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Case Name Brown v. Kelly PN-NY-0042
Docket / Court No. 05 Civ. 5442(SAS) ( S.D.N.Y. )
State/Territory New York
Case Type(s) Policing
Attorney Organization Bronx Defenders
Case Summary
On June 9, 2005, a resident of New York City who had been arrested and charged under NY Penal Law § 240.35(1) for engaging in peaceful begging, filed this lawsuit in the Southern District of New York on behalf of himself and others similarly situated. The plaintiff sued the City of New York, the ... read more >
On June 9, 2005, a resident of New York City who had been arrested and charged under NY Penal Law § 240.35(1) for engaging in peaceful begging, filed this lawsuit in the Southern District of New York on behalf of himself and others similarly situated. The plaintiff sued the City of New York, the New York City Police Department, the Bronx District Attorney’s office, and three state defendants--the Chief Judge of the New York State Court of Appeals, the Chief Administrative Judge of the New York Unified Court system, and the Commissioner of the New York State Division of Criminal Justice Services--under 42 U.S.C. § 1983. Represented by The Bronx Defenders and private counsel, the plaintiff alleged that the continued enforcement of statute 240.35(1) was a violation of his rights under the First, Fourth, Fifth, and Fourteenth Amendments of the US Constitution. The plaintiff sought injunctive and declaratory relief to end enforcement of § 240.35(1), as well as money damages for those wrongly arrested and prosecuted under the law.

Section 240.35(1) provided that a person is guilty of loitering when he “loiters, remains or wanders about in a public place for the purpose of begging.” In 1993, the Second Circuit declared this section of the law unconstitutional on First Amendment grounds. See Loper v. New York City Police Dept., 999 F.2d 699 (2d Cir. 1993).

On June 9, 2005, the case was assigned to Judge Shira A. Scheindlin. On June 23, 2005, Judge Scheindlin entered an order enforcing a stipulation by the individual city defendants agreed agreed to cease enforcement of § 240.35(1), dismiss all charges and summonses pending under the law, release those in custody solely for violating the law, and vacate all warrants relating to charges under it.

The remaining parties began discovery in 2006. On November 22, 2006 the Judge Scheindlin granted the plaintiff leave to amend the complaint. The original named plaintiff in the case had accepted the defendants' offer of judgment made on November 9, 2006. Prior to releasing his claims against the defendants, the plaintiff amended the complaint to add new named plaintiff and putative class representative. The first amended complaint was filed on November 27, 2006.

On December 5, 2006, the court entered judgment in favor of the first named plaintiff according to the defendants' offer of judgment. The defendants agreed to pay the named plaintiff $100,001 plus reasonable attorneys' fees accrued to that date. The first named plaintiff's claims were thus released, though negotiation of attorneys' fees continued between him and the defendants until they were resolved, in the amount of $280,388.28 in February 2008. The case proceeded with the new named plaintiff.

While this was occurring, there were concerns about the defendants' compliance with the court's order of June 23, 2005 that had directed the defendants once and for all to cease enforcing § 240.35(1). In light of the defendants' continuing failure to comply with court orders, the plaintiff requested leave to a file a contempt motion against the defendants on November 9, 2006. At a pre-motion conference held on November 29, 2006, the defendants promised to undertake a plan of action that would curb the continued enforcement of § 240.35(1). In reliance upon defendants' assurances that plaintiff was going to get the necessary relief, the Court denied plaintiff's request to move for a judgment of contempt.

Soon thereafter, the Court entered an order on December 14, 2006 directing the defendants to take the additional remedial steps they had promised in order to halt the unconstitutional enforcement of § 240.35(1). These steps included sending letters to offending officers after they improperly issued a summons for a violation of § 240.35(1), warning officers that future enforcement of § 240.35(1) may lead to disciplinary action against them, and providing members of the NYPD with additional training to reinforce that § 240.35(1) was unconstitutional and not to be enforced.

On February 2, 2007, the plaintiff moved to certify class and amend the complaint. The plaintiff sought certification of the following classes: 1) a plaintiff class consisting of "all persons who have been or will be arrested, charged, or prosecuted for a violation of § 240.35(1) in the State of New York from October 7, 1992 onward;" 2) a plaintiff subclass of "all persons arrested, charged, or prosecuted for a violation of § 240.35(1) by employees, agents, or representatives of New York City from October 7, 1992 onward;" and 3) a defendant class of "all political sub-divisions and all law enforcement/prosecutorial policy-making officials in the State of New York with authority to arrest, charge, or prosecute a person with a violation under New York Penal Law." The proposed second amended class action complaint included five additional named plaintiffs. The parties engaged in discovery with respect to class certification, and reached a discovery dispute regarding production of the putative class representatives' medical records and other records reflecting any other disabilities (drug treatment records, social security records, etc.). Judge Scheindlin granted the plaintiff's motion for a protective order on April 16, 2007. 2007 WL 1138877.

On February 26, 2007, the plaintiff informed the court that the December 14, 2006 order, an additional 23 unlawful bench warrants and 96 unlawful summonses had been issued to New Yorkers between November 1, 2006 and February 21, 2007. In light of this new information, the Court granted the plaintiffs leave to file a motion for a judgment of civil contempt and the imposition of coercive sanctions against the defendants.

The motion outlined the continued unlawful enforcement of the statue: despite the clear command of the June 23, 2015 order, from July 2005 to January 2007, NYPD officers issued 772 summonses under § 240.35(1). From January 2007 through March 2007, members of the NYPD issued summonses under the statute at a rate of approximately one every other day. Since the June 23, 2005 order, the NYPD issued 51 arrests under the statute following the June 23, 2015 order, and the New York City District Attorneys' offices brought 55 prosecutions under the statute.

The court denied the plaintiffs' motion for a judgment of civil contempt on May 31, 2007. Judge Scheindlin's opinion found that there was “no question that for a long period of time, from approximately July 2005 to December 2006, Defendants were in contempt of this Court’s June 23, 2005 Order.” 2007 WL 1573957, at *3. However, she found that during December 2006, the defendants had “turned their behavior around,” and while “this came approximately seventeen months late," punitive civil sanctions would “serve no purpose” in light of the defendants’ recent efforts to comply. Id. at *4-5. She stated that as the problem with continuing enforcement is that some individual patrol officers have “yet to grasp the idea,” the sanctions the plaintiffs requested would be “more of a fine than a deterrent” and would not likely prevent one of the outliers from issuing an unlawful summons. Id. at *5. Despite declining to issue a judgment of contempt, the court expressed its commitment to monitoring the issue and awarded the plaintiff attorney’s fees in acknowledgment of the role that the plaintiffs' persistence and the “threat of contempt” played in changing the defendants’ behavior:

The steady rate of unlawful enforcement of section 240.35(1) that has persisted for almost thirteen years after Loper is simply unacceptable. Defendants' long-standing apathy towards this problem was offensive. Nevertheless, the Court is convinced that defendants have made avoiding contempt a top priority and are now striving to fully comply with the June 23, 2005 Order. Certainly, this includes treating the issuance of a single summons under section 240.35(1) as a serious problem deserving urgent attention. To this end, the Court is prepared to revisit the issue of defendants' diligence every two months, until every outstanding bench warrant has been vacated and no more summonses for violations of an unconstitutional statute are issued . . .

Until December 2006, defendants' failure to comply was unreasonable and harmful; but for plaintiff's persistence in monitoring and investigating the continued enforcement of section 240.35(1), defendants' noncompliance would have continued indefinitely. It is also clear from the record that but for the specter of contempt—precipitated by plaintiff's repeated request to file this motion—defendants would not have taken the actions that saved them from coercive sanctions. Plaintiff is thus entitled to reasonable costs and attorneys' fees for its efforts with respect to this motion.
Id. at *6.

On July 24, 2007, the court certified class, granting the plaintiffs' motion for certification of the state-wide injunctive class, the city-wide damages subclass, and the state-wide defendant class. 244 F.R.D. 222. The court also granted leave to amend the complaint. The second amended class action complaint added the six additional named plaintiffs and class representatives, added nine individual police officer defendants, supplemented the allegations against the defendants, and added a cause of action for violations of the Equal Protection Clause of the U.S. Constitution. The defendants appealed the district court's order granting the plaintiffs' motion for class certification to the United States Court of Appeals for the Second Circuit.

The named plaintiff was awarded attorney's fees in February 2008 on the motion for contempt in the amounts of $48,741. 620 F.Supp.2d 435. In June 2009, Judge Scheindlin ordered the City to release all records of those who were arrested/summonsed/charged under § 240.35(1).

On March 11, 2008, Judge Scheindlin accepted the case Casale v. Kelly (08-cv-02173-SAS) as related to this lawsuit. The plaintiffs in Casale v. Kelly filed a putative class action complaint against the city for continuing to enforce loitering statutes § 240.35(3) and (7), after both were declared unconstitutional. These provisions dealt with loitering for the purpose of engaging in sexual conduct and loitering in a transportation facility without sufficient reason.

In an opinion issued jointly in this case and Casale v. Kelly on April 26, 2010, Judge Scheindlin held the City in contempt of court for failing to cooperate in ceasing the enforcement of § 240.35(1), (3), and (7):
The City of New York, operating principally through the New York City Police Department (“NYPD”), has continuously enforced three unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary. While arrests, summonses, and prosecutions under the void statutes generally have diminished over time, the City’s description of its anti-enforcement efforts as “reasonably diligent and energetic” simply does not comport with reality. Over time, the City has implemented a variety of measures to half enforcement of the statutes. However, the City has done little on its own initiative or with reasonable conviction and speed to end the illegal enforcement; indeed, the City has actively dragged its feet. Year after year, the Court and plaintiffs have pushed and prodded the City into meaningful action. The City’s obstinance and uncooperativeness throughout the present actions is offensive to the rule of law. The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system. More disturbing still, it appears that the laws—which target panhandling, remaining in a bus or train station, and “cruising” for sex—have been enforced particularly against the poor and gay men.
710 F.Supp.2d 347, 350.

The order subjected the City to a system of sanctions in which each future enforcement of the void laws would result in a progressively higher fine (beginning at $500). Finding that the contempt citation and monetary sanction should "furnish sufficient incentive" for the City not to enforce the statutes, the court denied the plaintiffs' request for a preliminary injunction that had accompanied their second motion for civil contempt on December 23, 2009. On July 7, 2010, the plaintiffs were awarded attorney's fees in connection with the second motion for civil contempt in the amount of $175,000.

On June 24, 2010, the Second Circuit (Judges Robert D. Sack and Robert A. Katzmann) affirmed the district court's July 24, 2007 certification of the city-wide plaintiff class, but vacated and remanded the certification of the state-wide plaintiff and defendant classes, finding that the district court abused its discretion in certifying those classes. 609 F.3d 467 (2d Cir. 2010).

The parties began settlement discussions in July 2010. On July 30, 2010, the New York State Legislature repealed N.Y. Penal Law §§ 240.35(1), (3), and (7). A stipulation and order of settlement between the parties in this case and in Casale v. Kelly was entered on February 6, 2012. The settlement agreement created a $15 million class fund for those who were arrested, charged, or summonsed under the three void sections of the loitering statute. The fund also included attorney's fees and $25,000 to each of the named plaintiffs for services provided to the class. The City was also to vacate, dismiss, and seal all cases charging the statutes and to take continuing measures to cease the statutes' enforcement, including continuing to train police officers on the matter and investigating any attempt to charge the statutes. The settlement agreement was to be in effect and under the court's jurisdiction for two years following the effective date. Following a fairness hearing, the court entered final approval of the settlement agreement on December 21, 2012.

On July 29, 2011, Judge Scheindlin accepted the case Long v. The City of New York as related to this action. The plaintiff in that case was an individual who begged in Times Square holding a sign that said, "Help! I Need Money for Weed!". He was arrested by the NYPD on multiple occasions under the same loitering statute, NY Penal Law § 240.35(1), and sued the City under 42 U.S.C. § 1983. The case settled for $45,000 and $85,000 in attorney's fees.

A final judgment was entered in this case on January 3, 2012. Late claimants continued to seek settlement funds based on good cause through 2014. In April 2015, the remaining $160,000 in the Class Fund was given to four non-profit organizations dealing with issues of homelessness.

The case is now closed.

Dan Hofman - 01/28/2016
Sarah McDonald - 08/16/2018

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Issues and Causes of Action
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Constitutional Clause
Equal Protection
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Failure to supervise
False arrest
Over/Unlawful Detention
Pattern or Practice
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Defendant(s) City of New York
Plaintiff Description Homeless NY residents engaged in peaceful begging who were arrested or prosecuted for loitering.
Indexed Lawyer Organizations Bronx Defenders
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Filed 06/09/2005
Case Closing Year 2015
Case Ongoing No
Case Listing PN-NY-0044 : Casale v. Kelly (S.D.N.Y.)
Additional Resources
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Court Docket(s)
PN-NY-0042-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint [ECF# 1]
PN-NY-0042-0010.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Stipulation and Order [ECF# 5]
PN-NY-0042-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Opinion - damages to Wise [ECF# 51]
PN-NY-0042-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Order [Police Reforms] [ECF# 54]
PN-NY-0042-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint [ECF# 63-3]
PN-NY-0042-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
Order - denial of request for more med docs [ECF# 88] (2007 WL 1138877)
PN-NY-0042-0004.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
Denial of contempt of court [ECF# 97] (2007 WL 1573957)
PN-NY-0042-0005.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
Order [Class Certification] [ECF# 112] (244 F.R.D. 222)
PN-NY-0042-0006.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
Opinion and Order [ECF# 147] (710 F.Supp.2d 347)
PN-NY-0042-0008.pdf | WESTLAW| LEXIS | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Opinion [Ct. of App. ECF# 73] (609 F.3d 467)
PN-NY-0042-0012.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
Final Judgment [ECF# 202]
PN-NY-0042-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Scheindlin, Shira A. (E.D.N.Y., S.D.N.Y.) show/hide docs
PN-NY-0042-0003 | PN-NY-0042-0004 | PN-NY-0042-0005 | PN-NY-0042-0006 | PN-NY-0042-0007 | PN-NY-0042-0008 | PN-NY-0042-0009 | PN-NY-0042-9000
Plaintiff's Lawyers Brinckerhoff, Matthew D. (New York) show/hide docs
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-0010 | PN-NY-0042-9000
Kovel, Mariana Louise (New York) show/hide docs
Rosenfeld, Katherine (New York) show/hide docs
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-0010 | PN-NY-0042-9000
Smyth, J. McGregor Jr. (New York) show/hide docs
PN-NY-0042-0001 | PN-NY-0042-0002 | PN-NY-0042-0009 | PN-NY-0042-0010 | PN-NY-0042-9000
Defendant's Lawyers Cardozo, Michael A. (New York) show/hide docs
PN-NY-0042-0002 | PN-NY-0042-0009
Connell, Monica Anne (New York) show/hide docs
Seligman, Rachel Amy (New York) show/hide docs
PN-NY-0042-0002 | PN-NY-0042-9000

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