Wednesday, October 26, 2016

"The Consequences of Disparate Policing: Evaluating Stop-and Frisk as a Modality of Urban Policing"

The title of this post comes from this piece by Professor Aziz Huq now available on SSRN. The abstract states:

Beginning in the 1990s, police departments in major American cities started aggressively deploying pedestrian stops and frisks in response to escalating violent crime rates. Today, high-volume use of “stop, question and frisk,” or “SQF,” is an acute point of friction between urban police and minority residents. In numerous cities, recent consent decrees or settlements have imposed Fourth Amendment and Equal Protections constraints on police. But do these constitutional rules adequately respond to the harms of SQF? This Article argues that the core moral objection to SQF does not track the Constitution’s focus upon the evidentiary sufficiency of stops or the racial animus of individual officers. I develop instead a new account of the distinctive wrong of aggressive street policing that is not contingent on individual animus or fault. This alternative account turns on the manner in which such policing can reproduce social and racial stratification. To substantiate this, I present a detailed analysis of the costs and benefits of SQF, with careful attention to its ecological spillovers and dynamic, intergenerational effects. Having explained why constitutional law, given its narrow transactional frame, is disarmed from an effective response, I present the alternative lens that is constitutionally and legally available for diagnosing harmful forms of urban street policing. This draws from the disparate impact framework of Title VI of the 1964 Civil Rights Act and certain states’ laws. While an imprecise fit, disparate impact is legally feasible and readily available. To show that it is workable, I sketch three lines of econometric analysis capable of identifying an especially troubling subclass of racial disparate impacts in urban street policing.

October 26, 2016 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Friday, January 30, 2015

"Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident"

The title of this post comes from this upcoming paper by Professor Tracey Meares, the abstract of which states:

This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.

January 30, 2015 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Friday, October 17, 2014

NYPD police union argues for continuing stop-and-frisk appeal

Last year, U.S. District Court Judge Shira Scheindlin held the NYPD's stop-and-frisk policy unconstitutional and ordered reforms. The 2nd Cir. initially stayed Scheinlin's order, but it later vacated the stay.* Then-Mayor Bloomberg defended the policy and appealed, but now-Mayor de Blasio had other plans. He announced that the city would not defend the use of stop-and-frisk, and new NYPD Commissioner William Bratton thinks that's ok. But the police union isn't happy. Although it was not a party to the appeal, it filed a motion in federal court to take it up. The district court rejected its motion because it hadn't been timely. On Wednesday, the 2nd Cir. heard oral arguments in the union's appeal of that decision. 

* An earlier version of this post mistakenly said the 2nd Cir. affirmed Judge Scheinlin's ruling. 

October 17, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Thursday, October 16, 2014

"Stop and Frisk: Balancing Crime Control and Community Relations"

The title of this post comes from this recent report by The Urban Institute, the abstract of which states:

Police have been stopping, questioning, and frisking pedestrians for decades in an effort to protect themselves and the public from harm. However, pedestrians may view the stop and frisk experience as unjustified and perceive that they are subject to unfair and overly aggressive treatment. These feelings are most pronounced for those residing in high-crime areas that are targets for intensive stop and frisk activities. Because citizens’ views of the police contribute to their willingness to cooperate with and empower law enforcement, minimizing the negative effects of stop and frisk is crucial for overall police effectiveness and is especially important for improving relations with communities of color. This publication discusses the constitutionality and legal precedents of stop and frisk and the theory and practice behind these street stops. This background is followed by a discus¬sion of stop and frisk’s unintended consequences and a series of practical recommendations for the lawful and respectful use of pedestrian stops in the context of community policing.

October 16, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Monday, October 13, 2014

"Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances"

The title of this post comes from this recent paper by Professor Anil Kalhan, the abstract of which states:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse. With enormous amounts of news, opinion, and other information instantly available online, it has become trivially easy for judges to independently research matters outside the formal judicial record that they deem relevant to the cases before them. As a result, judges increasingly appear to render decisions based on extrajudicial sources, but without meaningful constraints or norms to guide and limit the practice. The panel’s actions illustrate the hazards in this apparent trend. Throughout the stop and frisk litigation, New York City officials relentlessly attacked Judge Scheindlin in the media for her alleged “bias” against law enforcement, but declined to actually seek her recusal. By validating and giving effect to that campaign — based entirely on what they had read in the newspapers — Judges Cabranes, Walker, and Parker openly permitted the norms of contemporary political discourse embodied in those news stories to displace the norms of reasoned judicial decision making, and unnecessarily inserted themselves into the mayoral election campaign.

Whatever the precise reasons for the conduct of Judges Cabranes, Walker, and Parker, both due process and the quality of their adjudication suffered as a result. And ironically, the three judges also thereby failed to satisfy the very standards to which they sought to hold Judge Scheindlin. The procedurally irregular and substantively deficient nature of their adjudication gave more than ample cause for reasonable observers to question the three judges’ own impartiality and propriety, and undermined the decisional independence that trial judges must enjoy to render fair and impartial decisions that are seen as legitimate across the full spectrum of the public’s diverse litigants and communities.

October 13, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Thursday, September 25, 2014

"Following the Script: Narratives of Suspicion in Terry Stops in Street Policing"

The title of this post comes from this recent paper by Professors Jeffrey Fagan and Amanda Geller. The abstract states:

Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.

Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.

September 25, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Monday, September 8, 2014

Video shows NYPD officers beating man during routine noise disturbance call's Johanna Rothkopf notes this local report on a young man in the Bronx who was violently beaten by NYPD officers responding to routine noise disturbance. The video shows the two officers stop-and-frisk the young man. After more officers arrive, it shows them kicking him and hitting him with nightsticks and fists.

NYPD Internal Affairs Bureau is reportedly investigating the incident.

September 8, 2014 in Excessive Force, Stop-and-frisk | Permalink | Comments (0)

Friday, April 11, 2014

"Analyzing the SDNY's Amended 'Related Case' Rule: The Process for Challenging Nonrandom Case Assignment Remains Inadequate"

The title of this post comes from Professor Katherine MacFarlane's latest contribution to the stop-and-frisk debate, the abstract of which states:

Cartman-Cop1On October 31, 2013, the Second Circuit relied on a little-known Division of Business Rule to remove a well-respected and long-serving jurist from two high-profile stop-and-frisk cases. This highly unusual and unexpected move has stirred up an uproar of public support for the judge. But the Southern District of New York’s Division of Business Rule 13, the catalyst for a series of unprecedented procedural twists and turns, has been left unexamined. This essay refocuses the discussion on the overlooked rule at issue in Judge Scheindlin’s removal. First, it explains the consequences of Rule 13’s Division of Business label. Unlike local rules of civil procedure, Rule 13 is not subject to review by the Second Circuit, nor is it open to public comment. Creation and enforcement of a district court’s division of business rules are delegated to the court itself; unsurprisingly, decisions made pursuant to such rules are largely unreviewable. Next, this essay explains that precisely because it was a division of business rule, Rule 13 permitted case assignment decisions that might have raised red flags had they occurred pursuant to a local rule of civil procedure. This essay further argues that Rule 13 was only nominally a rule about relatedness. Instead, it functioned as a mechanism through which judges could pull certain cases onto their docket based on the cases’ subject matter. Rule 13 is the reason so many high-profile stop-and-frisk cases were sent to Judge Scheindlin, as opposed to being divvied up at random amongst all S.D.N.Y. judges. The essay also tracks how the stop-and-frisk cases were assigned, their odd procedural history on appeal, and recent hints of settlement. 

On December 18, 2013, the S.D.N.Y adopted amendments to Division of Business Rule 13, seemingly in reaction to the circumstances that caused Judge Scheindlin’s removal. This essay ends with an analysis of the amendments, concluding that they do not do enough to explain why a judge decides to deem a case related to an earlier-filed matter. The amendments also do not create meaningful motion practice through which parties can challenge a relatedness decision. Rather, the district’s case assignment procedures remain shrouded in secrecy, and, most disturbingly, are still easy to manipulate. If a judge wants to overcome random case assignment and engage in subject matter-specific case shopping, the S.D.N.Y.’s Division of Business rules will not stop it.

CRL&P related posts:

April 11, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Thursday, March 27, 2014

While on the topic of stop-and-frisk...

The Atlantic today has What Stop-and-Frisk Means to the Descendants of Slaves by Theodore R. Johnson, which begins:

Jehu Grant was a Rhode Island slave who escaped the bondage of his anglophile master to join the fight for American independence. He was in his eighth month of service in George Washington’s Continental Army when the military returned him to his owner. Years later, Grant obtained his freedom papers and, as an 80 year old indigent man who’d lost his eyesight, he applied for the military annuity authorized in the Pension Act of 1832. His appeal was denied because the War Department determined that a slave could not also be a soldier. Despite a commitment to America’s founding principles and a mortal fight for liberty, he was denied capital gain by the very nation in which he’d literally placed his blind trust.


Grant’s story is instructive: as a black man, I know America was not intended for me. This is not an indictment; it’s just reality. When the nation was forged from fruited plains and purple mountain majesties, it was crafted for a specific, privileged segment of the population. The founding fathers determined that the actual construction of the republic was a higher priority than ensuring that the rights it promised were available to everyone. Pragmatism ruled over idealism. Despite a national gospel that deified freedom and independence, the exclusion of black liberty was coded into the American DNA.


This is what Daniel Bergner ultimately details in his April Atlantic article, “Is Stop-and-Frisk Worth It?” The proactive policing program is ostensibly an honorable attempt to provide safe communities. But whether or not the program is effective (the rationale and statistics have so far been insubstantial), the discriminatory way it is carried out reflects the same pathologies that thwarted our first attempts at liberty. Stop-and-frisk isn’t racist on purpose. It was just born that way.

March 27, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, March 26, 2014

"Stop and Frisk Didn't Make New York Safer"

The Atlantic's Donald Braman writes:

When former NYPD Commissioner Ray Kelly was asked what would happen if stop-and-frisk were curtailed, his response was characteristic of his tenure: “No question about it,” he said “violent crime will go up.” When homicides rose in Chicago, Chicagoans clamored for NYPD-style stop-and-frisk. The same premise is repeated by proponents of stop-and-frisk throughout Daniel Bergner’s illuminating Atlantic article: if you want to reduce crime, you have to be willing to suffer more aggressive policing tactics.


In reality, there’s no good reason to assume that these strategies work to reduce crime. David Greenberg has conducted the most comprehensive analysisof the relationship between the NYPD’s practice of stop-and-frisk and crime levels to date, and he finds “no evidence that misdemeanor arrests reduced levels of homicide, robbery, or aggravated assaults.”


No one thinks a police officer with a reasonable suspicion that a suspect has a gun should be barred from frisking the suspect, but that is not what stop-and-frisk has come to mean. The now-abandoned practice of requiring officers (often fresh out of the academy) to meet performance goals for citations and arrests seems wrong on several levels, but the most fundamental one is that it doesn’t reduce crime. A close second is the increased costs to families and communities. As Bruce WesternAmanda GellerChristopher Wildeman, andmany others have described, the collateral damage from broad criminalization is far-reaching, and concentrated on the populations that can least afford them.


So why are so many so enamored of these dubious tactics?

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

"The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'"

The title of this post comes from this recent contribution to the debate over NYC's stop-and-frisk program by Professor Jeffrey Bellin, the abstract of which states:  

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
CRL&P related posts:

March 26, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Wednesday, March 12, 2014

"Probabilities, Perceptions, Consequences and 'Discrimination': One Puzzle About Controversial 'Stop and Frisk'"

The title of this post comes from this essay by Professor Kent Greenawalt, the abstract of which states:

The essay focuses on a particular issue about “stop and frisk” raised by the concern about concentration on young men in racial minorities. Although reference is made to the recent decision in Floyd v. City of New York, my focus is not on what has actually happened in New York and elsewhere, but whether, if there is substantial evidence that a higher percentage of members of a group commit certain kinds of crimes more than members of other groups, it is appropriate for police to stop partly on the basis of whether movements that are somewhat suspicious are made by members of that group, or whether that constitutes inappropriate discrimination.

Using an imagined private analogy and made up statistics about levels of criminal behavior and innocence among different groups, I contend that given the level of probability needed for a stop, i.e., “reasonable suspicion,” the likelihood that a group characteristic could figure importantly in the necessary probability is somewhat higher than when a more demanding standard such as “probable cause” is in play. In respect to a person’s gender and age, I suggest that use of that in applying a probability standard is really uncontroversial. But race is different. Both because of the risk of nonobjective appraisals, based partly on prejudices or implicit cultural assumptions, and because of the harmful negative message conveyed to members of minorities subject to stops, I conclude that police should not explicitly use race as a factor (unless they are looking for a person already identified by his race). I also believe this problem is serious enough so that such use should be viewed as a constitutional violation.

March 12, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Thursday, February 13, 2014

Police unions pursue appeal of ordered changes to NYPD's stop-and-frisk policy

The dispute over the NYPD's stop-and-frisk policy appeared to have come to a conclusion last month when new NYC mayor Bill de Blasio announced that the city would not pursue its appeal of ordered changes to the policy. But, last Friday, unions representing much of the NYPD announced that it won't acquiesce so easily. The Associated Press reports:

Police unions told a federal appeals court Friday that they want the courts to decide whether a judge properly ordered changes to the New York Police Department's stop-and-frisk program even if the city no longer wants to challenge her rulings.


Unions representing most of the 35,000 members of the nation's largest police force told the 2nd U.S. Circuit Court of Appeals that they would like to continue the case despite the city's recent announcement that it wanted to drop its appeal and settle the case in the lower court.


Bar3n-1-webNew York City Mayor Bill de Blasio announced last month that the city would agree to the appointment of a monitor to oversee a process to reform stop-and-frisk tactics after U.S. District Judge Shira Scheindlin concluded last summer that the crime-reduction program was sometimes carried out in a discriminatory manner and that a monitor was necessary. De Blasio's administration also asked the 2nd Circuit to drop its appeal, which was made by his predecessor, Mayor Michael Bloomberg.


When the city made its request, the appeals court invited the unions to submit written arguments saying why they oppose the city's request to return the case to the lower court for an eventual settlement.


"The court entered findings that unfairly besmirch the reputations of the men and women of the NYPD, imposed facially overbroad remedies, and exposed the NYPD to an unwarranted and indefinite period of federal supervision," according to papers submitted to the appeals court on behalf of the Patrolmen's Benevolent Association, the Detectives Endowment Association, the Lieutenants Benevolent Association and the Captains' Endowment Association.


"The contemplated injunction would directly burden the officers' daily work and would impair the police unions' collective bargaining and other rights," lawyers for the unions said.

In separate papers, the Sergeants Benevolent Association said a dismissal of the city's appeal "would leave in force the two grossly flawed opinions" from Scheindlin.


It said its members were "among the most harshly criticized individual NYPD officers mentioned in the opinions" and "deserve the opportunity to defend and vindicate themselves through this appeal."


The unions also invited the 2nd Circuit to vacate Scheindlin's rulings as a condition of approval for any agreement reached between the city and plaintiffs in lawsuits challenging the stop-and-frisk procedures.


The unions said they have been injured by the rulings because "their daily work lives will be changed substantially if the remedies embodied in the district court's order — now to be embodied in a consent decree — are ever to be implemented."


Last year, the 2nd Circuit took the unusual step of removing Scheindlin from the case, saying she misapplied a related ruling that allowed her to accept it to begin with and had inappropriately spoken publicly about the case. Lawyers for the judge have challenged her removal.


Baher Azmy, legal director of the civil liberties group Center for Constitutional Rights, which had argued on behalf of those challenging the stop-and-frisk tactics, said of the unions: "Mere disagreement doesn't give them the right to intervene in a legal case."


He said the remedial process ordered by Scheindlin includes the police unions, giving them a voice in any reforms.

CRL&P related posts:

February 13, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Friday, January 31, 2014

NYC agrees to stop-and-frisk monitor, reforms

Yesterday, New York City Mayor Bill de Blasio (D) announced that the city will develope reforms to end the discriminatory use of stop-and-frisk. The mayor's announcement ends a lengthly legal saga that peaked last August when a district court judge ruled NYC's stop-and-frisk program unconstitutional and ordered reforms. The appellate court subsequently removed the district judge from the case, although she later was exhonerated of "judicial misconduct."  The appellate court also upheld her ruling.

The title of this post comes from this article, which begins:

The new mayor on Thursday delivered on his campaign promise to reform stop-and-frisk police tactics, agreeing to the appointment of a monitor and seeking to end a 14-year court fight that culminated in a judge's ruling that New York City had discriminated in carrying out the crime-reduction program.


StopAndFrisk-300_0_0"We believe these steps will make everyone safer," Mayor Bill de Blasio told a Brooklyn news conference shortly after city lawyers asked the 2nd U.S. Circuit Court of Appeals to return the case to the lower court "for the purpose of exploring a full resolution."


He added: "This will be one city where everyone rises together, where everyone's rights are protected."


He said the city agreed to the appointment of a monitor for three years to oversee the creation of reforms aimed at ending discrimination. The monitor will oversee a process in which those communities most affected by the stop-and-frisk tactics will provide input on the reforms.


"I can't wait to get started," said Vincent Warren, executive director of the Center for Constitutional Rights, which has represented plaintiffs in the lawsuits.


But he cautioned that the announcement did not mean discrimination would immediately end.


"Nobody standing here today is pretending this is mission accomplished. The problem hasn't been solved," he said. "We will have a collaborative reform process. We'll have a court monitor to ensure these reforms move forward."


Police Commissioner William Bratton said the policy as it had been carried out for years had left too many people who were frisked asking, "Why, why me?" while police officers being pressed to make ever more arrests even as crime rates fell dramatically were wondering, "Why more?"


He said the practice had torn the fabric between the police and the population. "We need to repair it," he said.

CRL&P related posts:

January 31, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Saturday, January 25, 2014

Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City

In this forthcoming article, Professor David A. Harris contends that the actual effects of stop-and-frisk policies as a whole remain obscure because more data is needed from cities other than New York City to ascertain such effects.  The title of this post comes from the title of the article, the abstract of which states:

This article presents the results of a survey conducted by the author of 56 police departments across the country concerning the practice of data collection on stop and frisk practices of those police departments. These results are discussed against the backdrop of the debate on stop and frisk, examined in this article through a review of the legal basis for the practice and its use by police departments. The article then argues that greater data collection efforts in places other than New York City, where such efforts have been more robust than elsewhere, could broaden and deepen the debate on stop and frisk and better inform the larger debates over the impact of race on criminal justice, particularly with respect to the question of whether stop and frisk necessarily has a disparate impact on racial and ethnic minorities, as New York City data indicates.

CRL&P related posts:

January 25, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Thursday, January 9, 2014

Debate: The Constitutionality of Stop-and-Frisk in New York City

Professors David Rudovsky and Lawrence Rosenthal at the University of Pennsylvania Law Review Online. Here's the abstract:

Stop-and-friskStop-and-frisk, a crime prevention tactic that allows a police officer to stop a person based on “reasonable suspicion” of criminal activity and frisk based on reasonable suspicion that the person is armed and dangerous, has been a contentious police practice since first approved by the Supreme Court in 1968. In Floyd v. City of New York, the U.S. District Court for the Southern District of New York ruled that New York City’s stop-and-frisk practices violate both the Fourth and Fourteenth Amendments. Professors David Rudovsky and Lawrence Rosenthal debate the constitutionality of stop-and-frisk in New York City in light of Floyd and Judge Shira A. Scheindlin’s controversial removal from the case. Professor Rudovsky argues that Floyd shows the important role of data and statistical analysis in assessing the constitutionality of stop-and-frisk procedures. He contends that empirical evidence regarding both the factors for and outcomes of stops and frisks in New York demonstrates that either the legal standard is too permissive or police-stop documentation is not truthful. In response, Professor Rosenthal argues that Judge Scheindlin erred in failing to consider evidence of stop-and-frisk’s efficacy — evidence indicating that the NYPD’s stops are based on reasonable suspicion, a standard considerably less demanding than “preponderance of the evidence.” Additionally, Rosenthal argues that Judge Scheindlin should have considered differential offending by race or other potentially nondiscriminatory explanations for the higher stop rates of minorities.

CRL&P related posts:

January 9, 2014 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Tuesday, December 31, 2013

UPDATE: SDNY amends related-case rule to increase transparency over case assignments

Earlier this week, I noted the South District of New York's recent change to the related-case rule. Judge Nancy Gertner offers this intriguing comment regarding the change as it relates to Judge Scheindlin's conduct in the aforementioned Floyd case:

If the new case related assignment rules reported in this blog increase the transparency of the process, it is all to the good. Likewise if Professor MacFarlane’s work contributed to that end, she likewise deserves credit. But there are larger issues involved: Prior to these rules and at the time Floyd was filed, any party could have objected to the assignment of the cases to Judge Scheindlin, moved for her recusal, and waited for her response. If she declined recusal and wrote a decision, her opinion would have been appealed to the Second Circuit.


What is so troubling about this case is that none of this was done. Disqualification law reflects a skepticism about parties who move for disqualification only after they lose on the merits; it appears like a post hoc contrivance. While these parties did not move to disqualify ever – at the trial level, or at the appellate level (after at least one of the second circuit judges at oral argument effectively invited them to do so), they are happy to be indignant now.


Professor MacFarlane’s article reflects that same indignation, which is why I was troubled to find out that she had only left the NY Law Department in April of 2013, and that the SSRN posting did not reflect that fact (although, to be sure, she had not worked on these cases.) Presumably, that will be corrected in the published piece. Significantly, her piece cites to Mayor Bloomberg’s one sided “report” on Judge Scheindlin’s so called anti police bias, which counted only the cases in which she wrote an opinion suppressing evidence. It did not consider all of the cases in which motions to suppress were denied, with only a margin order (“denied.”) It attacks the judge personally and directly, claiming she insinuated herself into the case as a “player with a stake in outcome,” rather than suggesting, as an academic might, that the rules surely offer the potential for manipulation. It fails to give adequate consideration to the reason for the rule, as Judge Kopf wrote on his blog, namely to avoid duplication, the waste of judicial resources. And since there was no briefing, no fair process, Professor MacFarlane’s unanswered article – no, attack -- became the sole basis for the Second Circuit’s extraordinary decision to sua sponte remove the judge from the case.

The original post is attached below.

Continue reading

December 31, 2013 in Stop-and-frisk | Permalink | Comments (0)

Saturday, December 28, 2013

NYPD's stop-and-frisk program dead?

In New York City's Stop-And-Frisk Appeals Are Still Alive—appearing on Brooklyn Law School's Jounral of Law & Policy website PracticumProfessor Katherine Macfarlane argues that it's not. According to Professor Macfarlane, the program could be preserved because the plaintiffs in the Ligon and Floyd cases lacked standing under precedent established by the Supreme Court in City of Los Angeles v. Lyons. Further, she claims that by ignoring Lyons the plaintiffs forwent a valuable opportunity to present a higher court with an opportunity to limit the restrictions of that precedent.

Here's the Introduction:

Will Judge Scheindlin’s decision that the NYPD’s stop-and-frisk practices are unconstitutional stand?  Everyone seems to think so.  On November 22, 2013, the Second Circuit denied the City of New York’s motion to vacate two decisions that ordered fundamental changes to the NYPD’s stop-and-frisk practices: the February 14, 2013 decision in Ligon v. City of New York, and the August 12, 2013 decision in Floyd v. City of New York.  The blow inflicted by the October 31, 2013 removal of Judge Scheindlin from Floyd and Ligon (due to a purported appearance of partiality) now seems irrelevant.  Mayor-elect Bill De Blasio, who takes office on January 1, 2014, has signaled that he will direct the City attorneys charged with appealing and overturning the stop-and-frisk orders to go no further.  The appeals will be set for argument after March 14, 2014, so if De Blasio follows through, the City’s appeal arguments will be mooted.  The Bloomberg administration will never get to defend its stop-and-frisk practices, Judge Scheindlin’s sweeping injunctions will stand, and the plaintiffs’ cause will be vindicated. But this outcome is by no means inevitable.  


The strongest argument in the City’s arsenal is one that it has yet to use: that the stop-and-frisk plaintiffs may lack standing to request the relief the court ordered.  The Second Circuit denied the City’s motions to vacate the orders granting vast injunctive relief “without prejudice,” so more motions may be filed. Moreover, though the City filed its opening briefs in Floyd and Ligon on December 10, 2013 and made no mention of the plaintiffs’ potential lack of standing, standing arguments are never waived. As a result, standing may keep the appeals alive, and stop-and-frisk practices in New York may remain untouched.


Is this the right outcome? Most stop-and-frisk opponents would object. But if City of Los Angeles v. Lyons is properly applied, the inevitable outcome is that the plaintiffs lack standing. In civil rights cases, the logic supporting a plaintiff-friendly outcome must be inscrutable because the rights at stake are so important. If federal court opinions that uphold or expand civil rights are based on faulty logic, not only will the opinions be attacked, the rights themselves will also come under fire. Because Lyons is still good law, the way to overcome it was to acknowledge that Lyons is binding, and then explain how to overcome its holding with a new theory of justiciability, which would then pave the way for a higher court to undo Lyons’ mistakes. Analytical shortcuts and misrepresentations, however, result in unjustifiable standing rulings, and hand the civil rights-unfriendly Supreme Court yet another case through which to further narrow civil rights remedies.

CRL&P related posts:

December 28, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Thursday, December 26, 2013

SDNY amends related-case rule to increase transparency over case assignments

The Southern District of New York has changed its rules for the assignment of cases to judicial dockets. According to The New York Times:

Following public debate over how a federal judge in Manhattan came to oversee a 2008 lawsuit challenging the city’s stop-and-frisk policy, the Federal District Court in Manhattan on Monday [Dec. 23] announced new rules to make the assignment of cases more random and transparent, and to offer a means for parties to object to assignments.

Previously, a party to a lawsuit could request a particular judge for a case in which the facts were "related" to those of a case previously heard by that judge.  

But the rule has its critics. Early this month, for example, CRL&P highlighted Professor Katherine Macfarlane's critique of "nonrandom case assignment" in The Danger of Nonrandom Case Assignment: How the Southern District of New York's 'Related Cases' Rule Shapped the Evolution of Stop-and-Frisk LawProfessor Macfarlane argues that the related-case rule allows judges to step from behind the bench to influence--indeed to make--policy. According to Macfarlane, Judge Scheindlin did exactly that when she heard a series of stop-and-frisk cases, the culmination of which was her ruling in Floyd v. City of New York in which she held that New York City's stop-and-frisk program was unconstitutional. Macfarlane concludes:

Like the Fifth Circuit judge who packed civil rights cases with desegregationist judges, Judge Scheindlin's positions may be guided by the right moral compass and ultimately vindicated, if not by the Supreme Court, then by history. But the manner in which the Souther District of New York's local rules have allowed one judge to select certain cases, and use them to shape the development of important Constitutional law, gives off such an appearance of impropriety that the procedures that allow for such practices must be eliminated. "[T]o perform its high function in the best way, justice must satisfy the appearance of justice." (citing In re Yagman, 796 F.2d 1165, 1178 (9 th Cir. 1986) (internal citations omitted).

Although the appellate court questioned Judge Scheindlin impartiality and removed her from the case, it upheld her ruling. A federal appeals panel later found no bias or misconduct by Judge Scheindlin

The district's new rules require parties using the related-case rule to justify their request in writing; and, they provide an opportunity for objections from disagreeing parties. The judge still has the authority to determine the propriety of the request. But, the judge's decision is subject to review by a three-judge panel, which can require random assignment.

CRL&P related posts:

December 26, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (2)

Friday, December 20, 2013

CRL&P Daily Reads: Dec. 20, 2013

Thursday, December 12, 2013

UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

This comment by Professor Katherine Macfarlane responds to the content of this CRL&P post.

I write regarding Judge Gertner's recent comment.  I am thrilled by the attention and careful read my article, posted on SSRN in August, has received.  It is due to be published in the Michigan Journal of Race & Law next year.  As a result, what appears on SSRN is a draft.  I didn't anticipate that any attention would be paid to it, let alone to my previous employment. 

That said, as most articles posted to SSRN tend to do, the related cases article identifies my current affiliation (with LSU).  My work at the Law Department is disclosed on my LSU faculty page, along with my prior work at Quinn Emanuel, and my federal clerkships. This information has been available on LSU’s website since July.  I am also pretty easy to google—last year I published a short essay in the Huffington Post, and was identified as an Assistant Corporation Counsel.  In July 2013, I published an essay in the New York Observer, and though I was already at LSU by then, my prior affiliation with the Law Department appeared in my byline.  In October, I presented my paper at an academic conference, and discussed the fact that I had previously worked at the Law Department.  In November I wrote another piece about the stop-and-frisk cases for the Observer, and again acknowledged my prior employment at the Law Department.  The Observer piece also mentioned that I had appeared in front of the judge I was writing about. 

Judge Gertner is not the first person to take issue with my writing on this subject (a letter to the New York Observer editor found my piece disappointing, and also referred to me as “this lady”).  What I think may be misleading people is my familiarity with the Daniels and Floyd dockets.  Unlike many more talented and experienced scholars who have written about stop-and-frisk, I used a great deal of sources pulled directly from PACER.  Litigators live on PACER.  But legal scholars do not.  I love the stories dockets tell, and mined the dockets in the cases marked related to Daniels for useful details.  In addition, another rich source of information was CCR's own website, which links to the expert reports the plaintiffs commissioned.  Those reports, as most expert reports tend to do, include the expert’s rate.  

The most frequent criticism I’ve received relates to my “perspective.”  I am happy to admit that I have a very specific perspective, as all legal scholarship should.  And I am of course influenced by my prior work.  My interest in the related cases rule has a lot to do with the time I spent as a federal law clerk.  My interest in civil rights stems from the time I spent at MALDEF and the summer I worked for the outstanding California civil rights litigation firm run by Dan Stormer and Barbara Hadsell. 

But there’s something else going here.  Aside from my docket-heavy research, I also addressed judicial behavior, and named the judge I was talking about.  This, I suspect, has rubbed many the wrong way.  It’s certainly fair to say that the academic response has been decidedly in favor of the stop-and-frisk judge.  I cannot think of any academic amici who have backed the decision to remove her, though there are intellectually defensible arguments on both sides.  The New York Times’ “Room for Debate” series on this topic wasn’t a debate at all—like Judge Gertner, all participants were against the decision to remove.

I joined the Law Department in 2011 and ended my employment there in April 2013.  I worked on about 50-60 cases, some big, some small.  I did not work on any of the stop-and-frisk matters.  For ethical reasons, I would have had great reservations writing about any case I was involved in.  Yet my decision to write about a topic I care about is not that unusual, nor should I be discouraged from doing so.  Former ADAs become defense counsel.  Former law clerks turn journalists.  Former judges become professors. Once in a great while, former city attorneys break into academia.  All of us are shaped by our prior work, and we should be encouraged, not discouraged, to look to our past experiences for guidance, so long as we do so ethically.

December 12, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Wednesday, December 4, 2013

UPDATE: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

On December 2, 2013, I posted the abstract from an article arguing that some federal judges have been able to influence policy through a system of non-random case assignment. As an example, author Katherine Mcfarlane pointed to New York District Judge Shira Scheindlin's frequent assignment to stop-and-frisk cases. 

Judge Nancy Gertner since has contributed this insight:

Thanks for the post, but a critical detail was omitted. The author of the article had been assistant corporation counsel for the City of New York since April of 2012, defending the city in civil rights cases. While that doesn't mean there are unimportant insights in the article, her distinct perspective should have been disclosed. As should mine: I was one of the retired judges who signed onto an amicus brief in support of vacating Judge Scheindlin's disqualification at the hands of the Second Circuit -- a decision that was made without a record, briefing, an opinion from the judge. Indeed, a central question we have had is where the panel got its information from -- untested, one sided though it made be. Here's one answer.

Judge Scheindlin had found that the NYPD's stop-and-frisk program discriminated against minorities and was therefore unconsitutional.

The Second U.S. Circuit Court of Appeals removed Judge Scheindlin from cases involving the NYPD's  stop-and-frisk program, and it blocked her ruling pending the city's appeal.

On November 22, the Second Circuit rejected the city's request to vacate her order

CRL&P related posts:

December 4, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (0)

Sunday, December 1, 2013

The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

The title of this post comes from this upcoming article arguing that federal cases are not actually assigned randomly to district judges. Rather, the judges are able to influence policy by accepting cases "nonrandom[ly]" assigned on the basis of subject matter. Here's the abstract:

Stop-and-friskThe Southern District of New York’s local rules are clear: "[A]ll active judges . . . shall be assigned substantially an equal share of the categories of cases of the court over a period of time." Yet for the past fourteen years, Southern District Judge Scheindlin has been granted near-exclusive jurisdiction over one category of case: those involving wide-sweeping constitutional challenges to the NYPD’s stop-and-frisk policies. In 1999, Judge Scheindlin was randomly assigned Daniels v. City of New York, the first in a series of high-profile and high-impact stop-and-frisk cases. Since then, she has overseen an uninterrupted stream of equally landmark stop-and-frisk cases, which culminated in an August 12, 2013 order granting a sweeping injunction against the NYPD. The cases were assigned according to the Southern District’s "related cases" local rule, which allows judges to "accept" a new case related to an earlier-filed case already on their docket. Unlike past stop-and-frisk scholarship, this article addresses the procedural rules that have shaped the development of stop-and-frisk law, arguing that case assignment rules should not permit any district judge to exert total control over the evolution of significant Constitutional jurisprudence.

The article begins by challenging the commonly-held assumption that federal cases are assigned to district judges at random. It explains that although random assignment is widely assumed and generally heralded, it is not enforceable. Instead, district courts retain discretion to assign cases as they wish, with little (if any) obligation for transparency. The article looks specifically to the Southern District of New York’s Local Rules, examining the numerous ways in which cases are assigned to specific judges according to the cases’ subject matter, through a system hidden from the public and devoid of oversight. The article then traces stop-and-frisk litigation from its roots in Terry v. Ohio to the complex and protracted stop-and-frisk cases filed in federal courts across the country today. It explains how police have utilized stop-and-frisk practices before and after Terry, focusing on the Giuliani-era theory of "hot-spot policing." The article turns to the stop-and-frisk litigation before Judge Scheindlin, using it to examine the serious — and substantive — consequences of nonrandom case assignment in an adversary system. Nonrandom assignment allows an interested judge to inject herself into the litigation as a player with a stake in the outcome. Giving one district judge power over an entire category of Fourth Amendment jurisprudence elevates her decisions to a quasi-appellate level of significance, violating the principle that a district court opinion is not binding on any court within the same district. The article proposes amendments to the Southern District’s Local Rules to prohibit manipulation of case assignments, and advocates for the publication of assignment decisions as well as for motion practice challenging the assignments. Finally, it warns of the impact Judge Scheindlin’s control over this area of the law may have if appealed to the Supreme Court. Her decisions take a broad view of a plaintiff’s right to enforce the Fourth Amendment. Yet because her interpretation is so broad, her decisions may be reversed, and the rights at stake narrowed.

CRL&P related posts:


December 1, 2013 in Fourth Amendment, Stop-and-frisk | Permalink | Comments (1)

Sunday, November 24, 2013

CRL&P Daily Reads: Nov. 24, 2013

Saturday, November 23, 2013

CRL&P Daily Reads: Nov. 23, 2013

Tuesday, November 19, 2013

CRL&P Daily Reads: Nov. 19, 2013

Sunday, November 17, 2013

CRL&P Daily Reads: Nov. 17, 2013

Sunday, November 10, 2013

CRL&P Daily Reads: Nov. 10, 2013

Gov. Christie is a strong proponent of "violence control," which sometimes means gun-control.

NYC asks federal judge to vacate the lower court order requiring changes to the city's stop-and-frisk program.

Sen. Wyden discusses Snowden's continuing revelations about the NSA's surveillance program.

ACLU releases a new report on discrimination against military victims of sexual trauma.

Lawyers ask a South Carolina judge for a new trial for the 14-year-old boy executed in 1944.

And, this protester makes a real statement.


November 10, 2013 in First Amendment, Fourth Amendment, Gun Policy, Stop-and-frisk | Permalink | Comments (0)

Thursday, November 7, 2013

CRL&P Morning Reads: Nov. 7, 2013

Sen. Portman supports ENDA after the addition of an amendment strengthening the religious exemption.

Judge removed from stop-and-frisk case claims the Second Circuit's actions violated the Fifth Amendment.

Senate prepares to fight over bill banning abortions after five months.

WaPo's Eilperin says passing gay marriage legislation is going to get more difficult.

Asians and Latinos lagging in voter registration numbers.


November 7, 2013 in Abortion, Election Law, Right to Vote, Same-sex marriage, Stop-and-frisk | Permalink | Comments (0)

Sunday, November 3, 2013

CRL&P Daily Reads: Nov. 3, 2013

Honolulu PD follows growing national trend banning visible tattoos.

Snowden claims increasing scrutiny of NSA and calls for its reform prove he was right to leak collected surveillance information.

Sen. Booker will enthusiastically support ENDA.

NYPD will not reform its stop-and-frisk policy until city's appeal is heard sometime next year by a new judge.

Guardian column argues that 'indoor prostitution' should be legalized.


November 3, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Stop-and-frisk | Permalink | Comments (0)

Thursday, October 31, 2013

CRL&P Daily Reads: Halloween 2013

Second Circuit stays lower court's stop-and-frisk ruling.

Twenty-three percent of Republicans want more women to be elected to office.

Brown University student defends protest against NYPD commissioner as a successful exercise of free speech.

Hawaii is ready to legalize gay marriage.

Chelsea Manning could sue if she doesn't get treatment for gender identity disorder.

Oneida Nation representatives meet with NFL to discuss the movement to change the name of Washington's football team, but NFL stands firm.


October 31, 2013 in First Amendment, Fourth Amendment, Freedom of Speech, Same-sex marriage, Stop-and-frisk, Universities and Colleges | Permalink | Comments (0)

Tuesday, October 29, 2013

NY appeals judges ponder fate of stop-frisk ruling

The title of this post comes from this article reporting that the Second U.S Circuit Court of Appeals may suspend the lower court's ruling that NYC's stop-and-frisk policy is unconstitutional. The article begins:

A federal judge's conclusion that New York City police officers sometimes violate the constitution when they stop and frisk people has made officers "passive and scared" to use the crime-fighting tactic, lawyers warned a federal appeals panel Tuesday as they asked that the ruling be suspended while it is appealed.

The three-judge 2nd U.S. Circuit Court of Appeals asked plenty of questions but did not immediately rule in a case that may be affected in a major way by next week's mayoral election. Democratic candidate Bill de Blasio, who is leading in polls, has sharply criticized and promised to reform the police department's stop-and-frisk technique, saying it unfairly targets minorities.

Attorney Celeste L. Koeleveld, arguing for the city, said officers are "hesitant, unfortunately" to use the tactic anymore.

Attorney Daniel Connolly, making legal points on behalf of former Mayor Rudolph Giuliani and former U.S. Attorney General Michael Mukasey, told judges that city officers were "defensive, passive and scared" about using the technique.

Read more here:

October 29, 2013 in Fourth Amendment, Search, Seizure, Stop-and-frisk | Permalink | Comments (0)