Constitutional Law Criminal Law Litigation

Plain Statistics and Common Sense Doomed “Stop and Frisk”

In a landmark decision issued this morning, Southern District of New York Judge Shira Scheindlin struck down as “unconstitutional as applied” the NYPD’s “Stop and Frisk” policy. The decision is the culmination of a nearly four month non-jury trial before Judge Scheindlin in which both sides relied upon statistics and anecdotal evidence to try and prove their points. Because the plaintiffs were not seeking money damages and only sought injunctive relief, the City had no right to a trial by jury so Judge Scheindlin had to determine the facts as well as apply the law.

The decision in Floyd v. City of New Yorkis a sweeping two-parter. The first part (198 pages long) explains what the court heard and saw at trial and why she held the City liable for violating the constitutional rights of the dozen or so named plaintiffs and all others similarly situated. The second part (39 pages long) sets forth the remedies proposed by the court which include imposition of a Federal Monitor to oversee NYPD practices and policy. Both decisions are available for free download from the court’s website

I can already anticipate that folks who will not take the time to read and digest the whole opinion will make public outcries railing against an “activist judiciary” or a judge in her ivory tower “tying the police officer’s hands” or even suggesting that she should “ride around in a police car for a tour to know what it means to be a cop.” But those naysayers will miss the essential point of the decision: “Stop and Frisk” can be a valid and important policing tool. But it has to be Constitutionally applied otherwise it violates the Equal Protection Clause of the Fourteenth Amendment and the right to be free from unreasonable search and seizures contained in our country’s Fourth Amendment. She did not strike down the policy. She struck down how the NYPD was employing the policy: by stopping disproportionately high numbers of Black and Latinos. And by subjecting Blacks and Latinos to more invasive searches than White males stopped for the same reasons. Minorities were also arrested for certain infractions while Whites were given summonses for the same infractions.

Early on her decision Judge Scheindlin reminds us of a core principle to our criminal justice system:

Many police practices may be useful for fighting crime — preventive detention or coerced confessions, for example — but because they are unconstitutional they cannot be used, no matter how effective. The enshrinement of constitutional rights necessarily takes certain policy choices off the table.

Yes, a police state is a safe state. Curfews, unlawful detentions, routine searches of homes, beatings, etc. would all make the City safer, but long ago, this country decided that personal freedoms including the right to be free from government intrusion not supported by probable cause trumped the need for a police state.

FlagBut in the end it was the City’s own statements and admission as well as the undisputed statistics used at the trial that sank NYPD’s stop-and-frisk methods. The City used crime data to support racial profiling. So if in a particular precinct there was a housing project where crime was committed by predominantly by young male blacks, the precinct captain issued an order directing stop and frisk of the “right people” – specifically defined as “young male blacks, ages 14-21.” During the course of the litigation, Police Commissioner Ray Kelly issued a statement that part of the reason this group was also targeted was to “instill fear in them of being stopped.” These admissions of racial profiling meant that the policy was race-based and therefore subject to the highest level of court overview – “Strict scrutiny.” In order to survive strict scrutiny, the race-based policy must promote a compelling State interest that cannot be satisfied by a race-neutral policy. So this was essentially doomed from the start. What nailed the coffin shut was that the statistics showed two things (1) that the policy was wholly ineffective in catching criminals in general and (2)whites who were stopped were as likely if not more likely to have been committing crimes than minorities.

This is what the stats bore out:
(1) The NYPD carries out more stops where there are more black and Hispanic residents, even when other relevant variables are held constant. The racial composition of a precinct or census tract predicts the stop rate above and beyond the crime rate.

(2) Blacks and Hispanics are more likely than whites to be
stopped within precincts and census tracts, even after controlling for other relevant variables. This is so even in areas with low crime rates, racially heterogenous populations, or predominately white populations.

(3) For the period 2004 through 2009, when any law
enforcement action was taken following a stop, blacks were 30% more likely to be arrested (as opposed to receiving a summons) than whites, for the same suspected crime.

(4) For the period 2004 through 2009, after controlling for suspected crime and precinct characteristics, blacks who
were stopped were about 14% more likely — and Hispanics 9% more likely — than whites to be subjected to the use of force.

(5) For the period 2004 through 2009, all else being equal, the
the odds of a stop resulting in any further enforcement action were 8% lower if the person stopped was black than if the person stopped was white.

So the policy raged on even though stops of whites (who were stopped less) resulted in more law enforcement action. And it raged on even though minorities were stopped more frequently even in areas where they were less populous. The statistics also show that the process stinks for catching criminals and mostly (by far) results in innocent people being stopped and frisked in the middle of the street for no good reason. The statistics are telling and hard to ignore:

(a) Between January 2004 and June 2012, the NYPD conducted over 4.4 million “Stop and Frisk” stops:
(b) 52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
(c) 8% of all stops led to a search into the stopped person’s clothing, ostensibly based on 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 these searches, the felt object was in fact a weapon. 91% of the time, it was not.
(d) In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
(e) 6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
(f) 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.
even though in 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
(g) In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
(h)Weapons were seized in 1.0% of the stops of blacks, 1.1% of the stops of Hispanics, and 1.4% of the stops of whites.
(i) Contraband other than weapons was seized in 1.8% of the stops of blacks, 1.7% of the stops of Hispanics, and 2.3% of the stops of whites.
(j)Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.

So as the program raged on, more cops found no need to even make up a reason for the stop and the racial profiling continued even though whites were more often found in possession of guns and contraband. The court also noted that these statistics were based on stops that were recorded in a form called a UF250 which is written only with the officer’s side of the story.

Judge Scheindlin did not say that the NYPD could not target enforcement in high crime areas or even use crime data to support a stop and frisk policy. She stated that the manner in which the NYPD supported its policy was unconstitutional as it focused only on crime data. She summarized the difference between both sides’ positions and offered her opinion on which one was less racially biased:

I reject the testimony of the City’s experts that the race of crime suspects is the appropriate benchmark for measuring
racial bias in stops. 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. But this
reasoning is flawed because the stopped population is overwhelmingly innocent — not criminal. There is no basis for assuming that an innocent population shares the same characteristics as the
criminal suspect population in the same area. Instead, I conclude that the benchmark used by plaintiffs’ expert — a combination of local population demographics and local crime rates (to
account for police deployment) is the most sensible.

Again, the court took great pains to point out that there is a right way to do this – but the statistics showed that the results did not justify the continuation of the policy and instead showed the policy was unconstitutional. How can a policy be upheld if it fails to do what it is supposed to do (find criminals and stop crime) over 90% of the time? How can a policy be upheld if it is racially-biased yet the statistics show that the races it targets are behaving less criminally than White population stopped under the same policy? It was this willful blindness to their own statistics that resulted in the court finding the City liable for “deliberate indifference” to the unconstitutional application and impact of its stop and frisk policy.

Throughout the decision, Judge Scheindlin makes great use of powerful quotes on race, racial profiling and unconstitutional searches and seizures. She opens her opinion with a trio of quotes spanning 60 years of Federal jurisprudence that set the stage for her decision and which did not bode well for the Bloomberg Administration’s policy:

Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.
— Railway Express Agency v. People of State of New York, 336 U.S.
106, 112–13 (1949) (Jackson, J., concurring)

It is simply fantastic to urge that [a frisk] performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’
— Terry v. Ohio, 392 U.S. 1, 16–17 (1968)

Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.
— United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.)

But she concludes her opinion with a more surprising yet apt choice of quote, taking three sentences from NY Times reporter Charles Blow’s article on the Trayvon Martin case: “The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and . . . neighborhood watch – regardless of the collateral damage done to the majority of innocents. It’s like burning down a house to rid it of mice.” (emphasis added by me). Here, the policy was doomed by the evidence and of the course, the Constitution.

In deciding how to best remedy the infirmities contained in the City’s stop-and-frisk policy, the court reached back to two time-honored judicial tools used to correct municipally-wide Constitutional wrongs: the injunction and the monitor. Recognizing that sweeping reforms of how the NYPD must conduct itself will take time and oversight, the court for now set out a guideline for what changes are necessary and then chose Peter Zimroth, a former Corporation Counsel of the City of New York to oversee implementation of specific reforms to reach the goals set by the court.

Basically the court first requires the NYPD to stop using “stop and frisk” unconstitutionally. Before an NYPD officer can stop an individual,an officer must have individualized, reasonable suspicion that the person stopped has committed, is committing, or is about to commit a crime. The officer must be able to articulate facts establishing a minimal level of objective justification for the stop. “Furtive movements” are an insufficient basis for a stop if the officer cannot articulate anything more specific about the suspicious nature of the movement. The same is true of merely being present in a “high crime area.” Moreover, no person may be stopped solely because he matches a vague or generalized description — such as young black male 18 to 24 — without further detail or indicia of reliability. These requirements will sound basic and obvious to practitioners of criminal law as they merely outline what is already required by Terry v. Ohio and its progeny, but they will also equally resonate as having been thrown out the window under stop and frisk by the same practitioners.

To move to a frisk after a stop, the police officer “must reasonably suspect that the person stopped is armed and dangerous. The purpose of a frisk is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence. Thus, the frisk must be strictly limited to whatever is necessary to uncover weapons that could harm the officer or others nearby. When an officer lawfully pats down a suspect’s outer clothing and feels
an object whose contour or mass makes its identity as contraband immediately apparent, the officer may seize the contraband. If an officer reasonably suspects that a felt object in the
clothing of a suspect is a weapon, then the officer may take whatever action is necessary to examine the object and protect himself, including removing the object from the clothing of the
stopped person.”

The court next requires the NYPD to revise its policies and training regarding racial profiling to “make clear that targeting ‘the right people’ for stops, as described in the Liability
Opinion, is a form of racial profiling and violates the Constitution: “Racially defined groups may not be targeted for stops in general simply because they appear more frequently in local
crime suspect data. Race may only be considered where the stop is based on a specific and reliable suspect description. When an officer carries out a stop based on reasonable suspicion
that a person fits such a description, the officer may consider the race of the suspect, just as the officer may consider the suspect’s height or hair color. When a stop is not based on a specific
suspect description, however, race may not be either a motivation or a justification for the stop. In particular, officers must cease the targeting of young black and Hispanic males for stops
based on the appearance of these groups in crime complaints.”
Wow!! Again, this requirement sounds obvious but in one fell swoop Judge Scheindlin changes the day-to-day lives and experience of young Black and Hispanic men in the Big Apple.

Third, the court recognized that “performance goals” may have merit if constitutionally applied so she did not strike them down immediately but left it for the monitor to implement necessary reform in this area.

In choosing Zimroth to monitor and implement the sweeping reforms necessary to bring the NYPD in compliance with the Constitution, Judge Scheindlin chose someone whose credentials are beyond reproach. In addition to leading the Corp Counsel’s office, including for the last part of my tenure there, Zimorth is a current partner at Arnold & Porter; a former Chief Assistant District
Attorney of New York County; a graduate of Columbia University and Yale Law School — where he served as Editor in Chief of the Yale Law Journal; a law clerk on the Supreme Court of the
United States; and a former Assistant United States Attorney. Mr. Zimroth has also been appointed to many positions in public service. The Chief Judge of the New York Court of Appeals appointed him as one of three directors of New York’s Capital Defender Office. He has also served on the Mayor’s Committee on the Judiciary, and on the boards of two schools for children with special needs. He has been a member of the House of Delegates of the American Bar Association, the Executive Committee of the New York City Bar Association, and the Board of Directors of the Legal Aid Society. So he brings balance and wealth of public service and private sector experience to the job.

The City declined to participate in joint remediation during the trial, unlike other cities faced with similar lawsuits such as Philadelphia and dozens of other police departments with whom the US Department of Justice entered into consent decrees. Therefore, it must now take the court’s medicine.

Great credit should be given to Judge Scheindlin for a reasoned, well- explained, expertly documented decision which could have a tremendous impact on generations of citizens in NY for years to come. In ending decades of unconstitutional violations of young men’s basic freedom, the court put liberty once again at the forefront of the Constitution. I will close the article with another quote she chose for her opinion, this one from Union Pacific Railroad v. Botsford decided in 1891:

The right to physical liberty has long been at the core of our nation’s commitment to respecting the autonomy and dignity of each person: ‘No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and
unquestionable authority of law’

Can I get an “Amen!”?

2 replies on “Plain Statistics and Common Sense Doomed “Stop and Frisk””

1. If you had time to read and digest that opinion already I applaud your productivity.

2. Our Mayor/dictator’s reaction to the decision was grotesque. He succeeds in the near impossible task of making Rudy seem humble by comparison. This arrogant from the start (a football stadium on the west side of Manhattan ??!!!!) third term banana republic Mayor with billions in the bank and not a shred of humbleness was foaming at the mouth after this decision. To me he sounded like one of those Southern politicians in the 60s that would try to thumb their noses at the federal judiciary and literally wouldn’t be moved until we had to send in troops.

3. What enforcement mechanism does the Judge have ? Our arrogant mayor has apparently said he won’t change “tactics” and that things can change after Dec 31 when he’s gone. Can the Judge start to fine our fair city so it hurts ? Maybe then the city council won’t allow Mike to bully them anymore. What metrics will the Judge use to ensure compliance ? What are the actual PRACTICAL results of this case in terms of changing the behavior of the NYPD and measuring that change ?

Excellent question Carlos- maybe you do deserve to be Mayor. The judge imposed a Federal monitor to suggest revisions to police policy. Those can be converted to Federal Court orders. In the past such orders or consent decrees have been applied to reduce arraignment time and prison overcrowding. The actual metrics and guidelines to test whether the NYPD is complying with the court’s orders will be part of the monitor’s prerogatives. In the end, the court could indeed fine the City for non-compliance. The biggest concern right now is that the City will appeal and get a stay of the judge’s order pending appeal. So what happens in the interim while the appeal is pending? Will the City modify its policy somewhat or will they see that as an admission of liability? Will they go full speed ahead and continue stop and frisk? Hopefully the Second Circuit will expedite their decision on the City’s appeal so there can be some finality.

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