CIVIL PROCEDURE--CLASS ACTIONS--SOUTHERN DISTRICT OF NEW YORK CERTIFIES CLASS ACTION AGAINST CITY POLICE FOR SUSPICIONLESS STOPS AND FRISKS OF BLACKS AND LATINOS.--Floyd v. City of New York, 82 Fed. R. Serv. 3d (West) 833 (S.D.N.Y. 2012).
For a Court that had been besieged by calls to impeach its Chief Justice for his perceived leniency on crime,1 the 8-1 decision in Terry v. Ohio2 proved atypical.3 In his opinion, Chief Justice Warren assented to warrantless police stops and frisks based on no more than reasonable suspicion--an intrusion the former district attorney4 conceded "must surely be an annoying, frightening, and perhaps humiliating experience."5 Justice Brennan privately lamented that "[i]t will not take much of this to aggravate the already white heat resentment of ghetto Negroes against the police."6 Recently, in Floyd v. City of New York,7 the Southern District of New York certified a class in a suit requesting declaratory and injunctive relief against the New York Police Department for allegedly unlawful searches and seizures targeting black and Latino residents.8 In the Fourth Amendment debate over the proper balance between safety and liberty, advocates have argued that communities--often of color--grappling with inner-city violence are better situated to make that determination than are judges.9 The examination of adequacy at the class certification stage offers a fresh and compelling avenue for judges to gauge the level of popular support that policing strategies draw in the communities that share in their burdens and benefits. That inquiry would not have mattered in Floyd, as informal and early empirical data did not reveal a minority community willing to shoulder a prodigious stop-and-frisk program, but in constraining judges from even probing the matter, the doctrine itself mistakenly dismisses the opportunity to pay deference to democratic choices.
New York police stopped the city's residents and visitors--"restraining their freedom, even if only briefly"--over 2.8 million times from 2004 to 2009.10 Over fifty percent of those stops involved black suspects, thirty percent involved Latino suspects, and ten percent involved white suspects.11 The stop-and-frisk program first came under fire in the progenitor class action suit Daniels v. City of New York,12 resolved in 2003 by a settlement requiring that the city curb the racially disparate application of the practice, in part by implementing an official policy on racial profiling, revising forms to encourage more accurate documentation, and launching regular audits. (13) The Floyd plaintiffs filed the instant suit in 2008, arguing that after the Daniels settlement expired, the city had failed to reform the challenged policy meaningfully. (14) Four black men alleged that they were improperly stopped by New York City police at least once each between 2004 and 2009, invoking the Fourth and Fourteenth Amendments' respective inconsonance with suspicionless stops and racial discrimination. (15)
On May 16, 2012, Judge Scheindlin certified the class in Floyd, supplying legal recourse to the hundreds of thousands of New Yorkers who "will never bring suit to vindicate their rights." (16) Ruling that the plaintiffs stand fit to represent the aggrieved class--all civilians at the wrong end of at least 170,000 stops that the court deemed facially unlawful, (17) and a subclass of black and Latino suspects together bearing eighty percent of the stops (18) - the court found certification proper in light of the Rule 23 requirements of numerosity, commonality, typicality, and adequacy. (19)
Judge Scheindlin held that the class size, far surpassing the Second Circuit's presumptive threshold of forty members, comported with the demand of numerosity. (20) With regard to commonality, she offered an account of a stop-and-frisk program "enormous" in scope, department- wide, managed at the highest levels, and accelerated in its rate of …