Follow me below the fold for some of the reasons why I believe this.
Some background is necessary to contextualize the Floyd decision and to order and understand why ultimately Judge Scheindlin "got it" in terms of her personal understanding of why Stop and Frisk was fundamentally an assault, as applied, on the constitutional rights of people of color in America. The Floyd case was filed in 2008 by 13 Black male plaintiffs on behalf of that class of Black and Latino men improperly targeted—stopped and frisked under Stop and Frisk. The case sought (initially) damages and injunctive relief against the NYPD. The complaint was later amended to eliminate damages relief, meaning that Judge Scheindlin was asked to impose future-looking relief only. This case is related to two other cases decided earlier this year that also relate to Stop and Frisk: Davis v. New York and Ligon v. City of New York. Each of these cases was directed at the excesses of New York City's Trespass Affidavit Program (TAP), also known to New Yorkers as the "Clean Halls Program" as it applied to public (Davis) and privately owned (Ligon) housing.
For those who have never heard of TAP, it gives new meaning to the term "police state." Under TAP, NYC Housing Authority properties, and privately owned properties with the written consent of the landlord, are deemed to be "high crime" areas in which the NYPD is granted heightened authority to arrest individuals for trespass. To reiterate, any building that is enrolled in TAP is a building in which, at any time, any visitor is subject to Stop and Frisk and faces possible arrest for trespass. At last count, 3200 apartment buildings in New York City are enrolled in TAP.
In January, 2013, in Ligon Judge Scheindlin found that TAP as applied to stops outside of privately-owned housing appeared unconstitutional whether or not the private property owner had consented to TAP. In March, she issued a partial summary judgment order in Davis, which held that some aspects of TAP as applied were constitutional (and others not) as it related to public housing residents and guests. Judge Scheindlin deferred remedies in both Ligon and Davis pending resolution of the claims in Floyd at trial.
The named plaintiffs in Ligon and Davis were overwhelmingly Black (one out of the eight named Ligonplaintiffs is Latino, as are 3 of the 16 Davisplaintiffs). In addition to the testimony of the named plaintiffs, were serving as class representatives, there was also a lot of statistical evidence that was brought to bear in Floyd, much of it discussed far more thoroughly than I have the skill to do here. Suffice it to say, it was that evidence that advised the world that under Stop and Frisk, more Black men had been detained in New York than actually lived in the City of New York. And that advised us that as a matter of percentages, although far far more Black and Latino people were stopped under Stop and Frisk, it was whites who were shown to possess more illegal contraband and guns.
Yet statistics IMO cannot speak to the harm that needed to end. And, reading the Floyd decision, it seems clear that it was the stories of how Stop and Frisk and TAP operated on the ground to keep Black and Latino people under siege in their own homes, not the battle of the experts via statistics, that ultimately persuaded Judge Scheindlin about the complete irrationality of Stop and Frisk as implemented, and about the utter inability of the psyche of the NYPD to voluntarily accept its own racism, such that Stop and Frisk could be operated in a truly race-neutral fashion (after all, the NYPD had known for more than a decade that there was a racial discrimination problem associated with it's implementation of Stop and Frisk. The stories she heard involved not just the victims of stop and frisk, but also the psyche of the NYPD as it operated Stop and Frisk day by day.
[An important, to me, aside that I hope folks will take to heart: this whistleblowing was notably not noticed or celebrated around here by the folks who usually write about whistleblowers at Daily Kos; given the actual history of (as opposed to ephemeral paranoid fears about), retaliatory tactics by law enforcement for breach of the thin blue line of silence, disclosure of this evidence was truly an act of bravery by those officers that should have been a lot more publicly celebrated by progressives claiming to care about whistleblowing.]
And what stories she heard, not just about whether a single detention and/or arrest was evidence of racial discrimination (the judge found some were, some weren't, which is why the Bloomberg/Kelly whine machine that has been in full operation post-decision is just dead wrong about what Judge Scheindlin does, or does not "understand"), but about these stories occurring over and over and over again, all with the same results. Those stories cut across all three cases, Floyd, Davis and Ligon. They included stories such as the one involving the 13-year-old son of the first named plaintiff in the Ligon, who was stopped and frisked walking home from the corner store after his mother sent him there to buy ketchup for dinner. And only then returned to his mother by a police officer (who laughed about the whole thing even though the child's mother had thought her son was dead when the police rang her doorbell.) Those alone would likely not have swayed the judge; after all, these stories existed long ago in New York and nothing was done.
The stories that IMO weighed most heavily on the judge, going by her opinion in Floyd were the stories about the NYPD's utter indifference to the possibility that its version of law enforcement was racist to the core, such that a scorched earth decision and far reaching remdies were the only way to minimize the harm done. Those stories were the stories told by policemen and public officials themselves. For example, the best evidence that NYPD, through its Commissioner Ray Kelly (who is currently still being considered for appointment as director of Homeland Security despite that administration being run, at last observation, by a Black man named President Barack Hussein Obama, which really is just sad, sad, sad), is all about consciously using racism and racial stereotypes which do not apply to more than 90 percent of Black people as an institutional part of law enforcement, comes from the testimony of New York state Sen. Eric Adams at trial in Floyd. That testimony, which notably Ray Kelly refused to take the witness stand to testify about although he was invited to do so by Judge Scheindlin like every other fact witness (extra kudos to Judge Scheindlin for refusing to allow Kelly to file a denial declaration on paper without having to actually be available at trial to be cross-examined about it or to, at a minimum, submit himself to deposition), was that Ray Kelly said to him in defense of NYPD practices that he "wanted [Black and Latino] men to be afraid every time they left their homes." Adams also testified that Kelly did not demur when it was pointed out to him that using race in this fashion was illegal (doh) but instead asked, "How else are we going to get rid of guns?" (A question which, in light of the extremely low rate of recovery of guns through the racially discriminatory way that Stop and Frisk has been implemented, seems best answered, "Some other way than THIS.").
At trial in Floyd, Judge Scheindlin also heard recounted by sworn police officers about police officers being discouraged from stopping whites even when objectively there was a race-neutral reason for suspicion came from officers themselves. The Floyd decision highlights, as one of several examples, the stop by NYPD of a white woman who was chosen for further scrutiny based upon an unquestionably race-neutral objective fact: walking alone in St. Mary's Park (located in the South Bronx) very late at night after the park had closed. What the trial record disclosed was not only was this woman not frisked, the police officer who stopped her was told he had done the wrong thing by stopping her at all:
On one of the Serrano recordings, Deputy Inspector Christopher McCormack explained to Officer Serrano that stopping “the right people, [at] the right time, [in] the right location” meant not stopping “a 48-year-old lady [who] was walking through St. Mary’s Park when it was closed.”Judge Scheindlin, rightly, pointed out why this particular evidence should be extremely troubling to anyone who has the capacity for rational, as opposed to unconsciously racist, thought:
He continued as follows:
INSPECTOR: This is about stopping the right people, the right place, the right location.
INSPECTOR: Again, take Mott Haven [a Bronx housing project that is overwhelmingly Black and Latino] where where we had the most problems. And the most problems we had, they was robberies and grand larcenies.
SERRANO: And who are those people robbing?
INSPECTOR: The problem was, what, male blacks. And I told you at roll call, and I have no problem telling you this, male blacks 14 to 20, 21. I said this at roll call.
Floyd, at 84-85 (footnotes omitted, emphasis added.)
The direction not to stop “a 48-year-old lady [who] was walking through St. Mary’s Park when it was closed,” is just one example of instructions not to stop all individuals for whom a justification for a stop exists, but only to stop the right people. . .While this particular instruction seems benign, to the extent that the NYPD focuses its resources on blacks and Hispanics to the exclusion of whites generally, the result is deeply troubling. White people also carry guns and contraband, but if the NYPD declines to stop them, they will go undetected and unrepresented in crime statistics.The blockquoted language above is, to me, why I believe that the heart of the Floyd decision (and its decision to apply similar remedies in Ligon and Davis was not the data, but the stories. It would have been very easy for Judge Scheindlin to refuse to point out that discrimination in law enforcement based upon racial stereotypes is a self-reinforcing mechanism that only guarantees more racism, with NO actual guarantee that crime will be reduced because ½ the criminals benefit from white privilege and, thus, benefit from the assumption of innocence. She could have just focused on the lopsided statistics, and stopped there.
In addition, applying law enforcement tactics unequally between various racial groups is a recipe for abuse. “[N]othing opens the door to arbitrary action so effectively as to allow . . . officials to pick and choose only a few to whom they will apply [the law] and thus to escape the political retribution that might be visited upon them if larger numbers were affected.” . . . I note one poll shows that 76% of black voters disapprove of Stop and Frisk.
(Floyd at 192, Fn. 1 (citations omitted, emphasis added.)
Yet she didn't avoid saying it. In a candor that may only be possible from someone her age and in her position of power, she instead broke down into words of one syllable what Black (and Latino) folks have been trying to tell whites to no avail for decades: "We are just as law abiding as you, we just get caught more because your racism doesn't let you see your own criminal white neighbors."
And, just to make sure that we knew that she "got it," as it related to this issue of racist law enforcement by the NYPD, Judge Scheindlin ended her decision on the merits in Floyd by quoting from one of several heartwrenching op-eds written by Charles Blow in response to the verdict acquitting George Zimmerman for killing Trayvon Martin:
I conclude with a particularly apt quote: “The idea of universal suspicion without individual evidence is what Americans find abhorrent and what black men in America must constantly fight. It is pervasive in policing policies — like stop-and-frisk, and . . . neighborhood watch - regardless of the collateral damage done to the majority of innocents. It's like burning down a house to rid it of mice.NYPD having burned the house down, it was clear that Judge Scheindlin felt she needed to take drastic steps to try and reign things in and fast. I believe that it is because of the stories that she heard, over and over, about the emotional impact of the Stop and Frisk and Clean Halls programs on their victims. She got that all you need to know about the adverse psychological and practical impact (neighborhoods under siege, and not just by regular criminals) that Clean Halls and Stop and Frisk as implemented had on Black and Latino New Yorkers can be summed up easily. Listen and learn from the view of the young Black man included in a story about Stop and Frisk and Clean Halls published by The Atlantic last year when the Davis and Ligon cases finally got some media attention:
"At this point, I'd rather come home and deal with a robbery than deal with being stopped by the police," said Dominick Walters, a 20-year-old college student who has been arrested twice for trespassing while visiting friends or acquaintances. Both cases were dismissed, but not before both Walters and the city spent a considerable amount of time and money clearing his name. After his first arrest, Walters spent four days in a cell, sleeping in the dress coat and tie he had donned that day for work as a salesman. By the time he emerged, he'd missed two days on the job.
(Needless to say, NYPD was none too happy with this development. Indeed, in a pique of really-sad irony, NYPD's public reaction was to express that its opposition to the app was grounded in ... wait for it ... concerns about citizens' SAFETY and PRIVACY.)
It is clear that Judge Scheindlin believed that there was a systematic abuse of power, the type that gets apps developed to stop it, by the NYPD, because of the stories she heard under oath. Certainly, her decision on remedies reflects that she "got" the extreme power that eliminating the possibility of police perjury will have in reigning in NYPD abuses. For example, the Floyd remedies doubles down on the NYCLU's separate efforts via app to document police abuse by ordering a trial program in which officers in "high crime precincts" will be compelled to wear video cameras throughout their day. In choosing such a remedy, Judge Scheindlin clearly "got" that she was not dealing with racism, not rational thought, and acted accordingly to establish her court's broad authority to compel rationality at least as it relates to the respect due from law enforcement to Black and Latino people as taxpaying citizens of the City of New York. I suspect Judge Scheindlin didn't make her camera order because she doesn't expect to see too much evidence of police change. After all, she made a point of noting that after body cameras on cops were implemented by the small town of Rialto, Calfornia, citizen complaints about law enforcement abuse dropped by 88 percent in just ONE year. (Floyd II, p. 26-27.) In other words, although the pilot program remedy is couched as an evidentiary one, I believe that the judge knows full well that by eliminating any possibility for he-said, she-said in citizen-law enforcement interactions under Stop and Frisk, she will see a drop in citizen complaints in New York similar to those found in Rialto.
Given the tenor of her decision on the merits in Floyd, although its language is restrained, it is clear that Judge Scheindlin was furious that the city refused to undertake what is a normal and expected process of federal court class action litigation: the negotiation of a meaningful settlement with remedies prior to trial. And, given the several times that she notes the burden she had to undertake in adjudicating this case was increased because of the recalcitrance of the NYPD in all three cases, it is clear why she felt a court monitor (which she ordered) was the only meaningful way to ensure that change starts now, rather than later.
Finally, Judge Scheindlin also got that the harm was far broader than that articulated by the individual plaintiffs, pushing back on the common defense tactic that each abusive stop had to be looked at separately. Make no mistake: As it related to the named plaintiffs in the three cases she had before her, she did make a particularized inquiry, and separate factual finding (some were a constitutional violation, some not, some partially so). Yet she also recognized that the perspective of the community about the police generated by Stop and Frisk undermined not only the rule of law and anti-discrimination principles, it also ultimately would adversely impact the effectiveness of New York City's entire system of law enforcement:
The Supreme Court has recognized that “the degree of community resentment aroused by particular practices is clearly relevant to an assessment of the quality of the intrusion upon reasonable expectations of personal security.” In light of the very active and public debate on the issues addressed in this Opinion — and the passionate positions taken by both sides — it is important to recognize the human toll of unconstitutional stops. While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention. Some plaintiffs testified that stops make them feel unwelcome in some parts of the City, and distrustful of the police. ThisIn other words, as Judge Scheindlin noted, the evil of Stop and Frisk and Clean Halls as practiced is not just the racism in the implementation of these policies, but their inevitable encouragement of a practice that America claims to be long-based: systematic abuse of private citizens based upon race counting on those not so affected to not do anything politically to stop it.
alienation cannot be good for the police, the community, or its leaders. Fostering trust and confidence between the police and the community would be an improvement for everyone.
For those who still wonder why this all matters, or will yet again rush to defend "most officers" whenever a complaint about the harm they cause in Black and other minority communities and have caused for decades, the decisions pre-trial in Davis and Ligon, read in light of the coup de grace of Judge Scheindlin's post-trial decision in Floyd, leaves no quarter for rational debate about the harm of these practices. They are, at a minimum, racist as applied (although there is some debate about whether they have always been racist from their inception under the Dinkins Administration, or whether the Bloomberg Administration has taken what otherwise was a neutral program and turned into an arm of the Nouveaux Jim Crow. The fact that former Mayor Dinkins is Black is not dispositive: Anyone paying attention knows that anti-Black racism is consciously and unconsciously practiced by Black people very day thanks to the same hundreds of years of white supremacist training in America. One need only look at the lone Black candidate in the NYC mayor's race, Bill Thompson, and his refusal until recently to so much as raise a peep of complaint about Stop and Frisk even though—as the ages of the plaintiffs in Floyd make clear—but for circumstance, Bill Thompson could have been a plaintiff himself.)
If practices such as those now enjoined in Floyd and Ligon (and, by extension, Davis) are what defines your entire relationship to the police because they are never around when you actually need them (since everyone living in these neighbors knows that the drag-ass police/fire/paramedic response to calls from Black neighborhoods dissected in Public Enemy's911 is a Joke is TRUE), is there any wonder that there such a horrible relationship between the Black community in particular, and law enforcement such that young people would gladly hoist themselves by their own petard adopting emotional stances such as "No Snitching"? If the police are your tormentors just as you go about your daily business, every day, is there any reason that a rational Black male or Latino male subjected repeatedly to this wouldn't distrust at a minimum, or even come to hate, the police?
To ask the question is to answer it.