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Federal Stop-and-Frisk Rulings Could Spur Major Reforms, Experts Say

By Patrick Wall | January 10, 2013 10:34am

NEW YORK — A federal judge’s ruling this week that officers violated the Constitution as they carried out a component of stop-and-frisk marked a major rebuke of a signature NYPD tactic and is the first in a string of lawsuits that could spur lasting changes to the policy, legal experts say.

Two other stop-and-frisk cases are pending before U.S. District Court Judge Shira Scheindlin, who in Tuesday’s ruling and pretrial decisions on the other cases has sided with the plaintiffs as they argue that the Police Department's practice of stop-and-frisk is unconstitutional and discriminatory.

The impact of these three cases on the use of stop-and-frisk could be profound, experts say — potentially triggering an overhaul of officer training, more detailed reports on individual stops, and a reduced reliance on the tactic, which the NYPD has credited as a key factor in the city’s historic crime declines.

“When a Federal District Court judge says your program is unconstitutional, that is as direct, clear and far-reaching a statement as a judge can make,” said Steven Zeidman, a law professor at the CUNY School of Law.

The NYPD “can’t continue it as it is,” Zeidman added. “They have to make changes.”

On Tuesday, Scheindlin ruled that police had unconstitutionally stopped and sometimes arrested thousands of New Yorkers outside of private buildings enrolled in the Trespass Affidavit Program (TAP), in which landlords give police permission to arrest unknown visitors.

Many of those stopped were tenants or their guests and had every right to enter the buildings, the judge wrote in her ruling on the class-action lawsuit, Ligon v. the City of New York, filed last year.

She ordered police to immediately discontinue such stops outside Bronx TAP buildings, unless officers reasonably suspect criminal activity.

In March, a bench trial will begin on a broader class-action lawsuit, filed in 2008, which claims that police routinely conduct suspicionless stops and mainly target minority men.

Scheindlin has already granted that 2008 suit, Floyd v. the City of New York, class-action status and dismissed the city’s efforts to have it thrown out.

The third case, Davis v. the City of New York, was filed in 2010 and addresses the use of stop-and-frisk in public housing developments. Motions on that case are pending.

All three lawsuits allege that the city has violated citizens’ Fourth Amendment right to be free from unreasonable searches.

The Davis and Floyd suits add that because officers disproportionately stop minorities — about 86 percent of those stopped in the third quarter of 2012 were black or Latino, according to NYPD stats — police also disregarded the 14th Amendment’s ban on racial discrimination.

In both pending cases, the odds appear to be on the plaintiffs’ side, experts say.

“All of the decisions Judge Scheindlin has made until now have been in the plaintiffs’ favor,” said Delores Jones-Brown, a professor in the Department of Law and Police Science at John Jay College of Criminal Justice, and a member of a group that opposes the current use of stop-and-frisk.

In the upcoming cases, Jones-Brown added, “It seems to be a foregone conclusion that the department will be determined to have done some things unconstitutionally.”

In her ruling, Scheindlin proposed possible corrective actions for the NYPD, but said she will withhold her final decision on which ones to require until after the Floyd case, since it may call for similar remedies.

Her proposed fixes focused on stops outside Bronx buildings and included new written policies, reporting requirements and training materials.

Scheindlin will likely demand major changes to the guidebooks, videos and lessons used to train officers in stop-and-frisk, which she described as “inaccurate” in her ruling, said Zeidman, the CUNY School of Law professor.

“She basically said, ‘You’re telling people unconstitutional things,’” said Zeidman, who suggested that plaintiffs may even be given a role in redesigning the materials.

The revisions — both to the trainings and the reporting forms — will almost certainly center on what behaviors or circumstances qualify as reasonably suspicious, he added.

For example, updated stop-and-frisk forms could require officers to write out their reasons for stopping an individual, he said, rather than simply check a box, such as “furtive movements,” as they do now.

In the coming weeks, the city intends to argue against Scheindlin’s proposed remedies, which “would place an unacceptable burden on the NYPD,” according to Michael Cardozo, corporation counsel for the city's Law Department.

The Floyd trial may also address the question of whether police supervisors impose stop-and-frisk quotas on officers, which could ultimately spur department reforms, said Eli Silverman, professor emeritus at John Jay College.

In her ruling on a pretrial motion, Scheindlin deemed the quota question “a triable issue,” as well as “whether such quotas can be said to be the ‘moving force’ behind widespread suspicionless stops.”

Some critics have called on the city to settle the remaining cases, but experts say this is unlikely given how staunchly this administration has defended stop-and-frisk in the past.

Both Police Commissioner Ray Kelly and Mayor Michael Bloomberg attribute the city’s long-term crime reductions, in part, to use of the tactic, which they also say keeps guns off the street.

Critics question both claims, noting that experts disagree whether stop-and-frisk played a major role in the crime declines and pointing out that hardly any guns are seized in the stops. (Less than 1 percent of stops result in gun seizures, according to an expert report prepared for the plaintiffs in the Floyd case.)

But debate about the policy’s efficacy clouds the concern that's at the root of the lawsuits, experts say, which is whether the way police conduct the stops intrudes on citizens’ rights — a point the judge made in Tuesday’s ruling.

“No matter how effective a police practice may be,” Scheindlin wrote, “if it violates the Fourth Amendment, the Constitution requires the government to find other means of achieving its goals.”