Now that Southern District Judge Shira Scheindlin has issued her long-awaited stop-and-frisk decision in Floyd. v. City of New York, attention is quickly turning to the appeal process as people wonder how long it will take, how the court will rule, and how the next mayor will respond. Suddenly lost is the need for immediacy—a federal judge found widespread and systemic unconstitutional racial profiling and searches and seizures, and it is imperative that remedies immediately be fashioned and implemented.
Scheindlin appreciated the urgent need for remedies. She ordered four: the appointment of a federal monitor to oversee reforms; revisions to policies and training materials and changes to documentation regarding stops-and-frisks; body-worn cameras in the precinct in each borough with the highest number of stops-and-frisks; and a joint remedial process involving community input. All take time to meaningfully put into practice, all will be the subject of the appeal, and all are at best possible solutions. The City Council's proposed solution, the Community Safety Act that creates an inspector general and clears a path toward racial profiling lawsuits, suffers from many of the same infirmities. The burning question is what is going to be done now, today?
Somehow missing all along in the stop-and-frisk conflagration is the one institutional entity that is specifically charged with monitoring the police and addressing the constitutionality of police behavior on a daily basis—the New York City Criminal Court. It is true that the overwhelming majority of stops-and-frisks do not yield an arrest or even a summons, and as a result, no case for the Criminal Court to evaluate. Nevertheless, there are about 1,000 arrests each day in New York City and those cases present ample opportunities for Criminal Court judges to analyze police behavior on a regular and sustained basis.
Go into any Criminal Court in New York City and observe arraignments, the accused's initial appearance before a judge. The court's singular focus on guilty pleas is evident from the first words most judges typically utter, "Is there an offer?" It is actually a very effective question. Fifty percent of all cases end at arraignment and 50 percent of those dispositions are the result of guilty pleas. Arraignment shifts are tallied and evaluated based on the number of people arraigned and the number of pleas taken. The takeaway is clear—the arraignment is a time to "dispose" of cases, not a critical and necessary moment to consider the constitutionality of the arrest.
The court's seeming indifference to the legality of the underlying police conduct is especially disturbing when viewed in light of Scheindlin's finding of racial profiling; her conclusion that hundreds of thousands of people had been stopped and frisked primarily, if not exclusively, on account of their race. Keep that reality in mind as you venture back into the Criminal Court and observe a never ending throng of black and brown men brought before the court. Even as the Criminal Court is clogged with quality-of-life arrests like riding a bike on the sidewalk, taking up two seats on the subway, and minor marijuana possession, those haled into court are predominantly and disproportionately people of color. If racial profiling and equal protection were cause for concern in stops-and-frisks, so, too, are those issues that must be addressed in the larger, but related, context of who gets arrested and why.
The NYPD form UF-250, the so-called stop-and-frisk report, was at the center of the Floyd trial. Scheindlin found the form wanting since it called only for police officers to check a box as a way of documenting their bases for stops, and she directed that the form be revised to include a narrative section. This new UF-250 should be made a part of every applicable arraignment. Similarly, the court should require the production of other forms, such as activity logs, that were discussed in detail at the trial. Perhaps if there had been this kind of serious attention paid to the alleged basis for the stop, constitutional violations would have been flagged and addressed long before federal court intervention was necessary.
The Criminal Court's opportunity to address stops-and-frisks does not end at arraignment. More ongoing cases should lead to pretrial suppression hearings. At present, these hearings, where police officers are called to testify under oath about the probable cause to arrest, are few and far between. In fact, defendants are often threatened by judges and prosecutors with the prospect of higher plea offers and sentences if they assert their right to a suppression hearing. Yet suppression hearings were exactly what the Supreme Court had in mind more than 50 years ago when it established the exclusionary rule for Fourth Amendment violations. The court determined that exclusion, or suppression, of evidence was necessary in order to deter police officers from performing unlawful searches and seizures. As then-Chief Justice Warren Burger wrote in a related context, "suppression of evidence in these [cases is] imperative to deter law enforcement authorities from using improper methods to obtain evidence," and "law enforcement…would [indeed] be deterred… if…evidence was suppressed often enough." As it stands today, a police officer could make thousands of stops-and-frisks and never be required to testify at a suppression hearing. It is no wonder that stop-and-frisk exploded into the unchecked practice that it did. No one was regularly scrutinizing police behavior.
Scheindlin exposed a constitutional crisis and her decision presents a historic opportunity, if not a mandate, for the Criminal Court to be re-imagined. Unlike a federal monitor, inspector general, or other proposed remedies, the Criminal Court could address the situation immediately. At arraignment, judges should demand to see all relevant police forms and inquire about the basis for the stop and arrest. Thereafter, judges should encourage pretrial suppression hearings with police officers testifying under oath and subject to cross- examination.
The capacity for the Criminal Court to make a difference is there. The question is whether that capacity is matched by the necessary will.
Steven Zeidman, a professor at the City University of New York Law School, serves on the Indigent Defense Organization Oversight Committee.