January 14, 2013


Judge Tells NYPD To End Trespass Stops At Bronx Buildings

PBA Says Tactic Meant To Cover for Shortage Of Street Cops


Patrick Lynch; Decries scapgoating     

PATRICK J. LYNCH: Cop shortage the real issue.


In one of three lawsuits she is overseeing that challenge its stop-and-frisk program, a Federal Judge last week ordered the NYPD to immediately cease making stops of possible trespassers outside private buildings in The Bronx unless cops have legal justification.

The order is temporary; U.S. District Judge Shira A. Scheindlin was acceding to a request by the plaintiffs, which include the New York Civil Liberties Union, for a preliminary injunction that would halt the practice while she hears Ligon v. City of New York. The suit challenges the Trespass Affidavit Program, which is aimed at dealing with drug sales and other offenses at privately-owned apartment buildings in high-crime areas.

Foresees ‘Irreparable Harm’

Judge Scheindlin said the plaintiffs had met key tests to win the injunction. First, she wrote, they showed they are likely to win the case. They also demonstrated, she said, that citizens would be “irreparably harmed” if police continued to stop, frisk and question people outside the thousands of buildings enrolled in TAP, formerly known as Operation Clean Hallways, without reasonable suspicion that they are trespassing.

“I am not ordering the abolition or even a reduction of TAP, which appears to be a valuable way of using the NYPD’s resources to enhance the security in voluntarily-enrolled private buildings,” she wrote in her decision, dated Jan. 8. “My ruling today is directed squarely at a category of stops lacking reasonable suspicion.”

While Police Commissioner Raymond W. Kelly sharply criticized the ruling, Patrolmen’s Benevolent Association President Patrick J. Lynch said it highlighted the flaws in a program he claimed was necessitated by a shortage of cops.

“When left to the discretion of a police officer,” he said in a statement, “stop-and-frisk is a lawful and essential tool to ensure the safety of the public and police alike. But the actions at issue are part of a department program specifically designed to compensate for the dangerously low staffing levels imposed on the NYPD by the city’s misguided budget priorities...Perhaps funding will now be made available to safely staff our streets which would allow the NYPD to fulfill its mission without reliance on stopgap programs like this one.”

The police union leader’s comments had echoes of the arguments of many lawmakers, activists and community leaders who question the way the Police Department implements the stop-and-frisk policy: while it can be a useful crime-fighting tool, in too many cases officers don’t follow the legal guidelines set forth by Federal and state courts.

Limits Application

Although the TAP program is citywide, Judge Scheindlin restricted her order to The Bronx. She faulted the department for what she characterized as insufficient efforts to bring TAP under control once legal concerns surfaced in 2010. “NYPD training materials...

continue to misstate the minimum constitutional standards for making stops,” she wrote. She said she would propose additional remedies in conjunction with another stop-and-frisk-related suit, Floyd v. City of New York, that is also in the trial phase.

Mr. Kelly contended, “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.” He referred to “doormen who routinely challenge visitors to apartment buildings” and said Clean Halls was an effort “to provide a modicum of safety for less-prosperous tenants.” He said the NYPD was committed to respecting the constitutional rights of residents and visitors.

“We disagree with Judge Scheindlin’s interpretation of well-established case law, and we are reviewing the decision,” said the city’s chief lawyer, Michael A. Cardozo. “The decision proposes remedial steps that would place an unacceptable burden on the NYPD to adopt additional training, supervision, monitoring and reporting requirements. 

‘Adequate Steps on Legality’

“We believe that court testimony demonstrated the NYPD already has more than adequate safeguards in place to ensure that its patrols of Clean Halls buildings are lawful,” he continued. “Indeed, the plaintiffs conceded that the department’s own training, supervision and monitoring programs provided the ‘template’ for the relief the plaintiffs were seeking. Moreover, we disagree that the plaintiffs established any systemic flaws in the NYPD’s policing efforts in and around Clean Halls buildings. Under the circumstances, there is no basis for Federal court intervention.”

Civil-liberties advocates took the opposite view. “Today’s decision is a major step toward dismantling the NYPD’s out-of-control stop-and-frisk regime,” said NYCLU executive director Donna Lieberman.

“If New York City has any sense, it will use this ruling as an opportunity to start a wholesale reform of stop-and-frisk,” said NYCLU associate legal director Christopher Dunn.

“Today’s ruling confirms what hundreds of thousands of New Yorkers already know

—that NYPD officers routinely stop New Yorkers without the reasonable suspicion required by the Fourth Amendment,” said Vincent Warren, executive director of the Center for Constitutional Rights, which is involved in the Floyd suit.

‘NYPD Crossed Line’

In her 156-page decision, Judge Scheindlin wrote that “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 while making trespass stops outside TAP buildings in The Bronx.”

She wrote, “As interpreted by the courts, the Fourth Amendment prohibits arrest without probable cause, but allows the police to ‘stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause.’”

The officer “must be able to articulate something more than an inchoate and unparticularized suspicion or hunch,” she wrote. Several factors can combine to create the reasonable suspicion, she said.

However, she wrote, “an individual observed exiting or entering and exiting a TAP building does not establish reasonable suspicion of trespass, even if the building is located in a high-crime area, and regardless of the time of day...‘Furtive movement’ is a problematic basis for a trespass stop, especially when it is offered as a stand-alone justification. If an officer is unable to articulate anything more specific than that a person displayed ‘furtive movement,’ including anything about the person’s furtive movement that suggested trespass,” that’s insufficient for reasonable suspicion, she said.

In-House Misapprehension?

She cited a series of NYPD Legal Bureau focus groups that showed Sergeants and Lieutenants “believed it was legal to approach and question, if not stop, anyone in a TAP building even without a reason for doing so.”

Judge Scheindlin said the additional relief she was considering in conjunction with the Floyd case could include a mandate that the NYPD develop a formal, written policy on the requirements for stopping a person on suspicion of trespass outside a TAP building, supervisory review of every report filed on a trespass stop, and a revision of training materials.

Mr. Lynch said, “We welcome any training that will allow our members to better perform their jobs, but reject efforts to hold our members responsible for management’s poorly-conceived programs.”