Federal District Court Ruling of Note: NYPD “Stop & Frisk” Violates 4th & 14th Amendments
“Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”
– Railway Express Agency v. People of State of New York, 336 U.S.106, 112–13 (1949) (Jackson, J., concurring)
“It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’” – Terry v. Ohio, 392 U.S. 1, 16–17 (1968)
“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.” – United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.)
“New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist undefined indeed the Constitution mandates it. This case is about the tension between liberty and public safety in the use of a proactive policing tool called “stop and frisk.” – Floyd v.City of New York, 08CV 1034 (U.S. D.C., S.D.NY) (Scheindlin, J.)
The New York City Police Department (NYPD) made 4.4 million stops between January 2004 and June 2012. More than 80% of these 4.4 million stops were of blacks or Hispanics. In 52 percent of those 4.4 million stops, the person stopped was black, in 31 percent the person was Hispanic, and in 10 percent the person was white.
Weapons were seized in 1 percent of the stops of blacks, 1.1 percent of the stops of Hispanics, and 1.4 percent of the stops of whites. Contraband other than weapons was seized in 1.8 percent of the stops of blacks, 1.7 percent of the stops of Hispanics, and 2.3 percent of the stops of whites. Fifty-two percent of the 4.4 million police stops were followed by a frisk for weapons. A weapon was found after 1.5 percent of those frisks. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.
"No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life." -U.S. District Judge Shira A. Scheindlin
U.S. District Judge Shira A. Scheindlin of the U.S.D.C. for the Southern District of New York ruled that the NYPD violated the Fourth Amendment’s ban on unreasonable searches and the 14th Amendment’s equal protection clause when they disproportionately targeted minorities with stop-and-frisk tactics. In her 195-page decision filed August 12 after a two-month bench trial, she stated that “A police department may not target a racially defined group for stops in general—that is, for stops based on suspicions of general criminal wrongdoing simply because members of that group appear frequently in the police department’s suspect data.”
As a remedy, she appointed former City of New York Corporation Counsel and Chief Assistant Manhattan District Attorney Peter Zimroth of Arnold & Porter to monitor NYPD conduct.
“In light of the very active and public debate on the issues addressed in this opinion—and the passionate positions taken by both sides—it is important to recognize the human toll of unconstitutional stops,” Scheindlin wrote. “While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention.”
Her findings disclosed that police officers were pressured to increase their stops, and the city did nothing when notified that the stops were being made in a racially skewed manner. Police supervisors routinely reviewed the productivity of officers, but did not review the facts cited to justify such stops to determine whether they were legally sufficient.
Judge Scheindlin also noted an unwritten policy for police to target “the right people” for stops. “This is a form of racial profiling,” she said. “While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The equal protection clause does not permit race-based suspicion.”
Judge Scheindlin highlighted inconsistent police training by citing differing testimony on what constituted “furtive movements” used to justify stops. One officer said it could mean changing direction, walking a certain way, being fidgety, stuttering, looking back and forth, adjusting a hip or belt, grabbing at a pocket, acting “a little suspicious,” going in and out of a location, and moving into and out of a car too quickly. Another said it could mean hanging out in front of a building or sitting on benches and then making a quick movement, such as bending down or going inside the lobby, or suddenly becoming very nervous and very aware.
“If officers believe that the behavior described above constitutes furtive movement that justifies a stop,” Scheindlin wrote, “then it is no surprise that stops so rarely produce evidence of criminal activity.”
This ISPLA case comment concerns only a small portion of the evidence upon which this federal district judge relied in rendering her ruling. Judge Scheindlin’s 195-page decision is available here.
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