The second of three major cases alleging the New York City Police Department engages in an unconstitutional pattern of stopping and frisking people without a reasonable suspicion that they are engaged in criminal activity has been deemed a class action.

Southern District Judge Shira Scheindlin on Feb. 11 certified a class in Ligon v. City of New York, 12-2274, a case where black and Latino citizens in the Bronx allege police have been illegally stopping and frisking them as they enter and exit buildings that take part in a police crime-fighting program.

Following a hearing in which she heard from individual plaintiffs, Scheindlin (See Profile) found on Jan. 8 the plaintiffs were likely to prevail at trial on their claim that police were violating the Fourth Amendment by stopping and frisking people who were entering, leaving, or, in some cases, just passing by buildings in the Bronx that participated in the Trespass Affidavit Program (TAP) (NYLJ, Jan. 9).

Formerly known as Operation Clean Halls, the TAP program allows police patrols of private buildings with the consent of the owner or landlord. Some 5,000 buildings participate in the program and the police maintain it is an effective crime-fighting tool.

In January, Scheindlin in Ligon enjoined the practice of stopping people on suspicion of trespassing without any independent indication they were, in fact trespassing. The judge later stayed her ruling until the remedy issue is sorted out. The stay, she said, appeared to moot the city’s appeal, and the city then decided to withdraw the appeal, at least for the moment. (NYLJ, Jan. 23).

Scheindlin also consolidated consideration of remedies in Ligon with the remedies in the broader class action, Floyd v. City of New York, 08 Civ. 1034, which alleges the police department has a "top-down," city-wide policy of stopping and frisking people without suspicion—a practice that plaintiffs allege disproportionately targets young black and Latino men.

In her decision certifying the class on Feb. 11, Scheindlin rejected the city’s claim that the plaintiffs had not established that their claims were typical of or common to the claims of the proposed class.

"In sum, plaintiffs and the putative class members were allegedly subjected to the same unlawful conduct by NYPD officers under the auspices of a single NYPD program: unjustified [Terry v. Ohio] stops, not supported by reasonable suspicion, occurring outdoors in the vicinity of TAP buildings in the Bronx on suspicion of trespass," she said.

In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that the Fourth Amendment is not violated when a police officer stops and frisks a person without probable cause to make an arrest—as long as the officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime.

Floyd is scheduled for a bench trial on March 11, but could be pushed back one week.

In both cases, the city has argued that improved training is ensuring that the stop-and-frisk practices comply with the Fourth Amendment and the plaintiffs counter that training is inadequate and unconstitutional practices are still engrained in training materials and the mindset of patrolling officers.

The parties in both Ligon and Floyd are scheduled to submit on March 4 briefings on proposed remedies.

Among the remedies being considered by the judge are increased training, new training materials that accurately state the law on Fourth Amendment Terry stops, greater supervision and top-down accountability to make sure that police are in compliance. Scheindlin also raised the prospect of a court monitor to help ensure compliance.

Christopher Dunn of the New York Civil Liberties Union said yesterday, "Certifying the class was correct and necessary given that the unconstitutional stopping and frisking we challenge is endemic to the Clean Halls program. We now look forward to Judge Scheindlin ordering the systemic relief needed to fix the program."

On Feb. 11, Scheindlin held that consideration of any remedies in Ligon and Floyd will be independent of any remedy in Davis v. City of New York, 10-cv-699. Class certification is pending in Davis, a case where plaintiffs allege persistent Fourth Amendment violations by police in the buildings and on the property of the New York City Housing Authority.

The parties in Davis are awaiting a decision on their motions for summary judgment, with briefing on the issue of class certification on hold until Scheindlin makes her decision.

Mark Zuckerman, senior counsel in the federal division of the Law Department, said in a statement, "We respectfully disagree with the decision. We don’t believe that class certification is warranted, but it’s only one step in the broader litigation."