Davis v. City of New York
Davis v. City of New York
Opinion of the Court
OPINION & ORDER
I. INTRODUCTION.......................................................332
II. BACKGROUND.........................................................335
III. LEGAL STANDARD FOR SUMMARY JUDGMENT........................337
IV. MONELL LIABILITY...................................................337
V. DISCUSSION...........................................................339
A. Fourth Amendment Claims Against the City.............................339
1. Plaintiffs’ Claim of an Unconstitutional Policy........................342
a. Plaintiffs’ Motion.............................................343
i. Plaintiffs’ Challenge to 10 23 Arrest Policy.................344
b. The City’s Motion.............................................347
2. Plaintiffs’ Claim of an Unconstitutional Custom and Practice...........349
a. Widespread Practice..........................................351
i. Documentary and Testimonial Evidence ...................351
ii. Dr. Fagan’s Analysis....................................352
b. Deliberate Indifference........................................355
B. Fourteenth Amendment Equal Protection Claims Against the City.........359
C. Title VI Claims Against the City.......................................364
D. Section 1981 Claims Against the City...................................366
E. FHA Claims Against the City .........................................367
F. NYSC Article I Section 12 Claims Against the City.......................368
G. Race Discrimination Claims Against NYCHA............................369
H. USHA Claims Against NYCHA........................................370
VI. CONCLUSION..........................................................373
I. INTRODUCTION
This case, filed in 2010, is one of three cases currently before this Court challenging aspects of the City of New York’s “stop and frisk” practices.
As the Supreme Court of the United States has repeatedly affirmed, “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ”
In the years since Terry, the Supreme Court and the Second Circuit have developed and refined the balance under the Fourth Amendment “ ‘between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.’ ”
This case illustrates the tensions between liberty and security in particularly stark form, because it deals with police practices in and around the home, where the interests in both liberty and security are especially strong.
[Wjhenever I have an opportunity to talk to someone in law enforcement who might listen, my question to them is: Suppose I came into your neighborhood tonight and you were in civilian attire and you were on your way to the store to get milk and cookies for your kids, and I stopped you the way that some of*334 your personnel do, what would you do? How would you feel about that?
When this type of practice is instituted and done to people on a regular basis ... I use the term “penal colony,” it’s almost like we have been colonized for a decade.9
At the same time, many NYCHA tenants have expressed a desire for greater security services from the police, including “more officers on foot patrol like we used to have when officers walked around, knew residents and built relationships with them.”
This case is solely concerned with whether the NYPD’s trespass enforcement practices in NYCHA buildings violate the Constitution, or other laws. If so, the practices must stop, no matter how effective they may be. As the Supreme Court recently noted, “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.”
It is against this backdrop that I address plaintiffs’ and defendants’ motions for summary judgment. The parties agreed to brief these motions in two parts. The first part, adjudicated in October 2012, addressed the individual circumstances of plaintiffs’ arrests and tenancies.
For the reasons set forth below, the parties’ motions for summary judgment are granted in part and denied in part. A summary of the Court’s decisions appears in the Conclusion to this Opinion.
I begin by offering a brief summary of the procedural background to plaintiffs’ pending claims against the City and NY-CHA. Plaintiffs’ Amended Complaint identified the putative plaintiff class in this case as consisting of two overlapping subclasses, the “arrested plaintiffs” and the “resident plaintiffs.”
Prior to the filing of the Amended Complaint, nine of the named plaintiffs accepted offers of judgment from the City pursuant to Federal Rule of Civil Procedure 68, but continued to assert their claims against NYCHA: Anderson, Cooper, Davis, Jones, Larregui, Suarez, Turner, David Wilson, and Geneva Wilson.
In the Amended Complaint, plaintiffs brought the following claims:
(1) The arrested plaintiffs who had not accepted offers of judgment from the City (Evans, Frederick, Jackson, Johnson, Littlejohn, Osorio, Smith, and Washington) brought Fourth Amendment, New York State Constitution (“NYSC”) article 1 section 12 (which guarantees security against unreasonable searches and seizures), and respondeat superior claims against the City.19 Plaintiffs also alleged violations of resident plaintiffs’ Fourth Amendment rights, but did not plead a claim based on these violations.20
(2) The resident plaintiffs brought claims against the City and NYCHA under Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act” or “FHA”), the United States Housing Act (the “USHA”), the Civil Rights Act of 1866 (42 U.S.C. § 1981, or “section 1981”), and the New York State and City Human Rights Laws (the “NYSHRL” and “NYCHRL”).21
(3) All plaintiffs brought claims against the City and NYCHA under the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (“Title VI”), and NYSC article 1 section 11 (which guarantees equal protection).22
As a result, the following claims from the original three categories of claims, above, remained viable after the first round of summary judgment briefing: First, the remaining arrested plaintiffs are Evans (trespass stop and arrest), Frederick (trespass stop and arrest), Jackson and Johnson (trespass arrests), Littlejohn (trespass stop and arrest), Osorio (trespass stop), Smith (trespass stop and arrest), and Washington (trespass stop and arrest). These plaintiffs maintain Fourth Amendment, Fourteenth Amendment equal protection, NYSC article 1 sections 11 and 12, and respondeat superior claims against the City.
“Summary judgment is designed to pierce the pleadings to flush out those cases that are predestined to result in a directed verdict.”
“[T]he burden of demonstrating that no material fact exists lies with the moving party ....”
In deciding a motion for summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
IV. MONELL LIABILITY
42 U.S.C. § 1983 (“section 1983”) creates “ ‘a species of tort liability’ ” for, among other things, certain violations of constitutional rights.
One way to establish the existence of a municipal policy is through a showing of “deliberate indifference” by high-level officials. “‘[W]here a policy-making official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official’s inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.’ ”
Recognizing that “deliberate indifference” is “a stringent standard of fault,” the Second Circuit requires “that the policymaker’s inaction was the result of ‘conscious choice’ and not ‘mere negligence.’ ”
V. DISCUSSION
A. Fourth Amendment Claims Against the City
Both Davis I and the preliminary injunction opinion in Ligón included detailed discussions of the law of seizures.
While the Supreme Court explicitly refrained from determining whether a seizure occurred in Bostick,
The Second Circuit has held that the following factors are indicative of a “seizure,” a term that encompasses both Terry stops and arrests:
the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person’s personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room.62
In Ligón, I noted two examples of police encounters that the Second Circuit held to be Terry stops, despite their arguably low level of coercion:
The Second Circuit has held ... that a stop took place where an officer twice ordered a person to “hold on a second,” and after the second order the person stopped. The Second Circuit also held that a stop occurred where an officer pointing a spotlight at a person said, “What, are you stupid? Come here. I want to talk to you,” and then told the person to show his hands.63
In Davis I, the City of New York conceded, and I held, that a person was subject to a Terry stop when he encountered an officer in a stairway, the officer asked if he lived in the building, the officer asked for his ID, and then the officer asked him to step out of the stairwell and into the lobby.
In Ligón, I held that a person was subject to a Terry stop when a patrol car pulled in front of the building he was trying to leave; the officer caused the person to stop by asking him pointed questions designed to elicit an incriminating response; the officer asked for the person’s ID and took it; and the officer told the person and his companions that they could not stand in front of their building.
In sum, the test for whether a Terry stop has taken place in the context of a police encounter is whether a reasonable person would have felt free to terminate the encounter.
1. Plaintiffs’ Claim of an Unconstitutional Policy
The City and plaintiffs have both moved for summary judgment on plaintiffs’ claim that the City’s written trespass enforcement policies (as opposed to the City’s unwritten practices) violate the Fourth Amendment. I will discuss plaintiffs’ motion first, and then turn to the City’s motion. For the reasons stated below, both
a. Plaintiffs’ Motion
Plaintiffs’ motion argues that it is undisputed that the City’s policy, as embodied in Interim Order 23 of 2010 (“IO 23”) and associated training materials, instructs NYPD officers that they may do the following: “without reasonable suspicion or probable cause, NYPD officers can command people to affirmatively establish their right to be in a NYCHA residence or leave the premise, and then arrest those who refuse to comply.”
The City presents plaintiffs’ challenge to the stop and arrest policies of IO 23 as a facial rather than as-applied challenge.
i. Plaintiffs’ Challenge to 10 23 Arrest Policy
The City correctly argues that plaintiffs lack standing for their facial challenge of 10 23’s arrest policy, because no plaintiff has been subjected to the kind of arrest that plaintiffs contest.
“To establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’ ”
10 23 states that upon encountering “persons who may be violating Housing Authority rules and regulations, including potentially unauthorized persons within NYCHA property,” officers are to “[approach the person(s) and ask: (1) If he or she lives in the building[;] (2) If he or she is visiting someone in the building[;] (3) If he or she has business in the building.”
Plaintiffs have standing to challenge the stop policy in 10 23, based on plaintiffs’ allegations and evidence of having been personally stopped under the policy, and plaintiffs’ continued risk of such stops.
Plaintiffs offer no evidence in their facial challenge that it is impossible for a police officer to ask the kinds of questions and make the kinds of requests described in IO 23 in such a way that a reasonable person would feel free to terminate the encounter.
For the foregoing reasons, plaintiffs’ motion for summary judgment on the unconstitutionality of 10 23’s stop policy is denied.
b. The City’s Motion
The City moves for summary judgment on plaintiffs’ claim that the NYPD has a policy of making unconstitutional stops or arrests for trespass on NY-CHA property.
The City’s motion for summary judgment is also denied with regard to the NYPD’s trespass arrest policies in NYCHA buildings. While plaintiffs lack standing to challenge the constitutionality of the conjectural type of trespass arrest described above — that is, an arrest based solely on refusing to answer questions and refusing to leave after being requested to do so by a police officer — plaintiffs have also argued that the NYPD’s trespass enforcement policy is unconstitutional because it “permits the arrest of NYCHA residents and their guests just for being present in areas designated as ‘prohibited’ by NYCHA, such as roofs and roof landings, without adequate notice.”
In Davis I, I held that the City was not entitled to summary judgment on Jackson’s and Johnson’s Fourth Amendment claims based on the circumstances of their arrest, because a reasonable juror could find that their arrest lacked probable cause.
Plaintiffs have offered sufficient evidence to create a genuine issue of material fact as to whether the NYPD has a policy of arresting the residents of NYCHA buildings for trespass in areas that lack the requisite “conspicuously posted rules or regulations” defining them as prohibited areas.
The Constitution does not prevent NY-CHA from prohibiting residents from entering certain areas of its buildings, such as roofs and roof landings, nor does it prevent the NYPD from arresting residents for trespassing into those areas. The Constitution does, however, require that criminal statutes, and any rules or regulations they incorporate, “ ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.’ ”
The City’s motion for partial summary judgment on plaintiffs’ claim of an unconstitutional trespass arrest policy in NYCHA buildings is therefore denied.
2. Plaintiffs’ Claim of an Unconstitutional Custom and Practice
The preceding sections addressed the parties’ motions for summary judgment on plaintiffs’ claim that the City bears Monell liability for its express trespass enforcement policies in NYCHA buildings. I now turn to plaintiffs’ claim that the City bears Monell liability for its trespass enforcement practices in NYCHA buildings. Plaintiffs argue (1) that the
As an initial matter, the implementation of 10 23 and its associated training after the commencement of this litigation creates complications regarding the temporal scope of plaintiffs’ claim. Some of plaintiffs’ evidence of unlawful stops and arrests predates 10 23, while other evidence postdates the policy. In the Ligón preliminary injunction hearing, I addressed a similar issue involving the even more recent implementation of new policies and training. In that case, I conducted a two-stage analysis. First, I analyzed plaintiffs’ evidence of deliberate indifference arising prior to the new policies and training. Second, I analyzed whether defendants had rebutted plaintiffs’ evidence of deliberate indifference based on the recent steps taken by the NYPD.
A two-stage analysis may also be appropriate here. I reserve decision on that issue, however, because plaintiffs have raised a genuine issue of material fact as to whether IO 23 and its associated training significantly altered the NYPD’s trespass enforcement practices in NYCHA buildings.
a. Widespread Practice
i. Documentary and Testimonial Evidence
Plaintiffs offer various forms of documentary and testimonial evidence supporting the conclusion that the City has a persistent and widespread practice of performing unconstitutional trespass stops and arrests in NYCHA buildings. In addition to the testimony of named plaintiffs discussed in Davis I, plaintiffs’ evidence includes the following:
(1) According to plaintiffs, the City’s Civilian Complaint Review Board (“CCRB”) became concerned about complaints that officers were stopping people without reasonable suspicion in and around NYCHA buildings. In many cases, the officers stated that they could stop anyone inside a NYCHA building. The CCRB conducted a study that revealed substantiated complaints regarding suspicionless stops in and around NYCHA and TAP buildings at a thirty-two percent rate, nearly three times the substantiation rate for similar complaints in other locations.
The City does not meaningfully contest these allegations in its brief.
(2) A sample of decline to prosecute forms from various District Attorney’s offices provides further evidence of NYPD officers stopping individuals merely for exiting a NYCHA building.
The City argues that these forms are inadmissible hearsay.
Because the City’s hearsay argument is made in its reply brief, plaintiffs have not yet had an opportunity to respond. In Ligón, I allowed the admission of decline to prosecute forms describing stops outside TAP buildings, as rebuttable evidence of the basis for the stops.
Based on the record at this stage, I am inclined to allow the admission of the decline to prosecute forms in this case as well, based either on the public records exception under Federal Rule of Evidence 803(8)(A)(iii),
(3) According to plaintiffs, the testimony of officers, as well as NYCHA residents and guests, further corroborates the existence of an unconstitutional practice of stops and arrests in and around NYCHA buildings.
ii. Dr. Fagan’s Analysis
Officers are required to complete a UF-250, also known as a “Stop, Question and Frisk Report Worksheet,” after each Terry stop.
Plaintiffs’ expert, Dr. Jeffrey Fagan, has conducted a statistical analysis of UF-250 forms and arrest data between 2004 and 2011.
In support of partial summary judgment, the City argues that “[Dr.] Fagan’s analysis fails to connect any pattern [of constitutional violations] with the alleged constitutional violations at issue here.”
The City also reiterates its longstanding arguments against the use of UF-250 data as evidence of the rough magnitude of unconstitutional stops and arrests.
The City’s remaining arguments were either sufficiently addressed in the Daubert decision regarding Dr. Fagan’s opinions in Floyd,
In sum, based on plaintiffs’ documentary and testimonial evidence, as well as Dr. Fagan’s opinions, a reasonable juror could conclude that the City has engaged in a practice of making unconstitutional stops and arrests in and around NYCHA buildings as part of its trespass enforcement practices, and that this practice is sufficiently persistent and widespread to serve as a basis for Monell liability. Plaintiffs have raised genuine issues of material fact regarding their widespread practice claim. Thus, the City’s motion for partial summary judgment on this claim is denied,
b. Deliberate Indifference
If a jury were to find either that the City has a policy of making un
Drawing all reasonable inferences in favor of plaintiffs, both questions raise triable issues of fact. With regard to notice, a reasonable juror could find that the NYPD had actual notice from numerous sources of a widespread pattern of unconstitutional trespass stops and arrests in NYCHA buildings of precisely the kind that plaintiffs allege in this case. Not only did the City receive notice of the unconstitutionality of its practices through individual CCRB reports and the CCRB study noted above, but plaintiffs have offered evidence that “NYCHA residents and tenant leaders have, for years, publicly complained about the City’s unlawful practices
With regard to whether the City took meaningful efforts to address the risk of harm, plaintiffs bear a heavy burden in establishing the inadequacy of the NYPD’s supervision, discipline, and training of its officers.
Plaintiffs do not dispute that in recent years the City has made various policy and training changes that relate to stops and arrests in NYCHA buildings. The City developed 10 23 and its associated training materials, revised other training materials and procedures, and in 2012 implemented a refresher course at Rodman’s Neck on Stop, Question and Frisk in general.
In evaluating plaintiffs’ claim that the City has displayed deliberate indifference to a widespread practice of constitutional violations, a reasonable juror might also note that the City continues to contest in this litigation whether a constitutionally problematic practice of trespass stops and arrests in NYCHA buildings has ever existed.
Finally, the City argues that plaintiffs have failed to provide evidence of “actual causation,” that is, evidence that “specific deficiencies in the City’s training and/or supervision program(s) actually caused their alleged constitutional deprivations.”
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ deliberate indifference claims, like the City’s motion for summary judgment on plaintiffs’ widespread practice claims, is denied.
B. Fourteenth Amendment Equal Protection Claims Against the City
The Equal Protection Clause of the Fourteenth Amendment prohibits intentional discrimination on the basis of race, not government action that has a disproportionate racial impact.
As noted above, the plaintiffs who maintain Fourteenth Amendment claims against the City are the remaining arrested plaintiffs, and two of the remaining resident plaintiffs, Evans and Littlejohn, who also happen to be arrested plaintiffs. The City argues that all the .resident plaintiffs conceded any equal protection claim by failing to respond to the City’s arguments during the first stage of summary judgment briefing.
proffered concrete evidence showing that since their arrests, they feel less free to come and go from their buildings and to have guests visit them. Evans has testified that police officers referred to her as “nigger” when she was arrested and Littlejohn testified that his friend Washington was also called a “nigger” in Littlejohn’s building while he was attempting to visit Littlejohn.172
Evans and Littlejohn were both arrested as NYCHA residents, and are both African-American.
Turning now to the Monell aspects of plaintiffs’ equal protection claims: with regard to discriminatory purpose, plaintiffs need not prove that the “‘challenged action rested solely on racially discriminatory purposes,’ ”
Because discriminatory intent is rarely susceptible to direct proof, litigants may make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.”178
The consequences of government action are sometimes evidence of the government’s intent: “proof of discriminatory intent must necessarily usually rely on objective factors .... The inquiry is practical. What a legislature or any official entity is ‘up to’ may be plain from the results its actions achieve, or the results they avoid.”
With regard to disproportionate impact, plaintiffs rely primarily on Dr. Fagan’s study.
The City argues that there are nondiscriminatory law enforcement rationales for dedicating disproportionate law enforcement resources to NYCHA buildings.
On the issue of discriminatory purpose, the City offers similar arguments to those
This is clearly not a situation in which the City has taken no remedial steps. Nonetheless, considering the statistical evidence in conjunction with the narrative evidence of significant shortcomings in the ways that the City’s policies have been put into practice, I find that there is a triable issue of fact as to whether the NYPD leadership has been deliberately indifferent to the need to train, monitor, supervise, and discipline its officers adequately in order to prevent a widespread pattern of suspicionless and race-based stops.186
Although plaintiffs’ evidence of discriminatory purpose in the present case is more tenuous than in Floyd, I conclude that a similar analysis ultimately applies. Plaintiffs’ statistical evidence of racial disparities is likely not strong enough to support an inference of discriminatory purpose, standing alone,
First, while there is nothing inherently problematic in the City dedicating disproportionate resources to policing in NY-CHA buildings, and indeed residents may favor such an approach, the City offers no explanation of why it might be desirable or how it might be non-discriminatory to dedicate greater law enforcement attention to NYCHA residences with greater concentrations of African Americans.
Second, plaintiffs argue that “the City was fully aware of residents’ public complaints about its racially discriminatory trespass enforcement activities in NYCHA residences,” but failed to take adequate steps to address those complaints, leading to an inference that it intended the racially discriminatory practices to continue.
Third, and most importantly, as plaintiffs note, the alleged racial disparities in Davis “exist in the context of the NYPD’s long history of biased stop, question, and frisk activity.”
C. Title VI Claims Against the City
Title VI of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
The parties agree that the remaining resident plaintiffs can prevail on their Title VI claim only if they can show that the City is the recipient of federal assistance, and does not merely benefit from that assistance.
Even based on the City’s presentation of the facts, both factors support the conclusion that the City has been a recipient of federal financial assistance for Title VI purposes. First, the City does not contest that under the Memorandum of Understanding (“MOU”) between the City and NYCHA, the City receives funding from NYCHA that NYCHA in turn receives from the federal government under, among other programs, the USHA, 42 U.S.C. § 1437g, and the Public and Indian Housing Drug Elimination Program, 42 U.S.C. §§ 11901 et seq. (“PIHDEP”).
The NYPD is not, like the airlines in Paralyzed Veterans that benefited from federal aid to airports for construction projects, a mere “beneficiary” of federal financial assistance given to a recipient of aid.
Second, the NYPD could have rejected the federal financial assistance envisioned in the MOU. The NYPD was free to avoid the burdens of nondiscrimination by not entering into the MOU, and remains free to reject the federal financial assistance it receives through NYCHA. The City’s position is quite different from that of the airlines in Paralyzed Veterans, who never received “a single penny of the money” distributed to airport operators and therefore could not refuse it.
Based on the preceding analysis, which is based on undisputed facts, I conclude that the City is a recipient of federal financial assistance for Title VI purposes. There is, however, a genuine issue of material fact as to whether the City has violated Title VI by providing police services
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ Title VI claims is denied.
D. Section 1981 Claims Against the City
The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981 (“section 1981”), protects the rights of all persons “to make and enforce contracts” free from discrimination on the basis of race. After the Supreme Court reaffirmed a narrow construction of that provision in 1989,
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (Emphasis added).
Section 1981 “offers relief when racial discrimination ... impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.”
are authorized residents on a lease (that is, a contract) with NYCHA. There is no doubt that [they] have rights under the existing contractual relationship. The question is whether that relationship has been impaired because of racial discrimination.213
I concluded that under federal regulations, as well as the Second Circuit’s recognition of a constitutional protection of public housing residents’ freedom of association, “[b]oth the right to come and go as they please and the right to accommodate guests are material to plaintiffs’ contracts.”
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ section 1981 claims is denied.
E. FHA Claims Against the City
Section 3604(b) of the Fair Housing Act (“FHA”) makes it unlawful to “discriminate against any person in the terms, conditions-, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith.”
To establish a prima facie case of disparate treatment (that is, intentional discrimination) under the FHA, resident plaintiffs “ ‘must present evidence that animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.’ ”
For the same reasons that a reasonable juror could find plaintiffs’ evidence in support of their equal protection claim, discussed above, to be sufficient to show that racial animus was a significant factor in the City’s provision of police services in NYCHA buildings, the City’s motion for summary judgment on the FHA claims of the remaining plaintiffs bringing these claims (Evans and Littlejohn) is denied.
F. NYSC Article I Section 12 Claims Against the City
Plaintiffs now consent to the dismissal of their equal protection claims under Article I section 11 of the New York Constitution as duplicative.
On the other hand, “New York courts will only imply a private right of action under the state constitution where no alternative remedy is available to the plaintiff.”
For the foregoing reasons, the City’s motion for summary judgment on plaintiffs’ NYSC claims is granted.
G. Race Discrimination Claims Against NYCHA
Resident plaintiffs have brought race discrimination claims against NYCHA under a number of laws, including some of those discussed above: Title VI, the FHA, section 1981, and the NYSHRL and NYCHRL.
Plaintiffs’ brief in opposition to NYCHA’s motion for summary judgment on the race-discrimination claims is remarkably lacking in legal argument. Plaintiffs criticize NYCHA for having failed to provide safe and secure premises to its residents, and for empowering NYPD officers to act “with unfettered discretion” as NYCHA’s agents despite NY-CHA’s alleged knowledge that the NYPD’s stop and arrest practices are racially discriminatory.
Even if plaintiffs are able to prove that NYCHA has failed to provide safe and secure premises to its residents, the fact that “over 90% of the affected resident community is African American or Latino”
Plaintiffs have also failed to raise a genuine issue of material fact as to whether NYCHA displayed racial bias by empowering the NYPD to conduct vertical patrols and other services in NYCHA buildings. Plaintiffs’ argument is based on the premise that “the City’s unlawful and discriminatory stop and arrest practices are well-known to NYCHA officials.”
For the foregoing reasons, NYCHA’s motion for summary judgment on plaintiffs’ remaining race discrimination claims is granted.
H. USHA Claims Against NYCHA
In Davis I, I concluded that because 42 U.S.C. § 1437d(i)(2) “gives the resident plaintiffs a right to a lease free from unreasonable terms and conditions, [plaintiffs’] suit alleges an infringement of a federal right actionable under section 1983.”
A dispute of fact exists about whether the “Highlights of House Rules, Lease Terms and Policy” constitutes a lease addendum. There is also a dispute of fact as to whether the provisions in that document — mandating that tenants cooperate with police officers and avoid “lingering” in common areas — are unreasonable. ... Based on my evaluation of the arrest of Jackson and Johnson at the top of the stairwell and the corresponding vagueness of the prohibition against “lingering” in common areas, I am skeptical that NYCHA will be able to prevail at summary judgment. Nevertheless, so that both parties have the full opportunity to present their case, NYCHA’s motion is denied without prejudice and with leave to renew.242
As I suggested in Davis I, the Highlights document is highly ambiguous.
On the other hand, the top of the Highlights document presents the document as containing “requirements” for “NYCHA residents.”
Assuming that a reasonable juror could find that some or all of the Highlights document rules were “contained” in the standard NYCHA. lease for the purposes of the USHA, I now turn to what constitutes an “unreasonable term or condition” under section 1437d(J)(2). At least one court has held that section 1437d(i)(2) “require[s] that lease terms be rationally related to a legitimate housing purpose.”
Plaintiffs argue that two of the rules in the Highlights document are unreasonable. First, plaintiffs argue that the rule prohibiting “lingering” in “the lobby, corridors, and stairwell” and mandating that “[t]he lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor” is excessively overbroad and invites arbitrary or discriminatory enforcement.
NYCHA’s disavowals of the practical significance of the Highlights document provide further. evidence in support of finding that the rules in the document are not contained in the standard NYCHA lease for the purposes of the USHA. Nevertheless, drawing all reasonable inferences in favor of plaintiffs, a reasonable juror could reject NYCHA’s evidence that the Highlights rules have little or. no effect,
VI. CONCLUSION
The City’s, NYCHA’s, and plaintiffs’ motions for summary judgment are granted in part and denied in part:
(1) The City’s and plaintiffs’ motions for summary judgment on plaintiffs’ Fourth Amendment claims are denied, leaving the remaining arrested plaintiffs with viable claims.
(2) The City’s motion for summary judgment on the remaining arrested plaintiffs’ Fourteenth Amendment equal protection claims is denied.
(3) The City’s motion for summary judgment on resident plaintiffs’ Fourteenth Amendment equal protection, Title VI, section 1981, and FHA claims is denied, leaving Evans and Littlejohn with viable claims.
*374 (4) The City’s motion for summary judgment on plaintiffs’ remaining NYSC claims is granted.
(5) NYCHA’s motion for summary judgment on plaintiffs’ remaining race discrimination claims is granted.
(6) NYCHA’s motion for summary judgment on plaintiffs’ USHA claim is denied, leaving all remaining resident plaintiffs (Britt, Evans, Little-john, Jones, and Suarez) with viable claims.
The Clerk of the Court is directed to close these motions [Docket Nos. 226, 240]. A conference is scheduled for April 5, 2013 at 4:30 p.m.
SO ORDERED.
. Floyd v. City of New York, filed in 2008, challenges the NYPD's stop and frisk practices for pedestrians, arguing among other things that the NYPD is systematically violating the Fourth and Fourteenth Amendments to the United States Constitution. See Floyd v. City of New York, 283 F.R.D. 153, 159 (S.D.N.Y. 2012) (granting class certification); Floyd v. City of New York, 813 F.Supp.2d 417 (S.D.N.Y. 2011), on reconsideration, 813 F.Supp.2d 457 (S.D.N.Y. 2011) (granting in part and denying in part defendants’ motion for summary judgment). Ligon v. City of New York, filed in 2012, deals with trespass stops and arrests in and around privately owned buildings enrolled in the Trespass Affidavit Program ("TAP”). See Ligon v. City of New York, 925 F.Supp.2d 478, 545 n. 461, No. 12 Civ. 2274, 2013 WL 628534, at *44 n. 461 (S.D.N.Y. Feb. 14, 2013) (granting plaintiffs' motion for preliminary injunction, but staying relief pending consolidated remedies hearing in Floyd and Ligón).
. See Davis v. City of New York (“Davis I”), 902 F.Supp.2d 405, 408-410 (S.D.N.Y. 2012) (granting in part and denying in part defendants' motions for summary judgment regarding individual plaintiffs' arrests and tenancies).
. Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Accord Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (per curiam) ("The touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). In judging reasonableness, a court balances " 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.’ " Illinois v. Lid
. United States v. Swindle, 407 F.3d 562, 566 (2d Cir. 2005) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)) (certain quotation marks omitted).
. See Davis I, 902 F.Supp.2d at 411 (citing Terry, 392 U.S. 1, 88 S.Ct. 1868).
. Mimms, 434 U.S. at 109, 98 S.Ct. 330 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)).
. Ligon, 925 F.Supp.2d at 540, 2013 WL 628534, at *40 (quoting Terry, 392 U.S. at 10, 88 S.Ct. 1868) (certain quotation marks omitted).
. On liberty and security in the home, see, for example, Florida v. Jardines, - U.S. -, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013) (noting that at the Fourth Amendment's " 'very core’ stands 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion' ” (quoting Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961))); McDonald v. City of Chicago, Ill., - U.S. -, 130 S.Ct. 3020, 3036, 177 L.Ed.2d 894 (2010) (noting that " ‘the need for defense of self, family, and property is most acute' in the home” (quoting District of Columbia v. Heller, 554 U.S. 570, 628, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008))); Georgia v. Randolph, 547 U.S. 103, 115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006) ("We have ... lived our whole national history with an understanding of 'the ancient adage that a man's house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,’ Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (internal quotation marks omitted).”); Payton v. New York, 445 U.S. 573, 583-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (discussing " ‘the sanctity of the home’ " under the Fourth Amendment (quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978))); Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886) (discussing the "indefeasible right of personal security, personal liberty, and private property” against “all invasions on the part of the government and its employees of the sanctity of a man’s home and the privacies of life” (citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765))).
. Excerpts from 3/28/12 Deposition of Reginald Bowman, President of the Citywide Council of Presidents, Exhibit ("Ex.”) 18 to 1/7/13 Declaration of Jin Hee Lee, counsel for plaintiffs ("Lee Decl.”), at 94-95.
. 1/26/12 Declaration of Pamela Thrower, Resident Association President of NYCHA Queensbridge Houses, Ex. 14 to Lee Decl., ¶ 3. Accord 1/26/12 Declaration of Luis Torres, Resident Association President of NYCHA Moore Houses, Ex. 15 to Lee Decl., ¶ 4 ("My residents are constantly complaining to me that the police do not help when they are needed, but, when you do see the police, they are harassing residents for no reason.”).
. Davis I, 902 F.Supp.2d at 409 n. 8 (quoting Fritz Umbach, The Last Neighborhood Cops: The Rise and Fall of Community Policing in New York Public Housing 5 (2010)).
. Heller, 554 U.S. at 636, 128 S.Ct. 2783. I noted in Ligón that “[n]o matter how effective a police practice may be, if it violates the Fourth Amendment, the Constitution requires the government to find other means of achieving its goals.” Ligon, 925 F.Supp.2d at 542 n. 453, 2013 WL 628534, at *41 n. 453.
. See Davis I, 902 F.Supp.2d 405.
. See Amended Complaint ("Am. Compl.") ¶¶ 21-23.
. See id. ¶ 46.
. See id. ¶ 47.
. See id. ¶¶ 46-47, 89-100.
. See id. ¶ 1 n. 1; Davis v. City of New York, No. 10 Civ. 0699, 2011 WL 4946243, at *1 (S.D.N.Y. Oct. 18, 2011) (awarding attorney’s fees to settling plaintiffs).
. See Am. Compl. ¶¶ 237-244 (Fourth Amendment), 281-286 (NYSC article 1 section 12), 287-293 (respondeat superior).
. See id. ¶¶ 240-244.
. See id. ¶¶ 254-259(FHA), 260-265 (USHA), 266-271 (section 1981), 294-302 (NYSHRL and NYCHRL).
. See id. ¶¶ 245-250 (Fourteenth Amendment equal protection), 251-253 (Title VI), 272-274 (due process), 275-280 (article 1 section 11).
. See Davis I, 902 F.Supp.2d at 431 n. 151.
. See id.; Davis v. City of New York, No. 10 Civ. 0699, 2013 WL 145584, at *1 (S.D.N.Y. Jan. 14, 2013) (addressing NYCHA's supplemental motion for partial summary judgment based on Jones’s and Suarez's tenancies).
. See 7/20/12 Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions for Partial Summary Judgment ("Pl. Opp. (7/20/12)”) at 33 n. 36.
. See Davis I, 902 F.Supp.2d at 430-31.
. See id. at 432 n. 155.
. The City correctly concludes that Davis I granted both defendants summary judgment on all of Britt's claims that depended on the impairment of her residency-based rights, except Britt's USHA claim against NYCHA. Contra Pl. Opp. at 27 n. 20, see City Mem. at 14 n. 20 (citing Davis I, 902 F.Supp.2d at 432 ("Plaintiffs point to no evidence regarding the impairment of Britt’s residency-based rights beyond those under the United States Housing Act that guarantee the provision of a reasonable residential lease.”)). See also Davis I, 902 F.Supp.2d at 429 n. 136 (granting summary judgment on Britt’s equal protection claims against the City); id. at 435-37 (granting summary judgment on Britt’s section 1981 claims against the City and NY-CHA).
. See Davis I, 902 F.Supp.2d at 443-45.
. See id. at 410-30; Am. Compl. ¶¶ 118-133 (Washington), 149-155 (Frederick); 12/4/12 Defendant City of New York’s Memorandum of Law in Support of Its Motion for Summary Judgment on Plaintiffs' Claims Against the City ("City Mem.”) at 1. Because the parties' submissions do not address plaintiffs’ respondeat superior claims, I will not address those claims in this Opinion.
. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997).
. Rivera v. Rochester Genesee Reg’l Transp. Auth., 702 F.3d 685, 692 (2d Cir. 2012) (quoting Fed.R.Civ.P. 56(c)) (other quotations omitted).
. Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012) (quotations and alterations omitted).
. Miner v. Clinton Cnty., N.Y., 541 F.3d 464, 471 (2d Cir. 2008) (citation omitted).
. Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).
. See id.
. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Id.
. Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir. 2012).
. Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir. 2012) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
. Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986)).
. 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Interpreting the language of section 1983 and the legislative history surrounding its passage in the Civil Rights Act of 1871, the Court in Monell held that local governing bodies could be held liable either on the basis of formally approved policies or on the basis of " 'customs’ ” or " ‘usages.’ ” Id. at 690-91, 98 S.Ct. 2018 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
. Cash v. County of Erie, 654 F.3d 324, 333 (2d Cir. 2011), cert. denied, - U.S. -, 132 S.Ct. 1741, 182 L.Ed.2d 528 (2012) (quoting Connick v. Thompson, — U.S. -, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011), in turn quoting Monell, 436 U.S. at 691, 98 S.Ct. 2018 (quotation marks omitted)). Cases after Monell "considerably broadened the concept of official municipal action.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 125 (2d Cir. 2004) (Sotomayor, J.).
. Cash, 654 F.3d at 333 (quoting Connick, 131 S.Ct. at 1359) (certain quotation marks omitted).
. Connick, 131 S.Ct. at 1359 (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018; Pembaur v. Cincinnati, 475 U.S. 469, 479, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Adickes, 398 U.S. at 167-68, 90 S.Ct. 1598).
. Cash, 654 F.3d at 334.
. Id. (quoting Amnesty, 361 F.3d at 126).
. Connick, 131 S.Ct. at 1359 (quoting Board of Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
. Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct. at 1360; Amnesty, 361 F.3d at 128).
. Sorlucco v. City of New York, 971 F.2d 864, 871 (2d Cir. 1992) (emphasis added), quoted with approval by Amnesty, 361 F.3d at 126; Okin v. Village of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415, 440 (2d Cir. 2009). Though the Second Circuit has not explicitly reaffirmed the “constructive acquiescence” theory of Monell liability articulated in Sorlucco since the Supreme Court decided Con-nick, the Second Circuit continues to hold that if a practice of misconduct is sufficiently widespread, the municipality may be assumed to have acquiesced in it, even in the absence of direct evidence of such acquiescence. See Ligon, 925 F.Supp.2d at 488 n. 32, 2013 WL 628534, at *4 n. 32 (discussing Jones v. Town of E. Haven, 691 F.3d 72, 82 (2d Cir. 2012)).
Whether or not the phrase "constructive acquiescence” persists in Second Circuit case law, the theory remains valid under the terms of Connick: "practices so persistent and widespread as to practically have the force of law” represent official municipal policy for the purpose of Monell liability. Connick, 131 S.Ct. at 1359 (citing Adickes, 398 U.S. at 167, 90 S.Ct. 1598 ("[A] 'custom or usage, of (a) State’ for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials.”)). See also City of Canton v. Harris, 489 U.S. 378, 390 n. 10, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) ("It could
. Connick, 131 S.Ct. at 1359 (citing Oklahoma City v. Tuttle, 471 U.S. 808, 822-23, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (pluralily opinion)).
. Id. (citing Bryan Cnty., 520 U.S. at 407, 117 S.Ct. 1382).
. Cash, 654 F.3d at 334 (quoting Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007); Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995)). Cash reaffirmed the validity of the three-part framing of the failure-to-train inquiry in Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992), summarized as:
(1) policymaker knows "to a moral certainty” that its employees will confront a given situation; (2) either situation presents employees with [a] difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling situation; and (3) wrong choice by employees will frequently cause deprivation of constitutional rights.
Cash, 654 F.3d at 334. "Where the plaintiff establishes all three elements, then ... the policymaker should have known that inadequate training or supervision was 'so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.’ " Walker, 974 F.2d at 298 (quoting Canton, 489 U.S. at 390, 109 S.Ct. 1197). In order to establish Monell liability based on the Walker test, plaintiffs must also, of course, show that the training or supervision was in fact inadequate and that this inadequacy caused plaintiffs' constitutional injuries. See Reynolds, 506 F.3d at 193.
. See Ligon, 925 F.Supp.2d at 523-25, 541-44, 2013 WL 628534, at *28-29, *41-42; Davis I, 902 F.Supp.2d at 410-30.
. 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991).
. Id. at 437, 111 S.Ct. 2382 (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)).
. See id.
. See id. at 434-35, 111 S.Ct. 2382.
. Id. (collecting cases) (emphasis added and citations omitted). Accord INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ("[Pjolice questioning, by itself, is unlikely to result in a Fourth Amendment violation ... \u\nless the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded.” (emphasis added)). The Supreme Court did not rule in Bostick, nor in Delgado, that questioning, or a request for identification, cannot rise to the level of a Terry stop. Rather, the Court affirmed that the manner and context of police conduct are relevant to the inquiry into whether a reasonable person would have felt free to terminate the encounter. As the Second Circuit has noted, this inquiry is essentially "an objective assessment of the overall coercive effect of the police conduct.” United States v. Lee, 916 F.2d 814, 819 (2d Cir. 1990) (citing Chesternut, 486 U.S. at 573-74, 108 S.Ct. 1975).
. Bostick, 501 U.S. at 438, 111 S.Ct. 2382 (quoting Bostick, 501 U.S. at 447, 111 S.Ct. 2382 (Marshall, J., dissenting)) (emphasis omitted).
. United States v. Glover, 957 F.2d 1004, 1008 (2d Cir. 1992) (quoting Lee, 916 F.2d at 819). Accord United States v. Drayton, 536 U.S. 194, 203-04, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (concluding, under Bostick framework, that reasonable passenger on bus would feel free to leave, where "officers gave the passengers no reason to believe that they were required to answer the officers’ questions,” and officer asking questions of passengers "did not brandish a weapon or make any intimidating movements,” "left the aisle free so that respondents could exit,” and “spoke to passengers one by one and in a polite, quiet voice”). The principle of seizure "applies equally to seizures of persons and to seizures of property,” and “the arrest of a person is 'quintessentially a seizure.’ ” Payton, 445 U.S. at 585, 100 S.Ct. 1371 (quoting United States v. Watson, 423 U.S. 411, 428, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Powell, J., concurring)).
. Ligon, 925 F.Supp.2d at 478, 2013 WL 628534, at *36 (citing United States v. Simmons, 560 F.3d 98, 101 (2d Cir. 2009); Brown v. City of Oneonta, N.Y., 221 F.3d 329, 340 (2d Cir. 2000)).
. Id. at 535 n. 410, at *36 n. 410 (citing Brown, 221 F.3d at 341).
. See Davis I, 902 F.Supp.2d at 415-17.
. Id. at 428.
. See Ligon, 925 F.Supp.2d at 501-04, 524-25, 2013 WL 628534, at *13-14, *29.
. Id. at 505-08, at *16-17.
. The Second Circuit has further held: “[a] seizure occurs when (1) a person obeys a police officer’s order to stop or (2) a person that does not submit to an officer's show of authority is physically restrained.” Simmons, 560 F.3d at 105 (citing Swindle, 407 F.3d at 572).
. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581) (certain quotation marks omitted). Courts are divided over whether reasonable suspicion must be of a particular crime, or may be of criminality in general. See 4 Wayne R. La-Fave, Search & Seizure § 9.5(c) (5th ed. 2012).
. United States v. Bayless, 201 F.3d 116, 133 (2d Cir. 2000).
. See City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997)).
. People v. De Bour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976). See, e.g., City Mem. at 6; Ligon, 925 F.Supp.2d at 532-40, 2013 WL 628534, at *35-39.
. In the words of the Second Circuit, as already noted, whether a stop has taken place under the Fourth Amendment depends on "an objective assessment of the overall coercive effect of the police conduct.” Lee, 916 F.2d at 819 (citing Chesternut, 486 U.S. at 573-74, 108 S.Ct. 1975). The line between constitutional and unconstitutional police questioning — in the absence of reasonable suspicion— may depend on how threatening or intimidating an officer’s behavior was during the encounter. See id. (collecting cases). Thus, the Fourth Amendment places great weight on the manner in which police officers carry out questioning, because an officer’s manner can convey the message that the questioned person is not free to terminate the encounter. See Bostick, 501 U.S. at 436-39, 111 S.Ct. 2382.
By contrast, De Bour and its progeny tend to emphasize the content of police questioning, not its manner. In People v. Hollman, the New York Court of Appeals reaffirmed De Bour and stated that "as a general matter, ... basic, nonthreatening questions regarding, for instance, identity, address or destination ... need be supported only by an objective credible reason not necessarily indicative of criminality.” 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992). Accord id. at 191, 581 N.Y.S.2d 619, 590 N.E.2d 204 ("[A] request for information is a general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area.”). Only if an officer poses "more pointed questions” is a founded suspicion of criminality required. Id. at 185, 581 N.Y.S.2d 619, 590 N.E.2d 204. As the Court of Appeals concluded: “To some extent, ... our distinction rests on the content of the questions, the number of questions asked, and the degree to which the language and nature of the questions transform the encounter from a merely unsettling one to an intimidating one.” Id. at 192, 581 N.Y.S.2d 619, 590 N.E.2d 204. In other words, the distinction rests, for the most part, on what questions the police ask, not how they approach and ask them.
De Bow’s largely content-based approach to police questioning is distinct from the more manner-based approach of the Fourth Amendment. An officer could conceivably comply with De Bour but violate the Fourth Amendment by, for example, approaching and questioning a NYCHA resident, without reasonable suspicion, in a hostile, aggressive manner that would make a reasonable person not feel free to terminate the encounter — but asking only questions concerning identity, address, and destination. On the other hand, an officer might comply with the Fourth Amendment but violate De Bour by, for example, approaching and questioning a NYCHA resident, without a founded suspicion of criminality, in a polite, respectful, and non-coercive manner — but asking questions whose contents fell outside the scope of a “request for information” under Hollman.
. 12/15/12 Memorandum of Law in Support of Plaintiffs’ Motion for Partial Summary Judgment (“Pl. Mem. (Policy)”) at 5. The City presents IO 23 as the policy that has governed "vertical patrols” in NYCHA buildings since 2010. See 12/4/12 Defendant City of New York's Statement of Facts Pursuant to Local Rule 56.1 ¶ 118. IO 23 should not to be confused with Interim Orders 22 and 23 of 2012, which concern vertical patrols in private TAP buildings. See Ligon, 925 F.Supp.2d at 517-20, 2013 WL 628534, at *24-25.
. Because neither party has argued otherwise, I assume in the following discussion that the same constitutional standards govern police encounters during a vertical patrol and when patrolling a sidewalk. Neither party has argued, for example, that under the reasonableness analysis of the Fourth Amendment, different standards should apply to vertical patrols in NYCHA buildings, just as special standards apply for vehicle checkpoints. See Edmond, 531 U.S. at 45-46, 121 S.Ct. 447 (“[Pjrogrammatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion.” (collecting cases)); Terry, 392 U.S. at 15, 88 S.Ct. 1868 (“[Ojf course, our approval of legitimate and restrained investigative conduct undertaken on the basis of ample factual justification should in no way discourage the employment of other remedies than the ex-elusionary rule to curtail abuses for which that sanction may prove inappropriate.”); Ligon, 925 F.Supp.2d at 533 n. 398, 2013 WL 628534, at *35 n. 398.
. See, e.g., City Opp. (Policy) at 10.
. The distinction between facial and as-applied challenges is not always clear, and has been defined in various ways. See, e.g., Richard H. Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L.Rev. 915 (2011) (defining facial challenges as "ones that, if accepted, would establish that a statute has no valid applications whatsoever,” and on this basis, concluding that the Supreme Court has upheld facial challenges under an “astonishingly large number of constitutional provisions,” but also noting that "it is sometimes difficult to differentiate facial from as-applied challenges, partly but not exclusively because the Court is often inattentive to the distinction”). As I have previously stated, “[tjhere are few areas of the law that are as confused and conflicted as the law governing facial challenges.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liab., 674 F.Supp.2d 494, 505 (S.D.N.Y. 2009).
. United States v. Decastro, 682 F.3d 160, 168 (2d Cir. 2012) (quoting Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170
. See City Opp. (Policy) at 10.
. Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1147, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 130 S.Ct. 2743, 2752, 177 L.Ed.2d 461 (2010)).
. See 1/18/13 Plaintiffs’ Reply Memorandum of Law in Further Support of Motion for Partial Summary Judgment ("Pl. Reply (Policy)”) at 5; Davis I, 902 F.Supp.2d at 421-30.
. See Davis I, 902 F.Supp.2d at 423-25.
. I note, however, that the constitutionality of IO 23’s arrest policy could be relevant to the deliberate indifference analysis of plaintiffs' Monell claim. If, hypothetically, the City were to cite the development and implementation of IO 23 as evidence that it has not been deliberately indifferent to earlier, problematic arrest practices, then any authorization of unconstitutional conduct in IO 23 would weaken the City’s argument. In order to avoid repetition if the issue of the constitutionality of IO 23’s arrest policy arises again in this case, I offer the following observations on the arguments already presented in the parties’ briefs:
The City defends IO 23's arrest policy in part by suggesting that NYPD officers have authority under New York Penal Law section 140.10(f) to revoke the permission of any person to be inside a NYCHA building. See City Opp. (Policy) at 6-8. The City analogizes section 140.10(f) to section 140.10(d), which is similarly phrased but involves trespass on school property "in violation of a personally communicated request to leave the premises from a principal, custodian, school board member or trustee, or other person in charge thereof.” Courts have held that under section 140.10(d), a principal or other person in charge who makes a personally communicated request to leave the premises thereby revokes whatever privilege the person had to be on the premises. See Matter of Max X., 278 A.D.2d 774, 717 N.Y.S.2d 773, 774-75 (3d Dep’t 2000) ("[A]ny license or privilege that respondent may have had at the time he entered the school building was revoked when the principals advised him that he had no right to be on the school premises and was required to leave.”); Arum v. Miller, 331 F.Supp.2d 99, 109-10 (E.D.N.Y. 2004) (concluding that when "a person capable of revoking permission to be in the school” asks a visiting parent to leave, and the parent does not comply, this is "sufficient to create probable cause for a police officer to arrest an individual for criminal trespass in the third degree” under section 140.10(d)).
*345 But the City provides no basis for concluding that an NYPD officer has the legal authority to revoke a person's privilege to be in a NYCHA building, as a principal does in a school. In support of the NYPD’s authority to revoke permission to be in a NYCHA building, the City cites People v. Brown, which states: "Since it is clear that defendant lawfully entered the premises, a conviction could be had only if the prosecution established that (1) a lawful order not to remain was personally communicated to the defendant and (2) that he defied such a lawful order." 25 N.Y.2d 374, 306 N.Y.S.2d 449, 452, 254 N.E.2d 755 (1969). Similarly, the City cites a case in which a tenant revoked whatever privilege a guest might have had to be in her apartment. See People v. Randolph, 18 A.D.3d 1013, 795 N.Y.S.2d 782, 783 (3d Dep’t 2005). Rather than answering the question of when, if ever, an NYPD officer has the legal authority to revoke someone's privilege to be in a NYCHA building, however, these citations beg the question. Both deal with circumstances in which the person revoking the privilege clearly had the legal right to do so.
Unless NYPD officers have some legal authority, as yet unidentified, to revoke at will the privilege to be inside a NYCHA building, the refusal to obey an officer's request to leave cannot constitute probable cause for a trespass arrest. A person's refusal to obey a request to leave a NYCHA building from someone who has no authority to revoke the privilege to be in the building provides no evidence that the person is not lawfully in the building.
. IO 23, Ex. O to 12/4/12 Declaration of Brenda E. Cooke, counsel to defendant City ("Cooke Decl.”), at ¶ 12 (emphases added).
. IO 23 at 2.
. Id. at 1.
. See City Opp. (Policy) at 4.
. Although some of plaintiffs’ stops occurred before the promulgation of IO 23, others occurred after. See, e.g., Davis I, 902 F.Supp.2d at 412-14 (Osorio’s November 18, 2010 stop), 421-30 (Evans’ October 16, 2010 stop). Evans continues to live in NYCHA housing. See id. at 410 & n. 12.
. Bostick, 501 U.S. at 436, 111 S.Ct. 2382.
. Glover, 957 F.2d at 1008 (quoting Lee, 916 F.2d at 819).
. "[N]o seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage — so long as the officers do not convey a message that compliance with their requests is required.” Bostick, 501 U.S. at 437, 111 S.Ct. 2382. Accord Ligon, 925 F.Supp.2d at 507, 2013 WL 628534, at *17 (concluding that a plaintiff had not provided adequate evidence that the police conveyed a message that compliance with their requests was required, where officers approached and asked questions politely and without coercion). It is true that based on the evidence at the preliminary injunction hearing in Ligón, I expressed skepticism as to whether an expansive program of suspicion-less police encounters involving intrusive field interrogations and ID requests could avoid resulting in widespread constitutional violations — especially where officers received inaccurate training on the Fourth Amendment. As I stated there:
If the difference between a Terry stop and a less intrusive encounter hinges on indefinite factors such as the demeanor and positioning of the officers; and if it is safe to assume that officers routinely display their authority and power through aggressive behavior, as many of the officers did in their encounters with plaintiffs in the instant case; then a training program that invites officers to approach large numbers of people and question them without reasonable suspicion will inevitably result in frequent Teiry stops that lack reasonable suspicion, effectively guaranteeing the commission of widespread constitutional violations.
Id. at 537-38, at *38. For evidence that the NYPD’s training misconstrues the Fourth Amendment, see id. at 532-40, at *35-39. Ligón also shows, however, that determining whether a practice of suspicionless police encounters has actually resulted in suspicionless Teiry stops is a fact-intensive inquiry. See, e.g., id. at 497-511, 523-27, at *10-19, *28-30 (factual analyses of individual plaintiffs' stops).
. See City Opp. (Policy) at 1, 3-6, 9.
. See Pl. Mem. (Policy) at 1-2; Pl. Reply (Policy) at 2-3.
. I note that plaintiffs may succeed at trial on an as-applied challenge to the stop policy in IO 23 even though they are not entitled to summary judgment on their facial challenge. This is so because the stop policy directs officers to engage in behavior that is constitutional (that is, suspicionless encounters that a reasonable person would feel free to terminate), but is ambiguous as to whether it directs officers to engage in additional, unconstitutional behavior (that is, suspicionless Terry stops). A facial challenge to the policy must fail because the policy may be interpreted, in practice, as directing only the former, constitutional behavior. But if evidence shows — again, in practice — that officers interpret the ambiguous aspect of the policy as directing them to engage in unconstitutional behavior, and as a result they do so, then the policy would be at least partially unconstitutional.
. See IO 23; Pl. Reply (Policy) at 4-5 (arguing that 10 23 stop policy "fails to establish appropriate limits on officers’ discretion”). Accord NYCHA Rules & Regulation Training PowerPoints, Bates Nos. NYC0021989-22024, Ex. U to Cooke Decl., at NYC0022020 (offering no criteria for determining when a person's right to be in the building is in question).
. See City Mem. at 2.
. A policy may be unconstitutional and a source of Monell liability under section 1983 even if municipal policymakers believed in good faith that the policy was constitutional, or even if the constitutionality of the policy was not yet clearly established. See Skehan v. Village of Mamaroneck, 465 F.3d 96, 109 (2d Cir. 2006) ("Municipalities are not entitled to qualified immunity for their actions, even where the individual officers who acted on the municipality's behalf would be.”), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008).
. 1/7/13 Plaintiffs' Memorandum of Law in Opposition to Defendants’ Motions for Partial Summary Judgment ("Pl. Opp.”) at 3.
. Davis I, 902 F.Supp.2d at 419.
. See Cash, 654 F.3d at 333. I note that in Davis I, I assumed based on the parties’ briefing that Jackson and Johnson had been arrested for loitering in the stairway, in violation of the prohibition on such loitering contained in the sign that the City alleges was conspicuously posted at the top of the stairway. See Davis I, 902 F.Supp.2d at 419-23. Proceeding from this assumption, I analyzed the constitutionality of applying the sign’s loitering prohibition to a resident and concluded that the prohibition was unconstitutionally vague and thus could not provide a basis for probable cause or punishment. See id.
It now appears that there is uncertainty regarding why Jackson and Johnson were arrested. The City argues that Jackson and Johnson "fit the circumstances” of someone who has been arrested for "being in a prohibited area,” and not for loitering. 1/18/13 Defendant City of New York’s Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment on Plaintiffs' Claims Against the City (“City Reply”) at 1 n. 2. If Jackson and Johnson were arrested not for violating a prohibition on loitering but for violating a prohibition on trespassing in prohibited spaces, my earlier discussion of the vagueness of the loitering prohibition may no longer be material to the analysis of named plaintiffs' individual circumstances.
. See, e.g., Pl. Opp. at 3; 1/7/13 Plaintiffs’ Local Rule 56.1 Statement of Additional Material Facts in Opposition to Defendant City of New York’s and Defendant New York City Housing Authority's Motion for Summary Judgment ("PAF”) ¶¶ 1-2, 91; Policing Housing Developments, Including Conducting Interior Vertical Patrols (Lesson Plan for the Patrol Guide Revision of 212-60), Ex. 3 to 12/15/12 Declaration of Johanna B. Steinberg, counsel for plaintiffs ("Steinberg Decl.”), at 5 (noting that "[t]he absence of a [No Trespassing] sign does not preclude effecting a trespass arrest”). New York Penal Law sections 140.10(e) and (f) state:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property ...
(e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof; or
(f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof.
Some New York courts have held that a person unlawfully present in the common or "public” areas of a NYCHA building may be charged with second degree criminal trespass under Penal Law section 140.15 (knowingly entering or remaining unlawfully in a dwelling) whether or not the requirements of sections 140.10(e) or (f) are satisfied. See, e.g., People v. Quinones, No. 01-371, 2002 WL 432917, at *1 (1st Dep’t Mar. 5, 2002); People
Arrested Plaintiffs Mr. Jackson, Ms. Johnson, Ms. Evans, and Mr. Osorio were arrested under N.Y. Penal Law § 140.15. Arrested Plaintiffs Mr. Smith, Mr. Littlejohn, Mr. Washington, and Mr. Fredrick were arrested under N.Y. Penal Law § 140.10(e).
Pl. Opp. (7/20/12) at 6 n. 4.
. See, e.g., Excerpts from 3/25/11 Deposition of Police Officer Granit Selimaj, Ex. 2 to Lee Decl., at 78-79 (officer referring to "automatic arrests for anybody if you are on the rooftop or rooftop landing,” in discussion of June 2009 arrest).
. Gonzales v. Carhart, 550 U.S. 124, 148-49, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).
. The City also argues that even if Jackson's and Johnson's arrest was unconstitutional, plaintiffs have failed to provide evidence of a pattern of arrests like theirs, which the City argues would be necessary to show that the City’s policy is unconstitutional. See City Reply at 1 n. 2 (citing Connick, 131 S.Ct. at 1360-61). In Connick, the Supreme Court stated: "A pattern of similar constitutional violations by untrained employees is 'ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train.” 131 S.Ct. at 1360 (quoting Bryan Cnty., 520 U.S. at 409, 117 S.Ct. 1382). This rule has no bearing on the current discussion, which addresses plaintiffs’ policy theory of Monell liability, not its deliberate indifference theory. "[Ojnce a municipal policy is established, 'it requires only one application ... to satisfy fully Monell’s requirement that a municipal corporation be held liable only for constitutional violations resulting from the municipality’s official policy.’ ” Pembaur, 475 U.S. at
. See Pl. Opp. at 4 & n. 8. The City contends that plaintiffs waived some or all of their "custom” theory of Monell liability by not including the phrase "constructive acquiescence” in their Amended Complaint. See City Mem. at 2 n. 5. However, plaintiffs clearly pleaded both policy-based and custom-based Monell claims, and the parties have argued these claims throughout the years of litigation. See, e.g., Am. Compl. ¶¶ 238-242; Davis v. City of New York, 812 F.Supp.2d 333, 341 (S.D.N.Y. 2011). The City has cited no basis for concluding that the term "constructive acquiescence” must be recited in every custom-based claim of Monell liability based on the prevalence of unconstitutional practices. As noted above, if a municipality engages in sufficiently persistent and widespread unconstitutional practices, Monell liability will attach, even in the absence of direct evidence of acquiescence by policymakers. See Connick, 131 S.Ct. at 1359 (citing Adickes, 398 U.S. at 167, 90 S.Ct. 1598); Canton, 489 U.S. at 390 n. 10, 109 S.Ct. 1197; Ligon, 925 F.Supp.2d at 488 n. 32, 2013 WL 628534, at *4 n. 32 (discussing Jones, 691 F.3d at 82).
. Pl. Opp. at 9.
. See Ligon, 925 F.Supp.2d at 523-24, 2013 WL 628534, at *28.
. See Pl. Opp. at 7 & n. 15, 9 (noting that NYCHA residents and guests testified to unlawful stops and arrests after the introduction of 10 23, that two named plaintiffs raised genuine issues of material fact regarding post-IO 23 unlawful stops, and that one did so regarding a post-IO 23 unlawful arrest). More than one officer testified that IO 23 did not change either the NYPD's stop policy or trespass enforcement practices in general. See, e.g., Excerpts from 11/29/11 Deposition of Police Officer Keith Devine, Ex. 5 to Lee Decl., at 192-193. In addition, plaintiffs offer evidence that more than two years after the introduction of IO 23, the Bronx District Attorney's Office announced a policy that was intended in part to address the problem of NYCHA " ‘tenants and invited guests ... being prosecuted unlawfully’ ” for trespass. Pl. Opp. at 9 (quoting PAF ¶ 42).
. See Pl. Opp. at 6-7. For convenience, I cite the parties’ briefs, which in turn cite evidence in the record.
. See City Reply at 2-3.
. See Pl. Opp. at 7-9 & n. 15.
. See id. at 7.
. 1/7/13 Declaration of Katharine E.G. Brooker, counsel for plaintiffs ("Brooker Decl.”), at ¶ 9 (quoting and citing, as an example, the Decline to Prosecute form at Ex. A to Brooker Decl.).
. See City Reply at 3.
. United States v. Dupree, 706 F.3d 131, 136 (2d Cir. 2013) (quoting Fed.R.Evid. 801(c)).
. See Ligon, 925 F.Supp.2d at 492-95, 2013 WL 628534, at *7-8.
. See id.
. "The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: ... (8) Public Records. A record or statement of a public office if: (A) it sets out: ... (iii) in a civil case ..., factual findings from a legally authorized investigation; and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness.” Fed.R.Evid. 803(8)(A)(iii).
. Rule 807 states:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
. In support of the City's argument that decline to prosecute forms cannot be relied on to infer that a stop lacked reasonable suspicion or that an arrest was made without probable cause, the City cites an unreported three-page 2003 opinion from the Eastern District, which quite correctly concluded that a prosecutor’s decision not to prosecute a charge against a section 1983 plaintiff "provides no indication that plaintiff's arrest was without probable cause.” Quinn v. City of New York, No. 99 Civ. 7068, 2003 WL 1090205, at *4 (E.D.N.Y. Mar. 12, 2003). See City Reply at 3. To say that the decision to decline to prosecute is insufficient to support a section 1983 claim for false arrest is quite different from saying that the information contained in decline to prosecute forms is irrelevant to an analysis of police practices.
. See Pl. Opp. at 7.
. See PAF ¶¶ 21-28.
. See Ligon, 925 F.Supp.2d at 496 n. 92, 2013 WL 628534, at *9 n. 92; Floyd, 861 F.Supp.2d at 278, 280-81.
. See Ligon, 925 F.Supp.2d at 509-12, 527-32, 2013 WL 628534, at *19-20, *31-34 (discussing Dr. Fagan’s analysis of UF-250 forms), App. B (copy of UF-250 form).
. See id.
. See id. at 527-28, at *31, App. B.
. See Pl. Opp. at 5-6.
. See Excerpts from the 7/25/12 Corrected Expert Report of Jeffrey Fagan, Ph.D. ("Fagan Report”), Ex. 7 to Lee Decl., at 81.
. See id. at 80, 81 tbl. 24, 86.
. See Excerpts from the 10/11/12 Amended Rebuttal Report of Jeffrey Fagan, Ph.D. ("Fagan Rebuttal”), Ex. 8 to Lee Decl., at 35.
. Dr. Fagan assumes that the narrative "loitering” does not indicate apparent justification for a trespass stop in a NYCHA building. See PAF ¶ 9; Fagan Report at 86 tbl. 27. I note that neither my prior opinions in Floyd nor Davis I addressed the difficult question of whether, on a UF-250 form recording a trespass stop in a NYCHA. building, the narrative "loitering” could indicate that an officer apparently had reasonable suspicion. Even if "loitering” outdoors in a public space most likely does not provide reasonable suspicion of any crime, see Floyd, 861 F.Supp.2d at 299, and a general criminal prohibition on "loitering” by a resident in her own NYCHA building is unconstitutionally vague, see Davis I, 902 F.Supp.2d at 419-23, behavior that could reasonably be described as "loitering” in a NYCHA building could conceivably provide a sufficient basis for a Terry stop during a vertical patrol. NYCHA buildings are the homes of NYCHA residents, not public streets for “ ‘carefree ... fellow[s]‘ ” to use as they "walk or loaf or loiter or stroll,” to borrow some of Justice William O. Douglas’ celebrated language from Papachristou v. City of Jacksonville, 405 U.S. 156, 171, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (extolling public idleness and other "amenities of life,” and quoting Anthony Amsterdam, Federal Constitutional Restrictions on the Punishment of Crimes of Status, Crimes of General Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L. Bull. 205, 226 (1967)).
. See Fagan Rebuttal at 35.
. City Mem. at 3.
. The City also attempts to analogize the instant case to Connick, where the Supreme Court determined that a district attorney's office may not be "held liable under § 1983 for failure to train based on a single Brady violation.” Connick, 131 S.Ct. at 1356. See City Mem. at 3 (citing Connick, 131 S.Ct. at 1360). In Connick, the Supreme Court held that the plaintiff did "not contend that he proved a pattern of similar Brady violations,” and that the four other Brady violations noted by the plaintiff were "not similar to the violation at issue” and thus "could not have put [the municipality] on notice that specific training was necessary to avoid this constitutional violation.” Connick, 131 S.Ct. at 1360.
The City's reliance on Connick is puzzling. Connick delimits the periphery of custom-based municipal liability under section 1983, in order to prevent Monell from becoming a back door to respondeat superior liability for aberrant constitutional torts by rogue municipal employees. See Connick, 131 S.Ct. at 1365 & n. 12. That risk is not remotely present in the current case. While Connick involved an individual plaintiff's claim regarding a single Brady violation, the instant case is a putative class action based on evidence of tens of thousands of similar Fourth Amendment violations over a number of years, during which the alleged violations were the subject of frequent and intense public dispute. The allegations in this case lie close to the core of custom-based Monell liability, not at the periphery like the claim in Connick.
. See City Mem. at 3-5.
. See, e.g., Floyd, 861 F.Supp.2d at 278, 291, 293; Ligon, 925 F.Supp.2d at 511-12 & nn. 230, 234, 2013 WL 628534, at *20 & nn. 230, 234.
. Floyd, 861 F.Supp.2d at 291.
. See City Mem. at 3-4 (citing McCleskey v. Kemp, 481 U.S. 279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Ricketts v. City of Columbia, 36 F.3d 775, 781-82 (8th Cir. 1994); Watson v. City of Kansas City, 857 F.2d 690, 695 (10th Cir. 1988)).
. See id.
. It is true that the Tenth Circuit in Watson stated: "Whether or not probable cause exists is not susceptible to statistical quantification.” Watson, 857 F.2d at 695. This dictum, however, appeared in the context of a defense of the probative value of statistics regarding arrest rates. The Tenth Circuit concluded that the plaintiff's failure to include statistical data regarding probable cause was not fatal to the plaintiff's use of arrest rate statistics, because there was no feasible way for the plaintiff to provide statistical evidence of probable cause. See id. Presumably if the plaintiff or the defendants had succeeded in offering reliable statistical evidence regarding probable cause,
. Even in the distinct and highly sensitive context of equal protection claims, the Supreme Court "has accepted statistics as proof of intent to discriminate in certain limited contexts.” McCleskey, 481 U.S. at 293, 107 S.Ct. 1756.
. See, e.g., City Mem. at 3-5, 3 n. 7; City Reply at 2. The City is incorrect to suggest that there is an inconsistency between Dr. Fagan's analysis of the text strings offered as "Other” stop justifications and my conclusion in Floyd that it would mislead the jury to admit "expert testimony that makes generalizations about the level of reasonable suspicion indicated by the forms [that contain only an ‘Other’ factor on Side 1].” Floyd, 861 F.Supp.2d at 299-300. This statement appeared in the context of my rejection of Dr. Fagan's initial conclusion "that all ... of the UF-250s on which the only box checked on Side 1 is ‘Other’ are ‘Indeterminate.’ ” Id. at 296. I continue to hold that it would mislead the jury if experts were to testify about the general character of the forms that contain only an "Other” factor on Side 1 — for example, by describing these forms as "Indeterminate,” “Presumptively Justified,” "Apparently Unjustified,” or under any other general label. But the Daubert decision in Floyd did not prohibit expert testimony based on a closer inspection of the "Other” text strings. To the contrary, I stated that "one can make certain determinations” regarding "a particular UF-250" containing "Other” text strings "with the same or more confidence” as one can make such determinations regarding other UF-250s. Id. Accord Fagan Rebuttal at 31 n. 71. In Ligón, I relied in part on the analysis of "Other” text strings, see Ligon, 925 F.Supp.2d at 527-34, 2013 WL 628534, at *31-34, and Dr. Fagan’s text string analysis is no less relevant in Davis. Finally, to the extent that the City's argument rests on the quality of Dr. Fagan's sampling of text strings and inferences based on them, see City Reply at 4, the City’s arguments have not yet shown in what sense Dr. Fagan’s methods depart from reliable, garden-variety random sampling and statistical inference. Such proof may be developed at trial.
. See, e.g., City Mem. at 4; City Reply at 2 n. 4. Even if there were merit to some of the City’s criticisms of Dr. Fagan's analysis, it would be inappropriate to grant summary judgment to the City on the basis of such arguments, because the magnitude of unconstitutional stops identified by Dr. Fagan leaves significant room for error. Cf. Ligon, 925 F.Supp.2d at 530-32, 2013 WL 628534, at *33-34 (accepting for the sake of argument that some of the City's criticisms might have merit, but noting that even then, "plaintiffs have succeeded in showing a clear likelihood that they will be able to prove that the City of New York and its agents displayed deliberate indifference toward the violation of the constitutional rights of hundreds and more likely thousands of individuals”).
. See Floyd, 861 F.Supp.2d at 287, 300.
. See Cash, 654 F.3d at 334. On the issue of notice, the City is incorrect to suggest that plaintiffs must show the City "had notice that a particular training or other supervisory flaw was obviously causing such violations.” City Mem. at 5. Actual notice that a training program is causing constitutional violations is sufficient: such notice by itself makes the need for more or different training obvious. It is only in the absence of actual notice that the deficiencies of a training program must be "obvious” in order to satisfy the requirements of Monell liability. See Cash, 654 F.3d at 334 (noting that "deliberate indifference requires proof that [a] 'municipal actor disregarded a known or obvious consequence of his action' ” (quoting Brown, 520 U.S. at 407, 117 S.Ct. 1382) (emphasis added)).
The City is also incorrect to suggest that plaintiffs have not identified the inadequacies in the City’s training with sufficient specificity. See City Mem. at 5 (citing Reynolds, 506 F.3d at 193). As discussed in the following paragraphs, plaintiffs have offered abundant evidence that adequate training, supervision, and discipline of officers who engage in vertical patrols in NYCHA buildings could have prevented the constitutional harms allegedly suffered by plaintiffs, but that the City chose not to provide that training. It would also be incorrect to suggest that plaintiffs must point to one or more particular elements of the NYPD’s training program that specifically cause officers to perform unconstitutional stops or arrests. Deliberate indifference does not require that officers be trained to commit constitutional violations. Rather, "where 'the need for more or better supervision to protect against constitutional violations [is] obvious,' ” Cash, 654 F.3d at 334 (quoting Vann, 72 F.3d at 1049), mere failure to " ‘make meaningful efforts to address the risk of harm to plaintiffs,’ ” Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192), is enough. If a " 'city's policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution,' " Cash, 654 F.3d at 334 (quoting Connick, 131 S.Ct. at 1360), then a fortiori a city's policy of inaction in light of notice that its program has caused, continues to cause, and will cause widespread constitutional violations is sufficient to establish Monell liability.
. Cash, 654 F.3d at 334 (quoting Reynolds, 506 F.3d at 192).
. Pl. Opp. at 10 n. 21 (citing PAF ¶¶ 25-30).
. See id.
. See generally id. at 9-10.
. "A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick, 131 S.Ct. at 1359 (citing Tuttle, 471 U.S. at 822-23, 105 S.Ct. 2427).
. Compare, e.g., City Mem. at 7 (citing evidence that Integrity Control Officers (“ICOs”) ensure that officers follow rules and policies), and id. (citing evidence that supervisors verify arrests at the scene and review paperwork to ensure proper officer performance), with, e.g., Pl. Opp. at 11-12 (citing evidence that no supervising officer deposed in this case testified to having ever observed a stop that lacked reasonable suspicion or an arrest that lacked probable cause), and id. at 11-12 (citing evidence that ICOs do not behave as the City describes). Similar disputes of fact regarding training, monitoring, supervising, and disciplining appeared in the Floyd summary judgment briefing, with a similar result. See Floyd, 813 F.Supp.2d at 429-35 (detailing a sample of the "numerous disputed issues of fact as to the constitutional sufficiency of the NYPD’s practice of training, monitoring, supervising, and disciplining its officers for stops and frisks conducted in violation of the Fourth Amendment” (footnote omitted)).
. See City Mem. at 5-7.
. See supra Part V.A.1.
. See also Pl. Opp. at 15-16. Plaintiffs criticize the City's production of "instructional materials relating to the 2012 ... training at Rodman's Neck and the 2012 training on NYCHA rules and regulations,” which "were produced only in response to Plaintiffs' demand on October 23, 2012, after learning about their existence while observing the Ligón preliminary injunction hearing.” Id. at 15 n. 26. I accept the City's representation that the latter training was not finalized until October and was produced on November 20, 2012. See City Reply at 1 n. 1. While the City’s failure to produce the Rodman’s Neck instructional materials until after they had already appeared in the Ligón hearing is troubling, it is not sufficiently problematic to justify granting plaintiffs' request to preclude the City from relying on these materials in its summary judgment motion. See Pl. Opp. at 15 n. 26.
. See Ligon, 925 F.Supp.2d at 532-40, 2013 WL 628534, at *35-39. I note with concern that the City's briefs point to evidence of training on the four levels of De Bour, see City Mem. at 6, but make no reference to training on what constitutes a stop under the Fourth Amendment. See Ligon v. City of New York, No. 12 Civ. 2274, 2013 WL 227654, at *2 n. 23 (S.D.N.Y. Jan. 22, 2013) ("If [the City] accept[s] that Bostick’s view of the Fourth Amendment governs the NYPD, then the NYPD should train its officers in accordance with that standard.”). I am also concerned that at least some of the City’s most recent training materials direct officers to complete a UF-250 only when they have reasonable suspicion, rather than each time they have made a Terry stop. Compare Ligon, 925 F.Supp.2d at 537-40, 2013 WL 628534, at *38-39 (criticizing training materials), with, e.g., 12/4/12 Declaration of Michele Irizarry, counsel to City (including as exhibits training materials that are similar or identical to those criticized in Ligón). The City draws attention in its briefs to the recent decline in apparently unjustified stops, according to Dr. Fagan’s own metrics. See, e.g., City Mem. at 11-12, 14. If this decline, however, is attributable to officers interpreting the NYPD's new policies as an instruction not to fill out UF-250 forms when a Terry stop was not based on reasonable suspicion, then the decline would not necessarily show an improvement in the NYPD’s practices.
. See City Mem. at 2-9; City Reply at 1-4.
. See City Mem. at 1 n. 3 (arguing that named plaintiffs’ stops and arrests complied with constitutional standards), 3-4 (arguing that Dr. Fagan’s analysis shows no pattern of constitutional violations); City Reply at 1-2 (further arguments against Dr. Fagan's analysis), 2 (acknowledging that CCRB study identified "concerns,” but not acknowledging the validity of those concerns), 3 (denying that decline to prosecute forms provide evidence of unlawful stops or arrests).
. City Reply at 3.
. Id. at 4 (citing Connick, 131 S.Ct. at 1358 n. 5). See also City Mem. at 9.
. City Mem. at 9 (citing Amnesty Am., 361 F.3d at 130).
. 489 U.S. at 391, 109 S.Ct. 1197.
. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
. Plaintiffs do not argue that the City’s trespass enforcement policies contain express racial classifications, nor that the City bears Monell liability based on having a policy of carrying out NYCHA trespass enforcement in a racially discriminatory manner. Rather, plaintiffs’ Fourteenth Amendment claims against the City are based on the City’s alleged practices. See Pl. Opp. at 16-17.
. Pyke v. Cuomo, 567 F.3d 74, 76 (2d Cir. 2009) (quoting Pyke v. Cuomo, 258 F.3d 107, 110 (2d Cir. 2001)).
. Id.
. See Hayden v. Paterson, 594 F.3d 150, 163-64 (2d Cir. 2010).
. See City Mem. at 9 n. 12 (citing 6/16/12 City's Memorandum of Law in Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances at 14; 8/3/12 City’s Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances at 7 n. 22); City Reply at 4 n. 8.
. Pl. Opp. at 16 n. 30.
. Davis I, 902 F.Supp.2d at 435.
. See Am. Compl. ¶¶ 38, 41.
. Hayden, 594 F.3d at 163 (quoting Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)).
. Arlington Heights, 429 U.S. at 265, 97 S.Ct. 555.
. Id. at 265-66, 97 S.Ct. 555 (emphasis added).
. Hayden, 594 F.3d at 163 (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) (citation and footnote omitted)) (certain quotation marks omitted).
. Id. (quoting Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555).
. Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. at 279 n. 24, 99 S.Ct. 2282. "An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.” Washington, 426 U.S. at 242, 96 S.Ct. 2040.
. United States v. City of Yonkers, 96 F.3d 600, 612 (2d Cir. 1996) (citing Arlington Heights, 429 U.S. at 270 n. 21, 97 S.Ct. 555).
. See Pl. Opp. at 17-18.
. See id. (citing PAF ¶¶ 18-20). I reject the City's unsupported argument that Dr. Fagan’s comparison between NYCHA buildings and the areas surrounding them is not "statistically appropriate” as a matter of law, or that Dr. Fagan has failed as a matter of law to identify a "statistically appropriate comparator.” City Mem. at 9-10 n. 13; City Reply at 10.
. See City Mem. at 13; City Reply at 5 n. 9. The City also raises valid points for a jury to consider involving the relatively small size of the difference in racial composition between NYCHA buildings and surrounding areas, See id. at 10-12 n. 15, the negative correlation between stop-to-crime ratios and the concentration of Hispanics in NYCHA residences, See id. at 11-12, and recent changes in the enforcement statistics cited by Dr. Fagan, See id. at 12.
. Perhaps, as the City suggests in another context, the NYPD's deployment of its resources can be explained in racially neutral terms by a decision to focus on crime in buildings with high population density or entrenched criminality. See City Mem. at 11. Of course, even if the City were to produce evidence that the correlation between law enforcement activity and racial concentration disappears once population density and entrenched criminality are controlled for, the plausibility of these explanations for the NYPD's law enforcement activity, as opposed to a race-based explanation, would still have to be weighed by a jury.
. Floyd, 813 F.Supp.2d at 452-53.
. Id. at 456.
. See Arlington Heights, 429 U.S. at 266, 97 S.Ct. 555 (citing, as examples of rare cases where “a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action,” Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960)).
. Id.
. See Pl. Opp. at 17; PAF ¶ 18.
. Pl. Opp. at 19.
. See id. (citing PAF ¶¶ 25-30, 83). In fact, of these citations, the only one that explicitly alleges racial discrimination is the following, a declaration from a sixty-seven year old African-American woman who has been a NY-CHA resident since 1975 and a tenant patrol supervisor for ten years:
*363 I have heard many complaints about the ways in which [NYPD] officers interact with people in the Smith Houses. The NYPD officers are often very rude and disrespectful to the people who live in the Smith Houses, particularly young black and Latino male residents. In my opinion, officers often stop, question, and harass people based on what they are wearing, and not because they are doing anything illegal.
1/23/12 Declaration of Mary Baez, Tenant Patrol/Resident Watch Supervisor in NYCHA Smith Houses, Ex. 19 to Lee Decl., ¶ 3. Because the declaration does not include evidence that Baez's allegation of racial discrimination was conveyed to the NYPD, it does not by itself provide evidence of notice to the City of a racially discriminatory practice by the NYPD.
. 1/26/12 Declaration of Pearl Barkley, Resident of NYCHA Jefferson Houses, Ex. 13 to Lee Decl., ¶¶ 3, 8.
. See Am. Compl. ¶¶ 198-216.
. See City Mem. at 12-14; City Reply at 5-6.
. Pl. Opp. at 18.
. See id. at 17.
. As an example of evidence of the City's notice of racially discriminatory police practices involving stop and frisk generally, plaintiffs cite the following report: Office of the Attorney General of the State of New York, Civil Rights Bureau, New York City Police Department’s "Stop & Frisk” Practices: A Report to the People of the State of New York 174 (1999) (stating that racial minorities have
. 42 U.S.C. § 2000d.
. Am. Compl. ¶ 252.
. See City Mem. at 16-17 (citing United States Dep’t of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 604, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986); Alfano v. Bridgeport Airport Servs., Inc., 373 F.Supp.2d 1, 6 (D.Conn. 2005)); Pl. Opp. at 25-27 (same). The cited cases discuss section 504 of the Rehabilitation Act, but there is no dispute that the same standard governs Title VI. See Paralyzed Veterans, 477 U.S. at 600 & n. 4, 106 S.Ct. 2705 ("Title VI is the congressional model for subsequently enacted statutes prohibiting discrimination in federally assisted programs or activities. We have relied on case law interpreting Title VI as generally applicable to later statutes.”).
. See Alfano, 373 F.Supp.2d at 5-6; Paralyzed Veterans, 477 U.S. at 605-06, 106 S.Ct. 2705 ("By limiting coverage to recipients, Congress imposes the obligations of § 504 upon those who are in a position to accept or reject those obligations as part of the decision whether or not to ‘receive’ federal funds.”).
. See City Mem. at 16-17; MOU, Ex. B to 12/5/12 Declaration of Brian P. Clarke, ¶¶ 13-18; NYCHA’s Rule 56.1 Statement in Support of Its Motion for Summary Judgment ("NYCHA 56.1”) ¶ 31. The MOU clearly envisions NYCHA and the NYPD working together to apply for federal money for the NYPD's police services in NYCHA buildings. See, e.g., MOU ¶ 19 ("NYCHA and the City agree to work together in the preparation of applications for grants and subsidies under existing and future federal and state programs that may provide funding for public housing safety and law enforcement functions ....”). This general commitment appears immediately after a series of specific commitments by NYCHA to seek federal funding for the NYPD’s police services in NYCHA buildings, which NYCHA will then pay to the NYPD. See id. ¶¶ 13-18. The MOU also envisions “that the parties shall comply with all such laws and regulations in the expenditure of monies deriving from federal and state grant and subsidy programs.” Id. ¶ 25.
. 42U.S.C. § 11903(a)(l)-(2).
. See MOU ¶ 16.
. 28 C.F.R. § 42.102g (emphasis added); id. § 42.102f (defining "recipient”).
. See Paralyzed Veterans, 477 U.S. at 607, 106 S.Ct. 2705.
. Id. (quoting Grove City Coll. v. Bell, 465 U.S. 555, 572, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984) (finding that a college was Congress's intended recipient of federal money despite checks being sent to individual students, who then used money to pay tuition)).
. Because the statutory language of PIH-DEP is particularly clear in its authorization of indirect financial assistance to local law enforcement, and because plaintiffs need only establish that the City's police services in NY-CHA are supported by some federal funding, it is unnecessary to address congressional intent under the other sources of federal funding invoked in the MOU. But I note that a similar analysis would apply to, for example, 42 U.S.C. § 1437g(e)(l)(C) (authorizing public housing agencies to use federal financial assistance to pay "the costs of providing adequate security for public housing residents, including above-baseline police service agreements”). See also id. § 1437g(d)(l)(I) (authorizing "capital expenditures to improve the security and safety of residents”); MOU ¶ 14 (agreeing to transfer funding from NYCHA to the NYPD under a predecessor of this provision).
. Paralyzed Veterans, 477 U.S. at 605, 106 S.Ct. 2705.
. United States v. Fordice, 505 U.S. 717, 732 n. 27, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.); id. at 328, 98 S.Ct. 2733 (opinion of Brennan, White, Marshall, and Blackmun, XT., concurring in judgment in part and dissenting in part)).
. See Patterson v. McLean Credit Union, 491 U.S. 164, 171, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (stating that section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations”).
. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006).
. Davis I, 902 F.Supp.2d at 434. The City’s brief does not contest that the City may be liable under section 1981 for impairing plaintiffs’ contract with NYCHA based on racial discrimination. Indeed, even if NYCHA were not a defendant in this case, there is precedent for concluding that the City could be held liable for such interference. See Ginx, Inc. v. Soho Alliance, 720 F.Supp.2d 342, 358 (S.D.N.Y. 2010) (noting that allegation of "interference with a contractual relationship between Plaintiffs and someone other than Defendants does not bar a claim under § 1981” (citing Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000))).
. Davis I, 902 F.Supp.2d at 435.
. See City Mem. at 18-19.
. See Davis I, 902 F.Supp.2d at 434-35.
. 42 U.S.C. § 3604(b).
. See Davis I, 902 F.Supp.2d at 435-37. I also noted that no party had raised the argument that NYCHA and not the NYPD is liable under the FHA. See id. at 435 n. 174.
. See id. at 437-38 (citing Cox v. City of Dallas, 430 F.3d 734, 746 (5th Cir. 2005); Smith v. NYCHA, 410 Fed.Appx. 404, 406 (2d Cir. 2011) (citing Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565, 573 (2d Cir. 2003))).
. Pl. Opp. at 28. The City also argues that plaintiffs' claims under 42 U.S.C. § 3617 ("section 3617”) are barred by Frazier v. Rominger, 27 F.3d 828, 833-34 (2d Cir. 1994). See City Mem. at 14 n. 21. Plaintiffs offer no defense to this challenge. See Pl. Opp. at 28 n. 46 (noting that this Court did not reach the section 3617 claims in Davis I, but offering no defense of the claims). Plaintiffs’ section 3617 claims against the City are therefore also dismissed.
. Smith, 410 Fed.Appx. at 406 (quoting Regional Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002)). "If the plaintiffs make out a prima facie case, then the burden of production shifts to the defendants to provide a legitimate, nondiscriminatory reason for their decision.” Middletown, 294 F.3d at 49 (explaining how, the.burden-shifting framework proceeds under various evidentiary showings).
. The City also argues that plaintiffs’ claim must fail because section 3604 "only remedies conduct that affects housing opportunities or availability.” City Mem. at 15 (emphasis omitted). As plaintiffs correctly note, this issue was resolved in Davis I, 902 F.Supp.2d at 435-37. To be sure, plaintiffs' claims would be more closely bound to the FHA’s core concern with housing availability for protected groups if plaintiffs had offered statistical evidence of African Americans and Latinos leaving, or not entering, NYCHA housing in order to avoid the City’s allegedly racially discriminatory police services there. At the same time, where the choice may be between public housing and no housing at all, it would surely be contrary to the FHA's goals to require protected groups to opt for the latter in order to demonstrate the severity of a discriminatory post-acquisition practice. ■
. See Pl. Opp. at 29 n. 51.
. See Evans v. Solomon, 681 F.Supp.2d 233, 255 (E.D.N.Y. 2010).
. People v. Torres, 74 N.Y.2d 224, 228, 544 N.Y.S.2d 796, 543 N.E.2d 61 (1989) (quoting People v. P.J. Video, 68 N.Y.2d 296, 304, 508 N.Y.S.2d 907, 501 N.E.2d 556 (1986)) (certain quotation marks omitted).
. Felmine v. City of New York, No. 09 Civ. 3768, 2012 WL 1999863, at *6 (E.D.N.Y. June 4, 2012). Accord Flores v. City of Mount Vernon, 41 F.Supp.2d 439, 446-47 (S.D.N.Y. 1999) (”[N]o private right of action exists for violations of the New York State Constitution where a Plaintiff has alternative damage remedies available.”).
. See Pl. Opp. at 29-30; People v. Ventura, 30 Misc.3d 587, 913 N.Y.S.2d 543, 547 (Sup.Ct.N.Y.Co. 2010) ("To the extent that ... in public housing the police routinely engage in
. See Hollman, 79 N.Y.2d at 195-96, 581 N.Y.S.2d 619, 590 N.E.2d 204 (affirming De Bour "as a matter of State common law”).
. Because I conclude that plaintiffs have failed to show how section 1983 does not provide an adequate alternative remedy for their NYSC claims, I do not reach the City’s argument that plaintiffs' claims are barred under the New York State law doctrine of "governmental immunity.” See City Mem. at 19-20 (citing Lynch ex rel. Lynch v. City of Mount Vernon, 567 F.Supp.2d 459, 470 (S.D.N.Y. 2008)).
. See Pl. Opp. at 20. Plaintiffs do not dispute that all of their claims against NYCHA under these laws depend, at minimum, on a showing that NYCHA engaged in race discrimination, either directly through its own acts or indirectly through its relationship with the City. Compare Memorandum of Law of Defendant New York City [Housing] Authority in Support of Its Motion for Summary Judgment ("NYCHA Mem.") at 9, with Pl. Opp. at 20.
. See NYCHA Mem. at 9-10 (collecting cases).
. See Pl. Opp. at 28 n. 48.
. Id. at 20.
. Plaintiffs’ only legal citations are to two cases involving state and municipal liability under section 1983 for equal protection violations. See id. at 22-23 (citing City of Yonkers, 96 F.3d at 613-14; Comer v. Cisneros, 37 F.3d 775, 804 (2d Cir. 1994)). NYCHA is a municipal agency, see United States v. Torres, 703 F.3d 194, 202 (2d Cir. 2012), but I dismissed plaintiffs’ equal protection claims against NYCHA in Davis I, 902 F.Supp.2d at 430-31.
. Pl. Opp. at 20.
. For its part, NYCHA has provided uncontested evidence of a Non-Discrimination Policy and related procedures, as well as of numerous security measures. See NYCHA Mem. at 7-8, 10-14.
. Pl. Opp. at 20.
. See id. at 20-23.
. See id. at 21 (citing sources contained in PAF ¶¶ 29-30, 84-85).
. As noted above, I already granted summary judgment to NYCHA on plaintiffs’ equal protection claims in Davis I, 902 F.Supp.2d at 430-31.
. Id. at 442.
. Id. at 442. See also id. at 438 n. 192 (detailing dispute over "Highlights”).
. See NYCHA Mem. at 14-16.
. See Davis I, 902 F.Supp.2d at 438 n. 192.
. Highlights of House Rules, Lease Terms and Policy ("Highlights”), Ex. 28 to 7/20/12 Declaration of Katharine E.G. Brooker, at 1.
. See NYCHA Mem. at 15-16 (citing 24 C.F.R. § 966.3; New York Public Housing Law § 56).
. NYCHA Resident Lease Agreement ("NYCHA Lease”), Ex. B to 12/5/12 Declaration of Alan Pelikow, counsel for NYCHA ("Pelikow Decl.”), ¶ 12d.
. Highlights at 1.
. Id. at 4; Pelikow Decl. at ¶ 17.
. Highlights at 1.
. Pl. Opp. at 23 (citing NYCHA Lease ¶ 12bb).
. See NYCHA Mem. at 14-16 (citing Pelikow Decl.).
. Richmond Tenants Org., Inc. v. Richmond Redevelopment, 751 F.Supp. 1204, 1205 (E.D.Va. 1990) (emphasis added), aff'd, 947 F.2d 942 (4th Cir. 1991) (unreported) (per curiam).
. See, e.g., Thompson v. Ashe, 250 F.3d 399, 409 (6th Cir. 2001).
. Richmond, 751 F.Supp. at 1205. Accord Cabrini-Green Local Advisory Council v. Chicago Hous. Auth., No. 29 C 6949, 2007 WL 294253, at *2 (N.D.Ill. Jan. 29, 2007) (citing Richmond, 751 F.Supp. at 1205-06).
. Richmond, 751 F.Supp. at 1206.
. See Pl. Opp. at 24 (citing Highlights ¶ 21).
. See id. at 25 (citing Highlights ¶ 18).
. Pelikow Decl. at ¶ 25. See NYCHA Mem. at 16, 18.
. See NYCHA Mem. at 16-18.
. See id. at 18.
. For example, the Highlights document states that "NYCHA may start a proceeding to terminate tenancy if a tenant or family member ... breaches NYCHA rules." Highlights ¶ 28. But see 12/5/12 NYCHA’s Rule 56.1 Statement in Support of Its Motion for Summary Judgment ¶¶ 10-17 (suggesting that tenants may only be evicted based on rules violations where the rules have been formally promulgated).
. My conclusion is unaffected by the issue, discussed above, of whether Jackson and Johnson were stopped for presence in a prohibited area or for loitering or lingering. See supra Part V.A.l.b. Resident plaintiffs have standing to sue under section 1983 regarding unreasonable terms and conditions in their NYCHA leases whether or not any one of them has already been stopped or arrested based on those terms. See Richmond, 751 F.Supp. at 1205 (adjudicating claims by public housing tenants who challenged "various provisions of a new dwelling lease’’ as unreasonable under the USHA, prior to implementation of the new lease).
Reference
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- Kelton DAVIS, William Turner, Edwin Larregui, Anthony Anderson, Shawne Jones, Hector Suarez, Adam Cooper, David Wilson, Geneva Wilson, Eleanor Britt, Roman Jackson, Kristin Johnson, Lashaun Smith, Andrew Washington, Patrick Littlejohn, Raymond Osorio, Vaughn Frederick, and R.E., by her parent D.E., individually and on behalf of a class of all others similarly situated v. The CITY OF NEW YORK and New York City Housing Authority
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