Case 1:08-cv-01034-AT-HBP Document 524 Filed 02/16/16 Page 1 of 3

February 16, 2016

Via ECF
Hon. Analisa Torres
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007-1312
Re:

David Floyd, et al. v. City of New York,
No. 08 Civ. 1034 (AT)

Dear Judge Torres:
On behalf of Plaintiffs in the above-captioned matter, we write in connection with the
second status report (Report) of the Independent Monitor filed with the Court on February 16,
2016. See Dkt # 523. The report contains the status of reforms and it does not provide the
parties’ current positions on reforms being developed. We respectfully submit this letter to
memorialize Plaintiffs’ positions with respect to certain reforms that are in development. We
believe the reform components we identify below will be necessary to bring the New York
Police Department’s stop and frisk practices into compliance with the Constitution, and we look
forward to continuing to work with the NYPD and the Monitor through the consultative remedial
process to develop them. This letter is not intended as an exhaustive list of Plaintiffs’ current
positions on reforms.
A. SQF Policies (Monitor’s Report § III.A.2.)
In this section of his report, the Monitor discusses the content of the stop “tear-off
receipt,” which the NYPD has been piloting department-wide since September 2015, and notes
that the NYPD is “exploring alternative ways to provide information to people stopped but not
arrested.” Dkt # 523 at 8. Plaintiffs maintain the position, expressed in our August 7, 2015 letter
to the Court, see Dkt # 515, that more information than is currently included on the piloted tearoff receipt is necessary (and would be more consistent with the tear-off described in the August
2013 Remedial Order), and we have and will provide proposals on alternatives to the NYPD and
the Monitor.
In addition, while this section of the Monitor’s report discusses how the revised version
of NYPD Patrol Guide Section 212-11 requires more complete recording by officers of the
circumstances of Level 3 Terry stops, Dkt # 523 at 9, Plaintiffs maintain our position, originally
expressed in our August 7, 2015 letter to the Court, that documentation of Level 1 and 2

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encounters by NYPD officers is also necessary, see Dkt # 515 at 2, and that we intend to provide
proposals for implementing this requirement to the Monitor and the NYPD.1
B. EIS (Monitor’s Report §VII.C.2.)
In this section of his report, the Monitor describes some of the NYPD’s ongoing efforts to
develop an Early Intervention System (EIS) for detecting officers exhibiting at-risk behaviors.
Among the efforts described by the Monitor is the NYPD’s development of its Risk Assessment
Information Liability System (RAILS). While the report discusses the various officer
performance data sources which the NYPD plans to include in RAILS, the NYPD has thus far
developed RAILS without an opportunity for input from Plaintiffs, although we do anticipate
being given such opportunity moving forward. Based on discussions with and the trial testimony
of our remedies expert, Professor Samuel Walker, it is Plaintiffs’ position that an effective EIS
will be necessary and that an effective EIS requires a single, streamlined database that identifies
outliers – whether particular officers or commands – in a way that will trigger interventions. It is
further Plaintiffs’ position that the EIS must include the information that the NYPD currently
represents it plans to include in RAILS, as well as the following additional information: officer
stop activity (whether or not the subject of a complaint), use of force allegations (and whether
those allegations resulted in charges or discipline), issuance of resisting arrest charges, public
complaints (whether through the Office of Chief of Department (OCD), Internal Affairs Bureau
(IAB), or CCRB), Department-initiated investigations and the outcomes of those investigations,
criminal proceedings against an officer, judicial proceedings (such as restraining orders),
prosecutorial decisions to decline to prosecute arrests, incidents involving loss, alleged theft or
damage to department property and training history.
We note that, while the NYPD currently plans to include civil lawsuits in RAILS, it is
unclear whether the Department plans to capture all lawsuits filed or a more limited subset of
lawsuits, such as cases in which officers have requested indemnification. Plaintiffs’ position is
that the EIS must include all lawsuits filed against officers, and include data on the specific
claims in those cases.
C. Handling of Complaints Substantiated by CCRB (Monitor’s Report § VIII.B.2.)
While this section of the report describes the so-called “reconsideration process”
implemented in December 2014, under which the NYPD’s Department Advocate’s Office
(DAO) can and does ask the CCRB to reconsider its findings and disciplinary penalty
recommendations for substantiated civilian misconduct complaints against NYPD officers,
Plaintiffs believe that this reconsideration process is inconsistent with the Court’s orders
regarding reforms to discipline. See, e.g., Dkt # 372 at 24 (requiring that DAO “improve its
1

We note that the recently negotiated consent decree between the U.S. Department of Justice
and the Ferguson, Missouri Police Department, would require the Ferguson PD to collect and
analyze data on “voluntary contacts” between officers and civilians, which are defined in the
decree itself as analogous to DeBour Level 1 and 2 encounters. See United States v. City of
Ferguson, Consent Decree ¶¶ 77, 415(c), 435(d)(Jan. 26, 2016), available at
https://www.fergusoncity.com/DocumentCenter/View/1920.
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procedures for imposing discipline in response to [CCRB] findings of substantiated misconduct
during stops,” including “increased deference to credibility determinations of the
CCRB”)(emphasis added). Plaintiffs submit that the disciplinary reforms required by the Court’s
orders, most of which have yet to be developed, must include: (i) revising or eliminating the
DAO reconsideration process; (ii) written policies to guide DAO staff on the application of the
preponderance of the evidence standard and how to properly weigh civilian complainant
testimony; (iii) written policies on giving deference to CCRB findings; and (iv) transparency
when the NYPD departs from CCRB disciplinary penalty recommendations.
D. Performance Goals, Objectives, and Evaluation (Monitor Report § IX.B.)
This section of the report does not mention Plaintiffs’ positions on the necessity of officer
performance evaluation reforms or what those reforms must include. It is Plaintiffs’ position that
officer performance evaluation reforms are necessary and that these reforms will at a minimum
mean that officer performance evaluations must: (i) include an assessment of whether officers
are fulfilling two goals: constitutional policing and bias-free policing; (ii) be modified so that a
supervisor must provide specific examples to support his or her ranking of the officer for each
criterion; and (iii) consist of a list of specific metrics on which officers are to be evaluated that
seeks to capture the constitutionality of officer behavior.
We look forward to developing reforms for Court approval in each of the aforementioned
areas in consultation with the NYPD and the monitor. Thank you for your time and
consideration.
Respectfully submitted,

\s\
Darius Charney
Baher Azmy
Somalia Samuel
CENTER FOR CONSITUTIONAL RIGHTS
Jenn Rolnick Borchetta
DEMOS
Jonathan C. Moore
Joshua Moskovitz
BELDOCK LEVINE & HOFFMAN LLP
Attorneys for Plaintiffs

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