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NYC Stop-and-Frisk Ruling Leaves City Potentially Liable

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By Brett Snider, Esq. on August 14, 2013 3:42 PM

New York City's stop-and-frisk practice is going to end up costing the city unless the decision reached by a federal district court on Monday is successfully appealed and overturned by the Second Circuit.

U.S. District Court Judge Shira A. Scheindlin ruled that despite its proposed benefits to public safety, the stop-and-frisk tactics taken up by the New York Police Department (NYPD) were simply a "policy of indirect racial profiling," reports The New York Times.

What does Floyd v. City of New York have to say about the viability of stop-and-frisk in NYC?

Overstepped Terry

Terry stops have been continually reaffirmed by the U.S. Supreme Court and lower federal courts, and Judge Scheindlin does not dispute that officers have the power to legally stop with reasonable suspicion of criminal activity.

However, there still need to be specific and articulable facts that give rise to that reasonable suspicion, and it turns out that just being a person of color in a bad neighborhood still isn't enough to justify a stop, according to Judge Scheindlin.

While random stops are allowed in very specific arenas (e.g., DUI checkpoints and border checkpoints), there has not been any case law supporting random stops for the purpose of general crime control.

New York City police were grilled in this case for not having even colorable suspicion to stop many of the Floyd plaintiffs. The Floyd court found it particularly telling that "nearly 90 percent of the people stopped are released without the officer finding any basis for a summons or arrest."

These egregious stops were not to be outdone by the corresponding frisks, which in many cases included reaching into suspects' pockets and rifling through their wallets, despite the fact that the outline of a phone or wallet is rarely ever "immediately apparent" as contraband or a weapon.

Monell and Racial Profiling

NYC Mayor Michael Bloomberg argued that despite the court's ruling, "[y]ou're not going to see any change in tactics overnight," which may coincide with his adamant attitude on the city's success in an eventual appeal, reports The New York Times.

This might not be the best tone to strike, however, given that Judge Scheindlin rightly points out that the city's inaction or tacit sanction of the stop-and-frisk program still leaves the city liable for Monell claims (via Section 1983) for these illegal searches.

Key to this liability was the Floyd court's assertion that "the city's highest officials have turned a blind eye to the evidence" that officers were impermissibly using race as a primary factor in their stops-and-frisks, stopping blacks with a "lesser degree of objectively founded suspicion than whites."

A facially neutral policy like stop-and-frisk, when applied in an intentionally discriminatory manner, cannot stand in the face of Fourteenth Amendment equal protection (see Yick Wo v. Hopkins). If Mayor Bloomberg follows through on NYC's vow to appeal, then the Floyd case may be distinguished from others where the Second Circuit found no discriminatory animus.

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