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Meaghan Winter: Walking While Furtive

March 19, 2013

A look inside the courtroom on the opening day of Floyd v. NYC, the class-action lawsuit challenging the NYPD’s stop-and-frisk policy.

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Image from Flickr via longislandwins

By Meaghan Winter

Yesterday Federal Judge Shira Scheidlin heard opening arguments in Floyd v. the City of New York, the class action that challenges the constitutionality of the New York Police Department’s stop-and-frisk policy. In theory, the ability to stop-and-frisk encourages police officers to prevent rather than just respond to crime. The suit doesn’t question law enforcement’s right to search and question pedestrians, but rather seeks to prove that the NYPD routinely stops-and-frisks pedestrians who don’t deserve the “reasonable suspicion” that makes a search legal. The plaintiffs thereby seek to prove that when searching certain pedestrians for vague reasons like “furtive movements,” the NYPD discriminates against blacks and Hispanics.

The named plaintiff is David Floyd, a City College student frisked by plainclothes police officers near his Parkchester, Bronx home in 2008—he is the representative of a “class” that includes anyone the NYPD has stopped-and-frisked, hundreds of thousands of New Yorkers. A few of the young men who will testify about being searched sat together in the courtroom, one of them resting against his mother as the proceedings wore on. The public overflowed into a separate viewing room and waited on line in the courthouse lobby. In his opening statement, Darius Charney of the Center for Constitutional Rights, counsel for the plaintiffs, said that being stopped and frisked is “not just an inconvenience” but instead “a frightening and degrading experience” that violates the Fourth Amendment’s protection against unreasonable searches and seizures.

Police Commissioner Ray Kelly explained that the NYPD targets young black men “to instill in them the idea that they can be stopped anytime they leave their houses so they leave their guns at home.”

The plaintiffs’ case will hinge on the idea that the NYPD doesn’t have an effective mechanism to check whether stops are made for legal reasons and are actually preventing crimes—Charney’s opening statement focused on outlining systemic problems originating with the NYPD’s leadership. The plaintiffs also argued that although requiring police officers to meet quotas is technically illegal, supervisors mandate quotas anyway. According to Charney, in coming weeks police officers are slated to testify that officers stop pedestrians to avoid negative evaluations. On behalf of the City’s defense, attorney Heidi Grossman implied that these police officers, who will testify for the defense about the informal quota system, are lazy: they “resist work” and engage in “an age-old battle” of “making those who work hard look bad.” Grossman told the courtroom, “A police officer’s job is not to sit in a patrol car eating donuts,” and that the NYPD is not unlike other employers that must negotiate employees’ varying levels of motivation. Interestingly, the plaintiffs’ opening remarks focused on systemic, top-down issues within the NYPD, explicitly declining the argument that officer “animus” motivates frequent or race-based stops, while the City called some of its own police officers’ integrity into question to defend its policy.

Both sides presented a stream of statistics about race and crime that contradicted and seemed to damn the opposition. A disproportionate eighty-five percent of New Yorkers stopped-and-frisked are black or Hispanic, says Charney. Grossman counters that the NYPD uses more of its limited resources in high crime “minority neighborhoods that bear the brunt of crime,” as “over ninety percent of shooting victims are black or Hispanic.” The plaintiffs, though, said that no matter what the demographic of the neighborhood, blacks or Hispanics are still stopped more often and with greater force than whites. Police officers are more likely to arrest a black pedestrian and give a summons to a white pedestrian for the same crime. The majority of crime suspects, the City said, are black and Hispanic, so the stop-and-frisk statistics represent police officers’ pursuit of those suspects. Because black men commit a disproportionate share of the city’s crimes, does law enforcement have the right to suspect all black men (or at least those whose movements across the street may be described as “furtive”) as criminals?

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Reported numbers both supported and belied the stop-and-frisk’s effectiveness. The plaintiffs presented data that only 0.15% of the searches materialize a gun and that ninety percent of the 4.3 million New Yorkers stopped weren’t doing anything illegal when police frisked them. The defense said only six percent of stops were “unjustified,” meaning not motivated by “reasonable suspicion,” and added that failing to find a weapon or contraband or to make an arrest doesn’t mean the stop isn’t “a success.”

The defense didn’t elaborate on why it takes for granted that some people should be exempt from certain laws.

Much of the defense’s opening statement on Monday was spent explaining the NYPD’s chain of command. After a previous lawsuit settled in 2003, the NYPD began requiring police officers to fill out a new form when they stop someone on the street. The City argues that the recent rise in stop-and-frisk numbers represents better records, not more stops. The merit of the new form is a decisive issue in this case. The plaintiffs argue that the form—a series of checkboxes—doesn’t provide the NYPD with enough information to properly monitor and investigate stops-and-frisks. The defense argues that the forms don’t capture all the supervision that is taking place during conversations between officers. The plaintiffs will also argue that after stops officers tend to check the most ambiguous reasons—‘furtive movements’ and ‘high crime area’—which leave room for interpretation and could potentially cover for race-based stops. The “suspicious activity” that David Floyd was engaged in when officers searched him, for example, was trying to use keys in a door. The officers contended the stop was motivated by “a pattern” of burglaries in the neighborhood, but Floyd’s counsel says that reports don’t show any such pattern.

Most of the City’s arguments didn’t seem hard to reason against. It called the plaintiffs’ claim that the NYPD doesn’t engage with communities “a stunning avoidance of reality” and said that expecting the Department to routinely remind police officers not to engage in race-based practices is “like saying don’t lie every time someone speaks.”

According to the plaintiff’s opening statement, Eric Adams, New York State Senator, will testify that in a 2010 meeting Police Commissioner Ray Kelly explained that the NYPD targets young black men “to instill in them the idea that they can be stopped anytime they leave their houses so they leave their guns at home.” Grossman did suggest that the Department expects police officers use their discretion when choosing whom to stop. Officers must “keep their eyes open, develop an intelligence,” and it’s common sense that a pedestrian’s identity matters, for no one “expects the NYPD to stop a little old lady or little old man drinking with an open container.” The defense didn’t elaborate on why it takes for granted that some people should be exempt from certain laws.

If the plaintiffs’ case unravels it will be because the City somehow discredits its rival statistics, or proves definitively that searching black men who are not criminals prevents crimes. In the meantime, the trial will run for roughly the next six weeks and is open to the public.

Meaghan Winter is a writer and teacher based in New York.

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