New York Police Department stop-and-frisk practices violate both the Fourth Amendment prohibition against unreasonable searches and seizures and the Fourteenth Amendment's equal protection clause because they disproportionately target blacks and Hispanics, Southern District Judge Shira Scheindlin held Monday.

In rulings the city immediately vowed to appeal, Scheindlin issued a preliminary injunction against stop-and-frisk encounters that violate the U.S. Constitution, ordered reforms of NYPD policies and practices, and appointed a monitor to oversee changes in the 35,000-officer department, a step dreaded by Mayor Michael Bloomberg and Police Commissioner Raymond Kelly.

"Whether through the use of a facially neutral policy applied in a discriminatory manner, or through express racial profiling, targeting young black or Hispanic men for stops based on the alleged criminal conduct of other young black or Hispanic men violates bedrock principles of equality," Scheindlin said.

She appointed as monitor Peter Zimroth, a partner at Arnold & Porter who served as the city's corporation counsel under Edward Koch from 1987 to 1989 and was once chief assistant district attorney in Manhattan.

The judge made her findings and issued a remedial order on the heels of a nine-week bench trial that ended in May and included testimony by individuals confronted by police, as well as statistical analyses of the 4.4 million stops conducted by the NYPD during a class period beginning in 2004. More than 80 percent of those stops involved blacks or Hispanics.

At best, the judge said, the NYPD "has repeatedly turned a blind eye to clear evidence of unconstitutional stops and frisks." She added that analysis of an NYPD database that tracks encounters showed that, at a bare minimum, more than 200,000 stops were made without reasonable suspicion.

"The NYPD's practice of making stops that lack individualized reasonable suspicion has been so pervasive and persistent as to become not only a part of the NYPD's standard operating procedure, but a fact of life in some New York City neighborhoods," she said.

Scheindlin rejected the defense that officers were only stopping blacks and Hispanics based on reports of criminal activity, demographics and suspect descriptions.

"The City and its highest officials believe that blacks and Hispanics should be stopped at the same rate as their proportion of the local criminal suspect population," Scheindlin said in Floyd v. City of New York, 08 Civ. 1034. "But this reasoning is flawed because the stopped population is overwhelmingly innocent—not criminal."

Plaintiffs and their lawyers at the Center for Constitutional Rights (CCR), Beldock Levine & Hoffman and Covington & Burling celebrated the decision at a packed press conference on Monday at CCR headquarters in Greenwich Village.

Darius Charney of CCR called the ruling a "historic and long overdue victory."

"The NYPD engaged in a widespread pattern and practice of unconstitutional suspicionless stops and systematic racial profiling," Charney said.

At the same time, Bloomberg, Kelly and Corporation Counsel Michael Cardozo held a City Hall news conference where Kelly said he found it "offensive" that Scheindlin found the NYPD racially profiles.

Said Bloomberg, "Our police officers follow the law and follow the crime… They don't worry if their work doesn't match up to the census data."

Cardozo said the city would ask the U.S. Court of Appeals for the Second Circuit for a stay pending appeal and would go to the U.S. Supreme Court if necessary to correct what he called multiple "fundamental errors" in Scheindlin's decision.

In addition to her 198-page opinion finding the city liable under 42 U.S.C. §1983, the judge issued remedial opinions covering Floyd and a second case, Ligon v. City of New York, 12 Civ. 2274, where she issued a preliminary injunction on Jan. 13 on the practice of stopping people without reasonable suspicion outside of privately owned buildings in the Bronx whose landlords allows police patrols under the Trespass Affidavit Program (TAP).

See a timeline of Key Developments in Stop-and-Frisk Cases.

The injunction in Ligon had been stayed pending trial and the overlapping remedies in Floyd. Citing overlap between the two cases, Zimroth's appointment covers both.

Remedial Measures

The appointment of a monitor was endorsed by the U.S. Justice Department in June (NYLJ, June 14). Zimroth is charged with developing a set of reforms to improve training, supervision and discipline of officers, report regularly to the court, and issue public reports every six months. The city will pay for his services and any staff or experts he hires to do the job.

The judge said the monitor would have "a distinct function from the other oversight entities" identified by the city, including NYPD's Internal Affairs Bureau, the Civilian Complaint Review Board, federal prosecutors and "the public electorate."

Among the remedial measures, Scheindlin endorsed the use of police wearing body cameras to make video recordings of stops. She directed the NYPD to set up a pilot project in which body cameras would be worn by officers in one precinct per borough for one year. Another remedial measure is to give a card to a person stopped stating the specific reasons for the encounter.

The judge's order directs the parties to spend the next six to nine months working with a yet-to-be named "facilitator" in a joint remedial process to come up with supplemental measures in addition to the reforms she had ordered. The facilitator also will be charged with setting up town hall meetings in each of the five boroughs to inform, and take the pulse of, the community before reporting back to Zimroth and the judge.

The remedial opinion details specifically what is and is not permissible in a police encounter, which the judge defined as "a stop whenever a reasonable person would not feel free to disregard the officer and walk away."

Zimroth said in a statement, "I intend to work cooperatively with all the parties and other stakeholders in New York. I have lived in New York City almost all my life, and I have great respect for the NYPD and the brave men and women who serve to protect us. I have worked closely with the NYPD in all my earlier public service positions."

He continued, "I have always recognized that effective law enforcement is imperative as is the need for law enforcement officials to act within the Constitution and laws. I believe that, with the cooperation of the NYPD and others, procedures can be designed and implemented to meet the requirements of the Court's order while at the same time ensuring effective policing."

Mayor Michael Bloomberg holds a news conference at City Hall on Monday as Police Commissioner Ray Kelly looks on (AP/ Seth Wenig). Below, Darius Charney of the Center for Constitutional Rights holds a news conference about the same time at his group's Greenwich Village headquarters (Reuters/Eduardo Munoz).

During trial, Kelly criticized the judge in a newspaper interview, saying that, based on her earlier stop-and-frisk rulings, Scheindlin had prejudged the case.

Bloomberg continued along the same vein Monday, saying, "It was pretty clear from the start which way it would turn out. Throughout the case, we didn't feel we were getting a fair trial."

Both during and after trial, the police commissioner and mayor were busy trying to beat back two City Council measures they say would impair the NYPD's crime fighting ability and cost lives: one would add the NYPD to the list of city agencies that have an inspector general in the city's Department of Investigations and a second would allow for suit in state court challenging stop and frisk.

Scheindlin heard testimony from 12 plaintiffs who claimed 19 unconstitutional encounters with police, experts who analyzed a database of forms documenting police stops, and officers who claimed they were pressured to stop a certain number of people, including one who said he was told by a supervisor to stop the "right people"—young blacks and Hispanics.

'Two Different Policies'

Scheindlin also heard from NYPD brass who defended the crime-fighting efforts and insisted that stop-and-frisk practices do not disproportionately target minorities. Recently retired Chief of Department Joseph Esposito was among those who testified (NYLJ, April 10).

"The NYPD maintains two different policies related to racial profiling in the practice of stop and frisk: a written policy that prohibits racial profiling and requires reasonable suspicion for a stop—and another, unwritten policy that encourages officers to focus their reasonable-suspicion-based stops on 'the right people, the right time, the right location,'" the judge said.

The city vehemently objected to claims of racial profiling at trial, with the Law Department's Heidi Grossman insisting in closing arguments that stops were tailored to the crime rate and demographics of neighborhoods and crime suspect reports, and the police were devoted to keeping people safe, "especially in minority neighborhoods."

Evidence from the 12 individual plaintiffs in Floyd, she said, showed their stops were made "with no racial motivation whatsoever (NYLJ, May 21).

But based on the evidence, Scheindlin said, "I find that the NYPD's policy of targeting 'the right people' encourages the disproportionate stopping of the members of any racial group that is heavily represented in the NYPD's crime suspect data.

"This is an indirect form of racial profiling," she said. "In practice, it leads NYPD officers to stop blacks and Hispanics who would not have been stopped if they were white."

She also found credible the testimony of state Senator Eric Adams, a former NYPD captain. Adams reported that, at a July 2010 meeting, Kelly frankly conceded that his department focused on young blacks and Hispanics "because he wanted to instill fear in them, every time they leave their home, they could be stopped by police," and should therefore leave their guns at home.

In this context, the judge cited Bloomberg's statement in April that stop and frisk is necessary "to deter people from carrying guns." Kelly's comments at the meeting with Adams "simply made explicit what is readily inferable from the City's public positions," she said.

The judge said the NYPD has been aware for over a decade of a "systematic failure by officers to record justifications for stops in their memo books," and the NYPD has no meaningful way to audit paperwork on stops to ensure their constitutionality.

These issues are addressed in her remedial opinion, along with the failure to adequately supervise and adequately train officers on what is permissible under the Fourth Amendment as interpreted by the landmark U.S. Supreme Court case of Terry v. Ohio, 392 U.S. 1 (1968).

Another problem the judge addressed was a failure of the NYPD to discipline officers.

The recommendations of the Civilian Complaint Review Board to pursue complaints against officers for unconstitutional stops and frisks, she said, fall on deaf ears at the NYPD's Department Advocate's Office, which almost always declines to bring charges on the evidentiary theory that it is the officer's word against the complainant's.

Under Terry and its progeny, an officer can only stop and question a person if they have reasonable suspicion they have been, are in the process of, or are about to be engaged in criminal activity. Officers are only allowed to frisk someone if they reasonably suspect the individual may be armed and dangerous.

Scheindlin said "the NYPD's training on the identification of weapons invites unjustified stops based on 'suspicious bulges' that are not in fact suspicious, and constitutionally unjustified frisks and searches based on objects that officers cannot reasonably suspect to be weapons."

And NYPD training "regarding racial profiling does not clearly define the difference between the constitutionally permissible use of race based on a specific, reliable suspect description, and the constitutionally impermissible targeting of racially defined groups for stops in general," she said.

After making findings of fact and law on each of the 19 stops—aspects of 14 stop encounters had constitutional problems—the judge said the plaintiffs had shown that "senior officials in the City and the NYPD were deliberately indifferent to officers conducting unconstitutional stops and frisks" and that "practices resulting in unconstitutional stops and frisks were sufficiently widespread that they had the force of law," either of which was enough for a finding of municipal liability under 42 U.S.C. §1983 as interpreted by the U.S. Supreme Court in Monell v. New York City Department of Social Services, 436 U.S. 658 (1978).

Monell liability also was found under the equal protection clause because of the "policy of indirect racial profiling" and the deliberate indifference of senior officials in the city and the NYPD to "the intentionally discriminatory application of stop and frisk at the managerial and officer levels."