Vol. 28 No. 24 – Federal Court of Appeals Delays Ban On New York’s “Stop and Frisk” Law


On October 31, 2013, in an unprecedented move, the 2nd Circuit U.S. Court of Appeals granted New York City’s motion to stay a district court’s decision, restricting the use of the City’s stop and frisk policy, until the 2nd Circuit hears the City’s appeal in early 2014.

On August 12, 2013, federal district court Judge Shira Scheindlin ruled, after a nine week, non-jury, trial, that the manner in which the New York Police Department (NYPD) applied the “stop and frisk” law was unconstitutional.

In the case of Floyd, et al. v. City of New York, Judge Scheindlin held that New York City officials “willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory and therefore violates the United States Constitution.”

In the Floyd case, four black men sued the City claiming that they had been stopped and questioned or frisked by police without any reasonable suspicion and, therefore, their constitutional right against unreasonable search or seizure had been violated.

Over the past nine years, NYPD had made more than 4 million such stops and more than 80 percent of them involved people who were black or Latino.  Judge Scheindlin ruled that the evidence proved that the policy, as carried out by NYPD, “is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference.”

As such, she 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 monitorto 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.”

Court of Appeal Action

The U.S. Court of Appeals ordered a stay on the remedies she set forth, however, the Courtdid not overturn the Floyd decision.  There has been no ruling by the Court of Appeal on the underlying legality of either the use of the NYPD’s “stop and frisk” policy, nor how NYPD applied it.  That legal proceeding is ongoing in the appellate court.

However, in addition to staying Judge Scheindlin’s decision, it removed her from the case, finding that she “ran afoul of the Code of Conduct for United States Judges.”

The Court found that as a result of her granting at least three media interviews, while the case was pending, “the appearance of impartiality surrounding this litigation was compromised.”  In addition, the Court noted that the judge urged plaintiffs’ counsel to file suit implying that she would accept it as a case related one she already handled.

New York City’s General Counsel issued the following statement about the Court of Appeal ruling:  “In short, the ruling of unconstitutional practices [by Judge Scheindlin] is no longer operative, and that question will now receive a fresh and independent look both by the appeals court, and then, if necessary, by a different trial court judge.”

The City, obviously, continues to argue that the policy was not racially motivated and was applied lawfully.

New York City’s appeal of Judge Scheindlin’s ruling is still proceeding in the Court of Appeals and oral argument will be heard in March, 2014.  If any portion of the case needs to be remanded to the district court for further action, it will be assigned to a judge other than Scheindlin.  Until that time, however, this decision stays the remedial steps ordered by her.


There is no direct impact on California law enforcement as a result of either Judge Scheindlin’s original ruling, or by the Court of Appeal’s action delaying the implementation of it.

What those rulings will hopefully motivate, however, is the review by agencies of their own policies regarding how they utilize the currently lawful stop and frisk law.  Law enforcement agencies need not wait for a final court ruling before analyzing their own policies and procedures, based on the issues raised in those cases.

If you are interested in more information about this case, an article was written by us, reviewing and analyzing Judge Scheindlin’s ruling, when it was first issued.  The article was published in the October edition of  The California Sheriff magazine and is entitled “NYPD’s Use of Stop and Frisk Declared Unconstitutional.”  It can be found on the JONES & MAYER website by clicking on News & Information and then on Published Articles.

As with all legal issues, it is important to receive advice and guidance from your agency’s legal advisor.  However, as always, if you wish to discuss this matter in greater detail, feel free to contact me at (714) 446 -1400 or via email at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney – client relationship.