It is good to be back after last week’s live-blogging interlude. Only later did I come to know the real reason I was tasked for the assignment: the now infamous and then-still-plausible Commissioner Kelly event was scheduled to take place at the same time. This event and its aftermath have dominated campus discourse in a manner I have yet witnessed at Brown. But through all the fallout, I have heard little conversation about either stop-and-frisk or its uncertain future. So beyond adding two thoughts to the broader campus discussion, I think it would be instructive to supplement Ben’s valuable synopsis and discuss the litigation related to the policy more robustly.
1. I never read President Paxson’s missives to the community. Her e-mail following the Commissioner Kelly event, however, seemed an extenuating circumstance. I further confess my concurrence with her opinion that, above all, the academy generally and Brown in particular are devoted to the free exchange of ideas. No words express this sentiment more aptly than Justice Holmes’s in Abrams v. United States, a notorious case in which the Court held the First Amendment did not protect anti-war leaflets because they advocated a strike in munitions production and the violent overthrow of the government. “[T]he ultimate good desired is better reached by free trade in ideas,” Holmes writes in his famed dissent. “[T]he best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which…wishes safely can be carried out.” Just as market forces can suppress malevolent thoughts or ideologies better than any act of state censorship, so too could an open, informed, and respectful discussion have condemned the policy of stop-and-frisk more effectively than any shouting match or demonstration of defiance.
2. Constitutional scholar John Hart Ely articulates an interpretive theory known as proceduralism in his seminal work, Democracy and Distrust. In part, this theory posits that judicial review – and the subordination of the (at least theoretically) more democratic judgments of the political branches which invariably accompanies it – is justified when “the opportunity to participate in the political processes by which [substantive] values are appropriately identified and accommodated…has been unduly constricted.” To Ely, for example, the Supreme Court’s establishment of the “one person, one vote” principle in Reynolds v. Sims was a legitimate instance of judicial review, even if arguably extreme (since it explicitly overturned the Court’s determination just two years prior in Baker v. Carr that state legislature redistricting constituted a political question). Because malapportionment fractured the political process by which minorities could combat the social, political, legal, and institutional forces of discrimination, privileging the judgment of the more insular judiciary was not only appropriate, but in fact more democratic. This detour into constitutional theory provides the basis for a somewhat attenuated analogy: because normal political processes are and have been functioning properly – with an electorate clearly motivated by opposition to stop-and-frisk and a federal court granting declaratory and injunctive relief against the city (venues where policy value and legality are appropriately identified and accommodated) – by this logic, resorting to disruptive protest was unjustified.
The lead stop-and-frisk case, Floyd et al. v. City of New York, challenged the policy’s constitutionality under the Fourth Amendment’s prohibition on unreasonable searches and seizures and the Fourteenth Amendment’s guarantee of equal protection. Having been certified as a class, plaintiffs were required to establish Monell liability in order to challenge the constitutionality of a municipal policy thus. This species of tort liability extends to the violation of certain constitutional rights on the basis of a municipality’s official policies, customs, or usages. To satisfy this causal requirement, plaintiffs were further compelled to show either that the municipality acted with deliberate indifference towards such violations or that the policies or practices in question were “so persistent and widespread as to practically have the force of law.” Concluding both of these requirements met, Judge Shira Scheindlin of the U.S. District Court for the Southern District of New York (whom President Clinton appointed in 1994 and whose willingness to make bold and oft-overturned rulings has engendered criticisms of judicial activism) held the city liable for both Fourth and Fourteenth Amendment violations under Monell.
Of these, an analysis of the former takes place in the context of Terry stops. In the eponymous landmark case Terry v. Ohio, the Court held that neither temporary stops nor frisks for weapons – when based upon reasonable, articulable suspicion (RAS) that the person is involved in criminal activity or armed, respectively – were unreasonable for Fourth Amendment purposes. Consequently, Judge Scheindlin’s Fourth Amendment rulings hinged on the individual circumstances surrounding each of the Floyd plaintiffs. For some, the stops were unconstitutional because they were based not on a RAS of involvement in criminal activity, but rather on vague justifications such as “furtive movements” or “high-crime area.” Other cases satisfied the RAS of involvement in criminal activity but violated that standard with respect to the ensuing frisk. Because frisks must be limited to the purpose of protecting officers against armed suspects, the warrantless seizure of contraband is only permissible when a lawful pat down reveals an object “whose contour or mass makes its identity immediately apparent.” Violations on either level are sufficient to establish unconstitutionality, and Judge Scheindlin’s reasoning on the presence of such violations was sound.
So too was her rejection of the city’s argument that targeting people for stops based on racial classification supposedly did not violate the Equal Protection Clause because such policies were based on crime suspect data. While Judge Scheindlin accepted two claims that were independently sufficient to establish an equal protection violation – an express classification on the basis of race that does not survive strict scrutiny and the application of a facially neutral policy in an intentionally discriminatory manner – I am inclined to accept only the latter. Nevertheless, the overall disposition of the merits in Floyd seems proper. However, last week the U.S. Court of Appeals for the Second Circuit issued a stay, halting the remedies ordered – which included immediate policy changes, the appointment of an independent monitor to oversee compliance, and a remedial process to consider further reforms – and assigning a new judge to the case. The three-judge panel determined that Judge Scheindlin’s invocation of S.D.N.Y’s related case rule ran afoul of the Code of Conduct for federal judges, which provides that they should “avoid impropriety and the appearance of impropriety” and recuse themselves in cases where “[their] impartiality might reasonably be questioned.”
Specifically, Judge Scheindlin encouraged Floyd’s designation as related to another case involving stop-and-frisk that, when filed in 1999, was randomly assigned to her. Though she rejected the attempts of the plaintiffs in that case, Daniels et al. v. City of New York, to revive litigation in 2007, she suggested an alternative path. “[I]f you’ve got proof of inappropriate racial profiling in a good constitutional case,” she remarked, “why don’t you bring a lawsuit? You can certainly mark it as related.” Indeed, when lawyers filed Floyd the next month – two of whom had worked for the Daniels plaintiffs and, apparently, taken the judge’s advice – they did just that. Accepting the designation, Judge Scheindlin received the case without it being subject to random assignment. Beyond this, her opinion does not avoid the appearance of impartiality, going so far as to conclude with a quote from a New York Times editorial on Trayvon Martin. While it is tempting to chide the Second Circuit by focusing merely on the result of the stay – a halt to the measures designed to remedy stop-and-frisk’s constitutional violations – let us instead close with one more analogy. Just as last week’s events undermined legitimate opposition to stop-and-frisk, so too did Judge Scheindlin’s excessively editorialized opinion betray the merits of her underlying legal arguments, adding to the already frustrating but enduringly preferable pace of weighing and accommodating values through normal political processes.