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Davis v. City of New York

United States District Court, S.D. New York

March 28, 2013


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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.


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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


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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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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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" 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]


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]


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 ...

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