A gambling man could do worse than to put his money on civil-rights attorneys winning a Federal class-action suit that charges the NYPD stop-and-frisk program has violated the constitutional rights of hundreds of thousands of New Yorkers.
Following closing arguments May 20 in Floyd v. City of New York, U.S. District Judge Shira A. Scheindlin said she would issue a “prompt decision,” although she added that she never specifies what “prompt” means.
However, in another case she is hearing that involves a stop-and-frisk-type program in privately-owned apartment buildings, she ruled in January that the lawyers for people who say they were stopped without cause have a “substantial likelihood” of victory.
Based on this, she issued a preliminary injunction telling police to refrain from stopping suspected trespassers unless the officers could articulate reasonable suspicion that their target is armed or involved in a crime, the threshold set by the U.S. Supreme Court to justify such stops. She stayed the injunction while the city appealed her decision to issue it.
In that case, Ligon v. City of New York, Judge Scheindlin called the trespass stops “a longstanding unconstitutional practice.” She said she expected to order remedies in training and supervision of police officers in conjunction with the Floyd case.
Among the remedies sought by the Floyd plaintiffs is an outside monitor to oversee the way the department uses stop-and-frisk. Plaintiff’s attorney Jonathan Moore said the monitor needs “sufficient power” to ensure that any changes made to police policies are actually implemented.
City: Monitor a Hindrance
Heidi Grossman, the city’s lead attorney, said no monitor was necessary. She said a monitor would be expensive, and would bury officers so deep in paperwork that “they would not be able to carry out their jobs.”
Since the suit was filed, she said, the NYPD has developed its own methods of policing stop-and-frisk, as well as improving training and requiring that narrative reports accompany the standard UF-250 checklist officers fill out for stops.
Mr. Moore said in his summation that supervisors of the officers who made contested stops said they did not review stop-and-frisk reports with their cops, although top commanders testified that looking at the report form alone is not enough to determine whether a stop-and-frisk was done legally.
“They do not review the stop-and-frisk activity in any substantive way,” Mr. Moore said. Although the department has been aware of complaints since 1999, he said, “we’ve seen the NYPD can’t address this problem on its own.”
‘Woeful on Documentation’
“Documentation of stops is woefully inadequate,” said Darius Charney of the Center for Constitutional Rights, the lead attorney for the plaintiffs. “Supervisory review is woefully inadequate
...What happens on paper and what happens in reality is not the same thing.”
Judge Scheindlin said she was “intrigued” by another remedy suggested not by the plaintiffs but by an expert witness: body cameras worn by police officers. “It struck me when he said it, that if the officer knew it was being recorded on video, it would solve a lot of problems,” she said. “Everybody would know exactly what occurred.”
Stop-and-frisk has become a leading issue in the mayoral race, with Democratic candidates calling for it to be scaled back. Stops rose each year under Mayor Bloomberg, reaching a high of 685,000 in 2011, before falling amid increasing criticism in 2012.
Mr. Bloomberg has called aggressive stop-and-frisk a cornerstone of the policies that resulted in the dizzying drop in reported crime during his administration, going so far as to claim in a speech at Police Headquarters that police have saved 7,364 lives since he took office in 2002, based on the murder rate compared to the previous decade.
‘Can’t Prove Quota Link’
The thrust of Ms. Grossman’s arguments was that the plaintiffs had simply failed to prove their case. “They can’t prove that a single stop was the result of a quota,” she said in response to claims that the disproportionate number of blacks and Latinos stopped—87 percent—stemmed from racial profiling driven by superior officers’ productivity demands rather than the reasonable-suspicion standard.
She said the plaintiffs had provided only two police officers “out of 35,000” who claimed their bosses insisted on quotas and that cops were penalized for not meeting goals.
“The NYPD cares that officers are addressing crime conditions,” Ms. Grossman said. “They measure this not by the number of stops or 250s but by reported crimes.”
Mr. Moore said the issue was not about quotas, but about pressure. He cited studies by criminologists Eli B. Silverman and John Eterno, a retired NYPD Captain, “that demonstrate increasing pressure to do stops, particularly in the Bloomberg-Kelly era.” Mr. Moore said the studies also found that “the rising pressure for stops was accompanied by decreasing pressure to maintain the Constitution.”
‘A High Error Rate’
Judge Scheindlin sharply questioned both city and plaintiffs’ attorneys seeking clarification of certain points. She asked Ms. Grossman to explain why only about 10 percent of the stops resulted in an arrest or a summons. “That’s a high error rate,” she said. Critics of the way the NYPD runs the program say it shows officers are making stops without reasonable suspicion, or are insufficiently trained in deciding what reasonable suspicion is.
“The hit rate doesn’t impact whether an officer has reasonable suspicion,” Ms. Grossman replied, saying that in some cases police intervention may have headed off a crime before it could be committed.
Both sides devoted substantial time to the testimony by 10 men and one woman who said they were stopped because of their race or ethnicity. Ms. Grossman attacked their stories, pointing out inconsistencies told over a period of as many as seven years of dueling statements, depositions and testimony provided by the subjects of the stops and the police officers who stopped them. “Their stories are not reliable,” she said of the plaintiffs.
“The city has tried to attack the credibility of these witnesses by concentrating on small inconsistencies,” plaintiffs’ attorney Gretchen Hoff Varner said. Instead, she concentrated on instances of officers who changed their stories between report, deposition and testimony and whose assertions were contradicted by evidence.
Battle of ‘The Bulge’
She also questioned some of the check-off possibilities on the 250 reports. “A suspicious bulge is so overly broad as to justify a stop of just about anyone.” And one officer testified that “ ‘high-crime area’ could encompass the entire borough of Queens.” She said the city’s contention that the people stopped could simply leave was ludicrous when they were backed up against the wall by armed police officers.
“No reasonable person would come to this court and say ‘don’t stop-and-frisk,’’’ said Mr. Moore. Instead, he said, he wanted to see “restoration of the balance between security and constitutional rights.”