The verdict on stop-and-frisk

August 15, 2013

Don Lash reports on the judge's ruling in a landmark lawsuit against racial profiling.

OPPONENTS OF the New York Police Department's practice of racial profiling won vindication for years of protest when a federal judge ruled that the NYPD's "stop-and-frisk" policy had violated the constitutional rights of untold numbers of Blacks and Latinos.

The August 12 decision from U.S. District Judge Shira Scheindlin followed a weeks-long civil trial in the class-action lawsuit Floyd et al. v. City of New York. Filed by four African American men, the suit charged that the NYPD's practice of daily subjecting thousands of people--overwhelmingly Black and Latino--to random stops violated their Fourth Amendment protection against unreasonable search and seizure.

Scheindlin ordered the appointment of a federal monitor to confirm that the NYPD stops stop-and-frisk--a bitter blow to the policy's top defenders, New York City Mayor Michael Bloomberg and NYPD Commission Ray Kelly, who is reportedly a candidate to head Barack Obama's Department of Homeland Security.

The decision against stop-and-frisk--even in the face of opposition from New York's rich and powerful, in the persons of Bloomberg and Kelly--is testament to the courage of the four men who launched the suit, and to the skill and dedication of the lawyers and statistical experts from the Center for Constitutional Rights (CCR) who argued the case.

New York police stop two African American men in Harlem
New York police stop two African American men in Harlem (All Things Harlem)

But credit also belongs to all the people who have participated in years of grassroots resistance to stop-and-frisk. Their organizing and action exposed the policy as racial profiling and turned public opinion against it--setting the stage for a judge to declare what New Yorkers, especially in Black and Brown communities, already knew full well.

AGAIN AND again in her 195-page opinion, Judge Scheindlin cited the facts that anti-racist activists and civil liberties advocates have talked about for years.

Scheindlin noted that the NYPD made 4.4 million stops between 2004 and 2012, and that 80 percent of those stopped were Black or Latino. She rejected the city's defense that this racial disparity was appropriate because a similar disparity exists among those identified as criminal suspects. In response, Scheindlin pointed out that fewer than 10 percent of stop-and-frisk encounters resulted in a summons or arrest--and far fewer in charges of serious wrongdoing--meaning the vast majority of victims are innocent and shouldn't be treated as "suspects."

The only legal justification for a warrantless search of an individual without probable cause for arrest is the suspicion that he or she may be armed and dangerous, Scheindlin added--and nearly 99 percent of those subjected to the NYPD's harassment turned out to be unarmed.

The data put together by the CCR also shows that whites stopped by police were actually more likely to be carrying a weapon or contraband--yet stops involving whites were less likely to result in arrest or use of force. Scheindlin wrote that this indicated racial bias in NYPD policies and practices.

Testimony during the civil trial exposed the atmosphere of bigotry and abuse within the NYPD. In recordings made surreptitiously at police roll call briefings and during conversations with commanders at three separate precincts--all in Black and Latino neighborhoods--the higher-ups are heard directing officers to increase their "stop-and-frisk" activity and generate summons and arrests.

The recordings also make it clear that stop-and-frisk isn't about stopping crime, but about the NYPD asserting control in Black and Brown neighborhoods. In one recording, a lieutenant is heard saying: "[W]e've got to keep the corner clear...Because if you get too big of a crowd there, you know...they're going to think that they own the block. We own the block. They don't own the block, alright? They might live there, but we own the block."

In another conversation, the same lieutenant reminds officers that they aren't "working in Midtown Manhattan where people are walking around smiling and happy. You're working in Bed-Stuy where everyone's probably got a warrant."

Scheindlin's opinion described in great detail the disproportionate impact of stop-and-frisk on New Yorkers of color. She also took head on the claims of NYPD officials that random searches are needed to protect New Yorkers from violence--by documenting the fact that the stop-and-frisk policy isn't based on officers having have suspicions about their victims, but on the department targeting whole communities because of skin color.

While courts have always been willing to give police officers the benefit of every doubt, the U.S. Supreme Court decision in a case called Terry v. Ohio justifies police searches without probable cause only on the basis of individualized suspicion--that is, something about the individual or the circumstances would lead a reasonable person to believe the individual is armed and dangerous.

Scheindlin agreed with the contention of CCR attorneys that the NYPD is using stop-and-frisk on the basis of suspicion of a whole group--primarily of young men of color--and that the overall aim, confirmed by the secret recordings, isn't to find armed individuals, but to intimidate young Black and Latino men, supposedly to make them less likely to carry guns.

The judge made it clear that she isn't ruling stop-and-frisk to be illegal--only that the NYPD had taken the policy beyond what the Constitution allows. Scheindlin ordered a variety of "remedies" to fix the constitutional violations. She appointed a former prosecutor and city lawyer to develop a reform plan in consultation with the city and "stakeholders." The reform plan is to include training and guidance documents, as well as ongoing monitoring. She also ordered a pilot project requiring officers to use body-worn cameras in five precincts--one in each borough--with the highest number of stop-and-frisks.

But Scheindlin also noted the resistance of Bloomberg, Kelly and the city to participate in any discussion of reform measures--which proves that no one should expect stop-and-frisks to stop, just because a judge said so.

The contempt of the NYPD and the Bloomberg administration for the court and for the constitutional issues involved continued after the decision. Bloomberg declared that the city had no intention of doing anything Scheindlin ordered until its appeals were exhausted--and he dramatically predicted that children would die if he did so.

But as Scheindlin pointed out, the city had already responded to public pressure by scaling back the volume of stop-and-frisks--and violent crime has fallen.

THE RESISTANCE to stop-and-frisk that emerged and persisted in New York City was critical to setting the stage for the victory in the Floyd lawsuit.

From various organizing campaigns against stop-and-frisk, to thousands of New Yorkers marching against racial profiling on Father's Day in 2012, to Harlem activist Jazz Hayden enduring police retaliation for filming police stops, pressure from New Yorkers of color and their allies have increasingly put police and the mayor on the defensive.

In fact, Scheindlin even alluded to the "very active and public debate" on stop-and-frisk--and to the alienation of large segments of the city's population as a result of being singled out for police harassment.

More directly, the movement pressured City Council to take action by passing two bills to reign in stop-and-frisk by allowing lawsuits by individuals who are profiled and appointing an Inspector General to provide oversight. Bloomberg vetoed both bills and is fighting to stop the council from overriding his veto.

Community efforts will need to continue to ensure that anything comes of the decision in the Floyd case. A generation ago, a federal court order limited the ability of the NYPD to engage in domestic spying on political activists. But after 9/11, the city was able to roll back the protections of First Amendment rights and engage in widespread surveillance of Muslims and left-wing activists, and suppression of protest. It's a safe bet that the NYPD will be equally diligent in looking for every opportunity to roll back any changes enacted in the wake of this case.

More fundamentally, none of Scheindlin's "remedies" will change the basic relationship of the NYPD to poor and working-class New Yorkers and the communities in which they live. Mobilization must continue against police violence, racial profiling, abuse and violence must continue.

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