In my last post, I discussed the legal basis for the court’s decision in Floyd v. New York City, in which the judge found that the NYPD’s stop and frisk program violated the Constitution. In this post, I’ll discuss the remedies: the changes the judge has ordered the NYPD to make. (All quotes are from the court’s separate “Remedies Opinion.”)
To start: the host of a public radio show I did on Tuesday asked whether the court has the power to order these changes. The answer is yes. Having found that the NYPD violated the Constitution, the court has the power to order the court to do what is necessary to fix its practices to eliminate the violation. The judge was actually quite circumspect, carefully outlining the limits of her own reach.
So what remedies did she order? Here are the most important ones.
First, she appointed an independent monitor to help create the changes in how officers use stops and frisks, and to oversee the implementation of these changes. Independent monitors are common in negotiated settlements of police misconduct cases brought by the U.S. Dept. of Justice, and they are also used in some cases in which private plaintiffs have sued police departments (e.g., the Philadelphia case on stops and frisks).
Second, she mandated some of the areas that must be changed: “policies, training, supervision, monitoring, and discipline regarding stop and frisk.” She was especially adamant that policies on certain particular matters undergo an overhaul: training regarding what constitutes the necessary reasonable suspicion to perform a stop and frisk; the targeting of “the right people” for stops (which she said led to racial profiling); and the use of “performance goals.” She also ordered that the documentation and record keeping for stops and frisk must undergo specific changes.
Third, the judge ordered the Department to launch pilot programs for “body-worn cameras” that would record stop and frisk encounters. This was a surprise to many, because the subject came up only peripherally in the trial and the technology involved is relatively new. These video recording systems, which record an officer’s-eye view of the interaction between citizen and police officer, will create “a contemporaneous, objective record of stops and frisks, allowing for the review of officer conduct by supervisors and the courts.” For those interested in this promising technology, take a look at my brief article, “Picture This: Body Worn Video Devices (‘Head Cams’) as Tools for Ensuring Fourth Amendment Compliance by Police,” published in 2010 in volume 43, issue 1 of the Texas Tech Law Review.
Fourth, the judge prescribed a “joint remedial process” in which there would be “community input” into the remedies, modeled on the Collaborative Agreement used in Cincinnati.
Those are the general outlines. The City and the NYPD have pledged to appeal, but it is questionable whether an appeal could even get started before Mayor Bloomberg leaves office, bringing new leadership to the city and very likely to the police department too. Given the positions of the leading candidates on stop and frisk, the next mayor is likely to take a different approach to the issue, and thus to the court decision.
In a future post, I will offer some reflections on what the impact of the decision is likely to be beyond New York.
Failed Evidence 
David,
One more point:
You state “”But to say that the NY Constitution is the only basis for relief, and the
federal Constitution has no footing here, ignores these nearly 90 years of
Supreme Court decisions. To call the incorporation doctrine “phony” simply
assumes away all of that the law by saying it is illegitimate, even though
successive Courts, with justices from all over the ideological spectrum,
have agreed with it. The incorporation doctrine is as real as any other
long-standing rationale that the Supreme Court has held on to for almost a
century.”
I reply: Long standing rationale? For centuries enlightened men thought the world
was flat. People were tortured for saying otherwise in some instances as
an offense against the Church.
When did long standing rationale become the substitute for scholarship and
intent?
John
Hi John — You and I are having the same discussion that has long gone on between the “originalists” (people like Robert Bork, who believed that the Constitution could only mean what it did at the time it was written) and those who believe that the original meanings must evolve to some extent with the passage of time.
Let’s assume, as you do, that the Fourteenth Amendment was originally intended only to apply to freed blacks. The history of the country since then has involved addressing inequality — guaranteeing the equal protection of the law — to other “discrete and insular minorities” that lack political power — see the Supreme Court’s opinion in US v. Carolene Products, 304 US 144, fn. 4. (1938). There has been considerable scholarship to support this, even if it went beyond the original intent of the drafters of the Fourteenth Amendment.
Any argument that we must ignore the many S.Ct. cases incorporating the Bill of Rights into the Fourteenth Am’s Due Process clause must also deal with another very old legal principle: stare decisis — the idea that courts must respect precedent. We know they don’t always do this — e.g., the Citizens United case — but they should have a very good reason to turn their backs on so many decades of history.
David,
I certainly hope you find some time to reply to my comments. I would welcome any other opinions.
Keep up the good work!
Det. John J. Baeza, NYPD (ret.)
john.j.baeza@gmail.com
352-442-8177
John, have I gotten to all of them? Thanks so much for your engagement on this.
[…] a huge amount of commentary. I did posts here last week on what the decision really says, and the remedies the judge has required. Today I’m going to talk about the likely national impact of the […]
David,
One more link that came out today: http://blog.tenthamendmentcenter.com/2013/08/stop-and-frisk-no-feds-needed/#.UhZVgFPFYUg
John
John: I read the post at the link. My reply is the same as the one below. For almost 90 years, through many different Supreme Courts, the law has been that the federal Constitution and federal courts do have a role in guaranteeing the rights in the Bill of Rights against the states. I cannot agree with your comment under the post that the US is 50 sovereign countries. That just is not true. Even if that might have been argued at the time of the ratification of the Constitution, it has not been a supportable statement since. The Civil War was fought over this very idea, and if it the proposition was ever in doubt, that great conflict settled it.
Hello John and Jack, and my apologies for not being able to reply right away. John, it is certainly correct that when the Bill of Rights was adopted, it applied only to the federal government, not to the states. But the Supreme Court has been interpreting most aspects of the Bill of Rights to apply to the states for decades now. John, you correctly point out that this is done through the incorporation doctrine: the idea that certain aspects of the Bill of Rights are so fundamental to our liberty that they are applied to the states by incorporating them into the Due Process Clause of the Fourteenth Amendment, which itself unquestionably applies to the states.
This process of incorporation began in the 1920s, with Gitlow v. New York (1925), in which the S. Ct. decided that the First Amendment guarantee of freedom of speech also applied to the states, through the Due Process Clause. In the 1930s, the process continued, with incorporation of the First Amendment freedom of the press (Near v. Minn., 1931) and the Sixth Am. right to counsel in capital cases (Powell v. Ala., 1931). There have been many others since: the Fourth Amendment right to be free from unreasonable search and seizure (Mapp v. Ohio, 1961), the Fifth Amendment right against self-incrimination (Miranda v. Az., 1966), and the Sixth Amendment right to a speedy, fair and public trial (case name and year slip my mind right now). The right to indictment by a grand jury (Sixth Am.) and the right to a jury in a civil trial (Seventh Am.) have not been incorporated; thus we sometimes call the doctrine “selective incorporation.”
John, you say that this should be a New York state case, and that the federal government (presumably in the form of the federal courts in this case, since the case was not brought by the federal government) should not be involved. You say that the NY Constitution would supply the same basis for relief as the federal Constitution. The NY Constitution may indeed supply the same rights to citizens of NY as the federal Constitution does, and so it may indeed by true that a plaintiff COULD sue based on his/her rights under the state constitution. But to say that the NY Constitution is the only basis for relief, and the federal Constitution has no footing here, ignores these nearly 90 years of Supreme Court decisions. To call the incorporation doctrine “phony” simply assumes away all of that the law by saying it is illegitimate, even though successive Courts, with justices from all over the ideological spectrum, have agreed with it. The incorporation doctrine is as real as any other long-standing rationale that the Supreme Court has held on to for almost a century.
I, for one, would not wish to go back to a time in which my state of PA could decide that there would be limits on the ability of the press to cover a trial or the workings of my state government. I would not want to live in a state in which state and local police officers (though not the FBI or DEA) could search my home without a warrant or probable cause, as long as my state government said that was OK. I wouldn’t want PA to be able to declare that “(fill in a religion) shall be the state-approved faith of PA.”
I know of only one person who agreed with you, John, that the incorporation doctrine was not legitimate and that the Fourteenth Am. was limited in the way that you posit: my Constitutional Law professor, Robert Bork. His view was then considered to be on the far fringe, and it still is. I have had the privilege of engaging Justice Scalia on this very question, since he is of course the main exponent of “originalism,” meaning that a law or piece of the Constitution can only mean what it meant when passed. Recently I was among a number of people who pressed him with a question like this: if you mean what you say about originalism, you must mean that the Fourteenth Am. can only refer to freed slaves and black people. Therefore you must agree that all federal statutes and cases protecting women’s rights, protecting other-than-black racial minorities, etc., are incorrect, and that the Bill of Rights does not apply to the states. His reply, and I quote: “I said I am an originalist. I am not a nut.” In other words, he regards what has been done by many Supreme Courts over the years with the Bill of Rights and the Fourteenth Amendment as firmly settled and above challenge.
So I must disagree with you, John: the federal Constitution, and federal courts, have a key role to play in guaranteeing the application to the Bill of Rights even in wholly in-state controversies. Of course, people can add state constitutional claims to federal civil rights suits if they want, and they frequently do. But by long standing doctrine and practice, the federal role is legitimate.
Sorry the post is so long, but you raised a serious issue, and it called for serious answer.
Thanks for your interest.
Thanks David for the clarification, I really appreciate it.
Can you comment on your findings regarding the NYPD stop and frisks of the 1990’s. Do I recall correctly that the positive “hit” ratio was much higher with whites than with minorities. I remember reading your book that way, but am beginning to wonder why it is not part of the discussion.
Thanks again
Jack
Jack: The first stop and frisk study, which I described in my book “Profiles in Injustice,” was conducted by two researchers from Columbia University and was published by the New York State Attorney General. It covered stops and frisk conducted in all of 1998, and the first three months of 1999 as reported in the NYPD’s own data, and included 175,000 stops and frisks. As to the rate of hits, your memory is correct. Over the course of those fifteen months and 175,000 stops and frisks, police officers were more likely to “hit” — find contraband, find a gun, make an arrest, etc. — among whites than among blacks or Latinos, though blacks and Latinos were being S/Fed at a much higher rate. The hit rates, for each group: whites, 12.6 percent; for Latinos, 11.6 percent; for blacks, 10.6 percent. Note that these are significant differences: the difference between whites and Latinos is about 10 percent; the difference between whites and blacks was about 20 percent.
You can find the original NYAG S/F study at
http://www.oag.state.ny.us/sites/default/files/pdfs/bureaus/civil_rights/stp_frsk.pdf.
Thank you very much
One more question, why do I not see this as part of the debate? I would seem extremely relevant when one of the main arguments for unbridled stop and frisk is it’s effectiveness in curbing violent crime.
Jack, in case I have not answered this adequately: I think the effectiveness of the tactic is part of the debate; you especially see it from proponents, but also from detractors. But it was not part of the OPINION by the judge. Why? As she said, and she is right in step with the Supr. Ct. on this: it isn’t the court’s job in a case like this to judge whether a tactic is effective (except if there is NO effectiveness at all, in which case it could not be justified if it places any burden at all on a particular racial group to the exclusion of all others); rather, the court’s role is to determine whether the tactic is constitutional. So that is why you do not see it in her writing about this. She explicitly explained that this was why she wasn’t talking about effectiveness.
John
Do I understand the assertion of what you posted correctly – only the federal government can violate the rights of citizens acknowledged/granted by the US Constitution?
Jack Colwell
Jack,
I don’t think you understand my post. I may have been somewhat unclear. Without repeating my above post again, let us use it for a reference guide. The first eight of the federal Bill of Rights only applies to the federal government as seen in its preamble and as intended by the ratifiers. Law enforcement agencies such as the FBI, DEA, IRS are federal and are therefore limited by the United States Constitution and the Bill of Rights. The NYPD is bound by the New York State Constitution and the New York Bill of Rights. This issue of Stop and Frisk, dealing with the NYPD, is a state issue and comes under the aegis of the NYS Constitution and Bill of Rights. Therefore this case should be decided by the NYS courts, not federal courts. If we allow the feds to reach into the internal affairs of the states we turn the Founder’s design of federalism on its head.
I have no love for Stop, Question, and Frisk (NYPD form UF-250) but I believe we should always adhere to the rule of law.
John
David,
While I am not happy with the state of the stop and frisk situation I must say this is a state case and should not be decided by the federal government. The first eight amendments of the Constitution apply to the federal government-not the states. The New York State Constitution provides the same protection as the federal Constitution and it is a NY case. Once we allow the federal government to reach in and regulate the states we have turned the Founder’s federalism on its head. Oftentimes the phony “incorporation doctrine” is used as a basis for federal intervention but this is not what was intended by the Framers and Ratifiers of the 14th amendment. The amendment was intended to be modest in scope and only applied to the freedman. It was enshrined in the Constitution so the 1866 Civil Rights Act would never face a constitutional challenge.
Also, we have seen many cases of sloppy stop and frisk work but due to the mere suspicion to reasonable suspicion to probable cause requirements each case needs to be evaluated on its own merits.
Cameras for police (and certainly for the public) are a necessity.
For my perspective on police work in general, please see: http://bit.ly/warriorcopreview
Respectfully,
Det. John J. Baeza, NYPD (ret.)