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.