DocketNumber: No. 10 Civ. 0699(SAS)
Citation Numbers: 902 F. Supp. 2d 405
Judges: Scheindlin
Filed Date: 10/9/2012
Status: Precedential
Modified Date: 11/26/2022
AMENDED OPINION AND ORDER
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.
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
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.
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.10
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 violat
Nine of the original eighteen plaintiffs settled their claims. Of the remaining nine, eight have been arrested for trespass by the NYPD
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.”
Because they are moving for summary judgment, defendants “bear[] the burden of establishing the absence of any genuine issue of material fact.”
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.”
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.”
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.”
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.
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.
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.
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.
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.
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.47
Although Quiles arrested Littlejohn for trespass,
[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.51
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.”
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.
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.58
Plaintiffs argue that Smith was seized in the stairway when the officer encountered him and immediately questioned him.
[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.61
Defendants argue that because the officer’s tone of voice was normal
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.
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.69
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.70
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,’ ”
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.74
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.’ ”
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.
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.”
Prohibitions on loitering have a long and ugly history in New York City
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.86
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.’ ”
[t]he absence of objective standards to guide those enforcing the laws permits the police to make arrests based upon*421 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))).89
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.”
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.91
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.
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.
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
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.104
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.”
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.
Last year, Judge Kevin McGrath of Brooklyn Criminal Court addressed the same question in People v. Messina.
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.114
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.’ ”
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.117
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*426 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.118
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.”
The United States Supreme Court’s recent dicta in Hiibel v. Sixth Judicial Dis
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.125
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.126
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.
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.”
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.
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,
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
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.”
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 Fourteenth Amendment prohibits intentional discrimination on the basis of race, not government action that has a disproportionate racial impact.
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).141
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.”
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
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.
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.149
Only the resident plaintiffs maintain these claims.
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 ....152
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.”153
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 City argues that Title VI creates a cause of action only for discrimination by grant recipients, not for discrimination by third parties.
[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.159
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,
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.”
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.”
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 Evans and Littlejohn have proffered concrete evidence showing that since them arrests, they feel less free to come and go from their buildings and to have guests visit them. Evans has testified that police officers referred to her as “nigger” when she was arrested and Littlejohn testified that his friend Washington was also called a “nigger” in Littlejohn’s building while he was attempting to visit Littlejohn.
In contrast, plaintiffs have offered no evidence regarding the alleged impairment of Britt’s contract.
3. Fair Housing Act
Section 3604(b) of the Fair Housing Act (“FHA”) makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services of facilities in connection therewith.”
the inclusion of the word ‘privileges’ implicates continuing rights,. such as the privilege of quiet enjoyment of the dwelling .... [Furthermore, tjhere are few ‘services or facilities’ provided at the - moment of sale, but there are many ‘services or facilities’ provided to the dwelling associated with the occupancy of the dwelling.175
Second, the Second Circuit has determined that in order to advance congressional intent, “ ‘the provisions of 42 U.S.C. § 3604 are to be given broad and liberal construction.’ ”
Finally, this reading comports with the interpretation of the Department of Housing and Urban Development (“HUD”) and with the interpretation of the Department of Justice. 24 C.F.R. § 100.65, entitled “Discrimination in terms, conditions and privileges and in services and facilities,” says that “(b) Prohibited actions under this section include ... failing or delaying maintenance or repairs [and] limiting the use of privileges, services or facilities associated with a dwelling.” Both of these phrases address post-acquisition activity
The FHA’s prohibition on discrimination is generally interpreted in accordance with Title VII’s prohibition on discrimination in employment — that is, it prohibits disparate impact, not only disparate treatment.
4. New York State and New York City Human Rights Laws
Plaintiffs’ eleventh claim is for violations of the New York State Human Rights Law (“NYSHRL”), which prohibits racial discrimination “in the terms, conditions or privileges of any publicly-assisted housing accommodations or in the furnishing of facilities or services in connection therewith” by any “person having the right of ownership or possession” to those accommodations.
Plaintiffs’ twelfth claim is for violations of the New York City Human Rights law, which, like the FHA, prohibits discrimination “in the terms, conditions or privileges of the sale, rental or lease of any such housing accommodation or an interest therein or in the furnishing of facilities or services in connection therewith.”
NYCHA raises two general objections to plaintiffs’ State and City law claims: First, NYCHA argues that plaintiffs have presented no evidence of racial discrimination. As with the summary judgment motions on the other discrimina
actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group [because these actions] are deserving of special treatment. The interests in their resolution on the merits override the State’s interest in receiving timely notice before commencement of an action.189
The cases cited by NYCHA to support its argument that the notice of claim requirement nonetheless applies here were brought by individuals on their own behalf.
E. United States Housing Act Claim
The Amended Complaint’s fifth claim, based on the resident plaintiffs’ rights under the United States Housing Act (“USHA”) and brought pursuant to section 1983, is maintained only against NYCHA.
In addition to their allegation regarding unreasonable lease terms, plaintiffs argue that because their leases “do not contain the required provision for the reasonable accommodation of guests,” the leases violate HUD’s implementing regulations.
Section 1983 creates a cause of action for “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” The Supreme Court has
traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. 'First, Congress must have intended that the provision in question benefit the plaintiff. Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 430, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Id., at 431-432, 107 S.Ct. 766. Third, the statute must unambiguously impose a binding obligation. In other words, the provision giving rise to the asserted right must be couched in man-
datory rather than precatory terms.
In Gonzaga University v. Doe, the Supreme Court considered a lawsuit brought by a student against his university because it had disclosed confidential information about him (namely, that he had been accused of sexual misconduct) to a prospective employer. The Court determined that the Family Educational Rights and Privacy Act (“FERPA”), which provides federal funding for educational institutions contingent upon the institutions’ compliance with federal mandates regarding student privacy, did not confer an individual right to that privacy.
the provisions entirely lack the sort of “rights-creating” language critical to showing the requisite congressional intent to create new rights. Alexander v. Sandoval, 532 U.S. 275, 288-89, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001); Cannon v. University of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). Unlike the individ*440 ually focused terminology of Titles VI and IX (“no person shall be subjected to discrimination”), FERPA’s provisions speak only to the Secretary of Education, directing that “no funds shall be made available” to any “educational agency or institution” which has a prohibited “policy or practice.” 20 U.S.C. § 1232g(b)(l). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of “individual entitlement” that is enforceable under § 1983.199
With the Supreme Court’s guidance in mind, I now examine the Housing Act’s relevant provision, section 1437d(Z )(2), which reads:
§ 1437d. Contract provisions and requirements; loans and annual contributions ...
(1) Leases; terms and conditions; maintenance; termination. Each public housing agency shall utilize leases which—
(2) do not contain unreasonable terms and conditions.
This statutory language satisfies the first and third prongs of the Blessing test: it benefits a specific group of individuals (NYCHA residents) and it is phrased in mandatory rather than precatory terms. The application of Blessing’s second prong is less clear. The statute’s requirement that leases not contain unreasonable terms is not so “so ‘vague and amorphous’ that its enforcement would strain judicial competence.”
In its 1987 decision Wright v. Roanoke Redevelopment & Housing Authority, the Supreme Court determined that 42 U.S.C. § 1437a, which sets ceilings on the percentage of a family’s income that it must pay in monthly rent for a public housing dwelling unit, does create an individual right enforceable under section 1983.
The preceding subsection of the law, section 1437d(k), which plaintiffs do not invoke, provides detailed administrative grievance protections to which tenants are entitled when a housing agency seeks to take adverse action against them.
Subsection 1437d(i)(2) sits somewhere between the provisions at section 1437a (Wright) and section 1437d(k) (Stevenson and other cases), on the one hand, and the provisions of FERPA, which the Supreme Court addressed in Gonzaga, on the other.
Isolated from the section’s other provisions, section 1437d(i)(2) may appear to impose duties on housing agencies rather than confer rights upon tenants. But I find that it does establish an individual right to a reasonable lease because it must be read in context. The preceding sentence, in section 1437d(i )(1), requires that leases be automatically renewed and “that nothing in this title shall prevent a resident from seeking timely redress in court for failure to renew”; two sentences later, in section 1437d(i)(4), the law requires that housing agencies give notice a specific number of days prior to the termination of leases; and, most importantly, section 1437d(k) ensures procedural protections for tenants who are being evicted for violations of the lease provisions governed by
This lawsuit alleges that NYCHA has included in its lease addendum unreasonable terms and conditions, not that NY-CHA has violated the terms or conditions of the lease. Because section 1437d(i)(2) gives the resident plaintiffs a right to a lease free from unreasonable terms and conditions, the suit alleges an infringement of a federal right actionable under section 1983.
A dispute of, fact exists about whether the “Highlights of House Rules, Lease Terms and Policy” constitutes a lease addendum. There is also a dispute of fact as to whether the provisions in that document-mandating that tenants cooperate with police officers and avoid “lingering” in common areas-are unreasonable. Because the question of these provisions’ reasonableness involves an inquiry into NYCHA’s practices and policies rather than into plaintiffs’ individual circumstances, the parties have not fully briefed the issue. Based on my evaluation of the arrest of Jackson and Johnson at the top of the stairwell and the corresponding vagueness of the prohibition against “lingering” in common areas, I am skeptical that NY-CHA will be able to prevail at summary judgment. Nevertheless, so that both parties have the full opportunity to present their case, NYCHA’s motion is denied without prejudice and with leave to renew.
F. Plaintiffs’ Claim for Violation of Due Process Under the Fourteenth Amendment
Plaintiffs’ seventh claim for relief alleges that defendants’ actions have “directly and substantially interfered with some of plaintiffs’ most intimate relationships,” in violation of the Fourteenth Amendment’s guarantee of due process.
Plaintiffs argue that their “relationships with their family and close friends are entitled to substantial constitutional protection,” and that is no doubt correct.
Defendants point to Tenenbaum v. Williams, in which the Second Circuit explained that
“where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (plurality opinion of Rehnquist, C.J.) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). “Substantive due process analysis is therefore inappropriate in this case ... if [the] claim is ‘covered by’ the Fourth Amendment.” County of Sacramento v. Lewis, 523 U.S. 833, 843, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).220
Since we hold to the “centuries-old principle of respect for the privacy of the home,” Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), “it is beyond dispute that the home is entitled to special protection as the center of the private lives of our people,” Minnesota v. Carter, 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (Kennedy, J., concurring). We have, after all, lived our whole national history with an understanding of “the ancient adage that a man’s house is his castle [to the point that t]he poorest man may in his cottage bid defiance to all the forces of the Crown,” Miller v. United States, 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (internal quotation marks omitted).221
Respect for the privacy of the home is the “central value of the Fourth Amendment.”
G. Standing to Seek Injunctive Relief
NYCHA argues that plaintiffs lack standing to seek injunctive relief because they cannot show that they are threatened with real and immediate not conjectural or hypothetical — future injury.
NYCHA does not suggest that the resident plaintiffs lack standing to seek prospective relief regarding their residency-based claims. However, for the reasons articulated in Floyd, plaintiffs also have standing to seek injunctive relief regarding unlawful stops and arrests. Plaintiff Andrew Washington has been stopped inside a NYCHA building two times and arrested once.
Y. CONCLUSION
Defendants’ motions for summary judgment are granted in part and denied in part. The Clerk of the Court is directed to close these motions [Docket Nos. 173, 183].
SO ORDERED.
. See Amended Complaint ("Am. CompL”) ¶ 2.
. See Floyd v. City of New York, No. 08 Civ.1034; Ligon v. City of New York, No. 12 Civ.2274.
. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Id. at 39, 88 S.Ct. 1868 (dissenting).
. Id. at 9-10, 88 S.Ct. 1868.
. Fritz Umbach, The Last Neighborhood Cops: The Rise and Fall of Community Policing in New York Public Housing 5 (2010).
. See Am. Compl. ¶ 103.
. See Deposition of Eleanor Britt ("Britt Dep.”) at 42:8-10 ("The Tenant’s League, what we do, we have tenant patrol to try to monitor the people coming and going in and out of our building and to try to keep the building safe.”). See also Last Neighborhood Cops at 6 ("Anticrime organizing by public housing residents in New York City was in many ways representative of the kinds of unheralded grassroots activism that took place around the country after World War II.... The activists, most of whom were women, understood their efforts in terms of civil rights. They believed that securing their fair share of municipal services, including police protection, was a fundamental right and that working for safe buildings and courtyards was a chapter in the long history of working-class self-help movements.”).
. Britt Dep. at 65:22-24. Britt's sentiment, according to Umbach’s extensive history, is both emblematic and underappreciated: "If the role of conservative groups in promoting law-and-order politics is well documented, the efforts of non-elite groups like public housing activists to mobilize around crime in ways that also challenged some of urban liberalism's ideals is often left unexamined.” Last Neighborhood Cops at 10.
. Britt Dep. at 67:6-20. "[Bjefore the merger [of the NYCHA Police and the NYPD], we had one officer that was stationed in our building. He knew all the residents. If there was a problem, and he would come to the parent and discuss whatever the problem was and he would talk to the young men in the building and there was a mutual respect we had for one another. We don't have that anymore, it is so impersonal ...." Id. at 201:16-22.
. These plaintiffs, whom the parties call the "arrested plaintiffs,” are Roman Jackson, Kristin Johnson, Lashaun Smith, Andrew Washington, Patrick Littlejohn, Raymond Osorio, Vaughn Frederick, and Rikia Evans. Eleanor Britt is the only remaining plaintiff who was never arrested.
. These "resident plaintiffs” are Eleanor Britt, Rikia Evans, Patrick Littlejohn, Andrew Washington, and Vaughn Frederick. Washington and Frederick are not authorized by NYCHA to be tenants.
. The parties have made the following submissions: Defendant City of New York's Memorandum of Law in Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances ("City Mem.”), Memorandum of Law of Defendant New York City [Housing] Authority in Support of Its Motion for Summary Judgment on Plaintiff's (sic) Individual Claims ("NYCHA Mem.”), Plaintiffs' Memorandum of Law in Opposition to Defendants' Motions for Partial Summary Judgment ("PL Mem.”), Defendant City of New York’s Memorandum of Law in Further Support of Its Motion for Summary Judgment Based on Plaintiffs’ Individual Circumstances ("City Rep. Mem.”), and Reply Memorandum of Law of Defendant New York City Housing Authority in Further Support of Its Motion for Summary Judgment on Plaintiffs' Individual Claims ("NYCHA Rep. Mem.”). In addition, they have submitted Defendant City of New York's Local Civil Rule 56.1 Statement of Undisputed Facts ("City 56.1”), Local Rule 56.1 Statement in Support of Defendant New York City Housing Authority’s Motion for Summary Judgment ("NYCHA 56.1”), and Plaintiffs’ Local Rule 56.1 Counterstatement of Additional Material Facts ("PL Counter 56.1”). Plaintiffs’ responses to defendants’ 56.1 statements are abbreviated as "Pl. City 56.1” and "Pl. NYCHA 56.1,” respectively.
. Fed.R.Civ.P. 56(a).
. Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir.2010).
. Zalaski v. City of Bridgeport Police Dep't, 613 F.3d 336, 340 (2d Cir.2010).
. Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir.2011) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
. Id.
. Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011).
. Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir.2010) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (emphasis removed).
. Brod, 653 F.3d at 164.
. In one of his most popular songs, the rapper Jay-Z — who grew up in NYCHA’s Marcy Houses in the Bedford-Stuyvesant section of Brooklyn — showcased his knowledge of these Fourth Amendment rights. See 99 Problems, The Black Album (Roc-A-Fella Records 2003). See also Caleb Mason, Jay-Z's 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, 56 St. Louis LJ. 567 (2012).
. United States v. Swindle, 407 F.3d 562, 566 (2d Cir.2005) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Under New York law, the justifications required for different levels of police intrusion were established in People v. DeBour, 40 N.Y.2d 210, 386 N.Y.S.2d 375, 352 N.E.2d 562 (1976).
. See Terry, 392 U.S. 1, 88 S.Ct. 1868.
. Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000).
. Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (quoting Sokolow, 490 U.S. at 7, 109 S.Ct. 1581).
. United. States v. Bayless, 201 F.3d 116, 133 (2d Cir.2000).
. Terry, 392 U.S. at 22, 88 S.Ct. 1868.
. Wardlow, 528 U.S. at 124, 120 S.Ct. 673 (citing Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979)).
. Id. (quoting Adams v. Williams, 407 U.S. 143, 144, 147-48, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)).
. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (quotation marks and citation omitted).
. United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990).
. Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996).
. Selinger v. City of New York, 453 Fed.Appx. 93, 94 (2d Cir.2011) (quoting Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); Illinois v. Gates, 462 U.S. 213, 231, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
. United States v. Valentine, 539 F.3d 88, 94 (2d Cir.2008).
. See Weyant, 101 F.3d at 852.
. Id.
. Deposition of Raymond Osorio ("Osorio Dep.”) at 39-42, 83-86.
. See City Mem. at 8.
. In criminal prosecutions, the "fruit of the poisonous tree” doctrine generally requires that evidence obtained through an unlawful stop be suppressed. But the Second Circuit has determined that the doctrine is not applicable in section 1983 lawsuits. That is, if police officers develop probable cause after having conducted an unlawful stop, they will be liable only for the unlawful stop, not any subsequent arrest or imprisonment. See Townes v. City of New York, 176 F.3d 138, 145 (2d Cir.1999) (establishing this rule). Accord DiMascio v. City of Albany, 205 F.3d 1322 (2d Cir.2000) (unpublished opinion). Therefore, I must determine whether the officers developed probable cause to arrest Osorio, notwithstanding the fact that material disputes of fact prevent summary judgment regarding the legality of his stop.
. See PI. Counter 56.1 ¶¶ 103-105 (citing Osorio Dep. at 92-96).
. See Deposition of Ruben Arroyo-Perez (“Arroyo-Perez Dep.”) at 89:9-11.
. Id. at 89:25-90:3.
. Plaintiffs attempt to create a material dispute of fact by highlighting Arroyo-Perez’s deposition statement that he was only “pretty sure” that he had asked Keisha Smith whether Andre Smith was in the apartment. See PI. Mem. at n. 9 (citing to Arroyo-Perez Dep. at 89:21). Immediately after using the phrase “pretty sure,” however, Arroyo-Perez used unequivocal language (“a hundred percent sure”), and then, upon being asked to clarify, he again answered in the affirmative. Arroyo-Perez Dep. at 89:21-90:7. Plaintiffs argue that “[n]either Keisha Smith nor Andre Smith provided testimony in this action, and Officer Arroyo-Perez's account of the arrest lacks credibility." PL Mem. at 12 n. 9. However, the absence of testimony from either Keisha or Andre does not establish a material dispute of fact and plaintiffs’ statement regarding the credibility of Arroyo-Perez’ testimony is conclusory and unsupported by any evidence. In any event, the Court may not assess credibility at the summary judgment stage.
. See Townes, 176 F.3d at 145 (noting that an unlawful stop, even if followed by a lawful arrest, "might at most support slight or nominal damages”).
. See Deposition of Patrick Littlejohn ("Littlejohn Dep.”) at 110:22-113:2.
. Id. at 112:11-22 (quotation marks and question marks added for clarity). According to this testimony, Littlejohn was stopped and arrested at the same moment.
. See City 56.1 ¶ 196.
. Devenpeck v. Alford, 543 U.S. 146, 153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). Accord Jaegly v. Couch, 439 F.3d 149, 152 (2d Cir.2006) ("[A] claim for false arrest turns only on whether probable cause existed to arrest a defendant, and ... it is not relevant whether probable cause existed with respect to each individual charge, or, indeed, any charge actually invoked by the arresting officer at the time of arrest.”).
. The parties debate whether or not officers are empowered to make a “criminal” arrest for truancy under New York Education Law § 3213(2)(a) or merely to make a noncriminal seizure. In Matter of Shannon B., 70 N.Y.2d 458, 464, 522 N.Y.S.2d 488, 517 N.E.2d 203 (1987), the New York Court of Appeals affirmed the power of police officers to enforce that truancy law. Plaintiffs point to Matter of Julio R., 129 Misc.2d 171, 492 N.Y.S.2d 912, 914 (Fam. Ct. Richmond Co.1985) in which the court explained that the Education Law authorizes "a noncriminal detention, rather than an arrest in the classic, criminal law sense.” Both according to the case law that plaintiffs cite and the NYPD Patrol Guide, officers should take youths suspected of truancy to school or the Department of Education, not to jail. See Patrol Guide § 215-07, Ex. 36 to Declaration of Katharine Brook-er, plaintiffs’ counsel ("Brooker Decl.”); In re D'Angelo H., 184 A.D.2d 1039, 584 N.Y.S.2d 699, 700 (4th Dep’t 1992). Defendants argue that the appropriate post-arrest protocol is irrelevant to the Fourth Amendment question
. PL Mem. at 15. Plaintiffs point out that in Shannon B., 70 N.Y.2d 458, 522 N.Y.S.2d 488, 517 N.E.2d 203, the New York Court of Appeals found sufficient factual basis for a seizure based on truancy when the middle school-aged girl was standing less than a block from school at 10:15 a.m. and was unable to explain why she was not in school.
. 543 U.S. at 152, 125 S.Ct. 588.
. See PL Mem. at n. 14. In New York City, education is compulsory "until the last day of session in the school year in which the student becomes seventeen years of age.” N.Y. Educ. L. § 3205; N.Y.C. Chancellor’s Regulation A-101.
. The fact that the apartment building was "a known drug-prone location,” City Rep. Mem. at 7, and that Quiles had once seen Littlejohn hanging out with other youths who were smoking an unidentified substance, City Mem. at 12, cannot help establish probable cause for truancy at the time of Littlejohn’s arrest.
. See Deposition of Lashaun Smith ("Smith Dep.”) at 67-68.
. See PL Counter 56.1 ¶¶ 119-129.
. Smith Dep. at 80:10-81:5.
. Id. at 80:14-19. The police officers recount a significantly different narrative, see City 56.1 ¶¶ 136-168 (recounting many facts on the basis of the officers’ testimony despite Smith’s contradictory testimony), but summary judgment is only appropriate on the basis of undisputed facts.
. See PL Mem. at 7.
. See City Rep. Mem. at 2.
. United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002).
. See Smith Dep. at 84:13-18.
. See id. at 81:6-12.
. See City Rep. Mem. at 1 n. 4.
. See PL Mem. at 9.
. See City Mem. at 10 (conceding that Smith was "stopped” at that point).
. Plaintiffs acknowledge that the building was in an NYPD "Impact Zone” and Smith testified that he had lived in the area for a while and said “it’s a very bad neighborhood.” Pl. City 56.1 ¶¶ 139-140; Smith Dep. at 60:16-25. Plaintiffs argue that based on various findings of this court in Floyd v. City of New York, No. 08 Civ. 1034, I should not credit the officers’ statements regarding the area’s high crime. See Pl. Mem. at 10-11. Nonetheless, assuming, arguendo, that Smith’s account is true, there would still be no reasonable suspicion for this stop even if the area were "high crime.”
. See City Mem. at 9. Defendants’ primary evidence supporting Smith's nervousness, as detailed at page 9 of the City’s Memorandum of Law, is flatly contradicted by Smith's version of events. But even if defendants could cite to undisputed actions that Smith took, courts should look skeptically on any claim that an individual appeared nervous or furtive. See United States v. Broomfield, 417 F.3d 654, 655 (7th Cir.2005) (Posner, J.) ("Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”).
. PL Counter 56.1 ¶¶ 133-148 (accurately summarizing Smith Dep. at 84:24-88:23).
. Deposition of James Mumper ("Mumper Dep.”) at 114:14-116:3. Plaintiffs cite to the testimony of Smith’s friend (and Washington's sister) Shawne Jones to support the notion that Mumper failed to describe Smith to Washington with enough specificity "so that Tarion Washington could reasonably identify Mr. Smith.” Pl. City 56.1 ¶ 162. But Jones’ testimony regarding what Washington told her about the conversation he had with Mum-per is hearsay and inadmissible for the truth of the matter asserted (that is, the content of Washington’s conversation with Mumper).
. PL Mem. at 11.
. Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir.2006). Accord Kerman v. City of New York, 261 F.3d 229, 241 (2d Cir.2001); Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir.1999).
. Panetta, 460 F.3d at 395 (quoting United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985)).
. Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir.2001).
. Id.
. Panetta, 460 F.3d at 395 (quoting Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000) (emphasis added)).
. See PL City 56.1 ¶¶ 6-38.
. The parties debate whether this location is properly described as a “roof landing,” although the City acknowledges that the question is ultimately immaterial. See City Rep. Mem. at 3 n. 12.1 refer to the location as the top of the stairwell.
. See Deposition of Roman Jackson ("Jackson Dep.”) at 108-32.
. PL Mem. at 23 (citing City Ex. H).
. The City has produced a photograph of a sign that Police Officer Hector Jimenez states is posted on a door at the top of the B stairwell, where Jackson and Johnson were arrested. See Declaration of Hector Jimenez in Support of Def. Rep. Mem. ¶ 13. He does not state that he took the photograph, however, and three named plaintiffs (Jackson, Johnson, and Jackson's grandmother Eleanor Britt) testified at their depositions that there was no such sign posted in the area where Jackson and Johnson were sitting, and that the photograph is of a sign in a different stairwell. See Pi. Counter 56.1 ¶ 12. Because there is a dispute of fact on this issue, I cannot accept defendants’ version as true for the purpose of summary judgment.
. See People v, James, 28 Misc.3d 345, 902 N.Y.S.2d 293 (Crim.Ct.N.Y.Co.2010) (noting that such signs must be "posted strategically
. See City Mem. at 4; City 56.1 ¶¶ 19-21 (summarizing testimony of Police Chiefs Edward Delatorre and Joanne Jaffee).
. See Casale v. Kelly, 710 F.Supp.2d 347, 347 (S.D.N.Y.2010) ("The City of New York, operating principally through the [NYPD], has continuously enforced three unconstitutional loitering statutes for decades following judicial invalidation of those laws and despite numerous court orders to the contrary.... The human toll, of course, has been borne by the tens of thousands of individuals who have, at once, had their constitutional rights violated and been swept into the penal system.”).
. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972) (recounting the history of vagrancy statutes, from early English law through the twentieth century, and striking down Jacksonville’s vagrancy ordinance with the explanation that ”[o]f course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together.”). See also Michelle Alexander, The New Jim Crow at 28-32 (2010).
. People v. Bright, 71 N.Y.2d 376, 379, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (1988) (striking down Penal Law § 240.35(7), which provided that "[a] person is guilty of loitering when he ... [loiters] or remains in any transportation facility, or is found sleeping therein, and is unable to give a satisfactory explanation of his presence.”).
. Id. at 382, 526 N.Y.S.2d 66, 520 N.E.2d 1355 (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954)).
. Harriss, 347 U.S. at 617, 74 S.Ct. 808.
. Bright, 71 N.Y.2d at 383, 526 N.Y.S.2d 66, 520 N.E.2d 1355.
. N.Y. Pen. L. § 140.10(e).
. Bright, 71 N.Y.2d at 383-84, 526 N.Y.S.2d 66, 520 N.E.2d 1355.
. Id. at 384, 526 N.Y.S.2d 66, 520 N.E.2d 1355.
. I am not aware of any cases that address the arrest of a NYCHA resident for trespass in his or her own building pursuant to the building’s prohibition on loitering.
. Trespass in the third degree is a Class B misdemeanor, N.Y. Pen. L. § 140.10, which is punishable by a definite sentence not to exceed three months, id. § 70.15(2). Roman
. Bright, 71 N.Y.2d at 383, 384, 526 N.Y.S.2d 66, 520 N.E.2d 1355. It is also worth noting that the sign uses confusing language: it prohibits “loitering and trespassing” not “loitering or trespassing” and says that "loitering and trespassing” "is” prohibited, not “are prohibited.” Both of these semantic choices suggest that the rules prohibit the single unified act of “loitering and trespassing,” not each of the separate acts of loitering and of trespassing, and therefore suggest that a resident like Jackson who is loitering but not trespassing will not have violated the rule. See Crooks v. Harrelson, 282 U.S. 55, 58, 51 S.Ct. 49, 75 L.Ed. 156 (1930) ("We find nothing in the context or in other provisions of the statute which warrants the conclusion that the word 'and' was used otherwise than in its ordinary [conjunctive] sense.”); Reese Bros., Inc. v. United States, 447 F.3d 229, 235-36 (3d Cir.2006) ("The usual meaning.of the word 'and,' however, is conjunctive, and unless the context dictates otherwise, the 'and' is presumed to be used in its ordinary sense” (quotation and citation omitted)). But no tenant should be expected to perform such a close reading in order to determine what behavior is and is not permitted in his own building; it is defendants’ obligation to put tenants on clear notice of what constitutes unlawful conduct.
. See Highlights of House Rules, Lease Terms and Policy, Ex. 28 to Brooker Deck, at 2.
. Id.
. See Britt Dep. at 42:2-44:2, 59:24-66:2 (describing her efforts through the Tenant's League to improve the quality of life in her building and her support for a higher police presence).
. See PL Counter 56.1 ¶¶ 50, 52, 56 (citing to Deposition of Rikia Evans (“Evans Dep.”)).
. See id. ¶¶ 57-58.
. id. ¶ 61.
. See Evans Dep. at 126:13-128:7.
. Id. at 126:25-130:1.
. Id. at 130:7-23.
. Id. at 132:10.
. Id. at 142:11-17.
. Id. at 142:23-143:2.
. See id. at 143:3-11.
. In these cases, the courts generally have examined whether the prosecutor’s charging instrument provides “reasonable cause” to believe that the defendant committed a crime. As the Second Circuit has explained, “ '[r]easonable cause' under the Criminal Procedure Law is substantially the same as ‘probable
Compare Matter of Daniel B., 2 A.D.3d 440, 768 N.Y.S.2d 230, 231 (2d Dep’t 2003) ("Although the appellant advised the officer that he did not live in the building and was just ‘hanging [out],' and did not offer an explanation for his presence, it was not his obligation to do so. Rather, it was the [government’s] burden to prove unlawful entry or remaining, and it failed to do so.”); People v. Spann, 8 Misc.3d 654, 796 N.Y.S.2d 227, 229 (Crim.Ct. N.Y.Co.2005) (no reasonable cause if a defendant was seen leaving a private apartment and was unable to give the full name of the apartment’s tenant because “[t]here are many instances where a person may be lawfully in an apartment, or an invitee of a resident, without knowing that resident’s full name. Deliverymen, repairmen, inspectors, and the like often do not know or cannot recall the names of the persons whose apartments they visit for legitimate reasons. That does not mean that these people do not have a proper reason to be there.”); People v. Ruiz, 15 Misc.3d 1135(A), 841 N.Y.S.2d 822 (Sup.Ct. Bronx.Co.2007) (no reasonable cause to prosecute defendant who was in a Clean Halls building in which he did not live, even though he did not give a reason for his presence); People v. Charles Lee, (no number in original), 1999 N.Y. Misc. Lexis 706 (Crim. Ct. Bronx Co. Sept. 20, 1999) ("allegation that the defendant 'could not give an [apartment] number’ is ... insufficient to establish reasonable cause to believe that he was not a legitimate invitee” because "such ignorance is hardly unusual and, by itself, simply does not [tend] to prove that one is a trespasser rather than an invitee”), with People v. Hendricks, 43 A.D.3d 361, 841 N.Y.S.2d 94, 96 (1st Dep’t 2007) ("Once the officer determined defendant was not a resident, he was justified in asking if defendant was visiting someone in the building and who that someone was. When defendant could not supply that information, even after taking the officer to two separate floors, the officer had probable cause to arrest him for trespass." (emphasis added)); People v. Quinones, No. 01-371, 2002 WL 432917, 2002 N.Y. Misc. Lexis 139 (1st Dep’t Mar. 5, 2002) (same); People v. Taveras, 17 Misc.3d 1119(A), 851 N.Y.S.2d 73 (Crim.Ct.N.Y.Co.2007) (charging instrument was facially sufficient when it alleged that defendant was found in lobby and "was unable to name any tenant by whom he had been invited into the premises.” (emphasis added)). Cf. People v. Sanders, 172 A.D.2d 239, 568 N.Y.S.2d 77 (1st Dep't 1991) (upon inquiry by police officer, defendants’ response that they were "just passing through” the lobby of a building did not give rise to probable cause for trespass arrest).
. People v. Easton, 16 Misc.3d 1105(A), 841 N.Y.S.2d 827, at *4 (Crim.Ct.N.Y.Co.2007) (quoting People v. Howard, 50 N.Y.2d 583, 586, 430 N.Y.S.2d 578, 408 N.E.2d 908 (1980)).
. Id. (quoting Matter of Daniel B., 768 N.Y.S.2d at 231).
. 32 Misc.3d 318, 919 N.Y.S.2d 814, 820 (Crim.Ct. Kings Co.2011).
. It is unclear whether the defendant was unable to or chose not to provide an apartment number.
. Messina, 919 N.Y.S.2d at 818.
. 13 N.Y.3d 17, 884 N.Y.S.2d 665, 912 N.E.2d 1044 (2009) (quoting 56 R.C.N.Y. 1-03[c][2]).
. Id. at 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044.
. Id. at 31-32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 (quotation omitted).
. Messina, 919 N.Y.S.2d at 820 ("[T]he existence of such an invitation can be raised as a defense at trial and must be proven by the defendant. To the extent that Daniel B. and [Matter of] James C. [23 A.D.3d 262, 805 N.Y.S.2d 13 (1st Dep’t 2005)] have held to the contrary, this court believes that the Court of Appeals’s holding in Davis overruled those holdings.”). See also People v. Richardson, 35 Misc.3d 1231(A), No. 2011 N.Y. 2298, 2012 WL 1939971 (Crim.Ct.N.Y.Co. Apr. 23, 2011) (following Messina where defendant’s identification card listed a different residence and he was unable to identify an apartment to which he was invited).
. People v. Brown, 25 N.Y.2d 374, 377, 306 N.Y.S.2d 449, 254 N.E.2d 755 (1969) (Fuld, C.J.). The statute defined criminal trespass as follows: "A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.” N.Y. Pen. L. § 140.10. Further, "Section 140.00 (subd. 5) defines the phrase 'enter or remain unlawfully' as follows: 'A person 'enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so.' ” Brown, 25 N.Y.2d at 377, 306 N.Y.S.2d 449, 254 N.E.2d 755. That definition remains the same as it did in 1969.
. The addition of subdivision (e), which criminalizes the failure to comply with NY-CHA rules and regulations, does not affect the question of whether the prosecution bears the burden of proving that a person has "entered] or remain[ed] unlawfully” in the building.
. Alhovsky v. Paul, 406 Fed.Appx. 535, 536 (2d Cir.2011).
. See People v. Howard, 50 N.Y.2d 583, 590-92, 430 N.Y.S.2d 578, 408 N.E.2d 908 (1980) ("[W]hile the police had the right to make the [Terry] inquiry, defendant had a constitutional right not to respond.... Nor can the failure to stop or co-operate by identifying oneself or answering questions be the predicate for an arrest absent other circumstances constituting probable cause.”). Accord Bright, 71 N.Y.2d at 385, 526 N.Y.S.2d 66, 520 N.E.2d 1355 ("Requiring a person suspected of violating the loitering statute [to] provide a ‘satisfactory explanation’ to avoid arrest is also violative of a citizen’s right not to answer questions posed by law enforcement officers.”).
. 542 U.S. 177, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004).
. Although New York permits police officers to “demand of [any person stopped on reasonable suspicion] his name, address and an explanation of his conduct,” unlike Nevada it does not criminalize the refusal to provide that information. See Howard, 50 N.Y.2d at 590-92, 430 N.Y.S.2d 578, 408 N.E.2d 908.
. Hiibel, 542 U.S. at 190-91, 124 S.Ct. 2451 (emphasis added).
. Id. at 191, 124 S.Ct. 2451.
. I fully understand Judge McGrath’s concern that this determination makes enforcement of the trespass statute more difficult. But respect for the individual liberties protected by our Constitution often makes criminal law enforcement more difficult. Police officers and judges alike are required to ensure compliance with criminal and constitutional law. There are surely a number of ways in which the legislature and/or NYCHA might amend the law and regulations so as to facilitate constitutional enforcement of the trespass statute.
. United States v. Simmons, 560 F.3d 98, 105 (2d Cir.2009).
. City Rep. Mem. at 4.
. See People v. Reyes, 199 A.D.2d 153, 605 N.Y.S.2d 262 (1st Dep't 1993), aff'd, 83 N.Y.2d 945, 615 N.Y.S.2d 316, 638 N.E.2d 961 (1994); People v. Mitchell, 223 A.D.2d 729, 637 N.Y.S.2d 450 (2d Dep’t 1996).
. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ("We conclude that a person has been ’seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’’).
. See City Rep. Mem. at 4 (citing to Declaration of Erik Hernandez, NYPD Captain, regarding crime rates near the building where Evans was arrested).
. See United States v. Bellamy, 592 F.Supp.2d 308, 317 (E.D.N.Y.2009) (“the fact that an individual appears to be waiting for someone [in the vestibule of a building] does not establish reasonable suspicion that an individual is engaged in criminal activity” even if the building is in a high-crime, drug-prone area and the person makes "furtive gestures”).
. Panetta, 460 F.3d at 395.
. 542 U.S. at 188, 124 S.Ct. 2451 (emphasis added).
. See City Mem. at 13-14; Am. Compl. ¶¶ 245-250, 275-280. Plaintiffs argue that even plaintiff Eleanor Britt, who has never been stopped or arrested, is "subjected to Defendants’ racially discriminatory trespass enforcement policies on a daily basis” and thus has standing to bring equal protection claims against the City. See PL Mem. at 39. But plaintiffs put forward no evidence showing that Britt has been subject to discrimination or injured in a concrete way. See id. at 24-25 (discussing only the arrested plaintiffs); Pl. City 56.1 ¶¶ 30-31 (acknowledging the undisputed fact that Britt has eight grandchildren who visit her regularly and that she “testified that her visitors have never mentioned that they do not want to visit her because they are intimidated by the police.”). She has not proffered any evidence that would permit a juror to find that the City has discriminated against her. Summary judgment is therefore granted to the City on Britt’s equal protection claims.
. City Mem. at 13.
. As the City acknowledges, both Washington and Evans testified that the officers who arrested them referred to them as “nigger.” See City 56.1 ¶¶ 80, 219. Whether that testi
. See Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
. Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979).
. Hayden v. Paterson, 594 F.3d 150, 163 (2d Cir.2010). Accord Ortega-Melendres v. Arpaio, 836 F.Supp.2d 959, 988 (D.Ariz.2011) (denying cross motions for summary judgment on the equal protection claims for race-based stops).
. Feeney, 442 U.S. at 279 n. 24, 99 S.Ct. 2282. "An invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the [practice] bears more heavily on one race than another.” Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).
. Taylor v. City of New York, No. 03 Civ. 6477, 2006 WL 1699606, at *1 (S.D.N.Y. June 21, 2006).
. Id. Accord Floyd v. City of New York, 813 F.Supp.2d 417, 446 (S.D.N.Y.2011) ("Because a reasonable jury could find that [plaintiff’s] stop was unconstitutional [under the Fourth Amendment], 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 [his] stop was racially motivated.”).
. PL Mem. at 26
. See Am. Compl. ¶¶ 237-244; 281-286.
. Id. ¶¶ 245, 275.
. See Pl. Mem. at 24-27.
. Am. Compl. ¶ 267 (specifically addressing plaintiffs’ claim under 42 U.S.C. § 1981 for deprivation of the right to enjoy the benefits of contracts free from racial discrimination).
. Although the Title VI claim was initially brought on behalf of all plaintiffs, it has only been pursued on behalf of the resident plaintiffs. See Pl. Mem. at 28 n. 33.
. According to plaintiffs, the "Resident Plaintiffs are Eleanor Britt, Patrick Little-john, Andrew Washington, Shawne Jones, Hector Suarez, and Vaughn Frederick.” Pl. Mem. at 28 n. 32. Jones and Suarez settled their claims against the City on February 7, 2011. See Judgment Pursuant to Rule 68 [Docket No. 59]. It is undisputed that Washington and Frederick are not authorized NY-CHA tenants. See Pl. City 56.1 ¶¶200, 217. Plaintiffs explicitly concede that this status precludes Washington and Frederick from as
. Pl. Mem. at 31 (citations to 56.1 statements, Evans’ deposition, and 7/17/12 Declaration of Rikia Evans ("Evans Decl.”) omitted).
. Id. at 32 (citations to Pl. Counter 56.1 omitted).
. 42 U.S.C. § 2000d.
. Am. Compl. ¶ 252. This claim was brought on behalf of all plaintiffs but nonresident plaintiffs now acknowledge that it cannot be brought on their behalf. See Pl. Mem. at 28 n. 33. Summary judgment for defendants is therefore granted on the Title VI claims of non-resident plaintiffs Jackson, Johnson, Smith, Osorio, Washington, and Frederick.
. See City Mem. at 15 (citing Davis v. Monroe Cnty. Bd. of Educ. ("Monroe ”), 526 U.S. 629, 640, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ("a recipient of federal funds may be liable in damages under Title IX only for its own misconduct”); Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 258, 129 S.Ct.
. 42 U.S.C. § 2000d-4a.
. 373 F.Supp.2d 1, 3 (D.Conn.2005) (quoting section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a)). Judge Arterton was interpreting the Rehabilitation Act, not Title VI. According to the Supreme Court, the same standard governs analysis of these laws' nondiscrimination provisions: “Under the program-specific statutes, Title VI, Title IX, and § 504, Congress enters into an arrangement in the nature of a contract with the recipients of the funds: the recipient’s acceptance of the funds triggers coverage under the nondiscrimination provision.” United States Dep't of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605, 106 S.Ct. 2705, 91 L.Ed.2d 494 (1986). Accord Monroe, 526 U.S. at 639-42, 119 S.Ct. 1661.
. Alfano, 373 F.Supp.2d at 6.
. See Patterson v. McLean Credit Union, 491 U.S. 164, 171, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (section 1981 “does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations”).
. Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006).
. City Mem. at 16; NYCHA Mem. at 20-21.
. Id. at 17.
. PL Mem. at 28.
. Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir.1998) (quoting H.R.Rep. No. 102-40, at 92 (1991), 1991 U.S.C.C.A.N. 549, 630) (emphasis added).
. See Kim v. Dial Serv. Int’l, No. 97 Civ. 9142, 1998 WL 514297 (2d Cir. June 11, 1998) (affirming applicability of section 1981 to claims for discriminatory pay scales); Longmire v. Wyser-Pratte, No. 05 Civ. 6725, 2007 WL 2584662 (S.D.N.Y. Sept. 6, 2007).
. Crane v. Cumberland County, 64 Fed.Appx. 838, 841 (3d Cir.2003). The City’s citation to Garrett v. Tandy Corp., 295 F.3d 94 (1st Cir.2002) is similarly unavailing: in that case a plaintiff attempted to show the existence of an ongoing contract arising out of the purchase of electronics because he had the right to return the items. The court held that "a complaint must allege the actual loss of a contract interest, not simply the theoretical loss of a possible future opportunity to modify the contract.” Id. at 102. In neither of these cases did the plaintiff present evidence of impairment of an existing contract.
. 24 C.F.R. § 966.4(d)(1).
. McKenna v. Peekskill Housing Authority, 647 F.2d 332, 335 (2d Cir.1981).
. See PL Counter 56.1 ¶¶ 78, 185.
. See Pl. Mem. at 28-29, 31-33 (failing even to mention Britt's contract impairment claim); NYCHA Mem. at 20-21.
. 42 U.S.C. § 3604(b).
. City Mem. at 22.
. Compare Cox v. City of Dallas, 430 F.3d 734, 745 (5th Cir.2005) (finding that the law does not prohibit post-acquisition discrimination unless there has been constructive eviction), with Committee Concerning Cmty. Improvement v. City of Modesto ("Modesto "), 583 F.3d 690, 711 (9th Cir.2009) (holding that the law does apply to post-acquisition discrimination). See also Bloch v. Prischholz, 587 F.3d 771, 779 (7th Cir.2009) (agreeing with Cox in dicta but holding that the law prohibits post-acquisition discriminatory practices if they are incorporated into the terms and conditions of the initial sale or lease). Defendants attempt to tip the scales in their favor by citing to Clifton Terrace Assoc. v. United Techs. Corp., 929 F.2d 714, 719 (D.C.Cir.1991) and Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 192 (4th Cir.1999), but both of these cases support plaintiffs' position. In Clifton Terrace, the D.C. Circuit determined that the owner of a low-income housing complex could not sue a company that had installed elevators in the complex for failure to provide elevator main
In Jersey Heights, the Fourth Circuit rejected plaintiffs’ claim that Maryland’s decision to site a new highway near their homes violated section 3604(b) because the decision was "too remotely related to the housing interests that are protected by the Fair Housing Act.” 174 F.3d at 192. But, again, the court’s explanation strongly suggested that it would apply the law to post-acquisition housing services: “This provision by its terms extends only to housing and housing-related services .... [It] simply requires that such things as garbage collection and other services of the kind usually provided by municipalities not be denied on a discriminatory basis. It does not extend to every activity having any conceivable effect on neighborhood residents.” Id. at 193 (quotation and citation omitted).
. Modesto, 583 F.3d at 713.
. Cabrera v. Jakabovitz, 24 F.3d 372, 388 (2d Cir.1994) (quoting Woods-Drake v. Lundy, 667 F,2d 1198, 1201 (5th Cir.1982)).
. Rigel Oliveri, Is Acquisition Everything ? Protecting the Rights of Occupants Under the Fair Housing Act, 43 Harv. C.R.-CX. L.Rev. 1, 32 (2008).
. See Bloch, 587 F.3d at 781 (citing these regulations for support of the holding that some post-acquisition discrimination is covered by the law).
. Id. (citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)).
. Brief for the United States as Amicus Curiae at 15, Block v. Frischholz, No. 06-3376, 2009 WL 601419 (7th Cir. Jan. 16, 2009).
. See, e.g., Cox, 430 F.3d at 746 (the FHA "does not require proof of both discriminatory impact and intent”).
. N.Y. Exec. L. § 296(2-a).
. See City Mem. at 25.
. See Pi. Mem. at 30.
. N.Y. Exec. L. § 292(10).
. N.Y.C. Admin. Code § 8-105(2).
. See PL Mem. at 30 n. 34.
. See NYCHA Mem. at 24 (quoting N.Y. Pub. Housing L. § 157(1), which states: “In every action or special proceeding, for any cause whatsoever, prosecuted or maintained against an authority, other than a claim arising out of a condemnation proceeding, the complaint or necessary moving papers shall contain an allegation that at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the authority for adjustment and that it has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment.”).
. Mills v. County of Monroe, 59 N.Y.2d 307, 311, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983).
. See, e.g., 423 South Salina St., Inc. v. Syracuse, 68 N.Y.2d 474, 493, 510 N.Y.S.2d 507, 503 N.E.2d 63 (1986) (distinguishing between the case at bar (involving a corporation's lawsuit against Syracuse regarding back taxes), which required a notice of claim, and "class action type proceedings normally involving a private Attorney-General type of action,” which do not).
. See PL Mem. at 33 n. 36.
. The parties dispute whether NYCHA’s "Highlights of House Rules, Lease Terms and Policy,” Ex. 28 to Brooker Decl., is a lease addendum. The document says that it "is NOT a lease and NOT a lease addendum.” Id. at 1. But by its own terms, the document "is intended to remind NYCHA residents of these important requirements.” Id. The document notifies all tenants that "NYCHA may start a proceeding to terminate tenancy if a tenant ... breaches NYCHA rules,” id. at 3, and NYCHA residents are required to sign the document to confirm that they have received and reviewed it, id. at 4.
. PI. Mem. at 37.
. See NYCHA Mem. at 15-17; NYCHA Rep. Mem. at 5-7.
. Blessing v. Freestone, 520 U.S. 329, 341, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997).
. Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).
. Id. at 291, 122 S.Ct. 2268 (Breyer, J. concurring).
. The statute, in relevant part, read: "No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization.” 20 U.S.C. § 1232g(b)(l).
. Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268.
. Blessing, 520 U.S. at 341, 117 S.Ct. 1353.
. 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987). At the time, section 1437a read: "Dwelling units assisted under this chapter shall be rented only to families who are lower income .... A family shall pay as rent for a dwelling unit .... ”
. 536 U.S. at 280, 122 S.Ct. 2268.
. "The Secretary shall by regulation require each public housing agency receiving assistance under this Act to establish and implement an administrative grievance procedure under which tenants will—
(1) be advised of the specific grounds of any proposed adverse public housing agency action;
(2) have an opportunity for a hearing before an impartial party upon timely request within any period applicable under subsection (1)
(4) be entitled to be represented by another person of their choice at any hearing.” 42 U.S.C. § 1437d(k) (emphasis added).
. See Stevenson v. Willis, 579 F.Supp.2d 913 (N.D.Ohio 2008) (finding that section 1437d(k) creates federal rights enforceable through section 1983); Gammons v. Massachusetts Dep’t of Housing & Cmty. Dev., 523 F.Supp.2d 76, 84 (D.Mass.2007) (same); Fields v. Omaha Housing Auth., No. 04 Civ. 554, 2006 WL 176629, at *8-10 (D.Neb. Jan. 23, 2006) (same).
. See Domestic Housing and International Recovery and Financial Stability Act, Pub.L. No. 98-181, § 204, 97 Stat. 1153 (1983).
. Three courts have said that section 1437d(Z) creates enforceable rights to a lease with specific provisions set forth in the statute (such as provisions mandating that the housing authority keep the building in "decent” condition), but that it does not create a right to sue for a violation of the lease (e.g., alleging that a housing authority breached the lease or infringed a federal right by failing to keep the building in decent condition). See Edwards v. District of Columbia, 821 F.2d 651, 653 n. 2 (D.C.Cir.1987); Concerned Tenants Assoc. v. Pierce, 685 F.Supp. 316, 322 (D.Conn.1988) ("Tenants would have an enforceable right under § 1437d(Z)(2) and the regulations promulgated thereto to a lease that contains the requirements provided in the statute and the regulations.”); and Herring v. Chicago Housing Auth., No. 90 Civ. 3797, 1993 WL 489767, at *17 (N.D.Ill. Apr. 22, 1993) (report and recommendation) (concluding that section 1437d(Z) "read in conjunction with the grievance procedures in § 1437d(lc) and the HUD regulations,” creates a private right enforceable through section 1983). See also Delgado v. New York City Housing Auth., 66 A.D.3d 607, 888 N.Y.S.2d 19, 22 (1st Dep't 2009) (following Concerned Tenants and finding no right to compliance with the obligatory lease terms described in section 1437d(Z) in an action under this section).
. Gonzaga, 536 U.S. at 287, 122 S.Ct. 2268.
. "42 U.S.C. § 1437d(k) mandates the creation of procedural rights for tenants faced with adverse action. The language of the statute unambiguously confers rights for the[ir] benefit." Gammons, 523 F.Supp.2d at 84.
. Plaintiffs may also sue to enforce the valid and reasonable regulations that implement the statute. See Sandoval, 532 U.S. at 284, 121 S.Ct. 1511. 24 C.F.R. § 966.4(d)(1) requires NYCHA to include in its leases a provision for the "reasonable accommodation of guests.” I question whether such a regulation is a valid interpretation of statutory language that prohibits the inclusion of "unreasonable terms and conditions.” Although it would be unreasonable to prohibit NYCHA residents from inviting guests into their homes, it is not clear to me that the absence of explicit permission to do so constitutes an "unreasonable term and condition.”
. PI. Mem. at 30. See also Am. Compl. ¶¶ 272-275. Supreme Court doctrine has located the right to intimate association both in the Fourteenth Amendment — as “a fundamental element of personal liberty” — and in the First Amendment — "a right to associate for the purpose of engaging in ... speech, assembly, petition for the redress of grievances, and the exercise of religion.” Roberts v. United States Jaycees, 468 U.S. 609, 618, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984). Some cases implicate one of the two concerns and some implicate both. Plaintiffs have not pled a violation of the First Amendment and their briefing mentions it only in passing.
. See PI. Mem. at 31. The brief also addresses Shawne Jones’ rights, but as noted above, she has fully settled her claims.
. Id. (quoting Evans Decl. ¶ 6).
. See id. (citing PL Counter 56.1 ¶ 86).
. Id. (citing Evans Decl. ¶¶ 7-8).
. See id. at 32.
. PL Counter 56.1 ¶¶ 187-190.
. PL Mem. at 30. "[B]ecause the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.... [T]he constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.” Roberts, 468 U.S. at 618, 104 S.Ct. 3244.
. See Am. Compl. ¶ 273; PL Mem. at 30-33.
. See McKenna, 647 F.2d 332 (public housing authority’s policy requiring tenants to register their guests and obtain permission for overnight visitors unlawfully impinged upon tenants' freedom of association); Patel v. Searles, 305 F.3d 130 (2d Cir.2002) (plaintiff claimed that police concocted false evidence about him, leading to the complete ostracization of his family, but he was never arrested).
. 193 F.3d 581, 599 (2d Cir.1999).
. Georgia v. Randolph, 547 U.S. 103, 115, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006).
. Id.
. See NYCHA Mem. at 23 (citing to City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).
. 283 F.R.D. 153,-, 82 Fed. R. Serv.3d 833, at *37 (S.D.N.Y.2012).
. See PL Mem. at 38 n. 43. "The possibility of recurring injury ceases to be speculative when actual repeated incidents are documented.” Nicacio v. United States Immigration & Naturalization Serv., 768 F.2d 1133, 1136 (9th Cir.1985).
. Rumsfeld v. Forum for Academic & Institutional Rights, 547 U.S. 47, 53, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006).
. Cf. Lyons, 461 U.S. at 111, 103 S.Ct. 1660 ("Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert