Floyd vs City of New York: NYPD's Controversial Stop and Frisk is On Trial

New York City's historic, nine-week long, stop-and-frisk trial, Floyd v. City of New York,  ended this week. Over the nine weeks, Judge Shira Scheindlin's courtroom in the Southern District of New York was filled with New Yorkers — activists, lawyers, community members, and press — listening to the story of NYPD's racially discriminatory stop-and-frisk practice, and its impact on the lives of the City's communities of color. The lawsuit challenged the NYPD's use of stop and frisk as a violation of the Fourteenth Amendment's Equal Protection Clause because it is racially discriminatory and as a violation of the Fourth Amendment's guarantee to be free from unreasonable searches and seizures.

The practice of "stop and frisk," sometimes called "stop question and frisk" or a "Terry stop" (after a Supreme Court case addressing the subject, Terry v. Ohio), is the police practice of stopping individuals suspected of criminal activity in order to glean more information about whether the officer's suspicion is correct. But, as the Supreme Court decided in 1968, the practice is only constitutional when police have a "reasonable suspicion" "that criminal activity may be afoot." The plaintiffs in Floyd contended that the NYPD's use of stop and frisk was not based on a reasonable suspicion. Rather, it was driven by the officers' need to meet department quotas and targeted "the right people at the right time in the right location." Who were the "right people ...?" "male blacks 14-21."  

The City defended the practice by arguing that it was an effective crime-fighting tool, citing the reduced crime rates over the past several years. But, as presiding Judge Scheindlin pointed out to them, "one issue that is not present [in the trial] is the effectiveness of this policy .... This Court is only here to judge the constitutionality. Whether [the policy] is good or bad is of no interest." Moreover, it is unconstitutional to stop and frisk someone simply for being in a so-called high-crime area.

It will likely be a few months before Judge Scheindlin issues her decision — and a remedy that would accompany judgment in plaintiffs' favor. But the evidence paints an appalling picture of government-sanctioned racial targeting in one of the most diverse cities in the world, and the use of race as a proxy for criminal activity. The statistics presented at the trial revealed that "racial composition of the neighborhood is a statistically significant predictor of stop rates." Black and Hispanics make of 84% of those stopped — even after adjusting for local crime rates. In the 88th Precinct, which covers a neighborhood that is 43% black, 90% of the stops made by officers were of black individuals. Moreover, undermining the premise that criminal activity was reasonably suspected, only 6% of stops led to arrests, 2% of stops resulted in contraband seizures, and only one-tenth of a percent led to seizures of guns.

The personal stories behind these statistics are even more compelling. They reveal individual realities of walking the streets in one's own neighborhood in fear of the very people charged with protecting. Devon Almonor was just 13 when he was stopped. He was on his way home from dropping a friend off at the bus station. And lead plaintiff, David Floyd, a medical student, was also walking home when he was stopped. He described being "frustrated, humiliated."

Aggressive use of stop and frisk creates a disconnect between the police and communities of color. People of color expect to be harassed, feel like they are living under siege, and are unable to fully engage with their communities for fear of being stopped while outside. The practice operates to further marginalize these communities, in an already segregated city, by literally keeping them indoors. 

Of course, recognition that the NYPD's practice is unconstitutional would only be a first step in changing the practice. The Floyd plaintiffs are asking the court to appoint an independent monitor to ensure that the NYPD complies with the Constitution. True systemic change might take years to realize. But, in addition to the NYPD's unconstitutional stop and frisk practices, the trial evidenced seeds of hope embedded in the Department itself. One such seed is plaintiffs' witness, whistle blower Officer Pedro Serrano. Officer Serrano testified that he believed his supervisors were asking him to "do something illegal." Breaking down in tears, Officer Serrano testified that he was taking part in the lawsuit because "as a Hispanic, walking in the Bronx, I have been stopped many times. It's not a good feeling. I promised as an officer I would respect everyone to my abilities. I just want to do the right thing."

If there are more Officer Serranos out there, change just might be possible. 

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Jill Maxwell

public interest/civil rights lawyer particularly interested in women's rights, constitutional law, and the role of courts in social change. nothing i write on this site is legal advice.

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