In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department’s stop and frisk policies unconstitutional. (Recall Judge Scheindlin enjoined the NYPD’s stop and frisk practices in the Bronx earlier this year).
In the closely watched case of Floyd v. City of New York, Judge Scheidlin’s opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it begins with epigraphs, has a table of contents, and has 783 footnotes. It also – – – helpfully – – – has an “Executive Summary” of about 10 pages. Here is an excerpt:
Plaintiffs assert that the City, and its agent the NYPD, violated both the FourthAmendment and the Equal Protection Clause of the Fourteenth Amendment of the United StatesConstitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the allegedconstitutional injury.” “Official municipal policy includes the decisions of a government’slawmakers, the acts of its policymaking officials, and practices so persistent and widespread asto practically have the force of law.”
The Fourth Amendment protects all individuals against unreasonable searches orseizures. . . .
The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race.Intentional discrimination can be proved in several ways, two of which are relevant here. Aplaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionallydiscriminatory manner; or (2) that a law or policy expressly classifies persons on the basis ofrace, and that the classification does not survive strict scrutiny. Because there is rarely directproof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impactof the official action — whether it bears more heavily on one race than another — may providean important starting point.”
The following facts, discussed in greater detail below, are uncontested:
Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
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 wasfound after 1.5% of these frisks. In other words, in 98.5% of the 2.3 millionfrisks, no weapon was found.
8% of all stops led to a search into the stopped person’s clothing, ostensibly basedon 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 thesesearches, the felt object was in fact a weapon. 91% of the time, it was not. In14% of these searches, the felt object was in fact contraband. 86% of the time itwas not.
6% of all stops resulted in an arrest, and 6% resulted in a summons. Theremaining 88% of the 4.4 million stops resulted in no further law enforcementaction.
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 officerrecorded using force. The number for whites was 17%.
Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona. She solves the problem firmly on the side of Equal Protection:
The City and the NYPD’s highest officials alsocontinue to endorse the unsupportable position that racial profiling cannotexist provided that a stop is based on reasonable suspicion. This position is fundamentally inconsistentwith the law of equal protection and represents a particularly disconcertingmanifestation of indifference. As I have emphasized throughout this section,the Constitution “prohibits selectiveenforcement of the law based on considerationssuch as race.” Thus, plaintiffs’ racialdiscrimination claim does not depend on proof that stops of blacks and Hispanicsare suspicionless. A police department that has a practice of targeting blacksand Hispanics for pedestrian stops cannot defend itself by showing that all thestopped pedestrians were displaying suspicious behavior. Indeed, the targetingof certain races within the universe of suspicious individuals isespecially insidious, because it will increase the likelihood of furtherenforcement actions against members of those races as compared to other races,which will then increase their representation in crime statistics. Given theNYPD’s policy of basing stops on crime data, these races may then be subjectedto even more stops and enforcement, resulting in a self-perpetuating cycle.
The Equal Protection Clause’s prohibition onselective enforcement means that suspicious blacks and Hispanics may not betreated differently by the police than equally suspicious whites. Individualsof all races engage in suspicious behavior and break the law. Equal protectionguarantees that similarly situated individuals of these races will be held toaccount equally.
This important, scholarly, and thorough opinion is sure to set a standard of judicial craft. It is also sure to be appealed by the City of New York.
RR