Full opinion text
AMENDED OPINION AND ORDER SHIRA A. SCHEINDLIN, District Judge. I. INTRODUCTION This putative class action challenges the policies and practices that the New York City Police Department (“NYPD”) and the New York City Housing Authority (“NY-CHA”) use to enforce prohibitions against trespassing on public housing property. The lawsuit alleges that defendants’ actions have resulted in a widespread pattern of unlawful stops, questioning, frisks, searches, and arrests of NYCHA residents and their invited guests. This is the second of three lawsuits before this Court that challenge the NYPD’s stop and frisk practices. Like the other two cases, and like many of its predecessors, this suit “thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity.” Nearly forty-five years ago, faced with a rising tide of urban violence and what Justice William 0. Douglas called “powerful hydraulic pressures” to give police an upper hand, the Supreme Court first confronted “the practical and constitutional arguments pressed with great vigor on both sides of the public debate over the power of the police to ‘stop and frisk’ — as it is sometimes euphemistically termed — suspicious persons.” In Terry v. Ohio, the Supreme Court held that the Constitution permits stops when the police have a reasonable suspicion of criminal activity. But the precise contours of the Fourth Amendment right to be free from unreasonable stops remain fiercely debated in the courts, the newspapers, and the streets. Because they focus on people residing or present in public housing, the practices at issue in this lawsuit are more narrow than those addressed in either Terry or Floyd v. City of New York, both of which involved street stops. But they are no less consequential. Indeed, for many residents, the tension at the heart of this lawsuit is also a central part of their daily lives: what one scholar has called the “decades-long battle by NYCHA tenants for a life both dignified and safe.” The perspective of plaintiff Eleanor Britt highlights this challenge. Britt, a sixty-four year old African American woman, has lived in NYCHA housing for more than thirty-five years. Like generations of NYCHA residents before her, she is a member of an anti-crime tenant organization. She testified at her deposition that she would like the police to conduct more vertical patrols through her building, because “it helps us keep the building safe .... [T]he more their presence is seen, the less problems we would have.” But Britt has also witnessed serious police misconduct: I have seen the police approach young men in the building and I have seen them just grab them and thrown them up against the wall and frisk them .... [I]t seems like there is a disparity in the way they deal with Black as opposed to White .... [I]t is a little excessive when they are dealing with people of color. Ensuring both dignity and safety may be challenging but it is absolutely necessary. The police officers who patrol NY-CHA buildings must act within the limits imposed by the federal and state constitutions. This lawsuit presents difficult and close questions. The key one is this: are defendants acting within constitutional limits in their presumably sincere efforts to provide a safe environment for the residents of public housing? Or, in their zeal to provide that protection, are they violating the rights of the very residents (and guests) whom they seek to protect? Nine of the original eighteen plaintiffs settled their claims. Of the remaining nine, eight have been arrested for trespass by the NYPD and five live in NYCHA housing. They have brought twelve causes of action against the NYPD and NYCHA under federal, state, and local laws and under the United States and New York State constitutions. Defendants have moved for partial summary judgment on most of these claims. The parties agreed to brief these motions in two parts: the first part, adjudicated here, addresses the individual circumstances of plaintiffs’ arrests and tenancies. The second part, which has yet to be briefed, will address defendants’ practices and policies. For the reasons explained below, defendants’ motions are granted in part and denied in part. II. LEGAL STANDARD ON A MOTION FOR SUMMARY JUDGMENT Summary judgment in defendants’ favor is appropriate only if they show “that there is no genuine dispute as to any material fact and [that they are] 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.” Because they are moving for summary judgment, defendants “bear[] the burden of establishing the absence of any genuine issue of material fact.” To defeat defendants’ motions, plaintiffs “ ‘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 these motions, I must “construe the facts in the light most favorable to the non-moving party,” that is, to plaintiffs, “and must resolve all ambiguities and draw all reasonable inferences against the movant[s],” that is, against defendants. 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.” III. APPLICABLE LAW Plaintiffs have brought claims under the Fourth and Fourteenth Amendments to the United States Constitution; Title VI of the Civil Rights Act of 1964; Title VIII of the Civil Rights Act of 1968 (the “Fair Housing Act”); the Civil Rights Act of 1866 (42 U.S.C. § 1981); the United States Housing Act; Article I, Sections 11 and 12 of the New York State Constitution; the New York State Human Rights Law; and the New York City Human Rights Law. I address the legal standards applicable to each of these claims below. IV. DISCUSSION A. The Arrested Plaintiffs’ Fourth Amendment Claims Against the City for Unlawful Terry Stops and False Arrest 1. Legal Standard for a Stop The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” “ ‘[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 is now 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 individuáis 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.” 2. Legal Standard for an Arrest The Fourth Amendment prohibits arrests in the absence of probable cause. Such cause exists “when the officers have knowledge or reasonably trustworthy information of facts and circumstances that are sufficient to warrant a person of reasonable caution in the belief that the person to be arrested has committed or is committing a crime.” “While probable cause requires more than ‘mere suspicion’ of wrongdoing, its focus is on ‘probabilities,’ not ‘hard certainties.’ ” “[N]o probable cause exists to arrest where a suspect’s actions are too ambiguous to raise more than a generalized suspicion of involvement in criminal activity.” The lawfulness of an arrest does not require an ultimate finding of guilt. “The question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers ... or may require a trial if the facts are in dispute.” 3. Raymond Osorio’s Stop and Arrest Plaintiff Raymond Osorio testified at his deposition that he left the NYCHA apartment of his friend, Andre Smith, in the late afternoon of November 18, 2010. When he was about six steps out of the building, three officers “charged” him, asked him what he was doing, and then grabbed him and brought him back into the lobby of the building. Although the City disputes these facts, it acknowledges that summary judgment regarding the stop is inappropriate because, if true, Osorio’s version of events describes an unlawful stop. Nevertheless, the City argues that the following events, as described by Osorio, provide probable cause to justify an arrest. Osorio testified that once back in the lobby, he told the officers that he had been visiting Smith in apartment 5C and gave them his photo ID. Two officers went upstairs to investigate while two others stayed with Osorio in the lobby. When the officers returned, they informed Osorio that a woman in apartment 5C said that she had not seen Osorio in an hour and that he had therefore been trespassing. Osorio believed that the woman was Andre Smith’s sister, Keisha Smith, and he explained to the officers that because Keisha had been in the back room of the apartment, she had not seen him for an hour’ even though he had just left the apartment a few minutes earlier. Despite this explanation, the officers arrested Osorio. One of the two officers who went upstairs, Ruben Arroyo-Perez, testified at his deposition that he took Osorio’s ID and went to apartment 5C, showed the ID to Keisha Smith, and asked her if Osorio had been visiting with her or had been in her apartment. She told him no. He asked if Andre Smith was presently in the apartment because (as he explained later) he “wanted to speak to [Osorio’s] friend, if his friend was actually there.” Keisha said that Andre was not there. Plaintiffs argue that there are disputes of fact regarding whether Arroyo-Perez actually asked Keisha Smith if Andre Smith was in the apartment. But the facts in the record establish no genuine dispute. After speaking with Keisha Smith, Arroyo-Perez was aware of the following facts: (1) Osorio had been in the lobby of the building, (2) Osorio was not a resident of the building, (3) Osorio said he had been in apartment 5C, and (4) the current occupant of 5C said that Osorio had not been there and that the friend whom Osorio identified was not there either. These facts gave officer Arroyo-Perez probable cause to arrest Osorio for trespass. Osorio’s Fourth Amendment claim for an unlawful seizure survives but summary judgment is granted to defendants on his Fourth Amendment claim for unlawful arrest. 4. Patrick Littlejohn’s Stop and Arrest Patrick Littlejohn testified at his deposition that he and his friend David were waiting for the elevator in the lobby of the NYCHA building at 3020 Yates Avenue on January 14, 2009. David lived in the building and the two young men were going to his apartment. Police Officers Carmelo Quiles and Granit Selimaj entered the building and approached Littlejohn. According to Littlejohn: Quiles says “what are you doing here, where are you going?” I’m like “I’m going to go with him to his house.” He asked David “do you got ID?” David said “yeah.” He showed him his ID. “Is he with you?” He said “yeah.” Then he told David to go upstairs.... [H]is partner Selimaj was like “what you going to do with him?” He’s like “taking him in.” Selimaj was telling him “we not going to take him in.”' He’s like “there’s nothing that we got on them.” Then he’s like, “no, I’m taking this one in, I’m taking this one.” Quiles tells me to turn around he put the cuffs on me. Although Quiles arrested Littlejohn for trespass, the City does not argue that he had probable cause to do so. Instead, it argues that Quiles had probable cause to arrest Littlejohn for truancy. The Supreme Court has made clear that the inquiry into whether or not probable cause existed to make an arrest is an objective one that does not turn on the state of mind of the arresting officer and that if there was probable cause to arrest for any offense, then there is no viable claim for false arrest. Thus, Littlejohn’s arrest was lawful if there was objective probable cause to arrest him for any offense. If Littlejohn’s account of the interaction is true, however, there was no such probable cause. The arrest took place between noon and 1:00 p.m. on a school day, which in many schools is the standard lunch hour. As plaintiffs persuasively argue: [I]n their brief encounter with Mr. Littlejohn, neither officer asked Mr. Little-john his age to determine whether he was of mandatory school age, whether he was enrolled in school, was home for lunch, or had any of several other valid reasons to be away from school. There is simply no evidence that “school” was even mentioned in the encounter. As the Supreme Court explained in Devenpeck v. Alford, “[wjhether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” At the time of his arrest, Littlejohn was sixteen years old (a fact that the officers do not claim they knew) and was over six feet tall. Although the officers knew that Littlejohn lived in the area, defendants have not shown that either Quiles or Selimaj knew specific facts that would lead to the reasonable conclusion that Littlejohn was truant from school. A reasonable juror could conclude that there was no probable cause for this arrest. Summary judgment in defendants’ favor on Littlejohn’s Fourth Amendment claim is denied. 5. Lashaun Smith’s Stop and Arrest Plaintiff Lashaun Smith testified at his deposition that he spent the night of May 10, 2009, at the NYCHA apartment of his friend Shawne Jones and that Jones’ brother, Tarion Washington, also spent the night. Washington is blind and knows Smith by Smith’s nickname, “Nap,” not by Smith’s legal name. At about 10 a.m. on May 11, Smith woke up, left the apartment, and walked down the stairwell to the lobby. As he reached the bottom of the stairs, a uniformed officer came into the stairway and asked him if he lived in the building. According to Smith: I said no, I was visiting; he asked me do I have ID; I said yes; I show him my [current Virginia] ID, and then I showed him my other ID, my old [expired] New York ID, and that was it, and he asked me to step into the lobby, and I step into the lobby; that’s when I encountered there was two more officers, a lady and a male. a. Smith’s Terry Stop Plaintiffs argue that Smith was seized in the stairway when the officer encountered him and immediately questioned him. Defendants argue that Smith was only seized after he provided the two ID cards and was told to step into the lobby. The Supreme Court has explained that [e]ven when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage — provided they do not induce cooperation by coercive means. See Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citations omitted). If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. Defendants argue that because the officer’s tone of voice was normal and because Smith testified that seeing the officer did not make him nervous or scared, the encounter was not coercive. Plaintiffs argue that a reasonable jury could find that, in the confines of a stairwell, a reasonable person would not feel free to walk past the officer and terminate the encounter. I need not resolve this dispute because both parties agree Smith was seized once the officer returned Smith’s expired New York ID, held on to Smith’s Virginia ID, and asked him to step into the lobby. He was not free to leave because the officer had taken his identification. Under Smith’s version of events, at the time of the seizure the officer knew that (1) the building was in a high crime area, (2) Smith said he was a visitor in the building, and (3) Smith produced two IDs (with matching names and photos of him), one of which was expired and one current. Defendants also argue that Smith’s “behavior and demeanor” was somehow suspicious, but they cite to no undisputed facts for that claim. The facts of the encounter, as described by Smith, are insufficient to establish reasonable suspicion for a stop. There is nothing suspicious about a person walking down the stairs of a NYCHA building in a high crime area. There is nothing suspicious about a person stating that he was visiting a friend in a NYCHA building. And there is nothing suspicious about a person having two ID cards, one expired and one current, from two different states. If a juror credited Smith’s testimony, she could conclude that there was no reasonable suspicion to justify stopping him. Summary judgment in defendants’ favor on Smith’s Fourth Amendment claim for an unlawful stop is therefore denied. b. Smith’s Arrest According to Smith, there were two other officers waiting in the lobby when he and the first officer emerged from the stairwell: One of the officers asked Mr. Smith which apartment he had been visiting, and he responded Apartment 6D. Officer Mumper left the lobby to investigate. Officer Mumper returned several minutes later and reported that the person who answered the door [of Apartment 6D] could not identify Mr. Smith. Mr. Smith asked Officer Mumper if “[a] guy with dreads answered the door?” Officer Mumper [said yes]. Mr. Smith explained that Tarion Washington was blind and would not be able to identify him from a photo ID. Mr. Smith asked the officers to take him upstairs so that Tarion Washington could identify him by his voice. The officers handcuffed Mr. Smith and placed him under arrest for criminal trespass. Neither party solicited the testimony of Tarion Washington, the blind man with dreads who answered the door. The only admissible evidence regarding that conversation comes from the following deposition testimony of Officer Mumper: Q: Is there anything about your interaction with the man who came to the door that led you to believe that he might be blind? A: No, not that I can recall. Q: What did you say to this man when he opened the door? A: I introduced myself as Officer Mumper. I asked him if he knew a Lashaun Smith and he said no. I asked him if maybe he knew him as Shaun Smith and he said no. And I asked him one more time ¡.. and he said no. Q: Did you attempt to show Mr. Washington ... Mr. Smith’s ID that you had brought? A: ... I did hold it up to him for him to look at the picture. Q: But you asked him to look at the picture? A: I think so, yes. Q: Did he appear to be looking at the picture? A: To the best of my recollection, yes. Q: Yes. Did he say anything about whether he recognized the person in the picture? A: No. Q: Did you ask Mr. Washington if he lived in the apartment? A: No. Defendants argue that Mumper had probable cause to arrest Smith because the person who answered the door of Apartment 6D did not know anybody who went by Smith’s name, which made it likely that Smith had not in fact been visiting that apartment, as he had claimed, and was trespassing. Plaintiffs respond with the following argument: “After Mr. Smith demonstrated his familiarity with the residents of apartment 6D by indicating that the person who answered the door would be blind and would be wearing dreadlocks, a reasonable jury could find that Officer Mumper lacked probable cause.” For support, plaintiffs cite to the Second Circuit’s statement in Panetta v. Crowley that “an officer may not disregard plainly exculpatory evidence.” As defendants note, the Second Circuit has simultaneously made clear that “ ‘[t]he fact that an innocent explanation may be consistent -with the facts alleged ... does not negate probable cause,’ ” and that once a police officer has a reasonable basis for believing there is probable cause, he is not required to explore and eliminate every theoretically plausible claim of innocence before making an arrest. Although a better procedure may [be] for the officers to investigate plaintiffs version of events more completely, the arresting officer does not have to prove plaintiffs version wrong before arresting him. The inquiry is therefore highly fact specific. Although police officers need not “believe with certainty that the arrestee will be successfully prosecuted,” they also may not ignore clearly exculpatory evidence. In this case, Mumper ignored two important pieces of evidence. The fact that Smith knew that Washington would answer the door at apartment 6D strongly corroborated his earlier statement that he had just been in the apartment. And the fact that Smith told the officer that Washington was blind significantly undercut the probative value of Mumper’s act of showing the ID to Washington. Mumper’s investigation was also extremely cursory: according to his own testimony, he failed to find out if Washington recognized the person in the ID, failed to observe that Washington was blind, failed to determine whether Washington was the tenant of the apartment, failed to ask Washington if anybody had recently left the apartment, and refused Smith’s request to accompany the officer upstairs so that Washington could identify him by voice. If Mumper had conducted a more thorough investigation, he would surely have discovered that Smith had just left the apartment and was an invitee. “Probable cause requires an officer to have ‘knowledge or reasonably trustworthy information sufficient to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested.’ ” If a juror believes Smith’s version of events, she could reasonably conclude that Mum-per ignored clearly exculpatory evidence and was insufficiently cautious when arresting Smith without conducting a thorough investigation. Summary judgment in the City’s favor on Smith’s Fourth Amendment claim based on his arrest is therefore denied. 6. Roman Jackson and Kristin Johnson’s Stop and Arrest a. Facts The undisputed facts relating to the arrest of Roman Jackson and Kristin Johnson are as follows. On January 31, 2009, Jackson was a tenant at the NYCHA building at 131 St. Nicholas Avenue. Johnson came to visit him and he suggested that they sit in the stairwell. They took the elevator to the seventeenth floor (the highest floor of the building) and then sat on the platform at the top of the stairwell that is connected to the roof through a door. Approximately twenty minutes later, three police officers arrived. Jackson testified at his deposition that one of the officers asked Jackson and Johnson what they were doing there; Jackson politely greeted the officers and told them that he was a resident and was having a conversation with his friend; the officer told Jackson and Johnson that they were not supposed to be there; the officers ordered them against a wall and frisked them; Jackson told the officers that they or he could retrieve his identification from his grandmother, who was at home at the time, in order to verify his residence and said that he did not understand how he could be trespassing in his own building; the officers told Jackson and Johnson that they were trespassing and arrested them. b. Legal Background New York Penal Law section 140.10(e) reads as follows: A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property ... (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. (Emphasis added.) Thus, it is a crime, even for tenants, to knowingly remain unlawfully in a NYCHA building in violation of conspicuously posted rules. There is no dispute that on the day Jackson and Johnson were arrested, there was a sign posted in the lobby of 131 St. Nicholas Avenue stating that “loitering and trespassing in lobby, roof, hallway and stairs is not permitted.” There is a dispute about whether such a sign was posted in the location where Jackson and Johnson were sitting. In order to prevail on summary judgment, the City must show that there were conspicuously posted rules that put Jackson on notice that he was prohibited from sitting at the top of the stairwell for twenty minutes. Although defendants provide evidence that the tops of stairwells are dangerous locations, the NYCHA rule as posted cannot reasonably be read to mean that residents are prohibited from ever being there. The signs prohibit “trespassing and loitering” in “lobby, roof, hallway and stairs” and if those words meant that merely being present in those locations was prohibited, residents would have no way of getting to or from their apartments. Defendants’ only plausible argument, therefore, is that the signs adequately put residents on notice that they may not “loiter” in those locations. Prohibitions on loitering have a long and ugly history in New York City and across the United States. One of New York State’s prohibitions on loitering was struck down in 1988 by the New York Court of Appeals, which held that this statute is unconstitutionally vague under the Due Process Clauses of the Federal and State Constitutions because it fails to give fair notice to the ordinary citizen that the prohibited conduct is illegal, it lacks minimal legislative guidelines, thereby permitting arbitrary enforcement and, finally, it requires that a citizen relinquish his constitutional right against compulsory self-incrimination in order to avoid arrest. In striking down the statute as unconstitutionally vague, the Court of Appeals was vindicating the principle “ ‘that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ ” That principle requires that criminal laws “give a person of ordinary intelligence fair notice that [her] contemplated conduct is forbidden by the statute.” Beyond notice, the void-for-vagueness doctrine also “requires that a penal law not permit arbitrary or discriminatory enforcement” because [t]he absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon their own personal, subjective idea of right and wrong. A vague statute “confers on police a virtually unrestrained power to arrest and charge persons with a violation” (Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) [Powell, J., concurring] ), and “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure’ ” (Papachristou, 405 U.S. at 170, 92 S.Ct. 839 (quoting Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 84 L.Ed. 1093 (1940))). The criminal statute at issue in this case is not vague. It states that a person present in a NYCHA building is guilty of trespass if he fails to comply with “conspicuously posted rales or regulations governing entry and use thereof.” But if NY-CHA rales are to be incorporated into the State’s criminal laws then the constitutional limits governing vagueness must apply to those rules as well. And New York’s Court of Appeals has made clear that, in general, prohibitions on “loitering” are unconstitutionally vague: The term “loiter” or “loitering” has a commonly accepted meaning that has evolved over the years, and connotes the act of remaining about or hanging around a place without any apparent purpose ---- However, a statute that merely prohibits loitering, without more, is unconstitutionally vague. Such a generalized law fails to distinguish between conduct calculated to cause harm and conduct that is essentially innocent, thereby failing to give adequate notice of what conduct is prohibited. Further, such a statute impermissibly places complete discretion in the hands of the police to determine whom they will arrest. The Court of Appeals has been more forgiving of loitering statutes that prohibit “loitering in a specific place of restricted public access,” such as schools or waterfronts, “since these locations were not open to the public, were places where illegal activity was notorious, and were normally frequented only by those who are affiliated with the activity being carried on there.” c. Analysis Prohibiting trespass and loitering on NYCHA property by uninvited strangers is understandably important to many residents: the buildings are their homes. The Legislature has reasonably determined that, for the safety and well-being of NY-CHA residents, access to the buildings should be restricted to residents and their invited guests. But a prohibition on “loitering” by a resident is unconstitutionally vague. The sign relied upon by the City prohibits loitering “in lobby, roof, hallway, and stairs.” According to that sign, may two neighbors, meeting each other in the hallway outside their apartments, talk for fifteen minutes about the American League pennant race? Or would doing so subject them to lawful arrest? If it is cold outside, may an elderly woman wait in the lobby of her building for ten minutes while her son hails a cab? Or may she too be punished by up to three months in prison? Because the sign prohibits a vast swath of “conduct that is inherently innocent,” it fails to give NYCHA residents notice of what precise conduct is prohibited and it “places complete discretion in the hands of the police to determine whom they will arrest.” Subsequent to the arrest of Jackson and Johnson, NYCHA issued a new document entitled “Highlights of House Rules, Lease Terms and Policy” that expressly prohibits residents’ presence on roof landings, that is, at the top of stairwells. The document also says that “the lobby or stairwell is meant for resident use to either go in or out of the building or to walk from floor to floor,” and says that “lingering” is prohibited in “the lobby, corridors, and stairwell.” I sympathize with the desire of NYCHA residents (including plaintiff Eleanor Britt, Jackson’s grandmother) to keep their homes safe. But, as written, the prohibitions do not clearly distinguish between harmful and innocuous activity— indeed, Britt’s act of sitting at the Tenant Patrol table in the lobby of buildings and requesting that all visitors sign a log book could itself fall under the criminal prohibition against “loitering” or “lingering” in the lobby because she is not using the lobby “to either go in or out of the building.” The vagueness of the terms (and the discretionary enforcement that accompanies it) may be acceptable in the context of residential leases, where landlords and tenants need flexibility and are entitled to a measure of discretion. But it is unconstitutional when incorporated into the criminal statutes. Because a reasonable jury could find that there was no probable cause to arrest Jackson or Johnson, defendants’ motion for summary judgment on their Fourth Amendment claim is denied. 7. Rikia Evans’ Stop and Arrest a. Facts According to Rikia Evans, the facts of her arrest are as follows: she was standing in the doorway of the lobby of 175 Alexander Avenue at approximately 11:45 p.m. on October 16, 2010, looking to see if her friend was coming to the building to pick her up and walk her home as they had arranged. Officer Keith Devine, who was there conducting a patrol, exited the building and said to Evans “either in or out.” Evans complied with his directive by walking into the building and toward the elevator. Before she reached the elevator, Devine said “hey, come back, you heard me call you three times.” Evans then stopped and told Devine that he had not called her three times. Devine asked whether she lived in the building; she said that she lived on Jackson Avenue; Devine said that she was trespassing; Evans said, “I’m not trespassing, my aunt lives here.” Evans told Devine that her aunt lived on the twelfth floor; he asked her what apartment and she did not respond. In her deposition, she explained the interaction as follows: Q: What do you mean when you say you didn’t tell him? A: I didn’t answer. Q: Did you know the apartment number? A: Yes. Q: But you decided not to tell him? A: Yes. Q: Why did you make that decision? A: Because I didn’t want no trouble. Q: You didn’t want any trouble? A: Yes. Q: You thought that by not telling him your aunt’s apartment number, then you would avoid having any trouble? A: Yes. Q: Why did you believe that? A: I just thought if I didn’t say anything that he would leave me alone. At that point, according to Evans, Devine started screaming at her that she was trespassing and asked for her aunt’s apartment number two or three times; she refused to provide it. He asked for identification and although she had it with her, she refused to provide it because “[she] didn’t think he needed to see it.” She then tried to walk away, but Devine’s supervisor, Lieutenant Christopher Allen, grabbed her by the jacket, pushed her against a wall, and asked Devine if they should “take her in.” Evans then told the officers that she “could call [her] aunt to come down” but the officers told her “No, to hang up the phone.” She then started crying and the officers told her she was under arrest. b. Legal Background Evans’ arrest squarely presents an important and discrete Fourth Amendment question: whether the police are permitted to rely on a visitor’s refusal to answer questions about her destination in order to establish probable cause for a trespass arrest. New York State courts appear to have reached conflicting answers about whether probable cause exists to arrest a person who acknowledges that he is not a tenant but does not identify whom he is visiting. Judge Robert Mandelbaum of the New York Criminal Court has concluded that the relevant distinction is between individuals who are unable to identify the tenant whom they are visiting and those who remain silent or refuse to provide the information. If a woman is unable to identify the tenant or location that she is visiting, Judge Mandelbaum reasoned, then the police have probable cause to believe that she is trespassing. In contrast, “a failure to cooperate by identifying oneself or answering questions cannot ‘be the predicate for an arrest absent other circumstances constituting probable cause.’ ” Thus, “evidence that a defendant, when approached by police in the lobby of an apartment building, advised the officer that he did not live in the building and was just ‘hanging out,’ is legally insufficient to establish criminal trespass” because “although the accused ‘did not offer an explanation for his presence, it was not his obligation to do so.’ ” Last year, Judge Kevin McGrath of Brooklyn Criminal Court addressed the same question in People v. Messina. Messina was standing in the lobby of a NYCHA building when a police officer approached him and asked whether he was a tenant; he responded that he was visiting a friend but did not provide an apartment number. Judge McGrath began by explaining that it is beyond dispute that the defendant has a right not to answer questions posed to him by law enforcement personnel (see U.S. Const. Amend. V) and that the invocation of that right may not give rise to criminal consequences (see Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936)). It is equally clear to this court that no essential element of a prima facie case can be established, at the pleading stage, by an allegation that the defendant declined to respond to a police inquiry. However, Judge McGrath cited a recent New York Court of Appeals case to support his holding that because the police knew Messina was not a tenant in the building, it was his burden to establish that he was there by invitation. In People v. Davis, the Court of Appeals considered a trespassing rule that prohibits presence in a New York City park after its closing time, unless “ ‘upon order by a Police Officer or designated [Parks] Department employee.’ ” Davis sought to dismiss the charge on the grounds that the state could not establish that he did not have the permission of a police officer or parks department employee to be in the park. The question, according to the Court of Appeals, was whether the law’s reference to the “order by a Police Officer” was “a true ‘exception’ that must be pleaded by the People or whether it operates as a ‘proviso’ that defendant was required to raise as a bar to prosecution.” According to the Court, the answer depends on the legislative intent, and it concluded that the City’s Parks Department [which promulgated the rule] did not intend that the People plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time. Such information is uniquely within a defendant’s knowledge, and to require the People to plead and negate the existence of the relevant permission would require them to go to “intolerable lengths,” including innumerable interviews of officers and employees in the area during the date in question. In Messina, Judge McGrath concluded that when charging trespass in a NYCHA building under section 140.10(e), the prosecution has the burden of establishing (or, in the ease of an information, alleging) that an individual is not a tenant in the building. However, relying on Davis, he held that a non-tenant has the burden of establishing that he is an invited guest: In order for the People to adequately allege facts that would establish that the defendant was not an invited guest inside the building, the police officer who observed the defendant would be forced to question each and every resident of that building in order to determine that the defendant had, in fact, not been invited into the building .... [M]uch like the knowledge that the defendant in Davis was authorized to ignore the posted park rules, information concerning whether the instant defendant was an invited guest of one of the building’s tenants was peculiarly within the defendant’s knowledge. Much of Judge McGrath’s reasoning is persuasive. He did not, however, consider the two cases that I believe are most relevant to the analysis. First, in People v. Brown, the New York Court of Appeals considered Brown’s challenge of his conviction for criminal trespass. The court overturned the conviction because the prosecution had failed in its “burden of proving each and every element of [trespass] ... specifically, the absence or loss of a statutory privilege or license to enter and remain.” This determination applied specifically to the trespassing statute, which for these purposes has not changed since 1969. In its Davis decision addressing presence in the park, the Court of Appeals did not mention Brown and I have no reason to believe that Brown is no longer good law. The Court of Appeals’ interpretation of state law settles the question: it is the state’s burden to prove that an invitee does not have privilege or license to remain on the premises. Because it is an element of the crime, officers must have probable cause to believe that a person does not have permission to be where she is before they arrest her for trespass: “Probable cause must extend to every element of the crime for which a person is arrested.” And, of course, the state cannot rely on a person’s exercise of her Fifth Amendment right to remain silent in order to satisfy that burden. The United States Supreme Court’s recent dicta in Hiibel v. Sixth Judicial Dis trict Court supports this conclusion. In that case, the Supreme Court considered the constitutionality of a Nevada statute that criminalized the refusal to identify oneself when stopped by the police. Hiibel challenged his conviction, arguing that the Fifth Amendment protected his right not to answer any questions by police officers, including their demand that he identify himself. The Supreme Court rejected Hiibel’s argument because it found that a disclosure of one’s name would not tend to incriminate him: While we recognize petitioner’s strong belief that he should not have to disclose his identity, the Fifth Amendment does not override the Nevada Legislature’s judgment to the contrary absent a reasonable belief that the disclosure would tend to incriminate him. The Court’s determination turned on the limited nature of the statute: The narrow scope of the disclosure requirement is also important. One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic. Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances. c. Analysis The present circumstances are different from those in Hiibel. Defendants argue that Evans could be arrested because she refused to identify her aunt’s apartment number. According to their argument (and Judge McGrath’s conclusion in Messina), a person has the obligation not only to disclose her name but also to disclose the name and apartment number of her host. This information, however, is often incriminating. Numerous cases, including the arrests of Osorio and Smith in this case, involve situations in which a person who was stopped by police officers is arrested because they do not believe that his or her answer to the question “where are you going?” was credible. Although police may obviously consider a person’s lies when assessing probable cause, the Supreme Court’s limiting language in Hiibel strongly suggests that the Fifth Amendment prohibits police from arresting an individual for refusing to provide “testimonial” evidence. The New York Court of Appeals’ holding in Brotm and the Supreme Court’s dicta in Hiibel support the conclusion that New York City police officers may not arrest a person for trespass in a NYCHA building solely on the basis of her refusal to identify the resident who has given her permission to be in the building, even if they know that she herself is not a resident. With the preceding legal analysis in mind, I turn to its application in this case. i. Evans’ Terry Stop Evans alleges that she was both stopped (that is, “seized”) and arrested unlawfully. Evans was seized, for the purpose of the Fourth Amendment, when she attempted to walk to the elevator, was told to “come back” by Officer Devine, and stopped walking. The Second Circuit has held that “[a] seizure occurs when [] a person obeys a police officer’s order to stop.” Devine’s order to “come back” was an order to stop and Evans obeyed the order. Rather than argue that Devine had reasonable suspicion to stop Evans at that time, the City describes Devine’s words as merely a “request” that Evans come back and argue that it did not constitute a seizure. The City cites to two state court decisions holding that police may instruct a person to “stop” without having seized them under the Fourth Amendment and Terry. These cases do support defendants’ position but they are squarely contradicted by the Second Circuit’s decision in United States v. Simmons. It is the Second Circuit, not the Appellate Division or the New York Court of Appeals, whose interpretations of the Fourth Amendment are binding on this Court. When told by a police officer to “come back” in the lobby of a building, a reasonable person would believe that he was not free to leave. According to the facts as she describes them, Evans was seized when she complied with the order. If a juror were to believe Evans’ version of events, she could reasonably conclude that at the time of the seizure Devine did not have reasonable suspicion to believe that Evans was committing a crime. The only information available to Devine was that, late at night in an allegedly high-crime area, Evans had been waiting in the doorway of the lobby for approximately three minutes and went inside the building after Devine told her “either in or out.” There is nothing suspicious about waiting in a lobby for three minutes (even in a high-crime area at night) and there is nothing suspicious about complying with an officer’s instruction to go “either in or out.” Because these facts, if true, may establish that Evans was stopped unlawfully, summary judgment on Evans’ claim for an unlawful stop is denied. ii. Evans’ Arrest According to Evans’ testimony, at the time that Devine told her that she was under arrest, he knew the following facts: (1) Evans said she did not live in the building, (2) Evans said her aunt lived on the twelfth floor, (3) Evans repeatedly refused to tell him what apartment number her aunt lived in, and (4) Evans offered to call her aunt to come down to the lobby. For the reasons just discussed, if a jury were to believe this version of events, it could reasonably conclude that these facts did not establish probable cause to arrest Evans for trespass. There is no probable cause to arrest a person if the only facts known to the police are that the person says she does not live in the building and refuses to say more about her license or privilege to be there. Even if the burden is on the visitor to identify the resident who has given her permission to be in the building, a jury crediting Evans’ testimony could reasonably find that there was no probable cause to arrest Evans. She identified her aunt’s floor and offered to call her aunt down to the lobby to verify her authorization to be there. This offer would have made it easy for the police officers to evaluate her claims, which fully addresses the pragmatic concerns raised by Judge McGrath in Messina. Instead, the officers improperly chose to “disregard plainly exculpatory evidence” and arrested Evans. Additionally, in Hiibel the Supreme Court addressed Hiibel’s concern that the Nevada statute “circumvents the probable-cause requirement, in effect allowing an officer to arrest a person for being suspicious” by pointing to “the requirement that a Terry stop must be justified at its inception” and that “an officer may not arrest a suspect for failure to identify himself if the request for identification is not reasonably related to the circumstances justifying the stop.” The officers in this case (allegedly) arrested Evans after making an unlawful stop so their reliance on her silence is squarely foreclosed by Hiibel. Evans’ testimony, if credited by the trier of fact, establishes that she was arrested unlawfully. Accordingly, defendants’ motion for summary judgment on this claim is denied. B. The Arrested Plaintiffs’ Equal Protection Claims Against the City for Unlawful Terry Stops and False Arrest The City seeks summary judgment on the arrested plaintiffs’ claim that their stops and arrests were based on their race and therefore violated the Fourteenth Amendment to the United States Constitution and Article 1 of the New York Constitution. The City argues that “there is no evidence in the record that the Arrested Plaintiffs’ stops and/or arrests were motivated by racial animus by the individual officers.” The statement is incorrect, but even if it were true it would be insufficient to establish the City’s entitlement to summary judgment. The Fourteenth Amendment prohibits intentional discrimination on the basis of race, not government action that has a disproportionate racial impact. Thus, in order to survive summary judgment, the arrested plaintiffs must proffer evidence that would support a jury’s determination that the officers stopped and arrested them “at least in part because of’ their race. As the Second Circuit and the Supreme Court have explained: Because discriminatory intent is rarely susceptible to direct proof, litigants may make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available. The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.” Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977). The consequences of government action are sometimes evidence of the government’s intent: “proof of discriminatory intent must necessarily usually rely on objective factors .... The inquiry is practical. What a legislature or any official entity is ‘up to’ may be plain from the results its actions achieve, or the results they avoid.” Plaintiffs argue correctly that the existence (or absence) of a City-wide statistically significant racial disparity in stops and arrests on NYCHA property would constitute circumstantial evidence regarding the intent of the arresting officers. As the late Judge Robert Carter explained in 2006, a plaintiff can establish his equal protection claim if he can “show a causal connection between the unconstitutional policy and the violation of his rights.” If the plaintiff can raise an issue of fact regarding “the NYPD’s practice of wrongfully stopping and detaining African-Americans,” then evidence that the stop was unlawful and was “in line with” that policy will be enough to survive summary judgment. The parties chose to brief defendants’ motion for summary judgment in two parts. The first part, adjudicated here, involves only those questions pertaining to the plaintiffs’ individual circumstances. The second part will address defendants’ Monell liability. Plaintiffs state that they intend to present statistical evidence showing “substantial, statistically significant racial differences in terms of who is stopped and/or arrested on NYCHA property.” The City will surely dispute the probative value of this evidence. But because such evidence — if admissible — would provide important context to the jury, I cannot rule on the City’s motion for summary judgment regarding plaintiffs’ claims of racial discrimination without it. Thus, the City’s motion is denied without prejudice and with leave to renew subject to further briefing with respect to plaintiffs’ Monell claims. C. The Arrested Plaintiffs’ Claims Against NYCHA for Violations of Equal Protection The arrested plaintiffs have brought them federal and state constitutional claims for false arrest against only the City, not NYCHA. But the claims under the Equal Protection clause of the Fourteenth Amendment and Article I, Section 11 of the New York Constitution were brought by “All Plaintiffs against All Defendants.” Plaintiffs’ argument on these claims focuses exclusively on the arrested plaintiffs (that is, every plaintiff but Britt) and does not explain how NYCHA could be liable for a false arrest based on racial discrimination if it had no liability for the arrest to begin with. NYCHA’s motion for summary judgment on plaintiffs’ second and eighth claims for relief is therefore granted. D. Resident Plaintiffs’ Contract-Based Claims Under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Fair Housing Act, and the New York State and New York City Human Rights Laws The resident plaintiffs bring a host of claims alleging that defendants’ discriminatory policing practices have diminished their ability to enjoy the benefits of their homes. Although the claims are brought under an array of contract, housing, and civil/human rights laws, they are founded on the same basic allegation, namely that the resident plaintiffs have been denied the enjoyment of the benefits, privileges, terms, and conditions of their contractual relationship with NYCHA, because they are limited in their ability to enter and exit then-own homes, and in their ability to receive guests, due to Defendants’ trespass enforcement policies and practices, which are conducted in a [racially] discriminatory and unlawful manner. Only the resident plaintiffs maintain these claims. Although their brief displays some confusion about the matter, the only remaining plaintiffs who are lawful tenants of NYCHA apartments are Britt, Littlejohn, and Evans. All of their residency claims appear to depend on the following limited set of facts: Both Ms. Evans’s father and uncle have been stopped while visiting her. After he was stopped, Ms. Evans’s uncle’s visits declined from twice weekly to fewer than three times per month. Similarly, Ms. Evans’s father no longer visits Ms. Evans at her residence; instead, he meets her outside her apartment building. After Ms. Evans was arrested for trespass while visiting a close family friend, whom she considers an aunt, she stopped her daily visits. In addition, Ms. Evans has stopped visiting other friends who live in NYCHA developments and no longer has close friends who are NYCHA residents .... Mr. Washington and Mr. Littlejohn, both residents of NYCHA’s Eastchester Gardens development, have been close Mends since childhood. While Mr. Washington previously visited Mr. Littlejohn “all the time,” after he was arrested while visiting Mr. Littlejohn, he now visits only “once in a while.” Because both Mr. Washington and Mr. Littlejohn live in NYCHA housing, Defendants’ practices completely inhibit them from visiting one another in the safe havens of their homes. Mr. Washington testified that his inability to visit a Mend “next door” leaves him with “no freedom at all.” Plaintiffs point to no evidence regarding the impairment of Britt’s residency-based rights beyond those under the United States Housing Act that guarantee the provision of a reasonable residential lease. With these facts in mind, I turn to the evaluation of each of the plaintiffs’ residency-based claims. 1. Title VI of the Civil Rights Act of 1964 Title VI of the Civil Rights Act of 1964 states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” The resident plaintiffs allege that they are “unable to use and enjoy their residences because Defendants’ vertical patrol and trespass enforcement practices are conducted in such a consistently unlawful and discriminatory manner that the residents are not free to come and go as they wish.” The City argues that Title VI creates a cause of action only for discrimination by grant recipients, not for discrimination by third parties. Because NYCHA is the grant recipient and the City merely provides policing services to NYCHA, the City argues that it cannot be held liable under Title VI. The statutory language at issue is convoluted. Stripped of its subsections and semicolons, the statute says that the non-discrimination provisions apply to “all of the operations of [ ] a department ... of a local government ... any part of which is extended Federal financial assistance.” Both parties cite to Alfano v. Bridgeport Airport Services, in which Judge Janet Arterton of Connecticut District Court analyzed the claims of a disabled worker under a federal law prohibiting discrimination “under any program or activity receiving Federal financial assistance.” After a thorough review of the caselaw, Judge Arterton explained that [w]hile an indirect recipient of federal aid is covered by [the anti-discrimination law] if it is Congress’s intended [financial] recipient, a program that merely benefits from the use of the [federal] aid is not covered .... Whether financial payment may be deemed a government subsidy or mere compensation for services, however, is a complex question that depends on the particular facts and circumstances of the contract and project at issue. Because this round of briefing dealt only with plaintiffs’ individual circumstances, the parties have not submitted evidence regarding the nature of NYCHA’s contract with the NYPD. I cannot at this point determine whether the City is “extended Federal financial assistance” pursuant to that contract and cannot determine whether it is amenable to suit under Title VI, let alone whether there is a material dispute of fact regarding its compliance with the nondiscrimination mandates of Title VI. Thus, defendants’ motion for summary judgment on this claim is denied without prejudice and with leave to renew at the second round of summary judgment briefing on plaintiffs’ Monell claims. 2. 42 U.S.C. § 1981 The Civil Rights Act of 1866, now codified at 42 U.S.C. § 1981, protects the rights of all persons “to make and enforce contracts” free from discrimination on the basis of race. After the Supreme Court reaffirmed a narrow construction of that provision in 1989, Congress passed the Civil Rights Act of 1991, which, among other changes, added section 1981(b): For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. (Emphasis added). Section 1981 “offers relief when racial discrimination ... impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.” Evans, Littlejohn, and Britt are authorized residents on a lease (that is, a contract) with NYCHA. There is no doubt that the three resident plaintiffs have rights under the existing contractual relationship. The question is whether that relationship has been impaired because of racial discrimination. The City and NYCHA argue that Evans, Littlejohn, and Britt cannot make out a claim under section 1981: Any evidence that they are merely limited in their ability to enter and exit their homes and to receive guests is insufficient because “there is no record evidence to establish that any of the Resident Plaintiffs have actually lost the ability to enter and exit their own homes and/or receive any guests.” As defendants point out correctly, the plaintiffs “continue to enter and exit their homes” and “continue to receive guests.” According to plaintiffs, “[d]efendants’ suggestion that Resident Plaintiffs’ § 1981 claims must be dismissed because the Resident Plaintiffs do not live in complete seclusion is contrary to law.” Plaintiffs point out that Congress intended the 1991 amendments “to bar all race discrimination in contractual relations,” not merely discrimination that impairs contracts completely. For example, the law reaches discriminatory disparities in salaries, not only a discriminatory failure to pay any salary whatsoever. The City’s support for its position that section 1981 prohibits only complete evisceration of a contract, and not merely partial impairment of the terms or conditions of a contract, is particularly weak: it cites to an unpublished Third Circuit decision that