Behind the Outrageous Ruling in the Stop-and-Frisk Lawsuit

November 4, 2013 | Revolution Newspaper |


On October 31, a panel of appeals court judges stayed (put a halt to) a lower-court ruling that the NYPD's stop-and-frisk policy was unconstitutional as implemented. And the appeals court removed Judge Shira Scheindlin from the case—supposedly for bringing the case onto her calendar as a related case and for failing to maintain the appearance of impartiality. Mainstream news sources described this as "stunning." It was outrageous.

Exactly what did Judge Scheindlin do that sent the appeals court panel into such a frenzy? Judge Scheindlin has been hearing stop-and-frisk lawsuits for more than a decade. She presided over a settlement reached with city officials in 2003 in the case of Daniels, et al. v. the City of New York. The Center for Constitutional Rights, which represented the plaintiffs in that case, filed Floyd v. the City of New York, which is the case at issue in the recent rulings, and the judge took it on as a related case.

In this case, Judge Scheindlin heard data on the number of stops the NYPD made—more than four million in less than a decade; who was stopped—more than 85 percent of those stopped were Black or Latino; and the outcome of those stops—that more than 90 percent of those stopped were found to be doing nothing wrong. She reviewed what cops said about why they had stopped each person. She heard testimony and recordings from police officers who were told they had to stop certain numbers of people and were questioned when they didn't reach those numbers. And she heard a number of the plaintiffs talk about the circumstances of their encounters with the NYPD because of stop-and-frisk; about how they were stopped for bullshit reasons and subjected to abuse and disrespect by the cops who stopped them. In some cases, the plaintiffs spoke of being repeatedly stopped for nothing. One plaintiff had recorded one of the incidents when cops stopped him. This recording documented that the cops who stopped him called him "mutt" repeatedly and vowed to continue stopping him as long as he looked "crazy."

All this led to Judge Scheindlin ruling that the way the NYPD carried out its stop-and-frisk policy was unconstitutional, and she imposed legal remedies that amounted to mandating changes and putting in place a process to reform and adjust the policy. The changes included a pilot project to have a small number of cops wear body cameras that would record their interactions with people they stop. A monitor was also appointed to oversee the reform process.

This ruling didn't really solve the problem. Stop-and-frisk isn't a necessary policing tactic that the NYPD took too far. It's a policy based on racially profiling people, one that concentrates the way Black and Latino people, especially young people, have been criminalized and demonized in U.S. society. Under this policy, police stop people on the way to and from work or school. They accost people who are sitting on park benches relaxing, playing basketball in the park, visiting a friend or relative in a housing project or even entering or leaving their own buildings! Young Black men have told of being stopped on a regular basis, sometimes by the same cops. NYPD Chief Ray Kelly told three Black elected officials that he wanted every young Black and Latino male to fear that the NYPD would stop-and-frisk them whenever they left the house in the morning. (Kelly doesn't deny saying this. Instead he says it was taken out of context.) In 2011, the NYPD recorded 150,000 stops of Black males between the ages of 15 and 24—there are fewer than 150,000 Black males between those ages in New York City!

All this was brought into Judge Scheindlin's court by testimony in the case. And it is even worse than that. Some of the less than 10 percent of people stopped and frisked who do get arrested or ticketed were also not doing anything illegal. Cops routinely arrest Black and Latino youth for asking why they're being stopped and harassed. Cops also arrest people who don't have ID on them and keep them in jail till someone brings their ID.

All this combines to create a situation where Blacks and Latinos are treated like criminals, guilty until proven innocent, if they can survive to prove their innocence. Think about this—Black and Latino parents have to tell their children what they should do and shouldn't do to have the best chance at survival if they're confronted by a cop. "Remain calm," "Don't raise your voice," "Say yes sir and no sir," "Keep your hands in view at all times." And even as these parents give these instructions, they know their child might still end up arrested, brutalized or even murdered, even if they follow their guidance to the letter!

This is how stop-and-frisk impacts the lives of so many people every day, and the reform process Judge Scheindlin put in place falls short of getting to the heart of and ending what it brings down on people. As Carl Dix says: stop-and-frisk can't be mended—it needs to be ended!

Part of the backdrop for Judge Scheindlin's ruling, and possibly a factor in the way her decision was worded, is the way US courts, including the Supreme Court have shredded supposed constitutional protections against searches without probably cause. A big step in this shredding process was the 1968 case, Terry v. Ohio, where the Supreme Court ruled that what is supposed to be Fourth Amendment prohibition on unreasonable searches and seizures is not violated if a police officer stops a suspect on the street and frisks him or her without probable cause to arrest.

These rulings had the effect of further unleashing police to especially target people on the bottom of this society, especially Blacks and Latinos. The ruling in Terry v. Ohio was issued at the height of the 1960s where uprisings of Black people against their oppression sparked a broader revolutionary movement that rocked the whole system back on its heels.

But Judge Scheindlin's ruling did go too far for significant sections of the powers-that-be and for the three judges on the appeals court panel. They granted the city's request for a stay of Judge Scheindlin's ruling and the reform process she had set in place without referring to any of the arguments made by the city's attorneys or the counter-arguments of the plaintiffs' lawyers about why this stay was needed. And the panel went beyond that to remove the judge from the case for supposed improprieties in taking the case onto her calendar and for supposedly failing to avoid the appearance of bias against one side (NYC and the NYPD) in the case.

Here the appeals court panel referred to interviews the judge gave to the media. The backdrop for these interviews were continued public statements by NYPD and city officials complaining about anti-police bias on the part of the judge. They also said repeatedly that the judge didn't know enough about policing to be making decisions about stop-and-frisk. In response, Judge Scheindlin did interviews countering these charges of bias and lack of experience, but she didn't discuss the case she was currently hearing about stop-and-frisk. In an article entitled, "The Preposterous Removal of Judge Scheindlin," Jeffrey Toobin, a prominent legal commentator and author, said: "Scheindlin did nothing wrong. She talked about her judicial career and her history on the bench in a way that illuminated the work that all judges do. In my experience, it's a common complaint from judges that the public doesn't understand their work, and doesn't care about what they do. Scheindlin's conduct in this case exemplified the independent tradition of the judiciary. She should be honored for it, not scolded."

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