On Monday, the major class-action lawsuit Floyd v. the City of New York challenging the NYPD's "stop-and-frisk" policy wrapped up after more than two months of testimony. Plaintiffs allege that the NYPD has routinely and systematically violated the 4th and 14th Amendment rights of New Yorkers stopped and sometimes frisked because of their race. "They laid siege to black and Latino neighborhoods over the last eight years … making people of color afraid to leave their homes," Gretchen Hoff Varner, an attorney for the plaintiffs, said Monday.
Reasonable suspicion that a person is about to, or has committed a crime is the legal prerequisite for a stop. But nine-tenths of stops have not resulted in any further law enforcement enforcement activity, like an arrest or a summons. “What troubles me is the fact that the suspicion seems to be wrong 90 percent of the time,” presiding judge Shira Scheindlin said during closing arguments. “That’s a high error rate.”
In addition, 85% of people stopped are black or Latino, which plaintiffs say is further evidence of racial motivation. They also allege that quotas the NYPD has described as "performance standards" for "proactive policing" encourage officers to make unconstitutional stops based on race.
Earlier in the trial, NYPD officers Pedro Serrano and Adhyl Polanco testified that they were forced to meet numerical quotas for stops or face punishment. Their secretly recorded tapes reveal supervisors commanding officers to make "20-and 1" (20 summonses and 1 arrest), as well as "five 250s," or street stops, per month.
Serrano also recorded 40th Precinct’s commanding officer, Deputy Inspector Christopher McCormack, telling him to stop “the right people at the right time, the right location" adding that the "problem" was "male blacks 14 to 20, 21."
The description was echoed by others throughout the trial, who testified that those deemed suspects are young men of color. The defense categorically denies racial profiling. Rather, they said, they are simply going after the people responsible for committing crimes, who tend to be young men of color.
City attorney Heidi Grossman said during closing arguments that, "The right people are the right people about whom there is information directly connected to known crime conditions." The problem with that logic, plaintiffs said, is that a suspect description for a black youth in a "high-crime" area (which could be as large as Queens) could make any black teen in that neighborhood susceptible to a stop.
While the plaintiffs argued in summation that race has become a "proxy" for reasonable suspicion, the city claimed the race of people stopped was highly correlated with suspect descriptions.
During closing arguments, Judge Scheindlin challenged what she called the city's "circular argument."
"The fact that the stops reflect a similar percentage as the crime suspect data may show that the officers are influenced by the fact that they know in a certain area most crimes are committed by blacks," Scheindlin said. "So you may worry that they're adding race in as a reasonable suspicion factor."
The plaintiffs alleged that a top-down policy that included the implementation of quotas or "performance standards" put pressure on police officers to make unconstitutional stops. The city argued that those speaking out against quotas are just lazy.
The defense claimed during summations that allegations of punishable quotas, which are forbidden under New York State Labor Law are a "sideshow." Heidi Grossman said that the plaintiffs presented not evidence of a city-wide quota policy, but "longstanding struggles" about "getting work done." Throughout the trial, the defense has also repeatedly invoked the language of NYPD Operations Order 52, which says that, "Department managers can and must set performance goals."
On Monday, plaintiffs attorney Jonathan Moore (with the Center for Constitutional Rights) said the trial is not just about quotas, but "pressure." A survey on the "numbers game" conducted by John Eterno of Molloy College and Eli B. Silverman of John Jay College of Criminal Justice found that retired police officers reported a four-fold increase in pressure on officers to do stops in the Bloomberg and Kelly era. During closings, Moore noted a simultaneous decrease in pressure to follow the Constitution, which he called a "lethal combination."
"More importantly this pressure does not exist we believe in a vacuum," said Moore. "The police feel pressure to get numbers in the context of an admitted strategy that targets young black and Hispanic males."
Moore referenced Sen. Eric Adams' "unrebutted" testimony that NYPD Commisioner Ray Kelly once told him he targeted young men of color "because he wanted to instill fear in them that every time that they left their homes they could be stopped by police." Moore also questioned Commissioner Ray Kelly's refusal to walk across the street from One Police Plaza and testify.
Heads in the Sand
Plaintiffs have accused the city and NYPD of adopting a "head in the sand" approach to stop-and-frisk. During closing, they cited as evidence their lack of concern with a one-tenth hit rate for stops, disparate stops for people of color, and denial of racial profiling complaints. Multiple NYPD witnesses, including former Chief of Department Joseph Esposito, had testified that they never heard complaints of racial profiling from the communities targeted by stop-and-frisk.
"To suggest that no one has complained about racial profiling or bad stops is disingenuous, in and of itself evidence of a deliberate indifference," Moore said during summation.
Helen McAleer, the commanding officer of Investigation Review for the NYPD, testified earlier in the trial that her office received very few racial profiling complaints, but also said that neither racial profiling nor stop-and-frisk complaints were matched to a code in their system. Rather, both are categorized under “general dissatisfaction.”
Plaintiffs attorney Darius Charney testified in closing arguments that, "We believe the fact that the police department does not consider something racial profiling, unless somebody uses explicitly the words 'race' or 'racial bias,' we think is a head-in-the-sand approach."
Plaintiffs also allege that constitutional violations stemming from stop-and-frisk are part of a top-down policy starting with Mayor Michael Bloomberg. Under his and Kelly's leadership, the NYPD conducted 4.4 million stops, more than a 600% increase since Bloomberg took office. The defense say the increase came from an increased focus on paperwork.
Should the judge rule in their favor, plaintiffs are calling for sweeping changes that would dramatically alter how NYPD officers are trained, supervised, and held accountable for stop-and-frisk. They requested better documentation of stops and more supervision of officers, as well as the revocation of Operations Order 52, which allows performance goals. They are also calling for an "independent monitor" to assist communication between the NYPD and the communities most affected by policing.
During closing arguments, Judge Scheindlin asked questions about the possibility of a "body-worn" camera to ensure that police officers are, indeed, following the law. She is expected to rule on Floyd, and possibly make recommendations for relief, in the next couple of months. Plaintiffs will not receive any monetary compensation.
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