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Ligon v. City 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,
v.
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

I. INTRODUCTION

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 "disrespected,"*fn13 "angry,"*fn14 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 suspicion.
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 plaintiffs' motion.

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 plaintiffs[.]'"*fn35

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[1]). A person "enters or remains unlawfully" in or upon premises "when he is not licensed or privileged to do so" (Penal Law § 140.00[5]). "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 . . . [1990]). The prosecution bears the burden of proving the absence of such license or privilege (People v. Brown, 25 N.Y.2d 374, 377 . . . [1969]).*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 absence of 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 stop.*fn123

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 Davidson.*fn146

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 then patting 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 ...


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