NYC 'Stop-And-Frisk' Appeal Could Hinge On Trial Statistics
By Pete Brush
Law360, New York (August 12, 2013, 8:48 PM ET) -- New York City leaders vowed to challenge a federal judge's use of statistics to bolster the finding that thousands of pat-downs violated the constitutional rights of minorities, but experts said that might not be enough to overturn Monday's decision calling for changes to the police department's anti-crime tactics.
A furious Mayor Michael Bloomberg, flanked by police Commissioner Ray Kelly and top city lawyer Michael A. Cardozo, vowed to appeal twin rulings issued by Manhattan Judge Shira A. Scheindlin, who found that the 35,000-member police force violated the Fourth Amendment and 14th Amendment rights of black and Hispanic plaintiffs by stopping them disproportionately.
Scheindlin took a statistical approach in her ruling, noting that of 4.4 million New York City Police Department stops between 2004 and 2012, blacks were stopped 52 percent of the time, Hispanics were stopped 31 percent of the time and whites were stopped a mere 10 percent of the time. She concluded that "at least 200,000 stops were made without reasonable suspicion."
But Bloomberg and Kelly called the decision "disturbing" and "offensive" to the country's most racially integrated police force and insisted that the proportions of blacks and Latinos stopped should come as no surprise given the fact that "97 percent of all shooting victims were black or Hispanic and reside in low-income neighborhoods."
"This is a dangerous decision made by a judge who, I think, doesn't know how policing works," Bloomberg said.
Moreover, as Cardozo put it, the statistics on which Judge Scheindlin had relied were "based in the pieces of paper" that police fill out — not the merits of individual cases brought to the court's attention.
That, according to Cardozo, could be seen as running afoul of precedent the Supreme Court set in its 1968 Terry v. Ohio decision, which sanctioned stop-and-frisk searches under the justification that they protect the lives of police officers.
The Terry decision and others have given guidance as to how courts should limit or allow stop-and-frisk tactics in the future, saying the precedent should be based in "the concrete factual circumstances of individual cases."
That line of attack could pose "a potential problem for this ruling," said Kavinoky Law Firm founder Darren Kavinoky, a criminal defense lawyer.
"People's rights aren't violated in the theoretical," he said. "People's rights are violated in the practical. Nobody is going to get rid of stop-and-frisk. The question that remains is whether New York is doing it right or wrong. It's a question of application. It's a question of execution."
But the twin rulings, which weighed in at well over 240 pages, delved beyond statistics, said Newman Ferrara LLP civil rights lawyer Randolph M. McLaughlin, who argued that testimony referenced in the rulings showed glimpses of a policy that bordered on the racist.
McLaughlin pointed to testimony cited by Scheindlin that said one NYDP officer "has even suggested that it is permissible to stop racially defined groups just to instill fear in them that they are subject to being stopped at any time for any reason."
Testimony like that, along with the stories of the named plaintiffs in the two companion classes — David Floyd and Jaenean Ligon — help pull the case from the esoteric world of numbers into reality, said McLaughlin and other experts.
"Essentially, you have a policy of terror. You have a policy of fear. The police are saying they want these people — even innocent civilians — to fear them," McLaughlin said. "That sounds like something out of slavery times. It sounds crazy."
New York County Lawyers' Association president Barbara Moses says that taken with the rest, the statistics support the conclusion that the NYPD's stop-and-frisk policies trample on the equal protection clause of the U.S. Constitution and have led to widespread violations of the Fourth Amendment. She characterizes the mayor's criticism of the judge as "troubling,"
"The city has every right to disagree with Judge Scheindlin's conclusions and to appeal her decision," she said. "But it is irresponsible for any elected official to turn to judge-bashing as a political tactic when faced with an adverse court decision on a controversial issue."
Because Judge Scheindlin didn't actually order the city to take any action, the appeal may wait until Peter Zimroth, the independent monitor she appointed, issues any directive to police, legal experts say.
Portions of the judge's ruling — such as the potential for a court-ordered pilot program in which officers in one precinct per borough will wear cameras during patrols, to get more data on stops — are likely to be far more controversial than others, such as the demand that cops take better records of the basis for their stops, experts said.
"The question is: What kinds of actions can Mr. Zimroth take?" said Pace Law School professor Bennett L. Gershman, who called the ruling historic and unprecedented — especially since it derived from a civil case and not from an official government investigation.
Zimroth, a former top city lawyer himself and a current Arnold & Porter LLP litigator, issued a statement calling his appointment as monitor an honor.
"I have always recognized that effective law enforcement is imperative, as is the need for law enforcement officials to act within the constitution and laws," he said. "I believe that, with the cooperation of the NYPD and others, procedures can be designed and implemented to meet the requirements of the court's order while at the same time ensuring effective policing."
Zimroth will want to move with care because, as Cardozo stressed Monday, the city is unlikely to accept any demands on the NYPD without first exhausting its appeals.
"If [the Second Circuit] doesn't reverse, of course we're prepared to go beyond that," Cardozo said, hinting at a possible U.S. Supreme Court issue. "We have to take it one step at a time."
--Editing by Kat Laskowski and Richard McVay.