other sources of information, such as "911 calls or SPRINT Reports, memobooks, arrest and complaint reports, Trespass Crimes Fact Sheets, Owner's Affidavits and/or criminal court complaints."*fn228 Defendants also criticize Dr. Fagan for having no expertise regarding police training on street stops and reasonable suspicion, and for having conducted no interviews with police personnel.*fn229
If defendants believe that such research would have shown that
reasonable suspicion existed for some or all of Dr. Fagan's 1,044
unlawful stops, defendants were free to conduct such research
themselves and introduce evidence rebutting Dr. Fagan's conclusions
regarding specific UF-250 forms. Defendants did not.*fn230
In general, as I stated when evaluating Dr. Fagan's methods
the contents of UF-250s are admissible and probative.*fn231
As defendants themselves emphasize, officers are required to record all the reasons justifying a stop,*fn232 and the UF-250 provides spaces for officers to record any reason.*fn233 To the extent that plaintiffs used the UF-250 database primarily to estimate the magnitude of the problem at issue in this case, plaintiffs were under no legal obligation to supplement "the extremely rich and informative material"*fn234 contained in the UF-250 database with other paperwork or testimony.
In any case, even if there are reasons to believe that Dr. Fagan's exclusive reliance on UF-250s led to inaccuracies, the inaccuracies generally favored defendants, not plaintiffs. UF-250s present a one-sided picture of a stop: they are completed not by neutral third parties, or with the cooperation of the stopped person, but by officers who have obvious incentives to justify the stops they have made.*fn235
More significantly, evidence from the hearing suggested that many stops take place for which no UF-250 form is ever generated. Sgt. Musick failed to identify a single UF-250 form for any of the eleven stops to which plaintiffs testified,*fn236 and in both of the stops where officers were clearly identified, the officers admitted that they had failed to complete a UF-250 for the stop.*fn237
Plaintiffs also introduced two reports by the Civilian Complaint Review Board ("CCRB") stating that there is a systemic problem with officers failing to complete UF-250 forms after stops.*fn238
In light of the above, I reject defendants' contention that the sole reliance on UF-250 forms as a statistical tool provides a categorically inadequate basis for determining the rough magnitude of unlawful stops in this case. I also find that failures to fill out UF-250 forms likely led to a significant undercounting of both lawful and unlawful stops in Dr. Fagan's analysis.
Second, defendants attack Dr. Fagan's analysis based on his failure to take account of a field on the UF-250 labeled "Period of Observation Prior To Stop."*fn239 Defendants correctly note that the location field that Dr. Fagan matched to Clean Halls addresses indicates not the location of the suspected trespass but the location of the stop.*fn240 According to defendants' theory, Dr. Fagan's analysis overcounted the number of outdoor stops based on suspicion of trespass in Clean Halls buildings because officers may have stopped someone near a Clean Halls building on suspicion of trespass in a nearby building.*fn241 As defendants conceded in their opening argument, however, the possibility of a discrepancy between the location of the suspected trespass and the location of the stop "cuts both ways."*fn242
Just as Dr. Fagan's analysis might erroneously include stops that were in fact based on suspicion of trespass in a building near a Clean Halls building, so might his analysis erroneously exclude stops that were based on suspicion of trespass in a Clean Halls building but took place elsewhere.*fn243 I am not persuaded that one effect would be larger than the other.
On the other hand, there is some validity to defendants' argument that Dr. Fagan's method might have failed to exclude stops based wholly or in part on observations of indoor behavior, despite Dr. Fagan's attempt to exclude these stops.*fn244 Dr. Fagan assumed that whenever an officer checked "Outside" rather than "Inside" on a UF-250 and gave no indication elsewhere on the form of having observed indoor behavior,*fn245 the officer's suspicion was not based at all on an observation of indoor behavior.*fn246 But it is easy to imagine an officer observing behavior inside a Clean Halls building, making a stop outside, checking the "Outside" box as a result of the stop location, describing the location of the outdoor stop in greater detail in the "Type of Location" field, and failing to indicate elsewhere on the form that all or part of the observed behavior took place inside.
Nonetheless, defendants have failed to show why it was necessary for Dr. Fagan to exclude all stops involving the observation of indoor behavior in the first place. An outdoor stop based on the observation of unsuspicious indoor behavior may be just as unconstitutional, and just as potentially relevant to establishing a pattern of unlawful trespass stops outside Clean Halls buildings,*fn247 as a stop based solely on the observation of unsuspicious outdoor behavior near a TAP building, or a person exiting a TAP building. Perhaps Dr. Fagan attempted to exclude all stops involving the observation of indoor behavior because these stops as a group tend to have a greater likelihood of being based on reasonable suspicion, especially if the officer observed the person indoors for a long period of time. If so, the exclusion was a gesture of methodological conservatism,*fn248 and the apparent unfeasibility of perfectly executing the exclusion should not be held against plaintiffs. While Dr. Fagan's methods may have failed to exclude some stops that were preceded by an observation of indoor behavior, this failure, by itself, is unlikely to have any significant impact on the validity of Dr. Fagan's conclusions.*fn249
Third, defendants criticize Dr. Fagan for having departed from methods
he used to analyze UF-250 forms in Davis and Floyd.*fn250
I decline to
evaluate Dr. Fagan's simple methods in the instant case through the
route proposed by defendants of analyzing Dr. Fagan's far more
complicated methods in the other two cases, determining whether those
methods were valid, comparing those methods to Dr. Fagan's methods in
the instant case, analyzing whether Dr. Fagan's methods in the instant
case are consistent with the methods in the other two cases, and then,
if any inconsistency arises, rejecting Dr. Fagan's methods in the
instant case on that basis. Instead, I will simply evaluate the
validity of Dr. Fagan's methods in the instant case on their own
Furthermore, it would be entirely understandable if the application of the method from Floyd to the instant case resulted in a lower count of unlawful stops than the method Dr. Fagan used here. The explanation for such a discrepancy is apparent. Dr. Fagan used more conservative assumptions throughout Floyd than in the instant case, and with valid reason.*fn251 The universe of stops that Floyd analyzes for unconstitutionality is vastly larger than the universe analyzed for unconstitutionality as part of the instant motion - 2.8 million stops versus 1,663.*fn252 As a result, the plaintiffs in Floyd have less of a need for precision than plaintiffs in the instant case. That does not mean that plaintiffs' precision in the instant case is spurious. Dr. Fagan's credibility should hardly be questioned in the instant case simply because, for whatever strategic or pragmatic reasons, he chose cautious but more manageable methods in another case that might result in a large number of unlawful stops being coded as lawful. Once again, the relevant question in evaluating Dr. Fagan's methods in the instant case is whether the methods are valid here, not whether they are identical to the methods used in a different case based on a different universe of stops.*fn253
Fourth, defendants persuasively note that Dr. Fagan's analysis, standing alone, does not provide a convincing methodology for establishing a causal nexus between the Clean Halls program and the stops that Dr. Fagan analyzed.*fn254 As Dr. Smith, stated in his report:
Professor Fagan's methodology, by its very nature, cannot distinguish between whatever impact Clean Halls may have had on the pattern of Terry stops in the Bronx [and] the impact other factors . . . might have had on that same pattern. . . . [I]t would be invalid to conclude that Professor Fagan has demonstrated that the Clean Halls program itself, and its implementation, caused the outcomes Professor Fagan observes and the Plaintiffs challenge.*fn255
In essence, Dr. Fagan selected a set of stops from the UF-250 database based on several selection criteria - the stops had to be in the Bronx, on suspicion of trespass only, at the location of a Clean Halls address, outside, and so on*fn256 - and then determined how many of the stops in the set were unjustified. This approach cannot show whether stops in the set were more likely to be unjustified than stops in the UF-250 database in general, or stops in some other relevant set. Much less can this approach show that belonging to the set causes an increased likelihood that a stop will be unjustified. Just as Dr. Fagan analyzed the number and percentage of trespass stops outside Clean Halls buildings that were unjustified, one could analyze the quantity of unjustified trespass stops outside any arbitrary category of building - such as green buildings, or buildings with odd-numbered addresses. If, hypothetically, the police were making a large number of unjustified stops throughout New York City, the analysis would show that a large number of stops outside odd-numbered buildings were unjustified. It would obviously be inappropriate to infer from this that the police had a customary practice of making unlawful stops outside odd-numbered buildings, or to grant a preliminary injunction requiring the police to conduct specific training regarding stops outside odd-numbered buildings.*fn257
Thus, defendants are correct that Dr. Fagan's analysis, standing alone, cannot establish a causal nexus between Clean Halls buildings and unlawful trespass stops. But plaintiffs have already established a clear likelihood of proving such a nexus based on other evidence. ADA Rucker credibly testified to the police repeatedly making unjustified trespass stops and arrests outside Clean Halls buildings because they were Clean Halls buildings.*fn258
One plaintiff testified that an officer explained an unlawful trespass stop based on the fact that it took place outside a Clean Halls building.*fn259 As discussed below, an officer in the NYPD's Legal Bureau learned through focus groups with sergeants and lieutenants that they believed it was legal to approach and question, if not stop, anyone in a TAP building even without a reason for doing so.*fn260 Finally, on 417 of the UF-250s in Dr. Fagan's original universe of 1,857 trespass stops outside Clean Halls buildings, officers handwrote phrases or words to the effect of "Clean Halls" or "Trespass Affidavit."*fn261 The purpose of a UF-250 is to record the circumstances that led to an officer's stop.*fn262 The frequency with which officers took the time to note "Clean Halls" on a form, even though there is no specific field or checkbox and no reason for doing so,*fn263 suggests that many officers thought a building's enrollment in Clean Halls contributed to the justification for the stop.
Fifth, defendants challenge the methods and assumptions Dr. Fagan
followed in processing the information contained on UF-250 forms into
conclusions regarding the number of unlawful stops.*fn264
defendants argue that many of the forms Dr. Fagan identified as
lacking an articulation of reasonable suspicion in fact contained such
an articulation. Because these arguments involve mixed questions of
fact and law that depend on a fine-grained analysis of what
constitutes reasonable suspicion, I will address them in my
conclusions of law below.*fn265 In any case, the facts
regarding how Dr. Fagan counted the number of unlawful stops are not
in material dispute.
Based on the testimony of plaintiffs and others, the decline to prosecute forms, and the statistical analysis performed by Dr. Fagan and discussed in greater detail below, I find that plaintiffs have shown a clear likelihood of laying a sufficient factual foundation to prove that defendants have engaged in a widespread practice of making unlawful trespass stops outside TAP buildings in the Bronx.
B. Steps Taken by the NYPD in 2012
TAP began in the early 1990s in Manhattan.*fn266
Despite the program's name, TAP was originally focused not on trespass
but on narcotics sales taking place in the common areas of private
buildings, such as lobbies, stairwells, and rooftops.*fn267
An officer who testified regarding the origins of TAP stated
that "[t]he more that we cracked down on drug sales on the street, the
more that you saw drug dealers move indoors."*fn268
Before TAP, officers had to deal informally with landlords to get
permission to enter private buildings in search of drug
TAP provided a formal process for building owners to permit officers to conduct "vertical patrols" inside the buildings.*fn270
Defendants were unable to produce a single written policy or procedure governing any aspect of TAP between the program's origins in the early 1990s and the issuance of two orders in 2012, discussed below.*fn271 Nor did defendants produce evidence that the NYPD conducted any training or created any training materials specific to TAP before 2012.*fn272 Nor did the NYPD have an accurate and complete count of buildings enrolled in TAP prior to a survey conducted in the summer of 2012.*fn273
1. NYPD Recognition of a Problem in TAP
The improvements to TAP in 2012 had their roots in earlier years. Inspector Kerry Sweet, the executive officer of the NYPD Legal Bureau, testified that by early 2010, he had become involved in a group that was examining vertical patrols and trespass issues in NYCHA buildings.*fn274 Inspector Sweet received approval to examine these issues in the TAP program as well.*fn275 In the summer of 2010 through 2011, Inspector Sweet conducted focus groups with sergeants and lieutenants involved with TAP, and then with prosecutors and various NYPD officials.*fn276 Inspector Sweet learned that "there really wasn't a lot of direction about the administration of the program."*fn277 During his deposition, Inspector Sweet testified that he also learned of "some confusion" regarding TAP stops:
[O]fficers believe their role might have been as doorman [or] custodian, rather than a strict application of De Bour. And once again, understanding that they needed that articulate reason to approach somebody and that if you were a doorman, you could approach everybody, but that is not the case. . . . [I]n TAP buildings, you have to have a reason to approach people. . . .
I wasn't getting the sense necessarily that they were stopping people in their tracks, but they may have been asking everybody coming into a building, what are you doing here, what is your reason for being here. And that obviously isn't what we want them to do nor is it probably the right thing to do under the De Bour standard.*fn278
Inspector Sweet testified that Katherine Lemire, special counsel to Police Commissioner Raymond Kelly, attended meetings with Inspector Sweet where this problem was discussed.*fn279
2. Interim Orders 22 and 23 of 2012
After completing the focus groups in 2010 and 2011, Inspector Sweet
helped to draft two new regulations to govern the TAP program: Interim
Orders ("IOs") 22 and 23, both published in May 2012.*fn280
IO 23 of 2012 addresses
various administrative issues relating to TAP, including procedures
buildings in the program.*fn281 IO 22 of 2012 lays out
procedures for the conduct of vertical patrols inside TAP buildings,
with an emphasis on trespass arrests.*fn282
It provides explicit guidance regarding when stops are lawful based on the suspicion of trespass in a TAP building. The second page of the Order begins with an italicized warning:
A uniformed member of the service may approach and question persons if they [sic] have an objective credible reason to do so. However, a uniformed member may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authorization.*fn283
The next page, in a separate section, repeats the first sentence of this note, and then continues, again in italics:
When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared as per P.G. 212-11, "Stop and Frisk." Some factors which may contribute to "reasonable suspicion" that a person is trespassing, in addition to those factors set forth in P.G. 212-11, "Stop and Frisk," are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.*fn284
The section continues by stating that a trespass arrest requires probable cause, and that refusal to answer questions is insufficient to establish probable cause.*fn285
As plaintiffs correctly note, however, IO 22 of 2012 makes no reference to stops outside TAP buildings.*fn286 It does not explicitly state that stops outside TAP buildings require reasonable suspicion, and that merely exiting a TAP building is insufficient to establish reasonable suspicion, even in a high crime area.*fn287
At the hearing, defendants offered evidence of numerous steps that have been taken to support the implementation of IOs 22 and 23 of 2012.*fn288 After any trespass arrest, officers must now complete a "Trespass Crimes -- Fact Sheet" documenting the facts that established probable cause.*fn289 The Chief of Patrol distributed IOs 22 and 23 to 2012 to all commanding officers with a brief synopsis,*fn290 pursuant to a two-page plan to promote knowledge of criminal trespass offenses among uniformed servicemembers.*fn291 Legal Bureau and other personnel offered instruction on IOs 22 and 23 of 2012 to training sergeants and special operations lieutenants,*fn292 who were then expected to pass along the information to "the rank and file" at training sessions during roll call.*fn293 Legal Bureau and other personnel provided separate instruction to borough and precinct commanders.*fn294
Some of the training involved the use of a newly prepared video on "Stop, Question, and Frisk,"*fn295 and an updated version of the Chief of Patrol Field Training Guide.*fn296
Many of these steps are peripheral to the concerns of this case. The video and the Training Guide, for example, deal with stop and frisk in general, and make no specific reference to trespass stops outside TAP buildings.*fn297 In addition, as discussed below, some of the training materials contain inaccurate or misleading information that could exacerbate rather than resolve the problem of unconstitutional stops.*fn298
3. Absence of Steps Meaningfully Addressing Outdoor TAP Stops
During the hearing, defendants emphasized the training that officers receive throughout their careers regarding the laws governing stop and frisk in general.*fn299 This training has recently been supplemented by a refresher course on stop and frisk at the Rodman's Neck training center in the Bronx.*fn300 More than three thousand officers have attended the training course since its development in 2012.*fn301
The root problem that led to unlawful trespass stops outside TAP buildings in the Bronx, however, based on ADA Rucker's testimony and the other evidence introduced at the hearing, is that officers perceived trespass stops in the proximity of TAP buildings as exceptions to the general rules governing stop and frisk. Improving the training surrounding stop and frisk in general may do nothing to dispel the notion that there is an exception for stops outside TAP buildings.
IO 22 of 2012 makes clear that presence inside a TAP building is not a sufficient basis for a stop, and that stops made during vertical patrols of TAP buildings must be based on reasonable suspicion. But IO 22 of 2012 and the training introduced in support of it present themselves as guides to conducting vertical patrols inside a TAP building, not guides for making trespass stops and arrests outside TAP buildings. The difference may seem insignificant when viewed in the abstract. In theory, officers should be able to infer from the rules in IO 22 of 2012 how to perform lawful trespass stops outside TAP buildings.
In practice, however, the evidence at the hearing suggests that NYPD officers are trained to carry out their duties according to a set of standard operating procedures. The NYPD's training reduces the unpredictable, confusing challenges that arise on patrol to a manageable set of standard situations and orderly procedures for addressing them.*fn302 If a recurring, problematic situation is not included in the training, officers may categorize it in the wrong way and employ inappropriate responses - such as stopping someone simply because he exited a TAP building. The evidence at the hearing, as summarized in the previous section, strongly supports the conclusion that many officers took such actions before 2012.*fn303 Yet none of the steps taken by the NYPD in 2012 were directly and meaningfully focused on uprooting the misconceptions regarding trespass stops outside TAP buildings that resulted in the constitutional violations in this case.
In fact, based on the evidence at the hearing, the only piece of instruction that has been provided to officers on a systematic basis and that specifically targets the problem of outdoor trespass stops at TAP buildings is a single bullet point included in a PowerPoint presentation offered by the Legal Bureau as part of the Rodman's Neck training.*fn304 The bullet point, which takes up one third of a page of a forty-five-page presentation, states:
Observation of an individual exiting a NYCHA/TAP Building, without more, is not an objective, credible reason to approach that individual.*fn305
As common sense would suggest, and evidence at the hearing confirmed, attendees at the Rodman's Neck training do not always absorb the lesson contained in this bullet point, or even recall having seen it. One officer who had recently attended the refresher course at Rodman's Neck testified that he did not remember any discussion of TAP,*fn306 and both he and another officer testified that they could not remember any training involving outdoor stops on suspicion of trespass.*fn307
In light of the above, and in the absence of reliable statistics regarding stops in 2012, I find that defendants failed to introduce persuasive evidence regarding whether the improvements undertaken by the NYPD in 2012 have affected the magnitude of unlawful trespass stops outside TAP buildings in the Bronx.*fn308
As a preliminary matter, defendants argue that plaintiffs lack standing to seek injunctive relief.*fn309 I addressed this issue extensively in Floyd, and again in Davis, and the same analysis applies here.*fn310 First, "[c]oncrete injury is a prerequisite to standing and 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.'"*fn311 Second, "'[t]he possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.'"*fn312 Third, "'the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.'"*fn313
Abdullah Turner and Letitia Ledan both testified to two specific unlawful trespass stops outside TAP buildings in the Bronx, and J.G. and Jovan Jefferson both referred to having been stopped multiple times outside TAP buildings.*fn314 Even if, as I found, Ledan's second stop was not on suspicion of trespass, the evidence suggests that both of Turner's stops were.*fn315 Furthermore, Turner has lived since 2008 in a TAP building,*fn316 where, based on the evidence presented at the hearing, he will likely be the target of future unlawful stops - if such stops continue to take place as they have in the past.*fn317 This is sufficient to confer standing on plaintiffs.*fn318
B. Preliminary Injunctive Relief
Plaintiffs seek a variety of injunctive remedies that would require the NYPD to act in ways that depart from the status quo, including the development and implementation of new formal policies, new training procedures, and burdensome new supervisory and monitoring procedures.*fn319 Because the preliminary injunctive relief sought by plaintiffs is thus mandatory rather than prohibitory, plaintiffs must show (1) that they are clearly or substantially likely to prove at trial that defendants are engaged in an ongoing custom of making trespass stops outside TAP buildings in the Bronx in the absence of reasonable suspicion, in violation of the Fourth Amendment; (2) that plaintiffs are likely to suffer irreparable harm in the absence of injunctive relief; (3) that the balance of equities tips in plaintiffs' favor; and (4) that an injunction is in the public interest.*fn320
The following sections address each of these factors in turn.
1. Clear or Substantial Likelihood of Success on the Merits
Because plaintiffs do not assert that defendants have an explicit or formally approved policy of making trespass stops without reasonable suspicion outside TAP buildings in the Bronx, plaintiffs must show a clear or substantial likelihood of proving at trial that defendants have a custom or usage of making such stops. Specifically, plaintiffs argue that defendants "have a pattern and practice" of making unlawful trespass stops outside TAP buildings, and that "the City of New York has been deliberately indifferent" to this practice "by failing to supervise and train."*fn321
My analysis of plaintiffs' claim proceeds in two steps. First, I analyze plaintiffs' deliberate indifference claim and conclude that plaintiffs have shown a clear likelihood of establishing that defendants' longstanding failure to train officers regarding the legal standards for trespass stops outside TAP buildings in the Bronx, despite actual or constructive notice that this omission was causing city employees to violate individuals' constitutional rights, has risen to the level of deliberate indifference. Whether plaintiffs' deliberate indifference claim is analyzed in terms of the general standard in Connick, the three-part Walker standard, or the constructive acquiescence standard, plaintiffs have shown a clear likelihood of success on their Monell claim. Second, I analyze whether defendants have rebutted plaintiffs' evidence of deliberate indifference based on the steps taken by the NYPD in 2012. I conclude that these steps have not meaningfully addressed the specific problem of unconstitutional trespass stops outside TAP buildings in the Bronx.
a. Deliberate Indifference
Applying the law of Terry stops to my findings of fact, above, plaintiffs offered more than enough evidence at the hearing to support the conclusion that they have shown a clear likelihood of proving at trial that the NYPD has a practice of making unlawful trespass stops outside of TAP buildings in the Bronx:
i. ADA Rucker's Testimony
As described above, ADA Rucker credibly testified that NYPD officers have treated proximity to a TAP building as a factor contributing to reasonable suspicion, and have frequently made trespass stops outside TAP buildings for no reason other than that the officer had seen someone enter and exit or exit the building.*fn322 These stops were made because the building was enrolled in TAP, and they were not based on any reasonable suspicion of trespass.*fn323 ADA Rucker's testimony is corroborated by the accounts of stops and arrests in the twenty-six decline to prosecute forms, as well as by the hundreds of UF-250s on which officers wrote "Clean Halls" as a justification for a stop.*fn324 As discussed below, Dr. Fagan's analysis of UF-250s provides further corroboration of ADA Rucker's testimony.*fn325
ii. Plaintiffs' Stops
The conclusion that the NYPD has repeatedly made trespass stops outside TAP buildings without reasonable suspicion is further supported by the credible and mutually corroborating testimony of named plaintiffs regarding the circumstances leading to their encounters with police.*fn326 First, each of plaintiffs' encounters with the police rose to the level of Terry stops. In theory, it might be possible for an officer to approach a person outside a TAP building and ask the person his name, where he is coming from, whether he lives in the building, and if not, whether he knows anyone in the building, all the while acting in such a way that a reasonable person would feel free to terminate the encounter and go about his business. Perhaps in an idealized scene from another era of policing,*fn327 a local officer might have politely posed these questions to a stranger near a building with a trespass problem, and the stranger might have gladly consented to answer the questions, knowing full well that he was free to walk away, but answering the questions out of politeness or a sense of civic duty.*fn328
Here, by contrast, no reasonable person in plaintiffs' position would have felt free to leave during their encounters with the police. Bradley was stopped when an officer in a van gestured for him to come over, he came over, and the officer asked "What are you doing here?"*fn329 Turner was stopped when three officers approached and one "snatched the phone out of [his] hand,"*fn330 abruptly and aggressively ending his call and taking control of his property, without any request for permission to do so. The stop continued as the officer asked Turner what he was doing and whether he lived in the building beside which he was standing.*fn331
Turner was stopped a second time when a police car pulled up in front of him as he and others were exiting a Clean Halls building, an officer got out, questioned the group, and requested Turner's identification.*fn332 J.G. was stopped when five officers approached him outside his building, stopped him, and asked him where he was coming from, where he was headed, and what he had in his bag. He was surely stopped when the officers made him raise his hands, frisked him, and searched inside his pockets and his grocery bag.*fn333 Jerome Grant was stopped when two officers approached with flashlights, questioned him and his friends to determine whether they were trespassing, and in response to questions from those who were stopped, replied with strong words such as "I'm the one that's talking here,"*fn334 and "hush up."*fn335 Roshea Johnson was stopped when a black van pulled up in front of him with police officers inside and one of them began questioning him about trespassing.*fn336 He was certainly stopped - and arrested - a moment later when he was placed in handcuffs in the back of the van.*fn337
Similar analyses apply to nearly all of the other stops described by plaintiffs. No reasonable person would have felt free to leave in plaintiffs' circumstances once an officer or officers approached, caused the plaintiff to stop through a command, gesture, accusatory introduction, or by taking possession of the person's property, and then began asking questions that were clearly intended to elicit incriminating responses regarding trespassing.
Any doubt that plaintiffs were free to leave after the commencement of intrusive investigatory questioning is resolved by looking to the instances in the decline to prosecute forms when suspects attempted to terminate their encounters. In one encounter, "the defendant attempted to walk away[,] at which time [the officer] grabbed the defendant[']s arms."*fn338 After a struggle, the defendant was arrested.*fn339 In another encounter, "[t]he arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated . . . YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT PUTTING YOUR HANDS ON ME."*fn340 The arresting officer then handcuffed the defendant and placed him in a patrol vehicle.*fn341 Similarly, when various defendants simply refused to answer an officer's questions, it became clear that they were not free to terminate the encounter in this way either.*fn342 In one encounter, the arresting officer "approached the defendant and asked her where she was coming [from], what was she doing in the building[,] and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME."*fn343 The defendant was then arrested for trespass.*fn344
The responses of the police officers as summarized in the decline to prosecute forms do not tell a surprising story. Indeed, they are what a reasonable person would have expected under the circumstances. When a person considers walking away from an officer who has stopped her and begun asking accusatory questions, it is objectively reasonable for the stopped person to believe that the officer will attempt to prevent her from doing so. Persons who are stopped by the police in circumstances like those described by plaintiffs reasonably conclude that they are not free to terminate the encounter. As a result, such stops are Terry stops under the Fourth Amendment, and DeBour Level 3 stops under New York state law, and require that the officer have a "reasonable suspicion" that criminal activity may be afoot.
Second, all but two of the eleven stops to which plaintiffs testified appear to have been based on suspicion of trespass, but lacked the reasonable suspicion of trespass needed to support a stop. The two exceptions are Jerome Grant's stop and Letitia Ledan's second stop, for the reasons suggested above.*fn345
iii. Decline to Prosecute Forms
There remains the question of how widespread the practice of unlawful
stops was. Plaintiffs argue that the decline to prosecute forms
independently support the finding of a widespread practice of unlawful
stops outside of TAP buildings.*fn346 Their rather
complicated argument proceeds as follows: First, plaintiffs assume the
City's expert was correct in reporting that approximately thirteen
percent of the trespass stops analyzed by Dr. Fagan resulted in
arrest.*fn347 From this, plaintiffs infer a rough,
general rule that thirteen percent of trespass stops in the Bronx in
2011 resulted in arrest - or in other words, for every recorded
trespass arrest, there were roughly 7.7 trespass stops.*fn348
Second, in three randomly selected months in 2011, the Bronx
DA's office produced at least twenty-six decline to prosecute forms
describing arrests that were apparently based only on a person
entering or exiting a TAP building.*fn349 Because
entry or exit from
a TAP building does not provide reasonable suspicion, there were at
least twenty-six arrests in the three sample months that were preceded
by stops that were not based on reasonable suspicion. Third, if the
twenty-six decline to prosecute forms reflect only thirteen percent of
the suspicionless trespass stops outside TAP buildings in the three
sample months in 2011, and if the sample months were representative of
the year, then eight hundred trespass stops took place outside TAP
buildings in the Bronx in 2011 without reasonable
Assuming as I do that the decline to prosecute forms contain largely accurate descriptions of stops, plaintiffs' reasoning is persuasive. If anything, plaintiffs undercount the number of suspicionless stops suggested by the decline to prosecute forms. Dr. Smith's thirteen percent figure is the arrest rate for all the trespass stops outside TAP buildings in Dr. Fagan's study, including both stops based on and stops lacking reasonable suspicion.*fn351 Common sense would suggest, however, that the arrest rate for stops lacking reasonable suspicion - for example, stops based on nothing more than a person exiting a TAP building - should be significantly lower than the combined arrest rate for lawful and unlawful stops. The lower the arrest rate for unlawful stops, the higher the number of unlawful stops that would be required to generate twenty-six arrests based on such stops. If the arrest rate for unlawful stops were five percent, for example, the existence of twenty-six arrests in three months based on unlawful stops would imply a yearly total of more than two thousand (2,080) unlawful stops.
iv. Dr. Fagan's Analysis
Dr. Fagan's analysis of the UF-250 database provides further evidence that plaintiffs have a clear likelihood of being able to prove at trial that the NYPD's practice of unlawful stops was widespread. In order to understand Dr. Fagan's claim that 1,044 trespass stops within his set apparently lacked reasonable suspicion, it is necessary to understand the basic features of a UF-250 form.*fn352
I have included a copy of a blank UF-250 form as Appendix B to this Opinion.
The UF-250 form has two sides.*fn353 On Side 1 there is a section labeled "What Were Circumstances Which Led To Stop? (MUST CHECK AT LEAST ONE BOX)." Inside the section are several boxes that officers may check, such as "Fits Description" and "Actions Indicative of Acting As A Lookout." There is also a checkbox for "Other Reasonable Suspicion Of Criminal Activity (Specify)" (the "Other" box) that officers can check and then supplement with a handwritten note. On the back of the form, Side 2, there is a section labeled "Additional Circumstances/Factors: (Check All That Apply)." Inside this section there are other checkboxes, such as "Report From Victim/Witness" and "Evasive, False Or Inconsistent Response To Officer's Questions." As noted above, officers are required to record all the reasons justifying a stop.*fn354
In an appendix to Dr. Fagan's report, he lists the combinations of
factors from UF-250 forms that he counted as indicative of a stop
apparently lacking reasonable suspicion of trespass.*fn355
The list descends from the most common combinations of
factors to the least common.*fn356 On all of the forms
Dr. Fagan identified as apparently lacking reasonable suspicion, the
checked at most one of the listed "circumstances" on Side
1.*fn357 In some cases the
officer had also checked the "Other" box on Side 1 and handwritten a
text string, which Dr. Fagan also analyzed.*fn358
The most frequent combination of stop factors identified by Dr. Fagan as apparently inadequate were "Furtive Movements" (Side 1) and "Area Has High Incidence Of Reported Offense Of Type Under Investigation" (Side 2), referred to in Dr. Fagan's shorthand as the "High Crime Area" box.*fn359 On ninety-one forms, these two factors were the only recorded basis for the stop.*fn360
Of the 1,044 trespass stops that Dr. Fagan identified as apparently unlawful, 503 were based on the ten most frequent combinations of stop factors.*fn361
In each of these ten combinations, which offer a manageable illustration of Dr. Fagan's assumptions, the officer filling out the form recorded only the following basis for the trespass stop. First, on Side 1, the officer offered one of the following three factors:
1) "Furtive Movements."
2) "Other Reasonable Suspicion Of Criminal Activity (Specify)" (the "Other" box), and a text string referring to "Clean Halls," "Trespass," or both as the sole notation.*fn362
3) The "Other" box and words indicating the suspect was observed exiting the building.*fn363
Second, on Side 2, under "Additional Circumstances/Factors," the officer either checked no box, or offered one of the following five justifications:
1) High Crime Area.
2) "Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity" (the "Time of Day" box).
3) Both High Crime Area and Time of Day.
4) "Proximity To Crime Location" (the "Proximity to Scene" box).
5) "Changing Direction At Sight Of Officer/Flight" (the "Change Direction" box).
Standing alone, Dr. Fagan's categorizations leave a great deal of room for skepticism. The Supreme Court has "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion."*fn364 It is possible to imagine scenarios in which an officer observing behavior that would probably give rise to reasonable suspicion might reasonably record that behavior by checking nothing more than "Furtive Movements." For example, an officer might observe a person standing nervously outside a TAP building, pretending to walk away whenever others approach, then returning after they are gone, and finally entering the building without a key, nervously looking both ways before opening the door. I also note that in each of the twenty stops where the officer checked "Change Direction" on Side 2, the officer also checked "Furtive Movement" on Side 1.*fn365
If these forms were based on an officer seeing someone engage in the behavior described above, and then run away at the sight of the officer, the officer almost certainly had reasonable suspicion of trespass.*fn366
On the other hand, there are good reasons to doubt that most, or even many, of the forms marked with the combinations listed above were in fact based on such suspicious behavior. First, many of the 503 forms in the top ten on Dr. Fagan's list contain stop factor combinations providing no basis whatsoever for reasonable suspicion. 205 of these forms simply indicate that the person was stopped outside a Clean Halls building, or for criminal trespass, neither of which explains why the officer's suspicion was reasonable; or that the person was observed exiting, which also contributes nothing to reasonable suspicion; and that the stop took place in a high crime area and/or at a suspicious time of day, neither of which can establish reasonable suspicion in the absence of some additional contributing factor.*fn367 Thus, at a bare minimum, over two hundred of the five hundred stops at the top of Dr. Fagan's list provide no basis for a finding of suspicious behavior.
Second, Dr. Fagan reported that in his original universe of stops, officers had checked the Other box on nearly forty percent of the UF-250 forms.*fn368
Officers were clearly willing and able to describe suspicious behavior when they observed it.*fn369 In fact, officers frequently took the time to write notes that do not contribute to reasonable suspicion.*fn370 Given the evident eagerness of officers to check the Other box and write notes - even when they had no basis for doing so - it is doubtful that many officers observed the kind of highly suspicious behavior hypothesized above and then merely checked the Furtive Movements box.*fn371
Third, as Dr. Fagan notes, when police officers are in an area where they are primed to look for signs that "crime is afoot," they may be more likely to perceive a gesture as an indicator of criminality.*fn372 Recent psychological research has provided evidence of such cognitive distortions.*fn373 Thus the category of Furtive Movements may be inherently prone to overuse on UF-250s. Given the nature of their work on patrol, officers may have a systematic tendency to see and report furtive movements where none objectively exist.*fn374
Dr. Fagan raised further doubts in Floyd regarding the general validity of assuming reasonable suspicion based on Furtive Movements.*fn375 Dr. Fagan's report in Floyd showed that "the arrest rates in stops where the high crime area or furtive movement boxes are checked off is actually below average."*fn376 Officers may have a tendency to check these boxes when they are unable to articulate any other basis for a stop - perhaps because the suspicion leading to the stop was, in fact, not reasonable.
Defendants attack the accuracy of Dr. Fagan's categorization scheme in various ways.*fn377 First, defendants criticize Dr. Fagan for neglecting to factor into his analysis a field on Side 1 of the UF-250 form labeled "Period Of Observation Prior To Stop."*fn378 Though defendants' reasoning is not explicit, I take it they assume that a long enough period of observation, combined with some of the stop factor combinations in Dr. Fagan's list of unlawful stops, might justify removing a stop from the list.*fn379 Second, defendants' expert noted a few dozen text strings accompanying the Other box that Dr. Fagan included in his count of unlawful stops but that defendants argue could justify a Terry stop.*fn380 For example, Dr. Fagan categorized "RAN INTO BLDG" as an instance of an observed entry into a TAP building, and thus not a basis for a stop.*fn381 Third, defendants argue that Dr. Fagan's list of unlawful stops should not have included the forty-one stops in which an officer marked Furtive Movement on Side 1 and a box on Side 2 labeled "Ongoing Investigations, e.g., Robbery Pattern" (the "Ongoing Investigations" box).*fn382
Rather than addressing each of these claims individually, it is enough to note that even if the one hundred forty-three stops involving observation periods over two minutes, the thirty-six stops with contestable text strings, and the forty-one stops with both Furtive Movements and Ongoing Investigations marked were excluded from Dr. Fagan's grand total of 1,044 unlawful stops, the total would still show that out of the 1,663 stops in Dr. Fagan's revised set of trespass stops outside TAP buildings in the Bronx in 2011, over eight hundred (824) were unconstitutional. That is, even if defendants' arguments on these points are accepted - and I am not convinced that they should be - Dr. Fagan's report would still show that on hundreds of occasions in the Bronx in 2011, people were stopped without basis outside of TAP buildings, in violation of their rights under the U.S. Constitution, and required to answer questions from an officer with the power to arrest them if they answered incorrectly.
The essential fact, sufficiently established by Dr. Fagan's analysis when viewed in combination with the other evidence discussed above, is that a very large number of constitutional violations took place outside TAP buildings in the Bronx in 2011. Whether the percentage of trespass stops that were unconstitutional was thirty or sixty, and whether one assumes that officers failed to fill out UF-250s ten, twenty, or fifty percent of the time, plaintiffs have succeeded in showing a clear likelihood that they will be able to prove that the City of New York and its agents displayed deliberate indifference toward the violation of the constitutional rights of hundreds and more likely thousands of individuals prior to 2012.
v. Notice to Defendants
By 2011 city policymakers were on actual notice of a practice of
unconstitutional trespass stops by city employees outside TAP
buildings in the
Bronx.*fn383 As early as 1999, the NYPD Legal Bureau
was aware that it was unlawful to stop someone simply for entering and
exiting a TAP building.*fn384 By
July 2010, as Inspector Sweet testified, the NYPD was on actual notice
that officers were unlawfully approaching people entering or inside
TAP buildings to question them about their presence.*fn385
The special counsel to Commissioner Kelly attended meetings
where the problem was discussed.*fn386 In February
2011, a number of NYPD officials received letters from ADA Rucker on
behalf of the Bronx DA's office clarifying the unconstitutionality of
stopping people merely for entering or exiting a TAP
building.*fn387 Throughout this period, the NYPD
received copies of decline to prosecute forms describing arrests in
which officers apparently stopped people for no reason other than
their proximity to a TAP building.*fn388
vi. Legal Analysis
Deliberate indifference is "a stringent standard of fault,"*fn389 especially when it is based on a failure to train.*fn390 Nevertheless, "deliberate indifference may be inferred where 'the need for more or better supervision to protect against constitutional violations was obvious,' but the policymaker 'fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs[.]'"*fn391
Based on the conclusions above, plaintiffs have shown a clear likelihood of proving deliberate indifference under any of the prevailing ways of framing that standard. Stated in terms of Connick's general standard for failure-to-train claims, plaintiffs have shown a clear likelihood of proving that city policymakers were on actual notice by 2011, and constructive notice prior to then, that the failure to train NYPD officers regarding the legal standard for trespass stops outside TAP buildings in the Bronx was causing city employees to violate the constitutional rights of a large number of individuals.*fn392 Stated in terms of the three-part Walker test for deliberate indifference through failure to train, plaintiffs have shown a clear likelihood of proving (1) city policymakers knew to a moral certainty that NYPD officers, who regularly patrol in and around TAP buildings in the Bronx, would confront the question of when it was legally permissible to stop people outside those buildings; (2) the decline to prosecute forms, ADA Rucker's letters, and the hundreds of UF-250 forms that failed to articulate reasonable suspicion for trespass stops outside TAP buildings provided an extensive record of NYPD officers mishandling these stops; and (3) when NYPD officers made the wrong choice in these stops, the deprivation of constitutional rights frequently resulted.*fn393 Thus, plaintiffs have shown a clear likelihood of proving that city policymakers should have known that their inadequate training and supervision regarding trespass stops outside TAP buildings in the Bronx was "'so likely to result in the violation of constitutional rights,'" that their failure to train constituted deliberate indifference.*fn394 Stated in terms of the constructive acquiescence standard, plaintiffs have shown a clear likelihood of proving that there was "a sufficiently widespread practice among police officers" of unlawful trespass stops outside TAP buildings "to support reasonably the conclusion that such abuse was the custom of the officers," and that "supervisory personnel must have been aware of it but took no adequate corrective or preventive measures."*fn395
In fact, plaintiffs presented some evidence suggesting that the practice of making stops outside TAP buildings without regard for reasonable suspicion might have been "so persistent and widespread as to practically have the force of law."*fn396 In addition to the sheer magnitude of apparently unlawful stops, ADA Rucker offered testimony suggesting that prior to her legal research into the standards governing stops outside TAP buildings, she had been explicitly advising officers that it was permissible to stop a person simply because he had exited a TAP building, so long as the officer had observed the person in the vestibule first.*fn397 Even defendants seemed to recognize that the similarities among the stops described in this case support the conclusion that officers' behaviors were the result of uniform training.*fn398
b. Failure to Rebut Deliberate Indifference Claim Based on Steps Taken by NYPD in 2012
Defendants spent a great deal of time at the hearing introducing
evidence concerning steps the NYPD took in 2012 to improve TAP and
provide training regarding stop and frisk practices.*fn399
Yet in spite of receiving actual notice
of NYPD officers carrying out widespread constitutional violations
outside TAP buildings, and in spite of already being engaged in
changes to the TAP program and the training related to stop and frisk
more generally, the NYPD has failed to take meaningful action to
address the specific and narrow problem at issue in this case: the
problem of unconstitutional trespass stops outside TAP buildings in
the Bronx. To date, as noted above, the only piece of instruction that
has been provided to officers on a systematic basis and that
specifically targets the problem at issue in this case is a single
bullet point in a single slide show during a single part of the
Rodman's Neck training.*fn400 This has been the NYPD's
most meaningful specific response to the problem that caused Charles
Bradley's unlawful stop and arrest, Abdullah Turner's unlawful stop
and arrest, the unlawful stop of J.G. that led Jaenean Ligon to fear
for her son's life, Roshea Johnson's stop and interrogation in an
unmarked NYPD van, all the other indignities that the other plaintiffs
were obliged to suffer, and the hundreds of other unlawful stops,
recorded and unrecorded, whose precise details this Court will never
The Rodman's Neck bullet point is plainly insufficient to rebut plaintiffs' showing of a clear likelihood of success on the merits of their deliberate indifference claim. Nor did defendants provide reliable statistics regarding stops in 2012 that might have rebutted plaintiffs' claim. Defendants have provided no evidence that the NYPD has ceased its practice of making unlawful trespass stops outside TAP buildings in the Bronx.
The evidence introduced by defendants of broader reforms to TAP and stop and frisk undertaken by the NYPD in 2012 also does not rebut plaintiffs' case that city policymakers have displayed deliberate indifference to an ongoing practice of constitutional violations by city employees based on unlawful stops outside TAP buildings. To the contrary, many of the training materials introduced by defendants may serve to further entrench the problem of these unconstitutional stops. In some cases, defendants' introduction of training materials not only failed to rebut plaintiffs' case, but made plaintiffs' case stronger.
Most strikingly, within the last year the NYPD has produced a video on
stop and frisk that has now been shown in every precinct.*fn401
testified that "it would be fair to say that every single member of a
patrol borough has probably" seen the video by now.*fn402
The video, whose script was also entered into evidence,
begins by briefly summarizing the four levels of police
recognized by New York state courts. Then the video provides the
following description of what constitutes a stop requiring reasonable
suspicion, that is, a Terry stop:
Your authority to conduct a Stop Question and Frisk encounter is limited to public places within the City of New York. . . . A forcible stop can take many different forms. It can be constructive in nature, such as using verbal commands or blocking a subject's path. Or it could be an actual stop, such as grabbing or holding the subject.
The courts will look to an officer's actions in making this determination. They consider: if the officer's gun was drawn; if the person was physically prevented from moving; the number and tone of verbal commands; the content of the commands; the number of officers present; and the location of the encounter.
Usually just verbal commands, such as STOP, POLICE!!!, will not constitute a seizure. However, a verbal command, plus other actions may be considered a seizure - other actions, such as: using physical force to subdue a suspect; physically blocking a suspect's path; grabbing a suspect by the arm, shirt or coat; pointing a gun at a suspect; using an ASP or baton to contain a suspect; or placing a suspect against a wall or on the ground.*fn403
This misstates the law. It is incorrect in its specific claim that if
an officer yelled "STOP, POLICE!!!" and the person stopped, the result
would not "[u]sually" constitute a Terry stop.*fn404
Indeed, it is difficult to imagine many contexts in which
an officer shouting this command, followed by the person stopping,
would not constitute a Terry stop. As noted above, the test for a
Terry stop is whether "a reasonable person would feel free 'to
disregard the police and go about his business.'"*fn405
If the "reasonable person" of Fourth Amendment law would feel
free to disregard an officer yelling "STOP, POLICE!!!" and go about
his business, then this "reasonable person" bears little or no
resemblance to the many reasonable people who have been or will be
affected by the NYPD's stop and frisk practices.
The video is also incorrect in its more general suggestion that an officer must deploy something resembling physical force or the threat of such force in order for an encounter to constitute a stop. It is true that Terry stops are sometimes referred to as "forcible stops."*fn406 But the test for a Terry stop, again, is not the use of force: it is whether a "reasonable person" would feel free "'to disregard the police and go about his business.'"*fn407
The Second Circuit has held, for example, that a stop took
place where an officer twice ordered a person to "hold on a second,"
and after the second order the person stopped.*fn408
The Second Circuit
also held that a stop occurred where an officer pointing a spotlight
at a person said, "What, are you stupid? Come here. I want to talk to
you," and then told the person to show his hands.*fn409
In Davis, the City of New York conceded, and I held, that a
person was stopped when he encountered an officer in a stairway, the
officer asked if he lived in the building, the officer asked for his
ID, and then the officer asked him to step out of the stairwell and
into the lobby.*fn410 I also held in Davis
a person was stopped "when she attempted to walk to the elevator, was
told to 'come back' by [an officer], and stopped walking," because the
officer's "order to 'come back' was an order to stop and [she] obeyed
In conflict with the governing case law, the NYPD's video gives officers the false impression that Terry stops should be distinguished from less intrusive encounters by the kinds of elements that the video lists: a drawn gun, physical restraint, numerous commands of a restraining nature, numerous officers, the use of a baton, and so on. Elements such as these are not necessary for a police encounter to rise to the level of a Terry stop, nor are they characteristic of the usual form of Terry stops. Indeed, many of these elements are more characteristic of an arrest than of a Terry stop. The Second Circuit lists the following factors as an indication that an arrest, and not merely a stop, has occurred: "the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person's personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room."*fn412
The Second Circuit's list of the identifying features of an arrest is remarkably similar to the training video's list of the identifying features of a stop. By incorrectly implying that encounters lacking the characteristics of an arrest are in fact not even stops, the video appears to train officers that they do not need reasonable suspicion to perform the kind of stops that under an accurate reading of the law would be classified as Terry stops. In other words, this video, which was produced in 2012, which has now been seen by nearly every officer in the patrol bureau, and which defendants continue to present as a sign of their lack of deliberate indifference,*fn413 trains officers that it is acceptable to perform stops that amount to Terry stops, or possibly even arrests, without reasonable suspicion.
Other evidence introduced to rebut plaintiffs' deliberate indifference claim similarly supports the conclusion that the NYPD is training its officers to miscategorize many arrests as stops, and many stops as something less than stops. The Chief of Patrol Field Training Unit Program Guide, which is distributed to supervisors in Operation IMPACT,*fn414 reflects another subtle but significant problem - namely a tendency to exaggerate how intrusive a police encounter must be in order to constitute a Terry stop. The Guide states that with something less than reasonable suspicion,*fn415 an officer may approach a person and engage in "pointed, invasive, and accusatory" questioning that is "intended to elicit an incriminating response," and even "ask for permission" to search the person.*fn416
While "[t]he Fourth Amendment does not proscribe all contact between the police and citizens,"*fn417 it is difficult to imagine many circumstances in which a reasonable person being aggressively interrogated by the police regarding suspected criminal activity could feel free "'to disregard the police and go about his business.'"*fn418 The more realistic outcome would be for the person to assume that if he refused to answer, walked away, gave the wrong answers, or made a false move, serious consequences would follow.*fn419 As Abdullah Turner testified, "I don't know anyone . . . who ever just walked away from a cop in the middle of a conversation."*fn420
Given the high stakes of any encounter in which an officer interrogates someone regarding his suspected criminal activity, it is fanciful to say that a reasonable person would as a rule feel free in the midst of such an interrogation to "'terminate the encounter'"*fn421 at will.
A lesson on TAP that was added to the Guide in 2012 similarly reflects a model of policing in which the investigative questioning of suspects routinely precedes rather than follows reasonable suspicion:
A uniformed member of the service may not stop (temporarily detain) a suspected trespasser unless the uniformed member reasonably suspects that the person is in the building without authority. . . . Some factors which may contribute to "reasonable suspicion" that a person is trespassing . . . are contradictory assertions made to justify presence in the building and/or assertions lacking credibility made to justify presence in the building.*fn422
Instead of reasonable suspicion providing a basis for investigative questioning, the NYPD's training materials suggest that the standard scenario is for investigative questioning to lead to reasonable suspicion. The NYPD Legal Bureau's PowerPoint presentation at Rodman's Neck similarly suggests that even when an officer lacks reasonable suspicion for a stop, the officer may not only approach and ask accusatory questions, but during the encounter may "place [his] hand on [his] holstered firearm" or "draw and conceal" his weapon, all without escalating the encounter to a Terry stop.*fn423
What is most troubling about these materials is not the suggestion that investigative questioning might under certain circumstances lawfully precede reasonable suspicion, but that it should do so as a matter of course, routinely, as the rule rather than the exception. If the difference between a Terry stop and a less intrusive encounter hinges on indefinite factors such as the demeanor and positioning of the officers; and if it is safe to assume that officers routinely display their authority and power through aggressive behavior, as many of the officers did in their encounters with plaintiffs in the instant case; then a training program that invites officers to approach large numbers of people and question them without reasonable suspicion will inevitably result in frequent Terry stops that lack reasonable suspicion, effectively guaranteeing the commission of widespread constitutional violations. The evidence of numerous unlawful stops at the hearing strengthens the conclusion that the NYPD's inaccurate training has taught officers the following lesson: stop and question first, develop reasonable suspicion later.*fn424
The NYPD's training failures may also help to explain why no UF-250s were located for any of the plaintiffs in the instant case. Based on training materials like those above, the officers who stopped plaintiffs may very well have perceived themselves as not engaged in Terry stops at all, but in something less intrusive. The NYPD Legal Bureau's PowerPoint presentation at Rodman's Neck continues to encourage this belief, and the constitutional violations that will naturally follow from it, by redefining the standards for stops and arrests. Thus, the final slide on arrests states: "If you are at probable cause, you have made an arrest."*fn425 This is not correct. If you have arrested someone, you have made an arrest; whether or not you had probable cause only determines whether the arrest was constitutional. Similarly, the presentation states: "When an individual is stopped based upon Reasonable Suspicion a UF-250 must be prepared."*fn426 IO 22 of 2012 offers a similar message: "When reasonable suspicion exists, a STOP, QUESTION AND FRISK REPORT WORKSHEET shall be prepared . . . ." Both of these statements are incorrect. Whether a stop constitutes a Terry stop and thus requires the completion of a UF-250 form does not depend on whether the stop is based on reasonable suspicion, but on whether a reasonable person would have felt free to terminate the encounter.*fn427
In response to criticisms directed at the NYPD's training materials, defendants have argued that the materials reflect New York state law, and in particular De Bour and its progeny.*fn428 Defendants assert that "New York Law applies" in the instant case.*fn429 But practices that violate the Fourth Amendment cannot be saved by proving that they comply with state law.*fn430 To the extent that De Bour suggests a police officer, without reasonable suspicion, may lawfully stop and question an individual in such a way that a reasonable person would not feel free to terminate the encounter, that suggestion would be incorrect.
2. Irreparable Harm
In addition to showing a clear likelihood of success on the merits,
plaintiffs have the burden of showing that they are "likely to suffer
irreparable harm in the absence of preliminary relief."*fn431
Plaintiffs have moved for class
certification in connection with their motion for a preliminary
injunction. Plaintiffs' putative class is "comprised of individuals
who have been or are at risk of being subjected to the New York City
Police Department's practice of stopping individuals outside of
buildings enrolled in Operation Clean Halls in the Bronx on suspicion
of trespassing inside those buildings."*fn432
While I have not yet ruled on plaintiffs' motion, "[i]t is well established that '[c]ertain circumstances give rise to the need for prompt injunctive relief for a named plaintiff or on behalf of a class' and that the 'court may conditionally certify the class or otherwise award a broad preliminary injunction, without a formal class ruling, under its general equity powers.'"*fn433 Based on the conclusions in the preceding section, the putative class in this case is threatened with imminent violations of their constitutional rights in the absence of preliminary relief.*fn434 The frequency of unconstitutional trespass stops outside Clean Halls buildings reflected in the decline to prosecute forms and Dr. Fagan's report establishes that members of plaintiffs' putative class will likely be subject to such stops between now and the completion of trial if this Court does not act. Because "[t]he violation of a constitutional right . . . constitutes irreparable harm for the purpose of a preliminary injunction,"*fn435 plaintiffs have carried their burden of showing likely irreparable harm on behalf of the putative class.
3. Balance of Equities
In order to qualify for a preliminary injunction, plaintiffs must show
"that the balance of equities tips in [their] favor."*fn436
Given that a preliminary injunction is "'an extraordinary
remedy never awarded as of right,'"*fn437 it would
inappropriate to award such an injunction if doing so would result in
an arrangement less fair to the parties than the status quo, such as
an arrangement in which the hardship imposed on one party outweighed
the benefit to the other. "[T]he Court should 'balanc[e] . . . the
equities to reach an appropriate result protective of the interests of
I do not take lightly the burden on defendants of altering NYPD policies and training procedures. It is partly out of concern for defendants' hardships that I have rejected some of plaintiffs' proposed remedies.*fn439
Nevertheless, the burden on putative class members of continued unconstitutional stops goes far beyond administrative inconvenience. As I stated in Floyd:
The right to physical liberty has long been at the core of our nation's commitment to respecting the autonomy and dignity of each person: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."*fn440
Eliminating the threat that the kinds of stops described by plaintiffs might occur at any moment, without legal justification, in the vicinity of one's home and the homes of one's friends and family, is itself an important interest deserving of judicial protection.
Equally important are the potential consequences of an unlawful stop. The stakes of "field interrogation"*fn441 by the police have dramatically risen since Terry was decided in 1968. The use of incarceration has increased, sentences have grown, the threat of lengthy incarceration has created new incentives to plead guilty, and the collateral consequences of a conviction - on employment, housing, access to government programs, and even the right to vote or serve on a jury - have become more common and more severe. If an unjustified stop happens to lead to an unjustified arrest for trespassing, as it did in Charles Bradley's case, not every overburdened public defender will have the wherewithal to obtain a notarized letter from the defendant's host explaining that the defendant was invited, as Bronx Defender Cara Suvall did on behalf of Bradley.*fn442 When considering the relative hardships faced by the parties, it is important to consider the potentially dire and long-lasting consequences that can follow from unconstitutional stops.*fn443
Weighing the equities in light of the totality of the circumstances, the administrative burdens that defendants will face in revising the NYPD's policies and training materials are real, but are outweighed by plaintiffs' interest in not being subjected to unconstitutional stops outside their homes and the homes of their family and friends.
4. Public Interest
Any preliminary injunction must be "in the public interest."*fn444 Courts have no special institutional competence in determining what the public interest is, and the parties presented little evidence at the hearing directly addressing this issue. Nevertheless, the public interests at issue in plaintiffs' motion are familiar from a long line of cases concerning "the power of the police to 'stop and frisk' . . . suspicious persons."*fn445 In these cases, there is a recurring conflict between liberty and dignity on the one hand, and safety on the other.*fn446
Because any member of the public could conceivably find herself outside a TAP building in the Bronx, the public at large has a liberty and dignity interest in bringing an end to the practice of unconstitutional stops at issue in this case. Even if the constitutional violations described by plaintiffs were confined to the members of a discrete community, the public has a clear interest in protecting the constitutional rights of all its members. At the same time, enforcing constitutional restrictions on the NYPD's ability to stop and potentially frisk people outside TAP buildings could conceivably inhibit the NYPD's ability to provide security to the residents of those buildings and their communities.
In light of these considerations, and taking account of all the evidence presented at the hearing, I find that the public interest lies with the enforcement of the Constitution. It is "'clear and plain'"*fn447 that the public interest in liberty and dignity under the Fourth Amendment trumps whatever modicum of added safety might theoretically be gained from the NYPD making unconstitutional trespass stops outside TAP buildings in the Bronx. I am not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD's resources to enhance the security in voluntarily enrolled private buildings.*fn448 My ruling today is directed squarely at a category of stops lacking reasonable suspicion. Precisely because these stops lack rational justification, they are presumably of less value to public safety than would be the stops of individuals who displayed objectively suspicious behavior.
C. Appropriate Scope of Injunctive Relief
Injunctive relief "'should be narrowly tailored to fit specific legal violations.'"*fn449 In addition, "great caution is appropriate where a federal court is asked to interfere by means of injunctive relief with a state's executive functions, a sphere in which states typically are afforded latitude."*fn450
Prudence counsels in favor of the exercise of restraint and caution when the important interests of policing and safety may conflict with the equally important interests of protecting the constitutional rights of all those who are or may be affected by police practices in New York City.*fn451 Nevertheless, where the levers of municipal democracy have failed, leaving in place practices that violate constitutional rights, courts have a duty to intervene. As I stated in Floyd, safeguarding the liberties guaranteed under the Fourth Amendment "is quintessentially the role of the judicial branch."*fn452
In light of these considerations, as well as the findings of fact and conclusions of law detailed above, I impose the following preliminary relief:
1. Immediate Relief
The NYPD is ordered immediately to cease performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass, in accordance with the law as set forth and clarified in this Opinion.*fn453 To summarize: as the Fourth Amendment has been interpreted by the U.S. Supreme Court and the Second Circuit, an encounter between a police officer and a civilian constitutes a Terry stop whenever a reasonable person would not feel free to "'terminate the encounter.'"*fn454 The stops in this case illustrate that the threat or use of force is not a necessary or even typical element of Terry stops. Encounters involving nothing more than commands or accusatory questioning can and routinely do rise to the level of Terry stops, provided that the commands and questioning would lead a reasonable person to conclude he was not free to terminate the encounter.
In order for an officer to have "reasonable suspicion" that an individual is engaged in criminal trespass, the officer must be able to articulate facts providing "a minimal level of objective justification for making the stop,"*fn455 which means "something more than an inchoate and unparticularized suspicion or hunch.'"*fn456 In particular, an individual observed exiting or entering and exiting a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high crime area, and regardless of the time of day. For the reasons described above, "furtive movement" is a problematic basis for a trespass stop, especially when it is offered as a stand-alone justification. If an officer is unable to articulate anything more specific than that a person displayed "furtive movement," including anything about the person's furtive movement that suggested trespass, then the statement that a person displayed "furtive movement" is nothing more than an unparticularized suspicion or hunch, and does not constitute reasonable suspicion.
2. Proposed Additional Relief
In addition to the immediate relief ordered above, I propose to enter the preliminary relief described under the following subheadings. I present this relief as a proposal for two reasons. First, the parties in Ligon had little opportunity to argue and present evidence at the preliminary injunction hearing concerning the appropriate scope of relief. Second, the preliminary relief I propose is similar though not identical to the relief sought by plaintiffs in the Floyd action, where I have already certified a city-wide class of plaintiffs alleging that they have or will be victims of unconstitutional stops. Floyd is scheduled for trial on March 11, 2013. As part of the proof in that case, plaintiffs intend to present evidence regarding the remedies they seek.
Because of the rapidly approaching trial date in Floyd and the inefficiency of hearing separate arguments regarding the closely related remedies at issue in Ligon and Floyd, I am ordering the consolidation of the remedies hearing in the instant case with the remedies portion of the Floyd trial. Thus, the relief proposed under the subheadings below will not take effect until the parties in this case have had the opportunity to participate in a hearing at which they may present evidence or argument as to whether the proposed relief is insufficient or too burdensome or otherwise inappropriate, as well as regarding the appropriate timeline for relief. This remedy hearing will be held in conjunction with the Floyd trial, following the phase of the trial dealing with proof of liability.*fn457 Plaintiffs' counsel in Ligon and Floyd must coordinate their presentations with respect to appropriate remedies.*fn458 Submissions by counsel in Ligon related solely to remedies must be filed no later than February 22, 2013, and may not exceed twenty-five pages per side.
a. Policies and Procedures
The NYPD is ordered to develop and adopt a formal written policy specifying the limited circumstances in which it is legally permissible to stop a person outside a TAP building on a suspicion of trespass. The policy must reflect the fact that trespass stops outside TAP buildings are governed not only by New York state law, but by the Fourth Amendment. Guidance in drafting this policy should be drawn from the legal discussion found in this Opinion.
A draft of the written policy governing trespass stops outside TAP buildings shall be provided to the Court (or a monitor appointed by the Court) for approval prior to distribution, with a copy to plaintiffs' counsel.
First, the City is ordered to take all necessary steps to ensure that UF-250s are completed for every trespass stop outside a TAP building in the Bronx. Again, a "stop" in the relevant sense is defined as any police encounter in which a reasonable person would not feel free to terminate the encounter.
Second, the City is ordered to implement a system of review modeled on the one ordered by Chief Hall in paragraph 3 of Exhibit E. Supervisory personnel in each Bronx precinct must review, on a quarterly basis, each UF-250 completed for a trespass stop outside a TAP building in the Bronx. To the extent that such review reveals nonconformity with the formal written policy described above, the City will take specific steps to retrain the officer. The results of these reviews and any retraining will be periodically reported to the relevant precinct commander, a designated member of the Bronx Borough Command, a designated member of the Chief of Patrol's Office, and plaintiffs' counsel. Copies of all reviewed UF-250s shall be provided to plaintiffs' counsel.
The City is ordered to revise the NYPD's training materials and training programs to conform with the law as set forth in this Opinion. The instruction must be sufficient to uproot the longstanding misconceptions that have afflicted TAP in the Bronx. It must include, but need not be limited to, the following reforms: (1) The formal written policy governing trespass stops outside TAP buildings, described above, must be distributed to each Bronx NYPD member, and then redistributed two additional times at six-month intervals.
(2) The stop and frisk refresher course at Rodman's Neck must be altered to incorporate instruction specifically targeting the problem of unconstitutional trespass stops outside TAP buildings. Whether the instruction includes additional slides, role-playing, or exams, it must be sufficient to convey to all officers who attend the course that reasonable suspicion of trespass is required before making a trespass stop outside a TAP building. Training regarding these stops must also be provided to new recruits and to officers who have already attended the Rodman's Neck refresher course and are not scheduled to do so again. (3) Chapter 16 of the Chief of Patrol Field Training Guide must be revised to reflect the formal written policy governing trespass stops outside TAP buildings described above. (4) SQF Training Video No. 5 must be revised to conform with the law as set forth in this Opinion. I recognize that this step, like some of the others above, will involve alterations to training materials used outside the Bronx and outside the context of TAP. But such steps are necessary to correct the longstanding misconceptions that led to the violations of plaintiffs' constitutional rights described in this Opinion.
Drafts of the written or scripted training materials described above shall be provided to the Court (or a monitor appointed by the Court) for approval prior to use, with a copy to plaintiffs' counsel.
d. Attorneys' Fees
Reasonable attorneys' fees and costs will be rewarded as appropriate, on application.
In closing, I stress that my conclusions in this Opinion are based on the limited evidence presented at the preliminary injunction hearing. It could be the case that the development and implementation of IOs 22 and 23 of 2012, as well as the changes to NYPD training in 2012, have resolved the problem of unconstitutional trespass stops outside TAP buildings in the Bronx. Because these changes were so recent, however, and so late in the two-decade history of TAP, they were insufficient to rebut plaintiffs' evidence at the hearing of defendants' deliberate indifference to a practice of unconstitutional stops. At any time that defendants develop persuasive evidence, supported by reliable statistics, that unconstitutional trespass stops are no longer taking place outside TAP buildings in the Bronx, defendants may move for the dissolution of this preliminary injunction and the proposed relief.
For the reasons explained above, plaintiffs' motion is granted, although the full extent of the relief has not yet been determined. The Clerk of the Court is directed to close this motion [Docket No. 42]. A conference is scheduled for January 31, 2013 at 4:30 pm.
Excerpts from Decline to Prosecute Affidavits:
1. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, and asked defendant, why were you in the building? Defendant stated in sum and substance: VISITING A FRIEND. The Arresting Officer then observed defendant to have a white powdery substance on his nose . . . however, the amount was too small to field test or recover.
The Arresting Officer arrested Defendant and charged him with violating New York State Penal Law section 140.15 (Criminal Trespass). However, the Arresting Officer failed to ask defendant [redacted] you know anyone in the building; if so, what is the person's name and apartment number.
2. [T]he defendants were observed exiting a clean halls building. The defendants stated that they were there to visit a tenant . . . . After being arrested a tenant from the building did corroborate the defendant's statements and the tenant stated that both defendants were in the building as his guests.
3. The Arresting Officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The Arresting Officer . . . approached the defendant and asked the defendant do you live in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant what apartment did you come from and defendant stated in sum and substance: I MET WITH [redacted] IN THE LOBBY. The Arresting Officer further asked defendant what apartment does [redacted] live in and defendant stated in sum and substance: I DON'T KNOW THE APARTMENT NUMBER. [Another officer then went inside the building and asked two people exiting if they knew anyone by the name of the defendant's host. When they said no, the defendant was arrested for trespass.]
4. . . . Arresting Officer observed defendant enter and exit a Clean Halls Building. Arresting Officer approached the defendant and asked her where she was coming [from], what was she doing in the building and what apartment number was she visiting. Defendant responded in sum and substance: I WAS VISITING A FRIEND. I AM NOT TELLING YOU THE APARTMENT NUMBER OR THE NAME. [The defendant was then arrested for trespass.]
5. Defendants entered . . . a clean halls building, and exited. Defendant was stopped outside of the location. When the arresting officer questioned the defendant, defendant stated, in sum and substance, I'M JUST CHILLING. Defendant did not admit that he was in the location. [The defendant was then arrested for trespass.]
6. [A]rresting officer . . . observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment Building, asked defendant does he live there and defendant did not respond. The arresting officer then asked the defendant if he knows anyone in the apartment and defendant did not respond. Arresting officer then asked defendant what was he doing in the building and defendant stated in sum and substance I WASN'T THERE TO BUY DRUGS. [The defendant was then arrested for trespass.]
7. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Apartment building, and asked defendant do you live in the building, do you know anyone in the building, what are you doing in the building, to which defendant stated in sum and substance: NO, NO, I WAS INSIDE FOR A COUPLE OF MINUTES MAKING A PHONE CALL. [The defendant was then arrested for trespass.]
8. Arresting Officer . . . observed both defendants exit the lobby of . . . a Clean Halls Apartment Building and asked defendants what was their purpose inside of said building and defendant [redacted] stated in sum and substance: I WAS VISITING MY COUSIN [redacted] IN [redacted] but defendant [redacted] remained silent. [Another officer] entered the building to investigate further, however, the arresting officer was unable to articulate how [the other officer] disproved [the speaking defendant's] claim. [Both defendants were arrested for trespass.]
9. Police Officer . . . observed the defendant exiting the lobby of . . . a Clean Halls Apartment Building and asked defendant whether he lived in the building and defendant stated in sum and substance: NO. [The officer] then asked the defendant, were you visiting anyone in the building, and defendant stated in sum and substance: YES. [The officer] then asked the defendant for the name of the person he was visiting and the apartment number and defendant stated in sum and substance: I DON'T KNOW. [The defendant was then arrested for trespass.]
10. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building, and radioed defendant's description. Arresting Officer's partner asked defendant why did you go into the building, do you know anyone in the building, to which defendant stated in sum and substance: I CAME OUT OF A FRIEND[']S APARTMENT. I WAS INSIDE FOR ABOUT AN HOUR. [The defendant was then arrested for trespass.]
11. [T]he arresting officer observed the defendant enter into [a Clean Halls building] and exit after approximately five (5) minutes. .
. . . The defendant was not observed in an area of the building that is not open to the public such as the hallways, lobby and stairwells. [The defendant was arrested for trespass.]
12. [A police officer] observed the defendant enter a Clean Halls Building and exit moments later. . . . [W]hen the defendant exited the building, [the officer] asked the defendant if he lived in the building, to which the defendant stated in sum and substance, NO. . . . [The officer] did not ask the defendant if he was a guest of a tenant in the building. . . . [T]he defendant attempted to walk away at which time [the officer] grabbed the defendant[']s arms, and the defendant pulled away. [A struggle ensued, and the defendant was then arrested in part for trespass.]
13. [T]he defendants entered a Clean Halls building, stayed there approximately five minutes, and then left. The arresting officer stopped the defendants and asked them where they were coming from. The defendants replied, in sum and substance, WE'RE COMING FROM . . . WE'RE COMING FROM . . ., and could not provide a name or apartment number. The officer placed both defendants under arrest and searched them.
14. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building, approached defendant and asked, Do you live in the building?, defendant stated in sum and substance: NO. The Arresting Officer then asked the defendant, Do you know anyone in the building?, defendant stated in sum and substance: YES, A FRIEND. The Arresting Officer then asked the defendant, What's your friend's name? What apartment does your friend live in?, defendant stated in sum and substance: I DON'T KNOW HIS NAME. HE'S IN [redacted]. The Arresting Officer went to [redacted] however, the apartment was unoccupied, and as a result, the Arresting Officer was unable to locate anyone who could verify defendant's claim. [The defendant was then arrested for trespass.]
15. The Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building and [another officer] approached defendant on the sidewalk and asked defendant, Do you live in the building?, and defendant stated in sum and substance: NO. [The officer] asked defendant, What was your reason for being in the building?, and defendant stated in sum and substance: LOOKING FOR A GIRL. [The officer] then asked the defendant, What's the name of the girl?, and defendant refused to provide an answer to the aforementioned question. [The defendant was then arrested for trespass.]
16. Arresting Officer observed the defendant enter and exit the lobby of . . . a clean halls Building. [The defendant was then arrested for trespass.] However, arresting Officer could not obtain a clean halls affidavit.
17. [I]n front of . . . a Clean Halls building, [the arresting officer] observed defendant and several unapprehended individuals exit the lobby . . . . [The officer] approached defendant and asked defendant if he knew anyone in above-mentioned location and defendant stated in sum and substance: NO. I'M JUST LOOKING FOR MY FRIEND [redacted]. NO [redacted] DOESN'T LIVE HERE. [The defendant was then arrested for trespass.]
18. [D]efendant was observed entering and exiting the lobby of [a Clean Halls building].
Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS IN THE BUILDING LOOKING FOR WORK. Arresting officer asked defendant what kind of work he was looking for and defendant stated in sum and substance I WAS LOOKING FOR MY FRIEND [redacted]. Arresting officer asked defendant where his friend lived and defendant stated in sum and substance I DON'T KNOW WHERE HE LIVES. [The defendant was then arrested for trespass.]
19. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and defendant stated in sum and substance: I WAS THERE TO VISIT A FRIEND. I DON'T KNOW WHAT APARTMENT THEY LIVE IN. [The officer then searched the defendant, found crack-cocaine and a pipe, and arrested defendant in part for trespass.]
20. The arresting officer . . . observed defendant exiting the lobby of . . . a Clean Halls Apartment Building. The arresting officer stopped defendant and defendant clenched his fists on his sides and spread his feet apart and . . . stated in sum and substance YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT GOING TO TOUCH ME. YOU'RE NOT PUTTING YOUR HANDS ON ME. [The arresting officer then handcuffed defendant and placed him in the patrol vehicle.]
21. [D]efendant was observed entering the above location, a Clean Halls Apartment building, and was also observed exiting said location minutes later. Arresting police officer . . . asked defendant if he lived in the building and defendant stated in sum and substance, I'M NOT THERE, I'M IN [redacted]. [The defendant was then arrested for trespass.]
22. Arresting Officer observed the defendant exit the lobby of . . . a Clean Halls Apartment Building. Arresting officer approached defendant and asked him, do you live in the building, do you know anyone in the building, what apartment does your friend live [in], what is his name[,] to which defendant stated in sum and substance: . . . NO I DON'T, YES I'M VISITING MY FRIEND ON THE [redacted] FLOOR, NO I'M NOT GOING TO GIVE YOU MY FRIEND'S NAME. [The officer then patted down the defendant and arrested him in part for trespass.]
23. Arresting officer observed defendant enter . . . a clean halls building and observed defendant exit said building. Arresting officer approached and asked defendant, what were you doing in the building and do you know anyone in the building and defendant stated in sum and substance: NO, I DON'T KNOW ANYONE AND I WENT TO BUY DRUGS. [The defendant was then arrested in part for trespass.]
24. The Arresting Officer states that . . . he observed defendant exiting . . . a Clean Halls Apartment Building. The Arresting Officer approached defendant and asked defendant if he lives in the building and defendant stated in sum and substance: NO. The Arresting Officer further asked the defendant where are you coming from and defendant stated in sum and substance: I'M COMING FROM THE [redacted] FLOOR. The Arresting Officer asked the defendant what apartment are you coming from and defendant stated in sum and substance: I DON'T KNOW THE APARTMENT NUMBER BUT I'LL SHOW IT TO YOU. [The officer went with the defendant to the apartment. No one answered the door. The defendant was arrested for trespass.]
25. Arresting Officer observed the defendant enter and exit the lobby of . . . a Clean Halls Building. Arresting Officer told defendant that he observed him enter said building along with separately apprehended [redacted] . . . and separately apprehended stated in sum and substance WE WERE IN THE BUILDING. Arresting Officer then asked separately apprehended and defendant what apartment they were visiting, and neither defendant nor separately apprehended provided a response. [The defendant was then arrested for trespass.]
. . . [T]he Arresting Officer did not observe defendant to go beyond the public vestibule of said building, nor did defendant admit to being inside of said building, beyond the public vestibule.
26. The arresting officer states that . . . inside of . . . a Clean Halls Building, she observed defendant and separately apprehended [redacted] enter the lobby of said location and exit shortly thereafter. Arresting officer stopped defendant and asked him if he lived in the building and defendant stated in sum and substance I DON'T LIVE IN THE BUILDING. Arresting officer asked defendant what he was doing in the building and defendant stated in sum and substance I WAS WAITING FOR A FRIEND. Arresting officer asked defendant for the name of the person he was waiting for and defendant did not reply. Arresting officer asked defendant for his identification and defendant was unable to produce one at which time arresting officer attempted to handcuff defendant and defendant ran.
Blank UF-250 Form
[Editor's Note: Form not available]