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.” – Honorable Shira A. Scheinlin
In a sweeping rejection of a policy that New York City Mayor Michael Bloomberg has steadfastly defended, a federal judge put the clamps on the New York City Police Department’s controversial “stop and frisk” policy. The practice of stopping and searching individuals the NYPD deemed suspicious had led to the disproportionate detainment of African-Americans, mostly male, and mostly not guilty of violating any laws. Mayor Bloomberg repeatedly claimed the policy was responsible for lowering crime and the city’s homicide rate. The mayor was so adamant in his defense of the policy that he recently claimed the NYPD was stopping too many whites and not enough Blacks. It was that type of unapologetic attitude, and some claimed arrogance, that angered many in the African-American community and civil rights leaders. It also caused the filing of a lawsuit, David Floyd, Lalit Clarkson, Deon Dennis, and David Ourlicht v City of New York, that served as the basis for Judge Shira Scheinlin’s ruling yesterday.
Judge Scheinlin summarized her findings in a sweeping 198 page memorandum outlining the basis of her finding. “In conclusion, I find that the City is liable for violating plaintiffs’ Fourth and Fourteenth Amendment rights. 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. In addition, the City 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.”
The ruling left no doubt that the NYPD was violating the civil rights of the city’s residents, and specifically African-Americans. Sounding his usual defiant self, Mayor Bloomberg responded to the judge’s ruling at a press conference with Police Commissioner Ray Kelly and Corporation Counsel Michael Cardoza. “The fact that fewer guns are on the street now shows that our efforts have been successful. There is just no question that Stop-Question-Frisk has saved countless lives. And we know that most of the lives saved, based on the statistics, have been black and Hispanic young men.”
Police Commissioner Ray Kelly echoed Mayor Bloomberg’s defense of stop and frisk, and like the mayor, tried to justify the practice on the premise that African-Americans and Hispanics were benefiting from the policy. Kelly said, “To that point, last year 97 percent of all shooting victims were black or Hispanic and reside in low-income neighborhoods. Public housing where five percent of the city’s population resides experiences 20 percent of the shootings. There were more stops with suspicious activity in neighborhoods with higher crime because that’s where the crime is.” The city is asking for a stay of the judge’s order pending an appeal.
Despite Mayor Bloomberg’s vigorous defense of stop and frisk the data clearly pointed out that racial and ethnic residents, specifically African-Americans and Hispanics, were being targeted and overwhelmingly when stopped were breaking no laws. Judge Scheinlin’s order laid bare the facts behind “stop and frisk.” Among the “uncontested” facts cited in the judge’s memorandum were:
• The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
• 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
• 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
• 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
• In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
• In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
• In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
• Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
• Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.
In response to these findings, and other relevant facts, Judge Scheinlin ordered an immediate change to the NYPD’s stop and frisk policy, a trial program requiring police to use body cameras in one precinct per borough, a community-based remedial program conducted by a court appointed facilitator, and an independent federal monitor to oversee the NYPD. The judge appointed attorney, and former corporation counsel and prosecutor, Peter Zimroth of the firm Arnold & Porter L.L.P. to monitor the police department’s compliance.
The judge’s ruling comes just one month before a contested New York City Democratic mayoral campaign that features a protégé of the mayor, City Council Speaker Christine Quinn, and a host of candidates that are seeking to succeed Bloomberg. The order now puts the NYPD and policing in general at the center of the mayoral campaign.