The Stop-and-Frisk Decision
How a judge stole justice and safety from the people of New York

District Judge Shira Scheindlin


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 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.

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.