Alluding to what she called “overwhelming evidence” that the New York Police Department is running a centralized stop-and-frisk program that has led to thousands of unconstitutional stops, a federal judge yesterday certified a 2008 class action suit challenging the controversial policy.
In the process, Southern District Judge Shira Scheindlin (See Profile) said she found New York City’s attitude toward the suit to be “deeply troubling.” She criticized the city’s Law Department for stating that a court order to block the practice would amount to “judicial intrusion” and arguing that no injunction could guarantee that suspicionless stops would never occur or would occur in only a certain number of cases.
The judge observed in Floyd v. City of New York, 08 Civ. 1034, that what was important at the class certification stage was “the substantive question of whether or not the unlawful stops of putative class members result from a common source: the department’s policy of establishing performance standards and demanding increased levels of stops and frisks. The preponderance of the evidence shows that the answer to that question is yes.”
She noted that the vast majority of New Yorkers who are unlawfully stopped will never file a lawsuit in response, and class-action status was created for just these kinds of cases.
The lawsuit alleged that the NYPD purposefully engaged in a widespread practice of concentrating its stop-and-frisk activity in black and Hispanic neighborhoods based on their racial composition rather than legitimate non-racial factors. The lawsuit said officers are pressured to meet quotas for stops, and they are punished if they do not.
The Law Department had been fighting an uphill battle to block class certification, which has seemed virtually certain since Scheindlin rejected the city’s motion for summary judgment in September (NYLJ, Sept. 1, 2011).
In her 57-page opinion, Scheindlin wrote that “Defendants’ cavalier attitude towards the prospect of a ‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights.”
And, she said, “if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a ‘judicial intrusion into a social institution’ but a vindication of the Constitution and an exercise of the court’s most important function: protecting individual rights in the face of the government’s malfeasance.”
A Law Department spokeswoman said yesterday, “We respectfully disagree with the decision and are reviewing our legal options.”
Lawyers for the named plaintiffs in the case expect Scheindlin’s certification decision to be appealed to the U.S. Court of Appeals for the Second Circuit.
The plaintiffs are represented by Darius Charney and Sunita Patel of the Center for Constitutional Rights; Jonathan Moore and Jennifer Borchetta of Beldock Levine & Hoffman; and Eric Hellerman, Philip Irwin and Gretchen Hoff-Varner of Covington & Burling.
Charney said in a statement that the judge’s ruling means that “those for whom this practice is a daily reality will now have an opportunity to challenge it as a violation of their fundamental constitutional rights and to ask the Court to order real changes in NYPD stop-and-frisk policy.”
According to the decision, more than 2.8 million stop-and-frisks were conducted between 2004 and 2009. Half were of blacks, 30 percent were of Latinos and only 10 percent were of whites.
The lawsuit charges the practice violates the Fourth Amendment’s right to be free from unlawful searches and seizures and the 14th Amendment right to be free of discrimination based on race.
The numbers were worse last year, the plaintiffs charge, as a record 685,724 stops were made, an increase of 600 percent since Raymond Kelly was named police commissioner in 2002. Of those stopped in 2011, 84 percent were black or Hispanic and 88 percent of those stopped were not arrested and did not receive summons.
In denying the city’s summary judgment motion in September, Scheindlin said that “the increasingly widespread use of this policing tool in New York City is not to be taken lightly, even in those cases where the individuals are not detained for more than a few minutes, and even if the practice causes some reduction in the City’s crime rate.”
The judge followed that opinion with another in April, when she ruled plaintiffs’ expert, Jeffery Fagan, a Columbia Law professor and director of the school’s Center for Crime, Community and Law, could testify at trial about his conclusions on racial disparities in the stops (NYLJ, April 17).
Scheindlin found Fagan’s report, which analyzed 175,000 stops and focused on racial disparities and the extent to which they complied with the Fourth Amendment, was “methodologically sound,” rejecting the city’s challenge to his expertise.
The Law Department’s Heidi Grossman wrote that Fagan is not a lawyer, “has never worked in a law enforcement field, has never completed a [stop-and-frisk] form, never conducted a Stop, Question & Frisk (SQF) and never observed more than a few SQF’s or gone along with an NYPD officer to observe an SQF.”
Scheindlin said in Wednesday’s ruling that five nonprofit organizations have filed amicus briefs saying the stop-and-frisk practices are “harmful, degrading and demoralizing for too many young people in New York,” and 27 of 51 New York City Council members filed a second amicus saying the practice “reinforces negative racial stereotypes” and have created “a growing distrust on the part of Black and Latino residents.”
But the city shows no indication of backing down on a practice that the Bloomberg administration insists is an effective crime-fighting tool. It has contended from the beginning that it is not engaged in racial profiling but conducts the lion’s share of stop-and-frisks in high crime areas, a contention disputed by the plaintiffs and Fagan.
Just last week, Mayor Michael Bloomberg said that, over the past decade, stop-and-frisks deserve much credit for the dramatic drop in the city’s murder rate, as 5,600 fewer people were killed compared with the previous decade.
“That’s 5,600 men, women and children who are alive today who would not be” if the police did not engage in stop-and-frisk, Bloomberg said. “We know that 90 percent of the murder victims in this city are black and Hispanic. So 90 percent of those 5,600 probably would have been minorities.”
In certifying a Fourth Amendment class, Scheindlin said that, in 6 percent of all documented stops, the officers’ stated reasons for the stops were facially insufficient to establish reasonable suspicion: “That is to say, by their own explanations for their actions, NYPD officers conducted at least 170,000 unlawful stops between 2004 and 2009.”
In 62,000 of those cases, she said, officers cited no more than a “furtive movement” to justify the stop, and in over 4,000 stops gave no reason other than “high crime area.”
Certifying a Fourteenth Amendment subclass, Scheindlin cited the Fagan report as saying blacks and Latinos are significantly more likely to be stopped and frisked than whites “even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.”
Moreover, she again cited Fagan for the notion that blacks and Hispanics “are treated more harshly during stop-and-frisk encounters with NYPD officers than whites who are stopped on suspicion of the same or similar crimes.”
The city reached a settlement in 2003 on its stop-and-frisk policy in Daniels v. City Of New York, 99 Civ. 1695, agreeing to enact a policy against racial profiling, revise the form police use when they conduct a stop and conduct regular audits of those forms.
Scheindlin currently has two other, related stop-and-frisk cases, Davis v. City of New York, 10-cv-699, which challenges stops in New York City public housing, and Ligon v. City of New York, 12-cv-2274, which challenges stops in private buildings under the NYPD’s “Operation Clean Halls” program. The program allows private landlords or building managers to enroll and have police patrol their hallways.
The city settled a fourth stop-and-frisk case this week, agreeing to cease the practice of stopping and frisking passengers of livery cabs whose drivers are part of a voluntary police safety program that allows police to stop livery cars without probable cause (NYLJ, May 16).
@|Mark Hamblett can be contacted at email@example.com