Christopher Dunn, Esq., Alexis Karteron, Esq., Taylor Pendergrass, Esq., Daniel Mullkoff, Esq., New York Civil Liberties Union, New York, NY, Mariana Kovel, Esq., The Bronx Defenders, Bronx, NY, Juan Cartagena, Esq., Foster Maer, Esq., Roberto Concepcion, Jr., Esq., LatinoJustice PRLDEF, New York, NY, John A. Nathanson, Esq., Tiana Peterson, Esq., Mayer Grashin, Esq., Shearman & Sterling LLP, New York, NY, for Ligon Plaintiffs.
Darius Charney, Esq., Sunita Patel, Esq., Baher Azmy, Esq., Rachel Lopez, Esq., Ghita Schwarz, Esq., Chauniqua Young, Esq., Center for Constitutional Rights New York, NY, Philip I. Irwin, Esq., Eric Hellerman, Esq., Gretchen Hoff Varner, Esq., Kasey Martini, Esq., Bruce Corey, Jr., Esq., Covington & Burling LLP, New York, NY, Jonathan Moore, Esq., Jenn Rolnick Borchetta, Esq., Beldock Levine & Hoffman LLP, New York, NY, for Floyd Plaintiffs.
Brenda Cooke, Linda Donahue, Heidi Grossman, Morgan Kunz, Joseph Marutollo, Suzanna Publicker, Lisa Richardson, Cecilia Silver, Judson Vickers, Richard Weingarten, Mark Zuckerman, Assistant Corporation Counsel New York City Law Department, New York, NY, for Ligon and Floyd Defendants.
OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge.
In an Opinion issued today I found the City of New York liable in the Floyd case for violating the Fourth and Fourteenth Amendment rights of the plaintiff class because of the way the New York City Police Department ("NYPD") has conducted stops and frisks over the past decade (the "Liability Opinion"). In an Opinion issued in January 2013, I found that the Ligon plaintiffs, representing a putative class of people stopped outside buildings participating in the Trespass Affidavit Program ("TAP") in the Bronx, were entitled to preliminary injunctive relief based on violations of their Fourth Amendment rights.
The purpose of this Opinion (the "Remedies Opinion") is to determine what remedies are appropriate in these cases. I address both cases in one Opinion because the remedies necessarily overlap. Each requires that the NYPD reform practices and policies related to stop and frisk to conform with the requirements of the United States Constitution. I stress, at the outset, that the remedies imposed in this Opinion are as narrow and targeted as possible. To be very clear: I am not ordering an end to the practice of stop and frisk. The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection.
II. REMEDIES IN FLOYD
A. The Court Has the Power to Order Broad Equitable Relief
1. Plaintiffs Satisfied the Requirements for a Permanent Injunction
Plaintiffs seeking a permanent injunction must demonstrate: (1) that they have suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiffs and the defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. Plaintiffs may satisfy the first two factors by demonstrating that they are likely to be deprived of their constitutional rights in the future by the acts they seek to have enjoined. The evidence discussed in the Liability Opinion shows that plaintiffs have suffered violations of their Fourth and Fourteenth Amendment rights, and that the prevalence of the practices leading to those violations creates a likelihood of future injury. Thus, plaintiffs have satisfied the first two requirements for obtaining permanent injunctive relief.
The balance of hardships tilts strongly in favor of granting a permanent injunction in Floyd. That is, the burden on the plaintiff class of continued unconstitutional stops and frisks far outweighs the administrative hardships that the NYPD will face in correcting its unconstitutional practices.
The right to physical liberty has long been at the core of our nation's commitment to respecting the autonomy and dignity of each person: "No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Ensuring that people are not seized and searched by the police on the streets of New York City without a legal basis is an important interest meriting judicial protection.
Eliminating the threat that blacks and Hispanics will be targeted for stops and frisks is also an important interest. In addition to the significant intrusion on liberty that results from any stop, increased contact with the police leads to increased opportunities for arrest, even when the reason for the arrest was not the reason for the stop. As a result, targeting racially defined groups for stops - even when there is reasonable suspicion - perpetuates the stubborn racial disparities in our criminal justice system. Although the costs of complying with the permanent injunction in Floyd will be significant, they are clearly outweighed by the urgent need to curb the constitutional abuses described in the Liability Opinion.
With regard to the public interest, the City has expressed concern that interference in the NYPD's stop and frisk practices may have a detrimental effect on crime control. However, as previously noted, I am not ordering an end to stop and frisk. Moreover, it has been widely reported that as the number of recorded stops has decreased over the past year, the crime rate has continued to fall. The United States Department of Justice ("DOJ") has pointed out that "there is significant evidence that unlawfully aggressive police tactics are not only unnecessary for effective policing, but are in fact detrimental to the mission of crime reduction." By strictly adhering to the rule of law, the NYPD will achieve greater cooperation between police officers and the communities they serve. Fostering trust in the police will "promote, rather than hinder, [the] NYPD's mission of safely and effectively fighting crime."
Furthermore, as in Ligon, it is clear and plain' that the public interest in liberty and dignity under the Fourth Amendment, and the public interest in equality under the Fourteenth Amendment, trumps whatever modicum of added safety might theoretically be gained by the NYPD making unconstitutional stops and frisks. This Opinion does not call for the NYPD to abandon proactive policing and return to an earlier era of less effective police practices. Rather, the relief ordered below requires the NYPD to be even more proactive: proactive not only about crime control and prevention, but also about protecting the constitutional rights of the people the NYPD serves. The public interest will not be harmed by a permanent injunction requiring the NYPD to conform its practices to the Constitution.
2. The Court's Broad Authority to Enter Injunctive Relief
"[T]he scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies." At the same time, it is 'the essence of equity jurisdiction' that a court is only empowered to grant relief no broader than necessary to cure the effects of the harm caused by the violation.'" "Discretion to frame equitable relief is limited by considerations of federalism, and remedies that intrude unnecessarily on a state's governance of its own affairs should be avoided."
Nevertheless, as the DOJ notes, "courts have long recognized - across a wide range of institutional settings - that equity often requires the implementation of injunctive relief to correct unconstitutional conduct, even where that relief relates to a state's administrative practices." "Courts... must not shrink from their obligation to enforce the constitutional rights of all persons." This duty is not curtailed when constitutional violations arise in the context of law enforcement. Rather, where "there is a persistent pattern of police misconduct, injunctive relief is appropriate."
I have always recognized the need for caution in ordering remedies that affect the internal operations of the NYPD,  the nation's largest municipal police force and an organization with over 35, 000 members. I would have preferred that the City cooperate in a joint undertaking to develop some of the remedies ordered in this Opinion. Instead, the City declined to participate, and argued that "the NYPD systems already in place" - perhaps with unspecified "minor adjustments" - would suffice to address any constitutional wrongs that might be found. I note that the City's refusal to engage in a joint attempt to craft remedies contrasts with the many municipalities that have reached settlement agreements or consent decrees when confronted with evidence of police misconduct.
B. Equitable Relief
Federal Rule of Civil Procedure 65(d) requires that "[e]very order granting an injunction... must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail - and not by referring to the complaint or other document - the act or acts restrained or required." These specificity provisions are "no mere technical requirements, '" but were "designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.'" The specificity provisions also ensure "that the appellate court knows precisely what it is reviewing.'"
Compliance with the prohibition on the incorporation of extrinsic documents is "essential, ' unless the enjoined party acquiesces to the extrinsic reference." The City has not acquiesced to any extrinsic reference. Thus, while the sections below refer to NYPD documents that must be revised, the ordered relief is contained entirely within the four corners of this Opinion.
1. Appointment of a Monitor to Oversee Reforms
Because of the complexity of the reforms that will be required to bring the NYPD's stop and frisk practices into compliance with the Constitution, it would be impractical for this Court to engage in direct oversight of the reforms. As a more effective and flexible alternative, I am appointing an independent monitor (the "Monitor") to oversee the reform process. I have chosen Peter L. Zimroth to serve as Monitor.
Mr. Zimroth, a partner in the New York office of Arnold & Porter, LLP, is a former Corporation Counsel of the City of New York, and the former Chief Assistant District Attorney of New York County. In both of these roles, Mr. Zimroth worked closely with the NYPD. A graduate of Columbia University and Yale Law School - where he served as Editor in Chief of the Yale Law Journal - he also served as a law clerk on the Supreme Court of the United States and a federal prosecutor. He taught criminal law and criminal procedure as a tenured professor at the New York University School of Law.
Mr. Zimroth has also been appointed to many positions in public service. The Chief Judge of the New York Court of Appeals appointed him as one of three directors of New York's Capital Defender Office. He has also served on the Mayor's Committee on the Judiciary, and on the boards of two schools for children with special needs. He has been a member of the House of Delegates of the American Bar Association, the Executive Committee of the New York City Bar Association, and the Board of Directors of the Legal Aid Society.
It is within the power of a district court to order the appointment of a monitor to oversee judicially ordered reforms. The DOJ recommended the appointment of a monitor in this case, in the event that the Court found the City liable. Based on "decades of police reform efforts across the country, " the DOJ concluded that "the appointment of a monitor to guide implementation of... injunctive relief may provide substantial assistance to the Court and the parties and can reduce unnecessary delays and litigation over disputes regarding compliance." In addition, the DOJ noted:
[T]he experience of the United States in enforcing police reform injunctions teaches that the appointment of an independent monitor is a critically important asset to the court, the parties, and the community in cases involving patterns or practices of unlawful conduct by law enforcement officials. A court-appointed monitor in this case would help the Court ensure that... any pattern or practice... is effectively and sustainably remedied.
The appointment of a monitor will serve the interests of all stakeholders, including the City, by facilitating the early and unbiased detection of non-compliance or barriers to compliance. By identifying problems promptly, the Monitor will save the City time and resources.
I also note that the Monitor will have a distinct function from the other oversight entities identified by the City, such as the NYPD's Internal Affairs Bureau, federal prosecutors, the Civilian Complaint Review Board, and "the public electorate." The Monitor will be specifically and narrowly focused on the City's compliance with reforming the NYPD's use of stop and frisk - although this will inevitably touch on issues of training, supervision, monitoring, and discipline. Finally, the Monitor will operate in close coordination with this Court, which retains jurisdiction to issue orders as necessary to remedy the constitutional violations described in the Liability Opinion.
I now specify the Monitor's role and functions:
1. The Monitor will be subject to the supervision and orders of the Court.
2. The Monitor will not, and is not intended to, replace or assume the role or duties of any City or NYPD staff or officials, including the Commissioner. The Monitor's duties, responsibilities, and authority will be no broader than necessary to end the constitutional violations in the NYPD's stop and frisk practices described in the Liability Opinion.
3. The Monitor's initial responsibility will be to develop, based on consultation with the parties, a set of reforms of the NYPD's policies, training, supervision, monitoring, and discipline regarding stop and frisk. These reforms (the "Immediate Reforms") are outlined below in Part II.A.2. They will be developed as soon as practicable and implemented when they are approved by the Court.
4. After the completion of the Joint Remedial Process, described below in Part II.A.4, the Monitor will work with the Facilitator and the parties to develop any further reforms necessary to ending the constitutional violations described in the Liability Opinion. These reforms ("Joint Process Reforms") will be implemented upon approval by the Court.
5. The Monitor will inform the City of the milestones the City must achieve in order to demonstrate compliance and bring the monitoring process to an end.
6. The Monitor will regularly conduct compliance and progress reviews to assess the extent to which the NYPD has implemented and complied with ...