by Shira Scheindlin, former Senior Judge of the United States District Court for the Southern District of New York, of Counsel, Stroock & Stroock & Lavan LLP
The issue of policing arose during the recent presidential debate. This issue is one of great importance throughout the country – particularly in light of a number of recent and documented shootings by police of unarmed African American and Hispanic victims. As the former federal judge who ruled on the constitutionality of stop and frisk as used in New York City, I write to clarify a number of the misstatements or misconceptions that have tainted this debate.
Based on the evidence of racial bias presented during the 2013 trial in Floyd v. New York City, over which I presided, I found that stop and frisk – as practiced in New York – was unconstitutional. In a separate opinion, I directed a series of remedies to address the problem. It ordered very specific reforms that would result in the constitutional use of stop and frisk.
There is no question that the use of stop and frisk is permitted by the Constitution as interpreted by the United States Supreme Court in Terry v.Ohio. The Court held that a stop can be made when an officer has “reasonable suspicion” that a person has committed, is committing or is about to commit a crime. The Court later held that in order to conduct a frisk, the officer must have reasonable suspicion that a person is armed and dangerous. If a stop and frisk is done in accordance with these principles then it will pass constitutional muster.
But this is not what happened in New York, when the numbers of stops and frisks began to climb dramatically from approximately 2004 to 2012. In those years more than 4.4 million stops were made and it appears that most were not based on the required reasonable suspicion. This conclusion was reached by an examination of (1) the uncontested statistical evidence; (2) the testimony of experts who analyzed more than 4.4 million stops to determine whether there was racial bias; (3) institutional evidence of deliberate indifference (including the unconscious racial biases or indirect racial profiling exhibited by police officers) and (4) the examples of individual stops by selected plaintiffs who were members of the Floyd class.