J.B. v. Onondaga County

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

J.B., et al.

Plaintiffs,

-against- 5:19-CV-137 (LEK/TWD)

Onondaga County, et al.,

Defendants.

__________________________________

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs are sixteen-year-olds charged in criminal cases being handled in the “Youth

Part” of the City of Syracuse criminal courthouse (the “Courthouse”). Before each court

appearance, they have attempted to consult with their attorneys in private, but an Onondaga

County Sheriff’s deputy or Syracuse police officer has remained in the room and refused to

leave. The evidence reveals that Onondaga County routinely sends other teenagers into criminal

hearings, including arraignments and bail hearings, without the chance to have a candid

conversation with their lawyers and, therefore, without the meaningful assistance of counsel.

Accordingly, and for the reasons that follow, the Court grants Plaintiffs’ motions for class

certification and a preliminary injunction and orders the defendants—Onondaga County, its

Executive Ryan McMahon, and Sheriff Eugene Conway—to permit adolescent and juvenile

offenders to consult their lawyers privately in the Syracuse Courthouse before their court

appearances there.

II. FACTUAL BACKGROUND

A. The Raise the Age Law

The Youth Part is a new section of the Syracuse Courthouse designated for teenagers

charged with serious crimes in Onondaga County. Dkt. No. 31 (“Attorney General’s Brief”) at 6.

In April 2017, the New York legislature enacted the Raise the Age law in recognition that

teenagers under 18 should “be treated differently than adults within the criminal justice system,

given the[ir] unique circumstances and needs.” People v. J.P., 95 N.Y.S.3d 731, 741 (N.Y. Sup.

Ct. 2019). The law raises the age of criminal responsibility from sixteen to eighteen. L. 2017, c.

59, Part WWW (“Raise the Age Law”) (codified at N.Y. Crim. Proc. Law Art. 722). However, it

reserves an exception for “adolescent offenders” (sixteen and seventeen-year-olds charged with

felonies) and “juvenile offenders” (thirteen to fifteen-year-olds charged with especially serious

felonies) who may be tried and convicted as adults. N.Y. Crim. Proc. Law § 1.20 (42) & (44).1

For these offenders, the law creates a special path. It establishes a Youth Part of the

superior court (that is, the Supreme or County Court) in each county. N.Y. Crim. Proc. Law

§ 722.10(1). The administrator of the New York courts designated part of the Syracuse

Courthouse as the Youth Part for Onondaga County. Dkt. No. 14 (“Opposition”) at 1–2. There, a

specially trained judge arraigns all adolescent and juvenile offenders who are arrested in the

county. Id. § 140.20(8). After arraignment, the judge transfers most cases to the Family Court,

where the youth may be adjudicated a “juvenile delinquent” but cannot be criminally convicted

as adult. See id. §§ 722.20–23. Only certain defendants stay in the Youth Part for trial. These

include: (1) adolescents charged with a class A or violent felony—if the prosecution shows by a

1 The Raise the Age law was effective for sixteen-year-olds on October 1, 2018, and will

be effective for seventeen-year-olds on October 1, 2019. See Raise the Age Law § 106(b).

preponderance of the evidence that the defendant caused “significant physical injury” to the

victim, displayed a deadly weapon, or committed certain sexual offenses, § 722.23(2);

(2) adolescents charged with nonviolent felonies, if the prosecutor shows “that extraordinary

circumstances exist,” id. (1)(d); and (3) juvenile offenders charged with murder, rape, or an

armed felony, unless the district attorney consents to a transfer to Family Court and mitigating

circumstances exist, § 722.22. Cases in these three categories proceed in the Youth Part, where

the adolescent or juvenile offender may be tried and convicted as an adult. N.Y. Penal Law §

30.00, William Donnino, Supp. Prac. Commentary. Upon conviction, however, the teenager

“may be eligible to be adjudicated a ‘youthful offender,’ and thereby still avoid the stigma and

consequences” of a felony conviction. Id.

The Raise the Age law also prohibits the detention of juvenile or adolescent offenders in

any “prison, jail, lockup, or other place used for adults” convicted or charged with a crime. N.Y.

Crim. Proc. Law § 510.15(1). County sheriffs must house adolescent offenders ordered detained

in “a specialized secure juvenile detention facility” (“SSJDF”) designed for adolescent offenders

and certified by the state Commission of Correction (the “Commission”) and Office of Children

and Family Services. Id.; see also N.Y. County Law § 218-a(A)(6) (requiring each county “to

provide for adequate detention of alleged or convicted adolescent offenders” in SSJDFs). In

response to these mandates, in 2018, the Commission promulgated regulations setting minimum

standards for SSJDFs. See 9 N.Y.C.R.R. §§ 7300–7360 (Chapter III of Title 9, Subtitle AA).

Onondaga County’s SSJDF is the Hillbrook Juvenile Detention Center. A.G.’s Br. at 6.

B. The Plaintiffs’ Experiences

Plaintiffs J.B. and J.M. are sixteen years old.2 J.B. Decl. ¶ 1; J.M. Decl. ¶ 1. One night in

January 2019, the Syracuse Police arrested J.B. and held her overnight at the downtown Syracuse

police station. J.B. Decl. ¶ 3. She did not sleep. Id. The next morning, her two arresting officers

questioned her and then escorted her to the Youth Part of the Syracuse Courthouse, where they

took her to a room with a long table, four chairs, and one door. Id. ¶ 4. Both officers sat down at

the table with her. Id. ¶ 5. A few minutes later, J.B.’s attorney arrived and asked the officers to

leave, but they “refused.” Id. ¶ 6. “They told her it was departmental policy they stay in the room

with [J.B.].” Id. In J.B.’s words:

I was really confused about what was happening and exhausted from being up all

night in the police station. I wasn’t sure what would happen when I saw the

Judge. This was my first time getting arrested and I had a lot of questions. But I

was too nervous to ask the questions because the police were in the room.

Id. ¶ 7. As she was leaving, J.B.’s attorney asked one of the officers if J.B. had given the police a

statement. Id. ¶ 8. In response, the officer who questioned J.B. at the police station told the

attorney he had “no information on the case.” Id.

About ten minutes later, her questions unanswered, J.B. was ushered into the courtroom

for her arraignment. Id. at ¶ 9. Plaintiffs allege that during the arraignment, “[t]he same police

officer who had previously told the defense attorney he had ‘no information on the case’ claimed

2 Plaintiffs submitted the following exhibits in support of their preliminary injunction:

Dkt. No. 12-2 at 1–5 (“J.B. Declaration”), 6–10 (“J.M. Declaration”), 11–15 (“R.M.

Declaration”), 17–18 (“Syracuse.com Article”), 19–23 (“Eckel Declaration”), 24–25 (“LaRose

Email”), 26–27 (“Lupia Email”), 28–29 (“Jerrod Smith Email”); Dkt. No. 12-3 at 1–3 (“Cotter

Letter”), 4–5 (“Durr Response to Cotter”), 6–7 (“Cotter Follow-up Letter”), 8–13 (“Green

Memorandum”), 14–61 (“American Bar Association [‘ABA’] Defense Standards”); Dkt. No. 12-

4 at 1–33 (“Rutherford Article”), 34–59 (“NLADA Defense Standards”), 61–103 (“New York

State Bar Association [‘NYSBA’] Juvenile Defense Standards”); Dkt. No. 12-5 (“Bail Study”);

Dkt. No. 12-6 at 1–8 (“ABA Principles of Public Defense”), 9–11 (“American Academy of Child

& Adolescent Psychiatry [‘AACAP’] Article”), 12–67 (“NYSBA Courthouse Report”). The

pagination in this Memorandum-Decision and Order refers to the pagination generated by the

Court’s CM/ECF electronic filing system.

in open court that there was a chance the injury might be more serious than set forth in the

paperwork.” Dkt. No. 1 (“Complaint”) ¶ 52. The judge set bail at $5,000 and remanded J.B. to

Hillbrook. J.B. Decl. ¶ 11. J.B. “wasn’t really sure what that meant” but “knew that there was no

way [her] mom could come up with $5,000 to bail [her] out.” Id. ¶ 11.

J.B. spent a week at Hillbrook. Id. ¶ 13. Her attorney visited her there once, about two

days before her next court appearance. Id. ¶ 14. At the end of the week, sheriff’s deputies

shackled J.B. and brought her back to court. Id. Once again, J.B. had no opportunity to “privately

meet with her attorney before, or after, the appearance” because “Sheriff’s Deputies refused to

leave the interview room,” id., and the court once again denied her request for release on

personal recognizance, id. ¶ 15. J.B.’s mother was nonetheless able to borrow enough money to

pay her bond, and she was released later that day. Id. ¶ 14–15.

The Syracuse Police arrested J.M. in December 2018, booked him at the police station,

and brought him to the Town of Geddes Courthouse, where he met an attorney in private before

his arraignment. J.M. Decl. ¶ 3. They spoke “about the facts of [J.M.’s] case and then he

explained [to J.M.] what was going to happen when [they] went before the judge.” Id. ¶ 4. After

his arraignment, J.M., too, was remanded to Hillbrook. Id. ¶ 5.

J.M. had his next court date at the Youth Part of the Syracuse Courthouse. Sheriff’s

deputies shackled his waist, wrists, and ankles, “put [him] in a van with other kids,” drove him to

court, and placed him in a holding area with the other children. Id. ¶ 6. Eventually, J.M.’s name

was called, and a sheriff’s deputy escorted him to the room with “a long table with chairs around

it and one door” to meet a new attorney (different from the one who represented him at

arraignment). Id. ¶ 7. When the attorney arrived, “she looked at the deputy and asked him to

leave,” “but he refused.” Id. ¶ 9. J.M. testified, “I had a lot of questions but didn’t ask them

because I knew the deputy was listening in on everything I said” and “thought he would use

everything I said against me.” Id. ¶¶ 10–11. “At first, [J.M.] didn’t know if [he] could trust [his]

attorney because it was [his] first time meeting her and she was with a sheriff’s deputy,” and he

knew “she [was] getting paid by the government.” Id. ¶ 12.

J.M. has been brought back to the Syracuse Courthouse for court appearances, but he has

“never had the opportunity to meet privately with [his] attorney before or after Court.” Id. ¶ 14.

He “sometimes think[s] of questions [he] wants to ask her on [his] way to Court, but because

[they] can’t meet privately [he] never get[s] the opportunity to ask them.” Id. “[T]he last time

[J.M.] was brought to Court:”

I was taken into a large room with two other kids. The Sheriff’s deputy stayed in

the doorway with the door open. It was different from the room I was usually

brought to for my attorney interviews. The other kids and I sat in a row on one

side of the table. We were all shackled together. An attorney came in to talk to

one of the kids. We stayed shackled together the whole time he was in the room. I

heard everything they talked about.

Id. ¶ 13.

Another teenager, R.M. (who is not a named Plaintiff), had a case in the Youth Part that

has since been transferred to Family Court. R.M. Decl. ¶ 2. He did not have the chance to talk to

his assigned attorney at all at arraignment. Id. ¶ 6. At each post-arraignment appearance in the

Youth Part, a Sheriff’s deputy also stayed in the room during R.M.’s attorney-client meetings,

even after his attorney asked him to leave. Id. ¶¶ 9, 12. R.M. “didn’t feel like [R.M.] could trust”

the officer or his attorney. Id. ¶ 12. Like Plaintiffs, he had “a lot of questions” for the attorney

but never asked them “because the deputy was always in the room.” Id. ¶ 13. R.M. “didn’t want

the Sheriff’s Deputies knowing personal information about [his] life or anything about [the]

case.” Id. ¶ 14. And he knows the deputies listened. Id. Once, when R.M.’s attorney left the room

for a few minutes, one of the deputies asked R.M. if he “really did the crime [he] was accused

of.” Id. R.M. ignored the question. Id.

Janelle Eckel, Esq., an attorney on the Onondaga County Bar Association Assigned

Counsel panel, has had five clients with cases in the Youth Part of the Syracuse Courthouse since

Raise the Age kicked in, and “for each client, [she] has been denied a private space to meet with

them prior to appearances.” Eckel Decl. ¶ 5. “Because of the purported lack of a secure room” to

meet with her clients, “a police officer, or Sheriff’s Office transport deputy, stays in the room

used for interviews with [her] during any client meeting held in the Youth Part.” Id. ¶ 4. Eckel

has complained “repeatedly” to law enforcement about their presence in the room, but they

respond it is County “policy” and “for [her] safety.” Eckel Decl. ¶ 12; see also Lupia Email at

27. Like J.B., J.M., and R.M., Eckel’s clients are “usually scared and confused when they are

brought in for arraignment.” Eckel Decl. ¶ 6. Her “job during the pre-arraignment interview is to

calm [her] client down, develop a rapport with them so they know they can trust [her], and gather

the information [she will] need to adequately represent them.” Id.

However, the officers’ presence seeds distrust and stifles communication. “Most kids

shut down because law enforcement, sometimes the police officer who arrested them, is in the

room,” and Eckel is “forced to instruct clients not to say anything about the facts of their case

because anything they say with law enforcement in the room will not be protected by attorney-

client privilege.” Id. ¶ 8. The Sheriff’s policy therefore “make[s] it impossible for [Eckel] to have

candid conversations with [her] clients prior to any Youth Part appearances”; she only tells her

client “basic information about the appearance and what may happen.” Id. ¶ 9, 13. In addition, if

the prosecutor offers one of her detained clients a plea deal in court, she cannot discuss it with

them at the courthouse and must seek an adjournment and meet the client at Hillbrook, “further

delaying a resolution of the case and potentially keeping [her] client in custody for weeks more

than necessary.” Id. ¶ 10.

C. These Proceedings

On November 20, 2018, Josh Cotter, Plaintiffs’ counsel and staff attorney at Legal

Services of Central New York, wrote a letter to Robert Durr, Onondaga County Attorney, and

Kristen Smith, Syracuse Corporation Counsel, demanding that Syracuse and Onondaga County

officials stop posting officers in the room during attorney-client meetings in the Youth Part.

Cotter Letter at 2. Durr wrote back to advise Cotter that Durr was “in the process of investigating

th[e] matter with both the Sheriff’s Office and the Court System” and would “keep [Cotter]

informed.” Durr Response at 5. Six weeks later, however, nothing had changed. See Cotter

Follow-up at 7; J.B. Decl. ¶ 6; J.M. Decl. ¶ 9. Cotter followed up on January 8, 2019 to inform

Durr that “Syracuse City Police Officers and Onondaga County Sheriff’s Deputies continue to be

present when adolescent and juvenile offenders are interviewed by their attorneys at the Youth

Part of the criminal courthouse” and again requested “accommodations to ensure that juvenile

and adolescent offenders who have appearances in the Youth Part are able to privately meet with

their attorneys.” Cotter Follow-up at 7. “That letter went unanswered.” Pls.’ Mem. at 12.

As a result, Plaintiffs filed suit on February 1, 2019, joining three defendants: Onondaga

County, Onondaga County Executive Ryan McMahon, and Onondaga County Sheriff Eugene

Conway (both of the latter in their official capacities). Dkt. No. 1 (“Complaint”) at 1, 18.

Plaintiffs claim that Defendants’ actions violate their right to counsel under the Sixth and

Fourteenth Amendments. Compl. ¶ 73. After Defendants answered the Complaint, Dkt. No. 8

(“Answer”), Plaintiffs moved for class certification, Dkt. No. 9 (“Motion for Class

Certification”), and for a preliminary injunction, Dkt. No. 12 (“Motion for Preliminary

Injunction”). Defendants did not oppose the Motion for Class Certification. Dkt. No. 11.

In opposition to the Motion for Preliminary Injunction, Defendants argued: (1) that New

York “[S]tate’s correction law requires the sheriff to maintain constant supervision of the

plaintiffs while the plaintiffs are being transported to the youth part and detained in the

courthouse for arraignments and other appearances,” meaning that deputies must be present in

the room during attorney-client interviews (citing 9 N.Y.C.R.R. § 7003 et seq.); (2) that such

supervision during attorney-client discussions does not violate the Sixth Amendment; and

(3) that the chief administrator of the state courts, not the County, is responsible for providing

suitable attorney-client meeting spaces in the Syracuse Courthouse. Opp’n at 3–6; Dkt. No. 14-1

(“James Raus Affidavit”) ¶ 4. Plaintiffs replied that the regulations Defendants cite as requiring

“constant supervision” do not apply to adolescent offenders’ courthouse meetings with counsel,

and if they did, they would be unconstitutional as applied. Dkt. No. 18 (“Reply”) at 6–7 & n.1.

This discussion suggested that New York regulations might require the Sheriff to

compromise the fairness of the state’s criminal justice system by violating teenagers’ right to

counsel. Given New York’s profound interest in the enforceability of its regulations and the

fairness of its courts—especially given the state’s renewed concern with how the system treats

adolescents, see Raise the Age Law—the Court invited the New York Attorney General to

intervene and file a brief. Dkt. No. 24 (“June 2019 Order”) at 3–4. She accepted that invitation.

Dkt. No. 28.

On July 11, 2019, the Attorney General filed a brief supporting Plaintiff’s request for a

preliminary injunction. A.G. Br. at 4–5. In it, she advises: (1) that the Commission’s “regulations

do not require constant supervision of adolescent offenders during attorney-client meetings at the

Youth Part”; (2) that “the County’s practice of posting law enforcement officers in the youth

part’s interview room during attorney-client meetings violates their Sixth Amendment right to

counsel”; and (3) that “[t]his Court should therefore issue a preliminary injunction enjoining the

practice and directing the County to create interview space that would permit defendants in the

youth part to meet privately with their attorneys at the courthouse as needed.” Id. at 4–5, 10, 14.

Defendants filed a response reiterating their previous arguments. Dkt. No. 33 (“Defendants’

Supplemental Brief”).

III. CLASS CERTIFICATION

A. Legal Standard

“In evaluating a motion for class certification, the district court is required to make a

‘definitive assessment of Rule 23 requirements, notwithstanding their overlap with merits

issues,’ and must resolve material factual disputes relevant to each Rule 23 requirement.’”

Brown v. Kelly, 609 F.3d 467, 476 (2d Cir. 2010) (quoting In re Initial Pub. Offerings Sec.

Litig., 471 F.3d 24, 41 (2d Cir. 2006)). Rule 23 sets four requirements for class certification:

(1) the class is so numerous that joinder of all members is impracticable,

(2) questions of law and fact are common to the class, (3) the claims or defenses

of the representative parties are typical of the claims of defenses of the class, and

(4) the representative parties will fairly and adequately protect the interests of the

class.

Fed. R. Civ. P. 23(a). To certify a class seeking injunctive relief under Rule 23(b)(2), Plaintiffs

must also show Defendants have “acted or refused to act on grounds that apply generally to the

class, so that final injunctive or corresponding declaratory relief is appropriate respecting the

class as a whole.” Plaintiffs must establish each of these facts by at least a preponderance of the

evidence.” Brown, 609 F.3d at 476 (citing Teamsters Local 445 Freight Div. Pension Fund v.

Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008)).

B. Analysis

Plaintiffs seek to certify the following class:

All adolescent and juvenile offenders, as the terms are defined under New York

State Law, who are now, or will be, in the custody of law enforcement and appear

before the designated Onondaga County Youth Part.

Dkt. No. 9-1 (“Class Certification Memorandum”) at 10. Courts routinely use Rule

23(b)(2) to certify such “prisoner actions brought to challenge various practices or rules

in the prisons on the ground that they violate the Constitution.” Wright & Miller, 7AA

Fed. Prac. & Proc. Civ. § 1776.1 (3d ed. Apr. 2019 Update); see also A.T. by & through

Tillman v. Harder, 298 F. Supp. 3d 391, 401 (N.D.N.Y. 2018) (“Harder”) (certifying

23(b)(2) class of sixteen and seventeen-year-old pretrial detainees challenging routine use

of solitary confinement, which denied them access to educational entitlements, as

unconstitutional); V.W. by & through Williams v. Conway, 236 F. Supp. 3d 554, 572

(N.D.N.Y. 2017) (“Conway”) (same). Likewise, Plaintiffs meet all five requirements.

i. Numerosity

First, the class is numerous enough because “[t]he difficulty [and] inconvenience of

joining all members of the class make use of the class action appropriate.” Cent. States Se. &

Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, 504 F.3d 229, 244–45 (2d

Cir. 2007). Plaintiffs need only “show some evidence of or reasonably estimate the number of

class members” and “need not show the exact number.” Robidoux v. Celani, 987 F.2d 931, 935

(2d Cir. 1993). At least 207 sixteen and seventeen-year-olds were arrested on felony charges in

Onondaga County in 2017, and 84 such arrests occurred in the first half of 2018. See Dkt. No. 9-

3 (“Arrest Statistics”) at 35–38. Therefore, the Court may presume numerosity. Pa. Pub. Sch.

Emps.’ Ret. Sys. v. Morgan Stanley & Co., 772 F.3d 111, 120 (2d Cir. 2014) (“Numerosity is

presumed for classes larger than forty members.”).

Class members’ limited financial resources, and the difficulties they would face

prosecuting individual suits, confirm that joinder is impractical. Id. (noting that “the numerosity

inquiry is not strictly mathematical but must take into account the context of the particular case,”

including “the financial resources of class member” and “their ability to sue separately”).

Teenagers in custody are “precisely the sort of revolving population that often makes joinder of

individual members impracticable.” Harder, 298 F. Supp. 3d at 407. Because of the “‘fluid

composition’ of the prison population”—new detainees are arrested and arraigned, and others are

released, each day—joining all current and future teenage detainees in Onondaga verges on

impossible. Clarkson v. Coughlin, 783 F. Supp. 789, 797 (S.D.N.Y. 1992) (“Veteran prisoners

are released or transferred, while new prisoners arrive every day. Nevertheless, the underlying

claims tend to remain. Class actions therefore generally tend to be the norm in actions such as

this.”). Being incarcerated, and fighting criminal cases, also saps teenagers’ financial resources

and affords them “little freedom in their daily lives,” limiting their time and ability to consult

civil counsel. Harder, 298 F. Supp. at 407.

ii. Commonality

To satisfy the second requirement, commonality, the class members’ claims must raise

common questions that will “generate common answers apt to drive the resolution of the

litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349–50 (2011) (explaining that class

members’ claims “must depend upon a common contention . . . of such a nature that it is capable

of class wide resolution—which means that the determination of its truth or falsity will resolve

an issue that is central to the validity of each one of the claims in one stroke”). Plaintiffs may

satisfy the commonality requirement with “significant proof” that a general policy or practice

caused the alleged violations of class members’ rights. See id. 564 U.S. at 353.

Plaintiffs’ claims challenge Defendants’ admitted policy requiring that law enforcement

officers be in the room during class members’ attorney-client interviews in the Syracuse

Courthouse. Raus Aff. ¶ 4. The class members’ claims under the Sixth Amendment all depend

on whether that policy “unreasonably burden[s] [their] opportunity to consult with [their]

attorney[s] and to prepare [a] defense.” Benjamin v. Fraser, 264 F.3d 175, 187 (2d Cir. 2001). As

in Harder and Conway, the common answer to this question will determine whether the Sheriff’s

policy violates each class member’s constitutional right to counsel “and whether defendants

should therefore be enjoined from engaging in that course of conduct.” Harder, 298 F. Supp. 3d

at 408. Indeed, class members could each obtain an injunction without showing that the lack of

private consultation actually influenced outcomes in court. See Benjamin, 264 F.3d at 186 & n.9

(stating that claim alleging denial of access to counsel for consultation “is not subject to [ ]

prejudice analysis,” at least when “the remedy sought is the removal of [the] unjustifiable

interference with attorney-client communication”). They may be at different stages of their

criminal proceedings—and some may be “juvenile offenders” while other are “adolescent

offenders”—but those differences are not material to their claims. Such minor “factual

differences in the claims of the class do not preclude a finding of commonality.” Id. (certifying

class challenging solitary confinement practices although some class members had not yet been

detained or were placed in solitary confinement for different reasons).

iii. Typicality

“Typicality requires that the claims of the class representatives be typical of those of the

class[.] [It] is satisfied when each class member’s claim arises from the same course of events

and each class member makes similar legal arguments to prove the defendant’s liability.” Cent.

States, 504 F.3d at 245 (citation omitted). J.M. challenges the same unconstitutional policy

affecting the class members, and his situation does not differ except, perhaps, with respect to the

(post-arraignment) stage of his case. 3 Some class members have not yet been arraigned. As with

commonality, however, “[w]hen it is alleged that the same unlawful conduct was directed at or

affected both the named plaintiff and the class sought to be represented the typicality

requirement is usually met irrespective” of such “minor variations in the fact patterns underlying

the individual claims.” Robidoux, 987 F.2d at 936–37; see also Harder, 298 F. Supp. 3d 391, 410

(certifying class where “the representatives of the class and the subclasses have been subjected to

the same common course of treatment by the same officials on the basis of the same policies”);

Conway, 236 F. Supp. 3d at 576 (same where the plaintiffs’ and class members’ claims “share[d]

the same legal arguments because [they were] based on the common application of certain

challenged policies”).

iv. Adequacy

J.M. is also an adequate class representative. “Generally, adequacy of representation

entails inquiry as to whether: (1) plaintiff’s interests are antagonistic to the interest of other

3 Unlike J.M., J.B. lacks a “typical” claim. Even at the outset of the case, she was no

longer in custody and therefore, not a member of the proposed class or subject to the Sheriff’s

challenged policy. Therefore, she lacks standing to seek injunctive relief. See O’Shea v.

Littleton, 414 U.S. 488, 495–96 (1974) (“Past exposure to illegal conduct does not in itself show

a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing,

present adverse effects.”). “[A] class representative must be part of the class and ‘possess the

same interest and suffer the same injury’ as the class members.” Amchem Prod., Inc. v. Windsor,

521 U.S. 591, 625–26 (1997). J.B. may have a claim for damages. However, her damages claim

is subject to unique defenses, such as qualified immunity, and is not typical of class members’

claims for injunctive relief. See Newberg on Class Actions § 3:59 (“A putative class

representative who is entitled to only monetary relief may not be able to adequately represent

class members who are entitled to monetary and equitable relief: the proposed representative

would have an incentive to maximize monetary recovery even if doing so requires sacrificing the

strength of equitable relief available to the other class members.”). Therefore, the Court will not

appoint J.B. as a co-representative.

members of the class and (2) plaintiff’s attorneys are qualified, experienced and able to conduct

the litigation. Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 60 (2d Cir. 2000).

J.M. has no foreseeable conflicts of interest with other class members and has expressed that he

is willing to serve as a class representative. J.M. Decl. ¶¶ 16–17. Moreover, Plaintiff’s counsel,

attorneys with the Legal Services of Central New York, have extensive experience in class action

litigation and have previously represented classes of detainees seeking systemic reform in federal

court class action lawsuits. See Williams v. Conway, 312 F.R.D. 248, 254 (N.Y.N.D. 2016)

(finding Plaintiff’s counsel “qualified, experienced and able to conduct the litigation” on behalf

of class of pretrial detainees); accord Harder, 298 F. Supp. 3d at 411; Conway, 236 F. Supp. 3d

at 577; see also Dkt. No. 9-3 at 17–22 (“Samuel Young Declaration”).4

v. Rule 23(b)(2)

Finally, Plaintiffs seek “a single injunction or declaratory judgment” that “would provide

relief to each member of the class,” making certification under Rule 23(b)(2) appropriate.

Conway, 236 F. Supp. 3d at 577 (citing Walmart, 564 U.S. at 360) (certifying Rule 23(b)(2) class

where “the members of the class and the subclass would benefit from the same remedy—an

4 Though not raised by Defendants (who did not oppose class certification), the Court has

considered the fact that J.M. seeks only injunctive relief and does not assert class members’

potential claims for damages. Some courts have denied “class certification for injunctive relief

classes because of the possible preclusive effect of the injunctive judgment on class members’

money damage claims.” William Rubenstein, 6 Newberg on Class Actions § 18:18 (5th ed. June

2019 Update). These courts reason “that a class representative who splits the claims of absent

class members—thereby exposing their non-litigated claims to foreclosure through claim

preclusion—is inadequate to represent the class.” In re Vitamin C Antitrust Litig., 279 F.R.D. 90,

114 (E.D.N.Y. 2012) (citing cases). However, “every federal court of appeals that has considered

the question has held that a class action seeking only declaratory or injunctive relief does not bar

subsequent individual suits for damages.” Id.; see also Jones-Bey v. Caso, 535 F.2d 1360, 1362

(2d Cir. 1976) (finding class action consent judgment enjoining conditions of confinement on

behalf of pretrial detainees at jail did not preclude later claim for damages because the class

representatives “never sought to represent pre-trial detainees pressing individual damage

claims”). Therefore, that J.M. seeks only injunctive relief does not make him an inadequate class

representative.

order enjoining defendants from application of the policies and practices resulting in the

deprivations at issue”). Accordingly, The Motion for Class Certification is granted.

IV. PRELIMINARY INJUNCTION

“A party seeking a preliminary injunction must ordinarily establish (1) ‘irreparable

harm’; (2) ‘either (a) a likelihood of success on the merits, or (b) sufficiently serious questions

going to the merits of its claims to make them fair ground for litigation, plus a balance of the

hardships tipping decidedly in favor of the moving party’; and (3) ‘that a preliminary injunction

is in the public interest.’” New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650

(2d Cir. 2015) (quoting Oneida Nation of New York v. Cuomo, 645 F.3d 154, 164 (2d Cir.

2011)). However, when the movant seeks to “stay[ ] ‘government action taken in the public

interest pursuant to a statutory or regulatory scheme,’” she must prove that she is likely to

succeed on the merits. Mastrovincenzo v. City of New York, 435 F. 3d 78, 89 (2d Cir. 2006)

(quoting Plaza Health Labs v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). When the movant

seeks not merely a prohibitory “stay,” but a “mandatory” order—that is, if the injunction would

“alter the status quo by commanding some positive act”—the standard is even higher; the

movant must demonstrate a “‘clear’ or ‘substantial’ likelihood of success on the merits,” id.

(quoting No Spray Coalition, Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001)), and

must make a “strong showing” of irreparable harm. Schneiderman, 787 F.3d at 650.5

Plaintiffs seek an order (1) barring the Sheriff and his staff from the Youth Part interview

room during class members’ attorney-client meetings and (2) directing County Executive

5 “An evidentiary hearing is not required” before granting or denying a motion for a

preliminary injunction “when the relevant facts either are not in dispute” or when a party

“waive[s] its right to an evidentiary hearing.” Charette v. Town of Oyster Bay, 159 F.3d 749,

755 (2d Cir. 1998). Neither party has requested an evidentiary hearing, and in any event, the

material facts are not in dispute. Accordingly, the motion is ripe for resolution on the papers.

McMahon and Onondaga County to make a private and confidential space available in the Youth

Part for such meetings. Mot. at 1. The parties agree that the first order, against the Sheriff, would

be prohibitory, although the second, against the County, would be mandatory. Pls.’ Mem. at 12–

13; A.G.’s Br. at 16–17; Defs.’ Supp. Br. at 3. In addition, no law requires the Sheriff to post

deputies in the interview rooms. See infra at 28–32. Therefore, as Plaintiffs and the Attorney

General argue, the Court could likely apply the “serious questions” standard to prohibit the

Sheriff from doing so. See Christa McAuliffe Intermediate Sch. PTO, Inc. v. de Blasio, 364 F.

Supp. 3d 253, 274 & n. 20 (S.D.N.Y. 2019) (applying the “serious questions” standard when

challenged actions were not “prescribed by state law”). The Court need not decide what standard

applies, however. Plaintiffs meet even the strictest one; there is a “clear” and “substantial”

likelihood they will succeed on the merits and suffer irreparable harm absent an injunction.

Schneiderman, 787 F.3d at 650.

A. Likelihood of Success

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.

That provision exists because “the assistance of counsel is . . . necessary to insure fundamental

human rights of life and liberty” in criminal cases. Gideon v. Wainwright, 372 U.S. 335, 343–45

(1963) (quoting Johnson v. Zerbst, 304 U.S. 458, 462 (1938)); see also United States v. Cronic,

466 U.S. 648, 654 (1984) (“Of all the rights that an accused person has, the right to be

represented by counsel is by far the most pervasive for it affects his ability to assert any other

rights he may have.”). It “means at least that a person is entitled to the help of a lawyer at or after

the time that judicial proceedings have been initiated against him—whether by way of formal

charge, preliminary hearing, indictment, information, or arraignment.” Brewer v. Williams, 430

U.S. 387, 398 (1977); see also Rothgery v. Gillespie County, 554 U.S. 191, 213 (2008)

(reaffirming that the right “attaches” at the “criminal defendant’s initial appearance before a

judicial officer, where he learns the charge against him and his liberty is subject to restriction”).

When “‘the government has committed itself to prosecute,’ ‘the adverse positions of government

and defendant have solidified,’ and the accused ‘finds himself faced with the prosecutorial forces

of organized society and immersed in the intricacies of substantive and procedural criminal

law.’” Rothgery, 554 U.S. at 198 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality

opinion)). Thrust into an unfamiliar process buzzing with jargon, against trained prosecutors with

state resources at their disposal, the right of even the “intelligent and educated layman . . . to be

heard would be, in many cases, of little avail if it did not comprehend the right to be heard by

counsel.” Powell v. Alabama, 287 U.S. 45, 64 (1932).

“[T]he Court has also recognized that the assistance of counsel cannot be limited to

participation in a trial; to deprive a person of counsel during the period prior to trial may be more

damaging than denial of counsel during the trial itself.” Maine v. Moulton, 474 U.S. 159, 170

(1985). Thus, once the right to counsel “attaches,” “counsel must be appointed within a

reasonable time . . . to allow for adequate representation at any critical stage before trial, as well

as at trial itself.” Rothgery, 554 U.S. at 212. “Critical stages” are proceedings “at which counsel

would help the accused in coping with legal problems or . . . meeting his adversary,” id. at 212

n.16, at least when the proceeding could impact the trial or the likelihood of conviction, id. at

217 (Alito, J., concurring); see also Coleman v. Alabama, 399 U.S. 1, 9 (1999) (defining

“critical” to mean that “substantial prejudice . . . inheres in the . . . confrontation” and “counsel

[may] help avoid that prejudice”). Such critical proceedings, at which the defendant is entitled to

adequate representation, include hearings to suppress evidence, Kimmelman v. Morrison, 477

U.S. 365, 384–85 (1986), pretrial interrogations, lineups, and psychiatric exams, Rothgery, 554

U.S. at 217 (Alito, J., concurring) (citing cases), and “certain kinds of arraignments,” id. (citing

Coleman, 399 U.S. at 8, among others). The government violates the Sixth Amendment when it

“prevent[s] [counsel] from assisting the accused during” any such “critical stage of the

proceeding.” Cronic, 466 U.S. at 659 n.25.

Defendants suggest that they are not violating the Sixth Amendment because even if they

stifle attorney-client consultation before court hearings, counsel still appears in the hearing itself.

Opp’n at 4. But the Sixth Amendment guarantees criminal defendants more than a warm body

with a law degree sitting at counsel table:

That a person who happens to be a lawyer is present at trial alongside the accused

. . . is not enough to satisfy the constitutional command. The Sixth Amendment

recognizes the right to the assistance of counsel because it envisions counsel’s

playing a role that is critical to the ability of the adversarial system to produce just

results. An accused is entitled to be assisted by an attorney, whether retained or

appointed, who plays the role necessary to ensure that the trial is fair.

Strickland v. Washington, 466 U.S. 668, 685 (1984). “For that reason, the [Supreme] Court has

recognized that ‘the right to counsel is the right to the effective assistance of counsel.’ Id.

(citation omitted). Effective counsel must discharge certain “basic duties,” including the duty to

“consult with the defendant on important decisions and . . . keep the defendant informed of

important developments in the course of the prosecution.” Id. at 688. Constitutionally adequate

representation requires attorney-client consultation before critical stages of the case. See Geders

v. United States, 425 U.S. 80, 88, 91 (1976) (judge’s order forbidding defendant from consulting

attorney during overnight recess in trial violated Sixth Amendment).

Accordingly, a criminal defendant’s right to a lawyer includes the right to confer with

that lawyer in private. See Weatherford v. Bursey, 429 U.S. 545, 554 n. 4 (1977) (“The Sixth

Amendment’s assistance-of-counsel guarantee can be meaningfully implemented only if a

criminal defendant knows that his communications with his attorney are private and that his

lawful preparations for trial are secure against intrusion by the government, his adversary in the

criminal proceeding.”); United States v. Rosner, 485 F.2d 1213, 1224, 1227 (2d Cir. 1973)

(explaining that a “constitutional barrier is raised when . . . the Government unlawfully intrudes

on legal strategy conferences” because “the essence of the Sixth Amendment right is . . . privacy

of communication with counsel”); United States v. Levy, 577 F.2d 200, 208 (3d Cir. 1978)

(“Free two-way communication between client and attorney is essential if the professional

assistance guaranteed by the Sixth Amendment is to be meaningful;” “[i]n order for the

adversary system to function properly, any advice received as a result of a defendant’s disclosure

to counsel must be insulated from the government.”); Nordstrom v. Ryan, 762 F.3d 903, 910 (9th

Cir. 2014) (“In American criminal law, the right to privately confer with counsel is nearly

sacrosanct.”) (citing other cases).

Forcing prisoners to consult their attorneys in the presence of guards or other prisoners

“obviously compromises” the right to private consultation. Johnson-El v. Schoemehl, 878 F.2d

1043, 1052–53 (8th Cir. 1989) (restrictions on phone privileges, which forced inmates “to meet

with their attorneys in public areas of the Jail where their conversations could be overheard by

guards and other prisoners,” violated their “clearly established . . . right[s] to counsel and due

process”); accord Wolfish v. Levi, 573 F.2d 118, 133 (2d Cir. 1978) (enjoining jail policies that

required “most attorney visits [to be] made in the general visiting rooms during visiting hours”

because the policies “entail[ed] long delays, limit[ed] the attorney’s time with his client, and

totally vitiate[ed] confidentiality” (emphasis added)), rev’d on other grounds, Bell v. Wolfish,

441 U.S. 520 (1979).

Correctional officials may regulate contact with attorneys to a point—to keep staff and

detainees safe and prevent escape. See Benjamin, 264 F.3d at 185. But “unreasonable

interference with the accused person’s ability to consult counsel is itself an impairment of the

right.” Id. at 185. Government policies that restrict detainees’ opportunities to consult counsel

must be reasonably necessary to “safeguard[ ] institutional security” or to address other

“concerns of pretrial detention.” Id. at 187 & n.10 (quoting Bell, 441 U.S. at 547). Thus, when

the government monitors attorney-client conversations, the Court must “balance the alleged

burden [the] surveillance impose[s] on [the] Plaintiffs’ Sixth Amendment rights on the one hand

with the [government’s] proffered institutional reasons for the surveillance on the other.” Grubbs

v. O’Neill, 744 F. App’x 20, 22–23 (2d Cir. 2018). In doing so, the court must consider the

“chilling effect” that the surveillance could have on detainees’ “willingness to communicate

candidly with their attorneys.” Id. (recognizing that security cameras fixed on interview booths

in courthouse could inhibit attorney-client communication if detainees believed “that the City

[was] monitoring their communications” and remanding because the district court did not

consider this chilling effect). The Court must also consider any “reasonable measures [that]

would safeguard the detainees’ constitutional rights at minimal cost to the Department and

without impairing its institutional concerns.” Benjamin, 264 F.3d at 187.

In Grubbs v. Safir, another class action, the Southern District of New York addressed a

similar claim to Plaintiffs’. No. 92-CV-2132, 1999 WL 20855, at *4 (S.D.N.Y. Jan. 15, 1999).

There, the class of pretrial detainees claimed that a New York City criminal courthouse lacked a

space for “private attorney-client consultations prior to court appearances,” violating their Sixth

Amendment rights. Id. The district court agreed. First, it rejected the same argument Defendants

make in this case: that the plaintiffs had no right to confer with counsel before their

arraignments. Id. at *6. The court reasoned that

to have any meaning, the right to counsel must include an opportunity for

plaintiffs to confer with counsel immediately prior to arraignment or any other

court proceeding. Indeed, it defies logic that plaintiffs are entitled to the

assistance of counsel at their arraignments, but that they are not entitled to confer

with their counsel concerning their arraignments.

Id. at *7 (emphasis added). The court also concluded that pre-hearing consultations must be

private, writing that “speaking to one’s attorney in the presence of other detainees as well as

court officers (who are also in the vicinity)” was not “sufficient for every detainee,” and “[t]he

assistance of counsel would be rendered meaningless if that counsel’s client were to be inhibited

from speaking openly and freely.” Id. The court therefore found for the plaintiffs but postponed

deciding the remedy (i.e., “what defendants must do to provide access for private attorney-client

consultations”). Id. Before it could, the parties executed a settlement agreement requiring “the

city [to] use its best efforts to construct or install . . . an interview booth for pre-arraignment

detainees to consult privately with counsel in the courthouse.” Grubbs, 744 F. App’x at 21.

i. The Sheriff’s Policy Infringes Class Members’ Right to Consult Counsel at

Critical Stages of Their Cases

As in Grubbs, the Sheriff’s policy vitiates class members’ right to privately consult their

attorneys and hamstrings their defense. The violation is most troubling at arraignment—a critical

stage of the case. As the New York Court of Appeals explained concerning adult arraignments:

Even if guilty pleas were not then elicited . . . a circumstance which would

undoubtably require the “critical stage” label, [citing Coleman, 399 U.S. at 9], . . .

plaintiffs’ pretrial liberty interests were [during the arraignment] regularly

adjudicated [citing N.Y. Crim. Proc. Law § 180.10(6)] with the most serious

consequences, both direct and collateral, including the loss of employment and

housing, and instability to support and care for particularly needy dependents.

There is no question that ‘a bail hearing is a critical stage of the State’s criminal

process.’

Hurrell-Harring v. State, 930 N.E.2d 217, 223 (N.Y. 2010) (quoting Higazy v. Templeton, 505

F.3d 161, 172 (2d Cir. 2007) (characterizing Coleman as holding that “a bail hearing is a critical

stage of the State’s criminal process at which the accused is as much entitled to such aid (of

counsel) . . . as at the trial itself”)).

Recognizing the crucial importance of arraignment and the extent to which a

defendant’s basic liberty and due process interests may then be affected, [N.Y.

Crim. Proc. Law §] 180.10(3) expressly provides for the “right to the aid of

counsel at the arraignment and at every subsequent stage of the action” and

forbids a court from going forward with the proceeding without counsel for the

defendant, unless the defendant has knowingly agreed to proceed in counsel’s

absence [citing N.Y. Crim. Proc. Law § 180.10(5)]. . . . [N]othing in the statute

may be read to justify the conclusion that the presence of defense counsel at

arraignment is ever dispensable, except at a defendant’s informed option, when

matters affecting the defendant’s pretrial liberty or ability subsequently to defend

against the charges are to be decided.

Id.

The Court of Appeals’ analysis is both compelling and on point. Like New York’s adult

arraignments, arraignments before the Youth Part include “a determination whether [the

adolescent or juvenile] offender shall be detained.” N.Y. Crim. Proc. Law §§ 722.20(1),

722.21(1). “Pretrial confinement may imperil the suspect’s job, interrupt his source of income,

and impair his family relationships.” Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Incarcerated

defendants also face obvious obstacles to participating in their defense and are more likely to be

convicted and sentenced to prison. See Campbell v. McGruder, 580 F.2d 521, 531 (D.C. Cir.

1978) (citing “disturbing evidence” that defendants on pre-trial release stand “a better chance of

not being convicted or if convicted, of not receiving a prison sentence”); accord Bail Study at

116. If the teenager does not waive her right to one, the court also holds a hearing to decide

whether there is “reasonable cause to believe” that the teenager committed a qualifying felony; if

so, the court retains jurisdiction pending indictment, and if not, the Court must transfer the case

to Family Court or dismiss the complaint. N.Y. Crim. Proc. Law §§ 722.20(2) & (3); 722.21(2)

& (3). Youth Part arraignments, therefore, are “critical stages” of the prosecution at which

alleged adolescent and juvenile offenders can expose “fatal weaknesses in the state’s case,”

generate impeachment material, preserve favorable testimony, and of course, “mak[e] effective

arguments for the accused on such matters as the necessity for an early psychiatric examination

or bail.” Coleman, 399 U.S. at 8 (holding counsel was required at arraignment of which the “sole

purposes” were “to determine whether there [was] sufficient evidence against the accused to

warrant presenting his case to the grand jury and, if so, to fix bail if the offense [was] bailable”).

“Also ‘critical’ for Sixth Amendment purposes is the period between arraignment and

trial when a case must be factually developed and researched, decisions respecting grand jury

testimony made, plea negotiations conducted, and pretrial motions filed.” Hurrell-Harring, 930

N.E.2d at 224 (citing Moulton, 474 U.S. at 170). Indeed, the lawyer and adolescent must prepare

for critical hearings on the heels of the arraignment. If the adolescent is arraigned on a class A or

violent felony, Raise the Age instructs the court to schedule an evidentiary hearing within six

days to determine whether the defendant caused “significant physical injury” to the victim,

displayed a weapon, or committed a sexual offense, such that the case should proceed in the

Youth Part to a possible adult conviction. N.Y. Crim. Proc. Law § 722.23(2)(a), (b), & (c). Even

in non-violent felony cases, the adolescent must prepare for the district attorney to object to the

transfer to Family Court within thirty days arguing that “extraordinary circumstances” exist to

justify trying the adolescent as an adult. Id. (1)(a)–(d). Juvenile offenders also face hearings to

determine whether the case will proceed in the Youth Part or be transferred to Family Court. Id.

§ 722.22. Such a mandatory hearing to determine whether the defendant will face trial as an adult

is a critical stage of the case. See Grigsby v. Cotton, 456 F.3d 727, 732 (7th Cir. 2006) (noting

that Application of Gault, 387 U.S. 1, 36 (1967) interpreted Kent v. United States, 383 U.S. 541,

561 (1966) “as confirming a juvenile’s right to counsel” at such a hearing).

With the conclusion that adolescent’s initial hearings in the Youth Part are “critical

stages” comes the corollary that counsel must be prepared to provide “adequate representation”

at those “critical stages.” Rothgery, 554 U.S. at 212 (emphasis added); see also Strickland, 466

U.S. at 685. And preparation requires consultation. See Geders, 425 U.S. at 88–91. During the

initial interview—though the lawyer is a stranger, often meeting the teenager for the first time—

she has a short time to explain who she is and what is about to happen, to gather sensitive

personal information, and to begin to establish trust. See Eckel Decl. ¶¶ 6, 8. To make an

effective bail argument, counsel must ask about the teenager’s ties to the community, her family

relationships, her immigration status, her educational and employment record, her mental health

information, her juvenile record, and her ability to meet any financial conditions of release.

NLADA Def. Standards § 2.2.6 With other critical hearings around the corner and trial down the

road, counsel must also get the facts surrounding the charge, ascertain what the client may have

said to the police, identify any mental health problems that bear on competency or criminal

responsibility, identify material witnesses, identify any potential procedural violations by law

enforcement, and determine whether any evidence need be obtained and preserved. Id.; see also

NYSBA Juvenile Defense Standards § B-3. This information also helps to determine whether the

client needs any services, such as mental health treatment. Id.; see also N.Y. Crim. Proc. Law §

722.00 (requiring rehabilitative services to be made available to juvenile/adolescent offenders).

6 Courts may look to “prevailing norms of practice as reflected in American Bar

Association Standards and the like . . . [as] guides to determining” what constitutes reasonable

assistance of counsel. Strickland, 466 U.S. at 688.

Understandably, young people are unwilling to reveal often sensitive yet material

information about family situations, mental health, potential police misconduct, and crimes they

may have committed in front of law enforcement officers. See Eckel Decl. ¶ 8 (explaining that

“most kids shut down”); accord J.B. Decl. ¶¶ 7, 14, 17; J.M. Decl. ¶¶ 10–12, 14; R.M. Decl.

¶¶ 10, 12, 14. Most alarmingly, the officer in the room is often the one who arrested the teenager

and is a government witness. J.B. Decl. ¶¶ 3, 8–10 (recounting how the police officers who

arrested her brought her to the Courthouse, overheard her attorney-client interview, then one of

the officers testified at her bail hearing); Eckel Decl. ¶ 8. But even if an officer did not

participate in the arrest, his or her presence has a “chilling effect . . . on [teenagers’] willingness

to communicate candidly with their attorneys” before arraignment and other crucial hearings

because the teenagers know that the guards can overhear their conversations. Grubbs, 744 F.

App’x at 22–23; see also Nordstrom, 762 F.3d at 910 (“It takes no stretch of imagination to see

how an inmate would be reluctant to confide in his lawyer about the facts of the crime, perhaps

other crimes, possible plea bargains, and the intimate details of his own life and his family

members’ lives, if he knows that a guard is going to be privy to them, too.”).

Indeed, adolescents’ attorneys must instruct them not to disclose certain material

information because the officer could use it against them in court. See Eckel Decl. ¶¶ 7, 9;

LaRose Email at 25; see also HSH Nordbank AG New York Branch v. Swerdlow, 259 F.R.D.

64, 70 (S.D.N.Y. 2009) (“Although communications between client and counsel relating to legal

advice are generally privileged, the privilege is waived where such communications are made . . .

in the known presence of a third party.”). The government, of course, cannot make waiver of the

attorney-client privilege and potential self-incrimination the price of effective assistance of

counsel. See The Attorney-Client Privilege: Fixed Rules, Balancing, and Constitutional

Entitlement, 91 Harv. L. Rev. 464, 485–86 (1977) (arguing that attorney-client privilege must be

respected to avoid intolerable choice between ineffective counsel and self-incrimination); see

also Weatherford, 429 U.S. at 554 n.4 (stating that “the Sixth Amendment would be violated if

the government places an informant in the defense camp during a criminal trial and receives

from that informant privileged information pertaining to the defense of the criminal charges”);

Rosner, 485 F.2d at 1224 (describing private communication as “the essence of the Sixth

Amendment right”).

Prison officials may monitor some communications with counsel, if they have security

reasons to do so and enough channels remain open for confidential discussion. For example, in

Means v. Rockland Cty. Corr. Facility, the court held that requiring detainees to call their

attorneys in the presence of a prison chaplain or social worker did not violate the Sixth

Amendment because “Plaintiff ha[d] alternate means of communicating with his counsel”—for

instance, mail and in-person visits. No. 18-CV-8290, 2019 WL 1596489, at *10 (S.D.N.Y. Apr.

15, 2019); Carr v. Tousley, No. CV-06-0125, 2009 WL 1514661, at *33 (D. Idaho May 27,

2009) (holding that taping outgoing jail calls, including with attorneys, did not violate Sixth

Amendment because inmate could arrange confidential face-to-face meetings, and monitoring

was a justified as a “common” way to detect criminal activity and security threats); but see

Nordstrom, 762 F.3d at 911 (alleged policy by which correctional officers read inmates’

outgoing letters to counsel stated claim for Sixth Amendment violation).

However, none of those cases involved surveillance during pre-arraignment courthouse

interviews—a lawyer’s only chance to elicit the facts she needs for arraignment. Eckel Decl. ¶ 8.

Even after arraignment, although detainees sometimes meet with their lawyers at Hillbrook, J.B.

Decl. ¶ 14, jailhouse meetings are inadequate substitutes for pre-hearing huddles in the

courthouse. Given the short time—six to thirty days—between the arraignments and hearings to

determine whether felony cases will proceed in adult or juvenile court, counsel has limited time

to visit adolescents at Hillbrook before their second appearances. See N.Y. Crim. Proc. Law

§ 722.23; J.B. Decl. ¶ 13 (held for a week between first and second appearances); J.M. ¶ 5

(second court date “shortly after” first). In any event, forcing defense counsel to visit all his or

her young clients at their various facilities, which often have inflexible visiting hours and long

waits once the lawyer arrives, would impose a heavy burden. Counsel would also miss important

updates or questions her client has on the day of the hearing. See J.M. Decl. ¶ 14 (“I sometimes

think of questions I want to ask [my attorney] on the way to court, but because we can’t meet

privately, I never get the opportunity to ask them.”); J.B. Decl. ¶ 14 (same). Moreover, the

teenager must go back to Hillbrook to discuss developments, such as plea offers, that occur in

court, unnecessarily “delaying a resolution of the case and potentially keeping [her] in custody

for weeks more than necessary.” Eckel Decl. ¶ 10.

Thus, by posting officers in Courthouse attorney-client meetings, the Sheriff places a

substantial obstacle in the way of class members’ right to consult their attorneys and prepare a

defense. See Benjamin, 264 F.3d at 187 (finding that jail policy imposing long delays before

jailhouse attorney-client visits “significantly interfered” with attorney-client consultation, even

though attorneys could call clients and meet them at the courthouse; thus, jail was required to

explain why security concerns justified the policy); see also Grubbs, 1999 WL 20855, at *7.

ii. New York Correctional Regulations Do Not Require “Constant

Supervision” During Courthouse Attorney-Client Conferences

Defendants’ only excuse for imposing these burdens is its erroneous reading of state

regulations, to which neither the Commission nor the State subscribes. In particular, Defendants

believe that the Raise the Age law puts them in a bind. They contend that Chapter I of the

Commission’s regulations, 9 N.Y.C.R.R. §§ 7003.2(d) and 7003.7(a), requires the Sheriff to

maintain “constant supervision,” defined as “uninterrupted personal visual supervision . . . in

close proximity,” to adolescent offenders at the Courthouse. Opp’n at 7 (quoting Raus Aff. ¶ 4).7

But due to the new law, teenagers cannot use the interview rooms used by adult defendants

(where deputies could presumably watch them without overhearing their attorney-client

conversations).8 Id. 7–8 (citing N.Y. Crim. Proc. Law § 510.15(1)); see also Def.’s Supp. Br. at

7. Therefore, the Sheriff has to use the mediation room (with the long table and chairs, where

J.M. and J.B. met their attorneys) or other spaces for adolescent offenders’ attorney client

interviews. Eckel Decl. ¶ 11. Because of how those rooms are designed, his deputies can only

maintain the required level of supervision if they remain inside during the interview. Opp’n at 7;

see also Raus Aff. ¶ 5; Def.’s Supp. Br. at 10.

7 Section 7003.7(A) states, “Except as otherwise provided in this Part, constant

supervision of prisoners shall be provided by facility staff members when such prisoners are

being transported to or from any local correctional facility by facility staff members.” Section

7003.2(d) provides that:

Constant supervision shall mean the uninterrupted personal visual observation of

prisoners by facility staff responsible for the care and custody of such prisoners

without the aid of any electrical or mechanical surveillance devices. Facility staff

shall provide continuous and direct supervision by permanently occupying an

established post in close proximity to the prisoners under supervision which shall

provide staff with: (1) a continuous clear view of all prisoners under supervision;

and (2) the ability to immediately and directly intervene in response to situations

or behavior observed which threaten the health or safety of prisoners or the good

order of the facility.

8 It is unclear how the adult interview rooms allow deputies to watch defendants without

overhearing their attorney-client conversations. In their Answer, Defendants represented that

they do not know whether law enforcement officers are present in the interview room during

adult attorney-client interviews before arraignment. See Compl. ¶ 31; Answer ¶ 15. The Court

also questions whether the County is correct to read N.Y. Crim. Proc. Law § 510.15(1) as

prohibiting adolescents and juveniles from using the adult interview rooms when no adult

offenders are present, although no party contests the issue.

This problem, however, is Defendants’ own invention. As the Attorney General and the

Commission itself would have advised if Defendants had asked, the Commission’s regulations

do not require the Sheriff to monitor adolescents’ attorney-client interviews in the Courthouse.

A.G. Br. at 14. Defendants’ contrary reading is wrong on multiple levels.

First, by its title, Chapter I applies only to “County Jails and Penitentiaries,” while

Hillbrook is “specialized secure juvenile detention facility,” or SSJDF. A.G. Br. at 10. True,

§ 7003.7 refers to “local correctional facilities,” and an SSJDF is a type of “local correctional

facility,” N.Y. Correction Law § 40(2). However, pursuant to Raise the Age, which tailored

special rules to meet the needs of adolescent offenders, J.P., 95 N.Y.S.3d at 741, Chapter III

prescribed special rules for SSJDFs. See 9 N.Y.C.R.R. §§ 7300–7360 (entitled “Minimum

Standards for Management of Specialized Secure Juvenile Detention Facilities for Older

Youth”). In such cases, when lawmakers “enact a comprehensive scheme and . . . deliberately

target specific problems with specific solutions,” the “specific governs the general.” RadLAX

Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (discussing the

“commonplace” rule that “[g]eneral language of a statutory provision, although broad enough to

include it, will not be held to apply to a matter specifically dealt with in another part of the same

enactment”) (citations omitted). Chapter III sets the requirements applicable “[d]uring any

transport of a youth outside of a facility,” and it does not require “constant supervision.” 9

N.Y.C.R.R. § 7306.11; see also id. § 7302.1 (defining “youth” to mean an “adolescent offender”

and “facility” to mean an SSJDF). Chapter III requires only “a level of supervision of [the] youth

that allows such staff to prevent an escape, respond immediately to an emergency and maintain

the safety of the youth and all others nearby”—which gives deputies discretion to leave the room

when it is safe to do so. 9 N.Y.C.R.R. § 7306.11.

Second, by their own terms, neither § 7003.7(a) nor § 7306.11 apply during an attorney-

client conference at courthouses. Sections 7003.7(a) and 7306.11 both apply only “during

transport,” or when the detainee is “being transported”—that is, when he or she is being

“transfer[red] or convey[ed] from one place to another.” Merriam-Webster’s Collegiate

Dictionary (10th Ed. 1996) at 1255. Sitting in a courthouse to consult her attorney before court, a

detainee is not being “transported” anywhere; she has arrived at her destination. In that

circumstance, other regulations are more on point. Section 7331.3 requires that “all youth shall

have access to legal counsel,” and that “[v]isits or telephone communications between youth and

their legal counsel shall not be monitored except visually.” See also 22 N.Y.C.R.R. §§ 34.0.III.9

(stating that state court “functions which require a considerable degree of confidentiality,” such

as “attorney/defendant interviews . . . should be housed in private rooms”), 34.0.VIII.5

(“Prisoner holding facilities next to courtrooms as well as any court supervised central holding

facility (if any) in the courthouse should provide secure interview rooms for attorneys to confer

with their clients,” which “should provide for visual surveillance by security personnel and

should be so constructed that the conversation between the attorney and his client is private.”).

Third, even if the County’s interpretation of the regulations were reasonable, two

principles of law required it to adopt the Commission’s interpretation, by which correctional

officials are not required to remain in the room during courthouse attorney-client conversations.

A.G. Br. at 12. First, according to the New York Court of Appeals, courts (and therefore

Defendants) “must defer to a [New York] agency’s [here, the Commission’s] rational

interpretation of its own regulations in its area of expertise” because, “having authored the

promulgated text and exercised its legislatively delegated authority in interpreting it, the agency

is best positioned to accurately describe the intent and construction of its chosen language.”

Andryeyeva v. N.Y. Health Care, Inc., 124 N.E.3d 162, 172 (N.Y. 2019). And second, the long-

established “presumption of constitutionality . . . holds that courts should, if possible, interpret

ambiguous statutes to avoid rendering them unconstitutional.” United States v. Davis, 139 S. Ct.

2319, 2332 n.6 (2019). As just explained, the Commission’s position that the regulations allow

law enforcement to respect the attorney-client confidentiality required under the Constitution is

not just reasonable; it is correct.

Even if the regulations did require the Sheriff to violate the Constitution, they would be

void to the extent that they did. The Constitution, in Article VI, clause VI, provides that the

“Constitution, and the Laws of the United States which shall be made in Pursuance thereof” are

“the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” As a result, “conduct by persons acting under color of state law

which is wrongful under” the Constitution and “42 U.S.C. § 1983 . . . cannot be immunized by

state law.” Martinez v. California, 444 U.5. 277, 284 n.8 (1980); see also Gronowski v. Spencer,

424 F.3d 285, 29l (2d Cir. 2005) (“The Supremacy Clause of the Constitution guarantees that

state law will not preempt or otherwise erode § 1983 causes of action.”).

iii. Defendants Do Not Present Evidence of Any Need to Post Officers in the

Interview Rooms

Thus, even if the regulations required the Sheriff’s “constant supervision” policy, he must

still present evidence that “institutional security” or other “concerns of pretrial detention” justify

applying it to attorney-client interviews. Benjamin, 264 F.3d at 187 & n.10. The Court must give

“proper regard . . . to the expertise and discretionary authority of correctional officials.”

Procunier v. Martinez, 416 U.S. 396, 420 (1989). However, as the Attorney General points out,

the Sheriff’s Opposition did not claim that “in his professional judgment, he needs to maintain

constant visual contact, let alone a physical presence, in the attorney-client meeting rooms” to

keep the teens and their attorneys safe and prevent escape. A.G. Br. at 20. True, for first time in

their response to the Attorney General, Defendants stated, without citing any evidence, that

“constant supervision” is the “best” way to ensure security. Defs.’ Supp. Br. at 7. However,

correctional officials must identify record evidence that they “actually had, not just could have

had, a legitimate reason for burdening protected activity.” Salahuddin v. Goord, 467 F.3d 263,

277–78 (2d Cir. 2006) (citing Turner v. Safley, 482 U.S. 78, 84 (1987)). Such “[p]ost hoc

justifications with no record support will not suffice.” Id. at 277.

In contrast, Plaintiffs have produced unrefuted evidence that Defendants can assure safe

and private attorney-client interviews in the Youth Part by using less intrusive measures. There

is only one door in and out of the interview room, adolescents are handcuffed and/or shackled

during interviews, and there is a panic button in the room. Eckel Decl. ¶ 11; J.M. Decl. ¶¶ 6–7;

R.M. Decl. ¶¶ 7–8. The County could, for example, post guards immediately outside the room

and, if necessary, “install[ ] a window in the corridor or door” so that they could still intervene

during emergencies and escape attempts. A.G. Br. at 15, 20.9 Defendants point to no evidence

that these measures would jeopardize anyone’s safety or risk escapes. See Benjamin, 264 F.3d at

187–88 (enjoining jail’s practices that restricted attorney-client meetings because the department

9 The County also attempts to argue that it has no power to implement less intrusive

security measures. However, the Sheriff could obviously direct his deputies not to remain in the

room with adolescent offenders during attorney-client interviews. In addition, the County owns

the Courthouse and could implement any necessary design changes, such as installing a window

in the wall or door abutting the interview room in the Youth Part. See Answer ¶ 6 (admitting that

the County owns the Syracuse Courthouse). As the Courthouse’s owner, the County has the

obligation to provide “facilities suitable and sufficient for the transaction of business by courts.”

N.Y. Judiciary Law § 212(2)(m); see also id. § 39(3)(“Each political subdivision shall also be

responsible for supplying such additional facilities suitable and sufficient for the transaction of

business as may become needed after [August 5, 1976].”); NYSBA Courthouse Report

(explaining that localities are “responsible for court facilities, including maintenance, operations,

renovations, and replacement”). The Guidelines for New York Court Facilities do not restrict the

County’s authority to take these steps. In fact, they require private attorney-client interview

rooms. 22 N.Y.C.R.R. §§ 34.0.III.9 & VIII.5.

of correction did not “present evidence” to rebut plaintiffs’ showing that there were “reasonable

measures [to] safeguard the detainees’ constitutional rights at minimal cost to the Department

and without impairing its institutional concerns”).

***

Accordingly, Plaintiffs have demonstrated that the Sheriff violates their constitutional

rights, and those of class members, by posting law enforcement officers in the room while they

consult their attorneys before appearances in the Syracuse Courthouse. Therefore, Plaintiffs have

a “clear” and “substantial” likelihood of success on the merits. Schneiderman, 787 F.3d at 650.

B. Irreparable Harm

To obtain an injunction, Plaintiffs must also show that without one, they are likely to

suffer “irreparable harm”: injury “that is neither remote nor speculative, but actual and imminent

and that cannot be remedied by an award of monetary damages.” Schneiderman, 787 F.3d at 660.

The denial of a constitutional right is an irreparable injury. Jolly v. Coughlin, 76 F.3d 468, 482

(2d Cir. 1996); see also Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (“When an alleged

deprivation of a constitutional right is involved, most courts hold that no further showing of

irreparable injury is necessary.”). Without candid pre-hearing consultation with counsel, class

members could spend months in detention when a bit more information could have equipped

counsel to secure their release. See, e.g., Mahmood v. Nielsen, 312 F. Supp. 3d 417, 425

(S.D.N.Y. 2018) (noting that “detention in violation of constitutional rights establishes

irreparable harm”). Pretrial detention not only imperils jobs and takes defendants away from

their families, Gerstein, 420 U.S. at 114, but also threatens to impact their defense, Campbell,

580 F.2d at 531; see also Wolfish, 573 F.2d at 133 (“[O]ne of the most serious deprivations

suffered by a pretrial detainee is the curtailment of his ability to assist in his own defense.”).

In deciding whether irreparable harm will occur without an injunction, the Court must

consider whether government will comply with its legal obligations voluntarily. See Farmer v.

Brennan, 511 U.S. 825, 845 (1994) (explaining that the plaintiff must show the likely

“continuance of [the constitutional violation] during the remainder of the litigation and into the

future,” which depends on officials’ “current attitudes and conduct”). The Court must “approach

the issuance of injunctive orders” against correctional officials “with the usual caution” and

“may, for example, exercise its discretion if appropriate by giving prison officials time to rectify

the situation before issuing an injunction.” Id. at 847.

However, in this case, the Court finds that a preliminary injunction is necessary. The

County has clung to its careless reading of the Commission’s regulations against the advice of

the Commission and the State of New York. It has continued to insist that those regulations

justify its actions, despite the well-established principle that the Constitution is the “supreme law

of the land” and would trump any inconsistent regulation. U.S. Const. art. VI cl. 2. And it has

failed to consider how its policy routinely subjects teenagers to unfair pretrial incarceration and

conviction despite the repeated and well-reasoned objections of countless attorneys and several

legal aid organizations. Given its persistence so far, the Court finds that the County will continue

to disregard class members’ constitutional rights no matter how clearly they are elucidated.

C. Balance of Equities and Public Interest

“[T]he public interest lies with the enforcement of the Constitution.” Ligon v. City of

N.Y., 925 F.Supp.2d 478, 541 (S.D.N.Y. 2013). When children are convicted and incarcerated

without counsel, the integrity of the justice system is undermined. See United States v. Levy, 577

F.2d 200, 209 (3d Cir. 1978) (“The purpose of the attorney-client privilege is inextricably linked

to the very integrity and accuracy of the fact finding process itself.”); see also Kimmelman, 477

U.S. at 384 (“The right to counsel . . . assures the fairness, and thus the legitimacy, of our

adversary process.”). It is therefore unsurprising that the State of New York, whose justice

system Defendants’ actions compromise, supports Plaintiff’s request for an injunction. See

A.G.’s Br. at 4–5. Thus, the ongoing irreparable harm to class members and the public interest

both weigh in favor of granting Plaintiffs’ request for an injunction.

On the other hand, Defendants have not submitted any evidence that leaving shackled

teenagers alone with their attorneys would pose any increased security risk. And even if security

does require constant observation, the cost of installing a window in the Courthouse is a small

price to pay for protecting the right to counsel. In fact, in response to Plaintiffs’ substantial

evidence in support of their motion, see above at n.2, Defendants submitted only a two-page

affidavit by Deputy Sheriff James Raus and a nine-page legal memorandum, neither of which

argued that safety required officers’ presence in the interview rooms (except to state, incorrectly,

that state regulations required it). See Opp’n at 1–9; Raus Aff. at 1–2.

Without any evidence to rebut Plaintiffs’ strong showing that Defendants’ “constant

supervision” policy causes the class irreparable harm and threatens to undermine public

confidence in New York’s criminal justice system, the balance tips decidedly in favor of an

injunction requiring Defendants to let class members confer privately with their attorneys before

each court appearance. See Benjamin, 264 F.3d at 181 (affirming injunction requiring the jail to

reduce delays before attorney-client visits and “ensure both that an adequate number of attorney

visiting rooms be made available and that such rooms foster the requisite degree of privacy”).

***

Given how clearly the Sheriff’s policy violates the Constitution, it is unfortunate that this

case had to proceed while young people faced arraignments, bail arguments, and motion hearings

without the full assistance of counsel to which they are entitled. Perhaps the County sought to

steer wide of the chance that it could violate state regulations. But our Constitution does not

allow government to steamroll the rights of criminal defendants until a court orders a course-

correction. Rather, “every state legislator and executive and judicial officer is solemnly

committed by oath taken pursuant to Art. VI, ¶ 3 to support th[e] Constitution.” Cooper v. Aaron,

358 U.S. 1, 18 (1958); see also Trump v. Hawaii, 138 S. Ct. 2392, 2424 (2018) (Kennedy, J.

concurring) (noting that even when the “actions of Government officials are not subject to

judicial scrutiny or intervention,” that “does not mean those officials are free to disregard the

Constitution and the rights it proclaims and protects”). Defendants disregarded their duty to

respect Plaintiffs’ constitutional rights, and they evidently intend to continue until the Court

intervenes. Accordingly, Plaintiffs’ motion for a preliminary injunction is granted.

V. CONCLUSION

Accordingly, it is hereby:

(1) ORDERED, that the Motion for Class Certification (Dkt. No. 9) is GRANTED. The

following class is certified: All adolescent and juvenile offenders, as the terms are defined under

New York State Law, who are now, or will be, in the custody of law enforcement and appear

before the designated Onondaga County Youth Part. J.M. shall serve as class representative. The

Legal Aid Services of Central New York shall serve as class counsel; and it is further

(2) ORDERED, that the Motion for Preliminary Injunction (Dkt. No. 12) is GRANTED.

Onondaga County and County Executive Ryan McMahon shall make a room available for class

members to meet privately with their attorneys in the Syracuse Criminal Courthouse before

appearances in the Youth Part.'° Sheriff Eugene Conway’s deputies and staff, and all other law

enforcement officials acting in concert with them, including the Syracuse Police Department, are

enjoined from being present in the room when class members are discussing their cases with

their attorneys before or after court appearances; and it is further

(3) ORDERED, that Defendants shall confer with Plaintiffs’ counsel and the New York

Attorney General and, by August 26, 2019, report the steps they have taken to comply with

Order (2). Plaintiffs shall, and the Attorney General may, join in that report to state their position

concerning whether Defendants are complying with that Order; and it is further

(4) ORDERED, that the Clerk shall cause this Memorandum-Decision and Order to be

served on all parties and the City of Syracuse, 233 E. Washington St., 300 City Hall, Syracuse

New York 13202.

IT IS SO ORDERED.

DATED: August 12, 2019

Albany, New York

U.S. District Judge

0 The County may continue to use the arbitration/mediation room for attorney-client

meetings, so long as law enforcement does not remain in the room during those meetings. See

Eckel Decl § 11.

38