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Class Action Lawsuit Goes to Judge
Trial Exposes: Stop-and-frisk Don't Stop the Crime, Stop-and-frisk IS the Crime!

Revolution #306, June 9, 2013

The trial of Floyd v. City of New York, the class action lawsuit filed by the Center for Constitutional Rights (CCR) on behalf of the plaintiffs, ended on May 20. During more than two months of testimony, lawyers for the CCR argued that the NYPD's stop-and-frisk program illegally detains hundreds of thousands of people every year, not because of suspicious behavior but because of their race. The suit charges the NYPD with violating the Fourth Amendment of the U.S. Constitution, which is supposed to prohibit unreasonable searches, and the Fourteenth Amendment, which supposedly grants equality to Black people.

Darius Charney, CCR's lead attorney in the case, said in his opening statement when the trial started on March 18, that this trial had been "14 years in the making" and that the plaintiffs were seeking, "at long last, to hold the city accountable for years of widespread racially discriminatory and unconstitutional stops and frisks."

Indeed, the CCR put in a tremendous amount of work to put this case together—bringing together testimony from victims of stop-and-frisk, officers from within the NYPD itself, and public officials with hard-hitting statistics about racial profiling. The CCR has done a big service to the people in fighting to bring this case to court and then presenting a rigorous case that has really exposed the NYPD's practice of stop-and-frisk. This suit put the city of New York on the defensive where the city's lawyers had to try and make legal arguments to justify a practice which so clearly violates people's rights. And this high-profile trial brought the stories of victims of stop-and-frisk to many people who before this did not really know about what the NYPD is doing. For some people who may have had only some of the picture of what stop-and-frisk is about, this case put a lot of it all together and showed what a totally illegitimate and illegal practice it is.

Nineteen incidents of people being stopped by the NYPD were described during trial. This included testimony by the four named plaintiffs, who the lawsuit said represent hundreds of thousands of others who have been racially profiled and unjustly humiliated by the NYPD. Forty-one police officers testified, including some who described how they had been pressured to, in effect, meet quotas for stopping people. More than 450 exhibits were offered as evidence as well as audiotapes secretly recorded by NYPD officers in three different precincts. The trial generated 8,000 pages of testimony.

The trial was widely covered in the media—nationally and internationally. And now, millions of people will be looking to see how Judge Shira A. Scheindlin will rule in this case. People all over the country who also face this kind of police repression are watching to see what is going to happen. And other city governments that are already, or want to, implement similar draconian police measures are also looking to the outcome of this trial. For example, in the the Bay Area, Oakland is considering starting stop-and-frisk policing. And there has been contention over such police programs in San Francisco, Philadelphia, and Los Angeles.

Samuel Walker, a criminal-justice professor who testified for the plaintiffs, says the size and influence of the NYPD means the ruling in this case will have national importance and that any changes the judge orders to the NYPD's policy "will send a message to the rest of the law-enforcement community, 'you can no longer do this type of thing and if you do can be sued.' Or if the judge goes the other way then, 'you can continue to do that.' Either way, it's going to have a huge impact." (Wall Street Journal, May 21, 2013)

The CCR's lawsuit asks for certain remedies that include that the NYPD be supervised by an outside monitor; revising forms so officers have to write narratives that justify the basis for stops; and a "joint-remedy process" that would involve a mediator to facilitate conversations between the department and community groups.

The NYPD's "High Error Rate"

The NYPD has stopped over 5 million people since 2004, and during closing arguments Judge Scheindlin noted what had come out many times during the trial—that nearly 90 percent of the time when the police stopped and frisked people, they found no criminal behavior and almost never found any guns.

Scheindlin commented on the NYPD's "high error rate" saying, "A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun." Addressing one of the lawyers for the city, she said, "You reasonably suspect something and you're wrong 90 percent of the time... That is a lot of misjudgment of suspicion."

A commanding NYPD officer of the 67th Precinct, during his testimony, even admitted worrying that these stops were illegal. At the end of 2012, only 4 percent of the stops in the 67th Precinct, which covers East Flatbush, Brooklyn, resulted in arrests or summons. When Judge Sheindlin asked Inspector Kenneth C. Lehr from the 67th Precinct if this concerned him, Lehr said, "yes." When asked if he was worried the stops might be unlawful, Lehr said, "yes."

The city argued that stop-and-frisk is intercepting criminals before they can act. But testimony by victims of stop-and-frisk painted a vivid picture of how stop-and-frisk creates a whole repressive situation where for millions of people there is always the threat that you could be stopped for no reason at all; put up against the wall, disrespected, humiliated, maybe unjustly arrested, beaten up, or worse.

Racial Profiling

A major part of the plaintiffs' case was that cops are stopping hundreds of thousands of people for no reason other than the fact that they are Black and Latino—that the NYPD is carrying out racial profiling. CCR lawyers offered a lot of different statistics to support this charge, including one stark fact—that while Black and Latino people are about 50 percent of the city's population, they have been about 85 percent of those stopped.

Lawyers for the city argued that this is not racial profiling—that this simply reflects "crime patterns." But the judge herself called this a "worrisome argument" that could lead to racial profiling. In other words, if an officer is already thinking that most of the people who commit crimes are Black and Latino, then they are going to lean toward stopping Black and Latino people because, as Scheindlin said, "it's more likely that he's going to be committing a crime than a white person, so that gives me further reasonable suspicion."

Scheindlin said, "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. So you may worry that they're adding race in as a reasonable suspicion factor."

In other words, Scheindlin was pointing out that, in high-crime areas, simply being Black is a factor in determining that someone should be stopped for "reasonable suspicion."

And where is the judicial principle of innocent until proven guilty??!! If the NYPD is stopping people on the basis that "this is a high-crime area and most of the people who commit crime in this area are Black and Latino"—then the cops are basically stopping people based on "guilty until proven innocent." This is the mindset of armed enforcers of a system that has criminalized a whole section of society, where Black and Latino youth are routinely considered guilty until proven innocent.

The CCR also argued that racial profiling is being carried out with stop-and-frisk. An open expression of this came out very sharply when a recording was played that had been secretly made by Officer Pedro Serrano of the 40th Precinct in the South Bronx. A superior officer is heard on the tape urging Serrano to stop and, if necessary, frisk "the right people at the right time, the right location." When Serrano asks for more specifics the superior says, "I have no problem telling you this, male blacks 14 to 20, 21."

The cops are stopping people based on racial profiling. But these cops, of course, aren't openly saying, "I'm stopping you because you're Black." But they do have to state a reason for why the person is being stopped. So on the UF-250 forms they fill out, they end up giving all kinds of bogus, bullshit reasons for why the person was stopped—like they were making a "furtive movement"—the reason given for over 50 percent of stops. Cops also say they stop people simply because they are in "high-crime areas." But many Black and Latino people are also stopped in other areas. Cops also say they stop people because they see a "suspicious bulge." But these stops have resulted in finding only one gun for every 69 stops that cite such a "bulge." And here one has to ask—if the cops started stopping everyone on the street who had a similar type of "bulge" in their pocket, would the statistics really be 85 percent Black and Latino people?

Under the Fourth Amendment, which is supposed to guard against unreasonable searches and seizures, cops need to have "probable cause" to stop and search someone—that is, they are supposed to have a good reason to believe a person has committed or is about to commit a crime. In 1968, this standard was lowered when a U.S. Supreme Court decision in the case of Terry v. Ohio said the police could stop and search people in a public place if the officer "reasonably suspects" someone is about to commit a crime.

"Reasonable suspicion" is a a lot more vague than "probable cause"—which means, as judge Scheindlin pointed out, there is room for race to become a factor in determining there is "reasonable suspicion" to carry out stop-and-frisk. Again, this underscores how stop-and-frisk is unconstitutional.

Top City Defenders of Stop-and-Frisk

Throughout this trial Mayor Bloomberg and New York Police Commissioner Ray Kelly continued to aggressively speak out in the media to defend stop-and-frisk. They claim stop-and-frisk is necessary to fight crime and get guns off the street—even though only 6 percent of stops result in any arrests and guns are found in only 0.15 percent of stops. Bloomberg says stop-and-frisk is responsible for a drop in crime in the city. But crime has declined all over the country, including in places that have not used such aggressive and unconstitutional measures. Also, as many people have pointed out, if there really were a correlation between crime and stop-and-frisk stops, then in 2012, when stops went down by 20 percent, the murder rate would have gone up. But in fact, the murder rate fell to an all-time low that year.

The fact that these top officials are so vociferously defending stop-and-frisk—which has been so clearly exposed as violating people's rights—just underscores the illegitimacy of their rule.

Stop-and-Frisk IS the Crime

  • In her closing summation, Gretchen Hoff Varner, one of the lawyers for the plaintiffs, said, referring to the NYPD, "They laid siege to Black and Latino neighborhoods over the last eight years ... making people of color afraid to leave their homes."

  • During his testimony for the plaintiffs, State Senator Eric Adams told the court about a conversation he had with NYPD Commissioner Kelly in which they discussed stop-and-frisk. Adams said he raised his concern to Kelly about the "disproportionate number of blacks and Hispanics that were being targeted, particularly young people, and that it was unfairly targeting that group..." Then, when asked about how Kelly responded to this, Adams said, "what stood out most for me is that he stated that he targeted or focused on that group because he wanted to instill fear in them, every time they leave their home, they could be stopped by the police." Adams was then asked, "When you say that group, you mean black and Hispanic youth, correct?" And to this, Adams said, "Yes." (Quotes from official court records.)

  • Officer Pedro Serrano secretly recorded roll call meetings and conversations with his supervisors. Serrano said he and other officers were "handcuffing kids for no reason" in the Bronx as a result of what was in effect a quota system at his precinct.

  • Sixteen-year-old Devin Almonor told his story on the stand of how he was stopped. He was 13 years old when he was stopped as he was walking home. He said, "They began to grope me, they began to pat me down for any weapons... They pushed me up against the car of the passenger side and they began—then they began to handcuff me." Almonor was also asked why he decided to become a plaintiff in this case, to which he answered, "Because I believe that—I don't want anyone else to go through this incident because it's very frightful, and I am willing to fight against injustices."

These are only some of the moments in this very important trial which exposed the thoroughly illegitimate, unconstitutional, and racist nature of the NYPD's practice of stopping and frisking hundreds of thousands of people every single year. This lawsuit is part of growing opposition and struggle against stop-and-frisk—where there have been marches and protests; civil disobedience at police precincts, leading to arrests and trials; victims of stop-and-frisk telling their stories in the media; and prominent figures coming out against stop-and-frisk. All this has created a very charged situation where the powers-that-be cannot ignore the fact that increasingly, in the eyes of many people, what the NYPD is doing is illegitimate. And for some, this can begin to call into question the legitimacy of the whole system. This trial has further contributed to this very important dynamic.

In this country nearly 2.4 million people are behind bars—with the majority Black and Latino men. Stop-and-frisk serves as a pipeline for this mass incarceration: hundreds of thousands of Black and Latino youth getting stopped, put in a database, labeled a "gang member," maybe they get charged for something small a bunch of times and it all adds up. Then pretty soon they end up facing time and if they ever get out, they're marked for life, denied a job, housing, benefits, the right to vote. As Carl Dix has pointed out, this is nothing less than a "a slow genocide that could easily become a fast one targeting Black people."

These are the stakes of the struggle against stop-and-frisk, and now millions of people will be waiting to see the outcome of this significant trial. But whatever the judge decides, this lawsuit has played an important role in further exposing the criminal nature of stop-and-frisk.

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