CSSA Magazine Article – NYPD’s Use of Stop and Frisk Declared Unconstitutional

NYPD’s Use of Stop and Frisk Declared Unconstitutional

By: Martin J. Mayer, General Counsel- California State Sheriffs’ Association

On August 12, 2013, federal district court Judge Shira A. Scheindlin, in an historic ruling, found the New York City Police Department (NYPD) liable for a pattern and practice of racial profiling and unconstitutional stops and frisks.

The case of Floyd, et al. v. City of New York, et al., is a federal class action lawsuit filed against the New York City Police Department and the City of New York, which challenged the NYPD’s use of their stop and frisk practice, claiming the stops were based on racial profiling and were, therefore, unconstitutional. The plaintiffs claimed that the NYPD practices have led to a dramatic increase in the number of suspicion-less stops and frisks in the city, with the majority of stops occurring in communities of color.

The court issued a 195 page order, specifically addressing the claims by four (4) members of the class action, involving 19 stops of various individuals, and concluded that the process used by the NYPD was unconstitutional.  The court did NOT find that the use of the stop and frisk procedure was unconstitutional in and of itself.  Nor, said the court, was this case “about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool.”

The court stated that “New Yorkers are rightly proud of their city and seek to make it as safe as the largest city in America can be. New Yorkers also treasure their liberty. Countless individuals have come to New York in pursuit of that liberty. The goals of liberty and safety may be in tension, but they can coexist — indeed the Constitution mandates it. This case is about the tension between liberty and public safety in the use of a proactive policing tool called ‘stop and frisk.’”

Based on the evidence presented during the trial, the court found that the policy has been in place for over 11 years and, the “New York City Police Department (NYPD) made 4.4 million stops between January 2004 and June 2012. Over 80% of these 4.4 million stops were of blacks or Hispanics. In each of these stops a person’s life was interrupted. The person was detained and questioned, often on a public street. More than half of the time the police subjected the person to a frisk.”

“8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon; 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband; 86% of the time it was not.”

“Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. This alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.”

The court said that it was important to note that, “this case is . . . not primarily about the nineteen individual stops that were the subject of testimony at trial. Rather, this case is about whether the City has a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.”

Municipal Liability

“In order to hold a municipality liable for the violation of a constitutional right, plaintiffs ‘must prove that action pursuant to official municipal policy caused the alleged constitutional injury.’”  Addressing the constitutional issue, the court held that “the Fourth Amendment protects all individuals against unreasonable searches or seizures. The Supreme Court has held that the Fourth Amendment permits the police to “stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”  Additionally, “to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.”

“The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race.  Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted.”

The court identifies “the inherent difficulty in making findings and conclusions regarding 4.4 million stops. Because it is impossible to individually analyze each of those stops, plaintiffs’ case was based on the imperfect information contained in the NYPD’s database of forms (“UF-250s”) that officers are required to prepare after each stop.”  The court notes that the forms only record the officer’s version of the stop; that they are inherently subjective; and are incomplete in many cases.  “Nonetheless, the analysis of the UF-250 database reveals that at least 200,000 stops were made without reasonable suspicion.”

“With respect to both the Fourth and Fourteenth Amendment claims, one way to prove that the City has a custom of conducting unconstitutional stops and frisks is to show that it acted with deliberate indifference to constitutional deprivations caused by its employees — here, the NYPD.  The evidence at trial revealed significant evidence that the NYPD acted with deliberate indifference.”

The court stated deliberate indifference was shown by the fact that reports of racially skewed stops were ignored by the NYPD; that pressure was put on officers and supervisors to increase the number of stops; that no system was in place to ensure that the stops were constitutionally valid; and that many felt a “quota” system was in place.

“Much evidence was introduced regarding inadequate monitoring and supervision of unconstitutional stops. Supervisors routinely review the productivity of officers, but do not review the facts of a stop to determine whether it was legally warranted. Nor do supervisors ensure that an officer has made a proper record of a stop so that it can be reviewed for constitutionality. Deficiencies were also shown in the training of officers with respect to stop and frisk and in the disciplining of officers when they were found to have made a bad stop or frisk.”

“In addition, the evidence at trial revealed that the NYPD has an unwritten policy of targeting “the right people” for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling. While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.”

Court’s Order

The court, ultimately, ordered “various remedies including, but not limited to, an immediate change to certain policies and activities of the NYPD, a trial program requiring the use of body-worn cameras in one precinct per borough, a community-based joint remedial process to be conducted by a court-appointed facilitator, and the appointment of an independent monitor to ensure that the NYPD’s conduct of stops and frisks is carried out in accordance with the Constitution and the principles enunciated in this Opinion, and to monitor the NYPD’s compliance with the ordered remedies.” (Emphasis added.)

The court stated that “(t)he city’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner.”  Further, “in their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory.”


As noted above, the court did not find that the use of the stop and frisk law enforcement technique is unconstitutional.  What the court held as unconstitutional was the manner in which it was carried out.  If the elements are present which justify the stop and frisk, it is perfectly lawful.

The NYPD emphasized that a stop is not made unless the officer is able to articulate “reasonable suspicion” that the subject has committed, is committing, or is about to commit a crime.  “This is something that’s integral to policing,” said NYPD Commissioner Ray Kelly, who appeared on three Sunday talk shows, following the ruling, to defend the policy. “Officers have to have the right of inquiry, if they see some suspicious behavior.” Kelly said the case, which involved four plaintiffs and focused on 19 stops by police, “is very small evidence, a small amount of information, to have such a sweeping finding.”

“The judge has indicted the entire New York City Police Department, 35,000 officers, of racial profiling on the flimsiest of evidence,” Kelly said. “The stark reality is that violence is happening disproportionately in minority communities.” Kelly went on to say that by using this process, police are saving more minority lives, not just targeting them for stops. “We have record low numbers of murders in New York City, record low numbers of shootings, we’re doing something right to save lives,” he added.

The city has already filed an appeal of the judge’s order.

Martin J. Mayer is a name partner in the public sector law firm, Jones & Mayer, located in Fullerton and Roseville, California.  Mr. Mayer has served as general counsel to the California State Sheriffs’ Association for over 30 years.