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Stop-and-frisk unconstitutional ruling upheld

Craig D. Frazier | 11/28/2013, 6 a.m.

The United States 2nd Circuit Court of Appeals denied the city’s lawyers’ request to overturn Federal District Court Judge Shira Scheindlin’s ruling that the NYPD had violated the U.S. Constitution in the way they utilized its stop-and frisk-tactics. The rejection thwarted what was likely the city’s last chance to legally challenge Scheindlin’s ruling.

In August, Scheindlin found that the police had violated the Fourth Amendment’s prohibition against unreasonable search and seizure by stopping and, in some cases, frisking people who were not suspected of any crime. She also said the practice intentionally discriminated against people of color. The judge imposed remedies, including the appointment of a monitor. Last month, the appeals panel blocked those orders and removed her from the case.

The decision, which came last Friday, means an end to Mayor Michael Bloomberg’s attempts to reverse Scheindlin’s ruling, which he has repeatedly berated since August while strongly defending stop-and-frisk.

Leadership at the New York Civil Liberties Union (NYCLU) and members of the Center for Constitutional Rights, who handled the lawsuits against the city, celebrated the ruling denying Bloomberg’s motion to vacate the stop-and-frisk rulings.

“Stop-and-frisk numbers are going down, and we expect them to continue going down,” said NYCLU Executive Director Donna Lieberman. “This ruling will help the Police Department get on track and change the way it utilizes stop-and-frisk, limiting street stops to suspicious behavior only, as the law requires.”

The NYCLU is lead counsel in Ligon v. City of New York, which challenges trespass stops at residential buildings enrolled in the NYPD’s Trespass Affidavit Program. The other case affected by the ruling is Floyd v. City of New York, which the Court of Appeals is hearing at the same time.

“This marks the end of the Bloomberg administration’s unseemly effort to short-circuit the appeals process and undo the district court’s rulings before Mayor-elect Bill de Blasio takes office,” said Christopher Dunn, NYCLU’s associate legal director and lead counsel in the Ligon case. “Hopefully, the legal theatrics will now end and we can all go back to the important task of reforming stop-and-frisk.”

Michael A. Cardozo, the city’s corporation counsel, said the order “made it clear that we could raise the issue of vacating her ruling when the appeal is heard.”

The city is moving ahead full speed with its appeal, and we maintain that the city’s police force has acted lawfully in its application of stop, question and frisk,” Cardozo added.

Earlier this month, de Blasio said in a statement that when he becomes mayor, he will immediately drop the city’s appeal to the controversial stop-and-frisk ruling.

Lis Smith, a spokeswoman for de Blasio, said the mayor-elect was clear about his intentions: “We must move forward on making fundamental reforms to stop-and-frisk. By ending the overuse of this practice, we will make New York safer and begin to repair the relationships between the community and police.”

In light of the decision, NYPD Chief of Department Philip Banks issued the clarification on Friday to explain how new racial profiling laws, which took effect last week, will affect the department’s stop-and-frisk program. A NYPD memo known as a “finest message” was read to all NYPD commands. It clarifies what cops can and can’t do concerning the controversial tactic.

He said factors such as race, sexual orientation and housing status can be considered when stopping a suspect as long as they are not the “deciding factor.” Cops can still stop suspects based on a description that includes race and they can still broadcast descriptions that include it.

“It would be unlawful to stop or otherwise engage that individual if the deciding factor for doing so was that he/she matched only the race of the person described in the radio run,” Banks explained in the memo.

Police officers will always do their job and will respond to situations,” said Commissioner Ray Kelly in a statement. “We just put out a finest message in an attempt to explain what the law says—in essence, the new classes of individuals they have created; being a member of them should not be the determining factor in stopping someone. We are trying to get that information out so there is more sunshine on the process.”

Baher Azmy, legal director of the Center for Constitutional Rights, said that Scheindlin’s remedial order “remains an effective and measured blueprint for achieving lasting reform” of the Police Department.