NEW YORK—The NYPD has frequently stopped people outside of buildings in the Bronx without reason, violating the Fourth Amendment, ruled a U.S. district court judge Tuesday.
Judge Shira Scheindlin ordered a preliminary injunction against the NYPD for a program called Operation Clean Halls, in which landlords granted police officers access to their buildings to help crack down on crime and drug use.
The ruling orders the NYPD to immediately cease performing trespass stops outside TAP buildings in the Bronx “without reasonable suspicion of trespass.” TAP, or Trespass Affidavit Program, is another name for Operation Clean Halls.
“While it may be difficult to say where, precisely, to draw the line between constitutional and unconstitutional police encounters, such a line exists, and the NYPD has systematically crossed it when making trespass stops outside TAP buildings in the Bronx,” she wrote in the ruling.
The NYPD has systematically crossed [the line].
—Shira Scheindlin, judge
A court interpretation of the Fourth Amendment says police can stop and search people when they have “reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”
But NYPD officers in the cases examined were unable to provide “articulable facts.”
The case was brought earlier this year by people who have been stopped by police officers in the Bronx outside the Clean Halls buildings. The specific plaintiffs in the case are Black or Hispanic.
Scheindlin issued the preliminary injunction against the stops specifically in the Bronx under the Clean Halls program, not citywide. The NYPD must immediately cease stopping people outside the Clean Halls buildings in the Bronx without reasonable suspicion of trespass.
Based on analysis of police documents by Dr. Jeffrey Fagan, an expert for the plaintiffs, the NYPD recorded more than 1,000 stops in the Bronx in 2011 without any reasonable suspicion. Scheindlin suggests the number may be higher than 2,000.
The ruling suggests the NYPD has not been properly training officers how to legally make stops outside the buildings in the Clean Halls program. That has resulted in cases such as that of J.G, the 17-year old son of plaintiff Jaenean Ligon.
Ligon was cooking chicken one evening and sent her son to the store to get ketchup. Upon his return, as J.G. was about to enter his apartment building, he was stopped by two plainclothes officers and three uniformed officers. They asked him questions such as where he was coming from, where he was going, and what he had in the bag.
J.G. said there was ketchup in the bag. One of the officers started to frisk him after asking him to raise his hands. Another officer “inspected the ketchup,” according to the ruling. J.G.’s ID was also inspected, and his information written down.
His mom, Ligon, told the court that several minutes after her son left she heard her bell ring and “an unfamiliar voice” tell her to come down and identify her son. Ligon ran downstairs thinking J.G. was dead or hurt. When she reached him she was handed the ketchup by a laughing officer.
The stop was unconstitutional, like many others, ruled Scheindlin, because there was no basis for a stop—much less a frisk—including no clarity on whether the officers thought he was trespassing.
The NYPD didn’t provide much evidence opposing the plaintiffs’ evidence, according to the ruling. Part of its defense included the two orders that were rolled out this year, targeting problem areas in stop-and-frisk enforcement, have resolved the problem of unconstitutional stops. Scheindlin said she is open to dissolving the case if the NYPD produces reliable statistics showing that.
Police Commissioner Raymond Kelly said in an emailed statement that the landlords requested the extra level of protection provided through Operation Clean Halls, and officers provide a safer environment.
“The NYPD is fully committed to doing so in a manner that respects the constitutional rights of residents and visitors,” said Kelly. “Today’s decision unnecessarily interferes with the department’s efforts to use all of the crime fighting tools necessary to keep Clean Halls buildings safe and secure.”
An NYPD spokesperson emailed three examples of
arrests made through the program in 2012 where perpetrators were apprehended in or near Clean Halls buildings allegedly carrying illegal guns.
Other evidence that formed into a “persuasive” whole included Bronx Assistant District Attorney Jeannette Rucker, who told the court over several years she was convinced NYPD officers were making unconstitutional stops. Judges were dismissing cases frequently in 2009, and a year later also finding evidence that defendants lived in the building where they were said to be trespassing, according to the ruling.
Judge Scheindlin also ruled that the NYPD must develop and adopt a written policy outlining “the limited circumstances” where it is legal to stop a person outside such a building.
Additionally, the department has to revise its stop-and-frisk training materials and program to include instruction about stopping people legally outside the Clean Halls buildings. Current NYPD training materials on stop and frisk only include a single bullet point in a PowerPoint that the NYPD’s Legal Bureau presents to police officers.
The preliminary injunction means the case isn’t fully closed. The court will hear more arguments, but the case is being consolidated with the closely related and broader ongoing lawsuit regarding stop and- risk, Floyd, et al. v. City of New York. The trial date is in March.
Plaintiffs celebrated the decision. “Today’s decision is a major step toward dismantling the NYPD’s stop-and-frisk regime,” said Donna Lieberman, executive director of the New York Civil Liberties Union, in a statement. Council members involved in trying to rein in or halt stop and frisk, such as Letitia James and Jumaane Williams, also supported the move. James in a statement called it “a major win.”
Williams said in an emailed statement that he supports the Clean Halls program but thinks that with “the NYPD’s overzealous behavior,” the initiative has been degraded.
Eugene O’Donnell, former NYPD officer and Queens assistant district attorney, and current professor at John Jay College of Criminal Justice, said in an email that the ruling says the Clean Halls program “should be mended not ended.”
The judge emphasized that the program doesn’t need to be eliminated, just reconstructed, O’Donnell said. “The police department must take affirmative steps to tailor this program so that it is constitutional.”
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