Class Action on NYPD Stop and Frisks Proceeds

     MANHATTAN (CN) – In a passionate opinion, a federal judge granted class certification status in a landmark trial opposing racial disparities in stop-and-frisk policing, and put the New York City Police Department on notice that they might face court oversight by the end of trial.
     Every person who has been stopped by police since Jan. 31, 2005, without reasonable suspicion will become a member of the class as a result of the decision, a number that court documents indicate will likely include “well over one hundred thousand” people.
     A staff attorney from the civil rights group that brought the lawsuit said the decision showed that the court understood that stop-and-frisk policy implicated high-ranking city officials in civil rights abuses.
     “The Court has rightly recognized that illegal stops-and-frisks are not limited to a few rogue police officers but are the product of a program designed at the highest level of the police department and affect hundreds of thousands, if not millions, of New Yorkers,” said Darius Charney of Center for Constitutional Rights. “As a result of today’s ruling, all those for whom this practice is a daily reality will now have an opportunity to challenge it as a violation of their fundamental constitutional rights and to ask the Court to order real changes in NYPD stop-and-frisk policy.”
     In contrast, a New York City Law Department spokesperson offered muted criticism.
     “We respectfully disagree with the decision and are reviewing our legal options,” Connie Pankratz said.
     Drawing on research by Columbia Professor Jeffrey Fagan, U.S. District Judge Shira Scheindlin noted that police have stopped, questioned and frisked New Yorkers and visitors more than 2.8 million times between 2004 and 2009.
     Continuing research indicates that this number is rising annually, and that nearly 90 percent of those stopped are black and Latino.
     While the NYPD Deputy Commissioner Paul Browne asserts that “stops save lives,” Professor Fagan intends to testify at trial that the vast majority of stops turn up no weapons, drugs or illegal activity.
     At a sure-to-be closely watched trial, four black and Latino men who have been stopped will try to put an end to the practice.
     “This case presents an issue of great public concern: the disproportionate number of blacks and Latinos, as compared to whites, who become entangled in the criminal justice system,” U.S. District Judge Shira Scheindlin wrote, in a decision green lighting the class on Wednesday. “The specific claims raised in this case are narrower but they are raised in the context of the extensively documented racial disparities in the rates of stops, arrests, convictions, and sentences that continue through the present day.”
     In a recent motion, the NYPD asked Scheindlin to leave police policy between the department and the city legislature.
     “If a court could fashion an injunction that would have this effect, then it is likely that lawmakers would have already passed laws to the same effect,” the NYPD’s brief stated. “An injunction here is exactly the kind of judicial intrusion into a social institution that is disfavored.”
     Scheindlin called the request “disturbing” on three levels.
     “First, suspicionless stops should never occur,” Scheindlin wrote. “Defendants’ cavalier attitude towards the prospect of a ‘widespread practice of suspicionless stops’ displays a deeply troubling apathy towards New Yorkers’ most fundamental constitutional rights,” Scheindlin wrote.
     She also rejected the NYPD’s “audacious” argument that reforming stop-and-frisk should be left to the legislature.
     “Second, it is not readily apparent that if an injunction preventing such widespread practices could be fashioned, it would already have been passed by lawmakers,” Scheindlin continued, adding that 27 members of the Black, Latino and Asian Caucus of City Council told her otherwise in an amicus brief.
     “It is rather audacious of the NYPD to argue that if it were possible to protect ‘the right of the people to be secure in their persons’ from unlawful searches and seizures by the NYPD, then the legislature would already have done so and judicial intervention would therefore be futile. Indeed, it is precisely when the political branches violate the individual rights of minorities that ‘more searching judicial enquiry’ is appropriate.”
     In a footnote, she cited a Supreme Court ruling calling the NYPD’s position antithetical to the theory of our nation’s founding.
     “If we were to accept the State’s argument, we would be enshrining the rather perverse notion that traditional rights are not to be protected in precisely those instances when protection is essential, i.e., when a dominant group has succeeded in temporarily frustrating exercise of those rights,” she wrote, citing the majority opinion in U.S. v. Carolene Prods. Co. “We prefer a view more compatible with the theory of this nation’s founding: rights do not cease to exist because a government fails to secure them. See The Declaration of Independence (1776).”
     In her closing, she wrote, “Third, if the NYPD is engaging in a widespread practice of unlawful stops, then an injunction seeking to curb that practice is not a “judicial intrusion into a social institution” but a vindication of the Constitution and an exercise of the courts’ most important function: protecting individual rights in the face of the government’s malfeasance.”
     Parties will attend a status conference on the case on May 29.

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