Judge Slams NYPD for Biased Trespass Stops

     MANHATTAN (CN) – The New York City Police Department has systematically crossed the line in patrolling private buildings in the Bronx, a federal judge ruled.
     “For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat,” U.S. District Judge Shira Scheindlin wrote. “In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.”
     “As a result, plaintiffs are entitled to a preliminary injunction. However, with one exception, I am not yet ordering relief pending a further hearing on the appropriate scope of such relief,” she added.
     The 157-page decision granting an injunction comes in the most narrow of three cases challenging aspects of the NYPD stop-and-frisk program.
     Jaenean Ligon leads the class in this case, made up of Latino and black New Yorkers, fighting police stops on suspicion of trespass outside of certain privately owned buildings in the Bronx.
     Police can make stops in private buildings that are enrolled in the Trespass Affidavit Program, which was formerly known in the Bronx as Operation Clean Halls.
     The second class action, Floyd v. City of New York, broadly addresses racial disparities in stops. A third class action, Davis v. City of New York, targets “vertical patrols” in public housing complexes. Scheindlin presides over all three cases.
     Ligon’s is represented by the New York Civil Liberties Union, the Bronx Defenders, the law firm of Shearman & Sterling, and LatinoJustice PRLDEF, which was once short for Puerto Rican Legal Defense and Education Fund.
     Scheindlin credited testimony from hearings this fall, which included plaintiffs relating their personal experiences with the Clean Halls program.
     Ligon, the lead plaintiff, said that police had detained her 17-year-old son, J.G., after she sent him out for ketchup in August 2011. She said she was “terrified that J.G. was injured or dead” when an officer buzzed her intercom to have her identify him downstairs.
     When she saw her son surrounded by officers, she said she “collapsed and began weeping.”
     J.G.’s run-in was one of nine that Scheindlin recounted in her ruling.
     She noted the testimony reveals “striking similarities among plaintiffs’ stops.”
     “A person approaches or exits a Clean Halls building in the Bronx; the police suddenly materialize, stop the person, demand identification, and question the person about where he or she is coming from and what he or she is doing; attempts at explanation are met with hostility; especially if the person is a young black man, he is frisked, which often involves an invasive search of his pockets; in some cases the officers then detain the person in a police van in order to carry out an extended interrogation about the person’s knowledge of drugs and weapons; and in some cases the stop escalates into an arrest for trespass, with all of the indignities, inconveniences, and serious risks that follow from an arrest even when the charges are quickly dropped,” the decision states.
     Scheindlin added: “Because I find it extremely implausible that any plaintiff simply invented the stop or stops to which he or she testified, because defendants failed to make a sufficiently persuasive effort to identify the officers involved, and because the officers who did testify failed to undermine any plaintiff’s credibility, I decline to draw speculative inferences in defendants’ favor regarding the reasons that unidentified officers might have provided for their stops.”
     The judge also gave significant weight to the testimony of Bronx Assistant District Attorney Jeannette Rucker, who has been vocally disdainful of Clean Halls.
     “It is no small matter when an ADA publicly suggests that the NYPD has been engaged in a recurring pattern of unlawful stops,” the judge wrote.
     Rucker complained that that judges dismiss the trespassing charges connected to Operation Clean Halls in droves. She made headlines last year for announcing that her bureau would start directly interviewing officers, rather than relying on supporting depositions, before moving forward on trespassing cases.
     Scheindlin credited the testimony.
     “In sum, ADA Rucker’s testimony and the supporting exhibits, including the decline to prosecute forms, contained more than enough evidence to support the conclusion that there is a clear and substantial likelihood that plaintiffs will be able to prove at trial that NYPD officers in the Bronx repeatedly stopped and questioned people on suspicion of trespass simply because they were observed exiting or entering and exiting a Clean Halls building,” Scheindlin wrote.
     The judge also cited testimony against Clean Halls from Columbia University professor Jeffrey Fagan, whose data showed that more than 60 percent appeared unjustified.
     He took issue with justifications that police gave in forms documenting their trespass stops. Though the police claimed to have observed “furtive movements” and “keyless entry,” Fagan said such justifications were vague.
     Scheindlin waved off the city’s claims that this data alone does not “establish a causal nexus between Clean Halls buildings and unlawful trespass stops.”
     Such a nexus is unnecessary since “plaintiffs have already established a clear likelihood of proving such a nexus based on other evidence,” the ruling states.
     Though the city has taken steps in recent months to address the deficiencies in the Trespass Affidavit Program, or TAP, Scheidlin called many of these changes “peripheral to the concerns of the case.”
     “The video and the Training Guide, for example, deal with stop and frisk in general, and make no specific reference to trespass stops outside TAP buildings,” she wrote. “In addition, as discussed below, some of the training materials contain inaccurate or misleading information that could exacerbate rather than resolve the problem of unconstitutional stops.”
     “I find that defendants failed to introduce persuasive evidence regarding whether the improvements undertaken by the NYPD in 2012 have affected the magnitude of unlawful trespass stops outside TAP buildings in the Bronx,” she added.
     The city’s arguments are insufficient to rebut the evidence of their “deliberate indifference to a practice of unconstitutional stops,” the court ruled.
     As relief, the judge immediately barred the NYPD from performing trespass stops outside TAP buildings in the Bronx without reasonable suspicion of trespass.
     Reasonable suspicion cannot rest in “a hunch,” or a “furtive movement,” Scheindlin emphasized.
     “In particular, an individual observed exiting or entering and exiting a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high crime area, and regardless of the time of day,” she wrote.
     Further relief will be determined in Floyd, the related stop-and-frisk class action that Scheindlin has already green-lit for trail on March 11, 2013.
     The consolidated hearing on remedies should consider better training, a formal written NYPD policy, and supervision of the forms that police use to document their trespass stops outside TAP buildings, according to the ruling.

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