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,
THE CITY OF NEW YORK and NEW YORK CITY HOUSING AUTHORITY, Defendants.
Katharine E.G. Brooker, Esq., Matthew J. Moses, Esq., Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, For Plaintiffs.
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.
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 Defendant City of New York.
Steven Jay Rappaport, Esq., New York City Housing Authority, New York, New York, For Defendant NYCHA.
OPINION & ORDER
SHIRA A. SCHEINDLIN, District Judge.
On March 28, 2013, this Court issued the second part of its ruling on the parties' motions for summary judgment. The March 28 Opinion noted that plaintiffs had offered "[a] sample of decline to prosecute forms ['DP forms'] from various District Attorney's offices" in support of "the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings. Defendant the City of New York argued in a reply brief that the DP forms are inadmissible hearsay. I invited further briefing, which has now been submitted.
In Ligon v. City of New York, another case related to the NYPD's stop and frisk practices, I allowed the admission of DP forms describing stops outside TAP buildings as evidence of the NYPD's stop practices. Unlike in this case, however, the City had conceded the admissibility of the records for that limited purpose.
I have already ruled in this case that DP forms are admissible for the purpose of showing notice to the City of allegedly unconstitutional practices. At issue now is plaintiffs' request to use the DP forms as evidence in support of their class certification motion. Plaintiffs have also indicated that they might attempt to use the DP forms as evidence of the City's stop and arrest practices at trial. In both instances, plaintiffs seek to use the narratives in the DP forms for the truth of the matters asserted - that is, as evidence that the stops and arrests described on the forms took place as the forms state. Plaintiffs have not provided a precise count of the number of DP forms they might seek to admit, but the number may be as high as seventy-six.
For the reasons set forth below, the DP forms are admissible subject to the limitations described below.
Plaintiffs served the District Attorneys' Offices ("DAOs") of Bronx, Queens, Kings (Brooklyn), New York (Manhattan), and Richmond (Staten Island) Counties with subpoenas requesting information concerning trespass arrests charged under New York Penal Law §§ 140.05, 140.10(a), (e), or (0, and 140.15, that the DAOs declined to prosecute. Pursuant to this Court's orders, the DAOs of Bronx, Kings, New York, and Queens Counties produced a sample of 1, 177 DP forms from selected months in the years 2008 to 2012. Plaintiffs have stated that three hundred and six (or twenty-six percent) of these DP forms reflect arrests for trespass on property owned and operated by NYCHA, as indicated by the DAOs. This total does not include any DP forms from the Queens DAO, which has a database that cannot distinguish between NYCHA and non-NYCHA trespass arrests. I have also ruled that only forms reflecting pre-arraignment dismissals are relevant, due to the difficulty of categorizing post-arraignment dismissals.
The record contains descriptions of how DP forms are prepared in each of the remaining three counties (Bronx, Kings, and New York). In general, it appears that the process begins in the hours or days after the arrest when an Assistant District Attorney ("ADA") interviews the arresting officer and learns of the basis for the arrest. If the ADA decides to decline prosecution prior to the docketing of the case, either the ADA or another trained DAO employee will prepare a DP form. Each DAO uses a different DP form,  but all of the forms feature a narrative describing the basic facts of the arrest and why the DAO chose to decline prosecution. Plaintiffs state that every DP form at issue in this case has been reviewed and approved by a supervising ADA.'
Plaintiffs provided seven sample DP forms as exhibits in support of plaintiffs' opposition to the City's and NYCHA's partial summary judgment motions. The narratives in the forms read as follows:
A. From the New York County DAO: "[redacted] This individual was observed entering and exiting a New York City Housing Authority building. Based on this information, the individual was stopped and questioned. [redacted], the Manhattan District Attorney's Office declines to prosecute this case."
B. From the New York County DAO: "In this case, the arresting officer observed [redacted], a building tenant, and several separately-charged defendants on the roof of a New York City Housing Authority building and arrested [redacted] for Criminal Trespass. However, [redacted] was an invited guest of said tenant, and there are no signs posted before the roof that say that invited guests, tenants and others cannot be on the roof. Accordingly, [redacted] did not have prior notice that being on the roof was unlawful, the People decline to prosecute this case."
C. From the New York County DAO: "In this case, [redacted] was observed inside the lobby of a New York Housing Authority building, a dwelling where people reside. When the arresting officer stopped [redacted] and asked him why he was inside said building, [redacted] responded in substance, I was there to see [redacted].' Afterwards, the arresting officer did not further question [redacted] or make any further investigations as to whether [redacted] was an invited guest of a tenant or a tenant of said building, and [redacted] did not make any statements indicating thereof. [redacted]"
D. From the New York County DAO: "[redacted] The defendant in this case was observed entering a New York City Housing Authority Building and attempting to exit the building a short time later. Based on these observations, the arresting officer questioned the defendant. The defendant informed the arresting officer that he went to apartment 4F to see if his girlfriend was inside that apartment and that a guy named Frank lives in 4F. The arresting officer went to apartment 4F and spoke to Frank, who informed the officer that he knew the defendant and that the defendant had just been at his apartment looking for a videotape. Based on the ...