There are times when the old bunk about an independent and fearless judiciary means a good deal.
--Judge Learned Hand (1)
On August 12, 2013, Judge Shira Scheindlin of the United States District Court for the Southern District of New York handed down a pair of rulings holding New York City liable for violating the Fourth and Fourteenth Amendment rights of black and Hispanic citizens (2) and ordering an extraordinary panoply of injunctive remedies to compel the New York Police Department ("NYPD") to conform its conduct of stops and frisks to the requirements of the Constitution. (3)
Just over two months later, the Second Circuit rebuked Judge Scheindlin for her rulings in that case, Floyd v. City of New York. (4) While the Second Circuit's order did not expressly examine the merits of the liability holding, the order stayed the injunctive relief, and--in the coup de grace--decreed Judge Scheindlin removed from the case "in the interest, and appearance, of fair and impartial administration of justice." (5)
Judge Scheindlin, according to the Second Circuit, had abused a judicial rule permitting plaintiffs to select a particular judge to preside over their case, who, on the date of filing, is presiding over a related case. (6) Although this particular objection was not once raised by the City's attorneys during the years of litigation preceding her removal, it was raised by Mayor Michael Bloomberg in the days after the liability opinion was issued in an op-ed condemning Judge Scheindlin for her "brazen activism" in "offering] strategic advice to the plaintiffs." (7) The Second Circuit also scolded Judge Scheindlin for failing to "avoid ... the appearance of impropriety" by giving interviews to three journalists in which she had "purport[ed] to respond publicly to criticism" of her management of the case. (8) The district judge who had taken New York City to task for biased policing was in turn taken to task for biased judging.
At issue in the Floyd litigation was the NYPD's conduct of investigative street stops--known as Terry stops after the eponymous Supreme Court opinion enshrining their constitutionality (9)--in which officers detain for investigative purposes individuals whose behavior arouses an inference of criminality. Under the watch of Mayor Michael Bloomberg, the annual number of these stops exploded from 314,000 in 2004 to 686,000 in 2011. (10) Between 2004 and 2012, the NYPD reported conducting 4.4 million stops. (11) While the number of stops surged, the grounds for making stops became increasingly tenuous. In the time spanning 2004 and 2009, "the percentage of stops where the officer failed to state a specific suspected crime rose from one percent to thirty-six percent." (12) Simultaneously, officers became increasingly reliant on "inherently subjective and vague" catchwords to articulate their suspicion. (11) By 2009, nearly sixty percent of stops were based in part on suspicion arising from "furtive movements," (14) notwithstanding the evidence that officers "very broad[ly]" interpreted the factor to signify a multitude of enabling meanings. (15)
Scanning the statistical portrait of the NYPD's use of stop and frisk tactics that formed the basis for the opinion in Floyd, the racial disparities are as unmistakable as they are staggering. Of the 4.4 million stop and frisks that NYPD officers reported conducting between 2004 and 2012, eighty-three percent targeted either blacks or Hispanics and just ten percent targeted whites. (16) Yet during the relevant time period, New York's population was around twenty-three percent black, twenty-nine percent Hispanic, and thirty-three percent white in 2010. (17) Stated differently, a black individual was over five times more likely to be stopped than a white individual during much of the past decade in New York.
But raw data can represent an incomplete and misleading picture of reality, given the interaction of innumerable variables other than racial discrimination that might contribute to an explanation of the racial disparities. That a greater percentage of blacks and Hispanics were stopped does not necessarily prove that the police officers conducting the stops are guilty of racial bias. It might be the case that blacks and Hispanics engage in reasonably suspicious behavior at a rate that explains every one of the 8,300 decimal points of racial difference in the data. To account for this possibility, the raw data was processed through a sophisticated statistical algorithm that controlled for potentially confounding variables to estimate the true effect of racial bias on the NYPD's employment of stop and frisk procedures. (18) The analysis revealed that between 2004 and 2009 the NYPD disproportionately targeted blacks and Hispanics and the neighborhoods in which blacks and Hispanics are most likely to live. (19) The analysis also showed that the NYPD was more likely to arrest and to use force against blacks and Hispanics, notwithstanding that stops of blacks were eight percent less likely to result in legal enforcement action. (20) It was the calculations of this analysis that served as the evidentiary basis for the award of the injunction against New York's stop-and-frisk policy.
This policy, in a practical sense, extended officers a license to disregard the discretionary constraints imposed by the constitutional law of criminal procedure. (21) When this license was combined with substantive law placing a preponderant punitive burden on minorities, (22) procedural law conferring nearly impenetrable cover to racially prejudiced policing, (23) police incentives prizing the quantity and cost-efficiency of investigative stops and arrests, (24) and extreme economic inequality, (25) the potential for social injustice was immense.
Despite the potential for injustice that is a natural consequence of the discretion inherent in preemptive policing under Terry, the safety of city streets is an important public good. It is therefore unlikely that the law of criminal procedure will ever rescind the discretion to stop and investigate suspicious individuals before evidence of their criminality is unequivocally manifest. Nor would doing so be likely to cleanse society of the injustice associated with the current system, for as the Terry Court pragmatically asserted, the law "is powerless to deter invasions of constitutionally guaranteed rights where the police" are motivated by some objective other than successful prosecution. (26) But the need for a legal mechanism to secure the Fourth Amendment right against "unreasonable search and seizure" and the Fourteenth Amendment right to equal justice is paramount.
Floyd underscores the need to bring stop and frisk tactics under a stricter regulatory regime and provides insight into how the entanglement of judicial and legislative powers might alternatively impede and propel social reform. In Floyd, the judiciary served to facilitate the political mobilization of an underrepresented minority interest in the reform of public policy. At the same time that the Floyd litigation brought the use of stop and frisk practices under the microscope of judicial review, the litigation presented for public review the moral and economic dimensions of the New York regulatory regime. This public review occurred at the right time. (27) The contribution to the political dialogue by the Floyd plaintiffs thus bore fruit even prior to the implementation of the equitable order, as the conduct of Terry stops declined by sixty percent during 2013. (28) Thus, the Floyd litigation demonstrates the judiciary and the democratic process working in tandem toward the achievement of social reform. In the absence of propitious political circumstances, the type of remedy awarded is crucial to the effect of the equitable regulation. The decision in Floyd reveals one strategy for crafting a durable equitable regulatory regime that does not depend on the good faith engagement of government actors by focusing on the implementation of process controls to supplement existing remedial structures.
Part I of this Note will provide background and context for understanding the question of the limits of preemptive policing at issue in Floyd. Part II will examine how the Floyd plaintiffs cleared a series of formidable procedural hurdles to acquire the information necessary to render a compelling argument to the court that the NYPD had a policy of violating the Fourth Amendment rights of black and Hispanic New Yorkers. Part III will explore the Floyd court's Fourteenth Amendment holding that the racial disparities in the raw data were actually the result of intentional discrimination by the NYPD. Part IV will analyze the unique qualifications of the 23(b)(2) class action lawsuit as a device for pursuing social reform through litigation. Part V will explore the regulatory scheme promulgated by the Floyd court and examine whether and how it might reduce the unconstitutional use of stop and frisk tactics. Because it is inextricable from a consideration of the probable effect of the Floyd court's ruling and profoundly relevant to the theoretical justification for the use of the class action lawsuit as a mechanism for social justice, Parts IV and V will focus on the interplay of the judiciary and civil society in litigation that facilitates constitutional argument to achieve sociological objectives.
A BRIEF HISTORY OF STOP AND FRISK TACTICS
The problem of identifying and preventing criminality predates the Constitution. (29) Long before America declared independence, New York City, for example, was patrolled from dusk until dawn by the "night watch," property-owning men specifically instructed to "[s]ecure" in the "most prudent way" those perceived to be "disturbing the peace or lurking about." (30) At the turn of the Nineteenth Century, responsibility for the city's street-level security during the daytime was entrusted to a small force of marshals...