Full opinion text
OPINION AND ORDER SHIRA A. SCHEINDLIN, District Judge: I. INTRODUCTION Plaintiffs David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht bring this putative class action against the City of New York, Police Commissioner Raymond Kelly, Mayor Michael Bloomberg, and named and unnamed New York City Police Officers (“Defendants”), alleging that defendants have implemented and sanctioned a policy, practice, and/or custom of unconstitutional stops and frisks by the New York Police Department (“NYPD”) on the basis of race and/or national origin, in violation of Section 1983 of title forty-two of the United States Code, the Fourth and Fourteenth Amendments to the United States Constitution, Title VI of the Civil Rights Act of 1964, and the Constitution and laws of the State of New York. Plaintiffs seek equitable relief in the form of (1) a declaration that defendants’ policies, practices, and/or customs violate the Fourth and Fourteenth Amendments, and (2) a class-wide injunction enjoining defendants from continuing such policies, practices, and/or customs. Additionally, the named plaintiffs seek compensatory and punitive damages for themselves. Defendants now move for summary judgment on certain of the claims of plaintiffs Floyd and Ourlicht, as well as on the claims of all plaintiffs against the City of New York, Mayor Michael Bloomberg, and Commissioner Raymond Kelly. This case presents an issue of great public concern. Writ large, that issue is the disproportionate number of African-Americans and Latinos who become entangled in our criminal justice system, as compared to Caucasians. The specific claims raised in this case are narrower— that there is a widespread pattern and practice of suspicionless and race-based stops and frisks by the NYPD. Nonetheless, these claims are raised in the larger context of the historically racialized nature of criminal justice in this country, and the extensively documented racial disparities in the rates of stops, arrests, convictions, sentences, and executions that continue through the present day. Relatedly, racial profiling- — that is, stopping an individual on the basis of his race rather than on the basis of reasonable suspicion — has become a topic of significant debate over the past fifteen years. While it is generally accepted that racial profiling is wrong and prohibited by the United States Constitution, how to end the practice is a more difficult and delicate question. Since the mid-1990s, New York City has experienced a precipitous decline in crime rates. The reasons for this decline are not clear. Some claim that it results from innovative policing policies influenced by the “broken windows” theory of crime control, beginning under Mayor Rudolph Giuliani and Police Commissioner William Bratton, and continuing under current Mayor Michael Bloomberg and Police Commissioner Raymond Kelly. Others argue that the drop in crime must be due to economic or other factors, as crime rates declined in cities nationwide during the same period, irrespective of variations in policing policies. In either case, it is clear that the policing policies that the City has implemented over the past decade and a half have led to a dramatic increase in the number of pedestrian stops, to the point of now reaching “almost 600,000 a year.” There is “a disturbingly large racial disparity in who is victimized by these practices,” although the precise extent of the disparity and its causes are matters of dispute. While the City credits its “pre-emptive” policing, and accompanying high stop rates, for the decline in crime, plaintiffs argue that African-American and Latino men have been the targets and borne the brunt of these policies, as hundreds of thousands of law-abiding citizens have been stopped, questioned, and frisked based, in large part, on their race. This is not the first time the City of New York has been accused of racial profiling. In particular, a previous lawsuit before this Court, Daniels v. City of New York, was resolved through a settlement agreement requiring the City to adopt several remedial measures intended to reduce racial disparities in stops and frisks. Under the terms of that settlement, the NYPD enacted a Racial Profiling Policy; revised the UF250 form, otherwise known as a “Stop, Question and Frisk Report Worksheet,” so that stops would be more accurately documented; and instituted regular audits of the UF250 forms, among other measures. Thus, clearly this is not a case where the City has failed to take any action to address the documented disparities. Yet plaintiffs contend that the City’s actions have been woefully inadequate — in fact, so inadequate that the City has constructively acquiesced in a widespread pattern of unconstitutional stops and frisks, and exhibited deliberate indifference to the need for sufficient training, supervision, monitoring, and discipline to avert such constitutional violations, thereby warranting the imposition of municipal liability. Notably, this is not a .question of municipal liability for an unusual yet foreseeable violation — an accident waiting to happen-but rather for a situation that thousands of NYPD patrol officers confront on a daily basis: deciding whether they are justified in stopping a resident based on factors giving rise to reasonable suspicion. As the Supreme Court recognized in Terry v. Ohio, “[e]ven a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.” Being stopped and frisked is a sufficiently unwelcome intrusion that the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases in which the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City’s crime rate. It is deeply troubling if thousands of New Yorkers are being stopped each year without reasonable suspicion, and even more troubling if African-American and Latino New Yorkers are being singled out for such treatment. It is against this backdrop that I consider defendants’ instant motion for summary judgment. For the reasons set forth below, defendants’ motion is granted in part and denied in part. II. BACKGROUND Each of the named plaintiffs alleges that he was stopped, questioned, and frisked by the NYPD without reasonable suspicion on one or more occasions. In the instant motion, defendants challenge plaintiffs’ claims with respect to two of those specific incidents — Floyd’s February 2008 stop and Ourlicht’s June 2008 stop. In Floyd’s case, the particular NYPD officers have been identified, while in Ourlicht’s case, the officers have not been identified and defendants contest whether Ourlicht was in fact stopped by NYPD officers. In addition to their claims based on particular incidents, plaintiffs, individually and on behalf of a putative class, allege that the NYPD has engaged in an unconstitutional pattern and practice of using race and/or national origin rather than reasonable suspicion as the determinative factor in deciding whether to stop and frisk individuals, in violation of the Fourth Amendment. Plaintiffs further allege that this pattern and practice, which principally victimizes African-American and Latino males, violates the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs contend that these constitutional violations are “the result of, and are directly and proximately caused by, policies, practices and/or customs devised, implemented and enforced by the City, Commissioner Kelly and [Mayor] Bloom-berg.” Specifically, they allege that the City, Commissioner Kelly and Mayor Bloomberg have acted with deliberate indifference by (a) failing to properly screen, train, and supervise NYPD officers, (b) inadequately monitoring NYPD officers and their stop and frisk practices, (c) failing to sufficiently discipline NYPD officers who engage in constitutional abuses, and (d) encouraging, sanctioning, and failing to rectify the NYPD’s unconstitutional practices. A. The February 2008 Incident Alleged by Floyd Floyd, an African-American man, testified that on February 27, 2008, he was walking on the path adjacent to the house in which he lived at 1359 Beach Avenue in the Bronx, New York. He encountered the basement tenant, also an African-American man, who indicated that he was locked out of his apartment and asked for help Floyd, whose godmother owned the building, went upstairs to retrieve the key. Unsure of the correct key for the basement lock, he retrieved seven to ten keys, some on chains and some loose, which he took back outside with him. Floyd and the tenant went to the basement apartment door and started trying the various keys. After trying five or six keys, they found the correct one. However, before they could open the door, three NYPD officers approached them- — -Officer Joyce, Officer Hernandez, and Sergeant Kelly. The officers asked the two men what they were doing, told them to stop, and proceeded to frisk them. The officer who frisked Floyd reached into both of his front pockets, which contained a phone, his keys, and some change. The officers then turned the two men around and asked again what they were doing. The officers asked the men to produce identification and asked why the basement tenant did not have any. The officers asked whether the two men lived there. Floyd gave the officers his Louisiana driver’s license and when the officers noted that the address on the license did not match the address of the building, he retrieved a bill from his bag, which reflected the building address. Officer Joyce testified that he stopped Floyd because he believed Floyd was in the middle of committing a burglary; he saw Floyd jostling a doorknob and nervously looking back; and he believed there had been a burglary pattern for that time of day in the neighborhood. Joyce recorded Floyd’s stop and frisk on a UF250 form, indicating that the suspected crime was burglary. He also noted in the box for “Physical Force Used” that he had put his hands on Floyd while Floyd was up against a wall. Regarding the circumstances that led to arrest, Joyce checked the box corresponding to “Furtive Movements.” In the area of the form entitled “Additional Circumstances/Factors,” with instructions to “Check All That Apply,” Joyce checked the box corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” as well as the boxes corresponding to “Evasive, False, Or Inconsistent Responses To Officer’s Questions,” and to “Ongoing Investigations, e.g., Robbery Pattern,” but did not check the box corresponding to “Area Has High Incidence Of Reported Offense Of Type Under Investigation.” In response to the question “Was Person Searched?,” Joyce checked “No.” Officer Hernandez testified that he suspected Floyd of committing a burglary because he saw two men focused on the front door very close to each other with their hands playing with the lock; because he saw one of the two men look toward the street and then focus back on the door, as if looking to see if anyone was looking at them; and because he knew there had been burglaries in the 43rd Precinct. He also testified that Floyd was holding a key ring that looked like it had been made with a wire hanger with more than fifty keys on it. He did not see a bulge in the clothing of either man that might indicate possession of a weapon. Sergeant Kelly testified that he suspected that the two men were committing a burglary because he saw them fumbling with a lock and jostling a door, and because he knew there was a burglary pattern in the neighborhood. He suspected that the bag at the men’s feet might have contained burglary tools. He testified that as he was approaching the two men, he noticed that one of them “was holding a very large key chain with ... numerous keys on it, raising [his] suspicion that maybe they were using several keys to try to get into that house.” He reasoned that if they were in the process of committing a home invasion, they might have a weapon. Kelly filled out a UF250, but did not make an entry in his memo book regarding the stop and frisk of Floyd. All three officers testified to the effect that they were unaware of any quotas or expectations that they complete a certain number of stops or UF250s per tour or per month. However, various other NYPD officers testified that they have been instructed to complete a certain number of stops or arrests, or to issue a certain number of summonses, per tour or per month; and certain supervisors have testified they have so instructed their subordinates. Plaintiffs have also submitted audio recordings on which various precinct commanders issued orders to produce certain numbers of arrests, stops and frisks, and summonses during roll call. In addition, plaintiffs state that in May 2004, the Patrolmen’s Benevolent Association filed a labor grievance on behalf of six officers and one sergeant who were transferred out of the 75th precinct for allegedly failing to meet a ten summons-per-month quota. In January 2006, a labor arbitrator found that the 75th precinct had imposed summons quotas on its officers in violation of New York State labor laws. NYPD Officer Adhyl Polanco testified that when he was a patrol officer in the 41st Precinct, he witnessed his fellow officers illegally stop, search, handcuff, and charge minority residents with crimes; he witnessed fellow officers stop civilians without reasonable suspicion and issue summonses without probable cause; and on several occasions, he and his fellow officers were ordered by supervisors to fill out and sign UF250 forms for stops and frisks that they did not conduct or observe and to issue criminal court summonses for incidents they did not observe. Polanco further testified that while at the 41st Precinct, he issued at least ten summonses when he knew he did not have probable cause to do so. B. The June 2008 Incident Alleged by Ourlicht David Ourlicht, who is of African-American and Italian ancestry, testified that around 10 a.m. on the morning of either June 6 or June 9, 2008, he was sitting on a bench with an African-American male friend, outside the Johnson public housing complex in Harlem, New York. There were three other African-American men sitting in the same area. After sitting on the bench for about ten minutes, Ourlicht noticed two male uniformed police officers walking through the housing complex. When the two officers reached the corner, they turned, drew their weapons and screamed “ ‘Get on the floor, get on the floor!’ and ‘There’s a gun around here. Everybody get on the floor!’ ” At the same time, a blue and white police van marked 9466 arrived and three or four officers exited the van. All of the police officers were running and had them guns out. The officers told Ourlicht that they had received reports that there was a gun in the vicinity. The officers patted Ourlicht down, lifted him by the belt, “check[ed] underneath [him], and checkfed his] pockets.” The other individuals sitting outside were also told to lie on the ground, were lifted by their belts, and were searched. After the men had been lying on the ground for about ten minutes, the officers told them they could get up. The officers asked all of the men for their names and identification. At least two officers entered the nearby building. No evidence has been produced in this action to support the notion that the police received a report of a gun in Ourlicht’s vicinity on June 6 or June 9, 2008, or that a gun was ever recovered from the area. Ourlicht testified that all of the police officers at the scene were White men in dark blue uniforms with NYPD patches. On August 24, 2009, Ourlicht participated in a photo array procedure with his counsel and defendants’ counsel in an attempt to identify the officers who were involved with the June 2008 stop. Ourlicht viewed a total of four hundred and two photographs and indicated eleven officers who he thought might have been present at the time of the incident. Of those eleven officers, only one was assigned to PSA 5 at the time of the incident. That officer— Sergeant Gordon Pekusie- — did not record in his memo book that he was at the site of the alleged incident on June 6, 2008, and on June 9, 2008, he was the desk sergeant. However, plaintiffs contend that “[n]othing in his memo book or any other documents produced in the course of this litigation precludes a desk officer from also participating in law enforcement activity.” The other ten officers were either not employed by the NYPD at the time of the incident or were not assigned to PSA 5 at the time. During a January 12, 2010 photo array procedure with his counsel, Ourlicht identified officers who may have been involved in the stop as including Officer Campos, Officer Kennedy, Officer Mifsud, and Sergeant Pekusie. Van 9466, in which Ourlicht claimed some of the officers arrived at the scene, is assigned to PSA 5. The memo books and records of the officers who were assigned to Van 9466 on June 6, 2008 — Officers Negron, Delgado, and Goris — show that they were in the van on truancy patrol and picked up several truants between 9 a.m. and 10:35 a.m. The memo books and records of the officers who were assigned to Van 9466 on June 9, 2008 — Officers Crawford and Socorro — show that around the time of the stop, the van was at Bellevue Hospital and then at the 7th Precinct and Manhattan Central Booking in lower Manhattan. In a photo array procedure conducted on August 24, 2009, Ourlicht did not recognize any of the officers assigned to Van 9466 on either date. Plaintiffs note that “[njeither the Van Assignment Sheet for June 6, 2008, nor the roll call for June 6, 2008, specify which officer was assigned to the van or exclude any officers not assigned to truancy from using the vehicle.” C. NYPD’s Racial Profiling Policy As part of the Stipulation of Settlement entered into on September 24, 2003 in Daniels v. City of New York, the NYPD developed and implemented a Racial Profiling Policy. That policy “prohibits the use of race, color, ethnicity or national origin as a determinative factor in taking law enforcement action,” though those markers may be used to identify a suspect in the same way that pedigree information (height, weight, and age, etc.) is used. The Racial Profiling Policy further requires that commanding officers establish self-inspections within their command to monitor compliance with the policy; that the NYPD Quality Assurance Division (“QAD”) audit compliance with the self-inspection directive; and that CompStat review include consideration of “performance in this area.” D. Training, Monitoring, Supervision, and Discipline The parties have made voluminous submissions to the Court in support of and in opposition to summary judgment. Defendants cite numerous examples of NYPD policies regarding training, monitoring, supervision, and discipline, to rebut plaintiffs’ allegations of municipal liability for widespread constitutional violations. Plaintiffs’ response in each case is that such measures may indeed reflect NYPD policy, but that NYPD practices fall far short of those goals. For every officer whose testimony defendants cite in support of the existence of such policies, plaintiffs respond with testimony from another officer who testified that he has never heard of, seen, or been instructed with regard to those policies. While defendants have submitted extensive written and audiovisual training materials as evidence that NYPD training is sufficient, plaintiffs have submitted written and audio evidence that there is significant pressure on commands and officers to produce stops, summonses, and arrests, whether or not they are constitutionally justified, in contravention of those training materials. Defendants describe numerous forms and layers of disciplinary procedure, while plaintiffs present evidence that little discipline is actually meted out. In short, there are 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. I describe below the evidence submitted regarding the sufficiency of the NYPD’s training and monitoring, to illustrate the kinds of conflicting evidence that have been presented to the Court in the parties’ submissions. Similarly conflicting evidence was submitted regarding the adequacy of supervision and discipline within the NYPD, which I will not detail here for expediency’s sake. 1. Training New NYPD recruits spend six months in training at the Police Academy. Defendants assert that the Academy training addresses stop, question and frisks; reasonable suspicion; probable cause; racial profiling; policing impartially; and policing professionally. They cite numerous training materials in support, primarily from the Police Student’s Guide. However, plaintiffs contend that “[t]he documents cited by defendants may reflect the policy of the NYPD but they do not contain evidence about the NYPD’s practice or custom with respect to training.” Plaintiffs assert further that “[r]ecruits are not trained using the documents cited by [defendants,” referring to the testimony of three officers who did not recall seeing those documents while at the Academy. Defendants also cite the testimony of officers in support of their assertion that Police Academy cadets receive training on SQF procedures, documentation requirements for SQFs, and “the legal bases for stops, including the standards for the common law right of inquiry, reasonable suspicion and probable cause.” Plaintiffs accept that those officers testified as quoted, but cite numerous examples of testimony by other NYPD officers that they did not receive that training at the Academy, or did not remember if they received the training at the Academy. Defendants state that “[ojfficers testified about their understanding of the law of reasonable suspicion,” citing the testimony of thirty-five police officers. Plaintiffs deny that the quoted testimony supports defendants’ assertion, and contend that “many of the same officers that Defendants cite cannot explain reasonable suspicion or the factors or evidence that may lead an officer to have reasonable suspicion.” Similarly, defendants assert that officers are instructed while in the Academy that racial profiling is prohibited, citing the testimony of three officers. However, plaintiffs counter with citations to the testimony of nine officers, who testified to a lack of familiarity with the NYPD’s Racial Profiling Policy or lack of memory of racial profiling training. Defendants also assert that NYPD recruits “are instructed to document their activity in an activity log.” However, plaintiffs contend that “[w]hile there may be a written policy instructing officers to document their activity in an activity log, as a matter of practice, officers are not so instructed,” citing the testimony of five officers who testified to a lack of memory as to whether it is required to record stops in their activity logs. Defendants assert that officers continue to receive training — including on stop-and-frisk procedures — throughout their careers. Plaintiffs contend that “[a]s a matter of practice, NYPD officers do not receive post-Academy training on SQF procedures,” citing the testimony of numerous officers. Defendants assert that officers assigned to Operation Impact receive Impact Training from training sergeants, including on SQF procedures. Plaintiffs maintain, citing the testimony of numerous officers, that “as a matter of practice, officers do not receive such training” and “training sergeants do not cover SQF procedures.” Defendants likewise contend that officers assigned to specialized units, such as the plainclothes unit, receive training in SQF procedures and the law of reasonable suspicion. Plaintiffs dispute that representation, citing the testimony of numerous officers who do not recall receiving SQF or UF250 training during plainclothes training. Defendants assert that newly promoted sergeants and lieutenants receive tailored “[pjromotional training,” which covers “the law of reasonable suspicion, SQF, management skills and proper documentation.” Plaintiffs cite the testimony of various officers to support their assertion that officers who have gone through such training have not, in fact, received training on the law of reasonable suspicion, SQF, or proper documentation. 2. Monitoring The QAD audits mandated by the NYPD’s Racial Profiling Policy are annual, random, and Department-wide. Defendants assert that these audits “evaluate compliance with the Racial Profiling Policy by auditing the Department’s Stop, Question and Frisk Practices.” However, plaintiffs contend that the audit protocol does not, in practice, test “whether stop, question and frisk activity is based on reasonable suspicion as reflected in the UF250 forms.” Plaintiffs cite testimony of NYPD Inspector Peter Cassidy, who was QAD’s commanding officer when the audit protocols were developed, and of NYPD Inspector Mary Cronin, QAD’s current commanding officer, in which both convey that the audit aims merely to ensure that officers are filling out UF250 forms appropriately. Similarly, defendants assert that Worksheet Nos. 802 and 802A were developed to guide evaluation of the “quality of the UF250 forms and compliance with the Racial Profiling Policy and Patrol Guide Procedure 212-11” in the commands’ self-inspections. However, plaintiffs contend that the two worksheets do not “evaluate whether a stop-and-frisk recorded in a UF250 form was based on reasonable suspicion,” and do not “evaluate compliance with the Racial Profiling Policy.” Instead, they assert that the two worksheets “seek[] only to determine whether the form was completely filled out.” Defendants also assert that Worksheet 802 guides QAD to “inspect[] 5 UF250 forms and examine[] the reporting officer’s [activity [l]og ... to see if corresponding entries detailing the circumstances of the stop were made relating to the stop, question and frisk report prepared.” However, plaintiffs note that “contrary to formal written NYPD policy, QAD has as a matter of practice not required [that] [activity [l]og entries] provide any more detail about the circumstances of a stop than is provided on the UF250 form documenting that same stop.” Defendants further assert that the monthly command self-inspections using Worksheet 802 require that the precinct’s Integrity Control Officer (“ICO”) examine the last twenty-five UF250 forms completed to assess whether all applicable captions have been filled out, “with added emphasis placed on a supervisor’s review and those captions documenting the crime suspected[.]” Plaintiffs counter that “Inspector Cronin testified that whether the circumstances checked off on the UF250 form correspond to the suspected crime listed on the UF250 form is merely ‘one of the things that is looked at’ in the 802 self-inspection.” ICOs or their designees are likewise required to examine their commands’ last five arrests each month for specified offenses and note on Worksheet 802A any failures to complete a UF250 form when required. Defendants assert that the 802A self-inspection “helps test an officer’s ability to identify reasonable suspicion to initiate a stop.” However, plaintiffs observe that for a police-initiated stop and frisk, the ICO is required to review only the UF250 form, which provides insufficient information to evaluate whether the stop and frisk was based on reasonable suspicion. Defendants maintain that “[bjecause the information indicated by the checkmarks on the UF250 represents substantive justification for a stop, the audit confirms that a UF250 with the required checkmarks indicates a valid stop, absent indicia to the contrary on the remainder of the form.” QAD also audits whether commands are conducting self-inspections. A total of one hundred and thirty-six commands/units are audited. Plaintiffs highlight that from 2006 through 2009, forty-three commands/units received overall unsatisfactory ratings: twelve commands in 2006, twelve in 2007, seven in 2008, and eight in 2009. Furthermore, the “vast majority” of commands/units received unsatisfactory ratings for activity log entry. A score of below 3.0 on any individual item of the audit is considered unsatisfactory, and the City-wide average rating for all commands/units for activity log entry was 1.7 in 2003, 1.9 in 2004, 1.5 in 2005, 1.4 in 2006, 1.5 in 2007, 2.5 in 2008 and 1.6 in 2009. Defendants assert that QAD directed those commands with noted deficiencies in the preparation of activity logs to take corrective action. Plaintiffs counter that QAD did not direct those commands with deficient activity log entries to take any corrective action, if those commands earned satisfactory ratings in all other audit categories. Defendants assert that in 2008, 2009, and 2010, memos were sent through the NYPD chain of command regarding noted deficiencies; commands “were expected to and did implement corrective measures.” Plaintiffs contend that the memos cited by defendants indicated specific deficiencies but did not direct that any corrective action be taken. Plaintiffs note further that Deputy Inspector Steven Cirabisi, commander of the 107th Precinct — which received an unsatisfactory rating for activity log entries but an overall satisfactory rating on the 2008 QAD stop and frisk audit — did not receive any recommendations or directives about addressing specific deficiencies. In March 2008, QAD instituted a new self-inspection protocol, Worksheet 803, geared toward improving compliance with the required completion of activity log entries. The worksheet instructs the command to review three UF250 forms prepared by three different officers, and to determine whether their activity logs include “a log entry ... detailing the circumstances of the stop.” QAD monitors whether commands are conducting these self-inspections through their Maintenance of Records Audit. Defendants assert that “[a]n [a]ctivity [l]og/memobook which contains the fact of a stop or certain details, but which does not note the details of the circumstances of a stop, question and frisk may receive an unsatisfactory rating.” Plaintiffs counter, however, that “as a matter of NYPD practice, stop-and-frisk activity log entries need not contain any more detail about the circumstances of a stop than what is contained in the corresponding UF250 form in order to receive a satisfactory rating on the Worksheet 803 self-inspection.” E. RAND Report and Fagan Report In addition to disputing the adequacy of the NYPD’s monitoring, training, supervision, and discipline, the parties also dispute the extent of the racial disparities in NYPD stop and frisk numbers. Defendants rely upon the results of a 2007 study commissioned by the New York Police Foundation and conducted by the RAND Center on Quality Policing, published as Analysis of Racial Disparities in the New York Police Department’s Stop, Question and Frisk Policies (“RAND Report”). Plaintiffs, in turn, have submitted an expert report written by Professor Jeffrey Fagan. As even the RAND Report acknowledges, the raw statistics suggest enormous racial disparities in the NYPD’s stop and frisk practices. Of recorded pedestrian stops in 2006, eighty-nine percent involved people of color — fifty-three percent involved Black individuals, twenty-nine percent Hispanic, eleven percent White, and three percent Asian, with race unknown in four percent of stops. Post-arrest outcomes differed as well, as the 2006 statistics reveal that “[f]orty-five percent of [B]laek and Hispanic suspects were frisked, compared with 29 percent of [WJhite suspects; yet, when frisked, [WJhite suspects were 70 percent likelier than [BJlack suspects to have had a weapon on them.” Despite those raw numbers, defendants have submitted the RAND Report, in part, for its conclusion that “the [racial] disparities are much smaller than the raw statistics would suggest. This does not absolve the NYPD of the need to monitor the issue, but it also implies that a large-scale restructuring of NYPD SQF policies and procedures is unwarranted.” Defendants argue that these findings underscore the lack of racially-motivated stops. The RAND Report utilizes external and internal benchmarking to analyze the NYPD stop and frisk data. RAND notes that “[ejvaluating racial disparities in pedestrian stops using external benchmarks is highly sensitive to the choice of benchmark.” RAND considers but rejects the arrest benchmark because “arrests may not accurately reflect the types of suspicious activity that officers might observe, arrests can occur far from where the crime occurred, and, since police make both the arrests and the stops, the arrest benchmark is not independent of any biases that officers might have.” RAND also considers but rejects the residential census benchmark, noting that “[cjensus benchmarks do not account for differential rates of crime participation by race or for differential exposure to the police.” RAND favors the crime suspect benchmark, which it calls “more promising” than the other two, while acknowledging that “this benchmark also has serious pitfalls.” Using the crime suspect benchmark, RAND found that Black pedestrians were stopped at a rate twenty to thirty percent lower than their representation in crime suspect descriptions, while Hispanic pedestrians were stopped at a five to ten percent higher rate than their representation in crime-suspect descriptions. At the other end of the spectrum, using the residential census benchmark revealed that “Black pedestrians were stopped at a rate that is 50 percent greater than their representation in the residential status. The stop rate for Hispanic pedestrians equaled their residential-census representation.” Finally, when using the arrest benchmark, “Black pedestrians were stopped at nearly the same rate as their representation among arrestees would suggest. Hispanic suspects appear to be stopped at a rate slightly higher (6 percent) than their representation among arrestees.” The RAND Report also used an internal benchmark methodology “to compare the racial distribution of pedestrians whom individual police officers have stopped with that of pedestrians whom other officers in the same role have stopped at the same times and places.” RAND notes that one drawback, among others, is that “if officers in the entire precinct are equally biased, the method will not flag any officers as being problematic.” The Fagan Report critiques the RAND Report and offers alternative statistical analyses of NYPD-supplied figures of SQF activity for 2004 through' 2009. Fagan concludes that “the NYPD has engaged in patterns of unconstitutional stops of City residents that are more likely to affect Black and Latino citizens.” Fagan concludes further that NYPD stop activity is concentrated in precincts with high concentrations of Black and Hispanic residents. The results show consistently, across the most policy-relevant and frequent crime categories, that racial composition predicts stop patterns after controlling for the influences of crime, social conditions, and the allocation of police resources. Additionally, Fagan notes that “NYPD stops are significantly more frequent for Black and Hispanic citizens than for White citizens, after adjusting stop rates for the precinct crime rates, the racial composition, and other social and economic factors predictive of police activity.” He adds that “Blacks and Latinos are more likely to be stopped than Whites even in areas where there are low crime rates and where residential populations are racially heterogeneous or predominately White.” Fagan concludes that “6.71% of all discretionary stops lack legal justification,” and “[a]n additional ... 24.37% of all discretionary (non-radio run) stops lack sufficiently detailed documentation to assess their legality.” Additionally, he states that' “[ojfficers rely heavily on two constitutionally problematic stop justifications for nearly half of all stops: furtive movements and proximity to a high crime area.” Fagan notes that “[hjigh crime area is cited in more than half the stops as an ‘additional circumstance’ of the stop, regardless of the precinct crime rate.’” He adds, startlingly, that “[ajrrests take place in less than six percent of all stops, a ‘hit rate’ that is lower than the rates of arrests and seizures in random checkpoints” that have been discussed in similar lawsuits elsewhere. Also, post-arrest outcomes differ, with Black and Hispanic suspects more likely to be arrested rather than issued summonses, and more likely to be subject to use of force, than Whites. Fagan critiques multiple aspects of the RAND Report. First, he notes that “RAND relies on the external benchmark of suspect race (as reported by victims) in violent felony crimes to assess racial bias,” however, violent crimes are not a useful benchmark since “violent felonies comprise fewer than ten percent of all crime reported in 2005-6, and also are a small fraction of the total number of stops.” Additionally, “[ajlmost half of violent crime complaints do not report a suspect race, casting serious doubts on whether statistics based on complaints where suspect race is reported can be generalized to the half of complaints where the suspect race is unknown.” Fagan also notes that RAND’s internal benchmark model “relies on a selective and non-representative sample of officers who made 50 or more stops in 2006, a fraction both of the total number of stops made and of the officers who made them.” He challenges the reliability of extrapolating from such a small, unrepresentative sample to draw conclusions about the entire universe of stops. As for RAND’s acknowledgment that precincts with large numbers of biased stops will lead to no officers being flagged as “outliers,” he notes that RAND “assumes low rates of bias and does not allow this assumption to be tested.” Finally, Fagan concludes that RAND’s approach to analyzing post-stop outcomes is flawed, in that it neglects aspects of the stop such as the suspected crime and the indicia of reasonable suspicion, and concludes that RAND “strongly understates the racial disparities in post-stop outcomes such as frisks and use of force.” III. LEGAL STANDARD A. Summary Judgment Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “ ‘An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is material if it might affect the outcome of the suit under the governing law.’ ” “The moving party bears the burden of establishing the absence of any genuine issue of material fact.” “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant’s claim.” In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party “ ‘must do more than simply show that there is some metaphysical doubt as to the material facts,’ ” and “ ‘may not rely on conclusory allegations or unsubstantiated speculation.’ ” In deciding a motion for summary judgment, a court must “ ‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.’ ” However, “ ‘[credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.’ ” “ ‘The role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.’ ” B. Stops and Frisks “ ‘[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot,’ even if the officer lacks probable cause.’ ” This form of investigative detention has become known as a Terry stop. “While ‘reasonable suspicion’ is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop.” “ ‘The officer [making a Terry stop] ... must be able to articulate something more than an inchoate and unparticularized suspicion or hunch.’ ” “Reasonable suspicion is an objective standard; hence, the subjective intentions or motives of the officer making the stop are irrelevant.” It is sometimes the case that a police officer may observe, “a series of acts, each of them perhaps innocent in itself, but which taken together warrant! ] further investigation.” “An individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, “the fact that the stop occurred in a ‘high crime area’ [may be] among the relevant contextual considerations in a Terry analysis.” A court “must look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing.” “[T]he proper inquiry is not whether each fact considered in isolation denotes unlawful behavior, but whether all the facts taken together support a reasonable suspicion of wrongdoing.” C. Section 1983 Section one of the Civil Rights Act of 1871-known as section 1983 — states, in relevant part as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Section 1983 “does not create a federal right or benefit; it simply provides a mechanism for enforcing a right or benefit established elsewhere.” “The purpose of § 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Any form of liability under section 1983 requires the defendant’s direct involvement in causing the alleged damages. “Because vicarious liability is inapplicable to ... [section] 1983 suits, a plaintiff must p[rove] that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” D. Municipal Liability For a person deprived of a constitutional right to have recourse against a municipality under section 1983, he or she must show harm that results from an identified municipal “policy,” “custom,” or “practice.” In other words, a municipality may not be found liable simply because one of its employees or agents is guilty of some wrongdoing. Moreover, a policy, custom, or practice cannot arise from a single instance of unconstitutional conduct by an employee of the municipality. Because vicarious liability is inconsistent with section 1983’s causation requirement, “the ‘official policy’ requirement was intended to distinguish acts of the municipality from acts of municipal employees, and thereby make clear that municipal liability is limited to actions for which the municipality is actually responsible.” The Supreme Court has emphasized that: [I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the municipality was the “moving force” behind the injury alleged. That is, a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights. In the absence of an established written policy of the municipality, a plaintiff must prove that the discriminatory practices of municipal officials are so “permanent and well settled as to constitute a ‘custom or usage’ with the force of law,” or that a practice or custom of subordinate employees was “so manifest as to imply the constructive acquiescence of senior policy-making officials.” “A policy, custom, or practice may also be inferred where ‘the municipality so failed to train its employees as to display a deliberate indifference to the constitutional rights of those within its jurisdiction.’ ” The Second Circuit has set forth “three requirements that must be met before a municipality’s failure to train or supervise constitutes deliberate indifference to the constitutional rights of citizens.” First, “the plaintiff must ... allege that ‘a policy-maker knows to a moral certainty that her employees will confront a given situation.’ ” Second, the situation must “either presentí] the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation.” Third, mishandling of the situation must “frequently cause the deprivation of a citizen’s constitutional rights.” A duty to train arises so that subordinates entrusted with the discretionary exercise of municipal power can distinguish between lawful and unlawful choices. Because the exercise of such discretion can arise in myriad circumstances, the “nuance” of a particular training need may only become apparent to municipal policy makers after a pattern of violations arises in substantially similar circumstances. There is “a heavy burden of proof’ to show that the municipality’s “response was so patently inadequate to the task as to amount to deliberate indifference ... Such inadequacy must reflect a deliberate choice among various alternatives, rather than negligence or bureaucratic inaction.” E. Qualified Immunity Government officials performing discretionary functions are generally granted qualified immunity and are immune from suit provided that “ ‘their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” “When a defendant invokes qualified immunity to support a motion for summary judgment, courts engage in a two-part inquiry: whether the facts shown ‘make out a violation of a constitutional right,’ and ‘whether the right at issue was clearly established at the time of defendant’s alleged misconduct.’ ” “ ‘The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” “The objective reasonableness test is met ... if the question of whether the officers would be violating rights is one on which ‘officers of reasonable competence could disagree.’ ” “If ... no officer of reasonable competence would conclude that the conduct in question is lawful, there is no immunity.” “[T]he ‘objectively reasonable’ inquiry is part of the ‘clearly established’ inquiry.” “[Sjummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonableness.” IV. DISCUSSION A. The February 2008 Incident Alleged by Floyd 1. Fourth Amendment Claim Summary judgment is granted to defendants as to Floyd’s Fourth Amendment claim based on the February 2008 incident. The officers testified that their reasons for suspecting Floyd of possible criminality were that there was a recent midday burglary pattern in the neighborhood of the stop, and that Floyd and his neighbor made “furtive movements” — to wit, that they were “jostling,” “fumbling with,” or “playing with” the doorknob or lock of the front door to the basement apartment and Floyd was “nervously looking back toward the street,” or “looking back toward the street and then focused back on the door, as if he was looking to see if anyone was looking at them.” Two of the officers also mentioned noticing that one of the men held a large key ring, which further supported their suspicion that a burglary was in progress. The existence of a midday burglary pattern is undisputed. All three officers testified that they were aware of such a pattern. Plaintiffs have not submitted evidence to contradict the assertion that there was a burglary pattern and that the officers were aware of the pattern. Furthermore, while Officer Joyce did not check the box for “Area Has High Incidence Of Reported Offense Of Type Under Investigation” as a reason for the stop on the UF250 form that he completed, he did check the boxes corresponding to “Time Of Day, Day Of Week, Season Corresponding To Reports Of Criminal Activity,” and “Ongoing Investigations, e.g., Robbery Pattern.” All three of these boxes reasonably could correspond to the officers’ belief that there was a midday burglary pattern. Despite the UF250 form’s instruction to “Check All That Apply,” the fact that Officer Joyce checked two out of the three boxes that could apply to the same factor — investigation of a burglary pattern at that time of day — does not create a material disputed fact. However, a burglary pattern, without more, is an insufficient basis for reasonable suspicion. Thus, I now consider the other purported support for reasonable suspicion — the allegedly “furtive movements.” First, whether Floyd and his neighbor were “nervously looking back” toward the street is a disputed fact, as Floyd testified that he had his back to the officers and did not notice them until “at least two of the officers had already come inside the gate of the building and were on my sort of right side periphery.” Construing the facts in the light most favorable to plaintiffs, whether Floyd was looking back, whether he was doing so nervously, and whether he appeared to be looking to see if he was being watched in a manner that should have allowed him to see the officers approach, are material disputed facts. Second, it is undisputed that Floyd and his neighbor were attempting to open the door. Floyd describes trying several different keys in the lock, while the officers describe the men as “jostling,” “fumbling with,” or “playing with” the lock. Floyd’s description of his activity does not contradict the officers’ description of his physical movements. Jostling a lock is an activity consistent with the criminal activity of attempting to break into a house, and consistent with the innocent activity of trying to open a door that you are authorized to open when you are unsure which is the correct key. Of course, that “conduct justifying [a] stop [is] ambiguous and susceptible of an innocent explanation” does not render a stop unconstitutional. As the Supreme Court has stated, “Terry recognized that [ ] officers could detain the individuals to resolve the ambiguity.” It is undisputed, then, that Floyd was manipulating the lock, which, while actually innocent, could have reasonably been viewed by police officers as involving possible criminality. Finally, two of the officers testified that either Floyd or his neighbor appeared to be holding a large key ring, with as many as fifty keys. The officers explained that this gave them further reason to suspect that they were witnessing a burglary in progress. However, Floyd has testified that there were only seven to ten keys. Thus, while it is undisputed that either Floyd or his neighbor were holding some number of keys, and undisputed that the officers observed the men attempting to open the door with keys as they approached, whether the men had ten keys or fifty keys is a disputed fact, the resolution of which requires a credibility determination. Without resolving any of the disputed facts, I find that the officers were justified in their reasonable suspicion. Plaintiffs assert that “[t]he only undisputed material facts are that three officers observed, for no more than one minute, two Black men trying to unlock the front door of a house in the middle of the afternoon using keys.” To that description, I must add the undisputed fact that the officers were aware of a midday burglary pattern in the neighborhood. Those factors in combination — even without the disputed facts of whether the men were nervously looking back and whether they had ten keys or fifty — create enough reasonable suspicion to justify the officers briefly detaining the men for an investigatory stop. In addition, because the officers suspected that Floyd and his neighbor were committing the violent crime of burglary, they were justified in frisking the two men to ensure the officers’ own safety. On the other hand, Floyd alleges that the officers searched his pockets after they frisked him. There is no allegation that the officers felt anything during the frisk that resembled a weapon or contraband that would have given rise to probable cause to perform a search. Joyce indicated in the UF250 that no search was performed. There is a material disputed fact as to whether a search was performed, and if it was, whether it was an unconstitutional search. Thus, I grant summary judgment to defendants on Floyd’s Fourth Amendment claim, except as regards the allegedly unconstitutional search. While the instant suit is primarily concerned with stops and frisks, Floyd may nonetheless continue to pursue his section 1983 claim predicated on the Fourth Amendment violation of searching his pockets without probable cause. Defendants are not entitled to qualified immunity on this claim. There are material facts in dispute that would have an impact on an assessment of the reasonableness of the officers’ actions. [A] defendant is entitled to summary judgment on qualified immunity grounds when ‘no reasonable jury, looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant[] to believe that he was acting in a fashion that did not clearly violate an established federally protected right. In this case, a reasonable jury could find that it was objectively unreasonable for the officers to search Floyd, based on clear Fourth Amendment jurisprudence requiring that searches be based on probable cause. 2. Equal Protection Claim Summary judgment is likewise granted to defendants on Floyd’s Equal Protection claim based on the February 2008 incident. Because I have found that the officers had reasonable suspicion to stop Floyd, I do not find that the officers impermissibly used race as the determinative factor in deciding to stop him. B. The June 2008 Incident Alleged by Ourlicht 1. Fourth Amendment Claim Summary judgment is denied to defendants as to Ourlicht’s Fourth Amendment claim based on the June 2008 incident. Defendants appear to argue that no individualized suspicion was necessary because “it was clear that the individuals who were involved in the alleged incident had an emergency concerning a report of a gun in Ourlicht’s vicinity and that they were securing the area and the nearby building to ensure that no one had a gun or would get hurt.” However, there is no evidence that the police officers were, in fact, responding to a report of a gun. Even if they were, such a general report does not support reasonable suspicion to stop and frisk any individual in the area. The Fourth Amendment requires that officers must have reasonable individualized articulable suspicion that an individual is armed and dangerous before frisking him. Defendants contest whether the individuals who stopped Ourlicht were actually from the NYPD. This is a disputed issue of fact to be resolved by a fact-finder. Defendants claim that summary judgment must be granted because Ourlicht “cannot establish by a preponderance of the evidence” that the individuals were NYPD officers. Specifically, they note that an NYPD van numbered 9466 is assigned to PSA 5, the command in which the incident took place, but that NYPD documents show that the van was not at the alleged location at the alleged time on the alleged dates; the activity logs of the four officers assigned to the van reveal that none of them were there; the assigned officers were not all males, while Ourlicht alleges the presence of only male officers; and Ourlicht affirmatively stated that he did not recognize any of the officers assigned to the van at the photo array procedure that was conducted on August 24, 2009. Defendants argue further that Ourlicht only indicated eleven officers who he thought might have been involved in the incident, but that only one of those officers was assigned to PSA 5 at the time of the alleged incident and on duty; that individual was not at the location of the incident on June 6, 2008; and that individual was the desk sergeant in the station house on June 9, 2008. While defendants argue from these factors that Ourlicht is “incapable of meeting his burden of proof by a preponderance of the evidence that members of the NYPD were involved in the incident,” in fact, defendants’ arguments merely underscore that there is a triable issue of fact as to whether Ourlicht was stopped by NYPD officers. The fact is that Ourlicht gave a van number that is assigned to the command in which the incident took place. Two officers who were assigned to the van indicated in their memo books that they were near the location of the stop around the time of the stop. Ourlicht identified other NYPD officers whose whereabouts at the time of the stops is somewhat ambiguous in this record. In sum, as plaintiffs underscore, “[a] reasonable jury could conclude from Ourlicht’s identification of NYPD uniforms and van that the NYPD conducted his stop, whether or not he identified an officer.” Ultimately, resolution of this issue will turn on a credibility determination, which is beyond the purview of a court deciding a summary judgment motion. Defendants are not entitled to qualified immunity on Ourlicht’s Fourth Amendment claim. There are material facts in dispute that would affect an assessment of the reasonableness of the officers’ actions. A reasonable jury could find that it was objectively unreasonable for the officers to act as they did, given the clear contours of the law governing stops and frisks in New York under Terry and DeBour, and the clear legal dictate that the police must have individualized reasonable suspicion before stopping and frisking a person. Additionally, it is undisputed that the officers searched Ourlicht without probable cause. Therefore, summary judgment is denied to defendants as to Ourlicht’s Fourth Amendment claim. 2. Equal Protection Claim Summary judgment is likewise denied to defendants on Ourlicht’s Equal Protection claim. Because a reasonable jury could find that Ourlicht’s stop was unconstitutional, and that the stop occurred in the context of citywide racial disparities in stop-and-frisk patterns unexplainable by chance, crime patterns, or officer deployment patterns, there is a triable issue of fact as to whether Ourlicht’s stop was racially motivated. C. Plaintiffs’ Monell Claims Against the City 1. Fourth Amendment Claims a. Widespread Custom or Practice of Suspicionless Stops The City does not have a writt