Federal Judge Smacks Down Stop and Frisk Tactics of the NYPD

In a long-anticipated and awaited ruling, a federal judge – Shira Scheindlin – ruled that the New York Police Department’s “stop-and-frisk” policies violated the constitutional rights of minorities in the city.

Judge Scheindlin ruled that the city had “adopted a policy of indirect racial profiling by targeting racially defined groups for stops based on local crime suspect data. This has resulted in the disproportionate and discriminatory stopping of blacks and Hispanics in violation of the Equal Protection Clause.”

“Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites,” she wrote.  In contrast to prevailing viewpoints, she found “[o]nce a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband” (emphasis added).

This differential in treatment, the judge ruled, has led to officers routinely stopping “blacks and Hispanics who would not have been stopped if they were white.”

Judge Scheindlin, however, stopped short of “ordering an end to the practice of stop and frisk.”  Instead, she argued, “The purpose of the remedies addressed in this Opinion is to ensure that the practice is carried out in a manner that protects the rights and liberties of all New Yorkers, while still providing much needed police protection.”

Thus, she called for a federal monitor to oversee broad reforms.  Included in these are the use of body-worn cameras for some patrol officers.  She wrote, “The use of body-worn cameras by NYPD officers would address a number of the issues raised in the Liability Opinion.”

In so doing, she noted that “the difficulty of judging in hindsight what happened during an encounter between a civilian and the police” where “the only contemporaneous records of the stops in this case were UF-250s and short memo book entries – which were sometimes not prepared directly after a stop, and which are inherently one-sided. Thus, I was forced to analyze the constitutionality of the stops based on testimony given years after the encounter, at a time when the participants’ memories were likely colored by their interest in the outcome of the case and the passage of time.”

The judge noted that the city is liable for violating the Fourth and Fourteen Amendment rights of the plaintiffs in this case.

She wrote, “The City acted with deliberate indifference toward the NYPD’s practice of making unconstitutional stops and conducting unconstitutional frisks. Even if the City had not been deliberately indifferent, the NYPD’s unconstitutional practices were sufficiently widespread as to have the force of law.”

The judge noted that “the Fourth Amendment requires at least a minimal level of objective justification for making the stop.”  She continued, “Race alone is not an objective basis for suspicion by the police.”

She wrote, “I reject the testimony of the City’s experts that the race of crime suspects is the appropriate benchmark for measuring racial bias in stops. The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population.”

Judge Scheindlin argued this reasoning is flawed “because the stopped population is overwhelmingly innocent – not criminal.”  She continued, “There is no basis for assuming that an innocent population shares the same characteristics as the criminal suspect population in the same area.”

The stops were not the only problem.  Even after stopping residents, officers would conduct frisks for weapons or other contraband without any legal grounds to do so.  As noted above, she found that during police stops, blacks and Hispanics “were more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.”

Patrol officers, she ruled, stopped innocent people without any objective basis for suspicion of wrongdoing.  But she also went further, pointing her finger at public officials like the mayor and the police commission.  She wrote, “I also conclude that the city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.”

“Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” she wrote, noting that the police were too quick to find suspicion in behavior that was perfectly innocent, which watered down the legal standard established in the 1968 Terry v. Ohio Supreme Court ruling on a stop.

She noted, ” ‘Furtive Movements,’ ‘High Crime Area,’ and ‘Suspicious Bulge’ are vague and subjective terms. Without an accompanying narrative explanation for the stop, these checkmarks cannot reliably demonstrate individualized reasonable suspicion.”

The judge wrote, “Because there is no evidence that law-abiding blacks or Hispanics are more likely to behave objectively more suspiciously than law-abiding whites, Dr. Smith’s – and the City’s – refuge in this unsupported notion is no refuge at all.”

Civil Rights groups like the ACLU had been part of the coalition fighting the stop and frisk policies in the court.

Ezekiel Edwards, director of the American Civil Liberties Union’s Criminal Law Reform Project, said, “The ACLU celebrates today’s decision by Federal Justice Shira Scheindlin declaring the NYPD’s longstanding and widespread stop and frisk practices unconstitutional.”

He continued, “As the decision exhaustively documents, the NYPD’s stop and frisk policy clearly violated the 4th and 14th Amendments, subjecting millions of innocent New Yorkers – overwhelmingly Black and Latino – to unlawful searches through systemic racial profiling. We hope that today’s decision, and the robust remedies the court has put in place, will mark the end to this dark chapter in the NYPD’s history.”

Benjamin Jealous of the NAACP added, “This is a groundbreaking victory….We hope that Mayor Bloomberg and Commissioner Kelly will heed this decision and end their crude and abusive policy. We will continue to stand up with the tens of thousands of New Yorkers who marched with us last June and fight for the protections of the Community Safety Act.”

Congressman Jose Serrano, who represents the Bronx, said,  “I believe that with the federal monitor in place, the NYPD can continue to carry out its effective crime fighting – which must be praised for its success in recent years – but without using this tactic. In fact, they may experience improved community relations because they are alienating fewer people, which leads to better crime fighting through tips and cooperation .. . this is a big step forward for our city.”

Congressman Jerrold Nadler added, “It’s unfortunate that it took a lawsuit and a federal court order to safeguard the fundamental, and constitutionally protected, right to be free from unwarranted police harassment. Racial profiling and other discriminatory policies have no place in our great city or our great country.”

Attorney General Eric Holder with Assistant Attorney General Thomas Perez filed a last-minute brief which suggested a federal monitor of the NYPD if the stop-and-frisk program were found unconstitutional.

Ultimately, Judge Scheindlin decided to accept the DOJ’s offer, which apparently has some teeth to it.

While the brief did not go over well with Mayor Blomberg, civil rights advocates note that the Justice Department under Eric Holder and his Rights Division, led by Thomas Perez, has not hesitated to investigate police departments for misconduct, and it has forced reforms in cities like in New Orleans.

Mr. Perez back in March launched an investigation of Cleveland police, focusing on excessive force.

For his part, Mayor Bloomberg on Monday pledged to appeal the case to the US Court of Appeals for the Second Circuit, and would argue that the judge was biased against the police.

According to the NY Times, “He cited the fact that the judge, who has overseen numerous stop-and-frisk cases over the last decade, had encouraged the plaintiffs to steer the Floyd case into her courtroom by marking it as related to an earlier case she had overseen.

The mayor, according to the Times, said the judge did “not understand how policing works” and “had misinterpreted what the Constitution allowed.”

—David M. Greenwald reporting