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Case 1:08-Cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 1 of 198

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Case 1:08-Cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 1 of 198 Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 1 of 198 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------------------------- )( DAVID FLOYD, LALIT CLARKSON, DEON DENNIS, and DAVID OURLICHT, individually and on behalf of a class of all others similarly situated, OPINION AND ORDER Plaintiffs, 08 Civ. 1034 (SAS) - against- THE CITY OF NEW YORK, Defendant. I. INTRODUCTION ...................................................... 1 II. E)(ECUTIVE SUMMARy ............................................... 4 III. APPLICABLE LAW ....... " .......................................... 15 A. Monell Liability ................................................. 15 B. Stops, Frisks, and Searches Under the Fourth Amendment ............. 18 1. The Definition of a Stop ..................................... 19 2. Stops Must Be Based on Reasonable Suspicion ................. 22 3. Protective Frisks for Weapons ............................... 23 4. Searching into Clothing for Weapons ......................... 25 5. De Bour and the Fourth Amendment .......................... 26 C. Equal Protection Under the Fourteenth Amendment .................. 26 IV. FINDINGS OF FACT .................................................. 30 A. Overview of Uncontested Statistics ................................. 30 B. Expert Testimony ................................................ 37 1. The Liability Experts ....................................... 37 2. The Fourth Amendment Claim .............................. 40 a. Overview of Key Issues ............................... 40 b. Dr. Fagan's Method of Classifying Stops ................ 41 c. Unreliable Stop Factors ............................... 43 d. Quantifying the Magnitude of Apparently Unjustified Stops Based on UF -250 Stop Factors ......................... 47 3. The Fourteenth Amendment Claim ........................... 48 Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 2 of 198 a. Overview of Key Issues. 49 b. Competing Benchmarks. 49 c. Findings Based on Dr. Fagan’s Analyses.. 58 C. Institutional Evidence of Deliberate Indifference.. 60 1. Early Notice: the 1999 AG Report.. 61 2. Pressure to Increase Stops.. 64 a. Compstat: Pressure on Commanders.. 64 b. Evidence of Pressure in Survey Data. 67 c. Further Evidence of Pressure on Officers. 71 i. Pressure Before the 2010 Quota Law.. 71 ii. Pressure After 2010 Quota Law. 77 d. Conclusion. 81 3. Targeting “the Right People”. 81 4. Inadequate Monitoring and Supervision.. 89 a. Inadequate Documentation and Document Review. 89 b. Inadequate Supervision.. 95 5. Partially Inadequate Training. 99 6. Inadequate Discipline. 105 7. Ongoing Notice of Constitutional Violations.. 111 D. Individual Stops. 117 1. Unconstitutional Stop and Frisk.. 119 a. Leroy Downs.. 119 i. Findings of Fact. 119 ii. Mixed Findings of Fact and Law. 122 b. Devin Almonor. 124 i. Findings of Fact. 124 ii. Mixed Findings of Fact and Law. 127 c. Cornelio McDonald. 128 i. Findings of Fact. 128 ii. Mixed Findings of Fact and Law. 132 d. Nicholas Peart — August 5, 2006. 133 i. Findings of Fact. 133 ii. Mixed Findings of Fact and Law. 136 e. Nicholas Peart — April 13, 2011 Stop. 138 i. Findings of Fact. 138 ii. Mixed Findings of Fact and Law. 139 f. Ian Provost. 140 i. Findings of Fact. 140 ii. Mixed Findings of Fact and Law. 144 g. David Ourlicht — January 30, 2008 Stop. 145 i. Findings of Fact. 145 ii. Mixed Findings of Fact and Law. 148 h. Clive Lino — February 5, 2008 Stop. 149 i. Findings of Fact. 149 ii. Mixed Findings of Fact and Law. 153 ii Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 3 of 198 i. Lalit Clarkson. 154 i. Findings of Fact. 154 ii. Mixed Findings of Fact and Law. 156 2. Unconstitutional Frisk Only. 156 a. Dominique Sindayiganza.. 156 i. Findings of Fact. 157 ii. Mixed Findings of Law and Fact. 160 b. David Floyd — April 20, 2007 Stop. 161 i. Findings of Fact. 161 ii. Mixed Finding of Fact and Law. 163 c. David Floyd — February 27, 2008 Stop.. 163 i. Findings of Fact. 163 ii. Mixed Findings of Fact and Law. 166 d. Clive Lino — February 24, 2011 Stop. 167 i. Findings of Fact. 167 ii. Mixed Findings of Fact and Law. 170 e. Deon Dennis. 171 i. Findings of Fact. 171 ii. Mixed Findings of Fact and Law. 173 3. Failure of Proof. 174 a. John Doe Stops of Nicholas Peart in Spring 2008 and February 2010 and David Ourlicht in February and June 2008. 174 b. Kristianna Acevedo Stop.. 175 c. Clive Lino — August 3, 2008. 177 V. CONCLUSIONS OF LAW. 177 A. The City Is Liable for Violations of Plaintiffs’ Fourth Amendment Rights . 177 1. Deliberate Indifference. 178 2. Widespread Practice. 180 B. The City Is Liable for Violations of Plaintiffs’ Fourteenth Amendment Rights. 181 1. Policy of Indirect Racial Profiling. 181 a. Intentionally Discriminatory Application of a Facially Neutral Policy . 182 b. Express Classification. 185 c. Conclusion. 188 2. Deliberate Indifference. 189 VI. CONCLUSION. 192 iii Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 4 of 198 SHIRA A. SCHEINDLIN, U.S.D.J.: Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation. — Railway Express Agency v. People of State of New York, 336 U.S. 106, 112–13 (1949) (Jackson, J., concurring) It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ — Terry v. Ohio, 392 U.S. 1, 16–17 (1968) Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited. — United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.) I. INTRODUCTION New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it. This case is about the tension between liberty and public safety in the use of a proactive policing tool called “stop and frisk.” The New York City Police Department (“NYPD”) made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person’s life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk. Plaintiffs — blacks and Hispanics who were stopped — argue that the NYPD’s 1 Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 5 of 198 use of stop and frisk violated their constitutional rights in two ways: (1) they were stopped without a legal basis in violation of the Fourth Amendment, and (2) they were targeted for stops because of their race in violation of the Fourteenth Amendment. Plaintiffs do not seek to end the use of stop and frisk. Rather, they argue that it must be reformed to comply with constitutional limits. Two such limits are paramount here: first, that all stops be based on “reasonable suspicion” as defined by the Supreme Court of the United States;1 and second, that stops be conducted in a racially neutral manner.2 I emphasize at the outset, as I have throughout the litigation, that this case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”3 This case is also not primarily about the nineteen individual stops that were the subject of testimony at trial.4 Rather, this case is about whether the City has a policy or custom 1 See generally U.S. CONST. amend. IV; Terry v. Ohio, 392 U.S. 1 (1968). 2 See generally U.S. CONST. amend. XIV § 1; Whren v. United States, 517 U.S. 806, 813 (1996). 3 District of Columbia v. Heller, 554 U.S. 570, 636 (2008). 4 The law requires plaintiffs to produce evidence that at least some class members have been victims of unconstitutional stops. See U.S. CONST. art. III. 2 Case 1:08-cv-01034-SAS-HBP Document 373 Filed 08/12/13 Page 6 of 198 of violating the Constitution by making unlawful stops and conducting unlawful frisks.5 The Supreme Court has recognized that “the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality.
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