Civil liberties lawyers told a federal judge yesterday they had shown enough evidence during trial to warrant a preliminary injunction against police stop-and-frisk tactics outside of private buildings in the Bronx that have given permission for police to patrol their halls.
Christopher Dunn of the New York Civil Liberties Union argued before Southern District Judge Shira Scheindlin (See Profile) that evidence at the seven-day trial showed “police officers believed they could act as custodians” under the department’s Clean Halls Program and simply stop, question and possibly frisk and arrest residents of the buildings or their guests coming and going.
Dunn said the trial produced enough statistics to show a police pattern and practice of making unconstitutional stops that lacked reasonable suspicion of criminal activity. But for all the numbers, he said, “It’s easy to lose sight” of the fact there “are people behind these numbers who are trying to walk into their buildings and very very bad and upsetting things are happening to them.”
Mark Zuckerman and Brenda Cooke of the New York City Law Department responded that the plaintiffs’ case for a preliminary injunction in Ligon v. City of New York, 12 Civ. 2274, was so weak that the judge should reject an injunction out of hand.
Cooke called the analysis of plaintiffs’ expert, Columbia Law professor Jeffrey Fagan, “demonstrably false,” and said Fagan made a number of errors and faulty assumptions after reviewing data on more than 1,600 stops outside of buildings in Clean Halls, where owners and landlords seeking to cut down on drug dealing and other crimes sign an affidavit and affix a sign attesting to their status near the entrance to their property.
Fagan had concluded that over 60 percent of the stops lacked probable cause, but Cooke said, if anything, the number was closer to 4 percent.
Zuckerman assailed the 11 stops that were presented by the NYLCU as the basis for injunctive relief that would include extensive training of the police on the Fourth Amendment constraints on stopping people entering and exiting, or simply standing in front of, one of the some 5,100 buildings whose owners enlisted in the program.
Those 11 stops were described by individual plaintiffs during the trial, including one plaintiff who was stopped and held for identification by his mother who had sent him out to by ketchup. But only two plaintiffs could actually identify the police officers involved, Zuckerman said, adding that in many cases the plaintiffs couldn’t even offer the date the stop occurred.
Overall, he said, this “failure to provide specifics about the incidents should cause this court to discredit plaintiffs’ testimony.”
Zuckerman also criticized as “the most unreliable testimony” that offered by Jeannette Rucker, a supervising prosecutor with the Bronx District Attorney’s Office who took the stand to say that her office has had to make the decision to decline prosecution in cases where the only crime is trespass and the police could not elaborate on their decision to make a stop.
Zuckerman said there could be a host of reasons for exercising prosecutorial discretion not to prosecute aside from a lack of probable cause.
But Dunn defended the Rucker testimony as well as the Fagan analysis.
On the latter, he told the court that, if anything, Fagan’s analysis underestimated the number of illegal stops.
On Rucker, Dunn said the prosecutor testified that, after interviewing a police officer, and realizing that the person had been stopped for no reason other than entering or leaving the building, the decision not to prosecute was made. Rucker, he said, found that “judges are throwing out cases.”
Dunn said that it was a genuine problem, and it’s not like the district attorney’s office is “a shill for the plaintiffs.”
“It’s not like she doesn’t like the police—she’s a prosecutor,” he said. “She kept getting these bad stops.”
The NYCLU’s Alexis Karteron argued for the credibility of the plaintiffs who took the stand and showed the police believed they had “carte blanche” when it comes to stopping and frisking and routinely engage in “accusatory questioning that requires a person to justify their presence” in their own building.
Police consistently confront residents or visitors and ask, “What are you doing? Do you live here” in a way that carries the warning “If you are lying you are going to be arrested for trespassing,” Karteron said.
The Ligon litigation is distinct from two other stop-and-frisk cases before Scheindlin—Floyd v. City of New York, a class action alleging a widespread, top-down program of suspicionless stops that overwhelmingly target minority men and teens, and Davis v. New York, where nine plaintiffs are challenging police practices in the Housing Authority buildings. The city is currently appealing the judge’s class certification decision in Floyd.
Zuckerman, Cooke and the rest of their legal team have tried to minimize the Clean Halls stops as a mere fraction of the some 135,000 stops in the Bronx in 2011, some 15,000 based on trespassing.
They have also argued strenuously that the police department has gone to great lengths to train its officers on the contours of stop-and-frisk law, efforts that Zuckerman said began before the litigation was launched by the NYCLU—a point disputed by Dunn.
Zuckerman and Cooke also argue that Fagan, as well as the plaintiffs, have misread or drawn the wrong conclusions in analyzing police reports, saying they grossly overlooked the number of times that the police officers listed a combination of “furtive movements” by a person in a “high-crime area”—a combination they say amounts to reasonable suspicion to stop under the seminal U.S. Supreme Court case of Terry v. Ohio.
Dunn, however, told the judge that making a furtive movement in a high crime area “is not a legal justification for an outdoor trespass” stop.
Scheindlin took the matter under advisement.
@|Mark Hamblett can be contacted at firstname.lastname@example.org.