Discrimination Suit Against NYPD For Enforcing Prostitution Loitering Law Against Trans People Proceeds

by Ryan Nelson

Judge Kevin Castel of the U.S. District Court for the Southern District of New York resolved a complex motion to dismiss in a case challenging the constitutionality of the New York City law prohibiting loitering for the purpose of prostitution, the City’s policies and customs implementing that law, and the legality of the law’s enforcement against eight women of color (five of whom are transgender and three of whom are cisgender) who were arrested despite their allegedly “doing nothing more than walking down the street in the neighborhoods where they live.” D.H. v. City of New York, 2018 U.S. Dist. LEXIS 4717 (S.D.N.Y., Jan. 9, 2018).

The plaintiffs (represented by Cleary Gottlieb Steen & Hamilton LLP and the Legal Aid Society) allege, among other things, that: a) the law is unconstitutionally vague and overbroad; b) the City and several associated individuals (represented by the City’s Law Department and Department of Corrections) subjected them to unlawful discrimination based on their race, gender, and gender identity; and c) they were arrested without probable cause while engaging in protected speech in violation of their liberty interests in self-expression, bodily integrity, and privacy. Plaintiffs seek an injunction restraining defendants from enforcing the law, declaratory relief that the law is void, and damages. In the instant motion, defendants move to dismiss on standing grounds all claims to the extent that they seek injunctive and declaratory relief (but not to the extent that they seek damages) and further move to dismiss several of the claims for allegedly failing to state a claim upon which relief can be granted.

With respect to standing, the court dismissed plaintiffs’ vagueness and overbreadth claims after concluding that plaintiffs’ alleged injuries were not caused by the law’s alleged vagueness or overbreadth. On the contrary, the court concluded, the pleadings allege only that the defendants “falsely alleged” that plaintiffs violated the law, not that the law as applied to these plaintiffs was vague or overbroad. However, the court concluded that one plaintiff does have standing to sue for injunctive and declaratory relief on her discrimination claim because her injuries are imminent, traceable to defendants, and redressable, whereas the court dismissed for want of standing all other claims seeking injunctive and declaratory relief by all other plaintiffs.

First, the court held that one of the transgender plaintiffs plausibly alleged imminent injury because police officers allegedly told her that, “if they saw ‘girls like them’ [presumably referring to transgender women] outside after midnight, they would arrest them.” Second, the court held that the same plaintiff had shown that her imminent injuries were plausibly traceable to defendants’ allegedly discriminating against her based on her gender identity. However, the court found a lack of traceability with respect to her gender and race discrimination claims and, thus, dismissed those claims for want of standing. Third, the court held that injunctive and declaratory relief would redress this one plaintiff’s gender identity discrimination claim.

With respect to the alleged failure to state a claim upon which relief can be granted, the court dismissed several of plaintiffs’ claims on the merits even though many of these claims were sufficiently dismissed on standing grounds. Foremost, the court dismissed plaintiffs’ vagueness claim because, the court reasoned, people of common intelligence would not need to guess at the law’s meaning or differ as to its application. Next, the court dismissed plaintiffs’ overbreadth claim because offers to engage in illegal transactions (e.g., solicitations of prostitution) are excluded from First Amendment protection, so a law barring such speech is not so broad as to prohibit a substantial amount of protected speech.

Further, upon review of circumstantial and direct evidence of bias by City police officers, the court refused to dismiss several plaintiffs’ claims of intentional discrimination against individual defendants to the extent that such claims seek damages; recall that such claims were dismissed for lack of standing to the extent that they seek injunctive or declaratory relief. Yet, the court dismissed all other discrimination claims against individual defendants seeking damages, noting that proffered statements of non-defendants; allegations of falsified arrest records; and statistics allegedly demonstrating the disparate impact of arrests under this law against women, racial minorities, and transgender people were irrelevant to show the necessary discriminatory intent of the individual defendants. Judge Castel then concluded the opinion by dismissing many of the plaintiffs’ remaining claims (e.g., conspiracy, municipal and supervisor liability).

This opinion paves the way forward for the court to meaningfully review not only whether and how much individual plaintiffs were discriminated against by individual police officers, but also whether the law itself should be enjoined and declared void (either entirely or, more likely, to the extent that the City and its police officers apply it in a discriminatory manner to transgender people). Indeed, this case leaves open the possibility that the City will be forced — at long last — to defend at least some of its policing practices as they affect transgender people.

Each month for the last 40 years, the LGBT Bar Association of New York publishes LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments affecting the LGBT community here and abroad.

Art Leonard is the Robert F. Wagner Professor of Labor and Employment Law at New York Law School and the Editor of LGBT Law Notes