OPINION AND ORDER
SHIRA A. SCHEINDLIN, District Judge:
The City of New York, operating principally through the New York City Police Department ("NYPD"), has continuously enforced three unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary.
This Court has consistently and clearly declared that enforcement of the void statutes must end no matter how difficult or tedious the task, and has repeatedly raised the specter of contempt of court. Thus far, however, I have declined to impose sanctions, trusting that the City was devoting "urgent attention" to these matters.
Nonetheless, the time for promises, excuses, and judicial forbearance is over— enough is enough. Because the City was not reasonably diligent in reaching this point and because the City has proven itself to only act responsibly and energetically when threatened with sanctions, the City is adjudged to be in contempt of court and is subject—following a six-month grace period—to a progressively-large fine for each future enforcement of the void laws. Because the contempt citation and attendant monetary sanction furnish sufficient incentive for the City not to enforce the statutes, I deny plaintiffs' request for a preliminary injunction without prejudice. Additionally, the City is subject to discovery sanctions for losing at least thirty-four hard copy summonses issued pursuant to the void laws.
The present two actions are related in that both challenge the City's enforcement of three unconstitutional subsections of New York's loitering statute—section 240.35 of the New York Penal Law. As described more fully below, Brown v. Kelly concerns subsection 1 and Casale v. Kelly concerns subsections 3 and 7 (collectively "the Statutes"). Though unconstitutional and unenforceable, the Statutes remain on the books because the New York Legislature has not repealed them.
A. Judicial Invalidation of the Statutes
In 1983, in People v. Uplinger, the New York Court of Appeals declared section 240.35(3) unconstitutional on due process grounds.
In 1988, in People v. Bright, the New York Court of Appeals struck down section
And in 1992, in Loper v. New York City Police Department, Judge Robert W. Sweet of this Court declared section 240.35(1) unconstitutional on First Amendment grounds, and permanently enjoined enforcement of the statute.
Brown v. Kelly, Casale v. Kelly, and the City's Efforts to Cease Enforcement of the Statutes 14
Notwithstanding Uplinger, Bright, and Loper, the City, operating through the NYPD, has unlawfully enforced the Statutes tens of thousands of times.
In June and July 2005, the City took various steps to stop enforcement of section 240.35(1). These steps included sending notices to all NYPD precincts and commands and respective employees that section 240.35(1) is void and unenforceable; reading FINEST messages at police officer roll calls;
The City, as I have previously explained, "seem[s] to have done little thereafter."
Defendants failed to take the reins on monitoring their own compliance with the June 23, 2005 Order. It is for this reason that defendants are able to assert in their defense that it was not until November 2006, when plaintiff confronted them with hard data, that defendants knew of the frequency with which section 240.35(1) continued to be enforced—i.e., that hundreds of summonses and over eighty warrants had been issued since the June 23, 2005 Order. The burden of tracking the continued unlawful enforcement of section 240.35(1) has always been carried by plaintiff. It has also been defendants' modus operandi to cast suspicion on plaintiffs data demonstrating the pervasiveness of the continuing enforcement.
As a result of defendants' continuing failure to comply with court orders, by letter to the Court dated November 9, 2006, plaintiff requested leave to file a contempt motion against defendants. At a pre-motion conference held on November 29, 2006, defendants promised to undertake a plan of action that would curb the continued enforcement of section 240.35(1). This plan included sending targeted notices to those NYPD officers who had issued unlawful summonses. Defendants also proposed additional training for police officers to be held between November 2006 and March 2007, and for sergeant and lieutenant promotional classes to remind all officers that the statute is unenforceable. Additionally, defendants promised to take steps necessary to vacate all warrants issued as a result of section 240.35(1) summonses. In reliance upon defendants' assurances that plaintiff was going to get the necessary relief, the Court denied plaintiffs request to move for a judgment of contempt.
On December 14, 2006, the Court ordered the City to take a number of additional remedial actions—ones the City
Though the June 23, 2005 Order was crystal clear that enforcement of the statute must cease, "defendants continued to arrest, prosecute, issue bench warrants, and issue an alarming number of summonses for violations of section 240.35(1)."
On February 26, 2007, plaintiff Brown informed the Court that notwithstanding defendants' promises and in the face of the December 14, 2006 Order, an additional twenty-three unlawful bench warrants and ninety-six unlawful summonses had been issued to New Yorkers between November 1, 2006 and February 21, 2007. In light of this new information, the Court granted plaintiff leave to move for civil contempt.
From January 2, 2007 through March 14, 2007, NYPD officers issued summonses under section 240.35(1) at an average rate of approximately one every other day.
On March 30, 2007, plaintiff Brown moved for a judgment of civil contempt against the City and for the imposition of coercive sanctions for each prospective incident of enforcement. On May 31, 2007, in Brown I, this Court denied the motion, concluding that civil sanctions were not warranted because the City appeared to have "turned [its] behavior around" in December 2006, taking "responsibility for [its] noncompliance with the June 23, 2005 Order and be[coming] proactive in seeking to end the unlawful enforcement of the statute."
On June 19, 2007, the NYPD circulated a memorandum to commanding officers instructing them that "Penal Law 240.35, subdivisions 1, 3, and 7 have been declared unconstitutional" and that "arrests made and summonses issued for these offenses are unenforceable."
Also in June 2007, the Chief of Patrol's office began to investigate summonses issued under the Statutes, which entailed interviewing the offending officer and instructing him or her not to issue summonses under the Statutes.
In March 2008, plaintiffs filed Casale v. Kelly, a putative class action contending that the City of New York, operating through the NYPD, willfully continued to enforce subsections 3 and 7 of New York Penal Law section 240.35.
On May 1, 2008, the Court "so ordered" a stipulation requiring the City to take action to stop future NYPD enforcement of subsections 3 and 7, including contacting the criminal court system and the District Attorneys for the five boroughs.
In July 2008, a lesson plan for Command Level Training was issued that reiterated that the Statutes are unconstitutional and should not be enforced.
In May 2009, plaintiffs informed the Court at a conference that the NYPD's enforcement of the statutes was "trending up."
In June 2009, the City distributed a memo to training sergeants reiterating the unconstitutionality of the Statutes and advising that continued enforcement would result in disciplinary action.
In October 2009, the NYPD conducted a review of precinct libraries to determine if the three subsections had been stricken from all copies of the penal law. "According to the NYPD's report on this process, the commands with copies still containing the Statutes as of October 2009 were: 90th, 94th, BNTF, 60th, TD #34, 41st, BXTF, 26th, 1st, 5th, 6th, 7th, 9th, 10th, 13th, Midtown South, 17th, 26th, 104th, 109th, 110th, 100th, 101st, 103rd, 106th, 107th, 113th, Hwy 3, QSTF, TD #20."
Also in October 2009, the Police Commissioner instructed the NYPD's Internal Affairs Bureau ("TAB") to take over investigation into summonses issued for the Statutes.
In October 2009, plaintiffs conducted expedited depositions of NYPD officers who had recently issued summonses under the Statutes. These depositions revealed the widespread use of "cheat sheets" or "Master C Summons Lists", which are unofficial lists of summonsable offenses carried by
Following plaintiffs' uncovering of the cheat sheets, plaintiffs demanded the City take a number of actions to remove the unconstitutional laws from those documents. Though the City agreed to undertake various measures to review and correct the cheat sheets, the City rejected plaintiffs' demand for production of the cheat sheets. Plaintiffs applied to the Court for a preservation order on December 1, 2009.
According to the City, additional efforts are underway to affix a sticker warning officers not to issue summonses under the laws to each new book of summonses signed out by officers, and to require certain officers, including supervisors, to a carry a new memo book insert of Common Summonsable Offenses that does not reference the laws and specifically warns not to enforce the laws.
C. The City's Recent Enforcement of the Statutes 62
The City reports that 462 unlawful summonses were issued pursuant to sections 240.35(1), (3), and (7) from June 2007— that is, following Brown I—through February 2010.
For subsection 1, from June 2007 through February 2010, the City reports 110 and plaintiffs report 123 unlawful summonses.
For subsection 3, from May 2008 through February 2010, the City and plaintiffs both report 125 unlawful summonses.
For subsection 7, from May 2008 through February 2010, the City reports 6 and plaintiffs report 8 unlawful summonses.
The parties agree that, most recently, an NYPD officer enforced subsection 3 on February 2, 2010, and that another officer twice enforced subsection 7 on February 27, 2010.
In summary, though the parties dispute the precise extent of recent enforcement of the Statutes, it is undisputed that hundreds of summonses have issued in violation of this Court's Orders. It is likewise clear that summonses continue to issue under the void laws, albeit at a much lower rate than in years past.
Plaintiffs now move for civil contempt, a preliminary injunction, and discovery sanctions.
1. Applicable Law
"[I]t is firmly established that the power to punish for contempts is inherent in all courts."
The City does not dispute that plaintiffs satisfy the first requirement for civil contempt, in that the Court's June 23,
In the decades since the laws were invalidated, the City has implemented a number of anti-enforcement measures, including: trainings of recruits and officers; FINEST messages reinforcing NYPD policy not to enforce the laws; use of a computer database to identify summonses issued under the laws; investigation of summonses issued under the laws, now conducted by the IAB; discipline of officers who issue summonses, now requiring a mandatory "B" Command Discipline with a minimum loss of one day's vacation time; striking out of all references to the laws in any NYPD copies of the New York Penal Law; deletion of references to the laws in any non-NYPD reference materials carried by officers; distribution to officers in their paychecks of an official written order not to enforce the laws; and reinforcement of the Patrol Guide requirement that a supervisor review all summonses and flag any written under the laws. The NYPD is also writing to recipients of summonses issued under the laws informing them that the summons was issued improperly.
This catalog of the actions taken by the City masks and obscures the City's generally lethargic approach to compliance with the Orders. Nearly every measure that the City has undertaken has been at the direction of the Court, the prodding of plaintiffs, and/or under the threat of sanctions. For example, it was only under court order that the City implemented a letter notification program.
In fact, prior to this most recent threat of contempt, and since Brown I, the City did relatively little proactively or with reasonable dedication to curb its consistent enforcement of the Statutes. On September 14, 2009, plaintiffs wrote to the Court as follows:
Immediately thereafter, the City suddenly enacted new initiatives. Two weeks later, Police Commissioner Kelly first assigned the NYPD's IAB to investigate summonses for violation of the Statutes.
Prior to October 2009, the NYPD's investigatory and disciplinary process appears to have been both discretionary and toothless: "the officer could be issued a Schedule A Command Discipline," and "the Commanding Officer might also order the command's Training Sergeant to re-instruct."
The City also points to its December 2009/January 2010 review of officers' cheat sheets as an example of its diligence. Quite the opposite is true. Plaintiffs, not the City, discovered the widespread use of cheat sheets during depositions in October 2009, and demanded a department-wide review. While the City agreed that action needed to be taken with respect to the cheat sheets—the threat of contempt looming at this time—the City's abject failure to previously identify the widespread use of cheat sheets containing the void Statutes is incomprehensible. That the City has not been monitoring and correcting these sheets demonstrates the City's lax approach to ending enforcement of the Statutes. That the cheat sheets are not official NYPD documents is no excuse, for not only have they been in use for years, but supervising officers were well aware of their usage.
The City points to other actions to demonstrate reasonable diligence, such as striking out all references to the Statutes in any NYPD copies of the New York Penal Law. But, once again, in context, the City's weak effort to end the illegal enforcement is exposed. Via FINEST messages dated April 21, 2008 and June 3, 2009, the NYPD ordered that all copies of the Penal Law maintained in all NYPD commands were to be redacted to omit the Statutes. However, the City never confirmed whether its directive had been executed. Not until October 19, 2009 did the City conduct a systematic survey of all NYPD precinct libraries in order to ensure that the Statutes were deleted from their copies of the New York Penal Law. This review revealed that dozens of commands still contained copies of the Penal Law with the offending Statutes, in violation of the order in the two FINEST messages. Evidence in the record reveals that officers consult these books,
The City narrowly escaped sanctions in 2007, and it was the Court's genuine hope at that time that such a close call would motivate the City to meaningfully persevere to end the illegal enforcement—that is, to act with urgency to uncover and root out the reasons why enforcement had not yet ceased. This the City failed to do. In the years since the City was ordered to stop enforcing the Statutes, the City appears to have made little effort to understand and address the mechanisms underlying continued enforcement of the Statutes. Only when threatened with sanctions in September 2009 did the City begin to act with reasonable energy and diligence toward the desired goal. But where such a last minute frenzy was key to the avoidance of contempt in 2007, this time, it's too little, too late.
A sanction imposed on a party held in civil contempt may serve either or both of two purposes: to coerce the contemnor to comply in the future with the court's order, or to compensate the complainant for losses resulting from the contemnor's past non-compliance.
A court may impose a fine as a sanction only if "the contemnor is able to purge the contempt ... by committing an affirmative act, and thus carries the keys of his prison in his own pocket."
Here, as sanctions for the City's civil contempt, plaintiffs request a coercive sanction of $5,000 for each prospective violation of the Court's Orders. The City argues that prospective coercive sanctions are unnecessary because the most recent statistics show reduced enforcement.
I agree with plaintiffs that a monetary fine per future incident of enforcement is the only remedy that will bring about true, long-term compliance with the Orders. Given the City's long history of non-compliance and routine apathetic attitude toward ending the illegal enforcement, the City has demonstrated that nothing less than the prospective threat of immediate and severe consequences will motive it to comply with the Court's Orders. The City is therefore prospectively fined for each future violation of the Orders, payable to the Court. To ensure compliance in the long-term, the fine shall grow progressively. The fine shall begin at $500 per incident of enforcement. Every three months thereafter, the fine shall increase by $500. The maximum fine shall be $5,000 per incident of enforcement.
As a "purge" provision, the City shall avoid fines if it files and publishes within 60 days, an affirmation of its intention to abide by the Orders, and then abides by them. If the City conforms its conduct to the Court's Orders, it will escape an obligation to pay fines. "It is therefore clear that punishment for past wrongdoing is not the objective of the fines, but rather coercion of the defendants to conform their conduct to the court's order."
B. Preliminary Injunction
Plaintiffs seeks an order preliminary enjoining the City to take numerous remedial steps to halt enforcement of the Statutes once and for all and to institutionalize the City's anti-enforcement program.
C. Discovery Sanctions
Pursuant to Federal Rule of Civil Procedure 37(d) and/or the Court's inherent power, plaintiffs seek discovery sanctions against the City for failing to preserve hard copies of at least 34 summonses issued under the Statutes from June 2007 to date.
1. Applicable Law
"It is well established that the duty to preserve evidence arises when a party reasonably anticipates litigation."
To prove spoliation, the innocent party must establish three elements: "that the spoliating party (1) had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) acted with a culpable state of mind upon destroying or losing the evidence; and that (3) the missing evidence is relevant to the innocent party's claim or defense."
The City's duty to preserve with respect to section 240.35(3) arose in at least January 2003 when the City was sued by an individual wrongfully arrested under that provision, and the City subsequently compensated that individual to settle the case. The City's duty to preserve with respect to section 240.35(1) arose in at least June 2005, when the Brown litigation was commenced. And the City's duty to preserve with respect to section 240.35(7) arose in at least March 2007, when the NYPD's Chief of Patrol circulated a memorandum
The City does not dispute that, notwithstanding this duty, it failed to produce at least thirty-four hard copies of summonses issued for the Statutes since June 2007. Instead, the City argues that it should not be sanctioned because it has produced to plaintiffs approximately 680 summonses in hard copy, and because OCA was in possession of the missing summonses when they were lost. It is undisputed, however, that each of the summonses originated with the NYPD; therefore, the City had possession and control over the lost summonses despite their later having been sent to OCA. Once the duty to preserve arose, the City was under an obligation to retain copies of all summonses issued under the Statutes.
Turning to the City's culpability, I conclude that this loss of evidence was the result of negligent—as opposed to grossly negligent, willful, or intentional—conduct.
Because the City was negligent in losing hard copy summonses, plaintiffs must prove relevance and prejudice in order to justify a harsh sanction. Relevance is obvious. As to prejudice, the hard copy of a summons is the only document containing the "narrative" portion of a summons that describes the alleged misconduct. Without the hard copy, the only contemporaneous evidence of what the officer alleges occurred is lost. Plaintiffs are prejudiced as a result. For example, the City argues with respect to the merits of this case that "[t]o the extent that plaintiffs have alleged that a summons issued under the Statutes per se resulted in a Fourth Amendment violation, their argument fails ... if there was probable cause to believe that the person summonsed was involved in any criminal activity at the time, not necessarily the activity contemplated under the Statutes."
Having shown that the City committed spoliation, plaintiffs are entitled to a remedy. Plaintiffs request an "adverse inference that for every one of the 34 (and perhaps more) summonses not produced by defendants, the record would have revealed no legal basis for the summons being issued other than the violation of the unconstitutional loitering law."
D. Attorneys' Fees and Costs
Courts have "`broad discretionary power' ... to fashion equitable remedies which are `a special blend of what is necessary, what is fair, and what is workable.'"
For the reasons set forth above, plaintiffs' motion for contempt and discovery sanctions is granted. Plaintiffs' motion for a preliminary injunction is denied without prejudice. Plaintiffs are directed to submit a fee application by May 14, 2010. The Clerk of the Court is directed to close this motion (document number 36). A conference is scheduled for May 12, 2010 at 2:30 p.m.