A lawyer for New York City told a federal judge yesterday there is no need for an injunction or oversight of police stop-and-frisk practices at buildings where landlords have given the permission for patrols.
Mark Zuckerman insisted that police officers are adhering to the Fourth Amendment’s requirement of reasonable suspicion for stopping people as part of the department’s “Clean Halls,” or “Trespass Affidavit” program and that “major enhancements” have been made to improve compliance.
The New York Police Department “has made tremendous efforts in this last year to make sure its police officers understand the law surrounding stop, question and frisk and reasonable suspicion,” Zuckerman said in an opening statement before Southern District Judge Shira Scheindlin (See Profile).
But Christopher Dunn of the New York Civil Liberties Union, said the NYPD only began training officers on Fourth Amendment compliance specific to Clean Halls two months after the lawsuit was filed in Ligon v. City of New York, 12 Civ. 2274. Before that, he said, the program had gone unregulated for 20 years.
While being stopped on the street by police with no reasonable suspicion “is a humiliating experience,” Dunn said, “this is even worse than that—we are talking about people who are walking into or out of their own homes.”
“At the core of the Fourth Amendment is a recognition of the sanctity of one’s own home,” Dunn said. “These stops are an assault on the sanctity of one’s own home.”
The opening statements in Ligon began what is expected to be an eight-day trial before Judge Scheindlin, who is being asked by the NYCLU to issue an injunction against the alleged NYPD practice of stopping, and sometimes frisking, and sometimes arresting people on suspicion of trespass around buildings participating in the program.
Under the program, private landlords and building owners sign an affidavit giving police consent to patrol their buildings to deter criminal activity, especially drug dealing. Participating buildings have a sign affixed near the front entrance reading “Operation Clean Halls.”
But the plaintiffs, 11 of whom will testify over the next week, allege police are stopping for no good reason residents or their legitimate visitors on their way in or out of their buildings.
Dunn told the judge yesterday that one woman sent her son out to buy ketchup, but he was stopped and detained by police, who then called her and told her to come downstairs and identify him.
While Operation Clean Halls is a city-wide program, the injunction sought by the NYCLU focuses on the Bronx because of time constraints in assembling and analyzing data and because the Bronx has the highest rate of participation, about 5,100 buildings. The majority of the stops, Dunn said, appear to have no justification.
Ligon is one of three major cases challenging police stop-and-frisk practices before Scheindlin.
The largest is Floyd v. City of New York, where Scheindlin certified a class action in May alleging a top-down program of suspicion-less stops on city streets—a decision the city is now challenging on appeal (NYLJ, May 17).
The third is Davis v. New York, where the judge on Oct. 4 denied the city summary judgment against nine plaintiffs challenging stop-and-frisk practices in the city’s Housing Authority buildings (NYLJ, Oct. 5).
Police stop-and-frisk practices have generated increasing controversy as the lawsuits have been filed, Scheindlin has issued opinions in the three cases and Mayor Michael Bloomberg and Police Commissioner Ray Kelly have defended the program as playing a major role in reducing crime and getting guns off the streets.
The Law Department unsuccessfully sought to derail the trial in Ligon in August, telling the judge that the suit was really just an “end run” around the Floyd case (NYLJ, Aug. 24).
Yesterday, after Dunn said Ligon was “not a broad challenge” to stop-and-frisk policies, Assistant Corporation Counsel Brenda Cooke insisted that the numbers in Ligon must be considered in the context of the more than 100,00 stops made in the Bronx last year.
The city’s defense continued yesterday as Zuckerman called the Clean Halls initiative “a very important crime fighting tool for the NYPD” as it combats “illegal narcotics activities inside certain residential buildings” so “tenants can know they live in safe buildings.”
During her opening statement, Cooke took aim at plaintiffs’ expert Jeffrey Fagan, a Columbia Law School professor who is also providing expert testimony in Floyd. Fagan was the first witness yesterday, testifying that his examination of the database shows that of 1,857 stops made in 2011, 1,137, or 62 percent, were made without reasonable suspicion of criminal activity.
But Cooke said Fagan had engaged in “flawed and unreliable analysis.”
One problem in many cases, she said, was that Fagan “inappropriately assumes a stop is connected to a trespass affidavit building.”
Another, she said, was that a lot of the stops documented by police in forms called UF-250s contained “at least one factor” that led to the stop, including that the defendant had made a “furtive” or suspicious movement. Cooke said the city will show that many of the stops relied on by the plaintiffs were thus not based simply on the presence of a person outside a Clean Halls building.
Zuckerman detailed the city’s efforts in issuing regulations and training officers on how to approach, stop and arrest people, training that includes the preparation of UF-250s, role-play situations, and “proper interactions with the citizenry.”
When Dunn was speaking, Scheindlin asked why, if the NYPD was taking all these steps, she should issue an injunction.
The police “start with the things they are doing to clean up their program—they are going to try and persuade you that you don’t have to do anything,” he said.
But Scheindlin wanted to know exactly what kind of relief the NYCLU was seeking, other than instructing the police, “Don’t break the law.”
Dunn said he wanted extensive training and a “very clear system of supervision.”
“Internally?” Scheindlin asked.
“Internally and externally,” Dunn replied.
The judge asked Dunn, “Are you thinking about a monitor?”
Dunn said only “at the very least there would have to be very specific reporting” on stop-and-frisks pursuant to Operation Clean Halls.
But Scheindlin said “that’s why we have the UF-250s.”
“We understand that police officers make mistakes,” Dunn said. “But 60 percent is not just some police officers making mistakes.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.