Bringing the Gavel Down on Stops and Frisks: The Equitable Regulation of Police Power
Margeson, William A., American Criminal Law Review
There are times when the old bunk about an independent and fearless judiciary means a good deal.
--Judge Learned Hand (1)
On August 12, 2013, Judge Shira Scheindlin of the United States District Court for the Southern District of New York handed down a pair of rulings holding New York City liable for violating the Fourth and Fourteenth Amendment rights of black and Hispanic citizens (2) and ordering an extraordinary panoply of injunctive remedies to compel the New York Police Department ("NYPD") to conform its conduct of stops and frisks to the requirements of the Constitution. (3)
Just over two months later, the Second Circuit rebuked Judge Scheindlin for her rulings in that case, Floyd v. City of New York. (4) While the Second Circuit's order did not expressly examine the merits of the liability holding, the order stayed the injunctive relief, and--in the coup de grace--decreed Judge Scheindlin removed from the case "in the interest, and appearance, of fair and impartial administration of justice." (5)
Judge Scheindlin, according to the Second Circuit, had abused a judicial rule permitting plaintiffs to select a particular judge to preside over their case, who, on the date of filing, is presiding over a related case. (6) Although this particular objection was not once raised by the City's attorneys during the years of litigation preceding her removal, it was raised by Mayor Michael Bloomberg in the days after the liability opinion was issued in an op-ed condemning Judge Scheindlin for her "brazen activism" in "offering] strategic advice to the plaintiffs." (7) The Second Circuit also scolded Judge Scheindlin for failing to "avoid ... the appearance of impropriety" by giving interviews to three journalists in which she had "purport[ed] to respond publicly to criticism" of her management of the case. (8) The district judge who had taken New York City to task for biased policing was in turn taken to task for biased judging.
At issue in the Floyd litigation was the NYPD's conduct of investigative street stops--known as Terry stops after the eponymous Supreme Court opinion enshrining their constitutionality (9)--in which officers detain for investigative purposes individuals whose behavior arouses an inference of criminality. Under the watch of Mayor Michael Bloomberg, the annual number of these stops exploded from 314,000 in 2004 to 686,000 in 2011. (10) Between 2004 and 2012, the NYPD reported conducting 4.4 million stops. (11) While the number of stops surged, the grounds for making stops became increasingly tenuous. In the time spanning 2004 and 2009, "the percentage of stops where the officer failed to state a specific suspected crime rose from one percent to thirty-six percent." (12) Simultaneously, officers became increasingly reliant on "inherently subjective and vague" catchwords to articulate their suspicion. (11) By 2009, nearly sixty percent of stops were based in part on suspicion arising from "furtive movements," (14) notwithstanding the evidence that officers "very broad[ly]" interpreted the factor to signify a multitude of enabling meanings. (15)
Scanning the statistical portrait of the NYPD's use of stop and frisk tactics that formed the basis for the opinion in Floyd, the racial disparities are as unmistakable as they are staggering. Of the 4.4 million stop and frisks that NYPD officers reported conducting between 2004 and 2012, eighty-three percent targeted either blacks or Hispanics and just ten percent targeted whites. (16) Yet during the relevant time period, New York's population was around twenty-three percent black, twenty-nine percent Hispanic, and thirty-three percent white in 2010. (17) Stated differently, a black individual was over five times more likely to be stopped than a white individual during much of the past decade in New York.
But raw data can represent an incomplete and misleading picture of reality, given the interaction of innumerable variables other than racial discrimination that might contribute to an explanation of the racial disparities. …