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Davis v. City of New York

United States District Court, S.D. New York

March 28, 2013

KELTON DAVIS, WILLIAM TURNER, EDWIN LARREGUI, ANTHONY ANDERSON, SHAWNE JONES, HECTOR SUAREZ, ADAM COOPER, DAVID WILSON, GENEVA WILSON, ELEANOR BRITT, ROMAN JACKSON, KRISTIN JOHNSON, LASHAUN SMITH, ANDREW WASHINGTON, PATRICK LITTLEJOHN, RAYMOND OSORIO, VAUGHN FREDERICK, and R.E., by her parent D.E., individually and on behalf of a class of all others similarly situated, Plaintiffs,
v.
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY, Defendants

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For Plaintiffs: Katharine E.G. Brooker, Esq., Matthew J. Moses, Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York; Debo P. Adegbile, Esq., Christina Swarns, Esq., Johanna B. Steinberg, Esq., Jin Hee Lee, Esq., Johnathan Smith, Esq., Ria Tabacco, Esq., NAACP Legal Defense & Educational Fund, Inc., New York, New York; Steven Banks, Esq., William D. Gibney, Esq., Steven Wasserman, Esq., Nancy Rosenbloom, Esq., Marlen S. Bodden, Esq., Legal Aid Society of New York, New York, New York.

For City of New York, Defendant: Brenda E. Cooke, Judson Vickers, Wesley Bauman, Lisa Richardson, George Soterakis, Pernell Telfort, Assistant Corporation Counsel, New York City Law Department, New York, New York.

For NYCHA, Defendant: Steven Jay Rappaport, Esq., New York City Housing Authority, New York, New York.

OPINION

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OPINION & ORDER

SHIRA A. SCHEINDLIN, U.S.D.J.

I. INTRODUCTION

II. BACKGROUND

III. LEGAL STANDARD FOR SUMMARY JUDGMENT

IV. MONELL LIABILITY

V. DISCUSSION

A. Fourth Amendment Claims Against the City

1. Plaintiffs' Claim of an Unconstitutional Policy

a. Plaintiffs' Motion

i. Plaintiffs' Challenge to IO 23 Arrest Policy

ii. Plaintiffs' Challenge to IO 23 Stop Policy

b. The City's Motion

2. Plaintiffs' Claim of an Unconstitutional Custom and Practice

a. Widespread Practice

i. Documentary and Testimonial Evidence

ii. Dr. Fagan's Analysis

b. Deliberate Indifference

B. Fourteenth Amendment Equal Protection Claims Against the City

C. Title VI Claims Against the City

D. Section 1981 Claims Against the City

E. FHA Claims Against the City

F. NYSC Article I Section 12 Claims Against the City

G. Race Discrimination Claims Against NYCHA

H. USHA Claims Against NYCHA

VI. CONCLUSION

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I. INTRODUCTION

This case, filed in 2010, is one of three cases currently before this Court challenging aspects of the City of New York's " stop and frisk" practices.[1] What distinguishes this case from the other two is its focus on stop and frisk practices at public housing properties owned and operated by the New York City Housing Authority (" NYCHA" ). Plaintiffs argue that the New York City Police Department (" NYPD" ) uses unlawful stops, searches, and arrests to enforce the prohibition against trespassing in NYCHA buildings.[2] According to plaintiffs, the NYPD's practices violate the Fourth Amendment to the United States Constitution, which guarantees " [t]he right of the people to be secure . . . against unreasonable searches and seizures." Plaintiffs also argue that the NYPD's practices are based on racial discrimination against African Americans and Latinos, and thus violate the Fourteenth Amendment, which guarantees " the equal protection of the laws."

As the Supreme Court of the United States has repeatedly affirmed, " the ultimate touchstone of the Fourth Amendment is 'reasonableness.'" [3] In Terry v. Ohio,

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the Supreme Court held that under the Fourth Amendment, it is constitutionally reasonable for 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." [4] This form of investigative detention is now known as a Terry stop.[5]

In the years since Terry , the Supreme Court and the Second Circuit have developed and refined the balance under the Fourth Amendment " 'between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" [6] The long line of cases concerning " the power of the police to 'stop and frisk' . . . suspicious persons" has frequently presented a conflict between individual liberty and dignity on the one hand, and public safety on the other.[7]

This case illustrates the tensions between liberty and security in particularly stark form, because it deals with police practices in and around the home, where the interests in both liberty and security are especially strong.[8] The gravity of the alleged injuries to plaintiffs' liberty is reflected in the testimony of Reginald Bowman, President of the Citywide Council of Presidents, a NYCHA resident leadership group:

[W]henever I have an opportunity to talk to someone in law enforcement who might listen, my question to them is: Suppose I came into your neighborhood tonight and you were in civilian attire and you were on your way to the store to get milk and cookies for your kids, and I stopped you the way that some of

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your personnel do, what would you do? How would you feel about that?
. . .
When this type of practice is instituted and done to people on a regular basis . . . I use the term " penal colony," it's almost like we have been colonized for a decade.[9]

At the same time, many NYCHA tenants have expressed a desire for greater security services from the police, including " more officers on foot patrol like we used to have when officers walked around, knew residents and built relationships with them." [10] As I noted in an earlier opinion in this case, there is a long and often underappreciated history of anti-crime activism by NYCHA tenant organizations: " 'The activists, most of whom were women, . . . believed that securing their fair share of municipal services, including police protection, was a fundamental right . . . .'" [11]

This case is solely concerned with whether the NYPD's trespass enforcement practices in NYCHA buildings violate the Constitution, or other laws. If so, the practices must stop, no matter how effective they may be. As the Supreme Court recently noted, " the enshrinement of constitutional rights necessarily takes certain policy choices off the table." [12] Just as public schools face constitutional constraints on religious expression that do not apply to private schools, and public employers face constitutional restrictions that do not apply to private employers, so public security in public housing must operate within constitutional limitations that would not apply in a purely private context. NYPD officers on patrol in NYCHA buildings are members of the City's police force. As a result, they must operate in accord with constitutional rules that would not apply to private security in a private building. The NYPD may not, for example, forcibly stop and question every person who enters a NYCHA building, as a doorman in a private building is free to do.

It is against this backdrop that I address plaintiffs' and defendants' motions for summary judgment. The parties agreed to brief these motions in two parts. The first part, adjudicated in October 2012, addressed the individual circumstances of plaintiffs' arrests and tenancies.[13] The second part, adjudicated here, addresses defendants' practices and policies.

For the reasons set forth below, the parties' motions for summary judgment are granted in part and denied in part. A summary of the Court's decisions appears in the Conclusion to this Opinion.

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II. BACKGROUND

I begin by offering a brief summary of the procedural background to plaintiffs' pending claims against the City and NYCHA. Plaintiffs' Amended Complaint identified the putative plaintiff class in this case as consisting of two overlapping subclasses, the " arrested plaintiffs" and the " resident plaintiffs." [14] Plaintiffs identified the following thirteen plaintiffs as representing the arrested plaintiffs: Anthony Anderson, Adam Cooper, Rikia Evans, Vaughn Frederick, Roman Jackson, Kristin Johnson, Edwin Larregui, Patrick Littlejohn, Raymond Osorio, Lashaun Smith, William Turner, Andrew Washington, and David Wilson.[15] Plaintiffs identified the following eight plaintiffs as representing the resident plaintiffs: Eleanor Britt, Kelton Davis, Frederick, Shawne Jones, Littlejohn, Hector Suarez, Washington, and Evans.[16] Plaintiff Geneva Wilson, a NYCHA resident and aunt of David Wilson who was eighty years old at the time of the Amended Complaint, was not listed as representing either subclass.[17]

Prior to the filing of the Amended Complaint, nine of the named plaintiffs accepted offers of judgment from the City pursuant to Federal Rule of Civil Procedure 68, but continued to assert their claims against NYCHA: Anderson, Cooper, Davis, Jones, Larregui, Suarez, Turner, David Wilson, and Geneva Wilson.[18]

In the Amended Complaint, plaintiffs brought the following claims:

(1) The arrested plaintiffs who had not accepted offers of judgment from the City (Evans, Frederick, Jackson, Johnson, Littlejohn, Osorio, Smith, and Washington) brought Fourth Amendment, New York State Constitution (" NYSC" ) article 1 section 12 (which guarantees security against unreasonable searches and seizures), and respondeat superior claims against the City.[19] Plaintiffs also alleged violations of resident plaintiffs' Fourth Amendment rights, but did not plead a claim based on these violations.[20]
(2) The resident plaintiffs brought claims against the City and NYCHA under Title VIII of the Civil Rights Act of 1968 (the " Fair Housing Act" or " FHA" ), the United States Housing Act (the " USHA" ), the Civil Rights Act of 1866 (42 U.S.C. § 1981, or " section 1981" ), and the New York State and City Human Rights Laws (the " NYSHRL" and " NYCHRL" ).[21]
(3) All plaintiffs brought claims against the City and NYCHA under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (" Title VI" ), and NYSC article 1 section 11 (which guarantees equal protection).[22]

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Because it was undisputed in Davis I that Frederick and Washington are not authorized NYCHA tenants, I granted summary judgment to the City and NYCHA on their claims as resident plaintiffs.[23] Based on this and plaintiffs' omission of Davis and Geneva Wilson from the list of resident plaintiffs in their briefing, I concluded that the remaining resident plaintiffs were Britt, Evans, Jones, Littlejohn, and Suarez.[24] In the briefing prior to Davis I , plaintiffs withdrew their claims against the City under the USHA.[25] I also granted summary judgment in Davis I on the following claims to the following parties: (1) to NYCHA on all plaintiffs' Fourteenth Amendment equal protection and article 1 section 11 claims; [26] (2) to the City on the resident plaintiffs' NYSHRL and NYCHRL claims; [27] and (3) to the City and NYCHA on non-resident plaintiffs' Title VI claims,[28] on Britt's equal protection, FHA, section 1981, NYSHRL, NYCHRL, and Title VI claims,[29] and on all plaintiffs' due process claims.[30]

As a result, the following claims from the original three categories of claims, above, remained viable after the first round of summary judgment briefing: First , the remaining arrested plaintiffs are Evans (trespass stop and arrest), Frederick (trespass stop and arrest), Jackson and Johnson (trespass arrests), Littlejohn (trespass stop and arrest), Osorio (trespass stop), Smith (trespass stop and arrest), and Washington (trespass stop and arrest). These plaintiffs maintain Fourth Amendment, Fourteenth Amendment equal protection, NYSC article 1 sections 11 and 12, and respondeat superior claims against the City.[31] Second , the remaining resident plaintiffs are Britt, Evans, Littlejohn, Jones, and Suarez. All maintain USHA claims against NYCHA; all but Britt maintain Title VI, FHA, NYSHRL, NYCHRL, and section 1981 claims against NYCHA; and Evans and Littlejohn maintain Title VI, FHA, section 1981, Fourteenth Amendment equal protection, and NYSC article 1 section 11 claims against the City.

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III. LEGAL STANDARD FOR SUMMARY JUDGMENT

" Summary judgment is designed to pierce the pleadings to flush out those cases that are predestined to result in a directed verdict." [32] Thus, summary judgment is appropriate " only where, construing all the evidence in the light most favorable to the non-movant and drawing all reasonable inferences in that party's favor, there is 'no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law.'" [33] " A fact is material if it might affect the outcome of the suit under the governing law, and an issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." [34]

" [T]he burden of demonstrating that no material fact exists lies with the moving party . . . ." [35] " When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the non[-]movant's claim." [36] In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact.[37] The non-moving party " 'must do more than simply show that there is some metaphysical doubt as to the material facts,'" [38] and cannot " rely on conclusory allegations or unsubstantiated speculation." [39]

In deciding a motion for summary judgment, " [t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." [40] " 'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.'" [41]

IV. MONELL LIABILITY

42 U.S.C. § 1983 (" section 1983" ) creates " 'a species of tort liability'" for, among other things, certain violations of constitutional rights.[42] As the Supreme Court established in Monell v. New York City Department of Social Services ,[43] in

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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." [44] " In other words, municipalities are 'responsible only for their own illegal acts,' and cannot be held 'vicariously liable under § 1983 for their employees' actions.'" [45] 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." [46] Such policies " may be pronounced or tacit and reflected in either action or inaction." [47]

One way to establish the existence of a municipal 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.'" [48] " Deliberate indifference" requires " 'proof that a municipal actor disregarded a known or obvious consequence of his action.'" [49]

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.'" [50] The Second Circuit has also 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." [51]

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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," [52] 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." [53] " [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[.]'" [54]

V. DISCUSSION

A. Fourth Amendment Claims Against the City

Both Davis I and the preliminary injunction opinion in Ligon included detailed discussions of the law of seizures.[55] As the Supreme Court reaffirmed in Florida v. Bostick , the test for determining whether a Terry stop has taken place " is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." [56] Whether a stop has taken place depends on " whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" [57]

While the Supreme Court explicitly refrained from determining whether a seizure occurred in Bostick ,[58] it noted several

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types of police encounters that previous cases had identified as not necessarily constituting stops.[59] The Supreme Court made a point of confirming that even in these types of cases, the " terminate the encounter" standard applies: " [E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage -- as long as the police do not convey a message that compliance with their requests is required ." [60] The Bostick majority emphasized that police officers may not " demand of passengers their 'voluntary' cooperation" through " 'an intimidating show of authority.'" [61]

The Second Circuit has held that the following factors are indicative of a " seizure," a term that encompasses both Terry stops and arrests:

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.[62]

In Ligon , I noted two examples of police encounters that the Second Circuit held to be Terry stops, despite their arguably low level of coercion:

The Second Circuit has held . . . 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. 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.[63]

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By contrast, the Second Circuit held that no Terry stop took place " where a person encountered two officers in his dorm lobby, and the officers asked him to show them his hands." [64]

In Davis I , the City of New York conceded, and I held, that a person was subject to a Terry stop 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.[65] I also held that 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 the order." [66]

In Ligon , I held that a person was subject to a Terry stop when a patrol car pulled in front of the building he was trying to leave; the officer caused the person to stop by asking him pointed questions designed to elicit an incriminating response; the officer asked for the person's ID and took it; and the officer told the person and his companions that they could not stand in front of their building.[67] By contrast, I held that a person was not subject to a Terry stop when two officers approached her in front of a supermarket in her apartment complex, " 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 sad to have a nice day," where there was no evidence that the officers approached or questioned her " in an aggressive, coercive, or threatening manner." [68]

In sum, the test for whether a Terry stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter.[69] In order for such a stop to comply with the Fourth Amendment, it must be based on reasonable suspicion. " 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." [70] " 'The officer [making a Terry stop] . . . must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.'" [71] " Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant." [72] In general, reasonable suspicion requires an individualized suspicion of wrongdoing.[73]

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Finally, because the NYPD's training materials place great importance on the New York state common law of stops, as articulated in People v. De Bour and its progeny,[74] a few words regarding the relationship between De Bour and the Fourth Amendment will be useful. I highlight one important difference between De Bour and the Fourth Amendment: these two sources of law draw the line between permissible and impermissible police encounters in different ways; as a result, De Bour is in some respects more protective of liberty from governmental intrusion than the Fourth Amendment, and in other respects less.[75]

1. Plaintiffs' Claim of an Unconstitutional Policy

The City and plaintiffs have both moved for summary judgment on plaintiffs' claim that the City's written trespass enforcement policies (as opposed to the City's unwritten practices ) violate the Fourth Amendment. I will discuss plaintiffs' motion first, and then turn to the City's motion. For the reasons stated below, both

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motions for partial summary judgment are denied.

a. Plaintiffs' Motion

Plaintiffs' motion argues that it is undisputed that the City's policy, as embodied in Interim Order 23 of 2010 (" IO 23" ) and associated training materials, instructs NYPD officers that they may do the following: " without reasonable suspicion or probable cause, NYPD officers can command people to affirmatively establish their right to be in a NYCHA residence or leave the premise, and then arrest those who refuse to comply." [76] Plaintiffs argue that this scheme authorizes NYPD officers to stop NYCHA residents and guests without reasonable suspicion, and to arrest NYCHA residents and lawful guests for criminal trespass without probable cause, in violation of the Fourth Amendment.[77]

The City presents plaintiffs' challenge to the stop and arrest policies of IO 23 as a facial rather than as-applied challenge.[78] Plaintiffs' challenge is facial at least in the sense that plaintiffs focus exclusively on the language of IO 23 and related training materials, and do not argue that they are entitled to summary judgment based on undisputed evidence of how IO 23 is applied.[79] The Second Circuit has stated that in order to succeed on a facial challenge to a statute, at least outside of the First Amendment context, the challenger must show that " 'no set of circumstances exists under which the [statute] would be valid, i.e., that the law is unconstitutional in all of its applications,' or at least that it lacks a 'plainly legitimate sweep.'" [80] Thus,

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in the present case, plaintiffs must show, at minimum, that there is no set of circumstances under which the undisputed stop and arrest scheme laid out in IO 23 and related training materials, as described above, would be valid, or at least that the scheme lacks a plainly legitimate sweep.

i. Plaintiffs' Challenge to IO 23 Arrest Policy

The City correctly argues that plaintiffs lack standing for their facial challenge of IO 23's arrest policy, because no plaintiff has been subjected to the kind of arrest that plaintiffs contest.[81] That is, no plaintiff has been arrested for criminal trespass in a NYCHA building simply based on refusal to answer an officer's questions and refusal to leave when requested by an officer.

" To establish Article III standing, an injury must be 'concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'" [82] No plaintiff has suffered an actual, concrete injury from the IO 23 arrest policy that is the focus of plaintiffs' facial challenge. Plaintiffs' reply brief points to Rikia Evans, a guest in a NYCHA building who was arrested for trespass after refusing to answer an officer's questions and refusing to provide her identification on request.[83] But Evans specifically alleged that she was not offered the opportunity to exit the building after she refused to establish her right to be there.[84] Because plaintiffs have offered no evidence of any person being arrested under IO 23's arrest policy simply for refusing to answer questions and refusing to leave on request, plaintiffs' injuries are insufficient to confer standing.[85]

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ii. Plaintiffs' Challenge to IO 23 Stop Policy

IO 23 states that upon encountering " persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons within NYCHA property," officers are to " [a]pproach the person(s) and ask: (1) If he or she lives in the building[; ] (2) If he or she is visiting someone in the building[; ] (3) If he or she has business in the building." [86] IO 23 then states, in italics: " When a person's authority to be present in the building is in question, take reasonable measures to verify such authority (e.g., asking for identification, a key to the building entrance doors, etc .)." [87] IO 23 explicitly warns that " an officer may not stop (temporarily detain) a suspected trespasser unless the officer reasonably suspects that the person is in the building without authority." [88] The City acknowledges in its brief that IO 23 authorizes police to approach and question individuals, and to request their identification or keys, without reasonable suspicion of any crime.[89]

Plaintiffs have standing to challenge the stop policy in IO 23, based on plaintiffs' allegations and evidence of having been personally stopped under the policy, and plaintiffs' continued risk of such stops.[90] Nevertheless, plaintiffs' facial challenge to IO 23's stop procedure fails for two reasons. First , not every police encounter involving the kinds of questions and requests described in IO 23 inevitably constitutes a Terry stop. The test for whether a police encounter rises to the level of a Terry stop is whether, in light of the totality of the circumstances, a reasonable person would " feel free to decline the officers' requests or otherwise terminate the encounter." [91] Because questions and requests concerning purpose and identity could be carried out in such a manner that

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a reasonable person would feel free to terminate the encounter, such questioning is neither categorically inside or outside the scope of Fourth Amendment protection. The level of coercive effect will depend on the totality of the circumstances, including, for example, " 'the threatening presence of several officers; . . . language or tone indicating that compliance with the officer was compulsory; [or] prolonged retention of a person's personal effects, such as . . . identification.'" [92]

Plaintiffs offer no evidence in their facial challenge that it is impossible for a police officer to ask the kinds of questions and make the kinds of requests described in IO 23 in such a way that a reasonable person would feel free to terminate the encounter.[93] The City argues that suspicionless encounters based on IO 23 do not rise to the level of stops; [94] plaintiffs argue the contrary.[95] The dispute between the parties represents a genuine issue of material fact that will have to be resolved by a fact-finder based on evidence of actual police encounters, not based simply on a textual analysis of IO 23.[96]

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Second , it is true, as plaintiffs argue, that IO 23 contains no criteria for identifying either persons who may be violating Housing Authority rules or persons whose authority to be in the building is questionable, yet presents both of these factors as justifications to approach and question a person.[97] As a result, it appears that NYPD officers have complete discretion under IO 23 to approach and question anyone in a NYCHA building. This discretion, however, is not problematic if the NYPD officers approach and question individuals in ways that do not implicate their Fourth Amendment (or other constitutional) rights. But whether this is the case, again, cannot be determined from the face of IO 23 and its associated training materials.

For the foregoing reasons, plaintiffs' motion for summary judgment on the unconstitutionality of IO 23's stop policy is denied.

b. The City's Motion

The City moves for summary judgment on plaintiffs' claim that the NYPD has a policy of making unconstitutional stops or arrests for trespass on NYCHA property.[98] Based on the analysis above, the City's motion is rejected with regard to the stop policy in IO 23 and its associated training materials. A reasonable juror could conclude that the NYPD's policy for trespass enforcement in NYCHA buildings is to conduct both constitutionally permissible non-coercive questioning and constitutionally impermissible suspicionless Terry stops. Such a policy could form the basis for Monell liability whether it was implemented with the intent to violate the Constitution, or merely out of ignorance of the Constitution's requirements.[99]

The City's motion for summary judgment is also denied with regard to the NYPD's trespass arrest policies in NYCHA buildings. While plaintiffs lack standing to challenge the constitutionality of the conjectural type of trespass arrest described above -- that is, an arrest based solely on refusing to answer questions and refusing to leave after being requested to do so by a police officer -- plaintiffs have also argued that the NYPD's trespass enforcement policy is unconstitutional because it " permits the arrest of NYCHA residents and their guests just for being present in areas designated as 'prohibited' by NYCHA, such as roofs and roof landings, without adequate notice." [100] Plaintiffs have standing to challenge this type of arrest. Two plaintiffs, Roman Jackson and Kristin Johnson, were arrested in January 2009 for trespass based on sitting at the top of a stairwell in a NYCHA building. Jackson was a tenant in the building at the time, and Johnson was his guest. The parties dispute whether the top of the

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stairwell was a " roof landing," which has been defined as a prohibited area. The parties also dispute whether there was a sign at the top of the stairwell: plaintiffs have presented testimony that there was no sign; the City has argued that there was a sign stating that " loitering and trespassing in lobby, roof, hallway and stairs is not permitted." [101]

In Davis I , I held that the City was not entitled to summary judgment on Jackson's and Johnson's Fourth Amendment claims based on the circumstances of their arrest, because a reasonable juror could find that their arrest lacked probable cause.[102] I did not reach the issue of Monell liability. In order to survive the City's motion for summary judgment on Monell liability regarding IO 23's arrest policy, plaintiffs must show not only that a reasonable juror could conclude that Jackson's and Johnson's arrest lacked probable cause, but that Jackson's and Johnson's constitutional injuries resulted from a municipal policy.[103]

Plaintiffs have offered sufficient evidence to create a genuine issue of material fact as to whether the NYPD has a policy of arresting the residents of NYCHA buildings for trespass in areas that lack the requisite " conspicuously posted rules or regulations" defining them as prohibited areas.[104] There is also sufficient evidence for a reasonable juror to conclude that

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some version of this policy was already in effect when Jackson and Johnson were arrested.[105]

The Constitution does not prevent NYCHA from prohibiting residents from entering certain areas of its buildings, such as roofs and roof landings, nor does it prevent the NYPD from arresting residents for trespassing into those areas. The Constitution does, however, require that criminal statutes, and any rules or regulations they incorporate, " 'define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.'" [106] Drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could find (1) that the NYPD has a policy of arresting people in prohibited areas of NYCHA buildings, such as roofs and roof landings, even where there are no sufficiently conspicuous rules to put a resident or guest on constitutionally adequate notice that access to the areas is prohibited; (2) that Jackson and Johnson were arrested without probable cause in January 2009 pursuant to some version of this policy; and (3) that plaintiffs have therefore established the City's Monell liability for an unconstitutional trespass arrest policy resulting in Jackson's and Johnson's arrest.

The City's motion for partial summary judgment on plaintiffs' claim of an unconstitutional trespass arrest policy in NYCHA buildings is therefore denied.[107]

2. Plaintiffs' Claim of an Unconstitutional Custom and Practice

The preceding sections addressed the parties' motions for summary judgment on plaintiffs' claim that the City bears Monell liability for its express trespass enforcement policies in NYCHA buildings. I now turn to plaintiffs' claim that the City bears Monell liability for its trespass enforcement practices in NYCHA buildings. Plaintiffs argue (1) that the

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City's unconstitutional trespass enforcement practices are sufficiently widespread to serve as a basis for Monell liability, either based on a theory of constructive acquiescence, or based on actual acquiescence; [108] and (2) that the City has displayed deliberate indifference to the constitutional rights of NYCHA residents and guests based on its failure " to supervise, discipline, and train its police officers to ensure lawful trespass enforcement, despite an obvious need to do so." [109] The former argument focuses on the City's widespread practices, while the latter argument focuses on the City's deliberate indifference.

As an initial matter, the implementation of IO 23 and its associated training after the commencement of this litigation creates complications regarding the temporal scope of plaintiffs' claim. Some of plaintiffs' evidence of unlawful stops and arrests predates IO 23, while other evidence postdates the policy. In the Ligon preliminary injunction hearing, I addressed a similar issue involving the even more recent implementation of new policies and training. In that case, I conducted a two-stage analysis. First , I analyzed plaintiffs' evidence of deliberate indifference arising prior to the new policies and training. Second , I analyzed whether defendants had rebutted plaintiffs' evidence of deliberate indifference based on the recent steps taken by the NYPD.[110]

A two-stage analysis may also be appropriate here. I reserve decision on that issue, however, because plaintiffs have raised a genuine issue of material fact as to whether IO 23 and its associated training significantly altered the NYPD's trespass enforcement practices in NYCHA buildings.[111] Drawing all reasonable inferences in favor of plaintiffs, as I must, I assume in the following discussion that IO 23 and its associated training materials did not significantly alter the NYPD's trespass enforcement practices. As a result, evidence

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of unconstitutional practices before the implementation of IO 23 remains relevant to determining whether the NYPD continues to engage in unconstitutional practices.

a. Widespread Practice

i. Documentary and Testimonial Evidence

Plaintiffs offer various forms of documentary and testimonial evidence supporting the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings. In addition to the testimony of named plaintiffs discussed in Davis I , plaintiffs' evidence includes the following:

(1) According to plaintiffs, the City's Civilian Complaint Review Board (" CCRB" ) became concerned about complaints that officers were stopping people without reasonable suspicion in and around NYCHA buildings. In many cases, the officers stated that they could stop anyone inside a NYCHA building. The CCRB conducted a study that revealed substantiated complaints regarding suspicionless stops in and around NYCHA and TAP buildings at a thirty-two percent rate, nearly three times the substantiation rate for similar complaints in other locations.[112]

The City does not meaningfully contest these allegations in its brief.[113] Rather, the City argues that the CCRB study predates the implementation of IO 23 and its associated training materials, and thus can no longer provide evidence of the City's practices. As I noted above, however, there is at minimum a genuine issue of material fact as to whether IO 23 significantly changed the City's practices.[114]

(2) A sample of decline to prosecute forms from various District Attorney's offices provides further evidence of NYPD officers stopping individuals merely for exiting a NYCHA building.[115] According to plaintiffs' analysis, " [o]f the 64 DP Forms for trespass arrests on NYCHA Property, 24 DP Forms indicate that the 'individual was observed exiting a New York City Housing Authority building. Based on this information, the individual was stopped and questioned.'" [116]

The City argues that these forms are inadmissible hearsay.[117] " The Federal Rules of Evidence define hearsay as a declarant's out-of-court statement 'offer[ed] in evidence to prove the truth of the matter asserted in the statement.'" [118] The decline to prosecute forms, which contain written assertions by out-of-court declarants and are offered in evidence to prove the truth of those assertions, are hearsay, but may be admissible under one of the exceptions to the hearsay rule.

Because the City's hearsay argument is made in its reply brief, plaintiffs have not yet had an opportunity to respond. In Ligon , I allowed the admission of decline to prosecute forms describing stops outside TAP buildings, as rebuttable evidence of the basis for the stops.[119] Unlike in this

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case, however, the City had conceded the admissibility of the records for that limited purpose.[120]

Based on the record at this stage, I am inclined to allow the admission of the decline to prosecute forms in this case as well, based either on the public records exception under Federal Rule of Evidence 803(8)(A)(iii),[121] or on the residual hearsay exception under Rule 807.[122] But I reserve any final decision until the parties have had an opportunity to make further arguments specifically addressing the issue of whether the decline to prosecute forms are inadmissible hearsay.[123] In any case, the admission or exclusion of the decline to prosecute forms is not dispositive of any issue at the summary judgment stage.

(3) According to plaintiffs, the testimony of officers, as well as NYCHA residents and guests, further corroborates the existence of an unconstitutional practice of stops and arrests in and around NYCHA buildings.[124] Plaintiffs have offered abundant testimony regarding residents and guests, young and old, male and female, being stopped and arrested without basis in and around NYCHA buildings.[125]

ii. Dr. Fagan's Analysis

Officers are required to complete a UF-250, also known as a " Stop, Question and Frisk Report Worksheet," after each Terry stop.[126] The front and back of the form contain various checkboxes and fields in which officers are required to indicate the nature of the stop and the circumstances that led to and justified the stop.[127] Officers are required to record all the reasons

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justifying a stop, and the UF-250 provides spaces for officers to record any reason.[128] There is a checkbox for " Other Reasonable Suspicion Of Criminal Activity (Specify)" (the " Other" box) that officers can check and then supplement with a handwritten note.[129]

Plaintiffs' expert, Dr. Jeffrey Fagan, has conducted a statistical analysis of UF-250 forms and arrest data between 2004 and 2011.[130] Based on his analysis, Dr. Fagan concluded that there were roughly 200,000 stops on suspicion of trespass in NYCHA buildings between 2004 and 2011.[131] In order to determine how many of these stops were apparently unjustified, Dr. Fagan analyzed the boxes checked on the forms, as well as a sample of the notes that officers wrote after checking the " Other" box.[132] Although the details of Dr. Fagan's reports are somewhat unclear based on the excerpts offered by the parties, Dr. Fagan also appears to have conducted a more detailed analysis of the apparent legal sufficiency of trespass stops in NYCHA buildings from 2009 to 2011.[133] If a jury were to find Dr. Fagan's analysis of these stops credible, and if the legal underpinnings of Dr. Fagan's analysis are sound,[134] it would follow that only fifty percent of the NYCHA trespass stops between 2009 and 2011 were apparently justified, while nineteen percent of the stops -- or nearly thirteen thousand stops -- apparently lacked reasonable suspicion.[135]

In support of partial summary judgment, the City argues that " [Dr.] Fagan's analysis fails to connect any pattern [of constitutional violations] with the alleged constitutional violations at issue here." [136] This is incorrect. Plaintiffs have alleged that the NYPD engages in an unconstitutional practice of making trespass stops without reasonable suspicion and trespass arrests without probable cause in NYCHA buildings. Dr. Fagan's study attempts to quantify the magnitude of such stops and arrests. It is hard to see what connection

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the City finds lacking: based on plaintiffs' evidence, a reasonable juror could find that the constitutional injuries suffered by named plaintiffs are the same injuries quantified by Dr. Fagan's report and further supported by the other documentary and testimonial evidence discussed above.[137]

The City also reiterates its longstanding arguments against the use of UF-250 data as evidence of the rough magnitude of unconstitutional stops and arrests.[138] I have repeatedly emphasized that it would be inappropriate to rely on a UF-250 form alone to definitively determine the legality or illegality of an individual stop.[139] But given the unfeasibility of taking live testimony regarding a sufficient sample of the stops and arrests in this case, " it would be an injustice to prevent the jury from hearing about the extremely rich and informative material" contained in the UF-250 database.[140] The City cites three cases where courts have expressed skepticism regarding the use of statistics in drawing conclusions regarding the constitutionality of criminal justice practices.[141] All three cases, however, involved equal protection claims where plaintiffs attempted to prove discriminatory intent through statistics indicating disparate impact.[142] None of these cases address the validity of relying on statistical evidence to estimate the magnitude of an ostensible practice involving stops and arrests in violation of the Fourth Amendment, where a plaintiff has also offered documentary and testimonial evidence of the practice.[143] Nor do the cases stand for the general proposition that

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where the criminal justice system is concerned, the ordinary laws of statistical inference do not apply.[144]

The City's remaining arguments were either sufficiently addressed in the Daubert decision regarding Dr. Fagan's opinions in Floyd ,[145] or raise factual issues that argue in favor of, rather than against, submitting the case to a jury.[146] Whether Dr. Fagan's conclusions are persuasive is a mixed question of fact and law for the jury, not a question susceptible to legal resolution by this Court.[147]

In sum, based on plaintiffs' documentary and testimonial evidence, as well as Dr. Fagan's opinions, a reasonable juror could conclude that the City has engaged in a practice of making unconstitutional stops and arrests in and around NYCHA buildings as part of its trespass enforcement practices, and that this practice is sufficiently persistent and widespread to serve as a basis for Monell liability. Plaintiffs have raised genuine issues of material fact regarding their widespread practice claim. Thus, the City's motion for partial summary judgment on this claim is denied.

b. Deliberate Indifference

If a jury were to find either that the City has a policy of making unconstitutional

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stops and arrests in NYCHA buildings, or that the City has a sufficiently persistent and widespread practice of making such stops and arrests to establish Monell liability, it would be unnecessary to reach the issue of deliberate indifference. At the same time, in turning to this issue, I must draw all reasonable inferences in favor of plaintiffs. As a result, I will assume in the following analysis, as I did earlier, that a reasonable juror could conclude that IO 23 and its associated training materials represent an unconstitutional trespass enforcement policy, and that the widespread practice of making unconstitutional trespass stops and arrests in NYCHA buildings both preceded and followed the introduction of IO 23. The only questions remaining under the deliberate indifference analysis would be (1) whether the City had sufficient notice of the unconstitutionality of its practices, either constructively through the obviousness of the unconstitutionality, or based on actual notice,[148] and (2) whether the City failed " 'to make meaningful efforts to address the risk of harm to plaintiffs.'" [149]

Drawing all reasonable inferences in favor of plaintiffs, both questions raise triable issues of fact. With regard to notice, a reasonable juror could find that the NYPD had actual notice from numerous sources of a widespread pattern of unconstitutional trespass stops and arrests in NYCHA buildings of precisely the kind that plaintiffs allege in this case. Not only did the City receive notice of the unconstitutionality of its practices through individual CCRB reports and the CCRB study noted above, but plaintiffs have offered evidence that " NYCHA residents and tenant leaders have, for years, publicly complained about the City's unlawful practices

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in NYCHA residences." [150] Plaintiffs also cite the abundant media coverage over several years of alleged unconstitutional trespass enforcement practices at NYCHA buildings.[151] Indeed, based on this and other evidence,[152] it is questionable whether any reasonable juror could find the City failed to receive actual notice of the alleged constitutional infirmities at issue in this case.

With regard to whether the City took meaningful efforts to address the risk of harm, plaintiffs bear a heavy burden in establishing the inadequacy of the NYPD's supervision, discipline, and training of its officers.[153] For the purposes of surviving summary judgment, however, plaintiffs have cited sufficient evidence to raise a genuine issue of material fact on this point. For nearly every laudatory-sounding supervisory, disciplinary, or training procedure cited by the City in its brief, plaintiffs cite evidence that the procedure does not operate as described, is ineffective, or fails to address the allegedly unconstitutional practices at issue in this case.[154]

Plaintiffs do not dispute that in recent years the City has made various policy and training changes that relate to stops and arrests in NYCHA buildings. The City developed IO 23 and its associated training materials, revised other training materials and procedures, and in 2012 implemented a refresher course at Rodman's Neck on Stop, Question and Frisk in general.[155] However, for many of the same reasons that IO 23 and its associated training materials may constitute unconstitutional policies, as discussed above,[156] plaintiffs have at minimum raised a genuine issue of material fact as to whether the City's response to its alleged notice of unconstitutional stops and arrests was sufficient to avoid Monell liability.[157] I also note that

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some of the training materials at issue in this case are the same as those I criticized in the Ligon preliminary injunction opinion.[158]

In evaluating plaintiffs' claim that the City has displayed deliberate indifference to a widespread practice of constitutional violations, a reasonable juror might also note that the City continues to contest in this litigation whether a constitutionally problematic practice of trespass stops and arrests in NYCHA buildings has ever existed.[159] The City is not arguing that its police officers engaged in constitutional violations in the past, but that the City was unaware of this, and that as soon as it received notice of the violations, it altered its policies and training to prevent them, and therefore is not deliberately indifferent. Rather, the City argues that plaintiffs have failed to offer reliable evidence of constitutional violations,[160] and that any changes to policy and training in recent years have simply " improved the quality" of stops and arrests.[161]

Finally, the City argues that plaintiffs have failed to provide evidence of " actual causation," that is, evidence that " specific deficiencies in the City's training and/or supervision program(s) actually caused their alleged constitutional deprivations." [162] The City argues that plaintiffs bear the " burden of ruling out those causes of the alleged [Fourth Amendment] violations that would not support City liability, such as negligent program administration or officers' negligent or intentional disregard of training." [163] But a reasonable juror could conclude that plaintiffs have adequately shown causation. As discussed above, plaintiffs have provided evidence that NYPD officers have engaged in a widespread practice of unconstitutional trespass stops and arrests in NYCHA buildings as a result of receiving inadequate training and supervision regarding

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constitutional standards, and inadequate discipline in response to violations of those standards. As the Supreme Court phrased the causation issue in City of Canton v. Harris : " Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect?" [164] Plaintiffs have clearly raised a genuine issue of material fact as to whether the unconstitutional stops and arrests in this case would have been avoided had NYPD officers received adequate training, supervision, and discipline relating to the constitutional standards governing trespass stops and arrests in NYCHA buildings.

For the foregoing reasons, the City's motion for summary judgment on plaintiffs' deliberate indifference claims, like the City's motion for summary judgment on plaintiffs' widespread practice claims, is denied.

B. Fourteenth Amendment Equal Protection Claims Against the City

The Equal Protection Clause of the Fourteenth Amendment prohibits intentional discrimination on the basis of race, not government action that has a disproportionate racial impact.[165] Plaintiffs argue that the City bears Monell liability for violations of the equal protection rights of African-American and Latino residents and guests of NYCHA buildings based on the City's alleged racially discriminatory trespass enforcement practices.[166] In order to succeed on their equal protection claims, plaintiffs must show that the City's practices (1) have an " 'adverse effect'" on African-American and Latino residents and guests in NYCHA buildings,[167] and (2) that the practices were " 'motivated by discriminatory animus.'" [168] In other words, plaintiffs must prove both disproportionate impact and discriminatory purpose.[169]

As noted above, the plaintiffs who maintain Fourteenth Amendment claims against the City are the remaining arrested plaintiffs, and two of the remaining resident plaintiffs, Evans and Littlejohn, who also happen to be arrested plaintiffs. The City argues that all the resident plaintiffs conceded any equal protection claim by failing to respond to the City's arguments during the first stage of summary judgment briefing.[170] Plaintiffs deny such a concession and argue that Evans, Littlejohn, Jones, and Suarez " maintain that they are adversely affected by the City's racially discriminatory practices in NYCHA residences." [171] Neither side is completely

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correct. Because Jones and Suarez withdrew their claims against the City, they cannot serve as representative resident plaintiffs against the City. On the other hand, Evans and Littlejohn have not withdrawn their equal protection claims against the City and remain valid representatives of both the arrested and resident plaintiffs' putative subclasses. As I stated in denying the City's motion for summary judgment on Evans' and Littlejohn's section 1981 claims, they have both

proffered concrete evidence showing that since their arrests, they feel less free to come and go from their buildings and to have guests visit them. Evans has testified that police officers referred to her as " nigger" when she was arrested and Littlejohn testified that his friend Washington was also called a " nigger" in Littlejohn's building while he was attempting to visit Littlejohn.[172]

Evans and Littlejohn were both arrested as NYCHA residents, and are both African-American.[173] They are entitled to proceed on their equal protection claims as representatives of both the arrested and resident plaintiffs' putative subclasses.

Turning now to the Monell aspects of plaintiffs' equal protection claims: with regard to discriminatory purpose, plaintiffs need not prove that the " 'challenged action rested solely on racially discriminatory purposes,'" [174] or even that a discriminatory purpose " was the 'dominant' or 'primary' one." [175] Rather, plaintiffs must prove that " a discriminatory purpose has been a motivating factor" in the City's acts.[176] That is, plaintiffs must show that the City " selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." [177] As the Second Circuit and the Supreme Court have explained:

Because discriminatory intent is rarely susceptible to direct proof, litigants may make " a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action -- whether it bears more heavily on one race than another -- may provide an important starting point." [178]

The consequences of government action are sometimes evidence of the government's intent: " proof of discriminatory intent must necessarily usually rely on objective factors . . . . The inquiry is practical. What a legislature or any official entity is 'up to' may be plain from the results its actions achieve, or the results they avoid." [179] " Once it is shown that a decision was motivated at least in part by a racially discriminatory purpose, the burden shifts to the defendant to

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show that the same result would have been reached even without consideration of race." [180]

With regard to disproportionate impact, plaintiffs rely primarily on Dr. Fagan's study.[181] Drawing all reasonable inferences in favor of plaintiffs, the study shows that the level of " law enforcement activity" -- defined as the ratio of stops to crime complaints -- is greater in NYCHA buildings than in the surrounding areas. Because there are higher concentrations of African Americans and Latinos in NYCHA buildings than in the surrounding areas, the presence of greater law enforcement activity in the former would by itself create a racial disparity. Dr. Fagan also found that the racial disparity in enforcement activity is greatest in NYCHA residences with the highest concentration of African-American residents, and that the disparity in all residences is greatest for stops on suspicion of trespass. Indeed, based on multivariate regression analysis, Dr. Fagan found that the racial composition of NYCHA buildings is a better predictor of trespass enforcement disparities than any racially neutral policy-rationalizing variables, including crime, policing activity, vertical patrols, or socioeconomic conditions.[182]

The City argues that there are non-discriminatory law enforcement rationales for dedicating disproportionate law enforcement resources to NYCHA buildings.[183] Indeed, there could be good, racially neutral reasons for dedicating law enforcement resources to certain areas out of proportion to those areas' crime rates, and this could result in higher stop-to-crime ratios in those areas. In theory, race may even be correlated with some racially neutral factor that would justify increased law enforcement activity, and for which Dr. Fagan has not controlled.[184] But the City has not yet proven the existence of such a factor, and in any case this discussion is more relevant to the question of discriminatory purpose than disproportionate impact. Drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could find based on Dr. Fagan's study that the City's stop practices and its trespass enforcement practices in NYCHA buildings disproportionately impact African Americans and Latinos.

On the issue of discriminatory purpose, the City offers similar arguments to those

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it offered in favor of its motion for summary judgment in Floyd . There, I concluded that " [t]he statistical evidence in the instant case, while strong enough to show a disparate impact, is not strong enough to show discriminatory purpose standing alone. However, plaintiffs have presented other proof in addition to the statistical evidence -- [including] the inadequacy of the City's efforts to take remedial steps to reduce the racial disparity of stops . . . ." [185] I also stated:

This is clearly not a situation in which the City has taken no remedial steps. Nonetheless, considering the statistical evidence in conjunction with the narrative evidence of significant shortcomings in the ways that the City's policies have been put into practice, I find that there is a triable issue of fact as to whether the NYPD leadership has been deliberately indifferent to the need to train, monitor, supervise, and discipline its officers adequately in order to prevent a widespread pattern of suspicionless and race-based stops.[186]

Although plaintiffs' evidence of discriminatory purpose in the present case is more tenuous than in Floyd , I conclude that a similar analysis ultimately applies. Plaintiffs' statistical evidence of racial disparities is likely not strong enough to support an inference of discriminatory purpose, standing alone,[187] but it provides a " starting point" for an examination of " circumstantial and direct evidence of intent." [188]

First , while there is nothing inherently problematic in the City dedicating disproportionate resources to policing in NYCHA buildings, and indeed residents may favor such an approach, the City offers no explanation of why it might be desirable or how it might be non-discriminatory to dedicate greater law enforcement attention to NYCHA residences with greater concentrations of African Americans.[189] In the absence of any racially neutral explanation for this correlation, a reasonable juror could draw the troubling inference that the NYPD regards crimes by African Americans in NYCHA housing as a source of greater concern than identical crimes by similarly situated non-African Americans, and treats similar crime levels more aggressively when they occur in NYCHA buildings containing a higher proportion of African Americans. Dr. Fagan's statistical study thus represents a circumstantial starting point for at least a prima facie finding of discriminatory intent.

Second , plaintiffs argue that " the City was fully aware of residents' public complaints about its racially discriminatory trespass enforcement activities in NYCHA residences," but failed to take adequate steps to address those complaints, leading to an inference that it intended the racially discriminatory practices to continue.[190] None of the materials cited by plaintiffs includes evidence of NYHCA residents making public complaints, or complaints to the NYPD, that explicitly allege racially discriminatory trespass enforcement activities.[191] Other exhibits provided by plaintiffs,

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however, adequately make this showing. For example, Pearl Barkley, a fifty-seven year old African-American woman who has lived in NYCHA housing in East Harlem for approximately fourteen years, testified that " [b]ased on my experience, young black and Latino men living in the Jefferson Houses suffer the most from these abusive NYPD practices," and that " [a]s a result of what I have seen and experienced, I attended a number of meetings with NYPD officials to complain about the way in which the officers patrol NYCHA property, and the way they treat young people who reside in the Jefferson Houses." [192] A reasonable juror drawing all inferences in favor of plaintiffs could find that such testimony, alongside the factual allegations in the Davis litigation itself, shows that the City was on notice of possible racially discriminatory trespass enforcement activities in NYCHA buildings.[193] A reasonable juror could also conclude that the City's response to these allegations has been insufficient to negate the inference of discriminatory intent. Other than a cursory reference to IO 23, whose relevance to the issue of racial discrimination is not explained, the City provides no evidence that it has attempted to address the racially discriminatory practices alleged in plaintiffs' Amended Complaint, or even acknowledges their existence.[194]

Third , and most importantly, as plaintiffs note, the alleged racial disparities in Davis " exist in the context of the NYPD's long history of biased stop, question, and frisk activity." [195] The overlap and similarities between this litigation and the Floyd case, which is now on trial, provide an independently sufficient ground for denying summary judgment on the issue of discriminatory intent. The Davis plaintiffs, following Dr. Fagan's approach, have focused their arguments for the most part on evidence of differences between law enforcement practices in and around NYCHA buildings and practices beyond those buildings.[196] If the Floyd plaintiffs succeed in showing that a discriminatory purpose has been a motivating factor for the NYPD's stop and frisk practices in general, however, it is possible that the Davis plaintiffs could show a discriminatory purpose in part based on evidence of similarities and connections between the NYPD's trespass enforcement program in NYCHA buildings and the stop and frisk policies outside of those buildings.[197]

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For the foregoing reasons, the City's motion for summary judgment on plaintiffs' equal protection claims is denied.

C. Title VI Claims Against the City

Title VI of the Civil Rights Act of 1964 states that " [n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." [198] The remaining resident plaintiffs have alleged that they are " unable to use and enjoy their residences because [the City's] vertical patrol and trespass enforcement practices are conducted in such a consistently unlawful and discriminatory manner that the residents are not free to come and go as they wish." [199]

The parties agree that the remaining resident plaintiffs can prevail on their Title VI claim only if they can show that the City is the recipient of federal assistance, and does not merely benefit from that assistance.[200] Whether an entity indirectly receives, rather than merely benefits from, federal financial assistance is a fact-specific inquiry that depends on factors such as (1) whether the entity is Congress's intended recipient, and (2) whether the entity was in a position to accept or reject the funds.[201]

Even based on the City's presentation of the facts, both factors support the conclusion that the City has been a recipient of federal financial assistance for Title VI purposes. First , the City does not contest that under the Memorandum of Understanding (" MOU" ) between the City and NYCHA, the City receives funding from NYCHA that NYCHA in turn receives from the federal government under, among other programs, the USHA, 42 U.S.C. § 1437g, and the Public and Indian Housing Drug Elimination Program, 42 U.S.C. § § 11901 et seq . (" PIHDEP" ).[202]

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PIHDEP states that " [g]rants under this subchapter may be used in public housing or other federally assisted low-income housing projects for . . . (1) the employment of security personnel; [or] (2) reimbursement of local law enforcement agencies for additional security and protective services . . . ." [203] Congress clearly intended and authorized public housing agencies to distribute PIHDEP funds to local law enforcement agencies, just as NYCHA agreed to distribute PIHDEP funds to the NYPD under the MOU.[204] Under Department of Justice regulations implementing Title VI, the " primary recipient" of federal financial assistance is " any recipient which is authorized or required to extend Federal financial assistance to another recipient ." [205] Thus, under the MOU, NYCHA is the " primary recipient" of PIHDEP funding, and the NYPD, through NYCHA, is " another recipient," no less bound by the non-discrimination requirements of Title VI.

The NYPD is not, like the airlines in Paralyzed Veterans that benefitted from federal aid to airports for construction projects, a mere " beneficiary" of federal financial assistance given to a recipient of aid.[206] Nor is the NYPD's receipt of funding simply an " 'economic ripple effect[]'" [207] of NYCHA's use of its federal financial assistance. Rather, through PIHDEP and other programs, Congress intended to subsidize police services for public housing. As a law enforcement agency providing police services to public housing, the NYPD is an intended recipient of Congress's subsidies.[208]

Second , the NYPD could have rejected the federal financial assistance envisioned in the MOU. The NYPD was free to avoid the burdens of non-discrimination by not entering into the MOU, and remains free to reject the federal financial assistance it receives through NYCHA. The City's position is quite different from that of the airlines in Paralyzed Veterans , who never received " a single penny of the money" distributed to airport operators and therefore could not refuse it.[209]

Based on the preceding analysis, which is based on undisputed facts, I conclude that the City is a recipient of federal financial assistance for Title VI purposes. There is, however, a genuine issue of material fact as to whether the City has violated Title VI by providing police services

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in NYCHA buildings in a discriminatory manner. " [T]he reach of Title VI's protection extends no further than the Fourteenth Amendment," [210] but it extends just as far. As I stated above with regard to plaintiffs' Fourteenth Amendment claims under section 1983, a reasonable juror drawing all reasonable inferences in favor of plaintiffs could conclude that the City has failed to negate the inference that a discriminatory purpose played a role in its police services in NYCHA buildings.

For the foregoing reasons, the City's motion for summary judgment on plaintiffs' Title VI claims is denied.

D. Section 1981 Claims Against the City

The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981 (" section 1981" ), protects the rights of all persons " to make and enforce contracts" free from discrimination on the basis of race. After the Supreme Court reaffirmed a narrow construction of that provision in 1989,[211] Congress passed the Civil Rights Act of 1991, which, among other changes, added section 1981(b):

For purposes of this section, the term " make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (Emphasis added).

Section 1981 " offers relief when racial discrimination . . . impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship." [212] As I noted in Davis I , the remaining resident plaintiffs

are authorized residents on a lease (that is, a contract) with NYCHA. There is no doubt that [they] have rights under the existing contractual relationship. The question is whether that relationship has been impaired because of racial discrimination.[213]

I concluded that under federal regulations, as well as the Second Circuit's recognition of a constitutional protection of public housing residents' freedom of association, " [b]oth the right to come and go as they please and the right to accommodate guests are material to plaintiffs' contracts." [214]

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If plaintiffs succeed in showing that the City's trespass enforcement practices in NYCHA buildings are based at least in part on a discriminatory motive, then a reasonable juror could conclude, based on the evidence of contractual impairment introduced by plaintiffs, that the racially discriminatory aspects of the City's trespass enforcement practices prevent the remaining resident plaintiffs from coming and going and having guests as they wish. Contrary to the City's suggestion, there is no need as a matter of law for plaintiffs to produce statistical evidence regarding the proportion of NYCHA residents whose contractual rights have been impaired by the City's practices.[215] Of course, the City will be free to argue that plaintiffs have not provided persuasive evidence that the contractual rights of the putative class of NYCHA residents have in fact been impaired sufficiently to give rise to Monell liability. But plaintiffs' evidence of contractual impairment is sufficient to survive summary judgment.[216]

For the foregoing reasons, the City's motion for summary judgment on plaintiffs' section 1981 claims is denied.

E. FHA Claims Against the City

Section 3604(b) of the Fair Housing Act (" FHA" ) makes it unlawful to " discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith." [217] In Davis I , I concluded that the law is best understood to prohibit post- as well as pre-acquisition discrimination in the provision of housing-related services.[218] I also noted that the FHA is generally interpreted as allowing claims based on disparate impact, even in the absence of evidence of discriminatory intent.[219] Plaintiffs have now stated that they " consent to the dismissal of their disparate impact claim against both Defendants," and continue only with their disparate treatment claim.[220]

To establish a prima facie case of disparate treatment (that is, intentional discrimination) under the FHA, resident plaintiffs " 'must present evidence that animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.'" [221] Thus, for resident plaintiffs to survive summary judgment on their FHA claim against the

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City, resident plaintiffs must present sufficient evidence for a reasonable juror to conclude that racial animus against African Americans or Latinos was a significant factor in the City's provision of police services in connection with resident plaintiffs' NYCHA rentals.[222]

For the same reasons that a reasonable juror could find plaintiffs' evidence in support of their equal protection claim, discussed above, to be sufficient to show that racial animus was a significant factor in the City's provision of police services in NYCHA buildings, the City's motion for summary judgment on the FHA claims of the remaining plaintiffs bringing these claims (Evans and Littlejohn) is denied.

F. NYSC Article I Section 12 Claims Against the City

Plaintiffs now consent to the dismissal of their equal protection claims under Article I section 11 of the New York Constitution as duplicative.[223] As a result, plaintiffs' only remaining claims under the New York Constitution are under Article I section 12, which provides similar but in some circumstances broader protections than the Fourth Amendment to the United States Constitution.[224] The Court of Appeals of New York has " demonstrated its willingness to adopt more protective standards" under Article I section 12 than those that exist under the Fourth Amendment " when doing so best promotes 'predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens.'" [225]

On the other hand, " New York courts will only imply a private right of action under the state constitution where no alternative remedy is available to the plaintiff." [226] In order to survive summary judgment, plaintiffs must at least show that they have suffered constitutional injuries under Article I section 12 that are not recognized under the Fourth Amendment. Plaintiffs have failed to do so. Plaintiffs argue, persuasively, that the City's trespass enforcement practices in NYCHA buildings may involve both conduct that violates the Fourth Amendment, and conduct that does not violate the Fourth Amendment but does violate the New York state law of De Bour and its progeny.[227] As the Court of Appeals of New

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York made clear in People v. Hollman , however, De Bour and its progeny are rooted not in federal or state constitutional law, but in state common law.[228]

For the foregoing reasons, the City's motion for summary judgment on plaintiffs' NYSC claims is granted.[229]

G. Race Discrimination Claims Against NYCHA

Resident plaintiffs have brought race discrimination claims against NYCHA under a number of laws, including some of those discussed above: Title VI, the FHA, section 1981, and the NYSHRL and NYCHRL.[230] NYCHA argues, and plaintiffs do not contest, that plaintiffs must show a racially discriminatory purpose in order to succeed on their Title VI, section 1981, and NYSHRL and NYCHRL claims.[231] In addition, because plaintiffs have now abandoned their disparate impact claims against both the City and NYCHA under the FHA,[232] plaintiffs must also show intentional discrimination in order to succeed on their FHA claims. Thus, all of plaintiffs' race-discrimination claims against NYCHA require that plaintiffs show NYCHA engaged in intentional racial discrimination.

Plaintiffs' brief in opposition to NYCHA's motion for summary judgment on the race-discrimination claims is remarkably lacking in legal argument. Plaintiffs criticize NYCHA for having failed to provide safe and secure premises to its residents, and for empowering NYPD officers to act " with unfettered discretion" as NYCHA's agents despite NYCHA's alleged knowledge that the NYPD's stop and arrest practices are racially discriminatory.[233] Plaintiffs do not explain, however, how this proves intentional race discrimination.[234]

Even if plaintiffs are able to prove that NYCHA has failed to provide safe and secure premises to its residents, the fact that " over 90% of the affected resident community is African American or Latino" [235] would not, by itself, convert NYCHA's

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failure into a form of intentional race discrimination. According to plaintiffs' logic, nearly any shortcoming by NYCHA would provide evidence of racial bias -- because NYHCA knows that nine out of ten of the people who will be affected by the shortcoming are African Americans and Latinos. This cannot be correct. Yet plaintiffs provide no other argument in support of their claim that NYCHA discriminates based on race through failing to provide adequate safety and security.[236]

Plaintiffs have also failed to raise a genuine issue of material fact as to whether NYCHA displayed racial bias by empowering the NYPD to conduct vertical patrols and other services in NYCHA buildings. Plaintiffs' argument is based on the premise that " the City's unlawful and discriminatory stop and arrest practices are well-known to NYCHA officials." [237] While I denied summary judgment, above, on plaintiffs' claim that the City's trespass enforcement practices in NYCHA buildings discriminate in violation of the Equal Protection Clause, I noted that plaintiffs' evidence was tenuous. Plaintiffs' attempt to establish NYCHA's liability for various race discrimination claims based on NYCHA's knowledge of the City's equal protection violations is a step too far. Even if a jury were to find that the City's trespass enforcement practices violate the Equal Protection Clause, plaintiffs cite no evidence that NYCHA continued to rely on the City's services despite constructive or actual notice that the City's practices were discriminatory.[238] All of plaintiffs' evidence of notice to NYCHA of unlawful trespass enforcement practices concerns notice of stops and arrests based on inadequate legal justification under the Fourth Amendment, not based on race discrimination.[239]

For the foregoing reasons, NYCHA's motion for summary judgment on plaintiffs' remaining race discrimination claims is granted.[240]

H. USHA Claims Against NYCHA

In Davis I , I concluded that because 42 U.S.C. § 1437d(l)(2) " gives the resident plaintiffs a right to a lease free from unreasonable terms and conditions, [plaintiffs'] suit alleges an infringement of a federal right actionable under section 1983." [241] I went on to note:

A dispute of fact exists about whether the " Highlights of House Rules, Lease Terms and Policy" constitutes a lease addendum. There is also a dispute of fact as to whether the provisions in that document -- mandating that tenants cooperate with police officers and avoid " lingering" in common areas -- are unreasonable. . . . Based on my evaluation of the arrest of Jackson and Johnson at the top of the stairwell and the corresponding vagueness of the prohibition against " lingering" in common areas, I am skeptical that NYCHA will be able to prevail at summary judgment. Nevertheless, so that both parties have the full opportunity to present their case, NYCHA's motion is denied without prejudice and with leave to renew.[242]

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NYCHA has renewed its motion for summary judgment on resident plaintiffs' USHA claims, and the parties have submitted briefing on whether the provisions in the Highlights document are unreasonable. NYCHA also renews its argument that the Highlights document is not a part of the lease.[243] Based on the parties' submissions, there is a genuine issue of material fact concerning whether the requirements in the Highlights document were effectively incorporated into the standard NYCHA lease for the purposes of the USHA.

As I suggested in Davis I , the Highlights document is highly ambiguous.[244] On the one hand, the Highlights document states, in bold, near the top of the first page: " Note that this document is NOT a lease and NOT a lease addendum." [245] In addition, NYCHA argues that lease changes and the adoption of formal rules and regulations require various procedures that were not followed in issuing the Highlights document.[246] NYCHA concludes that the Highlights document cannot have been incorporated into the standard NYCHA lease under paragraph 12d of that lease, which requires all tenants to " abide by all necessary and reasonable regulations promulgated from time to time by the Landlord, which shall be posted in the Property Management Office and incorporated by reference in this Lease." [247]

On the other hand, the top of the Highlights document presents the document as containing " requirements" for " NYCHA residents." [248] The document in fact contains a list of apparently legally binding requirements, was mailed to all NYCHA residents in December 2010, and states on its final page that " NYCHA requires" that all tenants and household members sign the document.[249] The warning on the first page that the document is not a lease or lease addendum could be read, in context, not as implying that the requirements are optional, but rather as clarifying that signing the Highlights document confers no legal rights: the next line states that " [t]he act of signing this document will not grant any rights of tenancy or authorized occupancy." [250] Plaintiffs also argue that the Highlights document was incorporated into the lease under paragraph 12bb, which requires all tenants to " comply with and obey all rules and regulations prescribed from time to time by the Landlord concerning the use and care of the Leased Premises or any common or community spaces . . . ." [251] The distinction between the word " prescribed" in paragraph 12bb and " promulgated" in paragraph 12d may suggest that two different types of rules are at issue, both legally binding under the terms of the lease and for the purpose of the USHA's " unreasonable terms" prohibition, but only one requiring the formal procedures laid out in 24 C.F.R. § 966.3 and New York Public Housing Law § 56.

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As noted above, section 1437d(l)(2) of the USHA states that " [e]ach public housing agency shall utilize leases which . . . do not contain unreasonable terms and conditions." Drawing all reasonable inferences in favor of plaintiffs, the preceding evidence raises a genuine issue of material fact as to whether some or all of the requirements listed in the Highlights document are " contained" in the standard NYCHA lease by way of paragraph 12bb. A public housing agency may not evade the requirements of section 1437d(l)(2) simply by introducing unreasonable lease terms and conditions for tenants in a document that nominally purports not to be a lease or lease addendum. On the other hand, there is a question as to whether a public housing agency exposes itself to liability under the USHA if it deliberately conveys to residents the belief that a set of rules are legally binding requirements and could result in eviction, while at the same time knowing that the rules have no legal status or practical effect. Extrinsic evidence will likely be decisive in determining the meaning and effect of the Highlights document, as even NYCHA seems to acknowledge, implicitly, by encouraging the Court to interpret the Highlights document based on a detailed factual declaration accompanying NYCHA's brief.[252] The significance and credibility of this extrinsic evidence is for a jury, and cannot be determined as a matter of law.

Assuming that a reasonable juror could find that some or all of the Highlights document rules were " contained" in the standard NYCHA lease for the purposes of the USHA, I now turn to what constitutes an " unreasonable term or condition" under section 1437d(l)(2). At least one court has held that section 1437d(l)(2) " require[s] that lease terms be rationally related to a legitimate housing purpose." [253] Courts have looked to statutes, legislative history, and HUD regulations for evidence of relevant housing purposes.[254] " Lease provisions which are arbitrary and capricious, or excessively overbroad or under-inclusive, will be invalidated" as unreasonable.[255] The possibility of applying a rule " in an arbitrary or discriminatory manner" may weigh in favor of finding unreasonableness.[256]

Plaintiffs argue that two of the rules in the Highlights document are unreasonable. First , plaintiffs argue that the rule prohibiting " lingering" in " the lobby, corridors, and stairwell" and mandating that " [t]he lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor" is excessively overbroad and invites arbitrary or discriminatory enforcement.[257] Second , plaintiffs argue that the rule requiring residents to " cooperate with inquiries from . . . the police regarding their presence or conduct in any building" unreasonably pressures residents to interact with NYPD officers without regard to their constitutional rights, including the Fifth Amendment right to remain silent.[258]

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NYCHA does not meaningfully defend the reasonableness of either rule. Instead, NYCHA continues its earlier argument that the rules in the Highlights document are not enforceable lease terms, and indeed are of little consequence. Perhaps NYCHA means to imply that the rules challenged by plaintiffs cannot be unreasonable terms, because they have no unreasonable effects. NYCHA argues that under IO 23, NYPD officers who observe a resident violating a NYCHA rule can, at most, fill out a " Field Report" and submit it to NYCHA Management, which might then call the resident " to ascertain the circumstances." [259] NYCHA also notes that New York's criminal trespassing laws do not permit NYPD officers to stop or arrest someone for violating NYCHA's rule against " lingering." NYCHA suggests that if Dr. Fagan's study shows that many officers have, in fact, stopped many people in NYCHA buildings based on lingering, the officers did so prior to the issuance of the Highlights document and not based on the rule against lingering contained in it.[260] Finally, NYCHA states that a Field Report based on lingering cannot lead to the termination of tenancy.[261]

NYCHA's disavowals of the practical significance of the Highlights document provide further evidence in support of finding that the rules in the document are not contained in the standard NYCHA lease for the purposes of the USHA. Nevertheless, drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could reject NYCHA's evidence that the Highlights rules have little or no effect,[262] and could also conclude that the rules are unreasonable for the reasons stated by plaintiffs. As a result, NYCHA's motion for summary judgment on plaintiffs' USHA claim is denied.[263]

VI. CONCLUSION

The City's, NYCHA's, and plaintiffs' motions for summary judgment are granted in part and denied in part:

(1) The City's and plaintiffs' motions for summary judgment on plaintiffs' Fourth Amendment claims are denied, leaving the remaining arrested plaintiffs with viable claims.
(2) The City's motion for summary judgment on the remaining arrested plaintiffs' Fourteenth Amendment equal protection claims is denied.
(3) The City's motion for summary judgment on resident plaintiffs' Fourteenth Amendment equal protection, Title VI, section 1981, and FHA claims is denied, leaving Evans and Littlejohn with viable claims.

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(4) The City's motion for summary judgment on plaintiffs' remaining NYSC claims is granted.
(5) NYCHA's motion for summary judgment on plaintiffs' remaining race discrimination claims is granted.
(6) NYCHA's motion for summary judgment on plaintiffs' USHA claim is denied, leaving all remaining resident plaintiffs (Britt, Evans, Littlejohn, Jones, and Suarez) with viable claims.

The Clerk of the Court is directed to close these motions [Docket Nos. 226, 240]. A conference is scheduled for April 5, 2013 at 4:30 p.m.

SO ORDERED


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