Plaintiffs seeking to prevent police from stopping and frisking them at private residential apartment buildings in New York City will get a full hearing and be able to put on evidence in support of their motion for a preliminary injunction, a federal judge has ruled.
Southern District Judge Shira Scheindlin (See Profile) denied a request by city lawyers to use her equitable powers to summarily deny plaintiffs’ request for an injunction without a hearing in the litigation over “Operation Clean Halls.”
Operation Clean Halls is an initiative that allows police to patrol residential buildings and private property with the consent of the building’s owner as a means of preventing crime.
But the plaintiffs in Ligon v. City of New York, 12 Civ. 2274, charge that officers are abusing their authority and violating the Fourth Amendment by stopping and frisking innocent people who live in or are visiting the buildings without any individualized suspicion they are engaged in criminal activity.
“These are grave allegations,” Scheindlin said in rejecting the city’s request to deny the preliminary injunction without a hearing—a request made in the context of the larger class action challenging stop-and-frisk practices, Floyd v. City of New York, 08 Civ. 1034.
In Floyd, Scheindlin certified a class action in May, saying the city’s “cavalier attitude” toward evidence of the “‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights” (NYLJ, May 17).
The city is now appealing that class certification decision to the U.S. Court of Appeals for the Second Circuit, an appeal that it argued should postpone any decision on an injunction in Ligon.
In a letter to the court, the city’s Law Department said an injunction in Ligon would amount to an “end-run” around its appeal of class certification in Floyd.
In Ligon, plaintiffs plan to call as witnesses people who have been stopped and frisked as well as Jeffrey Fagan, a Columbia Law School professor. Fagan has analyzed data from the New York Police Department’s stop-and-frisk database and is their lead witness in Floyd (NYLJ, Aug. 20).
In Ligon, Fagan is expected to testify that there have been hundreds of unlawful stops on suspicion of no other crime save “trespass” made outside of Operation Clean Halls buildings in the Bronx.
Trying to head off the hearing, the city argued to Scheindlin that, with some individual plaintiffs in Ligon also part of the broader Floyd class, there is the possibility of inconsistent adjudications.
The city, in a letter from Mark Zuckerman, senior counsel in the Law Department’s special federal litigation division, also said an injunction in Ligon would run afoul of Federal Rule of Civil Procedure 65(d) because it would do nothing more than instruct the police to follow the law.
It also argued that the hearing’s focus on the Bronx “could lead to vastly different outcomes later when the whole city is analyzed.”
Scheindlin was unpersuaded, saying the city “cannot have it both ways.”
‘Full and Fair Hearing’
“I understand the City’s concern that preparing for and holding a preliminary injunction hearing is costly and time-consuming,” the judge said. “But Floyd was filed four and a half years ago and the trial may be indefinitely postponed as a result of the City’s decision to appeal this Court’s certification order.”
The judge said the plaintiffs in Ligon “allege persistent and ongoing violations of their most cherished constitutional rights.”
“If their allegations are true, plaintiffs should not be forced to endure years of continued indignity while this litigation is effectively stayed pending the outcome of Floyd,” she said. “And if the allegations are not proven, then the NYPD will be vindicated by a judicial system that permits the City —and all litigants—a full and fair hearing.”
She said the city “misapprehended” Rule 65, which requires that an injunction state specifically “what the defendants are and are not to do.”
The judge said, “In any event, plaintiffs intend to seek changes in supervision, training and monitoring that will, in the words of plaintiffs’ lawyer Christopher Dunn of the New York Civil Liberties Union, go ‘far beyond a simple command to follow the law.’”
As to the city’s concern about inconsistent outcomes, the judge said, “Tailoring injunctions narrowly is a classic judicial function.”
“The evidence may warrant no injunction, a City-wide injunction, or a Bronx-specific injunction,” she said. “In principle, however, there is nothing improper about the last option.”
Dunn said in an interview that the Bronx was chosen by the plaintiffs because it has the greatest number of buildings in the program, some 5,100—roughly 45 percent of the enrolled buildings city-wide—and they were on a tight time schedule to analyze the data in time for the hearing on the injunction.
“While Clean Halls is a distinct program, it is yet another example of out-of-control stop and frisk,” Dunn said. “Residents, visitors, and bystanders are being stopped and even arrested merely for being in and around Clean Halls buildings, and we are pleased Judge Scheindlin has recognized our right to seek immediate relief to stop this unlawful practice.”
The Law Department’s Zuckerman said, “While we disagree that it’s necessary to proceed with a preliminary injunction hearing, we look forward to presenting our case.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.