Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 1 of 37 Peter L. Zimroth +1 212.715.1010 Direct Peter.Zimroth@aporter.com May 8, 2017 VIA ECF Honorable Analisa Torres United States District Judge United States District Court Southern District of New York 500 Pearl Street New York, NY 10007-1312 Re: Davis, et al. v. City of New York, et al., 10-CV-0699 (AT); Recommendation regarding roll call training scripts on policies for stops in NYCHA buildings Dear Judge Torres: I am pleased to submit my recommendation regarding one aspect of training for the court-approved NYPD policies and practices concerning enforcement activities in and near New York City Housing Authority ( NYCHA ) buildings. The training subject to this recommendation consists of two videos of PowerPoint presentations with a voiceover to be shown to officers in commands at roll call. The script for the voice-over for each slide appears at the bottom of that slide. The parties are still working on additional training materials for officers in the Housing Bureau. The settlement in Davis requires a Patrol Guide provision for the interior patrol of NYCHA buildings that promotes constitutional interactions between NYPD officers and persons encountered during interior patrols. The court approved this new policy, Arnold & Porter Kaye Scholer LLP 250 West 55th Street New York, NY 10019-9710 www.apks.com 78953153v3
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 2 of 37 May 8, 2017 Page 2 P.G. 212-60, in June 2016 (Dkt. No. 358). Since then, the parties have been working to resolve their differences concerning this training and the related training for interior patrols of TAP buildings; those differences are now resolved. I believe that the proposed training materials meet the requirements of the court s order approving the settlement in Davis v. City of New York (Dkt. No. 339). The parties in Davis have informed me that they support the approval of these roll call training materials. Respectfully submitted, /s/ Peter L. Zimroth Peter L. Zimroth Monitor Attachments: (1) P.G. 212-60 Interior Patrol of Housing Authority Buildings Roll Call Video PowerPoint Presentation with Voice-Over Script, 1 of 2 (2) P.G. 212-60 Interior Patrol of Housing Authority Buildings Roll Call Video PowerPoint Presentation with Voice-Over Script, 2 of 2 78953153v3
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 3 of 37 Attachment 1
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 4 of 37 Patrol Guide procedure 212-60 entitled Interior Patrol of Housing Authority Buildings has been revised. The following are the highlights of the new procedure. 1
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 5 of 37 All officer inquiries, interactions and enforcement activities in Housing Authority buildings must be conducted with the courtesy, professionalism and respect to which all persons are entitled in their own homes Residents of Public Housing and their guests have the same rights as anyone else 2
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 6 of 37 Interior patrol fundamentals: Notify the radio dispatcher and provide the address of the building prior to beginning an interior patrol 3
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 7 of 37 Stay with your partner at all times do not split up! 4
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 8 of 37 Patrol Guide section 212-11 applies to interior patrols in NYCHA and establishes the standards for conducting all investigative encounters 5
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 9 of 37 Be alert for persons who may be violating Housing Authority rules and regulations commonly referred to as House Rules A person may not be stopped or arrested for violation of a house rule unless it is also a criminal offense However, violation of a house rule may provide an objective credible reason to approach a person. You can only ask nonaccusatory questions because they are not a suspect Prepare a Field Report for violations of House Rules 6
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 10 of 37 Lingering is an example of a house rule Lingering occurs when an individual remains in a common area of a NYCHA residential building for an unreasonable period of time in light of the area s intended purpose. Waiting in the lobby for a cab or a food delivery is NOT lingering since those activities are consistent with the area s intended purpose. Lingering, without more, is not a criminal offense for which a person may be stopped or arrested However, lingering may provide the basis to approach a person and make further inquiries 7
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 11 of 37 Trespass investigations: Be alert for persons engaged in criminal activity including potential trespassers To establish a charge of trespass, you must show that the person knowingly entered or remained unlawfully in a NYCHA building or upon NYCHA property 8
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 12 of 37 Mere presence in or around a NYCHA building does not provide the basis to approach a person and conduct an investigative encounter Merely passing through a door with a broken lock or that is propped open does not provide a basis to stop a person 9
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 13 of 37 Restricted Areas: Typical restricted areas include: the roof, roof landing and boiler rooms Any person found in a restricted area may be arrested for trespassing if there is probable cause that the person knows that their presence in the area is prohibited. For example: there are conspicuously posted signs prohibiting entry, or the person has previously been found in the same type of restricted area and notified that it s restricted If the person resides in the building, you should exercise your discretion and instruct them to leave the restricted area. 10
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 14 of 37 If there are no signs or the signs are illegible and it cannot be established that the person knows the area is restricted, a resident or authorized visitor should be instructed to leave the restricted area. If they are not a resident or authorized visitor, they should be instructed to leave the building. 11
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 15 of 37 A reasonable investigation is required before making an arrest or issuing a summons for trespass Remember, a Stop Report must be prepared anytime a person is stopped 12
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 16 of 37 The Trespass Crimes Fact Sheet (TCFS) must be prepared for all trespass arrests 13
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 17 of 37 Uniformed members of the service may exercise their discretion when encountering a trespasser. Consider all of the facts and circumstances when determining whether to arrest a person for trespassing in NYCHA. 14
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 18 of 37 Members of the service are to read the updated procedure. Direct any questions to your Training Sergeant or call the Legal Bureau at 646-610-5400. For further information, consult the Investigative Encounters Resource Center on the NYPD intranet, or Watch the training videos on NYPD-U 15
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 19 of 37 Attachment 2
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 20 of 37 This is the second video going over the new Patrol Guide section regarding interior patrols of NYCHA buildings. In the first video, we reviewed the procedure. Today, we ll go through some scenarios that show what you can and cannot do during an interior patrol. 1
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 21 of 37 Remember, when you are in a NYCHA Building, you are in someone s home, and you should treat the people you encounter there with courtesy, professionalism and respect Patrol Guide 212-11, Investigative Encounters, applies in NYCHA buildings Mere presence in or around a NYCHA building does not provide a basis for an officer to approach Before you make an arrest or issue a summons for Trespass, you must conduct a reasonable investigation Let s run through some interior patrol scenarios. 2
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 22 of 37 You and your partner approach 10 Catherine Slip in order to conduct an interior patrol of that building. As you enter the building, a young man and young woman are walking out of the front door. 3
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 23 of 37 Which of the following actions can you take with respect to them? A) Approach them and ask them for identification B) Ask them what they were doing in the building C) Stop them on suspicion of trespass D) None of the above 4
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 24 of 37 The answer is D) None of the above Mere presence inside of or near a NYCHA building does not constitute an Objective Credible Reason to approach an individual. You should say hello to the individuals and continue on to your Interior Patrol. 5
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 25 of 37 As you and your partner exit the elevator at the top floor and enter the stairwell you observe two young women sitting on the stairs. 6
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 26 of 37 Do you have an Objective Credible Reason to approach them? 7
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 27 of 37 Yes, you are at level 1, Request for Information. You may approach them, but remember, while sitting in a NYCHA stairwell is against the House Rules, it is not a criminal offense. You may inform the two women that they are violating a NYCHA house rule, and ask them nonaccusatory questions, including whether they live in the building, are visiting someone in the building or have business in the building. They do not have to answer your questions, they can walk away, or even run away. 8
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 28 of 37 While you are conducting the interior patrol you receive an anonymous radio call complaining of two males wearing white T-shirts and jeans with guns in the 5 th floor hallway. You proceed to the 5 th floor and observe 2 males, matching the description, standing in the hallway. 9
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 29 of 37 Can you stop these individuals? 10
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 30 of 37 No, not without more information. Since the information you received came from an anonymous caller, you are at level 2, Common-Law Right of Inquiry. You have a couple of options that may help you get to Level 3. First, use your Smartphone to call the caller back to get more information or verify their identity. If that isn t successful, you need to attempt to corroborate the criminal possession of a weapon through your observations. For example, seeing a waistline bulge would allow you to both stop and frisk, since you would then have reasonable suspicion of a violent crime. If one or more of these individuals run away, you would be allowed to pursue and stop them, since that would also escalate the encounter to Level 3. Even if you are stuck at Level 2, you are allowed to ask these individuals to keep their hands out of their pockets, and forcibly remove them if they do not comply. 11
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 31 of 37 Let s go back to the young women you encountered sitting in the stairwell earlier. They provide conflicting answers about whether they live in the building, and then one of them states that they are visiting a friend in Apartment 7B. 12
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 32 of 37 Can you take steps to verify their authority to be in the building? 13
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 33 of 37 Since, based on these facts, you have Reasonable Suspicion of Trespass, you may call for another sector to come stay with the women while you and your partner go to the apartment to ask the resident whether he or she is expecting anyone or if someone left the apartment recently. While you are waiting for the sector to arrive, be sure to take appropriate safety measures such as ensuring you can see the women s hands. Whatever the outcome of this encounter, since you conducted a level three Terry Stop of these individuals, you must prepare a Stop Report. If you do not arrest them, offer a What is a Stop? information card. 14
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 34 of 37 As you walk up to conduct your patrol of the roof, you observe a conspicuously posted sign on the door that prohibits anyone from being on the roof. As you open the door, you observe a man standing on the roof. When you approach him, he states that he lives in the building and all the residents go out on the roof. 15
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 35 of 37 Do you have to arrest the man? 16
Case 1:10-cv-00699-AT-HBP Document 375 Filed 05/08/17 Page 36 of 37 Based on the conspicuously posted sign, you have probable cause to arrest the man for trespass. However, even when there is probable cause to arrest a person for trespassing, you should exercise your discretion to refrain from arresting that person, and instead instruct the person that the roof is a restricted area and tell him or her to leave. There s no way to provide guidance for every possible situation you will encounter, but exercising your discretion not to arrest in this type of situation can be appropriate, especially if the person is a resident. Use your best judgment and stay safe. 17
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