The Stop-and-Frisk Decision

by Gerald Walpin
How a judge stole justice and safety from the people of New York

In 1990, New York City suffered 2,245 murders. By 2012, that number had been reduced by more than 80 percent, to 419 — a proud record of achievement.

A primary factor in this reduction was the police program known as “stop and frisk.” Under that program, mostly used in high-crime neighborhoods, if a policeman has “reasonable suspicion” of possible criminal activity, he may stop a person and then, “for his own protection, may conduct a patdown to find weapons that he reasonably suspects” may be there. Given that the Supreme Court has long held that “the primary function of government . . . is to render security to its” people, and that it specifically employed the quoted language in its 1968 approval of “stop and frisk” in another state, one would have expected a judge to have quickly rejected the lawsuit, commenced in January 2008, attacking New York City’s stop-and-frisk program.

But District Judge Shira Scheindlin last month issued a 198-page opinion in the case of Floyd et al. v. City of New York declaring the city’s stop-and-frisk program unconstitutional — as involving unreasonable searches and seizures — and discriminatory against blacks and Hispanics. If that decision is not reversed, we can expect the return of the high murder rate that preceded stop-and-frisk.

This is not simply a case of an erroneous decision. Rather, the facts establish that this judge, known to be hostile to efficient and successful law-enforcement tactics, ignored Supreme Court precedent and logic to follow instead her personal, politically correct agenda. Moreover, on the case’s filing, she grabbed it for herself, violating the district court’s rule requiring random selection of the assigned judge. Significantly, she then took five and a half years to announce her decision — a delay that may preclude appellate review. Finally, her opinion, holding this program unconstitutional, is unsupportable.

SCHEINDLIN’S GRABBING OF THE CASE
Scheindlin is one of over 40 sitting judges in the Southern District of New York. To implement the basic principle that our courts apply the rule of law — not the rule of man or woman — that court’s rules mandate that the judge for every case “shall be assigned by lot.” That was not done here. Rather, Scheindlin endorsed the plaintiffs’ avoidance of the lottery assignment rule, by asserting that this new 2008 case was “related” to a case, Daniels et al. v. City of New York (on which she had been the judge), commenced in 1999 and settled and closed in 2003.

The court’s rules do permit the assignment of a new case to a judge sitting on an earlier case if the two are related, but only “when the interests of justice and efficiency will be served,” and if “(i) a substantial saving of judicial resources would result; or (ii) the just efficient and economical conduct of the litigations would be advanced; or (iii) the convenience of the parties or witnesses would be served.” The rule also specifies that the presence of “a congruence of parties or witnesses or the likelihood of a consolidated or joint trial or joint pre-trial discovery” would indicate the new case is “related.”

Applying those criteria, Scheindlin was not authorized to take this case. No “congruence of parties and witnesses” in conjunction with “a consolidated or joint trial or joint pre-trial discovery” was possible, as the Daniels case had concluded five years earlier. No plaintiff in that earlier case was a plaintiff in this new Floyd case. That New York City was again the defendant and that stop-and-frisk was at issue in both cases would not, by itself, make it a “related” case to authorize bypassing the lottery judge assignment; many cases against the city commenced in that court, and many seeking recovery for the same or similar conduct, are assigned “by lot.”

The “interests of justice” would be served by having any judge chosen by lot. That it took Scheindlin five and a half years to announce her decision hardly suggests that efficiency was advanced by her taking the case. The five and a half years and a hearing involving testimony not heard in the earlier case refutes other criteria for invoking the related-case exception: No “saving of judicial resources would result”; no “just efficient and economical conduct of the litigations” was advanced; and the “convenience of the parties or witnesses” was not served by having the same judge.

Finally, the Daniels case ended with a negotiated agreement that was entered by Scheindlin as a court order that, by its terms, “terminate[d] on December 31, 2007” — before the Floyd case was commenced. Floyd was a new, independent case that should not have been grabbed by Scheindlin for her to decide.

SCHEINDLIN’S DISLIKE OF GOOD LAW-ENFORCEMENT TOOLS
One small portion of Judge Scheindlin’s opinion spotlights the fact that her decision was driven by personal views, irrelevant to the case’s facts. She concludes her opinion by quoting a partisan for Trayvon Martin, killed in a distant Florida town in a context unrelated to New York City’s stop-and-frisk program.

That quotation is consistent with her reputation. Most lawyers practicing in Scheindlin’s court are aware that, as one commentator recently wrote, she “has a history of ruling on controversial issues based on her personal political beliefs.” In a recent interview, she effectively confirms that evaluation of the impact of her political views on her dispensation of justice; she explained that a jury acquittal had occurred because “Bush policies were unpopular” and described the acquittal as ”a vindication” of her earlier decision dismissing an indictment against the same defendant.

Here are three examples of what one commentator recently described as the “enduring battle she has fought with” law enforcement:

Scheindlin’s Attack on the Pornography Ban on Military Bases: She held unconstitutional a 1996 statute that banned the sale of pornographic materials on military bases as violative of soldiers’ First Amendment rights. The Court of Appeals reversed her, explaining that the law was “a reasonable means of promoting the government’s legitimate interest.” (As discussed below, Scheindlin ignored that admonition in failing to consider that stop-and-frisk was “a reasonable means of promoting the government’s legitimate interest.”)

Scheindlin’s Attack on Law Enforcement’s Prosecution of Domestic Terrorists: Scheindlin voided the conviction of Judith Clark, a Weather Undergound radical serving 75 years to life for murdering a Brink’s guard and two police officers. Scheindlin’s incredible reasoning: Clark’s right to counsel had been violated by Clark’s own insistence on representing herself and on her rejection of the trial court’s offer of counsel! The Court of Appeals unanimously reversed Scheindlin.

Scheindlin’s Attack on Law Enforcement’s Prosecution of Foreign Terrorists: Even the 9/11 massacre did not deter Scheindlin from attempting to derail law enforcement. Evidence established that Osama Awadallah had had contact with a principal hijacker, failed a lie-detector test when he denied prior knowledge of the attacks, and idolized Osama bin Laden. The government detained Awadallah, performed a search, and obtained his testimony before the grand jury. Awadallah was charged with perjury for testimony contrary to the unquestionable facts.

Scheindlin dismissed the indictment, concluding that Awadallah’s detention violated his Fourth Amendment rights, and ordered his release. The Court of Appeals unanimously reversed Scheindlin, holding it was “clear” the law allowed his detention. The appellate court also noted — indicative of Scheindlin’s bias against law enforcement — that she had, without basis, “credited Awadallah’s testimony over that of the FBI agents.” Further, the appellate court made explicit its criticism of Scheindlin: Her decision was contrary to five prior decisions by courts of appeals; one of the “principal problems” that Scheindlin found in the government’s presentation was so baseless that “Awadallah does not press this argument on appeal”; another of Scheindlin’s grounds was labeled “a stretch” having “no basis.”

Of particular relevance here, the appellate court attempted to educate Scheindlin on how searches and seizures should be judged — a lesson Scheindlin ignored in holding the stop-and-frisk program unconstitutional. The Court of Appeals quoted the Supreme Court teaching that “permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” In reversing her, that court found that Scheindlin had simply ignored “legitimate governmental interests.” She repeated that error in her decision on stop-and-frisk.

ENSURING HER PERSONAL CONTROL OVER THE DECISION
A jury would likely not have invalidated stop-and-frisk. New Yorkers had twice reelected Mayor Bloomberg, at least in part because his program, including stop-and-frisk, had reduced crime. Thus, even with Scheindlin as judge, a jury, as the ultimate decider, would not have permitted her bias to control the case.

More than five years after commencing the case, the plaintiffs’ attorneys, probably realizing their need to delegate full decisional authority to Scheindlin, withdrew all claims for damages. That action, approved by Scheindlin, ended any chance for jury involvement. The plaintiffs’ remaining remedy request, for an injunction, is judge-decided, without any jury. Thus, the decision on unconstitutionality was placed solely in Scheindlin’s hands.

Even that did not guarantee that Scheindlin alone would make the decision. Ordinarily, such a decision would be subject to reversal by the Court of Appeals and, possibly, the Supreme Court. How could appellate review be prevented?

It is no secret that Mayor Bloomberg supports stop-and-frisk. In contrast, Bill de Blasio, who is leading Joe Lhota in the polls for November’s mayoralty election, has announced his support for Scheindlin’s ruling and stated that, if elected, he would not press the appeal that Bloomberg’s administration has filed. If that occurs, Scheindlin’s ruling could remain as the court’s decision, without appellate review.

Justice is not furthered by depriving a losing party of appellate review. Yet, unfortunately, given Scheindlin’s delay in rendering her decision, that is a real possibility.

SCHEINDLIN’S DECISION IS OBVIOUSLY ERRONEOUS
Scheindlin admitted not disputing “the effectiveness of stop and frisk in deterring or combating crime.” But then she held this legitimate government interest irrelevant, expressly stating that she would “not” “judge” “its effectiveness as a law enforcement tool.” Thus, she relied solely on her conclusion that any stop-and-frisk is an intrusion, although she admits the intrusion is minimal: “a limited intrusion in duration and deprivation of liberty.” Declining to judge the stop-and-frisk program’s effectiveness means that she ignored the Supreme Court directive, that “the permissibility of” stop-and-frisk must be “judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”

While not disputing the program’s effectiveness, Scheindlin spends pages on numbers to suggest little success from the program. Thus, she relates that a “weapon was found” in only 1.5 percent of the 2.3 million frisks during the eight years she considered. Sounds minuscule when phrased as 1.5 percent, but do the math: 34,500 hidden weapons found, and who knows how many lives saved by preventing their use. Similarly, Scheindlin mocks the small number of searches into clothing that resulted in the officer’s finding something. Again, doing that further search added thousands of guns taken from unlicensed people, and many people, perhaps kids, saved from the seized contraband (criminal matter such as heroin).

Likewise, Scheindlin relates that only “6% of all stops resulted in an arrest, and 6% resulted in a summons.” Doing the arithmetic makes the results meaningful: Over 520,000 persons were thereby apprehended and processed through the criminal-justice system. But even those numbers do not tell the full story that Scheindlin ignores. Police presence, by itself, reduces crime: A policeman walking the beat deters crime even if he stops no one that day. Why? Because criminals prefer committing crimes when not observed by police. Knowledge of the publicized stop-and-frisk program was enough to cause some criminals not to carry guns — thus promoting a legitimate governmental interest. Scheindlin, however, rejected this obvious benefit of police “showing the flag”; she held that it is “pure speculation,” as “no evidence was offered . . . of a single stop that . . . prevented the commission of a crime.” Wake up to reality: How could proof be offered of a crime that did not occur? — other than recognizing the substantial reduction in crime accompanying the stop-and-frisk program.

Take Scheindlin’s rejection as “speculation” of the benefit of police presence and activity in preventing crime, and contrast that with most of her supposed factual findings of discrimination and police misuse of the program. These are phrased as speculative possibilities, denying certainty to her factual grounds for declaring stop-and-frisk unconstitutional. Examples: it “may” be, “likely,” “officers may have a systemic tendency,” “it would be surprising” if it “weren’t so,” “if so,” “unconscious bias could help explain,” “may contribute,” “more likely,” “may well be,” “might be.”

Because of the program’s success, Scheindlin, as already noted, never performed the Supreme Court–required balancing to establish that the minimal intrusion on individuals outweighed the public benefit in reducing crime. Rather, she primarily rests on asserting that the program required “indirect racial profiling by directing focus [of] their stop activity on . . . demographic groups that appear most often in a precinct’s crime complaints.” Scheindlin provides an example of this racial profiling: The police instruction that “stopping ‘the right people, at the right time, in the right location’” — that is, people acting suspiciously in high-crime areas — “meant not stopping ‘a 48-year-old lady who was walking through St. Mary’s Park when it was closed,’” inaction Scheindlin labeled “deeply troubling.” Why is it “troubling” to avoid wasting police time on someone not acting suspiciously? Epitomizing Scheindlin’s totally unrealistic decision is the suggestion that, in order for the program to be constitutional, police should spend time stopping and interrogating a 48-year-old woman who was doing nothing but walking through a park.

She finds evidence of discriminatory “indirect racial profiling” in the fact that “over 80% of the . . . 4.4 million stops” made under the program between January 2004 and June 2012 “were of blacks and Hispanics.” She does not dispute that the high-crime areas targeted by stop-and-frisk are mostly populated by blacks and Hispanics. Further, she admits that “approximately 83% of all known crime suspects and approximately 90% of all violent crime suspects were black and Hispanic” — each a higher percentage than the percentage of blacks and Hispanics among those stopped. Hence, she is not able to label this police activity as intentional racial profiling because it is not, but instead is due to the make-up of the population of these areas and of the class of criminal suspects, neither of them police-controlled. Scheindlin then retreats to the label of “indirect” racial profiling because these are the “demographic groups that appear most often in a precinct’s crime complaints”; thus the police are “targeting racially defined groups for stops based on local crime data.” 

Consider the total illogic of Scheindlin’s reasoning. For example, Harlem, a high-crime area, is overwhelmingly populated by blacks, so that stop-and-frisk would necessarily involve stopping mostly blacks. While Scheindlin mouths agreement that the “racial composition of the areas where they are stopped” must be considered, she never cites the racial composition in Harlem; she instead compares the percentage of blacks stopped against the percentage of blacks in all of New York City. Based on that comparison, she finds it unconstitutional. As a practical matter, therefore, to reduce the high percentage of blacks who are stopped, the police would, according to her, have to institute a stop-and-frisk program in, for example, the Upper East Side, where the population is heavily white, and would have to stop people even though no rampant street crime exists in that area and even if no suspicious activity is seen. The bottom line of her decision is that, to avoid the appearance of discrimination against blacks and Hispanics, the police must engage in actual discrimination against, and unconstitutional stopping of, whites — an unacceptable judicial direction to police to violate the constitutional rights of people because they are white! And her ruling would also discriminate against Hispanics and blacks who are potential victims of crime, by directing that police ignore the high-crime areas in which they live.

If there were any logic to Scheindlin’s reasoning that the high percentage of blacks and Hispanics stopped makes the program unconstitutional, she ignored an even more discriminatory aspect: discrimination against men, the gender overwhelmingly stopped. But stopping an equal number of women would make no sense, as males, not females, are overwhelmingly responsible for New York’s violent crimes. The same reasoning makes constitutional the high percentage of blacks and Hispanics stopped.

Yes, the targeting of high-crime areas results in a disproportionate racial impact, compared to total population. But even Scheindlin admits the Constitution does not prohibit “government action that merely has a disproportionate racial impact,” but only “prohibits intentional discrimination on the basis of race.” Focusing on high-crime areas, which house a high percentage of blacks and Hispanics, is not intentional discrimination on the basis of race.

Scheindlin also ignores the facts that New York City’s police force is 28.7 percent Hispanic and 17.9 percent black, and that, in one year, 27 percent of the complaints filed with the Civilian Complaint Review Board for stops and frisks were against black and Hispanic policemen. Thus, Scheindlin would have us believe the unbelievable: Black and Hispanic police officers are engaging in “intentional discrimination on the basis of race,” and black and Hispanic officers join with their white colleagues in having “a discriminatory purpose” — a purpose Scheindlin held necessary to rule against the program.

One small number in the evidence was problematic to Scheindlin’s desired result. An expert witness for the plaintiffs testified that “only 6% of the [4.4 million] stops” were “‘apparently unjustified,’ that is, lacking reasonable suspicion.” Given that the decision to stop is made by a human being, subject to human error — particularly in split-second decisions — it is not surprising that unjustified stops existed. That they accounted for only 6 percent of stops belies any finding that unconstitutional stops were “pursuant to official municipal policy” — which Scheindlin held “plaintiffs must prove” to be successful. What did Scheindlin do with the plaintiffs’ own 6 percent number, which could not support unconstitutionality? She rejected the expert witness’s testimony and substituted her own speculation that the “actual number was likely far higher.”

Going beyond numbers, Scheindlin found particular constitutional defect in the vagueness of the meaning of “furtive movements,” one observation that policemen are instructed supports finding suspicious street activity. She objected to the “poor training” of policemen because their understanding of the term “furtive movements” included that it “‘is a very broad concept,’ and could include a person ‘changing direction,’” “‘going in and out of a location,’” or “‘looking back and forth.’” But many terms that the law instructs non-lawyers to apply are less definite than these, and yet not unconstitutional. For example: “reasonable suspicion,” which, Scheindlin agrees, is the controlling standard for authorizing a stop. Another is guilt “beyond a reasonable doubt,” which jurors are instructed is the standard for a conviction. Moreover, the officers’ understanding of the meaning of “furtive,” which Scheindlin found insufficient, is similar to some circumstances approved by the Supreme Court in upholding an earlier stop-and-frisk program: “the man paused for a moment and looked in a store window, then walked on a short distance, turned back and walked toward the corner, . . . the second man went through the same series of motions . . .”

Another incredible part of Scheindlin’s opinion is her reliance on “the failure of [police] supervisors . . . to effectively supervise the constitutionality of stops.” She explains: “attention is paid . . . to the quality of enforcement activity in the sense of its effectiveness,” but “the quality of stops in the sense of their Constitutionality receive[d] no meaningful review.” Although admitting such a constitutional review “is no simple task, because there are no mechanical rules for their application to the varied circumstances of an officer’s work,” she faults layman police: Police supervisors, even police sergeants and desk officers — all non-lawyers — must evaluate and monitor “the constitutionality of stops.” Particularly given that judges often disagree on the constitutionality of specific police operations, it is preposterous for Scheindlin to suggest that a constitutional stop-and-frisk program requires layman police sergeants to determine the constitutionality of each stop.

At one point, Scheindlin offers a bone to the police by acknowledging her “respect that police officers have chosen a profession of public service involving dangers and challenges with few parallels in civilian life.” And she admits that “a judge . . . with the time to reflect . . . is in a far different position than officers on the street who must make split-second decisions in situations that may pose a danger to themselves.” Yet, she criticizes the police because the frisk often shows that “the now-ubiquitous bulge” in the stopped person’s pocket — which the policeman sought to determine whether or not was caused by a gun — was merely “created by a cell phone or other common objects.” Judge Scheindlin, please explain how you would know for certain that a bulge is only a cell phone without checking on the object?

Perhaps the most unbelievable of Scheindlin’s criticisms is her faulting the police force for “increas[ing] its stop activity by roughly 700%,” between 2002 and 2011, “despite the fact that crime continued to fall during this period.” Apparently Scheindlin would reduce the use of a successful police tactic to prevent crime because it is successful. That irrationality is, in a nutshell, why Scheindlin should not be directing the police department on how to fight crime.

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Scheindlin recently stated that she rules on the basis of what she “think[s] is right, what [she] believe[s] in.” She thus admits violating her duty as a judge, which requires her to follow Supreme Court and Court of Appeals rulings, not her personal agenda.

— Gerald Walpin served as U.S. Inspector General under President G. W. Bush, is a litigating attorney who has practiced in the Southern District of New York (and elsewhere), and is the author of The Supreme Court vs. the Constitution (Significance Press, 2013).