by Ady Barkan
Judge Shira Scheindlin, razor-thin and toned at age sixty-five, marched in quickly, cradling a foam Koozie with a Diet Coke in her right hand, and climbed the three steps to her bench overlooking her large packed courtroom. I sat below her to the right, with my back to her, soaking up these new and fascinating proceedings.
It was my first of fifty-two weeks as a law clerk in the federal trial court in downtown Manhattan. The commute from our bright two-bedroom apartment in Astoria was now twice as long and, due to the business dress code, much sweatier. But I was incredibly lucky: I was starting my clerkship with a front-row seat and backstage pass to the most anticipated criminal trial in years.
After jury selection was complete, the two assistant U.S. attorneys began methodically laying out their case: Bout was a world-class international arms smuggler who had for years sold weapons to African despots in violation of UN sanctions. Although he claimed to be in “retirement,” he agreed to sell antiaircraft missiles to men who said they were Colombian FARC rebels for use against American planes. Unfortunately for him, these buyers turned out to be undercover DEA agents.
The prosecution had emails, text messages, and secret audio recordings with which to prove its case. Bout’s lawyer responded with shifting, confusing, and ultimately ineffective counter-narratives. At sentencing, Bout broke his long silence. He stood, thanked the judge for conducting a fair trial, and then, finger pointing accusingly, began loudly berating the prosecutors for dishonestly pursuing a political agenda.
Judge Scheindlin handed down the lightest sentence that she could under federal law: twenty-five years. She was uncomfortable with the fact that the entire prosecution was based on a sting operation. Because there were no real FARC rebels looking to buy arms, without the DEA’s artifice there would not have been a crime. Sure, Bout sold arms to dictators. But so did Lockheed Martin, with the full blessing of the American government. Sure, Bout knew that his weapons would end up being used by criminals to kill innocent people. But so did thousands of gun shop owners across America. Even in a case against a notorious arms dealer, the judge was teaching me, justice is not as simple as good guys and bad guys.
When I was two weeks into my clerkship, the judge handed me back a draft opinion that I had written for her. “This needs a lot of work,” she said brusquely and with no sugar to coat her words. I can’t remember if she said it with her lips or her eyes, or if I simply projected my own insecurities onto her, but the message I took from her first evaluation of my performance was clear: I would need to improve dramatically if this clerkship was going to work out.
I had a lot to prove. Judge Scheindlin knew and I knew that I had gotten the position with the help of family connections. My great-aunt had worked with the judge when they were young prosecutors, and they had stayed friends for years. When Judge Scheindlin had originally called me in for an interview, she made clear that she wouldn’t have selected me out of the hundreds of applicants if it hadn’t been for my aunt’s effusive recommendation. Now, I feared, she was regretting her choice, worried that she would be stuck for a full year with an underperforming clerk.
I looked through the document. Large portions were crossed out. The language was pared back. A trial court opinion was, I realized, no place for intellectual musings or abstract theorizing about the law and the role of a judge in society. Those were pastimes for Ivy League law professors and their acolyte students. Courts had to speak with a different voice.
I stayed late, after the other clerks, law students, and Jim had gone home. I needed to improve, particularly because of what was coming up soon. That first month had been an entertaining, educational, and relatively easy introduction to my job; Jim and my co-clerk Mark had handled most of the work, while I simply got to watch and learn. But we were about to receive in chambers the reply brief from the plaintiffs in Floyd v. City of New York, then the most watched civil rights lawsuit in America, and I would be tasked with helping the judge issue a historic ruling.
Beginning in the 1990s, under Mayor Rudy Giuliani, New York City adopted a more aggressive strategy known as “broken windows” policing, bolstered by pseudoscience theories about the criminal mind and the environment. The NYPD’s new approach was to let no infraction—no matter how minor—go unpunished in order to prevent more serious crimes before they happened. The key to stopping violent crime, went this theory, was to eliminate the minor nuisances of graffiti, turnstile jumping, public urination, and broken windows. A disorderly world led to an attitude of lawlessness—an attitude that could be “reformed” if police officers gave young perps no breathing space in which to make New York City disorderly.
“Broken windows” policing was also driven by a resurgent belief in the power of metrics. Embracing wholeheartedly the wisdom of CompStat, the department’s elaborate software for tracking crime in real time, the leadership of the NYPD began to set higher quotas for “proactive” police activity. If petty crime rose in a particular precinct, the department would respond by assigning more officers to that zone and instructing them to bear down upon the people who they believed were responsible for the misdeeds.
By the middle of the next decade, this system of aggressive and proactive policing had swelled dramatically, resulting in constitutional violations against New York City residents on an almost unimaginable scale. More than 500,000 times each year, NYPD officers would stop pedestrians, demand to know what they were up to, and often conduct invasive pat-downs and searches of their bodies. The targets of this police action were, of course, not residents of the Upper East Side or employees of the Wall Street megabanks. Indeed, they were rarely white: they were nearly all black and brown men from neighborhoods like Crown Heights, Harlem, and the South Bronx.
David Floyd, a medical student, was one of them. On February 27, 2008, he ran into the tenant of the basement apartment in the small building owned by his grandmother in the Bronx. The tenant had been locked out, so Floyd brought down a handful of keys to try to unlock the door. As he struggled to find the right one, two police officers accosted him from behind. Their stop, question, and frisk of Floyd was standard operating procedure, emblematic of the way in which young black men in New York were under surveillance for behavior that is considered perfectly acceptable when done by white people.
In 2008, the Center for Constitutional Rights, with the support of a fancy law firm, filed a class action lawsuit against the city, naming Floyd as their lead plaintiff. The department’s actions inflicted grave physical and emotional harm on the civilians whom they targeted, according to the complaint. And these actions violated two fundamental constitutional rights: the Fourth Amendment right to be free from unlawful searches, and the Fourteenth Amendment right to be treated equally under law, regardless of race.
By the time I arrived in Judge Scheindlin’s chambers in the fall of 2012, the parties had been engaged in four years’ worth of grueling litigation. Eventually the city turned over millions of pages of documents, including the note cards that police officers were required to complete after each stop. Depositions were taken from civilians, police officers, and department officials. NYPD policy memos were submitted to plaintiffs’ lawyers. Expert statisticians were enlisted to analyze the enormous data collected by the NYPD. Finally, legal briefs were filed, replete with highly charged debates over when it was appropriate for a police officer to stop a civilian.
American courts have been grappling with this question for decades. Although the liberal Supreme Court of the 1960s had attempted to find an appropriate balance between the right of individuals to autonomy and dignity and the need of law enforcement to ensure law and order, the more conservative jurists appointed by Republican presidents from Richard Nixon through George W. Bush had consistently granted police widespread latitude to stop people for allegedly suspicious behavior.
The city filed a motion to dismiss Floyd’s claim, arguing that even under his version of the facts, the officers had reasonable suspicion to believe that he was engaged in cri
minal activity: not only was he trying multiple keys and rifling through his bag (potentially in search of tools for breaking in), and not only had he looked suspiciously over his shoulder, but he was also in a high-crime neighborhood that had recently witnessed a spate of burglaries. Although any of that conduct in isolation might not have provided a basis for a stop, argued the city, the totality of the circumstances meant that the officers were legally authorized to detain Floyd and investigate. My job was to help the judge evaluate the city’s argument for dismissing the case.
I spent a solid week combing through previous cases, learning all about reasonable suspicion, “furtive movements,” and high-crime areas. The plaintiffs submitted evidence to show that in fact there had not been a spate of recent burglaries in the area and that, according to the police department’s own definition of the term, most of New York qualified as a “high-crime area.” If the “high-crime area” and the “recent burglaries” were eliminated as a basis for the stop, the only potentially incriminating details left to the city’s argument was that Floyd had been looking through his backpack and over his shoulder. Under these circumstances, the judge decided that it would be unreasonable to suspect Floyd of committing a crime and denied the city’s motion to toss the case. Floyd’s claims survived, and the parties would soon move on to a major moment in pretrial litigation: the plaintiffs’ motion for class certification.
Five months later, after handling numerous other cases and watching the seasons pass, I turned my attention to the enormous stack of briefs that had been filed in Floyd v. City of New York. Plaintiffs were moving to be certified as representatives of a class of hundreds of thousands of black and brown New Yorkers who had been stopped unlawfully in recent years. This would allow them to more persuasively argue that major injunctive relief—requiring the city to stop wrongfully detaining people—was the only appropriate remedy. The city opposed the plaintiffs’ motion precisely because winning class status would be a legal and political victory for the plaintiffs that would be difficult to overcome later in the litigation.
Class action lawsuits are governed by Rule 23 of the Federal Rules of Civil Procedure. They are appropriate if and only if the plaintiffs seek to represent a large group of people for whom there are common questions of fact or law, and if their particular situation is typical of the situation for other class members. The plaintiffs in Floyd were bringing claims that, to my eyes, were precisely the type for which the class action rules were developed: civil rights claims seeking to reform government practices that impacted enormous numbers of people.
But the United States Supreme Court had recently issued a major decision limiting the use of Rule 23 class action lawsuits, and we would have to grapple with it. In Wal-Mart v. Dukes, store greeter Betty Dukes alleged that Wal-Mart had discriminated against her for many years, paying her less than her male counterparts. In its decision, the Supreme Court issued two important rulings.
First, the Supreme Court explained that trial courts handling class certification requests must conduct a “rigorous analysis,” examining the facts of the dispute (not merely the plaintiffs’ allegations) in order to decide whether the prerequisites for class status have been met. The court recognized that this analysis would often overlap with the ultimate judgment of the merits of the lawsuit—which meant that the class certification decision was a practice run for the final ruling.
Second, the Supreme Court ruled that Ms. Dukes could not lawfully represent a class of over 1 million women employees of Wal-Mart, holding that the employment practices and managerial decisions within Wal-Mart were made at the store level, not at corporate headquarters, and therefore the plaintiffs across different stores did not have “common” questions of law and fact that could be adjudicated in one lawsuit. It was a deeply flawed anti-worker decision, like so many decisions issued by the court in recent decades, which favored the interests of corporations over those of working people. But the decision was the law of the land. And my judge was a trial-level judge, with no authority to question or ignore the rulings of the Supreme Court, no matter how wrongheaded she believed they were. Therefore, we needed to conduct the “rigorous analysis” of all the facts of the Floyd case and determine whether or not the Rule 23 prerequisites for class status had been met. And, importantly, in order to certify a class in Floyd, we would need to distinguish our facts from those in Wal-Mart v. Dukes.
The mountains of evidence submitted by the parties led to two powerful conclusions: first, unlike in the Wal-Mart case, the New York Police Department was a centralized, hierarchical institution and its policies were set at headquarters and distributed to all of the precincts. The rules, forms, procedures, and guidelines governing the use of stop-and-frisk were department-wide. Headquarters collected and analyzed stop-and-frisk data for the whole city. It was, as the judge’s final opinion would explain, “a single stop-and-frisk program” that was “far more centralized and hierarchical” than the employment practices at Wal-Mart.
Second, the evidence made clear that the NYPD had conducted hundreds of thousands, or likely millions, of unlawful stops in recent years. The evidence was dramatic. It showed that police officers were systematically making stops without even giving sufficient legal justification and that the justifications they were listing were often undermined by the evidence. The evidence also showed that the police targeted black and brown people for stops even when controlling for crime and geography, and treated black and brown people more harshly during stops. Here’s a taste of the court’s findings, based on a database containing written records for all 2.4 million stops at issue in the case and the statistical analysis conducted by the plaintiffs’ expert witness and reviewed in detail by the court in a previous opinion.
• In more than 170,000 cases, police officers wrote down reasons for making the stop that were legally insufficient to justify that action. For example, officers noted that suspects had made a “furtive movement” or were in a “high crime” area, neither of which, alone, was enough to merit a stop.
• In one precinct, a whistle-blower police officer named Adrian Schoolcraft recorded supervisors repeatedly telling officers to conduct unlawful stops and describing the pressure from NYPD headquarters for such “proactive” policing. The data show that that precinct was no outlier bad apple: the percentage of stops that were facially unlawful in that precinct was below the citywide average.
• The percentage of stops for which police officers failed to list an interpretable “suspected crime” grew dramatically, from 1.1 percent in 2004 to 35.9 percent in 2009. Overall, in more than 500,000 documented stops—18.4 percent of the total—officers listed no coherent suspected crime, even though a police officer must suspect a person of committing a crime in order to lawfully stop that person.
• Only 12 percent of stops resulted in a summons or an arrest. In the remaining 88 percent of cases, police officers ultimately concluded that there was no probable cause to believe that a crime was being committed. That is to say, according to their own records and judgment, officers’ “suspicion” was wrong nearly nine times out of ten.
• Guns were seized in only 0.15 percent of all stops, despite the fact that “suspicious bulge” was cited as a reason for 10.4 percent of all stops. Thus, for every sixty-nine stops that police officers justified specifically on the basis of a suspicious bulge, they found only one gun.
With regards to discrimination based on race, the court concluded that:
• “NYPD stops-and-frisks are significantly more frequent for Black and Hispanic residents than they are for White residents, even after adjusting for local crime rates, racial composition of the local population, police patrol strength, and other social and economic factors predictive of police enforcement activity.”
• “Black and Hispanic individuals are treated more harshly during stop-and-frisk encounters with NYPD officers than Whites who are stopped on suspicion of the same or similar crimes.”
• Police officers are more li
kely to list no suspected crime category (or an incoherent one) when stopping black and Latino people than when stopping white people.
• Police officers are more likely to list as the stop justification “furtive movement,” which is highly nebulous and not particularly probative of crime, when stopping black and Latino people than when stopping white people.
It was April of 2012 when the parties’ briefing materials arrived in our chambers. I had been clerking for seven months and was now fully comfortable with my role and intimately familiar with the facts of the case and the law governing these issues. As I opened our word-processing software and began to write a draft of the opinion, I could feel the profound importance of the moment—for New York City and for me personally.
The dispute over the NYPD’s stop-and-frisk program had become one of the most divisive and important public policy debates in the city. The Floyd case was four years old, and the class certification decision would be the most significant one to date—and the final one before the case went to trial the following year. Because we needed to conduct a “rigorous analysis” of the facts of the case, it was also a preview of the final judgment. The ruling therefore would have tremendous impact on the NYPD and on the lives of millions of black and brown New Yorkers.
The power of the decision came not only from the legal authority of Judge Scheindlin to order the NYPD to do or not to do certain things; as with most landmark civil rights cases, the importance of Floyd was due to its place in the broader political context. While top-notch civil rights lawyers from the Center for Constitutional Rights were filing motions in court, organizers and activists from across the city were engaged in a multi-year effort to build popular political opposition to the police department’s practices.
Communities United for Police Reform (CPR) was a broad coalition of dozens of organizations in the city opposed to stop-and-frisk and the mass incarceration that it facilitated. CPR’s campaign was groundbreaking in its sophistication and rigor. Through its coalition members, CPR built a base of thousands of engaged grassroots leaders and supporters with firsthand experience of police misconduct. Some of the most important multiracial organizing work was done by an activist named Linda Sarsour, a Brooklyn-born Palestinian who brought together Muslim New Yorkers, who had been subjected to extensive surveillance and abuse since 9/11, with non-Muslim black and Latinx residents targeted under different justifications. The coalition built and used political relationships in City Hall and the state legislature to put pressure on the NYPD and pursue an affirmative agenda. Most significantly, they partnered with city council member Jumaane Williams, a former tenant organizer with long dreadlocks and a sharp critique of the NYPD, to introduce a package of major reforms in the New York City Council that would dramatically reduce the frequency and harmfulness of stops-and-frisks by the police department. The lawsuit, therefore, was only one (powerful) tool among many in the effort to reform the NYPD.