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Judge Orders NYPD to Limit Trespass Searches
New York Law Journal
Police officers are violating the Fourth Amendment rights of people stopped on suspicion of trespass as they walk into and out of privately owned buildings that participate in a Bronx anti-crime program, a federal judge ruled yesterday.
Southern District Judge Shira Scheindlin (See Profile) issued a preliminary injunction ordering police "immediately to cease performing trespass stops" without reasonable suspicion of actual trespass at thousands of buildings whose owners have given police permission to patrol their property pursuant to the Trespass Affidavit Program, or TAP.
"I conclude that plaintiffs have shown a clear likelihood of proving that defendants have displayed deliberate indifference toward a widespread practice of unconstitutional trespass stops by the NYPD outside of TAP buildings in the Bronx," Scheindlin said in Ligon v. City of New York, 12-cv-2274.
Police Commissioner Raymond Kelly in a statement yesterday said: "Some may take for granted the safety provided by doormen who routinely challenge visitors to their apartment buildings. Through 'Clean Halls,' the police have worked to provide a modicum of safety for less prosperous tenants. Their landlords explicitly requested this extra level of protection. The NYPD is fully committed to doing so in a manner that respects the constitutional rights of residents and visitors. Today's decision unnecessarily interferes with the department's efforts to use all of the crime-fighting tools necessary to keep Clean Halls buildings safe and secure."
Scheindlin's decision, the latest in a series of rulings in hotly contested litigation over the New York City Police Department's stop-and-frisk policies, comes after a hearing in October and November during which Scheindlin heard from individual plaintiffsall either black or Latinowho claimed they had done nothing wrong and were stopped without reasonable suspicion as they entered or exited a TAP building.
More than 5,000 buildings in the Bronx subscribe to the program, formerly know as Operation Clean Halls, an initiative designed to curb drug sales and other crimes in private buildings in high-crime areas.
"In sum, while it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx," Scheindlin said. "For those of us who do not fear being stopped as we approach or leave our own homes or those of friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat."
Scheindlin also heard from Bronx Assistant District Attorney Jeannette Rucker, who testified that NYPD officers treated proximity to a TAP building as a factor contributing to reasonable suspicion and said her office has declined to prosecute some cases based solely on that factor.
In her 157-page opinion, Scheindlin credited Rucker's testimony as well as evidence on decline-to-prosecute forms and UF-250sreports on which officers detail, among other things, the time, place and basis for stops.
"These stops were made because the building was enrolled in TAP, and they were not based on any reasonable suspicion of trespass," Scheindlin wrote. "ADA Rucker's testimony is corroborated by the accounts of stops and arrests in twenty-six decline to prosecute forms, as well as by the hundreds of UF-250s on which the officers wrote 'Clean Halls' as a justification for a stop."
In addition to the preliminary injunction, the judge offered proposed relief that is similar to the relief sought by the plaintiffs in Floyd v. City of New York, where the judge in 2012 certified a city-wide class of plaintiffs challenging the allegedly widespread practice of stopping young men, many of them black and Hispanic, without reasonable suspicion (NYLJ, May 17, 2012).
Trial in Floyd, 08 Civ. 1034, is scheduled to begin March 11 and because the plaintiffs are no longer pursuing money damages and are now seeking injunctive relief, it will be a bench trial before Scheindlin.
Because Floyd and Ligon dovetail in many respects, Scheindlin said yesterday that the remedy hearing in Ligon will be held in conjunction with the Floyd trial.
The proposed relief includes a formal, written policy on the "limited circumstances" in which police can make a stop on suspicion of trespass outside of a TAP building and the order that supervisors require UF-250s be completed for every trespass stop outside of TAP buildings.
The city's Law Department had argued that the Police Department has already stepped up its training on the parameters of proper searches under the TAP program.
But Scheindlin said the training was inadequate and that NYPD training materials "continue to misstate the minimal constitutional standards for making stops." Some of the training materials introduced by the defendants, she said, "may serve to further entrench the problem of these unconstitutional stops."
She raised the possibility of appointing a monitor who would review drafts of written or scripted training materials that would be submitted to the court as part of the proposed remedies.
The judge also said she recognized that alterations to training materials might involve "training materials outside of the Bronx and outside the context of TAP. But such steps are necessary to correct the longstanding misconceptions that led to the violations of plaintiffs' constitutional rights."
The judge said it is possible that training efforts already underway might ultimately work, and said she would dissolve the injunction if the city produces statistics showing they have led to a change in department practices.
Scheindlin also said she was "keenly aware that this Court does not stand in the shoes of the Police Department and is in no way qualified or empowered to engage in policy determinations," and that her job is to interpret and apply the law.
"My object here is only to clarify what the law permitsand does not permitan officer to do when initiating and conducting a stop and frisk of people in the public areas of certain privately owned buildings in the Bronx," she said.
The law, she said, quoting the U.S. Supreme Court in Illinois v. Wardlow, 528 U.S. 119 (2000), and Alabama v. White, 496 U.S. 325 (1990), is this: "In order for an officer to have 'reasonable suspicion' that an individual is engaged in criminal trespass, the officer must be able to articulate facts providing 'a minimal level of objective justification for making the stop,' which means 'something more than an inchoate and unparticularized suspicion or hunch.'
"In particular, an individual observed exiting or entering a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high crime area, regardless of the time of day," the judge said, and the making of a "furtive movement" by a subjecta basis commonly cited by officers on their UF 250 formsdoes not, by itself, make for reasonable suspicion.
Christopher Dunn of the New York Civil Liberties Union, one of several lawyers for the plaintiffs, said Scheindlin "has stated loudly and clearly that a major part of the NYPD's stop-and-frisk program is unconstitutional and that the time has come for the courts to order a halt to illegal stops."
The parties have until Feb. 22 to make submissions on remedies.
Mark Zuckerman, senior counsel at the Law Department, is leading the city's defense.
Corporation Counsel Michael Cardozo said in a statement that his office disagrees with the judge's interpretation of "well-established case law."
"The decision proposes remedial steps that would place an unacceptable burden on the NYPD to adopt additional training, supervision, monitoring and reporting requirements," he said. "We believe that court testimony demonstrated the NYPD already has more than adequate safeguards in place to ensure that its patrols of Clean Halls buildings are lawful. Indeed, the plaintiffs conceded that the department's own training, supervision and monitoring programs provided the 'template' for the relief the plaintiffs were seeking."
@|Mark Hamblett can be contacted at firstname.lastname@example.org.