NYC’s Stop-and-Frisk Decision: Zimmerman Trial, the Sequel?

Crime, Lisa Bloom, Rights, Safety

stop frisk_banner To many, including me, this summer’s most watched trial — the George Zimmerman murder case — was a case about racial profiling with tragic results.  (Inside the courtroom, however, prosecutors ignored or bungled the race issue, as I explained in my recent New York Times op ed.)

Striking Down Stop-and-Frisk

To those frustrated by the mishandling of the race issue and the acquittal in that case – 81% of African Americans are — New York City Judge Shira A. Scheindlin’s lengthy, thorough, compassionate decision this week in Floyd v. City of New York striking down that city’s stop-and-frisk practices offers a vindication.  In over two hundred pages meticulously supported by case law and the facts at trial, the Floyd decision stands for the proposition that racial profiling is not only unconstitutional under the Equal Protection Clause to the US Constitution, but that it causes real community harm.

Coursing through the decision is Judge Scheindlin’s grasp of the pain caused to minority communities from police stops (blacks and Hispanics, 52% of New York City’s population, constitute 83% of police stops):

[E]ach stop is . . . 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.

Nearly nine in ten young men of color stopped were entirely innocent of any crime, and of those found with contraband, overwhelmingly often the offenses were minor – an open bottle of alcohol or marijuana possession.  Only .1% were found with guns (concealed carry is generally illegal in New York City, unlike, say, Sanford, Florida, where Mr. Zimmerman’s concealed firearm was entirely legal).

In finding that police stops of blacks and Hispanics were disproportionate and discriminatory, Judge Sheindlin found:

Both statistical and anecdotal evidence showed that minorities are indeed treated differently than whites. For example, once a stop is made, blacks and Hispanics are more likely to be subjected to the use of force than whites, despite the fact that whites are more likely to be found with weapons or contraband.

Under the Fourth Amendment to the US Constitution, reasonable suspicion is required before police officers may stop and frisk civilians.  But New York City police, the judge found, cast a wide net that often seemed to include nearly all young men of color in some neighborhoods, with only the fuzziest of justifications for those law enforcement interruptions of their lives. Many of the over four million stops conducted by New York City police and analyzed in Floyd were justified by police, for example, as based on a suspects’ ostensible “Furtive Movements” or an allegedly “Suspicious Bulge” – actual boxes police officers checked on after-the-fact forms to explain the stop-and-frisk.

We’ve Seen This Before

This is reminiscent of George Zimmerman (who was not a police officer) explaining on a recorded police call that he became suspicious of Trayvon Martin because Mr. Martin was walking slowly in the rain, hand in his waistband.  After the seventeen year old Mr. Martin was shot and killed, it became clear that he was not carrying any contraband, but merely a soft drink and candy.  Similarly, in the Floyd case, the judge recounts story after story of black boys or men who were simply walking home, minding their own business, suddenly accosted by police officers cursing at them, shoving them up against fences or police cars, handcuffing them without justification.  Police often said the young men appeared to move in suspicious ways or had something unusual in their pockets, which often turned out to be a wallet or cell phone.  That nearly everyone now carries a cell phone, the judge points out, does not give the police carte blanche to suspect every pocket bulge is a weapon and harass community members.

In the Zimmerman trial, the defense argued that the fact of a recent neighborhood burglary conducted by two African American men justified Zimmerman’s heightened suspicion of Trayvon Martin, because Mr. Martin, due to his race and youth, was a “match.”  If only the Zimmerman jury could have been instructed in Judge Sheindlin’s reasoning:

[T]he evidence at trial revealed that the NYPD has an unwritten policy of targeting “the right people” for stops. In practice, the policy encourages the targeting of young black and Hispanic men based on their prevalence in local crime complaints. This is a form of racial profiling. While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The Equal Protection Clause does not permit race-based suspicion.

A History of Racism

(My emphasis.) That is, attributing the negative characteristics of some members of a race (the burglars) to all members (young black men walking down the streets of New York or Florida) is the very essence of racism.

New York City argued that racial bias could not be present because many of its police officers are themselves people of color.  This too reminded me of the Zimmerman case, where a detective testified that he’d asked Mr. Zimmerman (who identifies as Hispanic) whether anything would have been different if Trayvon Martin had been white, and he said no.  That immediately satisfied the detective that no racial animus was present, even though 100% of Mr. Zimmerman’s calls to police about suspicious persons in the prior six months had reported African American males.

Though racial bias courses through our criminal justice system – African Americans are far more likely to be arrested, tried and convicted than whites for the same crimes; they face significantly longer sentences; they are far less likely to prevail on self-defense claims —  few of us consider ourselves racist in 2013, and most of us consider an allegation of racism as an odious insult, as well we should.  Yet implicit biases course through our culture, stubborn and pernicious.

In the Floyd case, Judge Scheindlin found the city to be “deliberately indifferent” to overwhelming racial bias in its police stops of citizens – that is, though officials had often been warned of its unconstitutional nature, they closed their eyes to the racism inherent in their policing.  In discussions of racism, denial is widespread, because the topic is painful, and it’s human nature to turn away from agonizing self-reflection.   And so we continue to live in a country where many law-abiding men of color, including our President in his younger days, as he’s acknowledged, are treated like second class citizens when they leave their homes.

As the song from the Broadway musical Avenue Q song satirized:

Everyone’s a little bit racist sometimes
Doesn’t mean we go around committing hate crimes
Look around and you will find
No one’s really colorblind
Maybe it’s a fact we all should face
Everyone makes judgments based on race.

.  .  .

If we all could just admit
That we are racist a little bit,
Even though we all know
That it’s wrong,
Maybe it would help us
Get along.

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