New York City’s Stop-And-Frisk Appeals Are Still Alive

Journal of Law and Policy: Professor Article 

I. Introduction 1 

Will Judge Scheindlin’s decision that the NYPD’s stop-and-frisk practices are unconstitutional stand?  Everyone seems to think so.  On November 22, 2013, the Second Circuit denied the City of New York’s motion to vacate two decisions that ordered fundamental changes to the NYPD’s stop-and-frisk practices: the February 14, 2013 decision in Ligon v. City of New York, and the August 12, 2013 decision in Floyd v. City of New York.  The blow inflicted by the October 31, 2013 removal of Judge Scheindlin from Floyd and Ligon (due to a purported appearance of partiality) now seems irrelevant.  Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning the stop-and-frisk orders to go no further.  The appeals will be set for argument after March 14, 2014, so if De Blasio follows through, the City’s appeal arguments will be mooted.  The Bloomberg administration will never get to defend its stop-and-frisk practices, Judge Scheindlin’s sweeping injunctions will stand, and the plaintiffs’ cause will be vindicated. But this outcome is by no means inevitable.  

The strongest argument in the City’s arsenal is one that it has yet to use: that the stop-and-frisk plaintiffs may lack standing 2 to request the relief the court ordered.  The Second Circuit denied the City’s motions to vacate the orders granting vast injunctive relief “without prejudice,” 3 so more motions may be filed. Moreover, though the City filed its opening briefs in Floyd and Ligon on December 10, 2013 4 and made no mention of the plaintiffs’ potential lack of standing, standing arguments are never waived. 5 As a result, standing may keep the appeals alive, and stop-and-frisk practices in New York may remain untouched. 6

Is this the right outcome? Most stop-and-frisk opponents would object. But if City of Los Angeles v. Lyons 7 is properly applied, the inevitable outcome is that the plaintiffs lack standing. In civil rights cases, the logic supporting a plaintiff-friendly outcome must be inscrutable because the rights at stake are so important. If federal court opinions that uphold or expand civil rights are based on faulty logic, not only will the opinions be attacked, the rights themselves will also come under fire. Because Lyons is still good law, the way to overcome it was to acknowledge that Lyons is binding, and then explain how to overcome its holding with a new theory of justiciability, which would then pave the way for a higher court to undo Lyons’ mistakes. Analytical shortcuts and misrepresentations, however, result in unjustifiable standing rulings, and hand the civil rights-unfriendly Supreme Court yet another case through which to further narrow civil rights remedies.

II. DO THE LIGON AND FLOYD PLAINTIFFS HAVE STANDING?

The district court’s findings that the Ligon and Floyd plaintiffs have standing to seek injunctive relief are difficult to justify.

A. Stop-and-Frisk Standing Is Controlled by City of Los Angeles v. Lyons

Floyd, a Section 1983 class action, challenged the NYPD’s street-level stop-and-frisk practices, arguing that they amounted to racial profiling. Ligon is a Section 1983 class action challenging the NYPD’s trespass arrest policy, known as “Operation Clean Halls,” a program through which the NYPD patrols private apartment buildings. Both Floyd and Ligon were assigned to Southern District Judge Shira Scheindlin. In its May 16, 2012 order finding that the Floyd plaintiffs had standing to seek injunctive relief, the district court acknowledged that “[c]oncrete injury is a prerequisite to standing and a ‘plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.’” 8 The court even explained that the likelihood of future injury requirement had been emphasized by the Supreme Court in City of Los Angeles v. Lyons. 9

“Most claims for injunctive relief under Section 1983 will fail the Lyons standing inquiry long before a court has a chance to address the substance of the constitutional right at issue.” 10 Nevertheless, the district court found the Floyd plaintiffs had standing. The court focused on (1) plaintiffs’ past experience with unconstitutional stops, holding that those experiences rendered the likelihood that the plaintiffs would suffer the same injury again real, not speculative; (2) that, unlike Lyons, one of the Floyd plaintiffs could not avoid the unconstitutional conduct he had previously suffered since it occurred not following illegal behavior (Lyons committed a traffic violation), but while he was going about his daily life, i.e., legal behavior; and (3) that the sheer volume of unconstitutional stops and frisks alleged by plaintiffs (60,000 unconstitutional stops out of the 2.8 million examined) made the likelihood of future injury anything but conjectural. On February 14, 2013, the district court also found that the Ligon plaintiffs had standing, 11 explaining that it had already “addressed this issue extensively in Floyd,” and that the same analysis applied to Ligon. As it had done in Floyd, the court relied on plaintiffs’ past experiences with unconstitutional stops. It also found that even those plaintiffs who had suffered only one unconstitutional stop would likely have standing due to the frequency of unlawful trespass stops alleged by plaintiffs. 

In Floyd, though the original complaint included claims for damages and injunctive relief, by the time of trial, the plaintiffs sought only injunctive relief. 12 The trial lasted nine weeks. On August 12, 2013, the plaintiffs were granted a sweeping permanent injunction, which ordered changes to NYPD policies, appointed a monitor to oversee stop-and-frisk practices, required a “community-based joint remedial process to be conducted by a court-appointed facilitator,” and that one precinct in each borough place body-worn cameras on their officers. 13 The Ligon complaint included claims for damages and injunctive relief, but the sole issue on appeal is injunctive relief. 14 The Ligon February 14, 2013 order granted plaintiffs a preliminary injunction, but postponed a decision as to remedies until the Floyd trial ended. 15 Once the Floyd trial concluded, the court ordered remedies in the Ligon case that were similar to those in Floyd. 16 For example, the court “delegat[ed] the oversight of the Ligon remedies regarding supervision and training to the [Floyd] Monitor because there is substantial overlap between these remedies and injunctive relief concerning supervision and training in Floyd.” 17 

The claims on appeal are the same ones that were at issue when the court first examined standing, where the district court acknowledged that Lyons controlled. As a result, on appeal, the Ligon and Floyd plaintiffs must still conform to the rigorous standard established in City of Los Angeles v. Lyons.

Lyons is a well-recognized roadblock to the kind of Section 1983-based Fourth Amendment claims brought in Ligon and Floyd. 18 In Lyons, Adolph Lyons sued the City of Los Angeles and four police officers in connection with the LAPD’s chokehold practice, which Lyons alleged was used dangerously and indiscriminately. 19 Lyons was subjected to a chokehold after he was stopped for a traffic violation—his car had a burned out taillight. 20 He neither threatened nor resisted the officers who pulled him over, but the officers placed him in a chokehold that rendered him unconscious and damaged his larynx. 21 Lyons sought damages and injunctive relief, 22 but the Supreme Court reviewed only Lyons’ injunction request, which sought to bar the chokehold used on Lyons when officers are not threatened by deadly force. Lyons alleged that the chokeholds threatened him and others similarly-situated “with irreparable injury . . . and loss of life.” 23 

The Court controversially held that it lacked jurisdiction over Lyons’ injunctive relief claim. Specifically that Lyons’ assertion that he might be subject to a chokehold some time in the future was too speculative. 24 He could not establish a “real and immediate threat” that he was likely to suffer future injury from the use of chokeholds for purposes of the case or controversy requirement. 25 The Court also emphasized that although federal courts may grant injunctions pursuant to Section 1983, they may not overlook principles of “equity, comity and federalism” when “asked to oversee state law enforcement authorities.” 26 Though Lyons had no claim in equity, he still had “an adequate remedy at law” because of his pending damages claims. 27

Lyons’ harsh ruling still stands. 28 

B. Floyd: No Standing for Purposes of a Permanent Injunction 

In Floyd, the district court found four alternative ways to establish standing. Each fails. First, the court held that because plaintiff David Ourlicht was stopped by NYPD officers three times in 2008 and once in 2010, the possibility that Ourlicht would suffer a recurring injury was real, not speculative. 29 In support of this conclusion, the court cited Nicacio v. United States Immigration & Naturalization Services, a Ninth Circuit case. 30 But Nicacio distinguished Lyons because there, “federal courts [were] dealing with conduct of federal agents; [and] there [was] no threat of federal entanglement with state processes.” 31 The threat of federal entanglement with state processes was present in Lyons, and is also present in Floyd.

More importantly, after hearing Ourlicht’s trial testimony, the court found that Ourlicht was unconstitutionally stopped and frisked on January 30, 2008, 32 but it could not find that Ourlicht’s rights were violated on any other occasion in 2008. 33 The allegations that the court relied upon to find standing in May 2012 were materially different by the time trial concluded. As the case developed, the evidence revealed that Ourlicht was unconstitutionally stopped and frisked only once in 2008. Also, there is no mention of any 2010 stop and frisk in the court’s August 12, 2013 post-trial findings. Plaintiffs’ pretrial contentions only include allegations regarding Ourlicht’s 2008 stops and frisks. 34 It was the court’s responsibility to ensure that standing was present at every stage of litigation, especially in light of the evolving evidence. Standing “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” 35 “[A]t the final stage, [standing] facts (if controverted) must be ‘supported adequately by the evidence adduced at trial.’”36 By the time the Floyd trial ended, the alleged but ultimately unproven Ourlicht stops could not establish standing. On the record, he was stopped and frisked unconstitutionally only once.

Second, the Court found that the Floyd plaintiffs had standing because Ourlicht’s “risk of injury is not based on a string of unlikely contingencies.” 37 These three incidents refer to the stops that Ourlicht alleged occurred in February and June 2008, as well as 2010. 38 After hearing all the evidence at trial, the court did not find that these stops were unconstitutional. 39 The only unconstitutional stop and frisk that the evidence demonstrated actually occurred happened on January 30, 2008, which the Court did not choose to highlight for purposes of its “daily life” standing theory. 40 Once all the evidence had been marshaled the facts that the Court previously relied upon to establish standing were no longer present.

Third, the court found that “the frequency of alleged injuries at issue here creates a likelihood of future injury sufficient to address any standing concerns.” 41 This conclusion was expressly rejected in Lyons, which held that “the allegation that the police in Los Angeles routinely apply chokeholds in situations where they are not threatened by the use of deadly force falls far short of the allegations . . . necessary to establish a case or controversy.” 42 For that sort of allegation to establish standing,

"Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either, (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning or, (2) that the City ordered or authorized police officers to act in such manner."43

The Floyd court found that “60,000 of the [2.8 million stops at issue] were unconstitutional;”44shocking to the conscience or not, they do not satisfy Lyons. Indeed, the Second Circuit has interpreted Lyons to require that “a plaintiff seeking injunctive relief must demonstrate both a likelihood of future harm and the existence of an official policy or its equivalent.”45

The court made post-trial findings that the City was liable under Monell by finding that the City had demonstrated deliberate indifference to unconstitutional stops and frisks.46 However, these findings do not establish standing on the grounds that the City had “an official policy or its equivalent” authorizing unconstitutional stops and frisks. It is not relevant that the court found voluminous evidence of deliberate indifference. 47 Evidence of deliberate indifference, though relevant to Monell liability, is not evidence of the kind of official policy described in Lyons and therefore cannot establish standing for purposes of equitable relief.

There are four ways to establish Monell liability--by alleging the existence of:

"(1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing municipal policies related to the particular deprivation in question; (3) a practice so consistent and widespread that it constitutes a ‘custom or usage’ sufficient to impute constructive knowledge of the practice to policymaking officials; or (4) a failure by policymakers to train or supervise subordinates to such an extent that it amounts to ‘deliberate indifference’ to the rights of those who come in contact with the municipal employees." 48

Only the first theory of Monell liability is premised on “a formal policy officially endorsed by the municipality.”49 Monell liability that arises under a theory of deliberate indifference, by contrast, does not “rise to the level of express authorization . . . required by Lyons.”50 To satisfy Lyons, the plaintiffs had to prove that the City “orders or authorizes” unconstitutional stops and frisks, not simply that the City was deliberately indifferent to unconstitutional stops and frisks. 51 The evidence at trial failed to show that level of culpability by the City.

Finally, the court alternatively found sufficient grounds for standing because plaintiffs Dennis and Floyd “have each been stopped by the NYPD more than once.”52 However, at trial, the court held that Dennis and Floyd had been unconstitutionally frisked, but not unconstitutionally stopped. 53Plaintiffs lack standing to seek an injunction “in situations that [they] ha[ve] not experienced;”54 therefore, Dennis and Floyd had no standing to challenge unconstitutional stops, and there was no standing to issue injunctive relief with respect to unconstitutional stops. This is significant. Floyd was purportedly about stops and frisks. How might the case have developed if its only focus was on frisks that followed constitutional stops?

Moreover, though evidence at trial supported the conclusion that Floyd had been unconstitutionally frisked twice, the evidence with respect to Dennis involved only one unconstitutional incident.55 After the Floyd trial, we are left with evidence that plaintiff Ourlicht was unconstitutionally stopped and frisked once,56plaintiff Floyd was unconstitutionally frisked twice, plaintiff Dennis was unconstitutionally frisked once, and plaintiff Clarkson was unconstitutionally stopped and frisked once,”57 that is, nothing more than proof that these plaintiffs were subject to illegal police action in the past.58Under Lyons, this is not enough to establish that they will be subject to the same illegal action in the future. 59 Such past actions cannot establish that the Floyd plaintiffs had standing.

C. Ligon: No Standing for Purposes of a Preliminary Injunction60

In a February 14, 2013 order granting plaintiffs a preliminary injunction, which the Second Circuit has so far refused to vacate, Judge Scheindlin rejected defendants’ arguments that the Ligon plaintiffs lacked standing on three independent grounds. 61

First, standing was purportedly established because three plaintiffs, Abdullah Turner, J.G. (a minor), and Johan Jefferson were subject to multiple unlawful trespass stops.62 Though this conclusion is supported by citations to the plaintiffs’ preliminary injunction testimony, none of the cited testimony speaks to the plaintiffs’ likelihood of being subject to future illegal stops. Instead, the focus is squarely on the past.63 Lyons expressly rejected this kind of standing theory: that because a plaintiff was subject to illegal police action in the past that plaintiff can establish that he will be subject to the same illegal action again.64 The Second Circuit has stated that under Lyons, “[a] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.”65 The Ligon plaintiffs do not meet this bar.

Second, Ligon standing was alternatively based on the fact that plaintiff Turner “has lived since 2008 in a [building subject to the challenged trespass arrest procedure], where . . . he will likely be the target of unlawful stops—if such stops continue to take place as they have in the past.”66 The court cited to Turner’s injunction hearing testimony, but that testimony did not address where Turner planned to live in the future, or whether he feared being subject to unlawful stops again. 67 That one plaintiff will “likely” be the target of unlawful police actions “if” the practices continue is the kind of conjectural injury Lyons rejected. Instead Lyons required “a sufficient likelihood that [the plaintiff] will again be wronged in a similar way.”68 Such a showing cannot be made by the Ligon plaintiffs.

The court found a third alternative ground for standing, holding that “in light of the frequency of unlawful trespass stops . . . even those plaintiffs who have only been subjected to such a stop one time would likely have standing, provided that they continue to live in or visit [the buildings at issue].”69 In support of this conclusion, the court cited its own Floyd decisions, as well as an opinion Judge Scheindlin authored in National Congress for Puerto Rican Rights, renamed Daniels. As explained above, Daniels has been criticized for its standing conclusion. And neither Floyd nor Daniels is binding. The court’s citation to an unpublished Southern District of New York decision, Battle v. City of New York,70 also constitutes reliance on nonbinding precedent.

Battle itself relied upon a Second Circuit case, Amnesty International USA v. Clapper,71 which held that “[o]ne factor that bolsters a plaintiff's argument that the injury is likely to come to pass . . . is the existence of a policy that authorizes the potentially harmful conduct.”72 Battle also cited Clapper for the proposition that when “[p]laintiffs can reasonably assume that government officials will actually engage in [the complained of] conduct,” the likelihood of future harm is enhanced.73 According to Battle, allegations of an official policy that plaintiffs can reasonably assume government officials will continue to engage in rendered the plaintiffs’ risk of future injury real and immediate.74 

The rule Battle cited for its standing conclusion is no longer good law—Clapper was overruled by the Supreme Court on this very point. The Court rejected the plaintiffs’ arguments that “they can establish injury in fact . . . because there is an objectively reasonable likelihood that [the challenged illegal conduct will occur again] at some point in the future.”75 Moreover, the Court specifically disavowed “the Second Circuit's ‘objectively reasonable likelihood’ standard,” finding it “inconsistent with our requirement that ‘threatened injury must be certainly impending to constitute injury in fact.’” 76 The idea that the frequency of past unconstitutional conduct renders future unconstitutional conduct more likely, the thrust of the court’s decision granting standing in Ligon, relies on a “reasonable likelihood standard,” the very standard repudiated by the Supreme Court in Clapper.

III. CONCLUSION

“[S]ome lower federal courts have gone to Herculean lengths to distinguish Lyons . . . to grant victims of police misconduct standing.”77 However, “these cases seem to reveal that many district judges haven't accepted that injunctive relief may simply be unavailable to private plaintiffs seeking to enjoin unconstitutional police practices.”78 One such case is National Congress for Puerto Rican Rights v. City of New York,79 in which Judge Scheindlin distinguished Lyons to find standing.80 This case was later renamed Daniels v. City of New York, and was cited repeatedly to support conclusions in Floyd and Ligon. Daniels settled before it went to trial, and was never reviewed by a higher court.

Most federal courts “simply follow the rule announced in Lyons to deny standing.”81 Floyd and Ligon seem to deliberately ignore the same rule. Yet the outcome—granting standing to civil rights plaintiffs challenging unconstitutional police action—is not indefensible. This is especially true in light of the myriad problems the Lyons opinion presents. As Justice Marshall so aptly put it, Lyons “departs from [the] Court’s traditional concept of standing and of the remedial powers of the federal courts.”82 More importantly, and perhaps most disturbingly for anyone (like this author) who cares about civil rights, “[t]he Court’s decision remove[d] an entire class of constitutional violations from the equitable powers of a federal court . . . . immuniz[ing] from prospective relief any policy that authorizes persistent deprivations of constitutional rights.”83

But because Lyons is still good law, the way to overcome it is not to misstate its holding. District court opinions that seek to make fundamental changes to the law of standing cannot rest on analyses that disregard binding precedent, especially when the rights at stake are so crucial. Opinions that overlook binding precedent are vulnerable to reversal and risk delegitimizing what may be a just outcome if the means used to achieve that outcome (ignoring stare decisis, for example) are illegitimate.84

The district court had other ways to undo Lyons. It might have acknowledged that Lyons is binding, but gone on to explain how to overcome its holding with a new theory of justiciability, paving the way for a higher court to undo Lyons’ mistakes. But pretending like Lyons doesn’t exist sets up cases like Ligon and Floyd for reversal. It also risks handing the civil rights-unfriendly Supreme Court yet another case through which to further narrow the relief available to those whose civil rights have been violated.

Because standing is jurisdictional, the City can challenge standing at any time, meaning it can do so before De Blasio arrives. Moreover, the City cannot concede plaintiffs’ standing.85 Standing is also addressed at every level of review, “even if the courts below have not passed on it, and even if the parties fail to raise the issue.”86 The court’s suspect standing logic may undo all of its Floyd and Ligon holdings. As a result, the City’s defense of its stop-and-frisk practices is not yet dead.

Recommended Citation: Katherine Macfarlane, New York City’s Stop and Frisk Appeals Are Still Alive, J.L & Pol’y, Practicum (Dec. 26, 2013). [http://practicum.brooklaw.edu/articles/new-york-city%E2%80%99s-stop-and-frisk-appeals-are-still-alive]

  • 1. Prior to joining the LSU faculty, I worked in the New York City Law Department’s Special Federal Litigation Division, which defended the City in Daniels, Floyd, and Ligon.  Daniels settled before I joined the Law Department.  I did not work on either Floyd or Ligon.
  • 2. Standing is one aspect of the intricate law of justiciability, which determines whether a federal court may hear a case in light of constitutional limits on federal jurisdiction.  To be properly before a federal court, “several justiciability doctrines must be met: the case must not present an advisory opinion; there must be standing; the case must be ripe; it must not be moot; and it must not present a political question.”  Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn. L. Rev. 677, 677 (1990).  For purposes of standing, among other requirements, “the plaintiff must have suffered or imminently be in danger of suffering an injury.”  Id. at 678.  The injury requirement is the focus of this essay.
  • 3. Floyd v. City of New York, 736 F.3d 231, 232 (2d Cir. 2013).
  • 4. Floyd v. City of New York, Case No. 13-3461, Dock. No. 347-1 (2d Cir. Dec. 10, 2013); Ligon v. City of New York, Case No. 13-3132, Dock. No. 249-1 (2d Cir. Dec. 10, 2013).
  • 5. The district court addressed the Floyd plaintiffs’ standing in its May 16, 2012 order granting plaintiffs’ motion for class certification. Floyd v. City of New York, 283 F.R.D. 153, 169 (S.D.N.Y. 2012). In Ligon, standing was addressed in a February 14, 2013 order granting plaintiffs a preliminary injunction. Ligon v. City of New York, 925 F. Supp. 2d 478, at 522 (S.D.N.Y. 2013).
  • 6. Standing has also arisen in a different context in Ligon and Floyd. The “Police Intervenors,” a group comprised of NYPD unions, has moved to intervene as appellants. The Police Intervenors argue that if the City withdraws its appeals, they should be permitted to “vindicat[e] their own rights” and ensure that “the district court’s flawed injunction . . . will not saddle the NYPD and its members for years to come.” Ligon, Case No. 13-3123, Dock. No. 178-2 at 3. The plaintiffs opposed the motion arguing, inter alia, that because the Police Intervenors “do not have an interest warranting intervention, they plainly lack standing.” Dock. No. 243 at 19. If the Police Intervenors overcome their own standing issues, they too may be able to raise the arguments addressed here. Though their cause is beyond the scope of this essay, other scholars have provided useful insight into the issue. See, e.g., Michael C. Dorf, What Are the Remaining Stakes in the NYC Stop-and-Frisk Litigation?, DORF ON LAW, (Nov. 11, 2013, 6:30 AM), http://www.dorfonlaw.org/2013/11/what-are-remaining-stakes-in-nyc-stop.html.
  • 7. 461 U.S. 95 (1983).
  • 8. Floyd, 283 F.R.D. at 169
  • 9. Lyons, 461 U.S. at 95.
  • 10. MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 600 n.7 (S.D.N.Y. 2011).
  • 11. Ligon v. City of New York, 925 F. Supp. 2d 478, 522 (S.D.N.Y. 2013).
  • 12. Floyd v. City of New York, 08-cv-1034-SAS-HBP, Dock. No. 270 (March 5, 2013) (withdrawing the damages claims and ensuring a bench trial since the plaintiffs sought only equitable relief).
  • 13. See Floyd v. City of New York, No. 08 Civ. 1034(SAS), 2013 WL 4046209, at *8 (S.D.N.Y. Aug. 12, 2013).
  • 14. Id. at *14 (“Having reviewed the parties' submissions, I am now imposing the final order of preliminary injunctive relief in Ligon” for “[t]he reasons . . . stated in the February 14 Opinion.”).
  • 15. See Ligon, 925 F. Supp. 2d at 478.
  • 16. Floyd v. City of New York, Nos. 08 Civ. 1034 SAS, 12 Civ. 2274 SAS, 2013 WL 4046217, at *14–16 (S.D.N.Y. Aug. 12, 2013).
  • 17. Id. at *14.
  • 18. Justin Marceau, The Fourth Amendment At A Three-Way Stop, 62 Ala. L. Rev. 687, 721 (2011) (“[T]he standing doctrine will generally preclude the litigation and development of evolving Fourth Amendment norms because, like Lyons, few people could meet their burden of proving ‘a real and immediate threat’ of the same search happening again.”).
  • 19. Lyons, 461 U.S. at 97–98.
  • 20. See Chemerinsky, supra note 2, at 679.
  • 21. Lyons, 461 U.S. at 98.
  • 22. Id. at 98, 105 n.6.
  • 23. Id. at 98.
  • 24. Id. at 104–05.
  • 25. Id. at 105.
  • 26. Id. at 112; see also Richard H. Fallon, The Linkage Between Justiciability and Remedies—And Their Connections to Substantive Rights, 92 Va. L. Rev. 633, 653 (2006) (The Court worried that “an injunction would not redress any current injury” to Lyons; “[j]ust as clear . . . was the Court's anxiety that an injunctive remedy . . . would have intruded excessively on the management of the city's police department.”).
  • 27. Lyons, 461 U.S. at 110.
  • 28. See Myrian E. Gillis, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights, 100 Colum. L. Rev. 1384, 1453 n.57 (2000).
  • 29. Floyd v. City of New York, 283 F.R.D. 153, 169 (S.D.N.Y. 2012). Though there are three other named plaintiffs in Floyd, as the district court highlighted, “‘the presence of one party with standing is sufficient to satisfy Article III’s case or controversy requirement.’” Id. (quoting Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 53 n.2 (2006)).
  • 30. 768 F.2d 1133, 1136 (9th Cir. 1985).
  • 31. Id. (emphasis added).
  • 32. Floyd v. City of New York, No. 08 Civ. 1034(SAS), 2013 WL 4046209, at *58–59 (S.D.N.Y. Aug. 12, 2013).
  • 33. Id. at *69.
  • 34. See Floyd, No. 08-cv-1034-SAS-HBP, Doc. No. 271 at 7.
  • 35. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
  • 36. Id.
  • 37. Floyd, 283 F.R.D. at 169–70.
  • 38. See David Ourlicht Aff., Ex. 5 to Charney Decl., Floyd, 08-cv-1034-SAS-HBP, Doc. No. 167-5 at ¶ 11 (describing an alleged February 2008 stop that occurred while he was “walking . . . on the sidewalk”); ¶¶ 14-15 (describing an alleged June 2008 stop that occurred while he was “sitting with [his] friend . . . on a bench”); ¶ 19 (describing an alleged January 2010 stop that occurred while he was getting into his car).
  • 39. Floyd v. City of New York, No. 08 Civ. 1034(SAS), 2013 WL 4046209, at *69 (S.D.N.Y. Aug. 12, 2013) (stating that “I cannot find that Ourlicht’s Fourth or Fourteenth Amendment rights were violated” on February 21, 2008); id. (stating that “I cannot find that the stop and frisk lacked reasonable suspicion” with respect to Ourlicht’s June 2008 allegations); Floyd, No. 08-cv-1034-SAS-HBP, Doc. No. 271 at 7 (excluding Ourlicht’s 2010 allegations from the scope of plaintiffs’ pretrial contentions, and, consequently, the case itself).
  • 40. The officer who stopped Ourlicht on January 28, 2008, testified that he believed that “Ourlicht was ‘blading’ the right side of his body in order to protect something in his right waist area that was preventing him from taking normal steps,” and “claimed he saw an object running from Ourlicht’s hip along his ribs;” based on the officer’s observations, he decided to stop Ourlicht. Floyd, 2013 WL 4046209 at *59. Though the court did not find that the officer had reasonable suspicion to stop Ourlicht, it also did not conclude that Ourlicht’s behavior was the sort of “daily activity” at issue in the other three alleged stops. See id.
  • 41. Floyd, 283 F.R.D. at 170.
  • 42. City of Los Anglos v. Lyons, 461 U.S. 95, 105 (1983).
  • 43. Id. at 105–06.
  • 44. Floyd, 283 F.R.D. at 170.
  • 45. Shain v. Ellison, 356 F.3d 211, 216 (2d Cir. 2004) (emphasis original).
  • 46. Section 1983 “creates a species of tort liability for . . . certain violations of constitutional rights” pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658, 690–91 (1978). Floyd, 2013 WL 4046209 at *8 (internal quotations omitted). “[T]o have recourse against a municipality or other local government under section 1983, plaintiffs must prove that action pursuant to official municipal policy caused the alleged constitutional injury.” Id. (internal quotations omitted). “Such policies may be pronounced or tacit and reflected in either action or inaction.” Id. (internal quotations omitted).
  • 47. Id. at *24–47.
  • 48. Dorsett-Felicelli, Inc. v. County of Clinton, 371 F. Supp. 2d 183, 194 (N.D.N.Y. 2005) (citations omitted).
  • 49. MacIssac v. Town of Poughkeepsie, 770 F. Supp. 2d 587, 597 (S.D.N.Y. 2011).
  • 50. Id.
  • 51. Id. (citing Lyons, 461 U.S. at 106 n.7) (“[A]llegations that, if proven, would constitute an official policy for liability under Monell cannot be assumed to constitute the same for standing under Lyons.”).
  • 52. Floyd v. City of New York, 283 F.R.D. 153, 170.
  • 53. Floyd v. City of New York, No. 08 Civ. 1034 (SAS), 2013 WL 4046209, at *64 (S.D.N.Y. Aug. 12, 2013) (finding that for Floyd’s April 20, 2007 stop, though there was insufficient reason to find that he was unconstitutionally stopped, “there was no basis for the frisk”); id. (finding that Floyd’s February 27, 2008 stop was constitutional, but when an officer “felt inside his pockets” he was frisked unconstitutionally); id. at *68 (finding that officers had reasonable suspicion to stop Dennis on January 12, 2008, but not “to frisk or search” him).
  • 54. City of Los Anglos v. Lyons, 461 U.S. 95, 106 n.7 (1983).
  • 55. Floyd, 2013 WL 4046209 at *68. Plaintiffs’ pretrial contentions allege only one Dennis incident. See Floyd, 08-cv-1034-SAS-HBP, Doc. No. 271 at 7.
  • 56. The court did not address whether Ourlicht’s one unconstitutional stop and frisk would establish standing.
  • 57. Floyd, 2013 WL 4046209 at *58-69.
  • 58. The court made findings about stops and frisks pertaining to class members’ witnesses, yet this kind of evidence does not establish standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (standing cases “confirm that a plaintiff must demonstrate standing for each claim he seeks to press”) (emphasis added).
  • 59. This similarly dooms the court’s conclusion that “Clarkson’s single stop, in light of the tens of thousands of facially unlawful stops, would likely confer standing.” Floyd v. City of New York, 283 F.R.D. 153, 170.
  • 60. Whether the plaintiffs have standing to seek damages is an unresolved issue.
  • 61. See Ligon v. City of New York, 925 F. Supp. 2d 478, at 522–23 (S.D.N.Y. 2013).
  • 62. Id. at 522 (citing “two specific unlawful trespass stops” plaintiff Abdullah Turner testified to, along with plaintiff J.G.’s and Jefferson’s testimony that both were stopped “multiple times”).
  • 63. Id. at 522 n.17 (citing the court’s summary of the injunction hearing testimony of Turner, J.G, and Jefferson, as well as three lines from the transcript of Jefferson’s injunction hearing testimony ); id. at 522 n.18 (citing the court’s summary of Turner’s injunction hearing testimony).
  • 64. City of Los Anglos v. Lyons, 461 U.S. 95, 105 (1983).
  • 65. Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (emphasis added).
  • 66. Ligon, 925 F. Supp. 2d at 522.
  • 67. Id. at 522 n.319 (citing Turner’s injunction hearing testimony).
  • 68. Lyons, 461 U.S. at 111.
  • 69. Ligon, 925 F. Supp. 2d at 522 n.320.
  • 70. No. 11 Civ. 3599(RMB), 2012 WL 112242 (S.D.N.Y. Jan. 12, 2012).
  • 71. 638 F.3d 118 (2d Cir. 2011).
  • 72. See Battle, 2012 WL 112242 at *4 (quoting Clapper, 638 F.3d at 137).
  • 73. Id.   
  • 74. Id.
  • 75. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).
  • 76. Id. (internal citations omitted).  
  • 77. See Gillis, supra note 28, at 1453 n.57.
  • 78. Id.  
  • 79. 75 F. Supp. 2d 154, 159 (S.D.N.Y. 1999).  
  • 80. See Gillis, supra note 28, at 1453 n.57.
  • 81. See id.
  • 82. City of Los Anglos v. Lyons, 461 U.S. 95,122 (1983) (Marshall, J., dissenting).
  • 83. Id. at 137.  
  • 84. Cf. United States v. Emmenegger, 329 F. Supp. 2d 416, 436 (S.D.N.Y. 2004) (explaining that the Southern District is “obliged to follow [Second Circuit] precedent until it is overruled by a higher court or until Supreme Court precedent renders it untenable”).
  • 85. Barhold v. Rodriguez, 863 F.2d 233, 234 (2d Cir. 1988).
  • 86. United States v. Hays, 515 U.S. 737, 742 (1995) (federal courts have an independent obligation “to examine their own jurisdiction”; standing ‘is perhaps the most important of [the jurisdictional] doctrines”).

Katherine Macfarlane, Teaching Fellow and Assistant Professor of Professional Practice at LSU Law Center in Baton Rouge, La.  I would like to thank Professors Grace Barry and Marlene Krousel, as well as my wonderful husband Tom, for their unwavering support while this essay came together.  I would also like to thank the outstanding and lightning-fast Brooklyn Law students assigned to edit this piece, including David Giller and Florence Mao, whose futures look very bright.