NYT Editorial Calls Facts In Legal Aid's Davis Case Distressing and Says Police Are Undermining Respect For The Law; Legal Aid's Chief Attorney Calls Decision In Davis An Important Step Forward For Public Housing Residents
TUESDAY, OCTOBER 09, 2012

Federal District Court Judge Shira Scheindlin ruled last week that The Legal Aid Society's Davis case, filed on behalf of nine New York City Housing Authority tenants and their guests who have been illegally stopped and arrested by New York City Police Department officers, may proceed to trial. Steven Banks, the Society's Attorney-in-Chief, called the 84-page decision "an important step forward." In an editorial yesterday, the New York Times called the facts in the Davis case "distressing" and concluded that '[i]n their excessive zeal, the police are undermining respect for the law in the very communities where residents’ cooperation is most needed and abridging the rights of people they are supposed to protect." The NAACP Legal Defense Fund and Paul Weiss Rifkind Wharton & Garrison are co-counsel in the case. The ruling has received extensive media coverage, including the New York Times editorial and news articles in the Wall Street Journal, the New York Law Journal and the New York Times, which are presented below.




The New York Times
Editorial on the Davis Case
October 7, 2012
Stop and Frisk, Part 3

The New York City Police Department has come under criticism in recent years for arresting people for trespassing in public housing, often for little or no reason. The trespassing arrests are a variation on the city’s broader, and highly controversial, stop-and-frisk program. On Thursday, Judge Shira Scheindlin of Federal District Court in Manhattan added her voice to the chorus, ruling that a lawsuit challenging police arrests for trespassing in public housing could move closer to trial. The city had tried to have most of the plaintiffs’ claims dismissed.

The message here is clear: Instead of belittling the claims raisd by the nine plaintiffs — eight of whom were arrested under questionable circumstances, some in buildings where they actually live — the city needs to settle these cases and ensure that its policies adhere to Fourth Amendment guarantees of freedom from unreasonable search and seizure.

The lawsuit, known as Davis v. The City of New York, is one of three related cases involving stop-and-frisk that are moving through the federal courts. The broader case charges police with stopping and frisking hundreds of thousands of people a year on the basis of race. The third case was brought on behalf of residents of private apartment buildings who say they were illegally stopped, ticketed or arrested in police sweeps similar to those conducted in public buildings.

The facts set forth in the Davis case were distressing, with plaintiffs accusing the police of arresting them as they were waiting to meet friends in the lobby or simply standing at the elevator. One Upper Manhattan resident, Roman Jackson, said he was talking with a friend in the stairwell when the police arrived and told the two men they were “not supposed” to be there.

Mr. Jackson politely explained that he lived in the building. The two were nonetheless ordered up against the wall, frisked and then arrested. The city tried to have the complaint dismissed on the grounds that Mr. Jackson was loitering. But Judge Scheindlin noted that the loitering rules were so dangerously vague as to be unconstitutional and denied the city’s motion.

In their excessive zeal, the police are undermining respect for the law in the very communities where residents’ cooperation is most needed and abridging the rights of people they are supposed to protect.




The Wall Street Journal
October 5, 2012
By Sean Gardiner

A federal judge rejected the city’s attempt to throw out a lawsuit challenging a controversial public housing law that has sometimes led to people being arrested for loitering and trespassing in their own housing complexes.

Manhattan federal court judge Shira Scheindlin’s Thursday ruling clears the way for a lawsuit filed on behalf of nine New York City Housing Authority tenants and their guests who claim they were illegally stopped, searched and arrested under the policy.

“The ruling is an important step forward and the unlawful stops, frisks and arrests of New York City public housing residents and their guests,” said Steven Banks, attorney-in-chief of the Legal Aid Society, one of the agencies involved in the litigation.

Under NYCHA’s “Trespass Notice Program,” which started in Queens in 2005 and gradually gained citywide implementation by 2007, only residents and their guests are allowed to be in or on the grounds of public housing complexes. The policy has led to thousands of arrests and, city officials contend, a reduction in crime.

However, there have also been complaints from those who say they were arrested even though they had legitimate reasons to be in the housing projects, including from tenants.

In weighing motions by the city, the defendants in this case, to dismiss the suit filed in 2010, Judge Scheindlin wrote, “This lawsuit presents difficult and close questions. The key one is this: are defendants acting within constitutional limits in their presumably sincere efforts to provide a safe environment for the residents of public housing? Or, in their zeal to provide that protection, are they violating the rights of the very residents (and guests) whom they seek to protect?”

The judge made several rulings on the case in her 84-page decision released Thursday. Bank said the one of particular importance was that the NYCHA law regarding loitering by residents is “unconstitutionally vague.”

The signs that the city posts to invoke the law states loitering is not allowed “in lobby, roof, hallway, and stairs,” the judge stated. But for tenants, the judge asked in her ruling, does that mean “may two neighbors, meeting each other in the hallway outside their apartments, talk for fifteen minutes about the American League pennant race? Or would doing so subject them to lawful arrests?”

The case in the lawsuit that addresses the tenant loitering issue involved a man who lived in a NYCHA building on St. Nicholas Avenue in Harlem who was arrested in January 2009 along with a female friend for sitting on the landing of the stairwell that leads to the roof. The man, Roman Jackson, said when the police asked him what they were doing there, he responded that he was just talking with his friend.

The police ordered them against the wall and frisked them. Jackson had no identification on him. He told the officers his identification was in his apartment and offered to retrieve it for them. But the officers told Jackson and his friend they were trespassing and arrested them. Jackson responded that he didn’t understand how he could be trespassing in his own home, according to court papers.

The judge wrote that it’s undisputed there was a sign in the building warning that “loitering and trespassing in lobby, roof, hallway and stairs is not permitted.” Even so, she wrote, “the NYCHA rule as posted cannot reasonably be read to mean that residents are prohibited from ever being there.” She reasoned that if that were the case residents taking part in a building security watch that sets up a sign-in table in the lobby could ostensibly be arrested for loitering.

Brenda Cooke, a senior city Law Department lawyer, wrote in a statement, “we respectfully disagree with the court’s loitering analysis, which fails to distinguish between, on the one hand, trespassing in a prohibited area like a rooftop or boiler room and on the other hand, lingering and/or loitering in common areas in violation of NYCHA’s rules.”

Banks said it’s expected that this lawsuit will be soon certified as class-action lawsuit, potentially involving thousands of plaintiffs.

Judge Scheindlin is hearing two other lawsuits that challenge an NYPD tactic know as stop, question and frisk. Last year,police made more than 684,000 stops in which they questioned those officers say they suspected of wrong doing. Just over half those people were frisked too. The tactic has received much public criticism over the years because it has traditionally produced a small percentage of arrests while overwhelmingly targeting black and Hispanic men. Last year, only about 12% of those stopped were charged with crimes and approximately 90% of the stops involved blacks or Hispanics.




Judge allows suit over NY police tactics in public housing
10/5/2012
By Basil Katz
NEW YORK, Oct 4 (Reuters)

A lawsuit by a group of black and Latino New York City public housing residents who say police violated their civil rights may proceed to trial, a U.S. judge ruled on Thursday.

The case, filed in 2010, is one of three proposed class action lawsuits before Manhattan Federal Judge Shira Scheindlin. All three suits say the New York Police Department's controversial crime-fighting tactic known as "stop and frisk" improperly targets minorities.

The plaintiffs argue that their encounters with police are representative of a systemic problem, and that the case should be granted class action status to encompass the 400,000 mostly non-white, New York public housing residents.

The NYPD has strongly defended the tactic, arguing it has been critical in taking guns off the streets and achieving a historic drop in crime rates. The police deny that race or quotas motivate stops and say they are stopping people considered suspicious.

In an opinion on Thursday, Scheindlin denied the city's bid to toss claims by eight individual plaintiffs who claim they were unlawfully stopped, searched or arrested by police patrolling New York City Housing Authority (NYCHA) buildings.

A ninth plaintiff, Eleanor Britt, was never stopped or arrested, but alleged her rights had been violated.

"It is an important first step because the court is clearly rejecting the city's claims that there is no basis for litigating the lawsuit," said Steven Banks, chief lawyer for the Legal Aid Society, which helped bring the case.

The judge did not allow all of the plaintiffs' claims to proceed, tossing out some discrimination claims and refusing to rule on other issues at this time.

"That some claims made by tenants and their guests regarding how the NYPD patrols NYCHA buildings were not dismissed does not mean that such patrols are indeed unlawful or that the NYPD's measures to insure that they are lawful are inadequate," city attorney Brenda Cooke said in a statement.

In her opinion, Scheindlin said the case raises questions "involving matters of grave public concern." She questioned whether police officers, in their zeal to provide protection, are "violating the rights of the very residents (and guests) whom they seek to protect?" The judge also found that a NYCHA sign that notifies residents and visitors that "trespassing and loitering" in the "lobby, roof, hallway and stairs" is prohibited is unconstitutionally vague because, if read literally, it also would prohibit activities that are perfectly innocent, such as waiting for a taxi to arrive.

The city said it disagreed with the judge's analysis.

For the City: Brenda Cooke, Assistant Corporation Counsel, New York City Law Department.

For the plaintiffs: Nancy Rosenbloom of The Legal Aid Society, Daniel Leffell of Paul, Weiss, Rifkind, Wharton & Garrison and Johanna Beth Steinberg of the Naacp Legal Defense & Educational Fund.




Claims of Stop and Frisk in City Buildings Go Forward
By Mark HamblettAll Articles
New York Law Journal
October 5, 2012

[ Southern District Judge Shira Scheindlin (See Profile) yesterday denied the city's request for summary judgment against nine individuals claiming unlawful stops, frisks and arrests by New York City Police in the city's housing authority buildings. Issuing an 84-page opinion in the putative class action Davis v. The City of New York, 10 Civ. 0699, Scheindlin said Fourth Amendment claims based on the failure to satisfy the requirement that police make stops only based on reasonable suspicion of criminal activity could proceed. The judge did grant summary judgment for the city on some non-Fourth Amendment claims. Assistant Corporation Counsel Brenda Cooke yesterday took issue with Scheindlin's criticism of stops and arrests of building residents for loitering. "We respectfully disagree with the court's analysis, which fails to distinguish between, on the one hand, trespassing in a prohibited area like a rooftop or a boiler room and on the other hand, loitering in common areas in violation of NYCHA's rules," Cooke said. "That some claims made by tenants and their guests were not dismissed does not mean that such patrols are unlawful or that the NYPD's measures to insure that they are lawful are inadequate," Cooke added.

Johanna B. Steinberg, assistant counsel of the NAACP Legal Defense & Education Fund called the ruling "an important decision that rejects the city's attempt to deny our clients claims regarding being stopped and arrested by the NYPD on NYCHA property."

Steven Banks of the Legal Aid Society said the next phase of the litigation "will focus on the systematic aspects" of the stop and frisk policies. "These nine individuals are representative of the literally thousands of residents and guests" who are part of the class, he said.




October 4, 2012
Loitering Rules in Projects Are Too Vague, Judge Says
By Joseph Goldstein

A federal judge in Manhattan declared on Thursday that the rules against loitering in public housing complexes were unconstitutionally vague, and gave the police too much discretion about whom to arrest.

The ruling by Judge Shira A. Scheindlin of Federal District Court in Manhattan allowed a lawsuit challenging police arrests for trespassing in housing projects to move closer to trial.

The key question of the lawsuit, Judge Scheindlin wrote, is whether the city and the public housing authority are “acting within constitutional limits in their presumably sincere efforts to provide a safe environment for the residents of public housing.”

“Or, in their zeal to provide that protection, are they violating the rights of the very residents (and guests) whom they seek to protect?”

In her 83-page decision, Judge Scheindlin did not attempt to answer that question, but she did reach two conclusions that could raise the threshold before police can make trespassing arrests. She held that the police cannot arrest someone for trespassing “if the only facts known to the police are that the person says she does not live in the building and refuses to say more about her license or privilege to be there.”

And she concluded that signs in public housing prohibiting loitering and lingering are unconstitutionally vague when they become the basis for police arrests of residents.

“As written, the prohibitions do not clearly distinguish between harmful and innocuous activity,” Judge Scheindlin wrote.

Johanna Steinberg, a lawyer with the NAACPLegal Defense Fund, which represents the plaintiffs, said that both of Judge Scheindlin’s findings “were significant developments.” The lawsuit was filed by both the Defense Fund and the Legal Aid Society.

In a statement, a city lawyer, Brenda Cooke, said the judge’s analysis “fails to distinguish between, on the one hand, trespassing in a prohibited area like a rooftop or boiler room and on the other hand, loitering in common areas in violation of Nycha’s rules.”

The judge’s conclusion “does not mean that such patrols are indeed unlawful,” Ms. Cooke said. She added that the Police Department’s measures were also not deemed inadequate.”

In Thursday’s decision, Judge Scheindlin examined the claims of eight people who had been arrested on trespassing charges in public housing, as well as the grandmother of one of those people.

While the judge did reject a number of the plaintiffs’ claims, she allowed seven plaintiffs — most of whom lived in the public housing buildings in which they were arrested — to go forward with their claims of unlawful arrest.

In one case that was allowed to go forward, Lashaun Smith, 34, claimed that he was stopped by the police as he was leaving the Langston Hughes Apartments in Brooklyn, where he had spent the night at a friend’s residence. An officer returned to the apartment where Mr. Smith had stayed to corroborate the story. But Mr. Smith was arrested after the person who answered the door was unable to vouch for him. Judge Scheindlin noted, however, that the person was the younger brother of Mr. Smith’s friend, and that he is blind.

The ruling comes on the heels of a recent policy instituted by the Bronx district attorney’s office; for the last two months prosecutors are no longer moving forward with cases against people stopped at housing projects and arrested for trespassing unless the arresting officer is interviewed to ensure that the arrest was warranted. The police commissioner, Raymond W. Kelly, has since said that the Bronx prosecutor’s concerns appear to be unfounded.