Tempers flared on April 19 as Southern District Judge Shira Scheindlin (See Profile) demanded that the New York City Law Department produce two police officers for identification by a black plaintiff who claims he was stopped, questioned and frisked on the steps of his Staten Island home without reasonable suspicion.
Leroy Downs, testifying at the end of the fifth week of the litigation challenging the constitutionality of New York City Police Department’s practice of stopping hundreds of thousands of New Yorkers every year, said that on the night of Aug. 20, 2008, he was sitting on his front steps talking on a cell phone when two plainclothes officers got out of a Crown Victoria.
Downs told plaintiffs’ lawyer Sunita Patel of the Center for Constitutional Rights that one of the officers said, "Hey, buddy, it looks like you’re smoking weed" and then the other said, "Get up against the fucking fence."
After being frisked in a search that uncovered nothing more than keys, a wallet and some cookies, Downs said he asked for the officers’ badge numbers and they refused. He was only able to identify them after going to the local precinct later that night. But Downs was unable to later pick the officers out of a photo array of officers in uniform shown to him at the Civilian Complaint Review Board.
Assistant Corporation Counsel Morgan Kunz was making an issue of Downs’ failure to identify the officers at the CCRB, a failure Downs said was due to his reluctance to blame the wrong officers and the fact that they were pictured in uniform, not plainclothes.
Scheindlin became frustrated because both of the officers, Sergeant James Mahoney and Detective Scott Giacona, had testified on April 17 that they never had the encounter with Downs. Only a disruption in the trial schedule prevented both officers from being in court on the same day as Downs.
Scheindlin raised the possibility of perjury, saying, "If any witness appears to have perjured themselves, that’s a serious problem."
She wanted the officers to appear in court to give Downs the chance to identify them.
"I’m directing the city to produce these officers," Scheindlin said, her voice rising. "I’m ordering it. I’ve really had it with this identification."
When Kunz was hesitant to say he would bring the officers back in, Scheindlin said, "I’m ordering it. Send somebody to make a phone call."
The exchange came during a hard-fought trial that is the culmination of a long-running effort by civil rights lawyers to prove there is a top-down NYPD policy of stopping, questioning and frisking hundreds of thousands of New Yorkers every year without reasonable suspicion as required by the Fourth Amendment.
The city and the police contend they are complying with the Constitution and the U.S. Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968), and that stopping, questioning and frisking people in high-crime areas has led to the city’s historic reduction in crime.
The plaintiffs in Floyd v. City of New York, 08 Civ. 01034, claim the policy overwhelmingly targets black and Latino young men, with little correlation to the rate of crime in a given neighborhood, and has had a statistically insignificant impact on the chief goals of the policy: to get guns off the streets and deter crime.
The plaintiffs—represented by the Center for Constitutional Rights; Beldock, Levine & Hoffman; and Covington & Burling—want the city to be found liable in the bench trial and Scheindlin to appoint a monitor to ride herd on the reform of the NYPD policy and ensure officers have a better understanding of the law, better training and better oversight by their superiors from the precinct level to the top of the department.
The mention of perjury on April 19 set off a series of heated exchanges between the judge and lawyers for the city and the police.
The situation deteriorated after the lunch break, when lawyers for the Detectives’ Endowment Association and the Sergeants Benevolent Association showed up in court.
Andrew Quinn of the Quinn Law Firm in White Plains, who represents the benevolent association, got into a tangle with the judge over his hesitation at bringing in the officers.
"This is not a show up. The plaintiffs should have the right to see the officers," Scheindlin said.
When Quinn tried to interject, the judge said, "Excuse me. If I’m talking, you’re not, Mr. Quinn."
The judge said she was saying that Downs should have a chance to see the officers, adding, "This is not a prosecution. I am not the police. Obviously, you’re very worried about them coming in."
Quinn retorted, "That is completely inaccurate. You are raising the issue of perjury."
"I’m ordering you to produce them," said Scheindlin, before warning, "I will start contempt proceedings" for non-compliance.
But Quinn said he couldn’t produce the officers without seeing the transcripts of both their testimony and that of Downs, adding later, "Obviously, if they don’t appear, you can strike their testimony."
And because the court has "opined it could be potentially perjurious," Quinn said, "I have to advise my clients on the wisdom of appearing."
He said he was instructing his clients not to appear on April 19 but didn’t rule out an appearance today.
"I’m directing them to appear," Scheindlin said.
When Quinn started to speak, the judge said, "It’s not up to you."
"Are you in the habit of telling a court ‘I’ll do it when I get to it’?" she added.
James Moschella of Karasyk & Moschella appeared for the Detectives Endowment Association.
@|Mark Hamblett can be contacted at email@example.com.