Filed Date: Jan. 31, 2008
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COVID-19 Summary: This is an ongoing case to challenge the constitutionality of the NYPD's stop and frisk practices, in which the plaintiffs filed an emergency motion calling for a moratorium and investigation of NYPD's alleged discriminatory enforcement of social distancing policy. No outcome yet on plaintiffs' motion.
This is one of four ongoing cases challenging the constitutionality of the New York Police Department's "Stop and Frisk" program. See Ligon v. City of New York; Daniels v. City of New York; Davis v. City of New York.
On January 31, 2008, four African-American men who had been stopped and frisked in the City of New York brought this class § 1983 suit against the City in the U.S. District Court for the Southern District of New York. The plaintiffs, represented by the Center for Constitutional Rights ("CCR") and private counsel, asked the court for declaratory, injunctive, and monetary relief, claiming that the City had engaged in unconstitutional racial profiling. Specifically, the plaintiffs claimed that the City had implemented and was continuing to enforce, encourage and sanction a policy and practice of unconstitutional "stop and frisks" by the New York Police Department ("NYPD"), targeting black and Latino residents without the reasonable articulable suspicion required by the Fourth Amendment. The case was assigned to Judge Shira A. Scheindlin.
The CCR previously litigated the same issue in Daniels v. City of New York, No. 1:99-cv-01695, eventually reaching a settlement agreement with the City in 2003 that required the NYPD to establish a written policy against racial profiling and to submit data on its stop-and-frisks quarterly to the CCR until 2007. When the CCR came to the conclusion that the data demonstrated a continued unconstitutional use of race in deciding whom to stop and frisk, it filed this action. On the same day that the complaint was filed, the court granted an expedited motion by the plaintiffs to retain documentation that the City had produced as defendant in Daniels and that they still held.
On June 2, 2008, the plaintiffs filed a motion to compel discovery of other City documents with information on stop-and-frisks, including documents that plaintiffs had returned to the City under the terms of the Daniels settlement. The court granted the motion on September 10, compelling the disclosure of all documentation desired by the plaintiffs except for the names or individuals stopped by the police and the names of reporting or reviewing officers. Floyd v. City of N.Y., No. 1:08-cv-01034, 2008 WL 4179210, 2008 U.S. Dist. LEXIS 68798 (S.D.N.Y. Sept. 10, 2008).
Discovery disputes continued over the course of the next three years. On May 21, 2009, the City requested sanctions against one of the plaintiffs for spoliation and perjury, and on March 15, 2010, the plaintiffs moved for sanctions against the defendants for failing to comply with the Court's discovery orders. (No resolution to the City's request appears on the docket, and the plaintiffs withdrew their motion for sanctions without prejudice to renewal on June 24.) On June 25, 2010, the court ordered the City to continue making disclosures on ongoing Internal Affairs Bureau investigations of claims of racial quotas being used by the NYPD. Floyd v. City of N.Y., 739 F. Supp. 2d 376 (S.D.N.Y. 2010).
On February 24, 2011, the City moved for summary judgment, and on August 31 the court granted in part and denied in part the City's motion. Floyd v. City of N.Y., 813 F. Supp. 2d 417 (S.D.N.Y. 2011). It held that the City was entitled to summary judgment on one of the plaintiff's individual claims, but not on the claims made by other plaintiffs or on the class claims of racial profiling under Title VI and the Fourth and Fourteenth Amendments. The plaintiffs moved for reconsideration, and on November 23, 2011, the court found that new evidence presented by plaintiffs created a dispute of fact that called into question the reasonableness of the NYPD's stop-and-frisk, and thus reinstated the plaintiff's individual claims. Floyd v. City of N.Y., 813 F.Supp.2d 457 (S.D.N.Y. 2011).
Discovery disputes continued, and the City moved to exclude the testimony of Columbia professor Jeffrey Fagan. The Court for the most part denied the City's motion on April 16, 2012, admitting Fagan's disparate treatment analysis, much of his reasonable suspicion analysis, a modified version of his classification system, and his opinion regarding the results of the NYPD's stop-and-frisk policy. Floyd v. City of N.Y., No. 1:08-cv-01034, 2012 WL 1344514, 2012 U.S. Dist. LEXIS 53249 (S.D.N.Y. Apr. 16, 2012).
On May 16, 2012, the court granted class certification. Floyd v. City of N.Y., No. 1:08-cv-01034, 2012 WL 1868637, 2012 U.S. Dist. LEXIS 68676 (S.D.N.Y. May 16, 2012). On October 10, 2012, a three-judge panel in the Second Circuit Court of Appeals (Judge John M. Walker, Jr. and Judge Christopher F. Droney) denied the City's motion to appeal the District Court's grant of class certification.
The case headed to bench trial before Judge Scheindlin. On January 22, 2013, the court granted the City's request for a stay pending a final decision regarding the appropriate scope of preliminary injunctive relief in Ligon, but denied postponement of the trial. The plaintiffs agreed to dismiss their individual damage claims, so trial proceeded on the class-based injunctive issues, only. That trial began in March 2013; proceedings took over 30 days, and concluded in May 2013. In July, the U.S. Department of Justice appeared in the case by filing a "Statement of Interest". Represented by the Civil Rights Division (not the U.S. Attorney, which ordinarily represents the U.S. in the Southern District of New York). The DOJ took no position on whether the NYPD should be held liable, but opined that a monitorship-type remedy was often useful and certainly authorized, in systemic police misconduct cases.
On August 12, 2013, following the nine-week trial, Judge Scheindlin held that the City of New York violated the plaintiffs' rights under the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. Judge Scheindlin issued two opinions finding the NYPD liable, ordering changes to the department's stop and frisk procedures, and appointing a monitor to oversee the changes. Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y. 2013) and 959 F.Supp.2d 668 (S.D.N.Y. 2013). Judge Scheindlin held that the NYPD violated the plaintiffs' Fourth Amendment rights, due to the department officials' deliberate indifference regarding the officers' clearly unconstitutional searches and the fact that the searches were so widespread that they held the force of law. Further, the NYPD violated the plaintiffs' Fourteenth Amendment rights by subjecting them to the indirectly racially-targeted searches and by displaying deliberate indifference to the discriminatory nature of these searches. In other words, Judge Scheindlin found that the searches violated the plaintiffs' Fourteenth Amendment rights regardless of whether the disparate result of the search policy was intentional.
Beyond the findings of law, Judge Scheindlin also issued an order setting forth the procedures that the NYPD must adopt to remedy the situation. The order mandated that a monitor would be appointed to oversee reforms and consult with the parties to develop "a set of reforms of the NYPD's policies, training, supervision, monitoring, and discipline regarding stop and frisk." As a monitor, she chose a former New York Corporation Counsel and former First Assistant District Attorney in Manhattan.
On October 31, 2013, the Second Circuit granted the City’s motion for a stay and ordered that the cases be reassigned from Judge Scheindlin to another district judge. The Second Circuit wrote that the "District Judge ran afoul of the Code of Conduct for United States Judges" in (a) speaking to the press and (b) encouraging the plaintiffs' counsel in Daniels to file the Floyd litigation, separately, rather than litigating racial profiling as part of Daniels—particularly in stating that she would treat the new case as related. 538 F. App'x 101 (2d Cir. 2013).
After the Second Circuit ruled, both Floyd and Ligon were reassigned (as related) to District Judge Analisa Torres. On November 13, 2013, the Court of Appeals rejected Judge Scheindlin's motion asking to be heard on the disqualification issue and clarified the reason for reassigning the case. The Second Circuit held that the rationale for the reassignment was an appearance of impropriety, not its actual presence. 736 F.3d 118 (2d Cir. 2013).
In the meantime, NYC Mayor Bill de Blasio was elected, and took a very different approach to these cases. The city moved for limited remand from the Second Circuit to the district court for the purpose of exploring settlement. On February 21, 2014, the Second Circuit granted the City’s motion to remand to the district court to explore settlement for 45 days. The Second Circuit declined to decide the police unions' motion to intervene, preferring to let the district court decide that motion first. 743 F.3d 362 (2d Cir. 2014).
On March 4, 2014, the parties informed Judge Torres that they had “reached an agreement in principle for resolving the City's appeals in both Floyd and Ligon. The City agreed to substantially comply with the injunctive relief set forth in Judge Scheindlin's August 12, 2013, remedial order, subject to the parties' application to Judge Torres to limit the term of the court-appointed monitor to three years. When the monitor’s term ended, the City agreed to authorize the Inspector General of the NYPD to take over monitoring and reporting responsibilities. The parties agreed that the agreement could be terminated once the City had maintained compliance for two years. On July 30, 2014, Judge Torres granted the parties' joint motion to modify the remedial order and to enter it as an embodiment of their agreements.
On July 30, 2014, Judge Torres also issued an order denying the police unions' motions to intervene, finding, inter alia, that the motions were untimely and that the police unions did not assert a legally protectable interest. 302 F.R.D. 69 (S.D.N.Y. 2014). The police unions appealed.
However, on August 6, 2014, with the consent of the plaintiffs in Floyd and Ligon, the City moved to voluntarily dismiss its remaining appeals, with prejudice, stating that the parties had reached an agreement that resolved all the issues raised by the City's appeals in both Floyd and Ligon, and cleared the way for the parties to begin the remedial process and settlement negotiations. On October 31, 2014, the Second Circuit granted the City’s request to voluntarily dismiss all appeals, with prejudice. In addition, the Second Circuit held that the unions’ motions to intervene were untimely and that the unions failed to establish legally protectable interests, as required to allow intervention. 770 F.3d 1051 (2d Cir. 2014).
The parties continued to work with the monitor on developing appropriate reforms. On February 3, 2015, Judge Torres issued an order regarding the procedure for the monitor to develop and the City to implement the reforms of NYPD’s stop-and-frisk activities. The monitor would consult with the parties to create a final recommendations for the implementation of remedies. Then, the court would approve or deny the final recommendations.
First, on February 23, 2015, the monitor submitted and Judge Torres approved, a memo that was read by the NYPD at 10 consecutive roll calls in all precincts detailing the reforms ordered by Judge Scheindlin in Floyd. The memo was also posted in police stations and provided to all officers. The document detailed the constitutional standards governing stop and frisks, explicitly prohibited racial profiling by police, ordered officers to include a narrative explanation for stops in their UF250 forms, and ordered the start of a pilot program outfitting police officers with body cameras.
Meanwhile, on March 18, 2015, the City suggested a way for all five police unions to participate in the remedial process. Under the City's approach, the City would share proposals with the unions before providing them to the monitor and the plaintiffs. The unions could then offer their comments, which the City would convey to the monitor. This approach would afford the unions an opportunity to inform the monitor of their viewpoints before the monitor reached conclusions and submitted the final recommendations to the Court. On March 19, 2015, Judge Torres issued an order approving this framework.
On August 7, 2015, the monitor submitted his final recommendations for reforms on racial profiling and street encounters. The new racial profiling policy imposed a categorical prohibition on racial and national origin profiling; it also prohibited other forms of biased policing not covered in the NYPD’s current policy, such as profiling on the basis of religion, gender identity or expression, sexual orientation, and housing status. The new street encounters policy regarding placed clearer legal limits on stops and frisks. It required supervisory review of officer conduct to ensure compliance with the Constitution. On August 24, 2015, Judge Torres approved the final recommendations.
On December 8, 2015, Judge Torres issued an order modifying the remedial order’s requirement that NYPD institute a pilot project in which body-worn cameras would be used for a one-year period. Judge Torres modified the order so that the NYPD would use a randomized experimental design for the body-worn camera pilot program.
On January 24, 2017, the parties reached a settlement of attorneys' fees and costs. The City paid $10,430,000.00 for plaintiffs' counsel fees and $820,000.000 for costs and expenses to class counsel for the period from the beginning of the case to October 31, 2014. The City was ordered to continue to pay counsel fees, costs, and expenses accrued from November 1, 2014 until the Court's jurisdiction in the matter had terminated.
The input process under the Joint Remedial Order ended in April 2017, at which the parties and community stakeholders began discussion of Joint Remedial Process reform proposals. On January 10, 2018, stating that the parties had reached an impasse regarding the Joint Remedial Process, the plaintiffs requested a status conference. Judge Torres ordered on January 29, 2018, that the Facilitator of the Joint Remedial Process submit a draft of his Final Report to the parties. The parties did not reach a consensus on the Joint Process Reforms.
On April 18, the New York Times published an op-ed previously submitted by Plaintiff's counsel which stated that “The problem is the police department suggested that it might oppose reforms that black and Latino New Yorkers are asking for. As much as the department wants to be seen as listening to community members, it doesn’t actually want to be responsive to their needs.”
On May 15, 2018, the Facilitator of the Joint Remedial Process issued the Final Report and Recommendations on the Joint Remedial Process pursuant to the Court's Remedial Order. The Facilitator made fourteen reform recommendations, including: creation of permanent structures for officer conduct feedback; preparation of a monthly NYPD discipline report and increased transparency around police disciplinary processes; body-worn camera use; recording of Level 1 and Level 2 encounters; improved citizen access to stop reports; community engagement; development of a public education campaign; implementation of annual community surveys; adherence to policies regarding youth interactions and cultivation of confidential informants; mental health and disability training; LGBTQ-specific training and community engagement; and extension of the Criminal Justice Reform Act of 2016 to allow civil summons to be the primary trespass enforcement tool; and trauma-informed training.
In their June 8, 2018 comment on the joint remedial process reforms, the plaintiffs requested that the court enter an order requiring the City to implement the Facilitator’s recommendations with certain modifications.
On July 19, 2018, the court ordered the parties to submit a proposal for a pilot program, overseen by the Monitor, to study the electronic recording of first-and second-level police-citizen encounters and record findings on low-level police-citizen encounters. In August, the court further ordered that the proposed program study the use of body-worn cameras (BWCs) in first-level encounters.
On November 20, 2018, Judge Torres issued an order requiring the NYPD to, after consultation with the monitor, "submit for approval a plan to implement 'a program for systematically receiving, assessing, and acting on information regarding adverse findings on the conduct of police officers involving illegal stops or illegal trespass enforcements'" by January 7, 2019.
On January 14, 2019, the City submitted a plan to comply with the court's November 20 order. The proposed plan included gathering information in five categories:
The City stated that the information gathered in these categories would be weighted "as part of a buildup to thresholds which, when crossed, will trigger a broader review of an individual officer at the Risk Management Bureau level with a view toward imposing any additional necessary remedial action." Plaintiffs submitted a response to the submitted plan, highlighting several concerns with the proposal. First, plaintiffs asserted that the proposal did not provide an effective early intervention mechanism; "The City’s proposal fails to present a feedback mechanism to focus resources toward at-risk officers before a problem has major impact on the community." Moreover, plaintiffs contended that the proposed plan lacked the required "community input and perspectives as part of an early intervention system." Finally, plaintiffs asserted that the data should be available to the public.
After the Monitor submitted a proposed pilot program on January 29, 2019, the court approved the pilot program on February 7. The proposed study was "designed to study how electronic documentation and the use of BWCs affect the legality of police-citizen encounters . . . The pilot program will study the effects of observer presence by comparing the behavior of officers while under observation with their behavior while unobserved."
On May 6, the court approved a fee stipulation for the period between February 24, 2017, and May 31, 2018, by which the City agreed to pay attorneys' fees and expenses totaling $1,186,194.54.
On June 14, the Monitor requested the court to enter a confidentiality order, shielding aspects of the pilot program from plaintiffs and the public. Plaintiffs objected to the confidentiality order, stating that the "pilot documents a fundamentally public activity for the purposes of this litigation" and that "Plaintiffs and stakeholders require access to the underlying data." The City and several District Attorney’s Offices, as amici curiae, noted that the confidentiality order presented grave constitutional and statutory concerns. On August 12, the court ordered the Monitor's proposed confidentiality order without modification and without addressing legal or factual issues raised by any of the plaintiffs or amici.
On September 9, plaintiffs filed a motion for reconsideration of the court's confidentiality order, stating that the "Court overlooked relevant facts, controlling law, and the likelihood of a manifest injustice in summarily granting the Monitor’s request for an additional confidentiality order." The court denied plaintiffs' motion for reconsideration on October 25, 2019.
On May 26, 2020, plaintiffs filed an emergency motion for relief, alleging that the NYPD's discriminatory social-distancing enforcement practices in response to the COVID-19 outbreak in New York City violated the court's orders, the NYPD’s Court-approved racial profiling policy, and the Fourth and Fourteenth Amendments. Plaintiffs asserted that 81% of social distancing summonses were issued to black and latinx people - "a rate nearly identical to the racial disparity in stops that led to this Court’s 2013 finding that the NYPD engaged in widespread and systemic Equal Protection – and for which there does not appear to be any plausible race-neutral explanation." Moreover, plaintiffs asserted that NYPD had generally not enforced social distancing in white neighborhoods, "despite large gatherings and persistently crowded parks, bars, and religious schools or ceremonies." Furthermore, plaintiffs alleged that NYPD refused to share information about its policies or practices and did not respond to plaintiffs' requests. Plaintiffs requested that the Monitor to conduct an investigation into the NYPD's social-distancing enforcement practices, an order compelling discovery concerning social distancing enforcements, and an order to show cause why an order should not be issued finding defendants in violation of the court's orders. The plaintiffs also requested "temporarily enjoining any further social distancing enforcement actions by the NYPD pending further order of this Court." Defendant is scheduled to file a response to the emergency motion by June 8.
Following several meetings held in February 2020, on May 28 the parties submitted their plans to implement the early intervention program ordered by the court in November 2018. While the parties agreed on many aspects of the program, there remained some disagreements. On June 2, the court issued an order laying out the details of the program, the manner and scope of information to be collected by the NYPD, and the assessment and intervention mechanisms to be implemented.
The case is ongoing.
Emily Goldman (10/31/2012)
Jonathan Forman (8/15/2013)
Jessica Kincaid (4/1/2016)
Sarah McDonald (8/3/2018)
Aaron Gurley (6/2/2020)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/4339720/parties/floyd-v-the-city-of-new-york/
, (New York)
Abelson, Adam (New York)
Aboushi, Tahanie Ahmad (New York)
Adams, Katherine (New York)
Agro, Jill Kornhauser (New York)
Cabranes, José Alberto (Connecticut)
Cave, Sarah L. (New York)
Droney, Christopher Fitzgerald (Connecticut)
Parker, Barrington Daniels Jr. (New York)
Pitman, Henry B. (New York)
Scheindlin, Shira A. (New York)
Torres, Analisa Nadine (New York)
Walker, John Mercer Jr. (New York)
See docket on RECAP: https://www.courtlistener.com/docket/4339720/floyd-v-the-city-of-new-york/
Last updated Aug. 30, 2023, 5:18 p.m.
State / Territory: New York
Filing Date: Jan. 31, 2008
Case Ongoing: Yes
All persons who since January 31, 2005, have been, or in the future will be, subjected to NYPD's policies/practices of stopping and frisking in the absence of a reasonable, articulable suspicion of criminal activity, including on the basis of being black or Latino.
Public Interest Lawyer: Yes
Filed Pro Se: No
Class Action Sought: Yes
Class Action Outcome: Granted
Causes of Action:
Prevailing Party: Plaintiff
Nature of Relief:
Source of Relief:
Form of Settlement:
Amount Defendant Pays: $15,244,810
Order Duration: 2013 - None
Content of Injunction: